Abdul Kadir Sulaiman JCA:

On 29 September 1999, the respondent caused a notice of writ of summons and the writ itself to be issued and served on the appellants out of jurisdiction in Civil Suit No. S2-22-546-1999 for breach of an oral representation made on behalf of the 1st appellant. On 5 November 1999 both the appellants entered conditional appearance. Following that on 18 November 1999 they filed a summons in chambers to set aside the said notice and the writ on the ground that the court here has no jurisdiction to try the action brought against them. As an alternative, they sought a stay of all further proceedings in the action on the ground that the court is not the forum conveniens.

The said summons in chambers of the appellants was heard by the learned senior assistant registrar who gave the decision on 14 February 2000 dismissing it. Dissatisfied with the decision, the appellants appealed to the judge in chambers. After hearing the appellants' appeal, on 28 April 2000 the learned judge dismissed the said appeal on both grounds of jurisdiction and forum and ordered the appellants to file their statements of defence on or before 22 May 2000. Dissatisfied with that decision of the learned judge, the appellants now appeal to this court.

While waiting for the appeal to be heard, the appellants on 10 August 2000 filed a notice of motion praying that the appellants be given leave to adduce further evidence at the hearing of the appeal by way of the filing and reading of two affidavits to be affirmed by Tan Hin Huat and Lawrence Lee Mun Kong. The said two affidavits were exhibited in the application.

In the proposed affidavit of Tan Hin Huat, in support of forum non conveniensissue, it is deposed that the two witnesses for the appellants who are citizens and residents of Singapore, have since left the service of the first appellant, one on 18 January 1996 and the other on 30 November 1996. Having left the service of the 1st appellant, therefore, they cannot be instructed by the 1st appellant to give evidence in any suit against it and that no subpoena issued by a court in this jurisdiction may be affected against them in Singapore. Hence, Singapore is the forum conveniensto try the action brought by the respondent here. In support, the deponent exhibited letters sent to the two witnesses seeking their cooperation to attend as witnesses in the trial of the suit instituted by the respondent in Malaysia. Both received the communication but did not respond. As for Evelyn Teah, she responded over the phone that she would not attend court in Malaysia as a witness. The proposed affidavit of Tan Hin Huat also raises the issue of res judicatacontending the same issues and matters in the respondent's suit against the appellants have already been raised, litigated and finally decided upon in the 1st appellant's Suit No. 454 of 1998 brought against the respondent in the Singapore High Court. On 7 October 1998 the Singapore High Court granted leave to the respondent to defend the action upon provision of security in the sum of RM2,000,000 by way of a banker's guarantee drawn in favour of the 1st appellant's solicitors or nominees in Malaysia by 4 November 1998. In the event of the respondent's failure to comply with the aforesaid order, the defence be struck out and interlocutory judgment be entered without further order against the respondent with damages to be assessed. The respondent failed to comply with the terms of the said order and on 13 November 1998, an interlocutory judgment was entered against him by having his defence struck out and he was ordered to pay the first appellant damages to be assessed and interest at 2% per annum above the first appellant's cost of funds from 11 November 1997 to the date of actual payment and solicitor and client costs. On 13 April 2000 a final judgment was entered against the respondent in the sum of RM9,412,742.98, interest at 2% per annum above the 1st appellant's cost of funds on the