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2025 MarsdenLR 3606
HIGH COURT MALAYA KUALA LUMPUR
JOSEPH IRUTHAYAM – Appellant
Versus
CHANG YOON FOO – Respondent
[Civil Suit No: WA-24NCC-757-07/2022]
The doctrine of res judicata bars re-litigation of issues previously adjudicated, and the Plaintiff's challenge to the Summary Judgment was deemed a collateral attack, lacking grounds for set aside based on alleged fraud.
Headnote:(A) Evidence Act 1950 - Section 44 - The Plaintiff challenges a Summary Judgment obtained by the Defendant, claiming fraud and lack of authority to recover funds allegedly owed. The doctrine of res judicata applies as the issues were previously adjudicated. The Plaintiff's attempt to set aside the Summary Judgment is deemed a collateral attack on prior court decisions. (Paras 39, 60, 61, 62)
(B) Res Judicata - The principle bars re-litigation of matters already decided in earlier proceedings. The Plaintiff's claims did not introduce any new evidence or exceptional circumstances justifying a departure from this established bar. (Paras 52, 60)
(C) Summary Judgment - Plaintiff lacked legal grounds to set aside the Summary Judgment, as it was properly obtained despite the arguments presented. (Paras 40, 61)
Facts of the case:
The Plaintiff, an advocate, challenges a Summary Judgment awarded against him relating to RM425,000.00, contending that the Defendant fraudulently acquired the judgment without Profound being a party. The Defendant, previously a director, claimed entitlement to the funds. The Plaintiff's application included a request for an order to set aside the Summary Judgment. (Paras 1-15, 18-23)
Findings of Court:
The Plaintiff's application was rejected as the arguments for setting aside the judgment were previously adjudicated, and the Summary Judgment was not procured by fraud. The Plaintiff's claims and attempts to introduce new evidence were inadequate. (Paras 59, 62)
Issues: The primary issues included whether the Plaintiff could challenge the Summary Judgment on grounds of fraud, the applicability of res judicata, and whether any procedural errors had occurred. (Paras 38, 60)
Ratio Decidendi: The Court ruled that the Summary Judgment was not obtained unlawfully; the Plaintiff failed to demonstrate sufficient grounds for its set aside. The doctrine of res judicata bars further litigation on the same matter and the proper procedure was to appeal, not to initiate fresh proceedings. (Paras 61-64)
Result: Originating Summons dismissed with costs.
| Table of Content |
|---|
| 1. case background and procedural history. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 2. plaintiff's arguments regarding jurisdiction and entitlement. (Para 15 , 18 , 19 , 20 , 21 , 22 , 23) |
| 3. defendant's counterarguments addressing procedural correctness. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31) |
| 4. analysis of procedural flaws and judicial discretion. (Para 33 , 34 , 37 , 39) |
| 5. legal principles surrounding fraud and collateral attacks. (Para 41 , 42 , 46 , 48 , 50 , 57) |
| 6. conclusion on res judicata and dismissal of the application. (Para 59 , 61 , 63 , 64) |
[1] This Originating Summons concerns the Plaintiff's application seeking various declaratory orders to essentially set aside a Summary Judgment obtained by the Defendant against the Plaintiff in the Sessions Court and subsequently upheld by the High Court on appeal ("this Originating Summons").
[2] During the course of these proceedings, on 16 March 2023, the original Defendant, Chang Yoke Phor, passed away. On 3 August 2023, this Court substituted the original Defendant with Chang Yoon Foo, who is the executor of the estate of the deceased Chang Yoke Phor. For the purpose of clarity and to avoid confusion, all references to "the Defendant" in this Judgment refer to the original Defendant, Chang Yoke Phor, unless otherwise stated.
A] Salient Background Facts
[3] The Plaintiff is an advocate and solicitor of the High Court of Malaya and practises under the law firm of M/s Joseph Iruthayam & Co
[4] The Defendant was a director of Profound Projects Sdn Bhd ("Profound") but had resigned from his position. The Defendant was never a shareholder of Profound. The Defendant is a general contractor.
[5] Sometime in February 2016, Profound appointed the Plaintiff's firm as their solicitors to take up a civil action against Pembinaan Megah Ikhlas Sdn Bhd ("Pembinaan Megah") and Gabungan Strategik Sdn Bhd ("Gabungan Strategik") to recover outstanding fees for construction work done by Profound (Kuala Lumpur Civil Suit No: WA-22C-8-02/2016 (Profound v. Pembinaan Megah and Gabungan Strategik) ("KLSC Suit No WA-22C-8-02/2016").
[6] Pursuant to a Consent Judgment dated 17 January 2017 in KLSC Suit No. WA-22C-8-02/2016, Pembinaan Megah agreed to pay Profound the sum of RM1.5 million to settle Profound's claim ("Consent Judgment"). The legal fees were agreed at RM300,000.00.
[7] Following the Consent Judgment, a sum of RM1.5 million was deposited into the Plaintiff's account. Terence Chong Tzin, who was a director and shareholder of Profound, instructed the Plaintiff to pay RM600,000.00 to the Defendant. The Plaintiff subsequently paid RM600,000.00 to the Defendant and RM175,000.00 to Profound, leaving a balance of RM425,000.00.
[8] The Defendant claimed that the balance of RM425,000.00 belonged to him, asserting that he had brought the project to Profound and was entitled to the money based on his role at the time he was a director.
[9] The Defendant subsequently initiated legal proceedings against the Plaintiff in Kuala Lumpur Sessions Court, Case No WA- B52NCC-357-07/2020, seeking to recover the outstanding sum of RM425,000.00 ("KLSC Suit No. WA-B52NCC-357-07/2020").
[10] The Defendant then applied for Summary Judgment under O 14 of the Rules of Court 2012, and the Sessions Court granted summary judgment in favour of the Defendant on 8 January 2021 for the sum of RM425,000.00 in KLSC Suit No. WA-B52NCC-357-07/2020 ("Summary Judgment").
[11] The Plaintiff appealed against the Sessions Court's decision granting Summary Judgment through Kuala Lumpur High Court Appeal No. WA-12ANCC-10-01/2021 ("Summary Judgment Appeal"). The High Court dismissed the said Appeal on 9 April 2021 and affirmed the decision of the Sessions Court ("High Court Appeal Dismissal Decision").
[12] The Plaintiff did not appeal against the High Court Appeal Dismissal Decision.
[13] Following demands for payment, including a letter of demand dated 17 June 2022 to enf
