JUDGMENT

GROUNDS OF DECISION

(Enclosure 10, Summons in Chambers to Strike Out the Plaintiff's

Writ of Summons and Statement of Claim Under Order 18 Rule 19(1) (b) and (d).

The Plaintiff has instituted this claim as a derivative action for and on behalf of the 2^nd Defendant. The 1^st Defendant now applies my Summons in Chambers to strike out the Plaintiffs derivative action with costs. The 1^st Defendant applies to strike out the claim on the basis that it is frivolous and vexatious and/or is an abuse of the court's process. To principal grounds are raised - (1) the Plaintiff action is frivolous and vexatious since action is statute barred, and (2) the Plaintiff's claim is an abuse of court process since the subject matter is res judicata .

On the Plaintiff's pleadings, both the Plaintiff and the 1^st Defendant were and are at all material time shareholders and directors of the 2^nd Defendant. It appears that they were once husband-and-wife. The claim relates to an alleged breach of trust in relation to the operation of the 2^nd Defendants Account No. 11298001172 in Phileo Allied Bank (Malaysia) Berhad, and allegedly funds from this account had been transferred into the personal account of the 1^st Defendant No. 11298001305 with the same Bank. As alleged in paragraph 6 of the Statement of Claim, the 1^st Defendant has misused the monies belonging to the 2^nd Defendant for her own use without the knowledge and consent of the Plaintiff as director and equal shareholder of the 2^nd Defendant. The allegation is a misappropriation of RM3,752,804.17 of the company's monies, and allegedly, despite notices being sent to the 1^st Defendant, the 1^st Defendant has failed and neglected to return the monies to the company. On this basis therefore, the Defendant has allegedly committed breach of trust and contravened rules under the Companies Act 1965 . The reliefs prayed for are equally direct, namely for an order that the 1^st Defendant return a sum of RM 3,752,804.17 to the bank account of the 2^nd Defendant, Account No. 11298001172 with immediate effect, and interest thereon at the rate of 8% per year from the date of filing of the Writ of Summons until full settlement, costs and such other relief as this court thinks appropriate.

The Summons in Chambers to strike out the Writ of Summons and Statement of Claim is supported by the affidavit of the 1^st Defendant herself. The 1^st Defendant says the subject matter is res judicata , and refers to an earlier High court Kuala Lumpur decision in 3-22-485-2004, where the 1^st Defendant was the Plaintiff then, whilst the present Plaintiff was the 1^st Defendant. The 1^st Defendant as Plaintiff in the earlier action, succeeded in her claim against the present Plaintiff and under the judgment obtained dated 8.7.2010, the present Plaintiff was ordered to pay to the company the sums of RM280,164.54, RM178,591.95 and RM304,539.02, being sums of money diverted by the present Plaintiff into his own personal accounts in three Banks (OCBC Bank (M) Berhad, Hong Leong Bank Berhad and Maybank Berhad). By the same judgment, the present Plaintiff was ordered to return to the company certain specified stocks, or their value within 14 days from the date of the judgment. This judgment appears as Exhibit "WML-1". The High court Judge in that earlier action also dismissed the present Plaintiff's counterclaim against the present 1^st Defendant. In his Defence and Counterclaim in the earlier action, the present Plaintiff expressly pleaded misappropriation of profits of the 2^nd Defendant company by the present 1^st Defendant. Paragraph 15 of the Defence and Counterclaim refers. This is exhibited as "CPF-2" to the Affidavit in Reply of the Plaintiff. Against this setting, the 1^st Defendant now argues the subject matter of the present suit, namely the diversion of funds from the company account at Phileo Allied Bank to the 1^st Defendant's personal account, was raised in the proceedings earlier. Indeed, particulars of these accounts were includ