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2024 MarsdenLR 737
HIGH COURT (KUALA LUMPUR)
ROZ MAWAR ROZAIN, JC
Shining Crest Sdn Bhd – Plaintiff
Versus
Emerald Unity Sdn Bhd – Defendant
CIVIL SUIT NO WA-22NCvC-544-09 OF 2023
Kumaradevan Rajadevan (with Jaswandar Singh Mehar Singh) (Gunaseelan & Assoc) for the plaintiff.
Muhammad Ezwar Rusydan (with Nur Afiqah Zainol) (Hisham Sobri & Kadir) for the defendant.
The court emphasized that a party cannot relitigate matters already adjudicated, and the failure to comply with the terms of the Consent Judgment, along with lack of locus standi, bars further action.
Headnote:(A) Rules of Court 2012 - Order 18 Rule 19(1)(a), (c) and/or (d) - Striking out of a claim - Plaintiff lacked locus standi; claim barred by res judicata; time-barred; and grounds challenging Consent Judgment without merit - Multiple attempts by Plaintiff to set aside Consent Judgment recorded in 2015 found to be abuse of court process. (Paras 1, 2, 30, 31)
Facts of the case:
The Plaintiff, a registered property owner, sought to challenge a Consent Judgment regarding a loan default with a financial institution. This was the Plaintiff’s fourth attempt to set aside the Consent Judgment that had been agreed to and recorded in Court in 2015, after failing to comply with its terms. (Paras 3-8, 27)
Findings of Court:
The Court found that the Plaintiff had no locus standi to commence the suit as it was under receivership and only the Receiver and Manager can bring action on behalf of the Plaintiff. The claim was also barred by res judicata due to multiple prior failed attempts to challenge the same Consent Judgment, and was found to be time-barred. (Paras 29, 36, 40)
Issues: The main issues were the Plaintiff’s locus standi and whether the claim was barred by res judicata and the Limitation Act. (Paras 29, 30)
Ratio Decidendi: The court reaffirmed that the appointment of the Receiver and Manager over the Plaintiff disabled it from commencing or maintaining legal actions without the R&M’s consent, emphasizing that parties cannot relitigate matters that have previously been adjudicated. (Paras 31, 36)
Result: Defendant's application to strike out the Plaintiff's claim was allowed with costs. (Paras 56, 57)
| Table of Content |
|---|
| 1. defendant's application to strike out plaintiff's claim (Para 1 , 2) |
| 2. background facts on the plaintiff and loan agreement (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 3. previous legal actions related to consent judgment (Para 11 , 12 , 13 , 14) |
| 4. challenges to the r&m's appointment and related suits (Para 15 , 16 , 17 , 18 , 19) |
| 5. hpw’s suit and findings on locus standi (Para 20 , 21 , 22 , 23) |
| 6. subsequent actions regarding auction and legal representation (Para 24 , 25 , 26) |
| 7. plaintiff seeking to invalidate consent judgment (Para 27 , 28) |
| 8. court's consideration of defendant's strike-out application (Para 29 , 30 , 31) |
| 9. determination of locus standi (Para 32 , 33 , 34 , 35) |
| 10. application of res judicata (Para 36 , 37) |
| 11. plaintiff's claims barred by res judicata (Para 38 , 39 , 40) |
| 12. claim deemed time-barred (Para 41 , 42) |
| 13. procedural requirements for set aside of judgment (Para 43 , 44) |
| 14. application of laches (Para 45 , 46) |
| 15. lack of merits in plaintiff's claims (Para 48 , 49 , 50) |
| 16. consent judgment's validity and basis (Para 51 , 52) |
| 17. principles governing striking out (Para 53 , 54) |
Roz Mawar Rozain JC:
GROUNDS OF JUDGMENT
[1]On 19.8.2024 this Court allowed the Defendant’s application vie Enclosure 8 to strike out the Plaintiffs claim under Order 18 Rule 19(1)(a), (c) and/or (d) Rules of Court 2012 (RoC)
(a)The Plaintiff lacked locus standi to bring this action;
(b)The claim was barred by res judicata;
(c)The claim was time-barred;
(d)The grounds for challenging the Consent Judgment were without merit.
[2]This was the Plaintiffs fourth attempt to set aside a Consent Judgment it had agreed to with the Defendant and recorded in Court in 2015. While this Court acknowledged that the court should be slow to strike out claims summarily, this case went beyond mere persistence in litigation. The Plaintiff had made multiple attempts to challenge the Consent Judgment through various means over the years. This latest attempt, raising grounds that could and should have been raised years ago, amounted to a clear abuse of the court process. In essence, this Court took into consideration the public and private interests as per the legal positions affirmed by our apex courts, whether on the facts of the case and in all circumstances, the Plaintiff had misused or abused the court process by the filing of this suit.
Background Facts
[3]The Plaintiff who is a registered owner of the property held under Hakmilik Pajakan Negeri 24392, Lot 5070, Pekan Templer, Daerah Gombak, Negeri Selangor Darul Ehsan (the Property). The directors of the Plaintiff from July 2007 to October 2021 were:
(i)Yap Set Long (adjudicated bankrupt on 23.1.2018 -Bankruptcy Proceedings 1);
(ii)Lin Yong Kiew (adjudicated bankrupt on 7.2.2018 -Bankruptcy Proceedings 2);
(iii)Kama Renzi Bin Kamaruddin (adjudicated bankrupt on 21.2.2017 - Bankruptcy Proceedings 3);
(iv)Heong Poh Wah & Yap Rou Jean appointed on 7.10.2021.
[4]On 7.10.2021, Yap Set Long and Lin Yong Kiew resigned as directors of the Plaintiff. On 3.2.2023, Heong Poh Wah and Yap Rou Jean resigned so from that even date onwards, the Plaintiffs directors were Lin Yong Kiew and Kama Renzi.
[5]On 6.8.2012, the Plaintiff obtained a term loan from the Defendant who is a financial institution. The term loan facility agreement for RM27,500,000 was executed by the parties on 28.8.2012. The term loan was secured by a first-party legal charge on the property created by the Plaintiff also on 28.8.2012. On the same date, a Specific Debenture was also executed by the Plaintiff. There was also a corporate guarantee by KCT Enterprise Sdn Bhd (Corporate Guarantor). Additionally, there were guarantee and indemnity agreements executed by the Plaintiffs directors Yap Set Long, Lin Yong Kiew and Kama Renzi. The terms loan was disbursed to the Plaintiff by the Defendant.
[6]The Plaintiff had defaulted on the repayment of the loan since 2015. So, on 23.10.2015 the Defendant commenced a writ action against the Plaintiff and
