GASING POTENSI CONSTRUCTION SDN BHD HYPER ACT MARKETING SDN BHD

AA-22NCvC-103-08/2018 Kand. 71 14/06/2022 05:02:37 5 IN THE HIGH COURT IN MALAYA AT IPOH IN THE STATE OF PERAK DARUL RIDZUAN SUIT NO.: AA-22NCvC-103-08/2018 BETWEEN 10 GASING POTENSI CONSTRUCTION SDN BHD … PLAINTIFF [COMPANY NO.: 715397-K] AND 15 HYPER ACT MARKETING SDN BHD … DEFENDANT [COMPANY NO.: 875644-M] IN THE HIGH COURT IN MALAYA AT IPOH 20 IN THE STATE OF PERAK DARUL RIDZUAN SUIT NO.: AA-22NCvC-104-08/2018 BETWEEN 25 GASING POTENSI CONSTRUCTION SDN BHD … PLAINTIFF [COMPANY NO.: 715397-K] AND GCCP GRIDLAND SDN BHD … DEFENDANT 30 [COMPANY NO.: 845675-T] JUDGMENT 35 1 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Introduction [1] The Plaintiff is the same in both the actions (hereinafter referred to as 40 “Suit 103” and “Suit 104”). Although, the Defendant in each of the two actions are separate companies and are separate legal entities, they are described as related companies. The Plaintiff’s cause of action in the two actions are premised upon the Plaintiff having been appointed as a contractor in 2016 to carry out works on the respective Defendants’ quarries. 45 [2] Upon the application of the Plaintiff, the two separate actions were ordered by Mohd Radzi Bin Harun JC (now J) on 5 August 2019 to be consolidated and heard one after the other. 50 [3] On the premise that each of the Defendants in the two actions had proposed payment for works carried out and therefore had admitted to its respective claims, the Plaintiff applied for summary judgment pursuant to Order 14 Rules of Court 2012 (“ROC”). The Plaintiff’s applications were dismissed by Mohd Radzi Bin Harun JC (now J) on 18 February 2020 but 55 upon an appeal, on 27 July 2021, the Court of Appeal allowed summary judgment to be entered in the Plaintiff’s favour in both the actions. [4] The Plaintiff then filed two respective applications to have each of the Defendants’ counterclaim in Suit 103 (Enclosure 44) and Suit 104 (Enclosure 60 43) to be struck out pursuant to Order 18 rule 19(1)(a) or (b) or (c) or (d) ROC. On 10 May 2022, I had dismissed both the applications with costs. Dissatisfied, the Plaintiff appealed to the Court of Appeal and this is the grounds of judgment. 2 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 Background facts – distilled from the pleadings in Suit 103 and Suit 104 Suit 103 [5] The Plaintiff carries on the business of drilling, rock blasting and 70 extraction of limestone rocks, general construction and hiring of plant equipment and workers. [6] According to records filed with the Companies Commission of Malaysia the Defendant carries on the “business of rock or earth quarry or 75 mine and to undertake all operations in connection therewith”. [7] The Plaintiff was engaged by the Defendant in 2016 to carry out works at a quarry in Keramat Pulai, Mukim Sungai Raya, Daerah Kinta, Perak. 80 [8] After several discussions, by a letter dated 12 November 2017, the Defendant admitted to owing a sum of RM2,419,873.61 for works carried out by the Plaintiff and proposed to pay the debt by way of 60 monthly instalments of RM40,331.22. 85 [9] By a letter dated 12 December 2017, the Plaintiff accepted the Defendant’s proposal with the first instalment payment to commence in November 2017. [10] After some payments, the Defendant failed to pay the balance owing 90 of RM2,258,548.72 despite repeated demands and the Plaintiff then sued for this sum. 3 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [11] The Defendant in its defence pleaded that premised upon the Plaintiff’s quotation dated 1 February 2016, the Defendant agreed to appoint the Plaintiff to build an access road (“Access Road”) in the Defendant’s quarry 95 in Mukim Sungai Raya, Daerah Kinta, Perak. [12] In a separate quotation by the Plaintiff also dated 1 February 2016, the Defendant agreed to appoint the Plaintiff to carry out the production of limestone rocks at the Defendant’s quarry. 100 [13] The Defendant asserted that the Plaintiff had suggested and was responsible to build a platform known as “Platform D”, to be ready to be used for the Defendant’s quarry operations in mid-July 2017. 105 [14] However, on or about July or August 2017, the Defendant found that the Access Road constructed by the Plaintiff from Point B to Point D had been demolished. [15] Despite repeated queries, the Plaintiff refused to clarify how the 110 Access Road was demolished. [16] After an investigation by an expert appointed by the Defendant, it was found that the Plaintiff had deliberately or in the alternative, negligently, caused the Access Road to be demolished thereby causing the Defendant 115 to suffer damages and additional costs to its quarry operations. [17] In addition, the Defendant claimed that the Plaintiff had breached its terms of appointment by failing to get ready Platform D and failing to construct an access road with a gradient of 1:7 feet resulting in the 4 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 120 Defendant’s quarry operations and production being delayed, as well as the Defendant not being able to carry out quarrying at the designated place. [18] Although the Defendant admitted to writing the letter dated 12 December 2017 and having effected payments totalling RM161,324.88, the 125 proposed payments by [60] instalments were made at a time when the Defendant did not know that the Plaintiff had deliberately demolished the Access Road and by reason thereto, the proposals are voided. [19] Together with its defence, the Defendant filed a counterclaim 130 claiming that although the Defendant had incurred a high cost to have the Access Road built, it could no longer be used as the Plaintiff had deliberately destroyed it and cut off access. Similarly, the losses suffered by the failure of the Plaintiff to build Platform D was raised in the counterclaim. 135 [20] The Defendant prayed for the cost to build the Access Road, damages to be assessed and interest at 5% p.a. from the date of the filing of the Writ (6 August 2018) until full settlement and costs. [21] The Plaintiff replied and pointed out that the Defendant itself issued 140 the letter dated 30 November 2017, admitting to being indebted to the Plaintiff and had made 4 payments to the Plaintiff. [22] The Plaintiff asserted that if the Access Road from Point B to D had been demolished, it was not caused by the Plaintiff. 145 [23] The Plaintiff also asserted that at all times, the Defendant had its representatives or workers at the work site to give instructions to the Plaintiff 5 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal for works to be carried out by the Plaintiff and to supervise the works, and therefore, the Defendant had full knowledge as to what happened to the 150 Access Road from Point B to Point D and to then seek an explanation would be nothing but a ruse. [24] The Plaintiff added that it had left the site by July 2017 and therefore the Defendant’s expert’s investigation and report carried out in August 2018 155 has been delayed and has no credibility. [25] In summary, the Plaintiff asserted that with the Defendant having admitted to being indebted by the letter dated of 30 November 2017, the issue of the demolition of the Access Road is a mere afterthought and sought 160 for the counterclaim to be dismissed. Application for Summary Judgment [26] On 4 September 2019, the Plaintiff filed its application to enter 165 summary judgment (Enclosure 24) for the sum of RM2,258,548.72 together with interest thereon at 5% p.a. from the date of judgment to the date of full settlement and costs. [27] The summary judgment application was grounded on the Defendant 170 not having any meritorious defence as it had admitted the debt and proposed payment with the Plaintiff having accepted the proposal and the Defendant having defaulted on the payment. The Plaintiff asserted that the Defendant’s defence is an afterthought. 6 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 175 [28] As mentioned in the introduction above, His Lordship Mohd Radzi Bin Harun JC (now J) had on 18 February 2020, dismissed the application for summary judgment on the premise that Defendant had raised triable issues pertaining to the existence and effect of the agreements purportedly entered into by the parties and whether the letter of 30 November 2017 issued by the 180 Defendant was issued under a mistake with reliance placed upon sections 21 and 23 of the Contracts Act 1950. See His Lordship’s grounds of judgment in Gasing Potensi Construction Sdn Bhd v. Hyper Act Marketing Sdn Bhd [2020] 1 LNS 545 particularly at paras [16] and [17]. 185 [29] Aggrieved, the Plaintiff appealed and on 27 July 2021, the Court of Appeal allowed the Plaintiff’s appeal and for summary judgment to be entered in favour of the Plaintiff. [30] However, no grounds of judgment were handed down by the Court of 190 Appeal. This would become a bone of contention between the parties which became the critical issue that called for a decision by this Court. Striking Out Application 195 [31] One month after its success in the Court of Appeal on 23 August 2021, the Plaintiff filed its application to have the Defendant’s counterclaim struck out (Enclosure 44). [32] The main ground for the striking out application is that the counterclaim 200 is premised upon the matters raised in the defence and, therefore, with the Court of Appeal having allowed summary judgment to be entered, the Court of Appeal had decided that the defence had no merit and, therefore, there 7 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal was no necessity for these matters raised to be tried. The Plaintiff went on to assert that the counterclaim did not disclose any reasonable cause of 205 action, or was scandalous, frivolous and vexatious or was an abuse of process. Res Judicata and Stare Decisis 210 [33] If, in allowing summary judgment to be entered in favour of the Plaintiff, the Court of Appeal had decided that the alleged demolition of the Access Road and the alleged non-construction of Platform D are issues that do not merit a trial, this Court, premised upon the principle of res judicata and the doctrine of stare decisis is obliged to allow the striking out application. 215 [34] On the principle of res judicata, the Supreme Court in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 held that: 220 “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between 225 such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation - interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexari pro eadem causa. Both 230 maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. 8 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal …… Thus, there are in fact two kinds of estoppel per rem judicatum. The first type relates to cause of action estoppel and the second, to issue estoppel, which 235 is a development from the first type. The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in Court for a particular remedy are determined in a final judgment and such right of action ie. the cause of 240 action, merges into the said final judgment; in layman's language, the cause of action has turned into the said final judgment. The said cause of action may not be re-litigated between the same parties because it is res judicata. In order to prevent multiplicity of actions and also in order to protect the underlying rationales of estoppel per rem judicatum and not to act against 245 them, such estoppel of cause of action has been extended to all other causes of action (based on the same facts or issues) which should have been litigated or asserted in the original earlier action resulting in the final judgment and which were not either deliberately or due to inadvertence. ….. 250 On the other hand, the issue estoppel literally means simply an issue which a party is estopped from raising in a subsequent proceeding. However, the issue estoppel, in a nutshell, from a consideration of case law, means in law a lot more ie. that neither of the same parties or their privies in a subsequent proceeding is entitled to challenge the correctness of the decision of a 255 previous final judgment in which they, or their privies, were parties. This sounds like explaining a truism, but it is the corollary from that statement that is all important and that could have given birth to the controversies alluded to above; the corollary being that neither of such parties will be allowed to adduce evidence or advance any argument to contradict such decision. In 260 this respect, we respectfully agree with Peter Gibson J in Lawdor v. Gray [1984] 3 All ER 345, 350 who said: 9 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal "Issue estoppel... prevents contradiction of a previous determination, whereas cause of action estoppel prevents reassertion of the cause 265 of action". It is important to bear in mind the manner in which the issue estoppel operates in preventing such contradiction of the previous judgment. 270 There is one school of thought that issue estoppel applies only to issues actually decided by the Court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and 275 which were not brought forward as described, though not actually decided by the Court, are still covered by the doctrine of res judicata ie. doctrine of estoppel per rem judicatum. We are of the opinion that the aforesaid contrary view is to be preferred; it 280 represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatum. It is particularly important to bear in mind the 285 question of the public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the Courts being found always one step behind the resulting increase in litigation.” 290 [35] On the doctrine of stare decisis, Ariffin Zakaria CJ (as he then was) in Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 CLJ 577 said: 10 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “[53] The common law tradition is built on the doctrine of stare decisis which directs a court to look to past decisions for guidance on how to decide a 295 case before it. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute. The use of precedent has been justified as providing predictability, stability, fairness and efficiency in the law. Reliance upon precedent contributes predictability to the law because it provides 300 notice of what a person's rights and obligations are in particular circumstances. It also means that lawyers can give legal advice to clients based on settled rules of law. There is certainty in the law. There is also uniformity in the law. Similar cases will be treated in the same way. The use of precedent also stabilises the law.” 305 [36] Edgar Joseph Jr FCJ (as he then was) had in The Co-Operative Central Bank Ltd v. Feyen Development Sdn Bhd [1997] 3 CLJ 365 (FC) quoted from the remarks of Lord Hailsham in Cassell and Co. Ltd. v. Broome [1972] AC 1027 that said: 310 “The fact is, and I hope that it will never be necessary to say so again, that in the hierarchical system of Courts that exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the 315 decision in Young v. The Bristol Aeroplane Co. offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom.” [37] Conscious of the aforesaid principle and doctrine, I had requested from 320 learned counsel for the Plaintiff and the Defendant to seek the grounds of judgment from the Court of Appeal for the following reasons: 11 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal i) to a question posed by this Court on 14 December 2021, learned counsel for the Plaintiff, Mr Mohamed Nizam Bin Mohamed 325 Salleh, asserted that during the proceedings at the Court of Appeal, the issue of the demolition of the Access Road had been decided; ii) however, learned counsel for the Defendant, Mdm Chin Yin Choi, asserted that the Court of Appeal did not make a finding 330 on whether the Plaintiff did or did not damage the Access Road; iii) given the obvious importance of this issue, I adjourned the hearing of the striking out application to enable parties to seek the grounds of judgment or clarification from the Court of Appeal for the basis on which the summary judgment was allowed; 335 iv) on 14 March 2022, Mr Mohamed Nizam reported back to this Court that although efforts were made by letter and telephone, there was no response and thus sought for the hearing of the striking out application to proceed; and v) in the circumstances, this Court took the position that it would 340 proceed with the hearing of the striking out application but, however, directed the parties to file an affidavit to state what took place at the Court of Appeal regarding whether the issue raised in the counterclaim had been determined to enable this Court to decide whether the principle of issue estoppel and the doctrine 345 of stare decisis applies. [38] At this juncture it would be convenient to deal with the hesitancy that this Court felt in striking out the Defendant’s counterclaim without first seeking clarification from the Court of Appeal. 350 12 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Hesitancy Explained [39] It is trite law that it is only if the Defendant’s counterclaim is obviously 355 unsustainable that it can be struck out. In Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 the Supreme Court held: “The principles upon which the Court acts in exercising its power under any 360 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 365 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 370 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 375 or that the defences raised are not arguable. After considering the counterclaim and the defence to counterclaim, we are satisfied that both pleadings have raised some issues which require serious discussion. The appellants alleged that the respondent owed them a legal 380 duty of care which arose from an agreement to sell the public-quoted shares belonging to the appellants, and that as a result of unreasonable delay in granting the approval to sell, they have suffered loss and damage. The 13 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal respondent, on the other hand, denied that a duty of care existed between them. Furthermore, there is also a dispute of fact concerning the alleged 385 agreement on 27 March 1990. The respondent maintained that there was no concluded agreement reached between the parties on 27 March 1990. Here, the parties relied on the correspondences in the respective affidavits filed in the action. This Court as well as the Court below are not concerned at this stage with the respective merits of the claims. But what we have to 390 consider is whether the counterclaim discloses some cause of action and, likewise, whether the defence to counterclaim raises a reasonable defence. It has been said that so long as the pleadings disclose some cause of action or raise some question fit to be decided by the Judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the 395 pleadings to be struck out (Moore v. Lawson [1915] 31 TLR 418 CA); (Wenlock v. Moloney (supra)). Bearing in mind the established principles stated above, we say that this is not a plain and obvious case for striking out the pleadings as disclosing no 400 reasonable cause of action and defence. Nor can we say that they are frivolous, vexatious or may prejudice embarrass or delay the fair trial of the action or that these pleadings are otherwise an abuse of the process of the Court. Accordingly, we dismiss both appeals with costs.” 405 [40] The following analysis by Mairin Idang @ Martin JC (later J) in Messrs Tai Choi Yu & Co, Advocates v Ting Sie Chung @ Ting Sieh Chung [2015] 1 LNS 990 (HC) on what is a counterclaim is particularly pertinent to this case: 410 “[7] Let me first say that what was struck out by the Court of Appeal is the plaintiff's statement of claim. It would therefore be wrong to suggest that the pleading which also consists of the defendant's defence and counterclaim followed by the reply, the plaintiff's defence to counterclaim had also been 14 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal struck out. We have to bear in mind that a pleading is a written or printed 415 statement which alternate between the parties to a dispute and define the issues to be decided in an action (See Banque Commerciale SA (in liq) v. Akhil Holdings Ltd [1990] 169 CLR 279; 92 ALR 53). [8] What we are talking about here is the trial of defendant's counterclaim. What then is a counterclaim? It has been said that a counterclaim on the 420 other hand is also a cross-claim which a defendant has against a plaintiff but in respect of which the defendant can bring a separate action against the plaintiff if he wishes to do so. [9] The procedure in the Court is contained in O. 15 r. 2 of the Rules of Court 2012, thereby making a counterclaim a creation of statute: Permodalan 425 Plantations Sdn. Bhd. v. Rachuta Sdn. Bhd. [1985] 1 CLJ 62; [1985] CLJ (Rep) 242 per Salleh Abas LP (as he then was). [10] O. 15 r. 2(1) enables the defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter, to make a counterclaim in respect of that matter and add the 430 counterclaim to his defence, as has been done by the defendant herein. [11] O. 15 r. 2(1) shall apply in relation to the counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant: O. 15 r. 2(2). 435 [12] Bowen LJ in Amon v. Bobbett [1889] 22 QBD 548 aptly said that "A counterclaim is to be treated, for all purposes for which justice requires it to be so treated, as an independent action. [13] Under O. 15 r. 2(3), a counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or 440 that the action is stayed, discontinued or dismissed. [14] In Macgowan and Another v. Middleton [1883] 11 QBD 464 the Court of Appeal held inter alia: "By discontinuing an action after a counterclaim has been delivered, a plaintiff cannot put an end to it as to prevent the defendant from enforcing against him the causes of action 445 contained in the counterclaim". 15 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [15] In the premises a defendant who has a claim against the plaintiff may make a counterclaim against the plaintiff instead of pursuing a separate cause of action. A counterclaim is a separate and independent action. It is a time saving device and is an approach that has been lauded by many 450 practitioners. Generally speaking, a separate cause of action involves additional expense, time and resources and certainly is less convenient to all concerned. The counterclaim would proceed to trial notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed.” (emphasis added) 455 [41] Was summary judgment allowed purely on the ground of the Defendant having admitted to owing a sum of RM2,258,548.72 or on the ground of this admission and that the issues of the demolition of the Access Road and the non-construction of Platform D were mere afterthoughts and 460 had been dismissed as being bereft of any merit? [42] On the demolition of the Access Road and the non-construction of Platform D, the Defendant asserted that it could only be the Plaintiff who had destroyed it and led evidence through the affidavit of its Deputy Chief 465 Executive Officer (Loo Wooi Hong) exhibiting an expert opinion report from G & P Geotechnics Sdn Bhd (Enclosure 47 exhibit LWH-3 pp 12 to 62) which in summary concluded (at page 24) that: “…the existing platform at Point D had experienced rock slope 470 collapse, several sub-vertical drillholes were observed, the probable causation of the collapsed rockmass is likely due to external disturbance to the cut slope and the possibility of unrecorded blasting activities of the sub-vertical drillholes could be highly connected to the collapsed rock slope….” 16 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 475 [43] The Defendant claimed that Point D is part of the Access Road that was to be and was built by the Plaintiff at RM24.00 per meter cube (see Enclosure 47 para 4 (a) and exhibit LWH-1 p 10). [44] In response to the Defendant’s aforesaid averments, the Plaintiff’s 480 director (Kow Kek Choy) by affidavit (Enclosure 48) admitted to the existence of the expert opinion but did not reply to the positive and serious assertion of fact made by the Defendant backed up by an expert opinion. Instead, he responded in the form of a legal argument based upon the advice obtained by the Plaintiff’s solicitors; the legal argument being that, as the Court of 485 Appeal had allowed the Plaintiff to enter summary judgment, the basis for the counterclaim would no longer exist. [45] It would be useful to set out hereunder what the Plaintiff’s director (Kow Kek Choy), averred in his affidavit in reply, the relevant part of which is 490 reproduced hereunder in its original language: “a) ….Saya telah dinasihati oleh peguamcara Plaintif dan [saya] sesungguhnya percaya bahawa walaupun Mahkamah Rayuan tidak memutuskan apa-apa berkenaan dengan Tuntutan Balas Defendan 495 semasa pendengaran rayuan Plaintiff berkenaan permohonan kebenaran untuk memasukkan Penghakiman Terus terhadap Defendan, fakta bahawa Mahkamah Rayuan telah membenarkan rayuan Plaintiff untuk memasukkan Penghakiman Terus ke atas Defendan dengan sendirinya menyebabkan asas kepada Tuntutan 500 Balas Defendan sudah tidak lagi wujud. b) Ini adalah kerana, seperti [mana] yang telah dinasihati oleh peguamcara Plaintif dan saya sesungguhnya percaya bahawa 17 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal perkara-perkara yang dibangkitkan sebagai Pembelaan dan Tuntutan 505 Balas Defendan adalah perkara-perkara yang sama dan Mahkamah Rayuan telah menolak Pembelaan Defendan.” [46] To show that the Access Road was part of the works to be carried out by the Plaintiff, the Defendant filed a supplementary affidavit to exhibit 510 invoices to show that it had paid the Plaintiff more than RM3,230,000.00 for the construction works which included the Access Road (Enclosure 49). [47] Whether the Plaintiff had demolished the Access Road which it was paid to build and whether it had failed to construct Platform D resulting in 515 damages to be suffered by the Defendant are, with respect, in my considered view, serious issues to be explored at trial with witnesses to be called on the proof of these questions of fact. In other words, in my considered view, the counterclaim is not obviously unsustainable and this explains my hesitancy and why I had sought for clarification on what were the issues determined by 520 the Court of Appeal. Res Judicata and Stare Decisis Revisited [48] In due course, the Plaintiff and the Defendant exchanged affidavits on 525 what took place in the Court of Appeal during the hearing of the appeal on the summary judgment application. [49] The Plaintiff filed two affidavits (Enclosure 59 and 62), affirmed by Kow Kek Choy who deposed what was informed to him by the Plaintiff’s solicitors. 530 The Defendant filed three affidavits (Enclosure 57, 60 and 61), two affirmed by Loo Wooi Hong who averred to what was told to him by the Defendant’s 18 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal solicitors and one by Chin Yin Choi, the counsel who appeared for the Defendant in the Court of Appeal during the hearing of the appeal on the summary judgment application. 535 [50] The Plaintiff deposed that the Court of Appeal would have considered all issues raised in the Defence filed by the Defendant and found them to be without merit and if the Defendant was dissatisfied it ought to have appealed which it did not and is therefore estopped from raising issues contained in its 540 defence. [51] The Defendant in its affidavits in reply (Enclosure 57) exhibited the Appeal Record filed by the Plaintiff in the Court of Appeal which contained the Plaintiff’s Memorandum of Appeal containing 14 grounds, out of which, 545 two were general grounds on the learned Judge having misdirected himself and with 11 grounds on the issue of admission, proposal for payment and four payments having been made. It is, therefore, clear that the main gangplank of the Plaintiff’s appeal was grounded on the Defendant having admitted to the debt owing. 550 [52] I further observed that the remaining ground out of the 14 grounds mentioned above, in ground 13 of its Memorandum of Appeal (Enclosure 60 p 26) the Plaintiff expressly posited in Bahasa Melayu that: 555 “Hakim Mahkamah Tinggi yang Bijaksana telah terkhilaf dari segi fakta dan undang-undang apabila gagal mengambil kira perkara bahawa tuntutan Perayu terhadap Responden dan Tuntutan Balas Responden terhadap Perayu adalah dua tuntutan yang berbeza 19 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal yang perlu diputuskan berasingan dan bukannya secara 560 bersama-sama.” [53] There was an accompanying English translation (Enclosure 60 p 33) and it reads as follows: 565 “The learned High Court Judge erred in law and fact in failing to consider that the Appellant’s claim against the Respondent and the Respondent’s counter-claim against the Appellant are two separate claims which should be disposed-off separately and not together.” 570 [54] To her credit, learned counsel for the Defendant highlighted that in the Plaintiff’s written submissions filed in the Court of Appeal, the Plaintiff expressly submitted (see Enclosure 60 p 293) as follows: 575 “74. Oleh yang demikian, Defendan adalah bebas untuk membuktikan Tuntutan Balas Defendan terhadap Plaintiff dalam Tindakan ini. Rujuk KC Lim & Associates Sdn v Pembenaan Udarama Sdn Bhd [1980] 2 MLJ 26 dan Pembinaan KSY Sdn Bhd v Syarikat Federal Furniture Construction and Engineering Works 580 [1991] 1 MLJ 347. 75. Ini adalah kerana adalah “trite law” bahawa Tuntutan Balas adalah tuntutan yang berbeza dari tuntutan asal di dalam sesuatu tindakan.” 585 20 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [55] It is, thus, abundantly clear that the Plaintiff sought to take a different position in its striking out application (Enclosure 44). Whilst pursuing its application for summary judgment it took the position that the Defendant’s counterclaim is separte and distinct from the main claim and which can be 590 separately and independently prosecuted but now in its striking out application, Plaintiff is saying the premise for the counterclaim is part and parcel of the main claim. It is blowing hot and cold or, in legal parlance, it sought to approbate and reprobate. Such conduct is to be deprecated and there is a plethora of reported cases to this effect. Suffice that I quote from 595 the speech of Her Ladyship, The Right Honourable Chief Justice, Tun Tengku Maimun CJ, in Nivesh Nair A/L Mohan v Dato' Abdul Razak Bin Musa, Pengerusi Lembaga Pencegahan Jenayah, Lembaga Pencegahan Jenayah, Penguasa, Pusat Pemulihan Khas, Simpang Renggam, Kluang, Johor [2021] 8 CLJ 163 ; [2021] 5 MLJ 320 who said: 600 “[36] We pause for a moment here to note that our case law is replete with reminders to advocates – whether from the Bar or public service – of the onerous duties of those in the legal profession. The highest duty of counsel – a duty which supersedes his or her duty to his client – is his duty to the 605 Court, which remains paramount in the administration of justice. Counsel are expected to make out their client’s case to the best of their abilities but they cannot adopt the mindset that they must ‘win at all costs’ if that results in misleading the Court or approbating and reprobating before different panels of the Court.” 610 [56] What was said about counsel approbating and reprobating in the Nivesh Nair A/L Mohan v Dato' Abdul Razak Bin Musa (supra) applies to parties as well, see Lee Loy & Ors v Poh Kam Sang & Anor [2018] 3 MLJ 240; [2017] 1 LNS 2023 (CA) at para [39]. 615 21 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [57] Nevertheless, from the exchange of affidavits, whether the Court of Appeal had considered and dismissed the two issues of fact namely that of the Plaintiff: i) having demolished the Access Road; and 620 ii) not having constructed Platform D, and, therefore, causing the Defendant to suffer damages was still unclear. [58] I took a look at the Courts’ Management System (“CMS”) and the 625 following is the minutes of the Court of Appeal’s proceedings for the appeal on 27 July 2021: “Mahkamah: Keputusan sebulat suara. Rayuan dibenarkan. Kos di sini dan di bawah sebanyak RM10,000 bagi setiap kes rayuan kepada 630 Perayu (tertakluk kepada bayaran alokatur). Keputusan Hakim Mahkamah Tinggi diketepikan.” [59] With respect, the minutes do not make it clear. In the circumstances, this Court took grateful guidance from the very recent decision of the Federal 635 Court on the effect of CMS minutes and judgments given ex tempore in Sathya Vello v Public Prosecutor [2022] MLJU 817 where His Lordship, Abdul Rahman Sebli FCJ said at paragraphs 51 and 54 which, given their importance, especially to this case, I set them out in extenso: 640 “[51] A judgment delivered ex tempore as recorded in the CMS does not constitute the written grounds of the court. This must however be distinguished from brief grounds of judgment written under the hand of the presiding judge which contain sufficiently detailed reasoning to indicate that the court had sufficiently applied its mind to all relevant 22 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 645 issues of law and fact before the court, particularly where the decision has profound consequences. [52] In Vishnu Telagan v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 9 CLJ 177 this court made the following 650 observations at paragraph [40]: “[40] The respondents argued that the Federal Court there had heard a similar argument on this point and refused the detainee a writ of habeas corpus. As at the date of our decision in this 655 appeal, no written grounds had been delivered in respect of that case and so we are therefore unable to glean any reasons why such a decision was made. Therefore, we did not see how the said judgment lent any support to the respondent’s case. Surely, in arriving at our decision, we had to consider and apply 660 the law according to the facts and circumstances of this case.” [53] The case referred to in paragraph [40] of the above passage is Kamal Azam Norddin v Timbalan Menteri Dalam Negeri & Ors [Criminal Appeal No: 05(HC)-133-05-2018(B)]. In that case, a five 665 member bench of this court chaired by Richard Malanjum CJ dismissed the appellant’s appeal against the decision of the High Court to dismiss his application for habeas corpus without giving any reason, written or otherwise after hearing arguments by the parties. Like the case of Caniete Robelyn Masterelo, no written judgment is 670 available to date. We have therefore missed the opportunity to know the reason or reasons why this court in that case unanimously dismissed the appellant’s application for habeas corpus. [54] In Roberts Petroleum Ltd v Kenny Ltd [1983] 2 AC 192, 201, this is what Lord Diplock said of ex tempore judgments: 675 23 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “...Transcripts of the shorthand notes of oral judgments delivered since April 1951 by members of the Court of Appeal, nearly all ex tempore, have been preserved at the Royal Courts of Justice, formerly in the Bar Library but since 1978 in the 680 Supreme Court Library. For much of this period this course has been followed as respects all judgments of the civil division of the Court of Appeal, though recently some degree of selectivity has been adopted as to judgments to be indexed and incorporated in the bound volumes. Unreported judgments 685 which have been delivered since the beginning of 1980 are now also included in the computerized data base known as Lexis and this has facilitated reference to them. Two such transcripts are referred to in the judgment of the Court of Appeal in the instant case. ...For my part, I gained no 690 assistance from perusal of these transcripts...” [60] In the circumstances, and with the greatest of respect, I am of the considered view that this Court is not bound by the principle of res judicata and the doctrine of stare decisis to hold that the two issues of whether the 695 Plaintiff had demolished the Access Road and had not constructed Platform D resulting in loss and damage to the Defendant are no longer live issues. They are, in fact and in law, triable issues which lay the foundation for the Defendant’s counterclaim in both contract and tort. 700 [61] Of course, I make no finding at this stage, that the Plaintiff had demolished the Access Road from Point B to Point D and that it had not readied the Platform D which the Defendant claimed the Plaintiff was obliged to do. However, one thing is clear, as the Plaintiff had denied these assertions of wrongdoing, these alleged wrongdoings could not have been 705 part of the settlement which led to the admission for which the Plaintiff had 24 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal obtained summary judgment, In any event, there would be a substantial miscarriage of justice if a party is not held accountable if it had destroyed or rendered useless the works, in whole or in part, for which it is being paid. 710 Suit 104 [62] In this action, the claim by the Plaintiff is similarly a claim for works carried out, but at the Defendant’s quarry site at Lots 302283 and 302284, Mukim Sungai Raya, Daerah Kinta, Perak. 715 [63] Just as in Suit 103, the Plaintiff placed reliance upon a letter by the Defendant dated 30 November 2017 proposing to pay the Plaintiff a sum of RM2,024,840.31 by way of 60 monthly instalments of RM33,747.34 commencing November 2017. 720 [64] By a letter dated 12 December 2017, the Plaintiff accepted the Defendant’s proposal subject to each monthly payment being made before the end of each month and in the event of any default, the full amount due is to be paid forthwith. 725 [65] The Plaintiff claimed that the Defendant only paid up to February 2018 leaving a balance owing of RM1,889,850.95 due and owing and the Plaintiff sued for this sum together with interest thereon at 5% p.a. from the date of the filing of the Writ (6 August 2018) until full settlement and costs. 730 [66] In its defence, the Defendant pleaded that: 25 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal i) it appointed the Plaintiff vide a Development Agreement dated 1 June 2015 as a contractor to construct an access road (“Access 735 Road”) on its quarry located at Pajakan Negeri 214917, Lot 302283, Mukim Sungai Raya (“Defendant’s Quarry”); ii) the Access Road was to be constructed with a maximum gradient of 1:7 feet from the foothills to the hilltop of the Defendant’s Quarry; 740 iii) the Plaintiff was to supply all the necessary expertise and manpower including the blasting equipment and explosives; iv) the works were to be completed in seven months commencing 1 June 2016 with the Plaintiff undertaking to complete the Access Road up to a height of 225 meters, from the sea level to 745 the hilltop, of the Defendant’s Quarry; v) thereafter, by an agreement dated 29 February 2016, the Plaintiff was engaged to produce limestone on Lots 302283 and 302284 for seven months commencing 1 March 2016; vi) the Plaintiff was to achieve production of 30,000 metric tons a 750 month for the first month and an average of 40,000 metric tons for months two to seven; vii) the agreement dated 29 February 2016 was extended to 31 December 2016 and subsequently to 31 August 2017; viii) however, the Plaintiff failed to build the Access Road as 755 specified as well as to achieve the production targets; ix) it was coerced to propose payments by a letter dated 30 November 2017 as the Plaintiff threatened to stop works and if works were to cease, the Defendant would suffer difficulties and losses; 760 x) it admitted to having paid RM101,242.02; and xi) the proposal for payments was made without knowing that the Plaintiff had breached its obligations under the Development 26 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Agreement dated 1 June 2016 and the [limestone production] agreement dated 29 February 2016. 765 [67] The Defendant counterclaimed for: i) breach of contract; ii) damages in having to make good the Access Road to a gradient of 1:7 feet because the Plaintiff had constructed it to only a 770 gradient of 1:2 feet and this was discovered only in August 2018; iii) losses arising from the Plaintiff’s failure to build the Access Road from the foothills to the hilltop of the Defendant’s Quarry and failure to achieve the production target; iv) a sum of RM1,179,675.50 being the value of the shortfall in 775 production; v) damages to be assessed and interest at 5% p.a. on RM1,179, 675.50 and damages from the date of the filing of the Writ (6 August 2018) until full settlement and costs. 780 Application for Summary Judgment [68] On 1 April 2019, the Plaintiff filed its application for summary judgment (Enclosure 16) for the sum of RM1,889,850.95 together with interest thereon at 5% p.a. from the date of judgment to the date of full settlement and costs. 785 [69] The summary judgment application was grounded on the same grounds as that in Suit 103, i.e. that Defendant did not have any meritorious defence as it had admitted the debt and proposed payment with the Plaintiff having accepted the proposal and the Defendant having defaulted on 27 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 790 payment. The Plaintiff asserted that the Defendant’s defence is an afterthought. [70] The application for summary judgment in this Suit 104 was heard together with the application for summary judgment in Suit 103 and His 795 Lordship Mohd Radzi Bin Harun JC (now J) had on 18 February 2020 dismissed both these applications and handed down one set of grounds of judgment for both the applications, see Gasing Potensi Construction Sdn Bhd v. Hyper Act Marketing Sdn Bhd [2020] 1 LNS 545. 800 [71] Save for a slight variation on the nature of the dispute and the quantum involved, the narrative for Suit 104 is similar to that for Suit 103, particularly with reference to the appeal by the Plaintiff to the Court of Appeal. [72] In summary, the Plaintiff succeeded in its appeal at the Court of Appeal 805 with summary judgment ordered to be entered in its favour on 27 July 2021. Following thereto, the Plaintiff filed its application to strike out the counterclaim (Enclosure 43). [73] Similar arguments were canvassed for the striking out application in 810 this Suit 104, and by reason thereto, I do not propose to repeat what has been considered and decided in Suit 103 above. The parties have expressed agreement that the decision given shall be equally applicable to both the applications for striking out. 815 28 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Litigation by Instalments [74] Another fact which sits heavily on my mind is that both these actions 820 were commenced in 2018 and when both the applications for summary judgment were filed, the Defendants in both the actions have each already filed their respective defences and counterclaims. However, the Plaintiff in both the actions had sought for summary judgment only for their respective claims without moving the Court to strike out the defence and counterclaim 825 which led me to conclude that the Plaintiff itself was satisfied that the two counterclaims were triable and, thus, the Plaintiff had carved out its claims and pursued its claims for summary judgment purely on the admissions made by the respective Defendants. 830 [75] If the Plaintiff was indeed convinced that the admissions covered the matters raised in the counterclaim, surely, the Plaintiff would have and ought to have moved for summary judgment on both its claims and at the same time applied to strike out the counterclaims. It did not. This fortifies my view that the matters raised in the counterclaims of the Defendants are separate 835 from the ground upon which the Plaintiff sought for summary judgment. [76] In addition, with respect, in my considered view, to litigate in this manner by instalments should be discouraged. In Lim Lek Yan v Yayasan Melaka [2013] 1 CLJ 1081, Lee Swee Seng JC (now JCA) said at para [54]: 840 “The rules frown upon litigation by instalments” 29 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 845 Conclusion [77] In the upshot, I had on 10 May 2022, dismissed both the striking out applications namely, Enclosure 44 for Suit 103 and Enclosure 43 for Suit 104 with costs of RM20,000 subject to allocatur for each application and directed 850 the parties to take pre-trial directions from the learned Senior Assistant Registrar to have the consolidated action set down for trial. 855 Dated: 3 June 2022 SuTiangJoo 860 ( SU TIANG JOO ) Judicial Commissioner High Court in Malaya Ipoh, Perak 865 For Plaintiff : Mohamad Nizam bin Mohamad Salleh [Messrs Maxwell Kenion Cowdy & Jones] For Defendant : Chin Yin Choi [Messrs The Law Office of Wong & Ang] 30 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 870 [Notice: This Grounds of Decision is subject to official editorial revision] 875 Headnotes Res judicata and stare decisis – appeal by plaintiff for summary judgment succeeded in Court of Appeal on the ground that debt has been admitted and that the counterclaim could be separately pursued but after succeeding 880 in its appeal in the Court of Appeal, the plaintiff applied to have counterclaim dismissed on ground of res judicata and stare decisis that counterclaim is based upon defence which has been held by the CA to be non-triable; no grounds of judgment from CA, whether plaintiff can approbate and reprobate before different Courts, effect of CMS minutes of the CA proceedings, 885 whether res judicata and stare decisis apply and effect of litigating by instalments Striking out – defendant counterclaimed against plaintiff for destroying the access road that the plaintiff was engaged to build and for which the plaintiff 890 sued for works done, triable issue to be explored at trial as there will be a substantial miscarriage of justice if plaintiff is not held accountable if it had destroyed or rendered useless the works, in whole or in part, for which it is being engaged and paid 31 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 S/N yLbBZEOwAEi8aM6AKZtxDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal