Shaik Daud Ismail JCA:

This is an appeal from the decision of the High Court which had, on 28 September 1994, affirmed the decision of the senior assistant registrar to set aside the writ of summons and statement of claim of the appellant on the ground that the action was res judicata and also frivolous and vexatious and an abuse of the process of the court.

On 2 May 1986 the appellants filed an action in the High Court (the first suit) against one Low Kim Soon, a former legal assistant of the respondent and Scotch Leasing Sdn. Bhd. involving the alleged conduct of the said Low Kim Soon in handling the purchase of land resulting in alleged losses to the appellants. Some two years later, on 13 June 1988, the appellants filed an application to amend the writ of summons and statement of claim to include the present respondent as a party to the action. It is rather strange why the appellants, if they thought they had a cause of action, never thought to include the present respondent in the first suit, but only did so two years later. The appellants' application, however, was granted by the court on 24 January 1990. Now having obtained the order and by virtue of O. 15 r. 8(1) of the Rules of the High Court 1980 (RHC), the appellants are required to affect the amendments within 14 days from the date the order was made failing which the order would cease to have effect, without prejudice to the power of the court to extend the period. The appellants failed to do this within the stipulated period, and there was no application for the extension of the period.

Arising out of this failure as aforesaid, the appellants, once again by a summons in chambers dated 20 March 1990, filed another similar application. This second application was granted on 7 June 1990. Again the appellants failed to affect the amendments within the stipulated period of 14 days from 7 June 1990. The amendments were eventually effected on 15 October 1990, four months after the stipulated period, without any application being made for an extension of time. This was in fact conceded to by the appellants. (See p. 85 of the appeal records).

Pursuant to such failure, the respondent by summons in chambers dated 27 November 1990 applied to set aside the amended writ of summons and statement of claim, and on 16 January 1991 the respondent's application was allowed by the senior assistant registrar. The appellants did not appeal against the senior assistant registrar's order, further evidence of their concession that they were indeed out of time. Instead the appellants filed a fresh writ of summons and statement of claim against the respondent (second suit).

The respondent entered conditional appearance to the second suit on 22 March 1991 and on the same date also filed an application to set aside the second suit on the grounds that res judicata would apply and that the filing of the second suit constitute an abuse of the process of the court. On 3 April 1991, the learned senior assistant registrar allowed the respondent's application. Not being satisfied with the learned senior assistant registrar's decision, the appellants appealed to the then Supreme Court, which allowed the appeal but ordered that the appeal to the judge in chambers be reheard by another judge. The matter was heard by another judge and he dismissed the appellants' appeal with costs against the learned senior assistant registrar's decision to strike out the second suit on the ground that issue estoppel applied and that the filing of the second suit constituted an abuse of the process of the court.

Learned counsel for the appellants argued that as the matter was never decided on its merits, issue estoppel does not apply. He argued that when the appellants' amended writ was set aside that decision was not based on merits but rather on a procedural mistake of the appellants' failure to file the amended writ of summons and statement of claim within the stipulated time pursuant to O. 15 r. 8(1) o