PACIFIC ORIENT INSURANCE CO BERHAD CHEW POH HOON

PACIFIC ORIENT INSURANCE CO BERHAD CHEW POH HOON

The appeal is dismissed because it was not plain and obvious that the plaintiff’s recovery action is unsustainable; the declaratory order between insurer and insured did not finally adjudicate the merits of the plaintiff’s recovery claim nor bind her as a third party, triable issues remain (including s96(3) notice and policy enforceability) and the matter must be determined at trial rather than by striking out on res judicata/issue estoppel grounds.

Citation
PA-12BNCC-2-06/2020 (Mahkamah Tinggi)
Parties
Appellant / Defendant: Pacific & Orient Insurance Co Berhad; Respondent / Plaintiff: Chew Poh Hoon (Wife to Goh Soon Seng, Deceased)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 January 2022
Case Number
PA-12BNCC-2-06/2020 (Mahkamah Tinggi)
Procedural Posture
Appeal Against Sessions Court Decision on Strike Out Application Arising From Recovery Suit to Enforce Road Accident Judgment / High Court Appellate Judgment (dismissal of Appeal)
Outcome
Appeal dismissed
Legal Topics
Res Judicata, Issue Estoppel, Abuse of Process, Declaratory Relief, Section 96 Road Transport Act 1987, Strike Out, Summary Judgment
Source Language
Malay/English
Civil Procedure Insurance Law Tort (personal Injury) Road Transport Law Res Judicata Issue Estoppel Abuse of Process Declaratory Relief +3 more

Case Brief

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Parties

Pacific & Orient Insurance Co Berhad

Appellant / Defendant

Chew Poh Hoon (Wife to Goh Soon Seng, Deceased)

Respondent / Plaintiff

Procedural Posture

Appeal Against Sessions Court Decision on Strike Out Application Arising From Recovery Suit to Enforce Road Accident Judgment / High Court Appellate Judgment (dismissal of Appeal)

Legal Issues

  1. 1 Whether the plaintiff’s recovery action is barred by res judicata or issue estoppel due to a prior declaratory order
  2. 2 Whether a declaratory order between insurer and insured binds a third party judgment creditor
  3. 3 Whether failure to give notice under section 96(3) RTA invalidates insurer’s declaratory order as to policy enforceability

Ratio Decidendi

The appeal is dismissed because it was not plain and obvious that the plaintiff’s recovery action is unsustainable; the declaratory order between insurer and insured did not finally adjudicate the merits of the plaintiff’s recovery claim nor bind her as a third party, triable issues remain (including s96(3) notice and policy enforceability) and the matter must be determined at trial rather than by striking out on res judicata/issue estoppel grounds.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs in the cause