Steve Shim CJ (Sabah & Sarawak):

The Issues

[1] This is an appeal by the appellants against the judgment of the Court of Appeal dated 7 October 1998. In the memorandum of appeal, the appellants have postulated the following propositions, namely:

(1) That the Court of Appeal erred in law in holding that there has been an abuse of the process of Court by the appellants in bringing the Suit No S1-22- 102-1991 (the 2nd suit) against the respondent when the appellants' previous Suit No F22-262-1986 (the 1st suit) had been set aside for failure to comply with the Rules of the High Court;

(2) That the Court of Appeal erred in law in holding that the appellants' 1st suit which was set aside for procedural non-compliance of the Rules of the High Court is similar to a suit being struck off for failure to obey a peremptory order of the Court and this precluded the appellants from filing the 2nd suit as being an abuse of the process of the Court.

[2] The above propositions have to be examined within the confines of the subject-matter upon which leave to appeal was granted by the Federal Court. And that has been stated succinctly as follows: whether it is an abuse of the process of the Court for the appellants to file a fresh suit when the 1st suit had been set aside for failure to comply with the procedural rules of the Court.

The Factual Background

[3] At the outset, it is pertinent to highlight the factual background relevant to the issues involved. On 2 May 1986 the appellants instituted an action vide Kuala Lumpur High Court Suit No F22-262-1986 (the 1st suit) against one Low Kim Soon and Scot Leasing as the original defendants to the action. On 13 June 1988, the appellants filed an application to amend the writ of summons to include Allen & Gledhill (the respondent) as a party to the action. On 24 January 1990, the above application for amendment was granted which would require the appellants to effect the said amendment within 14 days from the date of the order in compliance with O 20 r 9 Rules of the High 1980. However, the appellants failed to do so. On 7 June 1990, the appellants obtained an order for leave to extend time to file their amended writ of summons and statement of claim to the 1st suit. Again, they failed to effect the said amendment within the prescribed period under the Rules. On 27 November 1990, when the respondent was served with the amended writ of summons and statement of claim, it took out an application to set aside the issuance of the said amended writ and statement of claim. On 16 January 1991, the learned senior assistant registrar granted the said application. There was no appeal against the decision of the learned senior assistant registrar.

[4] Thereafter, on 12 March 1991, the appellants filed the 2nd suit vide High Court Suit No S1-22-102-1991, against the respondent who then applied to strike it out on grounds of res judicata and/or issue estoppel and an abuse of the process of the Court. On 3 April 1991, the above application was allowed by the learned senior assistant registrar. The appellants appealed against the said decision to the High Court judge who allowed the appeal. The respondent, being dissatisfied with the decision of the High Court, lodged an appeal to the then Supreme Court. In allowing the appeal, the Supreme Court ordered a rehearing of the appellants' appeal from the learned senior assistant registrar before a different judge. In consequence, on 12 August 1994, when the matter was heard before Dato' Hj. Mokhtar Sidin J (as he then was), the appellants' appeal was dismissed on the grounds that issue estoppel applied and hence the filing of the 2nd suit constituted an abuse of the process of the Court. Against that decision, the appellants then filed an appeal to the Court of Appeal on 17 August 1994. On 20 August 1998, the Court of Appeal dismissed the said appeal essentially on the same grounds as the High Court judge. The appellants thereafter filed an application in the Federal