1. ) AGENSI PEKERJAAN DZH SDN. BHD. (Dahulunya dikenali sebagai DZH Management Consultants Sdn. Bhd.) 2. ) DZH HEALTH RESORT CLUB SDN. BHD. 1. ) GENTING DEVELOPMENT SDN. BHD. 2. ) BENJAMIN LIM KEONG HOE 3. ) LEE MAN ONN 4. ) TROPICANA MAKMU

WA-22NCvC-324-05/2021 Kand. 131 22/09/2022 12:03:36 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, KUALA LUMPUR NO GUAMAN SIVIL NO: WA-22NCVC-324-05/2021 ANTARA 1) AGENSI PEKERJAAN DZH SDN BHD 2) DZH HEALTH RESORT CLUB SDN BHD …PLAINTIFF-PLAINTIFF DAN 1) GENTING DEVELOPMENT SDN BHD & 8 LAGI …DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN 1 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal A. Introduction 1. The 1st to 7th Defendants have applied to strike out the claim against them under Order 18 rule 19 of the Rules of Court 2012 on the ground that the Plaintiffs are barred by the doctrine of Res Judicata based on the judgments of the Magistrate Court in the Suits bearing number: WA-A72-183-11/2020 and WA-A72NCVC-837-2021 instituted by the 1st and the 4th Defendants. 2. As stated earlier, there were two suits filed by the 1st Defendant and the 4th Defendant before the Magistrate Court against the 1st Plaintiff. 3. In the Suit 183 the 4th Defendant was seeking a recovery for vacant possession of the property and in the suit 837, the 1st Defendant was seeking recovery of rentals and charges outstanding against the 1st Plaintiff. These two suits were commenced separately by each of the aforesaid Defendants against the 1st Plaintiff. 4. In the Defence filed by the 1st Plaintiff in both suits before the Magistrate Court, the said Plaintiff had pleaded that: - 4.1 It had undertaken the business of an inn and a restaurant jointly with DZH Health Resort Sdn Bhd on the said land. DZH Resort Sdn Bhd is the second Plaintiff in this proceeding. 4.2 The 1st Plaintiff had undertaken the said business and resided on the said land as a tenant since 2013. The tenancy should 2 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal have been continued until 2029 based on the options available in the said tenancy agreement dated 12-12-2013. 4.3 The tenancy on the said land should be governed by the agreement dated 12-12-2013 and not the Tenancy dated 25- 4-2019. 4.4 The 1st Plaintiff also raised the issue of 3 letters that were allegedly issued by one Lee Man Onn to renew the said tenancy. 4.5 However, the 1st Plaintiff received a notice of assignment dated 10-3-2020 to assign the Terms of the Tenancy Agreement dated 25-4-2019. 4.6 The said tenancy Agreement dated 25-4-2019 is not valid as the 1st Plaintiff did not sign or execute it. 4.7 The 1st Plaintiff is entitled to rely on the 12-12-2013 Tenancy Agreement and the right to purchase the said land if it was for sale. 4.8 The 1st Plaintiff is entitled to rely on the arbitration agreement appearing in the said Tenancy Agreement dated 12-12-2013. 4.9 The 1st Plaintiff also alleges, without sufficient particulars, that the transactions were undertaken by way of fraud, that the documents were forged and fraudulent misrepresentation 3 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal against the 1st Defendant. These issues were also raised in this suit. 5. The 4th Defendant sought summary judgment against the 1st Plaintiff in the suit WA-A72-183-2020 (183 Suit) and was successful in the proceedings before the Magistrate Court. The Magistrate Court found in favor of the 4th Defendant and entered summary judgment against the 1st Plaintiff on 4-3-2021 in the suit bearing number WA- A72-183-2020. 6. The 1st Plaintiff then filed an appeal against the decision of the Magistrate Court. The appeal was dismissed by the High Court in the appeal bearing number WA011ANCVC-37-02/2021 on 20-4- 2021. 7. The 1st Defendant also sought summary judgment against the 1st Plaintiff in the suit bearing number WA-A72NCVC-837-2021 (837 Suit) and judgment was entered on 28-5-2021. An appeal was filed against the said decision and was apparently dismissed by the High Court. 8. Parts of the grounds of the learned Magistrate are reproduced herein: WA-A72-183-2020 [6] Mahkamah ini kemudiannya meneliti eksibit LMO-10 dalam lampiran 15 dan eksibit C-3 dalam lampiran 8 di mana deponen selaku pengarah Defendan telah menerima dan memperakui notis penyerahan hak 4 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal kepada Tropicana Makmur (tuan tanah baru) tanpa sebarang bantahan. Defendan bertindak meneruskan urusan penyewaan dengan tuan tanah baru juga tanpa bantahan. Deponen sendiri memperakui LMO-10 ini dan tiada sebarang bantahan dikemukakan atas penyerahan hak kepada tuan tanah baru pada 13.3.2020. [7] Penelitian lanjut terhadap eksibit LMO-4 mendapati Defendan mengakui tunggakan sewaan apabila membuat permintaan bagi mengenepikan sewa tertunggak. Jelas dalam surat Defendan ini menyatakan tajuk 'request to waive or reduce rental'. Defendan kemudiannya menyatakan hope your good company can waive our rental for the month of February and March 2020' di mana amaun yang dituntut dalam guaman ini. Pada peringkat ini tiada sebarang bantahan dikemukakan Defendan akan kesahihan perjanjian sewaan 2019 sehingga selepas 16 bulan kemudiannya. Mahkamah ini memutuskan bahawa laporan polis yang dikemukakan pada 22.3.2021 (eksibit C-8) adalah pemikiran terkemudian. Eksibit LMO-10 adalah lebih berkemungkinan daripada eksibit C-8 tersebut. [8] Tuan tanah baru kemudiannya mengeluarkan notis penamatan perjanjian penyewaan 2019 pada 30.9.2020 (eksibit LMO-8). Defendan pada 2.10.2020 secara bertulis menerima penamatan tersebut dan bersetuju memulangkan premis tersebut bagi tempoh jangka panjang selama 15 tahun berturut turut bagi menjalankan perniagaan penginapan dsn restoren. oleh itu tiada keperluan bagi memanggil saksi saksi di hadapan mahkamah ini bagi memutuskan isu penipuan dan salah nyata yang dibangkitkan oleh Defendan. WA-A72NCVC-837-2021 5 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9. This suit was only filed on 7-5-2021 and served the writ on 12-5- 2021 on the First Defendant. 10. The Plaintiffs also filed an application in Enclosure 4 to consolidate this fresh suit with the two proceedings before the Magistrate Court on 12-5-2021 on the grounds – (i) “Tindakan ini dan Tindakan 837 adalah berdasarkan dan / atau berbangkit dari fakta sama (common facts)…” (ii) “Persoalan undang-undang yang dibangkit dalam tindakan ini dan tindakan no. 837 adalah berbangkit dari kausa tindakan sama..” (iii) “Permohonan ini dibuat bagi memastikan ketekalan (consistency) dalam keputusan Mahkamah Majistret dan Mahkamah Tinggi dan untuk memastikan situasi tidak memalukan jikalau ada dua keputusan yang berlainan…” For reasons unknown to this Court, the said application in Enclosure 4 was not heard. The Plaintiffs has not even pursued the application in Enclosure 4 even to this date. 11. The Plaintiffs solicitors however participated in the summary judgment applications before the Magistrate Courts and the appeals before the High Court. There are no pending appeals from the decision of the High Court dismissing the 1st Plaintiff’s appeals. 12. It is important that I also note the contents of the letter dated 2-10- 2020 issued by the 1st Plaintiff to the landlord which states: - 6 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “We would like to inform that we, Agensi Pekerjaan DZH Sdn Bhd received and noted on your letter about Notice of Termination. We wished and agreed to terminate the tenancy as well. We had informed our personnel about the termination and instructed them to vacate from the above premise with immediate effect and return the Demised Premise to your good self, the landlord before 13 th October 2020. In the event there are people refuse to vacate the Demised Premise, we wish to highlight that these people are not representative of our company and their actions do not represent the wishes of our company. We wish to reiterate as per our letter to you dated 25 th September 2020, Ms Chen Zheng Zheng is no longer allowed to represent our company… We noted on the outstanding rental owing to you, …we would like to request for discount from your goodself….. We hope you could allowed a discount of three months rental, that is RM 180,000…” I note that this letter was considered by the Magistrate Courts. The Court there accepts that this letter is valid and constitute a statement contrary to the allegation of fraud and misrepresentation. This can be seen in the grounds appearing to the 183 suits. The learned Magistrate also stated that the issue of fraud and misrepresentation does not constitute any triable issue as the Plaintiff did accept the validity of the termination and agreed to return the said property back to the 4th Defendant. 13. I have also considered the Amended Statement of Claim filed by the Plaintiffs in this suit. I find that the pleadings here disclose a similar claim as that appeared in the Defence filed before the Magistrate Court. 14. I am grateful for the summary prepared by the 1st Defendant’s counsel that helpfully summarize the similarities of the pleaded claim before the Magistrate Court and this current proceeding: - 7 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal B. Applicable Law on Striking Out 15. Striking Out a claim is a draconian power provided to this Court under Order 18 rule 19. It should only be exercised when this Court finds that the claim is plain and obviously unsustainable that it becomes impossible for the case to succeed. 16. I refer to the decision of the Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 where Mohamed Dzaiddin FCJ held: - “The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney- General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney[1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” 17. There are two ways in which a claim may be plainly or obviously unsustainable as explained by the Singapore Court of Appeal in The Bunga Melati 5 [2012] 4 SLR 546, where V K Rajah JA stated: - 10 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “39 In our view, this analytical, fact-law distinction can similarly be applied to O 18 r 19(1)(b) of the ROC or the inherent jurisdiction of the court to strike out unsustainable actions. Such a distinction helps to more clearly elucidate what a court means when it holds that an action is “plainly or obviously” unsustainable. Applying this conceptual prism, a “plainly or obviously” unsustainable action would be one which is either: (a) Legally unsustainable: if “it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks”; or (b) Factually unsustainable: if it is “possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance, [for example, if it is] clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based”.” The above was adopted by the Federal Court in Tai Wei Hong & Ors v Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425. 18. It is trite that if the pleadings disclose a reasonable cause of action and if it could be shown that there are “issues of law that need to be elaborated and argued in great detail and for mature consideration”, then this Court should not strike out the suit. 19. I should also consider if there are relevant factual issues that require deliberation of the facts through witnesses. If there are such issues, this Court should not utilize its powers to strike out the claim under Order 18 rule 19 Rules of Court 2012. 11 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20. At the same time, I am aware of my duty to consider the claim and the affidavit evidence in totality to determine whether there exists a reasonable cause of action that ought to be referred to at trial. For this purpose, I reproduce the judgment of Mohd Azmi SCJ in Bank Negara Malaysia v Mohd Ismail [1992] 1 CLJ Rep 14, where his Lordship quoted the judgment of the Privy Council in Eng Mee Yong v Letchumanan [1979] 1 LNS 18, which is reproduced herein: - “Although in the normal way it is not appropriate for a Judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.” 21. Given the above, for the Defendants to successfully strike out the claim, they must show that the claim as pleaded by the Plaintiffs is so obviously or plainly unsustainable. C. Applicable Law on Res Judicata 22. I have dealt with the principles applicable when a Court of law must deal with the issue of whether a party is barred from relitigating the claim due to the doctrine of Res Judicata in Aminah binti Abdullah v Nur Anis binti Jamaludin (Writ of Summons No: 22NCVC-381- 05/2021). I summarise the applicable as follows: - (i) “When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies 12 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth” – please refer Asia Commercial Finance v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783. (ii) “The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time.” – the could have and should have principle as laid down by Wigram, V.C., in the case of Henderson v. Henderson [1843] 3 Hare 100 115. (iii) The purpose of the Res Judicata principle is to prevent abuse of process. – please refer to Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor [1984] 1 CLJ Rep 211 and Virgin Atlantic Airways Limited v Zodiac Seats [2013] UKSC 46. (iv) This principle is not limited to only to the parties appearing in the earlier suit. They could also be applicable to parties who are so closely connected to the litigants in the earlier trial, that they could be “privies” to the aforesaid litigants – please refer to Dr Aishah Tul Radziah L Hussain v Dr Suresh Kumarasamy & ors [2015] 10 CLJ 222. 13 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23. I am reminded that when this Court is tasked with determining whether the matter has been litigated or should have been litigated or asserted in the original action, it is the duty of this Court to “undertake a minute examination of the history of the prior litigation”. See Chung Khiaw Bank (Malaysia) Berhad v Tio Chee Hing [2004] 3 CLJ 59. I also refer to Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1, Raja Zainal Abidin v British American Life & General Insurance Bhd [1993] 3 CLJ 606 and Ho Hup Construction Company Berhad v Zen Courts Sdn Bhd & Ors [2018] 1 LNS 340. 24. I also refer to the decision of the Court of Appeal in Metreco Industries Sdn Bhd v Low Peck Lim & Ors [2019] 12 MLJ 164, where Zabariah Mohd Yusof JCA (as she then was) held: - “[40] The fact that the second suit involves other defendants is not a basis to say that the second suit against the third defendant is different from the first suit. Regardless, the principle of res judicata is not affected by the absence of the other parties in the first suit. What is clear is that the second suit without doubt, involves the same facts, the fact that the parties are different from the first suit does not disentitle the third defendant from invoking the doctrine of issue estoppel to bar the plaintiff from relitigating a specific issue that had been litigated in the first suit. Here, the third defendant was a party in the first suit and also a party in the second suit, except that he is being sued with other defendants. The doctrine seeks to prevent abuse of the process of court by attempting to take a second bite of the cherry by relitigating the same issues and reliefs based on the same subject matter for which judgment had been given.” 14 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal D. Decision of this Court on the Defendants’ application. (i) Doctrine of Res Judicata - Res Judicata in the classical sense is applicable 25. Having considered the pleadings and the affidavits filed in this suit as well as the pleadings filed in the Magistrate Court, I find that the Plaintiffs’ claim against the Defendants should be struck out as they are now barred from attempting to relitigate the same issues and claims again before this Court. Essentially, this attempt to relitigate the issues, facts and arguments afresh is an abuse of process of this Court. 26. I find, having considered the affidavits, the documents and the grounds of the learned Magistrate as well as the pleadings, the issues that are raised in this suit have already been raised as the 1st Plaintiff’s defence when it attempted to resist the claim for rentals unpaid before the Magistrate Court and for repossession of the property from the 1st Plaintiff. 27. This also extends to the 2nd Plaintiff, as the 1st Plaintiff had clearly indicated the identity of the 2nd Plaintiff in the earlier suit and the involvement of the 2nd Plaintiff in the business undertaken on the land rented out from the Defendants. The identity of the 2nd Plaintiff was known to the 1st Plaintiff at the material, is clearly “privy” to the 1st Plaintiff and would be bound by the decision of the Courts below concerning the validity of the tenancy and validity of the termination of the tenancy. 15 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28. It is clear to me that the background facts and circumstances that is the original subject matter of the claim before the Magistrate Court is the same before this Court. The claims that were filed by the 1st Defendant relate to the failure of the 1 st Plaintiff to pay the rentals outstanding under the terms of the Tenancy Agreement and the failure to return the property based on the terms of the 2019 Tenancy Agreement. 29. The Defence that was filed by the 1st Plaintiff in the said suit is for the same issues and facts related to the alleged (i) continuation of the 2013 Tenancy Agreement, (ii) fraud, (iii) misrepresentation, (iv) forgery and (iv) even the existence of the 3 letters that were allegedly issued by Lee Man Onn. Essentially, the allegations that appear in the Defence in the Magistrate Court and the Statement of Claim in this proceeding raises the same facts, same issues, and same contentions. This is conceded by the Plaintiffs as seen in Enclosure 4. The issue as to the validity of the 2019 Tenancy Agreement were at the forefront of the aforementioned proceedings before the Magistrate Courts. 30. The only difference in this suit is that the 1st Plaintiff, chose to add the 2nd Plaintiff as a co-litigant and chose to add new Defendants to this suit. 31. As I have alluded earlier, I believe the addition of additional litigants and additional defendants, does not mean that Res Judicata does not apply. I find that as the facts are similar and closely connected to the same issues before the two suits heard before the Magistrate Court, and that these parties are “privies” to the same parties in the earlier suits. 16 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32. I find that it is clear in the 183 suit instituted by the 4th Defendant against the Plaintiff, the learned Magistrate did consider all of the above defences / issues and these were specifically rejected. 33. Despite the danger of repetition, I find it useful that the judgment of the learned Magistrate is restated again: - [7] Penelitian lanjut terhadap eksibit LMO-4 mendapati Defendan mengakui tunggakan sewaan apabila membuat permintaan bagi mengenepikan sewa tertunggak. Jelas dalam surat Defendan ini menyatakan tajuk 'request to waive or reduce rental'. Defendan kemudiannya menyatakan hope your good company can waive our rental for the month of February and March 2020' di mana amaun yang dituntut dalam guaman ini. Pada peringkat ini tiada sebarang bantahan dikemukakan Defendan akan kesahihan perjanjian sewaan 2019 sehingga selepas 16 bulan kemudiannya. Mahkamah ini memutuskan bahawa laporan polis yang dikemukakan pada 22.3.2021 (eksibit C-8) adalah pemikiran terkemudian. Eksibit LMO-10 adalah lebih berkemungkinan daripada eksibit C-8 tersebut. [8] Tuan tanah baru kemudiannya mengeluarkan notis penamatan perjanjian penyewaan 2019 pada 30.9.2020 (eksibit LMO-8). Defendan pada 2.10.2020 secara bertulis menerima penamatan tersebut dan bersetuju memulangkan premis tersebut bagi tempoh jangka panjang selama 15 tahun berturut turut bagi menjalankan perniagaan penginapan dsn restoren. oleh itu tiada keperluan bagi memanggil saksi saksi di hadapan mahkamah ini bagi memutuskan isu penipuan dan salah nyata yang dibangkitkan oleh Defendan. The same issues were also raised as its defence by the 1st Plaintiff in the 837 suit instituted by the 1st Defendant and again they were rejected by the learned Magistrate. I again reiterate that the appeals against the decisions of the lower Courts were dismissed by the High Court as I have stated earlier. 17 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34. Based on the above, I find that the issues raised in this suit has been decided by the lower Courts and affirmed by the High Court. Clearly, the Plaintiffs are not entitled to reopen the issues and vent the same arguments afresh in this suit. They are subject to the doctrine of Res Judicata and should be estopped from relitigating again on the same facts, same issues, and same legal arguments. 35. In the circumstances, I find it would be an abuse of process of Court for the Plaintiffs to now attempt to reopen the same issues, same facts and same claims that were earlier argued before the Magistrate Court. - Additional of Co-Plaintiff and Joinder of New Defendants is not bar to Res Judicata 36. As I have said earlier, I note that in this suit, the 1st Plaintiff did decide to add a co-Plaintiff and join additional Defendants to this suit in its attempt to circumvent the Rule of Res Judicata. I opine that this mischievous maneuvering of the legal process does not entitle the Plaintiffs to have a second bite of the cherry. 37. What is important is whether it would be an abuse of process of Court for the Plaintiffs to attempt to relitigate the same issues again. I find much support from the decision of the Court of Appeal in Metreco Industries Sdn Bhd v Low Peck Lim & Ors [2019] 12 MLJ 164 and Justice Nantha Balan (as he then was) in Dr Aishah Tul Radziah L Hussain v Dr Suresh Kumarasamy & ors [2015] 10 CLJ 222. 18 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal - Res Judicata in the Wider Sense – Could Have and Should Have is also applicable 38. As I have found earlier, the claim before the Magistrate relates to the same subject matter, same facts and involves the same defences / cause of action that should have and could have been raised before the Magistrate Court. 39. I am of the opinion that the 2nd Plaintiff and the Defendants in this suit, with the exception of the 8th and 9th Defendants, are persons that are so closely connected to the dispute in the earlier suits that, if the Plaintiffs believed that they have a cause of action against them, should have been added to the earlier suit. 40. There is no explanation or reasons given by the Plaintiffs for their failure to ensure that all persons who are connected or privy to the issues before Court were added as parties to the suit. That should have been done once and for all. Otherwise, we will have litigants pursuing claims in stages, possibly causing contradictory decisions by Courts concerning the same subject matter, same facts, and same legal issues. To allow this, would be an abuse of process of Court. - Plaintiffs Admits in Enclosure 4 that the issues, facts and legal arguments are the same in the proceedings in the Magistrate Courts and in this fresh suit 19 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41. It is also important that I note that the Plaintiffs admits that the issues raised before the Magistrate Court and before this Court are related and that the cause of action in this Court as well as the claim and defence in the Magistrate Court are connected and arise from the same facts, same issues, and same legal arguments. I refer to the grounds relied upon by the Plaintiffs in Enclosure 4 which are reproduced below: - (2) Dalam Tindakan Plaintif Pertama (P1) di Mahkamah Tinggi Kuala Lumpur Guaman Sivil No: WA-22NCVC-324-05/2021 ("Tindakan Inl"), Plaintif Pertama (P1) dan Plaintif Kedua (P2) telah menuntut terhadap D1 dan juga Defendan-Defendan lain mengenai kesahihan Perjanjian 2019 tersebut atas alasan terdapat frod, penipuan dan salah nyata frod (fraudulent misrepresentation) dan gabungan konspirasi antara D1 dan Defendan-Defendan lain; (3) Tindakan ini dan Tindakan No. 837 adalah berdasarkan dan/atau berbangkit dari fakta-fakta yang sama (common facts) iaitu, antara lainnya, penyewaan sekeping tanah yang dipegang di bawah Geran 10458 Lot 17680 Mukim Bentong, Daerah Bentong dan Negeri Pahang (lebih kurang 19,164 meter persegi) termasuk sebuah bangunan empat (4) tingkat yang didirikan di atasnya beralamat di No. 12 Persiaran Jati 3A, Off Jalan Jati 3, Bandar Gohtong Jaya, 69000 Genting Highlands, Pahang Darul Makmur ("Premis") (4) Persoalan undang-undang yang dibangkit dalam Tindakan ini dan Tindakan No.837 adalah berbangkit dari kausa tindakan yang sama iaitu kesahihan Perjanjian 2019 tersebut dan/atau alegasi kemungkiran Perjanjian 2019 tersebut: (6) Permohonan ini dibuat bagi memastikan ketekalan (consistency) dalam keputusan Mahkamah Majistret Kuala Lumpur dan Mahkamah Tinggi Kuala Lumpur dan untuk mengelakkan situasi yang memalukan 20 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal jikalau adanya kewujudan dua keputusan yang berlainan oleh Mahkamah berkenaan dengan subjek perkara kedua-dua tindakan. I also refer to paragraph 8 of the Plaintiffs’ affidavit in support in Enclosure 4: - 8. Seterusnya, saya dinasihati oleh peguam P1 dan sesungguhnya percaya bahawa persoalan undang-undang yang dibangkit dalam Tindakan ini dan Tindakan No. 837 adalah berbangkit dari kausa tindakan yang sama iaitu kesahihan Perjanjian 2019 tersebut dan/atau alegasi kemungkiran Perjanjian 2019 tersebut. 42. Therefore, it is clear to this Court that the Plaintiffs are estopped from denying that the claim herein is subject to the doctrine of Res Judicata as the dispute, issues and facts have been deliberated before the Magistrate Court in the two proceedings referred to earlier. Again, I reiterate that the order for summary judgments has since been subsequently confirmed by the High Court. 43. I also do not see any reason why the Plaintiffs chose not to transfer and consolidate the earlier Magistrate Courts claims with this claim before the application for summary judgments were heard. 44. The Plaintiffs counsels chose not to pursue diligently the application to transfer and consolidate in Enclosure 4 which was filed after the summary judgment was heard in one of the suits. The Plaintiffs continued with this position even before the appeal against the decision to enter summary judgment was heard. 21 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45. Counsel simply chose to sleep on his client’s rights and instead chose to attempt to relitigate on the same subject matter afresh by way of this Suit. - Backdoor Attempt to Challenge the decision of the Magistrate Court that was affirmed by the High Court 46. If I were allowing this Suit to continue, then the Plaintiffs will have an opportunity to essentially set aside the orders made by the Magistrate Courts that have been affirmed by the High Court at appeal. The Plaintiffs will then have the second opportunity to ventilate the same issues and same facts twice and the orders of this Court may contradict with the orders of the Courts earlier. This, I cannot allow and would be abusive. 47. I do not find the excuse that the claim in this suit exceeds the jurisdiction of the Magistrate Court is a valid reason for the decision by the Plaintiffs to not pursue the claim once and for all in the earlier suit. There are ample provisions under the civil procedure rules that provides for consolidation and even transfer of proceedings to the superior courts to ensure that similar claims are dealt once and for all. I refer to sections 66 and 69 of the Subordinate Courts Act 1948, Order 57 of the Rules of Court 2012 and the decision of the Federal Court in Ng Kok Ling & Anor v Low Peck Lim & Ors [2017] 5 CLJ 651. Counsel should not have slept on his client’s rights. 48. The decision by the Plaintiffs to relitigate the same allegation based on the same facts, in another fresh suit should not be condoned by 22 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal this Court. I find that this suit is an abuse of process of Court as the Plaintiffs are attempting to reopen the same claim / defence afresh. If the Plaintiffs are unhappy with the outcome of the previous suits, then they should have filed leave to appeal to the Court of Appeal and not pursue this fresh suit. 49. My views are guided by the decision of Lord Sumption in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46 where he stated, inter alia: - “25. It was clearly not the view of Lord Millett in Johnson v Gore- Wood that because the principle in Henderson v Henderson was concerned with abuse of process it could not also be part of the law of res judicata. Nor is there anything to support that idea in the speech of Lord Bingham. The focus in Johnson v GoreWood was inevitably on abuse of process because the parties to the two actions were different, and neither issue estoppel nor cause of action estoppel could therefore run (Mr Johnson’s counsel conceded that he and his company were privies, but Lord Millett seems to have doubted the correctness of the concession at p 60D- E, and so do I). Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v National Westminster Bank at p 110G, 23 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “estoppel per rem judicatam, whether cause of action estoppel, or issue estoppel is essentially concerned with preventing abuse of process.” 26. It may be said that if this is the principle it should apply equally to the one area hitherto regarded as absolute, namely cases of cause of action estoppel where it is sought to reargue a point which was raised and rejected on the earlier occasion. But this point was addressed in Arnold, and to my mind the distinction made by Lord Keith remains a compelling one. Where the existence or non existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.” I therefore opine the Plaintiffs should not be allowed to undertake a back door challenge against the decision of the Magistrate Courts. This is clearly an abuse of process of this Court and should not be entertained. (ii) Plaintiffs’ Claim is Bound to Fail – Frivolous claim - The Plaintiff’s Letter dated 2-10-2020 admits the validity of the Tenancy, its termination and agreed to surrender the property 50. I also find that the claim by the Plaintiffs against the Defendants is bound to fail. 24 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51. The letter dated 2-10-2020 by the 1st Plaintiff, executed by the Directors of the company, clearly shows that the company agreed to the termination of the said Tenancy and only sought for the rentals outstanding to be reduced by way of a discount. 52. This is clearly contrary to the arguments put forth now by the Plaintiffs. I do not find it consistent that the company, the 1st Plaintiff, on the one hand agreeing to terminate the tenancy and seeking a discount on the sums outstanding, to what they now allege in the Statement of Claim. 53. If indeed the Defendants were guilty of misrepresentation, fraud or forgery as suggested, the Plaintiffs would have immediately issued a response to the termination. 54. Instead, no such letter or correspondence stating such allegations was put to the Defendants. These allegations only came to the fore when the 1st Defendant sought payment of the rentals before the Magistrate Court and sought vacant possession of the land, indicating to me that these are a mere afterthought. 55. As I said, I find that the arguments put forward in this claim also contradicts the Plaintiff’s own letter admitting the existence of the tenancy, its agreement to surrender and request for discount. The claim clearly contradicts contemporaneous documents before this Court. 56. I refer to the decision of Lord Diplock in Eng Mee Yong v Letchumanan [1979] 2 MLJ 212 where he held: - 25 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “Although in the normal way it is not appropriate for a Judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as he may think just the Judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth.” 57. I also refer to the decision of the Privy Council in Tractors Malaysia Bhd v Tio Chee Hing [1975] 1 LNS 133 where the Lord Diplock analysed the facts and documents before the Court and found that the fresh suit is abusive and ought to be struck out. 58. I, therefore, find that, even if I am wrong on the issue of Res Judicata, the claim filed by the Plaintiffs against the Defendants is bound to fail. 59. I opine that this is a plain and obvious case, that justifies the exercise of the draconian power to strike out that the claim against the Defendants. I exercise such powers in accordance with the principles laid down in Raja Zainal Abidin Raja Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 CLJ 606, Tenaga Nasional Bhd v Irham Niaga [2011] 1 CLJ 491 and Mayban Allied Bhd v Kenneth Godfrey Gomez [2010] 9 CLJ 702. 26 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal - Internal Squabbles between Chen Zheng Zheng and 8 th and 9th Defendants concerning the Plaintiffs do not justify a trial against the other Defendants 60. During the hearing before me, counsel for the Plaintiffs contends that his client’s door to justice should not be closed at this stage on the grounds that he has alleged fraud, misrepresentation and even forgery. He argues that his client should be given their day in Court and that there is even an alleged dispute as to the internal affairs of the Plaintiffs. He suggests that the dispute existing internally between shareholders and directors of the Plaintiffs also ought to justify a trial as the validity of the said letter dated 2-10-2020 is at issue. 61. With due respect to counsel, I do not find that the internal squabbles between the Plaintiffs’ own shareholders and directors justify a trial of this claim. The issues raised are internal and ought to be dealt solely between members of the company I do not find any evidence or even allegation of any collusion between the Plaintiff’s directors, shareholders, and the Defendants as to the existence of the said letter. Even counsel for the Plaintiffs accepts that the said letter was validly issued by the Plaintiffs’ own directors. 62. It is trite law that external parties to companies are entitled to assume that directors of a company are empowered to issue letters and even represent the entity. The Plaintiffs accept that the 2 out of 3 directors did issue the 2-10-2020 letter on behalf of the 1st Plaintiff and their actions surely binds the 1st Plaintiff and estop it from denying the validity of the termination of the tenancy as well as the other issues raised in this claim. 27 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 63. I refer to Pekan Nenas Industries Sdn Bhd v. Chang Ching Chuen [1998] 1 CLJ 793; [1998] 1 MLJ 465 and Kang Hai Holdings Sdn Bhd & Anor v. Lee Lai Ban [2018] 2 CLJ 550; [2018] 2 MLJ 574. 64. As such, the letter 2-10-2020 is binding on the 1st Plaintiff and it is not entitled to make any allegations that contradicts this contemporaneous document. - Cheng Zheng Zheng (the deponent of the Plaintiffs’ affidavit) agreed to the assignment of the Tenancy to the 4th Defendant 65. Another factor I have considered is the letter of assignment that was agreed to by the Plaintiffs and in particular by Chen Zheng Zheng, the deponent to the Plaintiffs’ affidavits. I have considered the notice of assignment dated 10-3-2020 issued by the 1st Defendant in Enclosure 49 that clearly shows that the 1st Plaintiff had agreed to the said assignment on 13-3-2020. This to me shows that the Plaintiffs had agreed to the said notice of assignment and to the validity of the Tenancy Agreement dated 25-4-2019. 66. If indeed the Tenancy Agreement dated 25-4-2019 is not valid, the Plaintiffs would not have agreed to the said notice of assignment and would have raised all sorts of issues when the notice was sent to them for agreement. 67. Chen Zheng Zheng’s contentions as contained in the affidavits denying the striking out application does not lay well with the agreement by him to consent to the assignment. This to me, shows 28 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal that the arguments put forward in this suit are mere afterthoughts as correctly found by the Magistrate Courts in the earlier suits. 68. For the above reasons, I find that the allegations of fraud and misrepresentation are mere figments of the Plaintiffs imagination to delay the claims by the 1st Defendant and the 4th Defendant. 69. I reiterate, as seen in the decisions of the Magistrate Courts, these allegations were rejected as mere afterthoughts and they are supported by the letter dated 2-10-2020 and this notice of assignment agreed to by the Plaintiffs and Chen Zheng Zheng. 70. I also find that the mere mention of fraud or misrepresentation alleged in a claim does not automatically justify the setting down of a claim for trial. This Court must first analyze whether the pleading discloses a reasonable claim in the first place and whether evidence produced during a striking out application justify any trial. If the claim is clearly frivolous and patently obviously unsustainable, then it should be struck out. 71. Having considered the evidence before me, I am persuaded, especially after considering the letter dated 2-10-2020 as well as the notice of assignment agreed to by the Plaintiffs, that the claim is frivolous and is bound to fail. 72. There is no need for trial and to reject the application to strike out would be wrong. I opine that the Defendants have successfully shown that the claim is frivolous and ought to be struck out. 29 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 73. Given the above, I find that, even without relying on the doctrine of Res Judicata, the Plaintiffs’ claim should be struck out. The letter dated 2-10-2020 speaks loudly that the 1st Plaintiff admits the validity of the termination of the tenancy and the obligation to return the land to the landlord. They even sought a discount for the sums outstanding under the terms of the Tenancy. Otherwise, the Plaintiffs would have surely not accepted the termination and not agreed to return the said land. E. Conclusion 74. For the above reasons, I find that: - (i) The doctrine of Res Judicata is applicable. (ii) This suit is an abuse of process of this Court. (iii) The allegations contained in this suit and even in defence filed before the Magistrate Courts as a mere afterthought with an attempt to delay the obligation to pay the sums due based on the orders of the Magistrate Courts and to delay the return of the land back to the landlord. (iv) The claim is bound to fail based on the Plaintiffs’ own letter dated 2-10-2020 and the Notice of Assignment agreed to by Cheng Zheng Zheng, the deponent of the Plaintiffs’ affidavits and a director of the Plaintiffs. (v) The claim against the 1st to 7th Defendants should be struck out as the claim so obviously or plainly unsustainable. 30 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal F. Decision of this Court 75. I make the following orders: - 75.1 The claim against the 1st to 7th Defendants are struck out. 75.2 Costs of RM 15,000.00 to be paid by the Plaintiffs to each of the Defendants for the application to strike out and that the Plaintiffs are jointly and severally liable to the Defendants. Dated 8th September 2022 Dato’ Indera Mohd Arief Emran bin Arifin Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 31 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Chang Aik Ming counsels for the Plaintiffs Messrs. Chang Aik Ming & Co. (Kuala Lumpur) Advocates and Solicitors Yee Mei Ken together with Caitlin Tan Hui Yi counsels for the 1st Defendant ,2nd and 3rd Defendant. Messrs. Shearn Delamore & Co. (Kuala Lumpur) Advocates and Solicitors Jasbeer Singh together with Parvinder Sandhu counsels for the 4th ,5th, 6th and 7th Defendant. Messrs. Jasbeer Nur & Lee (Kuala Lumpur) Advocates and Solicitors 32 S/N /ewl7PitwkedlfcHCEm5aQ **Note : Serial number will be used to verify the originality of this document via eFILING portal