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2021 MarsdenLR 634
COURT OF APPEAL PUTRAJAYA
WEN RIXING & ANOR – Appellant
Versus
OON HOON NAM – Respondent
[Civil Appeal No: W-01(IM)(NCVC)-449-08-2019]
The court ruled that claims should not be struck out if distinct issues exist warranting a trial, reversing the High Court's decision on res judicata and fraud allegations.
Headnote:(A) Courts of Judicature Act, 1964 – Section 44 – Appeal against striking out of claim – The appellants challenged an interpleader order alleging fraudulent misconduct by the respondent – High Court found the suit was an abuse of process due to res judicata – This Court found the High Court erred in striking out and held appellants had triable issues and reasonable cause of action – The present suit was distinct from earlier suits and deemed not caught by res judicata principles. (Paras 15, 21, 26)
(B) Fraud – Particulars of fraud must be adequately pleaded – The Court found that the High Court erred in stating that particulars of fraud had not been pleaded when they were indeed provided in detail. (Paras 22, 24)
Facts of the case: The appellants appealed against the striking out of their claim concerning ownership of land previously owned by their ancestor, alleging that the respondent fraudulently obtained interpleader orders. (Paras 2, 10, 14)
Findings of Court: The High Court misdirected itself on res judicata and failed to recognize pleadings of fraud; the current claims were held to have merit and required trial. (Paras 20, 26)
Issues: Whether the appellants' current action was barred by res judicata and if they should have appealed against dismissing their intervention in earlier suits. (Paras 15, 21)
Ratio Decidendi: The court held that res judicata does not apply when substantial issues have not been resolved in previous actions and that initial findings involving non-parties do not preclude subsequent claims. (Paras 15, 20)
Result: Appeal allowed; order struck out and case remitted for trial.
JUDGMENT
Introduction
[1] This is the appellants' appeal against the striking out of their claim by the learned High Court Judge, in allowing the respondent's application (Encl 20) to strike out the appellants'/plaintiffs' Statement of Claim.
[2] For the purposes of this appeal, the parties shall be referred to as they were at the Court of Appeal.
Background
[3] The subject matter in this appeal concerns two pieces of land held under GM1281, Lot 2446, Mukim Batu, Tempat Segambut, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan (formerly known as Entry No 5659, Survey No 2446) and GM1282, Lot 2466, Mukim Batu, Tempat Segambut, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan (formerly known as Entry No 5660, Survey No 2466) [collectively "the Lands"].
[4] The historical ownership of the Lands started off with the two original owners of the Lands, namely, one Oon Kheng Bi and one, Goh Liat, who owned equal undivided 1/2 shares in each of the Lands in 1931.
[5] The subject matter currently in dispute relates to the undivided 1/2 share ownership of Oon Kheng Bi in the said Lands (collectively "the said Properties") whereas the remaining undivided 1/2 share owned by Goh Liat is not in dispute. Goh Liat's undivided 1/2 share is presently registered in the name of Goh Kay Siong and Gan Su Lee, each holding 1/4 of the ownership respectively. The appellants together with their sisters are the beneficiaries of Oon Kheng Bi.
[6] Oon Kheng Bi passed away on 18 May 1931, leaving his only son, one Wen Tianhe who was the appellants' biological father. The appellants are also appointed as the Administrator of the Estate and Property of Oon Kheng Bi.
[7] The respondent, Oon Hoon Nam, is a descendant of Oon Chooi Guan and claims that he is the rightful owner and/or proprietor of the said Properties and has obtained a Court Order vide an interpleader proceeding, namely Originating Summons Suit No 24NCVC-139-01-2016 ("Suit 139") for inter alia, his name to be registered as the owner of the said Properties.
[8] The respondent then commenced an action against Goh Wee Peng ("Goh") to remove him as a trustee for the said Properties vide Kuala Lumpur High Court Suit No WA-21NCVC-36-05-2018 ("Suit 36") and to enforce his Suit 139 Order, by seeking to register his proprietary interest in the said Properties.
[9] Goh then filed a suit vide Kuala Lumpur High Court Suit No WA-21NCVC-37-05-2018 ("Suit 37") as a trustee of the said Properties owned by the late Oon Kheng Bi against the respondent for inter alia, an order to nullify the Suit 139 Order. Suit 37 was subsequently struck out pursuant to Goh's non-compliance with an unless order when Goh failed to pay the security for costs ordered by the Court. Goh did not appeal against this decision. The appellants sought to intervene in Suit 37 vide encl 46.
[10] The appellants filed their present action against the respondent, seeking to set aside an interpleader order obtained vide Suit 139 which resulted in the respondent, being registered as the owner of the said Properties. The appellants' basis to set aside the Suit 139 Order is that the respondent had fraudulently misled and/or defrauded and/or deceived the Kuala Lumpur High Court into granting the Suit 139 Order.
[11] After the appellants filed their present action, the respondent filed an application [Encl 20] pursuant to O 18 r 19 of the Rules of , 2012 to strike out the appellants' claims After a full hearing, the High Court on 20 August 2019 allowed encl 20 and struck out the appelIants' claim.
[12] The appellants being aggrieved with the decision of the High Court appealed against the decision of the learned High Court Judge.
[13] Upon the appellants' application to this Court, this Court on 13 December 2019 granted an interim injunction pursuant to s 44 of Courts of Judicature Act , 1964, and ordered that the respondent and/or his agents, employees and/or his representatives be restrained and/or prevented from registering and/or causing to be
