WONG YEE MEI @ CYNTHIA YVONNE WONG YEE WOON

WA-22NCvC-676-10/2020 Kand. 62 20/11/2022 23:36:52 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN SIVIL) GUAMAN NO. WA-22NCvC-676-10/2020 ANTARA WONG YEE MEI @ CYNTHIA (No. K/P: 600812-10-6150) [sebagai Pentadbir Harta Pusaka Wong Poi Fong @ Wong Swee Fong, si mati] …PLAINTIF DAN YVONNE WONG YEE WOON (K/P No. 630405-10-8412) …DEFENDAN GROUNDS OF JUDGMENT (Application pursuant to Order 14A and/or Order 33 Rule 2 of the Rules of Court 2012) Introduction [1] The Defendant filed an application (‘the Application’) pursuant to Order 14A and Order 33 Rule 2 of the Rules of Court (‘ROC 2012’) praying for an order to determine some preliminary issues before the full trial of this action (‘this Action’). Facts of the Case [2] The late Wong Poi Fong @ Wong Swee Fong (‘WPF’) was the father of the Plaintiff, the Defendant, Ellen Yee Lin Leyer and Eric Wong Yee Leong. WPF died on 09.09.2004 and left a will, wherein WPF’s wife, Chan Siew Tow was appointed as the sole executrix for the said will. However, up until her death on 11.10.2006, no grant of probate had ever been issued. Consequently, the Plaintiff was appointed as the administrator for WPF’s estate (‘the Said Estate’) via a letter of administration on 16.12.2013 under the Originating Summons No. 31NCvC-139-11/2013. S/N j1RfsUTfG0SkyDbN8S2xYA 1 document via eFILING portal **Note : Serial number will be used to verify the originality of this [3] During his lifetime, WPF was one of the shareholders of Pekeliling Services Station Sdn Bhd (‘PSSB’). PSSB was granted with a Retailer License Agreement to operate a Shell Petrol Station at Jalan Perapat 27/95 Seksyen 27, Shah Alam, Selangor Darul (‘the Shell Station’). However, on 25.06.2008, the Retailer License Agreement was terminated and a separate license was issued to a business enterprise called ‘YW Global’ on 30.06.2008. The Defendant is the sole proprietor of YW Global. [4] Consequently, the Plaintiff as the administrator initiated a derivative action against the Defendant and two others via a civil action through case No. WA-22NCvC-136-04/2016 (‘Suit No. 136’) for the Shell Station and claiming that it was one of the few legacies left under the Said Estate. The High Court in Suit No. 136 dismissed the Plaintiff’s action and held that PSSB no longer has the rights over the Shell Station since its license was already terminated and transferred to YW Global. The Plaintiff’s appeal on this was later dismissed by the Court of Appeal. [5] Other than the shares under PBBS, WPF was also one of the original partners of the firm ‘PJ Wong’ in which WPF held 40% of the partnership and the remaining 60% was owned by one Lim Chin Beng (‘LCB’). Nonetheless, the partnership was later dissolved after the death of WPF and thereafter new partnership was formed by all the beneficiaries in their personal capacity and LCB. [6] The Defendant then filed an Originating Summons against the Plaintiff via Originating Summons No. WA-24NCvC-642-05/2020 (‘OS No. 642’) to remove the Plaintiff from his role as the administrator of the Said Estate. As a result, the Plaintiff was removed and the High Court in OS S/N j1RfsUTfG0SkyDbN8S2xYA 2 document via eFILING portal **Note : Serial number will be used to verify the originality of this No. 642 has appointed Amanah Raya Berhad (‘Amanah Raya’) as the new administrator for the Said Estate. [7] Despite of the decision in OS No. 642, the Plaintiff initiated and proceeded with this Action against the Defendant on behalf of the Said Estate, praying for, among others the following reliefs: (i) To furnish the Plaintiff with all the Profit and Loss Accounts of PJ(Wong), PJ(Wong)’s accounts and the Bank Statements of PJ(Wong)’s account commencing 2004 until the Plaintiff is registered as the licence holder of PJ(Wong); (ii) To pay to the Plaintiff the sum of RM44,100.00 (being 49% held by the Said Estate) from the sum of RM90,000.00 held in the bank account of PSSB; (iii) to pay to the Plaintiff the sum of RM915,785.00 being 40% share of the sum due and owing by the Defendant from PJ(Wong) to the Said Estate as at 31.12.2019 and still continuing; (iv) To pay to the Plaintiff the sum of RM80,480.00 which the Defendant had unlawfully paid to herself as salary; and (v) To pay to the Plaintiff the sum of RM 4,097.20 being the contribution to EPF which was wrongfully paid by the Defendant in her name. [8] Before the commencement of the trial, the Defendant filed the Application for this Court to determine the following issues: S/N j1RfsUTfG0SkyDbN8S2xYA 3 document via eFILING portal **Note : Serial number will be used to verify the originality of this i. Whether the Plaintiff as the Administrator of the Said Estate has the locus standi to file the present claim against the Defendant in respect of reliefs relating to PJ Wong as pleaded in paragraphs 24.1 to 24.8 of the Reamended Statement of Claim in Enclosure 18 (‘Reamended Statement of Claim’); and ii. Whether the Plaintiff is entitled to claim the sum of RM44,100.00 in the bank account of PSSB as pleaded in paragraph 24.1 (ii) of the Reamended Statement of Claim. Submission by the Defendant [9] Regarding the 1st issue, the Defendant submitted that the Plaintiff is no longer the administrator for Said Estate. Thus, the Plaintiff has no locus standi to initiate this Action against the Defendant. The Defendant also argued that the Plaintiff was already removed as the administrator and the Said Estate is to be administrated by Amanah Raya based on the decision in OS No. 642. [10] The Defendant further contended that the Plaintiff should have asked for a sanction or consent from Amanah Raya if the Plaintiff wanted to continue with this Action. [11] Moreover, the Defendant submitted that the reliefs prayed by the Plaintiff are not attainable as they were related to the Said Estate. The Defendant further argued that WPF is no longer a partner in PJ Wong. Hence, the Said Estate has nothing to do with PJ Wong. The counsel for the Defendant relied on section 35 of the Partnership Act 1961 on this. S/N j1RfsUTfG0SkyDbN8S2xYA 4 document via eFILING portal **Note : Serial number will be used to verify the originality of this [12] For the 2nd issue, the Defendant submitted that this Action should be struck out by the operation of the doctrine of res judicata and/or estoppel. The Defendant argued that the Plaintiff’s relief in her Reamended Statement of Claim had already been dealt with in Civil Suit No. 136. The Defendant premised that the broad approach of res judicata should be applied since, ultimately the relief prayed by the Plaintiff is related to the earlier proceeding in Suit No. 136 which was decided in favour of the Defendant. Therefore, the Plaintiff is estopped from continuing with this Action. Submission by the Plaintiff [13] In opposing the Application, the Plaintiff submitted that this Action could not be settled under Order 33 Rule 2 and/or Order 14A. The Plaintiff contended that several material facts were clearly in dispute, i.e., the existence of clause 10 under the partnership agreement and the existence of the Defendant’s letter dated 15.01.2016 in which the Defendant allegedly failed to pay the balance amount from the PSSB’s bank account to the Plaintiff. Therefore, it is prudent for the Application to be dismissed since the above material facts can only be dispensed by calling up witnesses to the stand. [14] Regarding res judicata, the Plaintiff submitted that the relief for the balance amount of RM44,100.00 from the PSSB’s bank account had not been dealt with in Civil Suit No. 136. Moreover, the amount prayed by the Plaintiff was only for the amount before the partnership allegedly dissolved. [15] Next, on the issue of locus standi, the Plaintiff argued that she has the locus standi to initiate this Action against the Defendant. The S/N j1RfsUTfG0SkyDbN8S2xYA 5 document via eFILING portal **Note : Serial number will be used to verify the originality of this Defendant had always referred to the 60% and 40% concession as stated under the partnership agreement. [16] The Plaintiff also contended that the partnership agreement was never dissolved since clause 10 allows the beneficiary to benefit from the deceased partner’s shares under the partnership agreement. Findings and Decision of the Court [17] Having appraised the affidavits and all the exhibits put forward by the parties and having considered the submissions by the learned counsels for both parties, I hereby allow the Defendant’s application. Herein are my reasons to the decisions. I. The Procedure under Order 33 Rule 2 of ROC 2012 & Order 14A of ROC 2012 [18] The Defendant had filed this Application under Order 33 Rule 2 and/or Order 14A of ROC 2012. Order 33 Rule 2 empowers the courts to order a question or issue upon which the cause or matter turns to be tried before, at or after the trial. [19] Order 33 Rule 2, ROC 2012 reads as follows: Time of trial of questions or issues (O. 33, r.2) 2. The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which the question or issue shall be stated. S/N j1RfsUTfG0SkyDbN8S2xYA 6 document via eFILING portal **Note : Serial number will be used to verify the originality of this [20] The principle under Order 33 Rule 2 is highlighted in the Supreme Court case of Newcares Sdn Bhd v. Sri Alam Sdn Bhd [1991] 1 CLJ (Rep) 321, where Mohd Jemuri Serjan CJ (Borneo) articulated as follow at p. 326, para g): “Rule 2 gives the Court discretionary power to order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which a question or issue shall be stated. If the learned Counsel for the appellant relied on O. 33 r. 2, in the first place, there should be an application for an order under r. 2 and if the Court allows the application, then the Court may give direction as to the manner in which the question or issue shall be stated.” [21] Likewise, Abdul Malik Ishak J (as he then was) in Krishnan Rajan a/l Krishnan v Bank Negara Malaysia & Ors [2003] 1 MLJ 149 interpreted Order 33 Rule 2 at p. 154 as follows: “…The principles of law that can be distilled from the long line of established authorities may conveniently be marshalled in these terms: (i) that the rule confers upon the court a wide discretionary power to order any question or issue in a cause or matter, whether or fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter; (ii) that the application under O 33 r 2 of the RHC may not be appropriate where the facts are in dispute or where extrinsic evidence is required to be adduced; S/N j1RfsUTfG0SkyDbN8S2xYA 7 document via eFILING portal **Note : Serial number will be used to verify the originality of this (iii) that the overriding consideration, when taken in its correct perspective, is whether the application would result in a substantial saving of time and expenditure; and (iv) that the court should be wary and warn itself against the abuse of this process” [22] Order 14A also allows early and expeditious disposal of any cause or matter based on a question of law or construction of any document arising in the cause or matter and thereby saves the expense and delay which would arise in a full trial (see Datuk Kim Koh Khun @ Kim Ko Khen v Tan Ah Thong [2014] 6 MLJ 747). [23] Order 14A of ROC 2012 provides: Determination of questions of law or construction (O.14A, r.1) 1. (1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that – (a) such question is suitable for determination without the full trial of the action; and (b) such determination will finally determine the entire cause or matter or any claim or issue therein. (2) On such determine the Court may dismiss the cause or matter or make such order or judgment as it thinks just. (3) The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question. S/N j1RfsUTfG0SkyDbN8S2xYA 8 document via eFILING portal **Note : Serial number will be used to verify the originality of this (4) The jurisdiction of the Court under this Order may be exercised by a Registrar (5) Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provisions of these Rules. [24] Applications under both of these rules can be made by the parties at any stage of a cause or matter. Nonetheless, the common practice is that the application under Order 14A would usually be applied not long after the close of the pleadings, while the application under Order 33 is made when the proceedings have reached the advantage stage or have practically reached the trial stage. This principle has been succinctly mentioned in Dayapi Holdings Sdn Bhd & Anor v Arab Malaysian Finance Berhad & Anor [2009] 1 CLJ 916, Mohd Hishamudin Yunus J (as he then was) held: “[33] It is true that rule 1(1) contains the words ‘…at any stage of the proceedings…’ However, in my judgment, this phrase ‘…at any stage of the proceedings…’ cannot be given too literal an interpretation. Nor can it be read in isolation. Where the proceeding has already reached the trial stage, O. 14A must be read in conjunction with O. 33, in particular, rr. 2,3 and 5…In my judgment, when the proceeding has reached such an advanced stage of the proceeding or had practically reached the trial stage, as has happened in the present case, the appropriate course to adopt, should any party be of view that the cause could be disposed of without the need of a normal trial, is not to invoke O. 14A, but to invoke O. 33 r.2, r. 3(2) and r. 5 of the RHC…” [Emphasis added] S/N j1RfsUTfG0SkyDbN8S2xYA 9 document via eFILING portal **Note : Serial number will be used to verify the originality of this [25] In our present case, the pleadings had been filed by the parties way back in 2020, whereby the Plaintiff’s reply to the defence was last filed on 30.11.2020. Meanwhile, this Application was only filed on 17.03.2022, approximately 2 years after the close of pleadings. Hence, following the ratio in Dayapi Holdings (supra), it is most appropriate for this Court to discuss this Application under Order 33 Rule 2. Having clarify the appropriate proceeding for the Application, I have summarised the arguments and submissions into 2 major key issues which shall be discussed in turn: a) Whether the Plaintiff has the locus standi to initiate/ continue with this Action and b) Whether this Action is barred by res judicata and/or estoppel. II. Whether the Plaintiff has the Locus Standi to Initiate or Proceed with this Action [26] The Defendant’s main argument lies on the fact that the Plaintiff authority as the administrator for the Said Estate was removed following the High Court decision in OS No. 642. For ease of reference, the relevant portion of the judgment for OS No. 642 as tendered in Exhibit YW-3 (“Exhibit YW-3”) is produced here: “1. Defendan Pertama dilucutkan sebagai pentadbir Harta Pusaka Wong Poi Fong @ Wong Swee Fong, Si Mati (‘Harta Pusaka WPF’) dan Amanah Raya Berhad dilantik sebagai pentadbir harta pusaka baru bagi Harta Pusaka Wong Poi Fong @ Wong Swee Fong, Si Mati; 2. Defendan Pertama menyerahkan kesemua dokumen- dokumen yang berkaitan dengan Harta Pusaka WPF kepada Amanah Rakyat Berhad; S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 10 this document via eFILING portal 3. Defendan Kedua membayar jumlah sebanyak RM2,217,162.41 secara persendirian ke dalam akaun Harta Pusaka WPF; 4. Defendan Kedua membayar kos sebanyak RM 30,000.00 secara persendirian kepada Plaintif tertakluk kepada fi alokatur; dan 5. Plaintif diberi kebebasan untuk memohon.” [27] To clarify, the Plaintiff in OS NO. 642 is the Defendant in this Action and the Defendant there is the Plaintiff in this Action. On this issue, I agree with the Defendant’s submission that the Plaintiff has no locus standi to initiate or proceed with this Action. It is clear, as of now, there was already a decision made by the High Court in OS No. 642 terminating the Plaintiff’s appointment as the administrator of the Said Estate. The High Court there has appointed Amanah Raya as the new administrator of the Said Estate. In view of that, the Plaintiff should request for relevant sanction or consent or a proper appointment from Amanah Raya to proceed with this Action herself. In the alternative, as eloquently put by the Defendant, the Plaintiff should have initiated this Action in her personal capacity and not as the administrator of the Said Estate. This is also due to the fact that the Plaintiff is also one of the partners of PJ Wong. The Plaintiff in this Action has done neither of these!! [28] In Robert Teo Keng Tuan v Chew Chong Eu & Anor [2015] 7 CLJ 508, the defendants argued that the estate of the late Kuan Mei Ling should be made a party to the action since the deceased was the plaintiff’s partner. However, Yeoh Wee Siam J held that the plaintiff could maintain this action in his name since the partnership between him and the S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 11 this document via eFILING portal deceased had already dissolved by virtue of section 35 of the Partnership Act 1961. [29] It is also prudent for this Court to cite the decision made in OS No. 642 about this issue. In Yvonne Wong Yee Woon v Wong Yee Mei @ Cynthia (sebagai pentadbir harta pusaka Wong Poi Fong @ Wong Swee Fong, si mati) & Anor [2022] MLJU 906 the Court held that the original partnership in PJ Wong had already been dissolved due to WPF passing: “[45] section 35 of the Partnership Act 1961 provides that unless the partnership will be dissolved by the death of the bankruptcy of a partner. This will not be automatic if the partnership agreement provides for the exclusion of the deceased partner or the partner who is adjudicated bankrupt. However, as I have said earlier, the parties did not produce any partnership agreement. Please refer to Robert Teo Keng Tuan v Chew Chong Eu & Anor [2015] 7 CLJ 508. [46] Furthermore, the documents produced based on the search done with the CCM, indicate that as of 15-10-2004, a new partnership was set up consisting of (i) Lim Ching Beng, who remained a partner from the original partnership, (ii) Wong Yee Mei @ Cynthia (Defendant), (iii) Yvonne Wong Yee Woon (Plaintiff) and (iv) Eric Wong Yee Leong. Since then, Eric Wong Yee Leong has also passed away and therefore even the existence of this new partnership is doubtful as parties again failed to produce a copy of the partnership agreement. [47] Therefore, the partnership then existed between the late Wong Poi Fong @ Wong Swee and Lim Chin Beng ended on the S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 12 this document via eFILING portal death of the deceased. This was replaced by the new partnership between Lim Chin Beng and the beneficiaries of the estate of the deceased.” [30] During the oral submission, counsel for the Plaintiff has averred that she was indeed initiating this action to recover the sum which is due and owing to her. Thus, she is suing in her personal capacity and not on behalf of the Said Estate. However, my close reading of the Pleading has confirmed otherwise. The intitulement of this Action has clearly stated that she is suing as the administrator of the estate of WPF. Also, in at least 2 different places in the Reamended Statement of Claim, the Plaintiff has stressed that she is suing on behalf of the Said Estate: 10. On the assets of PSSB, the Plaintiff now claims as the Administrator of WPF’s estate for the 49% in the Bank account of PSSB at the time PSSB had ceased its operations … 18. The Plaintiff sets out the monies outstanding and owing which must be paid by the Defendant from PJ(Wong) to the Plaintiff (as the administrator of the estate of WPF), from the date of the deceased … [31] Likewise, a close reading of the last part of the Reamended Statement of Claim would clearly demonstrate that the Plaintiff’s action here is to recover money due to the Said Estate: 20. The Defendant also contributed to Employers Provident Fund (EPF) in her own name without the consent of the Plaintiff as the administrator of the estate of Wong Poi Fong @ Wong Swee Fong… 23. The Plaintiff is unable to fulfill her duty as the administrator of the estate of WPF, deceased for the benefit of all the beneficiaries S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 13 this document via eFILING portal including the Defendant as long as the Defendant does not pay to the estate the total sum from PJ(Wong) that is unlawfully withheld by her as the trustee. 24. Plaintiff states that the Defendant as a trustee, had failed to protect the interest of each of the beneficiary of the estate of WPF through her actions and the Plaintiff will refer to the relevant documents. The Plaintiff claims for the following reliefs, namely that :- … (ii) pay to the Plaintiff the sum of Rm44,100.00 (being 49% held by estate of WPF) from the sum of RM90,000.00 held in the bank account of Pekeliling Service Stesyen Sdn Bhd; (iii) pay to the Plaintiff the sum of RM915,785.00 being 40% share of the same due and owing by the Defendant from PJ(Wong) to the estate of WPF as at 31.12.2019 and still continuing… [32] I am aware that the decision of OS NO. 642 is still on appeal. Nonetheless, at this juncture, this Court take note that at the hearing of the Application, the Plaintiff is not (or no more) the administrator of the Said Estate, and no consent has been obtained from the current administrator, namely, Amanah Raya for the Plaintiff to continue with this Action. Besides, the original partnership had been dissolved due to the passing of WPF. Thereby, this Court answer the 1st question in the negative because, on all counts, the Plaintiff has no capacity to proceed with this Action. III. Whether this Action is Barred by Res Judicata and/or Estoppel [33] The principle of res judicata can be illustrated in the Federal Court case of Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd [1995] 3 CLJ 783, where Peh Swe Chin FCJ premised at paras d-g, p. 791 that: S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 14 this document via eFILING portal “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 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 proeadem cause. 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 Wigham 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.” [Emphasis added] [34] His Lordship further emphasised at paras c-e p. 792 that: S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 15 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 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, i.e., the cause of 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 relitigated between the same parties because it is res judicata. In order to prevent multiplicity of action and also in order to protect the underlying rationales of estoppel per rem judicatum and not to act against 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.” [Emphasis added]. [35] Likewise, in the Court of Appeal case of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1997] 2 CLJ 104, His Lordship Gopal Sri Ram JCA (as he then was) reiterated (at paras g – d, pp. 113 – 114) the position found in Government of Malaysia v. Dato Chong Kok Lim [1973] 2 MLJ 74 and quoted the case of Satyadhyan Ghosel and others v. Sint Deorajin Dobi & Another AIR [1960] SC 941: The principle of res judicata is based on the need of giving finality to judicial decisions. What it says is that once a res is judicata, it shall be not adjudged again. Primarily it applies as S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 16 this document via eFILING portal between past litigation and future litigation. When a matter – whether on a question of fact or a question of law – has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s.11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any high Court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one away will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. [Emphasis added] [36] The Court then went on to explain that “A decision given by a Court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (see Peareth v. Marriott [1883] 22 Ch. D. 182, Hook v. Administrators-General of Bengal and Others LR 48 IA 187 and In the Matter of the Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v. Tan Yew Ghee and Another [1936] MLJ 141, 147- 151). Parties cannot raised a second time in the same suit an issue that has already been determined either expressly or by S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 17 this document via eFILING portal necessary implication. (See Louis Dreyfus v. Aruna Chalayya LR 58 IA 381) [Emphasis added] [37] In the present case, the Defendant submitted that the reliefs prayed by the Plaintiff in this Action were already adjudicated in Suit No. 136. On this, I agree with the Defendant’s submission that the Plaintiff is estopped from claiming or putting forward an issue that has already been determined. [38] The Defendant further submitted that the Said Estate is no longer a partner in PJ Wong since a new partnership has already formed after the death of WPF in 2004. The Defendant attached the Companies Commission Malaysia search as Exhibit YW-2, showing all 4 beneficiaries as new partners of PJ Wong. To support, the Defendant referred to section 35 of the Partnership Act 1961. [39] For ease of reference, section 35 of the Partnership Act 1961 is reproduced as follows: 35. Dissolution by bankruptcy, death or charge (1) Subject to any agreement between the partners, every partnership is dissolved as regards all the partners by the death or bankruptcy of any partner. (2) A partnership may, at the option of the other partners, be dissolved if any partner suffers his share of the partnership property to be charged under this act for his separate debt. [40] Based on the above provision, a partnership may be dissolved by the death of any partner unless there is an agreement that says otherwise. S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 18 this document via eFILING portal In the Supreme Court case of Khoo Yoke Wah & Ors v Lee Choo Yam Holdings Sdn Bhd & Ors [1991] 1 MLJ 414, it was held that the partnership was dissolved since there was no agreement between the partners existing prior to 25 August 1988 or 29 April 1988 to say that the partnership should not be dissolved by the death of either one of the two partners concerned. [41] It is also trite that the partner who died must be a party to the agreement. Then only the partnership should continue even if death occurs to any of the partners. If the agreement was executed by all the partners after the death of one of the partners, the effect under section 35 would come into play. I refer to the case of Lee Choo Yam Holdings Sdn Bhd & Ors v Khoo Yoke Wah & Ors [1990] 2 MLJ 431 where the plaintiffs applied for an order for a declaration that the partnership and business of Tai Kwong Goldsmiths & Jewellers stands dissolved under section 35 of the Partnership Act 1961. Anuar J in delivering his judgment contended that at p. 432: “In my view upon the true construction of s 35(1) of the Partnership Act 1961, the agreement made between the partners to the contrary must have been made before the death of any partner. An agreement made by the surviving partners after the death of a partner without the agreement of the deceased partner will not bind the deceased partner nor, in my view, will it make the partnership a continuing partnership. This is so because by the death of the partner it is no longer possible to adhere to the original contract, the essence of which must be that all parties to it must be alive. With respect I am of the opinion that the wording of s 35(1) of the Partnership Act 1961 leaves no doubt at all that any agreement to S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 19 this document via eFILING portal the contrary between the partners must be an agreement made by all the partners including the deceased. The words ‘every partnership is dissolved as regards all the partners’ mean all the partners existing prior to the death of any partner. The partner who died must be a party to the agreement that the partnership should continue in the event that death occurs to any of the partners. This agreement obviously cannot be given by the deceased partner unless it is given when he was still alive. In my view, on the death of any partner, a partnership therefore stands dissolved unless there is evidence that the partners had agreed otherwise.” [Emphasis added] [42] The Plaintiff then tried to argue that Suit No. 136 did not concern the partnership agreement. The Plaintiff alleged that clause 10 of the partnership agreement allowed for the shares of the deceased partner to be transferred to the deceased’s administrator i.e., the Said Estate. As mentioned earlier, I am with the Defendant that, as far as this Court is concerned, the original partnership of PJ Wong has been dissolved due to WPF’s death. In respect of the alleged partnership agreement, it is my finding that the Plaintiff is estopped from adducing it in this Action. This is because the issue relating to the partnership agreement was a matter that was directly determined or ought to be determined under Suit No. 136. [43] The principle of res judicata does not confine to only those issues that had been decided in the previous court. It also includes the points and matters that should or properly belonged to the subject of litigation and which the parties exercising reasonable diligence, might have brought forward at the time (see Henderson v Henderson (1843) 3 Hare 100). S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 20 this document via eFILING portal [44] In similar veins, in the Federal Court case of Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133, His Lordship Ahmad Maarop CJ (Malaya) premised at pp. 151-152 that: “[29] At this juncture, it is opportune to add that in the Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74, the wider rule of res judicata as expanded in Henderson which sometimes is referred to constructive res judicata, was succinctly explained by Sharma J at p 76 in the following manner: The rule is that a matter which might and ought to have been made a ground of attack or defence becomes a matter which was constructively in issue. A matter which might and ought to have been made a ground of attack or defence in the former application but which was not alleged as such a ground of attack or defence is for the purposes of the plea of res judicata deemed to have been a matter directly and substantially in issue in the former application, that is to say, though it may not have been actually directly and substantially in issue it is still regarded as, having been constructively, directly and substantially in issue. There can be no distinction between a claim that was actually made and a claim which might and ought to have been made. The plea of res judicata applies, except in special cases, not only to points on which the court was actually required by the parties to form an opinion and to pronounce its judgment thereupon 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. It is only where the plea which is sought to be raised in the S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 21 this document via eFILING portal subsequent proceedings was not available to the party at the time of the previous proceedings that the decision cannot be constructively res judicata. The rule of constructive res judicata is really a rule of estoppel.” [Emphasis added] [45] Based on the above authorities, the Plaintiff is estopped from raising the existence of the partnership agreement as it is a matter that should have been raised in the previous suit. This evidence, if at all, must be adduced there. The Plaintiff has not done this in Suit No.136. The Plaintiff cannot simply initiate another similar suit and submit this new evidence, in the hope that this Court may decide in the Plaintiff’s favour due to this. This is a clear case of res judicata and an abuse of court process. [46] Furthermore, the Plaintiff also submitted that the relief, especially on RM44,100.00, has not been raised in Suit No. 136. The Plaintiff here is claiming for this from the PBBS’s bank account as at 29.06.2008. Again, this relief is related to the Said Estate in which the issue of PSSB’s rights under the Shell Station had already been denied in Suit No. 136. As submitted by the learned counsel of the Defendant, a party cannot bring his case by instalments. To support, the Defendant cited the Court of Appeal decision in Dato’ Ahmad Johari Bin Tun Abdul Razak v A. Santamil Selvi A/P Alau Malay @ Anna Malay (administratrix for the estate of Balasubramaniam a/l Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133. In this case, Suraya Othman JCA in delivering the judgment of the court held that (at p. 158): “[50] On the factual matrix of this case, we are of the view, that the second present suit is in fact no more than a repetition, in thinly veiled new guise of the cause of action of the first or earlier suit S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 22 this document via eFILING portal and the second/present suit was filed with the intention to re- litigate and re-open the earlier suit which was struck out and dismissed by the first court. This is so since the parties, the facts of the case, the causes of action and the reliefs sought by the plaintiffs are identical, if not one and the same. Even if the ‘continuing tort’ as averred to in the second/present suit could be said to be a different cause of action, which we are of the view it is not; that cause of action was already present or in existence when the first suit was filed on 9 June 2014 and no reasons or explanations were proffered by the plaintiffs as to why it was not pleaded and brought or filed together with the first suit…” [Emphasis added] [47] In Dato’ Ahmad Johari (supra), the plaintiffs filed a suit against the defendants on behalf of and for the benefit of the estate of the deceased for the harm and injury suffered by the deceased, whereby the plaintiffs claimed that they and the deceased were put to loss and expense and mental anguish. The suit was struck out on the ground that the first plaintiff had no locus standi to institute the suit since she had not extracted the letters of administration and failed to plead the elements under the tort of conspiracy. Nonetheless, the plaintiffs initiated another suit premised on the same facts against the defendants claiming the same relief but excluding the eighth defendant. In the second suit, the striking out application was denied, hence the appeal. The Court of Appeal held that the second suit ought to be dismissed since it was essentially identical to the previous suit which had already been struck out. It was further held that the plaintiffs should have brought every point/ issue relating to the subject of litigation in the earlier suit and not to litigate the issues by instalments. (See also, Kaliamah Rajan & Ors v. Supritendan Wooi S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 23 this document via eFILING portal Kooi Cheang, Ketua Polis Daerah Tampin, Negeri Sembilan & Ors [2022] 4 CLJ 789) [48] The same can be said in the present case. The Plaintiff is obviously trying to get a second bite of the cherry by filing this Action against the Defendant. With due respect, this Court cannot allow her to do so. The principle of res judicata is applicable in this present case. Hence, I answer the 2nd question in the affirmative. Conclusion [49] Therefore, I allow the Defendant’s application with costs. In view thereof, and as prayed by the Defendant in the Application, I hereby order that the Action be dismissed. Dated: 20th November, 2022 Dr John Lee Kien How @ Mohd Johan Lee Judicial Commissioner High Court Malaya Kuala Lumpur For the Plaintiff Datuk Mohd Daud Leong Messrs. Mohd Daud Leong & Co Advocates & Solicitors For the Defendant M.Nalini Messrs. Thangaraj & Associate Advocates & Solicitors S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 24 this document via eFILING portal Table of Authorities Cases Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd [1995] 3 CLJ 783 Dato’ Ahmad Johari Bin Tun Abdul Razak v A. Santamil Selvi A/P Alau Malay @ Anna Malay (administratrix for the estate of Balasubramaniam a/l Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133 Datuk Kim Koh Khun @ Kim Ko Khen v Tan Ah Thong [2014] 6 MLJ 747 Dayapi Holdings Sdn Bhd & Anor v Arab Malaysian Finance Berhad & Anor [2009] 1 CLJ 916 Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1997] 2 CLJ 104 Henderson v Henderson (1843) 3 Hare 100 Kaliamah Rajan & Ors v. Supritendan Wooi Kooi Cheang, Ketua Polis Daerah Tampin, Negeri Sembilan & Ors [2022] 4 CLJ 789 Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133 Khoo Yoke Wah & Ors v Lee Choo Yam Holdings Sdn Bhd & Ors [1991] 1 MLJ 414 Krishnan Rajan a/l Krishnan v Bank Negara Malaysia & Ors [2003] 1 MLJ 149 Lee Choo Yam Holdings Sdn Bhd & Ors v Khoo Yoke Wah & Ors [1990] 2 MLJ 431 Newcares Sdn Bhd v. Sri Alam Sdn Bhd [1991] 1 CLJ (Rep) 321 Robert Teo Keng Tuan v Chew Chong Eu & Anor [2015] 7 CLJ 508 Yvonne Wong Yee Woon v Wong Yee Mei @ Cynthia (sebagai pentadbir harta pusaka Wong Poi Fong @ Wong Swee Fong, si mati) & Anor [2022] MLJU 906 Rules Order 14A, Rules of Court 2012 Order 33 Rule 2, Rules of Court 2012 Statute Section 35, Partnership Act 1961 S/N j1RfsUTfG0SkyDbN8S2xYA **Note : Serial number will be used to verify the originality of 25 this document via eFILING portal