Choong Yeow Choy JC:

JUDGMENT

Introduction

[1]The provision in Order 18 rule 19(1) of the Rules of Court 2012

[2]In view of the fact that the striking out of any writ or pleading may have the drastic effect of bringing an action to an early end, with the action dismissed or judgment entered accordingly, as the case may be, it has been repeatedly said that the discretion should only be exercised in plain and obvious cases.

[3]The present case requires this Court to exercise such discretion, in considering an application by the Defendant in Enclosure 7 to have the Plaintiff’s writ and statement of claim struck out pursuant to Order 18 rule 19(1)(a), (c) and/or (d) of the Rules of Court 2012

Background Facts

[4]To appreciate the genesis of the present Suit, the erstwhile relationship between the parties must be clarified.

[5]The Plaintiff in this action was appointed by the Defendant as an “Anchor” under an “Anchor-Vendor Program for a Halal Food Project” through an Appointment Letter dated 21 November, 2012. Following the said appointment, the parties signed a Lease Agreement and a Letter of Guarantee and Indemnity, both dated 10 September, 2015. The latter was also signed by the Plaintiff’s Guarantors.

[6]Under the Lease Agreement, the Defendant agreed to offer a lease to the Plaintiff for the premises at the Taman Pengeluaran Produk Usahawan in Pedas, for the production of halal food products. This Lease Agreement was terminated by the Defendant on the ground that the Plaintiff had failed to pay the lease rental as agreed upon pursuant to the said Lease Agreement.

[7]The Defendant had also demanded payment of the outstanding lease rental amount from the Plaintiff and subsequently, actions were filed against the Plaintiff as well as against its Guarantors to enforce its rights.

The Present Suit

[8]In this Suit, the Plaintiff is seeking, inter alia, general and special damages (RM17,500,000.00) against the Defendant primarily on the basis that:

a factory that was built by the Defendant (pursuant to a Lease Agreement alluded to in paragraph [6] above) was not fit for the purposes of production of the food products (as spelt out under the Appointment Letter referred in paragraph [5] above);

there was insufficient ventilation at the said factory; and

the Plaintiff had been induced by the Defendant to sign the Lease Agreement and the Letter of Guarantee.

[9]The main thrust of the argument in support of the Defendant’s application in this Enclosure 7 is the concept of Res Judicata. It was contended on behalf of the Defendant that the issues for determination by this Court in the present action relate to those that have been settled and determined by the Sessions Court in two preceding Suits, namely, Civil Suit No. NA-B52NCvC-17-07/2019 (“Suit 17”) and Civil Suit No. NA- B52NCvC-31-11/2019 (“Suit 31”).

The Predominant Poser

[10]The prevailing issue for determination by this Court in this application by the Defendant in Enclosure 7 is whether the Plaintiff’s writ and statement of claim ought to be struck out under Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012

[11]Arising from the above principal issue are the following questions, namely –

whether the issues raised in the present Suit have been addressed by the Sessions Court in Suit 17 and Suit 31; and

whether the wider doctrine of res judicata applies in the present case.

The Plaintiff’s Contention

[12]The case for the Plaintiff is that Enclosure 7 is without merit and ought to be dismissed with costs. The grounds raised by the Defendant are that:

(1)res judicata does not apply as the issues in the Plaintiff’s present suit have not been previously determined; and

(2)the right to bring the Plaintiff’s present suit as a counterclaim or as a separate suit lies with the Plaintiff as the issues and facts underlying the same are totally distinct from those raised in the Defendant’s earlier suits.

[13]Predictably, the Plaintiff has relied on the following authorities to oppose the Defendant’s appl