Court ruled that claims were not barred by res judicata or issue estoppel as the issues in the present writ action differ significantly from those in the previous suit, allowing the case to proceed to trial.

A. Introduction

[1] In these interlocutory appeals from the decision of the High Court which struck out the plaintiffs' writ and statement of claim under O 18 r 19 of the Rules of 2012, there are altogether 140 appellants (the plaintiffs below) with two sets of respondents, namely the 1st respondents comprising the liquidators of the company called The Great Alonioners Trading Corporation Bhd ("Gatco") and the 2nd respondent which is a company named Thamarai Holdings Sdn Bhd ("Thamarai"). One appeal is brought against the striking out application filed by the 1st respondents (encl 7), while the second appeal concerns the striking out application filed by the 2nd respondent (encl 10). Both were allowed by the High Court. After hearing full submissions by counsel and appreciating the special circumstances of this case, and the issues of law which have been extensively submitted bearing on the exact perimeters of the doctrines of res judicata and issue estoppel (and their relationship), as well as the ramifications of the legal concepts of "privies" or "privies in interest", on the premise that res judicata binds not only the immediate litigants but also their "privies", we reserved our decision to a later date. We now provide our full decision.

B. The Parties

[2] It bears emphasis that the appellants here number 140 persons. The 140 appellants were the plaintiffs in the writ action. They sue in their individual capacities. The 1st respondents are the liquidators of Gatco. The 2nd respondent ("Thamarai") is the purchaser who purchased the parcels of leased land, the underlying subject matter of the action, from the liquidators.

[3] We now turn to a narration of the underlying material facts to analyse the subject matter of the dispute, the position of the respective parties in relation thereto and the decisions of the several courts bearing on the issue of res judicata, issue estoppel, privies and privies in interest, against a consideration of whether this appeal is a proper case for summary disposal under a striking out proceeding.

C. Background Facts

[4] The subject matter of the dispute concerns several parcels of land (Lots 774, 775 and 776, HS(D) Leases 21, 22, 23) which are held under leases originally granted in 1977 by the State Economic Development Corporation of Negeri Sembilan ("SEDC") to Gatco to be converted into a land development scheme by the National Union of Plantation Workers ("NUPW") for its members, originally to be planted with sugar cane but later converted to the planting of rubber. Gatco itself was incorporated by NUPW for this purpose. The leases for 66 years registered in Gatco's name on 27 November 1977 totalled approximately 4,700 acres ("the land"). As pleaded in the statement of claim, NUPW had invited its members to participate in the scheme. The present plaintiffs/appellants took up the offer and each paid a sum of RM7,600.00 as deposit. They settled on the plots allotted to them and worked upon the land. It is pleaded that they "have been in undisturbed possession of the land since 1977."

The Indorsement On The Lease

[5] The leases were registered in Gatco's name, with an indorsement reading:

"The Lessee shall be entitled to charge the said land but the interest of the participants shall not be prejudiced and all liabilities arising from the said charge shall be borne by the Lessee."

[6] This indorsement, it is argued by the appellants, results in a constructive trustee relationship between Gatco and the settlers. Failure of the land settlement scheme and the charging of the land.

[7] The settlement scheme failed. Gatco had obtained additional financing from two financial institutions (United Asian Bank ("UAB") and Nederlandse Financiering Maatschappi Voor Ontwik Kelingslanden ("FMO")), and these parcels were then charged to these two financial institutions as secured creditors. It appears from the evidence that these lands were charged only sometime in 1978 and 1984, meaning to