Amendment applications raising issues already resolved are barred by res judicata, indicating abuse of process and lack of bona fides in delay.

Introduction

[1] The appellant (Everise Hectares Sdn Bhd) applied by way of a summons in chambers dated 5 July 2005 to amend the originating summons to add Fenomena Kualiti Sdn Bhd as the second defendant (hereinafter referred to as the "amendment application") and, at the same time, to prevent the proposed second defendant from taking possession or dealing with the bungalow land at Lot number DIB 21, Kelab Golf Sultan Abdul Aziz Shah, phase 2, Selangor held under a master title vide HS(D) 59439, PT no: 286, Mukim Damansara, daerah Petaling, Negeri Selangor (hereinafter referred to as the "said land").

[2] On 11 August 2006, the learned High Court judge dismissed the amendment application. Aggrieved, the appellant appealed to this Court.

[3] The respondent bank (Citibank Berhad) vehemently opposed the present appeal before us.

The Background Facts

[4] The appellant secured a housing loan in the sum of RM1.5 million for the purpose of purchasing the said land from the respondent bank. The appellant defaulted and the respondent bank decided to sell the said land by way of a public auction.

[5] On 14 February 2004, the appellant filed an application for an injunction (hereinafter referred to as the "first injunction application") to prevent the respondent bank from proceeding with the public auction of the said land.

[6] All the relevant issues pertaining to the first injunction application were ventilated by the parties fully before the learned High Court judge. Affidavits and written submissions were also filed in respect of the first injunction application.

[7] On 17 August 2004, the learned High Court judge heard the first injunction application and his Lordship dismissed it with costs.

[8] Since the path was clear, the respondent bank proceeded with the public auction of the said land. This was on 8 November 2004. And the said land was successfully sold by way of a public auction to Fenomena Kualiti Sdn Bhd at the price of RM1,548,603.

[9] Zakir Basree bin Abdul Rahman affirmed an affidavit on 5 July 2005. From his affidavit at paras. 5 and 6, it was deposed that the appellant was aware of the date of the public auction and had sent an agent to attend but the appellant's agent did not participate in the public auction exercise.

[10] When the said land was finally auctioned off to Fenomena Kualiti Sdn Bhd on 8 November 2004, the appellant remained passive and idle and took exactly 7 months 27 days to file the amendment application on 5 July 2005.

[11] The written grounds of judgment of the learned High Court judge set out in extenso as to why his Lordship dismissed the amendment application and we can do no better than to make reference to them. This was what his Lordship said:

(a) That the grounds in support of the amendment application were similar to the grounds raised in the first injunction application which had already been decided by the High Court. Thus, the issues raised in the amendment application were res judicata . In any event, the appellant did not appeal against the dismissal of the first injunction application.

(b) That the amendment application was made in bad faith and constituted an abuse of the process of the Court because it indirectly sought to prevent the respondent b