JUDGMENT

[Enclosure 10]

Celestina Stuel Galid J:

Introduction

[1] The Plaintiff, inter alia, claimed against the Defendant for a declaration that the Defendant had breached his fiduciary duty as the then director of the Plaintiff. The Plaintiff also claimed the sum of RM1,385,157.30 from the Defendant as the loss and damages it suffered arising from the alleged breach of fiduciary duty by the Defendant.

[2] By encl 10, the Defendant applied to strike out the Plaintiff's claim.

[3] This Court allowed the striking out application on 13 February 2025. The Plaintiff has since filed an appeal against the said decision.

Background Facts

[4] The backgrounds facts were not in dispute and may be stated as follows.

[5] The Defendant was a director and shareholder of the Plaintiff from 16 June 2010 until 20 January 2017.

[6] On 13 November 2013, the Plaintiff signed a Letter of Guarantee ("the Guarantee") in favour of OCBC Al-Alamin Bank Berhad ("the Bank") as one of the securities for the banking facility which the Bank granted to one Tenaga Tentaram Sdn Bhd ("TTSB").

[7] The Guarantee was signed by the Defendant in his capacity as the Plaintiff's then director pursuant to the Plaintiff's Board of Directors' resolution dated 13 November 2013.

[8] Sometime in April 2022 and upon TTSB's default on the banking facility, the Bank enforced the Guarantee against the Plaintiff by setting off the sum of RM1,407,512.33 from the Time Deposit-I Account (Account No. 165-300439-5) held in the Plaintiff's name ("the FD Account") against TTSB's indebtedness to the Bank.

[9] Subsequently, the Plaintiff sued TTSB in Suit No BKI-22NCvC-66/8-2022 ("Suit 66") for loss and damages arising from the setting off by the Bank against the Plaintiff's FD Account. One of the defences raised by TTSB in Suit 66 was that TTSB was the true beneficial owner of the money held in the FD Account.

[10] The High Court did not accept this defence and on 3 April 2023, allowed the Plaintiff's summary judgment application in the sum of RM1,407,512.33 and interests thereon.

[11] TTSB did not appeal against the said judgment.

The Grounds For The Application

[12] The grounds relied on by the Defendant were:

(i) The Plaintiff's action was barred on the ground of res judicata in view of Suit 66;

(ii) The Plaintiff's action was time-barred; and

(iii) The Plaintiff was estopped from taking the action against the Defendant.

This Court 's Decision

Res Judicata

[13] The Court of Appeal in Mayban Allied Bhd v. Kenneth Godfrey Gomez & Anor And Another Appeal; [2011] 5 MLJ 219; [2010] 9 CLJ 702 stated the following:

"In determining whether a statement of claim discloses a reasonable cause of action or itself constitutes an abuse of process, the state of affairs to which the Court must have regard is that which prevailed at the date the action is filed (see Court of Appeal decision in Gasing Heights Sdn Bhd v. Aloyah Abd Rahman & Ors; [1996] 3 MLJ 259; [1996] 3 CLJ 695; [1996] 3 AMR 3000. The Court is entitled to look at the history of the case, where there is likelihood of the action being res judicata, to determine if there is a cause of action (see Jamir Hassan Najir Hassan v. Kang Min; [1992] 2 MLJ 46; [1991] 2 CLJ (Rep) 773 and Abdul Hamid Haji Rahmat & Anor v. Development & Commercial Bank Bhd & Anor; [1993] 1 MLJ 306; [1993] 1 CLJ 35; [1992] 1 AMR 465."

[14] The law on res judicata is well-settled - see Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd; [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 3 AMR 2559 and needed not be restated.

[15] Based on the pleadings in the present suit and in Suit 66, one could immediately conclude that both actions involved:

(i) The same banking facility granted by the Bank to TTSB;

(ii) The same Guarantee executed by the Plaintiff to secure the banking facility granted by the Bank to TTSB; and

(iii) The same allegation that the Bank had relied on the Guarantee to set off the money held in the FD Account against TTSB's indebtedness to it.

[16] Additionally, from t