The tort of abuse of process requires proof of initiation, collateral purpose, and damage, which was established against PINS, affirming the High Court's ruling.

JUDGMENT

See Mee Chun JCA:

Introduction

[1] This appeal centres around the not-too-common tort of abuse of court process, as distinct from the power of the court to strike out a case for abuse of process under O 18 r 19 Rules of 2012.

[2] The Plaintiffs/Respondents had filed a claim against the Defendant/Appellant (Perak Integrated Network Services Sdn Bhd (PINS)) for the tort of abuse of court process which was allowed by the High court, giving rise to this appeal.

Parties

[3] PINS is a company involved in the telecommunications industry. The 1st Respondent is the Chief Executive Officer of the 3rd Respondent (Bunga Raya) and Director of the 4th Respondent (Urban Domain). The 2nd Respondent is the Director of Urban Domain and its financial manager in charge of book keeping and accounting.

Background Facts

[4] PINS, Bunga Raya and Urban Domain were parties to a joint venture to carry out concession works and licence works via a special purpose vehicle (PINS OSC). This joint venture was created through various agreements including a Joint Venture Agreement dated 22 February 2006 between PINS and Bunga Raya (JVA).

Kuala Lumpur High court Suit No. 22NCC-1041-07/2012 (Suit 1041)

[5] Suit 1041 was a derivative action filed by Urban Domain on behalf of and for the benefit of PINS OSC alleging breaches of contract against PINS and breach of fiduciary duties against one Dato' Seri Abdullah Fadzil Che Wan. The claim was allowed on 26 September 2013.

Kuala Lumpur High court Suit No. 22NCVC-154-04/2014 (Suit 154)

[6] Suit 154 was filed by PINS on 2 April 2014 against the Respondents for breach of the JVA and breach of fiduciary duties. On 14 July 2017, Suit 154 was dismissed but became the genesis to the Respondents' claim for abuse of process against PINS.

Shah Alam High court Suit No. 23NCVC-42-09/2019 (This Suit)

[7] The statement of claim for This Suit is to be found in encl 41/55-61. In para 8, reference is made to Suit 154 which the Respondents said was maliciously and without reasonable and probable cause instituted by PINS for which reliance will be placed on the amended writ and statement of claim for their full terms and effect. It is to be noted that the claim for malicious prosecution was withdrawn during the proceedings.

[8] In para 9, the Respondents stated that Suit 154 was dismissed based on inter alia that it constituted an abuse of process. It was further stated that they would refer to the High court order dated 14 July 2017 and the grounds of judgment dated 14 July 2017 for their full terms and effect.

[9] This was next said in para 10:

"10. In particular, the Plaintiffs will rely on para 52.3 of the Ground of Judgment which reads, "On that analysis, and based on the narrative of facts alluded to earlier, I am convinced that this suit is plainly and patently an abuse of process." and para 79 which reads "As I stated earlier, the filing of this suit in light of all of the events had taken place earlier, is an abuse of process. This suit should clearly have been brought as part of the PINS counterclaim in suit 1041 and D1 to D5 could have been brought in as additional parties to the counterclaim. In that way, all necessary and relevant parties would have been present and everything could have been dealt with by the learned Judge in that case. Of course, suit 1041 would have become a more complex but that is far better than to have two (2) Courts to hear suits which arose out of the same factual matrix involving more or less the same players and the same documents. Clearly, this is a classic case where estoppel and res judicata should apply."

[10] The Respondents would also rely on an admission by Zadey Che Wan bin Abdullah Fadzil where it was said to constitute an abandonment of the pleaded claim in Suit 154 (paras 12 and 13).

[11] As noted earlier, Suit 154 filed by PINS was dismissed on 14 July 2017, its appeal to the court of Appeal was dismissed on 4 July 2018, and leave to the Federal court was dismissed on 14 January 2019.

Decision