LIN KAI LAM (NO. K/P : 570928-10-5219) LIN CZE - YI (NO. K/P :600728-10-5788) COLIN ANDREW PEREIRA (NO. K/P : 670728-10-6223)

LIN KAI LAM (NO. K/P : 570928-10-5219) LIN CZE - YI (NO. K/P :600728-10-5788) COLIN ANDREW PEREIRA (NO. K/P : 670728-10-6223)

The court refused to strike out the plaintiffs' writ because the causes of action, pleadings, facts and evidence in the Session Court fee recovery action and the present professional negligence action are different; res judicata and abuse of process were not established on the material before the court; separate proceedings for fee recovery and negligence were justified, so the application under Order 18 Rule 19(1)(b) & (d) failed.

Citation
WA-22NCVC-387-06/2018 (Mahkamah Tinggi)
Parties
Appellant (defendant in High Court): Colin Andrew Pereira; Respondent (plaintiff in High Court): Lim Kai Lam; Respondent (plaintiff in High Court): Wong Sou Fuan
Court
High Court
Jurisdiction
Malaysia
Judgment Date
25 October 2019
Case Number
WA-22NCVC-387-06/2018 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal Arising From Application to Strike Out (professional Negligence) / Application Under Order 18 Rule 19(1)(b) & (d) Rules of Court 2012 (contention 14) Dismissed at High Court; Appeal Filed to Court of Appeal
Outcome
Application to strike out the Writ and Statement of Claim dismissed
Legal Topics
Strike Out Application, Res Judicata, Abuse of Process, Limitation, Pleading Sufficiency, Order 18 Rule 19
Source Language
Malay/English
Civil Procedure Professional Negligence Legal Malpractice Abuse of Process Res Judicata Costs Strike Out Application Limitation +2 more

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Parties

Colin Andrew Pereira

Appellant (defendant in High Court)

Lim Kai Lam

Respondent (plaintiff in High Court)

Wong Sou Fuan

Respondent (plaintiff in High Court)

Procedural Posture

Civil Appeal Arising From Application to Strike Out (professional Negligence) / Application Under Order 18 Rule 19(1)(b) & (d) Rules of Court 2012 (contention 14) Dismissed at High Court; Appeal Filed to Court of Appeal

Legal Issues

  1. 1 Whether the writ and statement of claim should be struck out as frivolous, vexatious or an abuse of process under Order 18 Rule 19(1)(b) & (d) Rules of Court 2012
  2. 2 Whether the plaintiffs' negligence claim is barred by res judicata or should have been raised in earlier session court proceedings for recovery of fees
  3. 3 Whether the causes of action, pleadings, facts and evidence in the fee recovery action and the professional negligence action are the same

Ratio Decidendi

The court refused to strike out the plaintiffs' writ because the causes of action, pleadings, facts and evidence in the Session Court fee recovery action and the present professional negligence action are different; res judicata and abuse of process were not established on the material before the court; separate proceedings for fee recovery and negligence were justified, so the application under Order 18 Rule 19(1)(b) & (d) failed.

Court Disposition

Application to strike out the Writ and Statement of Claim dismissed

Orders

  • Application under Order 18 Rule 19(1)(b) & (d) dismissed
  • Costs of RM2,000.00 awarded to Plaintiffs, subject to taxation