PEMBINAAN DAN PEMAJU MAHAJIWA (SELANGOR) SDN BHD V ASM DEVELOPMENT SDN BHD

PEMBINAAN DAN PEMAJU MAHAJIWA (SELANGOR) SDN BHD V ASM DEVELOPMENT SDN BHD

Where an earlier action was struck out because it lacked corporate authority and the court's inspection order had, on the evidence, been complied with, the filing of a fresh action on the same cause within the limitation period did not constitute an abuse of process; by contrast, deliberate and contumelious disobedience of a peremptory order can justify striking out both the earlier and any subsequent action.

Citation
PEMBINAAN DAN PEMAJU MAHAJIWA (SELANGOR) SDN BHD V ASM DEVELOPMENT SDN BHD
Parties
Appellant/plaintiff: Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn Bhd; Respondent/defendant: ASM Development Sdn Bhd (formerly Sobena Maju Sdn Bhd)
Court
Malaysian court
Jurisdiction
Malaysia
Procedural Posture
Civil Appeal / Federal Court Judgment on Appeal From Court of Appeal (cross Appeal)
Outcome
Appeal allowed; Court of Appeal decision in respect of the cross-appeal set aside; second suit not struck out and High Court judge's findings restored.
Legal Topics
Strike Out, Abuse of Process, Peremptory Orders, Res Judicata, Issue Estoppel
Source Language
en
Civil Procedure Company Law Appeal Strike Out Abuse of Process Peremptory Orders Res Judicata Issue Estoppel

Case Brief

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Parties

Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn Bhd

Appellant/plaintiff

ASM Development Sdn Bhd (formerly Sobena Maju Sdn Bhd)

Respondent/defendant

Procedural Posture

Civil Appeal / Federal Court Judgment on Appeal From Court of Appeal (cross Appeal)

Legal Issues

  1. 1 Whether striking out an earlier action for non-compliance with a court order bars filing a fresh action on same cause of action
  2. 2 Whether filing a fresh action within the limitation period after an earlier action was struck out amounts to an abuse of process
  3. 3 Whether the facts showed disobedience of a peremptory order (contumelious conduct) justifying striking out the fresh action

Ratio Decidendi

Where an earlier action was struck out because it lacked corporate authority and the court's inspection order had, on the evidence, been complied with, the filing of a fresh action on the same cause within the limitation period did not constitute an abuse of process; by contrast, deliberate and contumelious disobedience of a peremptory order can justify striking out both the earlier and any subsequent action.

Court Disposition

Appeal allowed; Court of Appeal decision in respect of the cross-appeal set aside; second suit not struck out and High Court judge's findings restored.

Orders

  • Appeal allowed
  • Decision of the Court of Appeal allowing the cross-appeal set aside