Abdul Malek Ahmad JCA:

The doctrine of res judicata has been expounded in many an authority but, like other legal doctrines, continues to be argued before the Courts as each case must depend on its particular facts. In this appeal before us, despite a well reasoned judgment, we could not, having carefully considered the arguments canvassed before us, agree with the learned trial Judge who held that the doctrine was not applicable. We, therefore, allow the appeal with costs here and below and order that the deposit be refunded to the appellant.

The sequence of events are not exactly in dispute. On 22 June 1982, the appellant as lender had executed a loan agreement with the respondent granting the latter a RM14.45 million loan which loan facility was secured by a charge over five pieces of land (hereinafter 'the charged properties') dated 31 May 1982. The respondent had defaulted on the loan whereupon the appellant had commenced an action in 1986 vide Kuala Lumpur High Court Civil Suit C23- 948-86 (hereinafter 'the first action') against the respondent and the two guarantors.

A charge action was initiated on 25 April 1986 vide Kuala Lumpur High Court Originating Summons No. 31-1069-86 (hereinafter 'the second action') asking that the charged properties be sold by public auction under the National Land Code to satisfy the sum of RM19,807,584.93 due to the appellant as at 31 December 1985 together with interest thereon at the rate of 14.75% per annum from l January 1986 to the date of payment and the usual consequential orders.

The order for sale was accordingly granted by N.H. Chan, J. (as he then was) on 16 July 1987 and the auction date was fixed on 14 March 1988. The respondent had appealed to the Supreme Court against that order but withdrew it on the hearing date namely 7 March 1988 whereupon that appeal was dismissed with costs.

As for the first action, the appellant obtained an O. 14 judgment from the Senior Assistant Registrar on 26 September 1988 which categorically states that the respondent and one of the two guarantors are to pay RM19,807,584.93 to the appellant with interest at the rate of 14.75 per cent from 1 January 1986 to the date of full payment. The appeal against that order was dismissed with costs by Dr. Zakaria Mohd. Yatim J. (as he then was) on 10 July 1989.

In April 1990, the respondent filed a civil action against the appellant vide Kuala Lumpur High Court Civil Suit D322-1288-90 (hereinafter 'the third action') where the statement of claim ran into 24 four pages. The prayers sought were:

a) to set aside the order for sale in the second action;

b) to consolidate this action, the second action and two other actions involving the same parties (Kuala Lumpur High Court Civil Suit S3-23-62-88 and Kuala Lumpur High Court Civil Suit S3-22-1125-92) which are to be heard subsequently as one matter;

c) to restrain the appellant from disposing, interfering and/or attempting to dispose of by auction, sale or otherwise howsoever through its agents, solicitors, servants or whomsoever the charged properties;

d) to delete and cancel the charge over the charged properties at the direction of the Court by the Registrar of Land Titles and to deposit the original documents of titles with the Court until determination of the issue of damages and if the said damages so held by the Court exceed the alleged claim of the appellant, the said damages are to be affected towards the alleged claim and the titles to the charged properties are to be returned to the respondent;

e) to reinstate the approved status of the said charged properties as a whole assembly and all documents where necessary to be executed by the Senior Assistant Registrar on behalf of the appellant to enable them to be valued and proceed as a whole block to the developer;

f) for all necessary interim orders and directions necessary to give effect;

g) damages on a punitive, remedial, restorative and exemplary basis;

h) interest;

i) costs; and