TWIN PAVILION DEVELOPMENT SDN BHD 1. ) TEO CHOON MING 2. ) TEO WAH MING 3. ) TEO LEE MING 4. ) TEO SOON MING 5. ) TEO HEE MING 6. ) TEO CHEE MING

W-02(IM)(NCvC)-1648-09/2022 Kand. 35 30/05/2023 07:52:03 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL W-02(IM)(NCVC)-1648-09/2022 ANTARA TWIN PAVILION DEVELOPMENT SDN. BHD. … PERAYU (NO SYARIKAT :889470-W) DAN 1. TEO CHOON MING (NO. K/P: 670216-12-5527) 2. TEO WAH MING (NO. K/P: 690322-12-5203) 3. TEO LEE MING (NO K/P: 700601-12-5288) 4. TEO SOON MING (NO K/P: 710630-12-5139) 5. TEO HEE MING (NO K/P: 740220-12-5344) 6. TEO CHEE MING (NO. K/P: 750601-12-5347) … RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Guaman Sivil No. WA-22NCVC-223-04/2022 Antara 1. Teo Choon Ming (No. K/P: 670216-12-5527) 2. Teo Wah Ming (No. K/P: 690322-12-5203) 3. Teo Lee Ming (No K/P: 700601-12-5288) 1 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4. Teo Soon Ming (No K/P: 710630-12-5139) 5. Teo Hee Ming (No K/P: 740220-12-5344) 6. Teo Chee Ming (No. K/P: 750601-12-5347) … Plaintif-Plaintif Dan Twin Pavilion Development Sdn Bhd … Defendan] (No Syarikat :889470-W) CORAM ABDUL KARIM BIN ABDUL JALIL, JCA SEE MEE CHUN, JCA COLLIN LAWRENCE SEQUERAH, JCA JUDGMENT OF THE COURT Introduction [1] The Respondents as the Plaintiffs had filed a claim (current claim) against the Appellant as the Defendant for inter alia liquidated and ascertained damages (LAD) and various declarations. The Appellant had filed an application to strike out the Respondents’ claim pursuant to O.18 r.19(1)(b) or (d) and/or O.92 r.4 of the Rules of Court 2012 (RC 2012) on the grounds of res judicata and abuse of court process. 2 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal [2] The High Court (HC) had dismissed the application which led to this appeal. We allowed the appeal and we now give our reasons. Parties [3] The Respondents are the purchasers of a property Lot E-17-10 (the unit) which was purchased from the Appellant, the developer. The sales and purchase agreement dated 20-1-2015 (S&P) was entered into. Previous claims [4] Prior to the filing of the current claim, it is not disputed there were 3 claims (previous claims) filed by the 4th Respondent on behalf of the other Respondents, in respect of the same unit. These claims were filed for the repayment of interest, known as Developer Interest Bearing Scheme (DIBS) during the construction of the unit. DIBS is a scheme which is accorded to purchasers where the Appellant as the developer pays the interest on the purchasers financing during the period of construction of the unit purchased. [5] The previous claims are as follows: No. Case No. Subject Matter 1. WA-A77-278-12/2017 DIBS repayment claim from April 1st Suit to June 2017 (RM5,000) 2. WA-A77-98-06/2019 DIBS Repayment claim from July 2nd Suit to August 2017 (RM3,899.6) 3. WA-A77-210-10/2019 DIBS repayment claim from 3rd Suit November to December 2017 (RM3,716.85) 3 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal [6] Based on these previous claims, the Appellant filed its striking out application HC decision [7] The HC dismissed the striking out application as the current claim was different from the previous claims. This was because the current claim involved various claims for damages and declarations which were not raised and/or claimed or decided in the previous claims. It was not a plain and obvious case warranting striking out and res judicata did not apply. [8] Below are the relevant paragraphs from the Grounds of Judgment (GOJ), encl. 10/21-22: “[15] Berdasarkan kepada hujahan kedua-dua pihak, saya berpuas hati dan mendapati bahawa tindakan ini adalah satu tindakan yang berbeza daripada Tindakan terdahulu Plaintif-plaintif di Mahkamah Majistret. Ini kerana tindakan ini melibatkan tuntutan gantirugi jumlah tertentu dan deklarasi berkenaan hartanah yang tidak pernah dibangkitkan dan/atau dituntut atau diputuskan di dalam Tindakan terdahulu. [16] Mengambil kira isu di atas, saya berpendapat bahawa kes ini bukanlah kes yang jelas dan nyata di mana Aturan 18 Kaedah 19 KKM 2012 terpakai. Setelah meneliti dan mempertimbangkan hujahan kedua-dua pihak, saya mendapati tuntutuan Plaintif-Plaintif bukanlah tindakan yang boleh dibatalkan dan prinsip “res judicata” tidak terpakai kerana melibatkan kausa tindakan yang berbeza dan tidak sama dengan Tindakan terdahulu Plaintif-Plaintif di Mahkamah Majistret.” Submissions of the parties [9] The Appellant’s submissions are essentially that the issues in the current suit could have and should have been ventilated in the previous suits, from at least the 2nd suit. The consideration should not be that the 4 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal issues were never ventilated before. The current claim is also an abuse of the court process for being brought on a piecemeal basis where it is not allowed by the principles of res judicata. [10] The Respondents’ submissions are that there is a failure to satisfy the requirements for striking out based on res judicata and abuse of court process. The current suit is completely different from the previous suits. The current claim is for remedies for breach of the S&P whereas the previous claims are for DIBS. The causes of action are different. Further, the Respondents would not have been able to the raise the breach of contract in the Magistrates’ Court, in what was essentially a small claims court. This was also not a claim where there was no reasonable cause of action or that it was frivolous or vexatious. Our decision Res judicata [11] We have earlier set out the table of the previous claims and noted that it is not disputed the current claim also involves the same unit. The previous claims were for the DIBS. [12] As per paragraph 20 of the Statement of Claim (SOC), the current claim is for the following: i. LAD from the Appellant for an amount of RM381,239.23 from 20- 1-2018 until 20-4-2022; 5 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal ii. LAD from the Appellant amounting to RM245.64 (per day) from 21.04.2022 until the date of actual delivery of vacant possession of the said property with the issuance of “CCC”; iii. Declaration that the Appellant be required to apply for connection of water and electricity to the said property from the relevant authority prior to delivery of vacant possession; iv. Declaration that the Appellant be required to apply for the issuance of “CPSP” within 3 months after the issuance of “CCC”; and v. Declaration that the Appellant be required to apply for subdivision of the building 1 month after the issuance of “CPSP’ so as to obtain strata title for the said property. [13] From the above, we recognize that the current claim is different from the previous claims. However, res judicata can apply in instances to issues which might have been and which were not brought forward either deliberately or inadvertently. This has been clearly set out in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1985] 3 MLJ 189, which we will do well to refer to. [14] The principle is this and is evident from pages 197,198 and 200: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. 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 such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate 6 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal 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 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. … The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v Henderson (1843) 3 Hare 100 at p 115 which is: 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. … 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 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 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 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.” [15] Of significance is that res judicata can apply where the issues were not raised in the previous claims but might have been and were not. From the facts as presented to us, by letter dated 1-6-2018 (encl.5/119), vacant possession of the unit was delivered. The Respondents had in fact tenanted the unit to one BW Bangsar Sdn Bhd (BWB) as evident from encl. 5/121. This shows an order of the Magistrate’s court dated 16-12- 7 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2019 where the 4th Respondent’s claim against BWB was allowed. The issue that this was a guarantee return of rental scheme and that BWB was part of the Appellant’s same group, does not negate the fact of tenancy. [16] Whatever claim against the Appellant would have crystallized by 1- 6-2018 and could have been included in the 2nd suit filed in July 2019 or even included in the 3rd suit filed in October 2019. [17] This is best illustrated by a timeline chart helpfully prepared by the Appellant as below: [18] To underscore the point that res judicata operates as an estoppel against the Respondent from bringing a subsequent proceeding against the Appellant when they could have and should have done so in the 2nd or 3rd suit, we refer to Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180 where at page 211 this was said: 8 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal “[80] The thrust of the doctrine is to prevent a party from re-litigating an issue or a defence which has already been determined (known as cause of action estoppel or issue estoppel) or which could have previously been litigated. The latter principle had been established in the case of Henderson v Henderson (1843) 3 Hare 100) and ensured, as a matter of important public policy, the finality of judgments so as to prevent a party from being vexed twice and a waste of judicial resources. As it is not always easy to identify where one concept begins and another ends, Lord Sumption (in delivering the unanimous judgment of the Supreme Court) in the Virgin Atlantic case gave some clarification to the term with identifying the six principles which make up the doctrine, which are: … (d) a party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel); (e) a party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the ‘Henderson v Henderson principle’); and; (f) there is a general procedural rule against abusive proceedings.” [19] We note that Asia Commercial Finance and Orchard Circle both followed the principle in Henderson v Henderson, namely “which should and could have been dealt in earlier proceedings”. It is not necessary that the issues must have been raised or decided in the earlier proceedings. This is regardless that the reliefs claimed are different. [20] It was contended that Orchard Circle involved several proceedings re-litigating on the same issue that had already been determined in different courts. Be that as it may, this does not detract from the Henderson principle alluded to earlier. [21] On the contention that the Respondents would not be able to raise the issues of the current claim in the previous claims, this was an election made by them. As was said in Asia Commercial Finance at page 200 “these are issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence”. 9 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal [22] The Respondents had referred to a High Court case of Ong Yew Teik v Kamal YP Tan & Ors [2022] MLRHU 1185 and a passage which referred to Virgin Atlantic Airways Ltd v Zodiac Seats [2013] UKSC 46 which in turn referred to a passage in Vervaeke v Smith 1 AC 145,157. The substantive passage in Ong Yew Teik is paragraph 13 and the sub- passage is paragraph 24: “[13] The doctrine of Res Judicata is now seen as a substantive rule intended to ensure that there is a finality to litigation and that parties should not be vexed twice for the same subject matter. I refer to the decision of Lord Sumption SCJ in Virgin Atlantic Airways Ltd v. Zodiac Seats [2013] UKSC 46: "24. …Lord Bingham took up the earlier suggestion of Lord Hailsham of St Marylebone LC in Vervaeke v. Smith [1983] 1 AC 145, 157 that that the principle in Henderson v. Henderson was "both a rule of public policy and an application of the law of res judicata". He expressed his own view of the relationship between the two at p 31 as follows: “... It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before" … ” [23] Although that case may have referred to a passage within a passage which advocated a not too dogmatic approach, it is most telling that ultimately in Ong Yew Teik, the Court did the opposite and stated this: “[30] Given the above, I find that at the very least relating to the tort of abuse of process and the interrelated fraud alleged against the defendants, the claim is barred by the doctrine of Res Judicata. The plaintiff should have and could have instituted the claims against the defendants for the alleged tort of abuse of process in the same 1333 Suit.” 10 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal [24] We find that at the heart of res judicata as enunciated in Asia Commercial Finance and Orchard Circle lies the finality of litigation and the prevention of the re-litigation of an issue which in the circumstances of our case, could have been previously raised. [25] We add too the Respondents should not be allowed to bring an action on a piecemeal basis. In Osman Daud (trading under the name and style of RSZ Trading v Asal Bina Sdn Bhd [2010] 9 MLJ 840, it was said at page 850: “[22] Without special circumstances, the action estoppel rule applies to preclude the plaintiff here from pursuing the claim against the defendant. Contrary to the plaintiff averment, I hold that the plaintiff has no right to bring an action in installments against the defendant.” [26] To conclude on this point, we find that the Respondents’ claim is barred by the principles of res judicata. Striking out under O.18 r.19(1)(b) or (d) [27] The striking out was premised on O.18 r.19(1)(b) or (d) RC 2012 which are the grounds of frivolous or vexatious and abuse of the process of the court. We find that as the Respondents’ claim is barred by the principles of res judicata it warrants striking out on the aforesaid grounds. [28] As per Bandar Builder Sdn Bhd v UMBC Bhd [1993] 3 MLJ 36, this is a plain and obvious case where recourse can be had to striking out. 11 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal Conclusion [29] For the above reasons we find merit in the appeal. We allow the appeal and set aside the order of the HC. We award RM3,000.00 costs to the Appellant subject to allocatur. (SEE MEE CHUN) Judge Court of Appeal Malaysia Dated: 29-5-2023 For the Appellant: S Kanaga Sundran (Kevin Siaw Jing Tham with him) Messrs Raja Seelan & Associates Kuala Lumpur For the Respondents: Teo Soon Ming, (the 4th Respondent in person) 12 S/N iq1Hjv2vGUC67dOUVvTtCA **Note : Serial number will be used to verify the originality of this document via eFILING portal