The doctrine of res judicata bars a subsequent petition based on the same facts when an earlier petition was adjudicated and struck out, emphasizing finality in litigation.

Appeal

[1] On 10 December 2009, we allowed the appellants' appeal and set aside the order made by the High Court against them pursuant to the respondent's petition presented under s 181 of the Companies Act 1965 . (A reference hereinafter to a section is a reference to that section in the , unless otherwise stated).

[2] We now provide our grounds.

Agreed Facts

[3] The agreed facts prepared and signed by the parties' counsel respectively are simple and straightforward.

[4] In and around 2003, the second appellant ("Phuar Kong Seng") and the respondent ("Lim Hua") were the only shareholders and directors of the first appellant, Chemfert Sdn Bhd ("the company").

[5] At the instance of Phuar Kong Seng and pursuant to a Court-convened extraordinary general meeting under s 150, an additional director was appointed, while Lim Hua was removed as director of the company on 21 September 2004.

[6] Subsequently, Lim Hua presented a petition under s 218(1)(f) and (i) ("the first petition"), seeking to wind up the company.

[7]On 19 May 2005, pursuant to a consent order, the first petition was struck out with no liberty to file afresh ("the consent order").

[8] On 14 December 2005, Lim Hua filed a writ to set aside the consent order (There was no indication on the outcome of that writ).

[9] On 20 December 2005, Lim Hua presented another petition ("the instant petition") seeking to be reinstated to the company's board of directors under s 181. The instant petition and the first petition were based on the same facts and allegations Pursuant to the instant petition, on 15 March 2006, Lim Hua filed an ex parte application. On 20 April 2006, he obtained an ex parte order for the appointment of interim receivers and managers ("R & M") and various ancillary reliefs (collectively, "the ex parte order"). However, on the inter partes application of Phuar Kong Seng and the company, the ex parte order was set aside by the High Court on 9 January 2007.

[10] Thereafter, again in the instant petition, on 14 February 2007, Lim Hua re-applied for and obtained yet another order for the appointment of interim R & M and the same ancillary reliefs (collectively, "the inter partes order") which is now the subject matter in the instant appeal lodged by Phuar Kong Seng and the company.

Questions For Determination

[11] In the instant appeal, parties' respective learned counsel had agreed and formulated five questions for determination by us.

[12] The first question was whether the instant petition is caught by the doctrine of res judicata by reason of the first petition.

[13] After hearing submissions, we answered the first question in the affirmative and held that the answer had effectively and completely disposed of the instant appeal, in which case, there was no necessity for us to deal with the other four questions.

res judicata

[14] Learned counsel Mr Conrad Young (Mr CM Loo and Mr K Thavanesan with him) submitted that the instant petition is caught by the doctrine of res judicata as Lim Hua had previously presented the first petition based on the same facts and allegations and that the first petition had by consent been struck out on 19 May 2005 with no liberty to file afresh. They made reference inter alia to Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd., 1995 MarsdenLR 1135 ; Kinch v. Walcott and Others [1929] AC 482, 493-494; and Kannappa Chettiar v. Vellasamy Pillai ; 1976 MarsdenLR 204 .

[15] Lim Hua's learned counsel Mr Harjinder Singh, assisted by Mr Hoo Lin Coln, argued that the doctrine of res judicata was inapplicable.

[16] It is pertinent for us to examine the first petition and the instant petition presented by Lim Hua, in the light of the doctrine of res judicata.

[17] On the agreed facts