1. ) Ten Thiam Choy 2. ) Metro Setia Development Sdn Bhd 1. ) Lim Lee Took 2. ) Dato' Yip Kum Fook

1. ) Ten Thiam Choy 2. ) Metro Setia Development Sdn Bhd 1. ) Lim Lee Took 2. ) Dato' Yip Kum Fook

The court struck out the plaintiffs' impeachment suit because the plaintiffs failed to plead or adduce particulars of actual, positive fraud as required by s44 Evidence Act 1950; the contested documents were in the plaintiffs' possession or had been admitted or categorized at trial (Part B/Part C) and plaintiffs had...

Source-derived case information.

Citation
WA-22NCC-174-03/2023 (Mahkamah Tinggi)
Parties
Plaintiff: TEN THIAM CHOY; Plaintiff: METRO SETIA DEVELOPMENT SDN BHD; Defendant: LIM LEE TOOK; Defendant: DATO' YIP KUM FOOK
Court
High Court
Jurisdiction
Malaysia
Judgment Date
20 November 2023
Case Number
WA-22NCC-174-03/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Suit Impeachment of Prior Judgment (commercial Division) / Strike Out Application Under Order 18 R 19(1) Heard and Granted; Judgment Delivered 22/12/2023
Outcome
Defendants' strike out application granted; plaintiffs' impeachment suit struck out as frivolous and an abuse of process
Legal Topics
Impeachment of Judgment, Section 44 Evidence Act 1950, Actual Positive Fraud, Res Judicata / Issue Estoppel, Order 18 Rule 19 Strike Out, Part B/part C Trial Documents, Minority Oppression
Civil Procedure Evidence Company Law (shareholder Oppression) Equity and Trusts Appellate Procedure Impeachment of Judgment Section 44 Evidence Act 1950 Actual Positive Fraud +4 more

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Parties

TEN THIAM CHOY

Plaintiff

METRO SETIA DEVELOPMENT SDN BHD

Plaintiff

LIM LEE TOOK

Defendant

DATO' YIP KUM FOOK

Defendant

Procedural Posture

Civil Suit Impeachment of Prior Judgment (commercial Division) / Strike Out Application Under Order 18 R 19(1) Heard and Granted; Judgment Delivered 22/12/2023

Legal Issues

  1. 1 Whether the 2019 High Court judgment can be impeached under s44 Evidence Act 1950 for alleged fraudulent alteration of trial documents
  2. 2 Whether the plaintiffs pleaded sufficient particulars of 'actual positive fraud' as required by authority to impeach a judgment
  3. 3 Whether the claim is frivolous, vexatious or an abuse of process and therefore plainly and obviously unsustainable such that it should be struck out under Order 18 r 19(1)

Ratio Decidendi

The court struck out the plaintiffs' impeachment suit because the plaintiffs failed to plead or adduce particulars of actual, positive fraud as required by s44 Evidence Act 1950; the contested documents were in the plaintiffs' possession or had been admitted or categorized at trial (Part B/Part C) and plaintiffs had opportunities to raise the issues in Suit 491; the claims amounted to an abuse of process, were plainly and obviously unsustainable and res judicata/issue estoppel barred re-litigation; defendants' strike out application under Order 18 r19(1) was therefore granted with costs.

Court Disposition

Defendants' strike out application granted; plaintiffs' impeachment suit struck out as frivolous and an abuse of process

Orders

  • Defendants' application (Enclosure 26) to strike out the plaintiffs' action under Order 18 r 19(1) of the Rules of Court 2012 granted
  • Plaintiffs' action struck out as plainly and obviously unsustainable, frivolous and vexatious