KAMARDIN BIN HASHIM - JC

1. This is my judgment in respect of the appellants/plaintiffs appeal against the decision of Learned Deputy Registrar who allowed the respondent/defendant's application to strike out the plaintiffs claim under Order 18 Rule 19(1)(d) of the Rules of the High , 1980 (RHC) which is an abuse of the process of the Court.

2. Therefore, the only issue before the Court is whether the plaintiffs claim, as filed herein, is an abuse of process or not.

Brief Facts

3. By way of a letter of undertaking dated 18/11/1999 (the said agreement), the defendant agreed to pay the plaintiff 4% of the total project value of a government contract to build a school in consideration of the plaintiff securing the contract for the defendant. Mode of payment under the said agreement was agreed to be in three tranches/installments. First tranche for the sum of RM100,000.00 was due upon the issuance of the Letter of Intent (LOI) by the government. The second, tranche that is for the amount of 50% of the remaining amount was due upon receipt of mobilization fee from the government and the third tranche ie, 50% of the remaining amount was due upon receipt of the first progress payment from the government.

4. The LOI was issued by the government (Ministry of Education) on 8/6/2000 offering the defendant the contract to build a school, ie, SMK Taman Rinting, Kluang, Johor.

5. On 12/9/2000, the plaintiff herein had commenced an action in the Sessions Court vide civil suit no. 52-3196-2000 against the defendant herein based on the said agreement on the failure of the defendant to pay the plaintiff the sums agreed under the said agreement. The defendant herein has filed a defence disputing the plaintiff's entire claim.

6. During the trial at the Sessions Court, the plaintiff and the defendant reached a settlement and recorded a consent judgment on 15/2/3006, wherein without admission of liability the defendant herein agreed to pay the plaintiffs the sum of RM65,000.00 only as full and final settlement of the plaintiff's claim which was based on the said agreement.

7. On 21/3/2007, the plaintiff commenced the present action against the defendant based on the same said agreement wherein the plaintiff now alleges that since the government contract value awarded in 2001 was for RM11,700,000.00, therefore the 4% of the value of the project would come to RM486,000.00. The plaintiff now in the present action is claiming for the sum of RM368,000.00 which represent the second and the third tranches due under the said agreement after deducting the sum of RM100,000.00 for the first tranche claimed in the Sessions Court.

Defendants Submission

8. The defendant submitted that since the sums claimed herein arose from the said agreement, the plaintiff ought to have claimed all of the sums due in its first action wherein a consent judgment was recorded in 2006. The plaintiff is not entitled to commence litigation in installment against the defendant. The plaintiff is estopped entirely from commencing this present action against the defendant due to the doctrine of res judicata and also in view of the consent Judgment entered in the Sessions Court action.

Plaintiff Submission

9. The plaintiff submit that the present suit between the parties is in respect of the breach of the said agreement by the defendant in respect of claims for the second and third installments. The consent judgment was entered without admission of liability and on a without prejudice basis. This shows that both parties had agreed that the settlement recorded in the Sessions Court action would not prejudice the plaintiff from filing a separate proceedings against the defendant in respect of the claim for the second and third installments under the said agreement.

Decision of the Deputy Registrar

10. The Learned Deputy Registrar allowed the defendant's application after relying on the decision of the Federal Court in the case of Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd, [199