PLAZA PEKELILING MANAGEMENT CORPORATION V. IGB CORPORATION BERHAD & ANOR

IN THE HIGH COURT OF MALAYA HOLDEN AT KUALA LUMPUR

ORIGINATING SUMMONS NO: S3-24-1791-2001

BETWEEN

PLAZA PEKELILING MANAGEMENT CORPORATION ... PLAINTIFF

AND

(1) IGB CORPORATION BERHAD

(2) GLOBAL CARRIERS PROPERTY SDN BHD ... DEFENDANTS

GROUNDS OF JUDGMENT

Introduction

The parties were magnanimous. They mutually agreed that the sole issue for consideration by me would be whether the present originating summons in enclosure one (1) filed by the plaintiff herein is caught by the doctrine of res judicata and thus an abuse of the process of the court in view of the fact that the same plaintiff had previously filed another originating summons against the same defendants in another High Court in Kuala Lumpur vide originating summons no: S6-24-640-2000 (hereinafter referred to as the "first OS").

It would certainly make for logical thinking that the present originating summons should be distinguished from the first OS which was heard by my brother judge Azmel Maamor J., vide (2001) MLJU 28. His Lordship's judgment too was referred to by counsel on both sides in the course of the long and protracted submissions.

In the first OS, the plaintiff sought for the following prayers:

"1) Satu Deklarasi bahawa plaintif adalah Management Corporation yang sah yang ditubuhkan dibawah Akta Hakmilik Strata 1985 bagi blok A, B, C dan D (Low Rise 4 1/2 Storey) dan F (High Rise 17 Storey) di Jalan Tun Razak Kuala Lumpur (Geran 6851 Lot 644 Seksyen 47 Kuala Lumpur).

2) Satu Deklarasi bahawa plaintif adalah berkuasa dan bertanggungjawab untuk pengurusan seluruh kompleks yang dikenali sebagai Plaza Pekeliling termasuk bagi blok A, B, C dan D (Low Rise 4 1/2 Storey) dan F (High Rise 17 Floor - it should be `Storey') di Jalan Tun Razak Kuala Lumpur (Geran 6851 Lot 644 Seksyen 47 Kuala Lumpur).

3) Defendan pertama menyerahkan akaun-akaun yang lengkap bagi kompleks yang dikenali sebagai Plaza Pekeliling  termasuk bagi blok A, B, C dan D (Low Rise 4 1/2 Storey) dan F (High Rise 17 Storey) di Jalan Tun Razak Kuala Lumpur (Geran 6851 Lot 644 Seksyen 47 Kuala Lumpur) sehingga tarikh penyerahan kompleks tersebut kepada plaintif.

4) Defendan pertama menyerahkan kepada plaintif dokumen-dokumen berikut:-

(a) Pelan Struktur.

(b) Pelan Mekanikal dan Elektrikal.

(c) Segala kontrak-kontrak yang ditanda-tangani oleh defendan pertama dengan pihak-pihak lain berkenaan dengan pengurusan kompleks tersebut.

(d) Segala dokumen-dokumen lain dalam simpanan defendan pertama berkenaan dengan pengurusan kompleks tersebut.

5) Defendan kedua menyerahkan kepada plaintif semua dokumen-dokumen dalam simpanan defendan kedua yang berkaitan dengan pengurusan kompleks tersebut.

6) Defendan kedua menyerahkan kepada plaintif akaun-akaun kutipan wang oleh defendan kedua daripada pihak lain berkenaan dengan pengurusan kompleks berkenaan.

7) Defendan pertama dan kedua membayar plaintif kos tindakan ini.

8) Relif-Relif yang lain dan wajar yang didapatisuai manfaat oleh Mahkamah Yang Mulia ini."

Briefly put, the plaintiff in the first OS sought for and obtained the following declarations:

(a) to declare that the plaintiff was the lawful Management Corporation of Plaza Pekeliling; and

(b) to declare that the plaintiff was responsible for the management of the whole of Plaza Pekeliling .

And the plaintiff also sought for in the first OS and obtained an order that all the accounts and the necessary documents be handed over to the plaintiff.

There was a confusion in regard to the identification of the relevant blocks to Plaza Pekeliling . But the parties were again magnanimous. They say that whether it is Block "E" or Block "F", it is immaterial. They say that it refers to the "tower block". They say that blocks "A", "B", "C" and "D" should refer to the "podiums". I merely took note of what they said.

Whereas in the present originating summons in enclosure one (1), the plaintiff seeks the following prayers:

"1) Satu Deklarasi bahawa Perjanjian Jual Beli diantara Defendan Pertama dan Defendan Kedua bertarikh 8.1.1997 dimana Defendan Pertama menjualkan kepada Defendan Kedua Bangunan yang dikenali sebagai Tower Blok (Blok F) Plaza Pekeliling  Jalan Tun Razak, Kuala Lumpur adalah tidak sah setakat penjualan tersebut yang meliputi Bilik-Bilik AHU, Tandas-Tandas, `Risers', `Rooftop' dan tempat letak kereta yang dikenali sebagai M1/B1-B2.

2) Satu Deklarasi bahawa Bilik-Bilik AHU, Tandas-Tandas, `Risers', `Rooftop' di Blok F, Plaza Pekeliling , Jalan Tun Razak, Kuala Lumpur dan tempat letak kereta yang dikenali sebagai M1/B1-B2 adalah hakmilik Plaintif dibawah Akta Hakmilik Strata 1985.

3) Satu Perintah yang melarangkan Defendan-Defendan menuntut sebarang hak terhadap Plaintif mengenai `Bilik-Bilik AHU, Tandas-Tandas, `Risers', `Rooftop', tempat letak kereta yang dikenali sebagai M1/B1-B2 dan tempat-tempat `Common Property' di Blok F, Plaza Pekeliling , Jalan Tun Razak, 50400 Kuala Lumpur.

4) Defendan-Defendan membayar Plaintif kos tindakan ini.

5) Relif yang lain dan lanjut yang didapati wajar oleh Mahkamah Yang Mulia ini."

Basically what the plaintiff is seeking in the present originating summons in enclosure one (1) is for a declaration that the sale of the common property by the first defendant to the second defendant is invalid. The plaintiff is also seeking by way of enclosure one (1) in the present originating summons that both the defendants should not make any claim against the plaintiff in respect of the "common property" of Plaza Pekeliling . It must be noted that by way of enclosure one (1) in the present originating summons the plaintiff is not seeking a declaration that the whole of the sale and purchase agreement between the first defendant and the second defendant in regard to Plaza Pekeliling be declared invalid. Rather the plaintiff is only seeking a declaration to the effect that the sale and purchase agreement is invalid only to the extent that it disposes off the "common property". Prayer (1) of enclosure one (1) in the present originating summons is quite clear on this point.

The popular remedy of declaration

The remedy of declaration was developed by the English Judges in the courts of equity. Later, the remedy was applied in the common law courts. Now, the remedy of declaration has taken the front row in the Administrative Law. Litigants are now well versed in the law and they would seek declaratory reliefs for two main reasons:

(i) to secure the relief even before the damage is caused; and

(ii) to clarify the legal position in the earliest possible manner.

Here, the classic cases of Petaling Tin Bhd v. Lee Kian Chan (1994) 1 MLJ 657 at 673; and Datuk Syed Kechik bin Syed Mohamed v. The Governments of Malaysia and Sabah (1979) 2 MLJ 101 should be referred to as these cases serve as good guidelines.

A declaration would merely declare the legal rights of the litigant. It has no coercive force and it is purely a private law remedy.

Section 41 of the Specific Relief Act, 1950 gives the power to the court to grant a declaratory decree. Order 15, rule 16 of the Rules of the High Court, 1980 ("RHC") states as follows:

"16. Declaratory judgment (O 15 r 16)

No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequent relief is or could be claimed."

and the plaintiff needs only to establish that his legal interests are peculiarly affected (Tan Sri Haji Othman Saat v. Mohamed bin Ismail (1982) 2 MLJ 177; and Lim Cho Hock v. Speaker, Perak Legislative Assembly (1979) 2 MLJ 85, 87). According to Lee Hun Hoe C.J. (Borneo) in the case of Datuk Syed Kechik (supra):

"The prevailing view seems to be that the court's jurisdiction to make a declaratory order is unlimited subject only to its own discretion."

The same views were expressed by Lord Sterndale MR in Hanson v. Radcliffe Urban District Council (1922) 2 Ch 490; and by Lord Radcliffe in Ibeneweka v. Egbuna (1964) 1 WLR 219.

In essence, a declaratory judgment would state the rights or legal positions of the parties as they stand without changing them in any way; but it may in certain instances be supplemented by other remedies. The important characteristic of a declaration is this - that it is a discretionary remedy. It would be refused to those speculators and busybodies; and it would also be refused to those who simply ask hypothetical questions (Re Barnato (1949) Ch 258; and Harrison v. Croydon London Borough Council (1968) Ch 479). Even those who have no sufficient interests would be refused. Lord Dunedin in summarising the Scots law applicable to England said in the case of Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd (1921) 2 AC 438 at 448:

"The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."

The issue of res judicata

The plaintiff says that res judicata does not apply to the facts of the case. The defendants say that it does and that there is an abuse of process of the court when the plaintiff seeks to litigate an abandoned issue.

Factual matrix

As a developer, the first defendant built Plaza Pekeliling  which

comprised of five (5) blocks - the tower block and the podiums. On January

8, 1997 by way of a sale and purchase agreement as reflected in exhibit "B" to the affidavit in enclosure 2, the first defendant sold the tower block to the second defendant.

The plaintiff proceeded to file the first OS on March 21, 2000 as seen in exhibit "GCP-1" of enclosure 4 at page 11. So, it can be surmised that the plaintiff knew about the sale of that tower block to the second defendant when the plaintiff filed the first OS - this fact can be seen in the affidavit of Dato' Moehamad Izat bin Achmad Habechi Emir in enclosure 2 at paragraph 7 and it is confirmed in the affidavit of Tan Boon Gark as seen in enclosure 10 at paragraphs 11.1 and 11.2. The very existence of the sale and purchase agreement pertaining to that tower block was therefore known to the plaintiff even before the plaintiff filed the first OS.

The present originating summons was filed by the plaintiff on May 28, 2001 as seen in enclosure one (1). So, it can also be surmised that the plaintiff knew that the tower block was sold by the first defendant to the second defendant even before the plaintiff filed the first OS and the present originating summons.

It is the contention of the plaintiff that the subject matter of the first OS and the present originating summons are completely different. Both the defendants deny this. It is ideal to observe that the subject matter of the first OS as reproduced earlier included the plaintiff's assertion that it is the lawful management corporation of Plaza Pekeliling  with the attendant right of ownership and control of all the common areas in Plaza Pekeliling . Whereas the subject matter of the present originating summons entails a finding that the tower block common areas are in fact common property and therefore the property of the plaintiff as the management corporation.

It is the contention of the defendants that the issues raised in the present originating summons could and ought to have been litigated upon in the first OS and that the present originating summons essentially concerns the rights and entitlement of the plaintiff as the lawful management corporation of Plaza Pekeliling  to the "common property". And so the defendants say that res judicata applies in the wider sense and for that reason the defendants say that I should dismiss enclosures 17 and 20 with costs.

Analysis

Mr. T. Gunaseelan, the learned counsel for the plaintiff, submitted that the present originating summons is not caught by the doctrine of res judicata.

He cited a host of authorities and I shall now refer to them:

(1) Wong Sai Tack @ Ong Tee Dake v. Chien Hon Keong (Pegawai Awam bagi Persatuan Chha Yong Fay Choon Kuan Selangor dan Wilayah Persekutuan) (2000) 1 AMR 655, under column "Held" at page 656 it is stated that:

"In order for the doctrine of res judicata to apply, it would be necessary to show that the subject matter in dispute was essentially the same, that the matter was before a court of competent jurisdiction, and that the decision made on the matter was conclusive and binding on every other court. [SEE P 664 LINES 1-17]"

(2) Loh Holdings Sdn Bhd v. Peglin Development Sdn. Bhd. & Anor (1984) 2 CLJ 88, F.C. where at the headnote at page 89, it is stated that:

"Res judicata

The doctrine of res judicata should not be applied. The causes of action and issues in the earlier case and the case before the Court were different. (Brisbane City Council v. Attorney-General [1947] 2 AER 255)."

(3) Kluang Wood Products Sdn Bhd & Anor v. Hong Leong Finance Bhd & Anor (1999) 1 MLJ 193, F.C. where at the headnote at page 197 it is stated as follows:

"(7) (Per Chong Siew Fai CJ (Sabah & Sarawak)). Hong Leong's plea was in fact a plea of res judicata by way of estoppel to the two entire causes of actions. In the face of such allegations by Hong Leong, the trial judge and this court were entitled to look at the reasons for the decision and the notes of evidence of the trial judge in the Johor Bahru suit to determine whether the two questions constituting the causes of actions had been determined. However, the grounds or reasons for the decision in the Johor Bahru suit were not exhibited in this case. Hence, it had not been established that the two questions or causes of action(s) had been adjudicated upon, the burden of which lies on the party who alleges it, ie Hong Leong (see p 228D-G)."

(4) Official Assignee of the estate of Tang Hsiu Lan, a bankrupt v. Pua Ai Seok & Ors (2001) 2 SLR 436, C.A., where under column "Held" it is stated as follows:

"(1) Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action, to which the same issue is relevant, one of the parties seeks to re-open the issue (Arnold v National Westminster Bank plc [1991] 2 AC 93; [1991] 3 All ER 41 followed)."

(5) In Yates Property Corporation Pty Ltd v. Boland and Others 179 ALR 664 (decision delivered on August 9, 2000), Goldberg J. said at page 687 of the report:

"A classic formulation of the principle is found in the judgment of Dixon J in Blair v Curran (1939) 62 CLR 464 where (at 531-3) his Honour said:

`A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established'."

(6) In Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd (2001) 2 CLJ 321, C.A., Gopal Sri Ram JCA said at page 332 of the report:

"Now, there is a dimension to the doctrine of res judicata that is not always appreciated. It is this. Since the doctrine (whether in its narrow or broader sense) is designed to achieve justice, a court may decline to apply it where to do so would lead to an unjust result. And there is respectable authority in support of the view I have just expressed.

In Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd and Others (No 2) [1966] 2 All ER 532, 573, Lord Upjohn said:

`As my noble and learned friend, Lord Reid, has already pointed out there may be many reasons why a litigant in the earlier litigation has not pressed or may even for good reasons have abandoned a particular issue. It may be most unjust to hold him precluded from raising that issue in subsequent litigation (and see Lord Maugham LC's observations in the New Brunswick case ([1938] 4 All ER at p 755; [1939] AC at p 21)). All estoppels are not odious but must be applied so as to work justice and not injustice, and I think that the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind. (emphasis added)'."

(7) In Johnson v. Gore Wood & Co (a firm) (2001) 1 All ER 481, H.L., where at page 482 of the headnote it is stated as follows:

"Held - (1) Although the bringing of a claim or the raising of a defence in later proceedings might, without more, amount to abuse if the court was satisfied that the claim or defence should have been raised in earlier proceedings, it was wrong to hold that a matter should have been raised in such proceedings merely because it could have been. A conclusion to the contrary would involve the adoption of too dogmatic an approach to what should be a broad, merits-based judgment which took account of the public and private interests involved and the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party was misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised before. It was not possible to formulate any hard and fast rule to determine whether, on given facts, abuse was to be found or not."

(8) In Friend v. Civil Aviation Authority (2001) 4 All ER 385, C.A., where at page 386 under column "Held" it is stated as follows:

"Held - Although the concept of issue estoppel was a useful tool to which the court could have recourse in order to prevent issues being relitigated in circumstances in which to relitigate them would be abusive, it had to be used with caution. Before a claimant was prevented from bringing his claim before the court on the ground of issue estoppel, the court had to be satisfied after careful examination of all the circumstances that the issue on which he had to succeed in the claim he was seeking to bring was indeed the same issue that had been considered and decided in earlier proceedings."

He relied on these authorities and he submitted that in the first OS, the issue was whether the plaintiff was the lawful management corporation of Plaza Pekeliling and whether the plaintiff was entitled to the accounts and documents. He also submitted that the issue of the sale of the "common property" was not an issue and it did not belong to the subject of litigation in the first OS. So he submitted that there is no identity of subject matter for the doctrine of res judicata to come into play.

Proceeding in the same direction, Mr. T. Gunaseelan further submitted that as the sale and purchase agreement of the tower block was not a necessary ingredient to the cause of action in the first OS, then the doctrine of res judicata could not apply. In serious tone, he then emphasised that even if a matter could have been raised in the first OS, that does not mean that it is an abuse of the process of the court to file the present originating summons. He submitted that it is wrong to say that the matter should be raised in the first OS merely because it could be raised in the present originating summons. He pointed out that a statute - referring to the Strata Titles Act, 1985 (Act 318), provides that the management corporation is the owner of the "common property" and, consequently, he says that a plea of res judicata cannot be raised to defeat the provision of a statute. He then referred me to the case of Greenhalgh v. Mallard (1947) 2 All ER 255, a decision of the Court of Appeal, and he relied on the judgment of Somervell L.J. where his Lordship said at page 257 to page 258 of the report:

"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.

In Green v. Weatherill ([1929] 2 Ch. 213; 98 L.J.Ch. 369; 142 L.T. 216; Digest Supp. [1929] 2 Ch. 221), MAUGHAM, J., quoted some observations by WIGRAM, V.C., Henderson v. Henderson (1843) 3 Hare 100; 1 L.T.O.S. 410; 21 Digest 174, 276 (3 Hare 114):

I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. 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."

He too relied on the case of Yeap Chan Aik v. Yeap Chan Hoe & Ors (2000) 1 MLJ 78. He again emphasised that because of the Strata Titles Act, 1985 (Act 318) the concept of res judicata does not apply. He said that even if it applies, it cannot be raised against a statute. For these reasons, he then sought that the appeals in enclosures 17 and 20 be allowed with costs.

By way of a reply, Mr. Pathmanathan, the learned counsel for the first defendant, submitted along the following lines:

(1) That the plaintiff - Plaza Pekeliling  Management Corporation, is established under a statute known as the Strata Titles Act, 1985 (Act 318) particularly under section 39 (1) thereof. That section enacts as follows:

"39. Establishment of management corporation.

(1) Upon the opening of a book of the strata register in respect of a

subdivided building there shall, by the operation of this section, come into existence a management corporation consisting of all the parcel proprietors including in the case of phased development, the proprietor of the provisional block or blocks."

(2) That what the plaintiff owns is set out in section 42 (1) of the Strata Titles Act, 1985 (Act 318) which enacts as follows:

"42. Ownership of common property and custody of issue

document of title.

(1) The management corporation shall, on coming into existence, become the proprietor of the common property and be the custodian of the issue document of title of the lot."

Now, it must be recalled that it was the first defendant who developed the complex known as Plaza Pekeliling  situated at Jalan Tun Razak, Kuala Lumpur. This complex consists of a tower block (which was sold by the first defendant to the second defendant on January 8, 1997) and four podium blocks. It is not disputed that the plaintiff was established on July 12, 1990 pursuant to and in accordance with section 39 of the Strata Titles Act, 1985 (Act 318) for the sole purpose of managing the Plaza Pekeliling  building. And the duties, inter alia, of the plaintiff can be found in section 43 (1) (a) of the Strata Titles Act, 1985 (Act 318) which is "to manage and properly maintain the common property and keep it in a state of good and serviceable repair."

Since the second defendant had purchased the tower block, the second defendant was interested in managing the tower block. This would mean that the plaintiff would only manage the podiums - all four of them. The plaintiff was not happy and at the request of the second defendant, the plaintiff wrote to the Jabatan Tanah dan Galian Wilayah Persekutuan and the reply indicated that under the Strata Titles Act, 1985 (Act 318) there cannot be two different management corporations and, subsequent to the issuance of strata titles, the tower block and the podiums were placed under the administration of the plaintiff. This was because, according to the Jabatan Tanah dan Galian Wilayah Persekutuan, that the titles that were issued to the tower block and the podiums were located on one lot of land, namely, Geran 6851 Lot 644 Seksyen 47 Bandar Kuala Lumpur.

So the plaintiff relied on the contents of the letter from the Jabatan Tanah dan Galian Wilayah Persekutuan and refused to agree with the second defendant's proposal of wanting to manage the tower block. The plaintiff argued that it is entitled to manage the podiums as well as the tower block. The second defendant refused to acknowledge the plaintiff as a body responsible for managing the tower block and the plaintiff then filed the first OS before Azmel Maamor J. His Lordship granted the prayers as sought for by the plaintiff in the first OS.

(3) That section 44 (1) of the Strata Titles Act, 1985 (Act 318) enacts that, "The by-laws set out in the Third Schedule shall,

as and from the opening of a book of the strata register be in force for all purposes in relation to every subdivided building and shall not be amended by the management corporation."

I have this to say. It is this. That the Third Schedule to the Strata Titles Act, 1985 (Act 318) makes for an interesting reading material. It is captioned as the "By-Laws For The Regulations Of Subdivided Buildings" and under Part 1, it states as follows:

"1. Interpretation

(1) In the application of these by-laws to any particular subdivided building the word `corporation' shall mean the management corporation of the building."

Then, there is paragraph 3 to the Third Schedule of the Strata Titles Act, 1985 (Act 318) which reads as follows:

"3. Common property for common benefit.

The corporation shall control, manage and administer the common property for the benefit of all the proprietors:

Provided that the corporation may, by agreement with a particular proprietor, grant him exclusive use and enjoyment of part of the common property or special privileges in respect of the common property or part of it."

There is also paragraph 5 of the Third Schedule to the Strata Titles Act, 1985 (Act 318) and it is worded as follows:

"5. Functions of the corporation.

The corporation shall -

(a) maintain in a state of good and serviceable repair, the fixtures and fittings (including lifts) existing on the lot and used or capable of being used in connection with the enjoyment of more than one parcel or the common property;

(b) where practicable, establish and maintain suitable lawns and gardens on the common property;

(c) maintain, repair and (where necessary) renew sewers, pipes, wires, cables and ducts existing on the lot and used or capable of being used in connection with the enjoyment of more than one parcel or the common property;

(d) on the written request of a proprietor or of a registered chargee of a parcel, the corporation shall produce to the proprietor or chargee, as the case may be, (or to a person authorised in writing by the proprietor or chargee) all policies of insurance effected by the corporation together with the receipts for the last premiums paid in respect of the policies; and

(e) without delay enter in the strata roll any intended change or any other dealing notified to it pursuant to subparagraph (g) of paragraph (1) of by-law 2."

I will revert to the Strata Titles Act, 1985 (Act 318) and the Third Schedule thereto at a later stage.

(4) That seventy-one (71) parcel titles were sold to the second defendant by the first defendant. That sale included the AHU rooms, toilets, risers, rooftop and car parks and this can be seen in the First Schedule to the sale and purchase agreement in exhibit "B" to enclosure 2. For convenience, I will now reproduce that First Schedule to the sale and purchase agreement:

"SCHEDULE 1

THE TOWER BLOCK-Plaza Pekeliling

Level Title No Area (m2) Area (sf) Remarks

Ground Floor M1/1/41 563 6,060

Part of Floor M1/2/41 298 3,208 Approx area

AHU room M1/2/42 22 237 pending Toilet

M1/2/43 63 678 subdivision of

M1/2/44 4 43 Riser Strata title

Floor M1/3/29 786 8,461

AHU room M1/3/30 22 237

Toilet M1/3/31 63 678

Riser M1/3/32 4 43

Floor M1/4/29 786 8,461

AHU room M1/4/30 22 237

Toilet M1/4/31 63 678

Riser M1/4/32 4 43

Floor M1/5/1 786 8,461

AHU room M/1/5/2 22 237

Toilet M/1/5/3 63 678

Riser M/1/5/4 4 43

Floor M1/6/1 786 8,461

AHU room M/1/6/2 22 237

Toilet M/1/6/3 63 678

Riser M/1/6/4 4 43

Floor M1/7/1 786 8,461

AHU room M/1/7/2 22 237

Toilet M/1/7/3 63 678

Riser M/1/7/4 4 43

Floor M1/8/1 786 8,461

AHU room M/1/8/2 22 237

Toilet M/1/8/3 63 678

Riser M/1/8/4 4 43

Floor M1/9/1 786 8,461

AHU room M/1/9/2 22 237

Toilet M/1/9/3 63 678

Riser M/1/9/4 4 43

Floor M1/10/1 786 8,461

AHU room M1/10/2 22 237

Toilet M1/10/3 63 678

Riser M1/10/4 4 43

10th Floor M1/11/1 786 8,461

AHU room M1/11/2 22 237

Toilet M1/11/3 63 678

Riser M1/11/4 4 43

11th Floor M1/12/1 786 8,461

AHU room M1/12/2 22 237

Toilet M1/12/3 63 678

Riser M1/12/4 4 43

12th Floor M1/13/1 786 8,461

AHU room M1/13/2 22 237

Toilet M1/13/3 63 678

Riser M1/13/4 4 43

13th Floor M1/14/1 786 8,461

AHU room M1/14/2 22 237

Toilet M1/14/3 63 678

Riser M1/14/4 4 43

14th Floor M1/15/1 786 8,461

AHU room M1/15/2 22 237

Toilet M1/15/3 63 678

Riser M1/15/4 4 43

15th Floor M1/16/1 786 8,461

AHU room M1/16/2 22 237

Toilet M1/16/3 63 678

Riser M1/16/4 4 43

16th Floor M1/17/1 786 8,461

AHU room M1/17/2 22 237

Toilet M1/17/3 63 678

Riser M1/17/4 4 43

17th Floor M1/18/1 786 8,461

AHU room M1/18/2 22 237

Toilet M1/18/3 63 678

Riser M1/18/4 4 43

Roof Top M1/19/1 127 1,367

Car Park(s) M1/B1-B2 11,963 128,770 _______________________________________________

TOTAL 27,040 291,059 ==========================================

"

In the main body of the sale and purchase agreement under the recital it is stated as follows:

"WHEREAS

A. The vendors (referring to the first defendant) are the registered owners of a major portion of a multi-storied commercial building known as 'Plaza Pekeliling ' with car-parks held under several strata titles (hereinafter referred to as the 'Tower Block') comprising a lettable area of approximately 140744 square feet inclusive of (only part of the 1st floor measuring approximately 3,208 square feet) and car park bays (hereinafter referred to as the said `Property') particulars of which are set out in Schedule 1."

So the first defendant say that since there are separate parcel titles for the AHU rooms, toilets, risers, roof top and car parks then the first defendant was entitled to sell them to the second defendant. But the plaintiff is vigorously claiming for the "common property" and what constitutes "common property" is defined in section 4 of the Strata Titles Act, 1985 (Act 318). That section enacts as follows:

"4. Interpretation

`common property' means so much of the lot as is not comprised in any parcel (including any accessory parcel), or any provisional block as shown in an approved strata plan."

Put it in a simpler language, "common property" means that there is no title to it. If there is title, then it is not a "common property". Seen in that perspective, enclosure one (1) of the present originating summons must fail in limine.

The plaintiff says that res judicata cannot apply to defeat a statute. But the defendants say that they are relying on the statute - referring to the

Strata Titles Act, 1985 (Act 318), to show that the "common property" excludes all those with parcel titles. And that those titles are identified in the affidavit of the plaintiff itself in enclosure 2 particularly in the sale and purchase agreement which is exhibited thereto as exhibit "B". So, the plaintiff has in its own affidavit in enclosure 2 disclosed that at the time of the first OS before Azmel Maamor J., the plaintiff had knowledge of that sale and purchase agreement between the first defendant and the second defendant evidencing the sale with all the details thereto. That being the case, it was certainly open to the plaintiff and indeed opportune for the plaintiff at the time of the first OS to seek for the prayers as enumerated in the present originating summons in enclosure one (1). But, alas, the plaintiff did not avail itself of that golden opportunity. In my judgment, the failure to incorporate the prayers in the present originating summons in the first OS must be construed adversely against the plaintiff. Moreover, the operation of the extended principle of res judicata must be brought to bear against the plaintiff. There has to be a finality to litigation. It is appropriate to say and I so say that a party cannot bring its case in instalments or on a piece meal basis or on the basis of reserving its issues which were available then as between the same parties on the same subject matter. That, in short, would constitute res judicata - a case or matter decided, a final judgment. Then there is this latin phrase which is worded in this way:

Res judicata inter alios, aliis neque nocet neque prodest which means that a case or matter, finally settled between certain parties, can neither injure nor benefit others.

The plaintiff says that the test to apply is whether the sale and purchase agreement is an essential ingredient to the first OS and the plaintiff advances an answer in the negative. But the defendants say that the sale of the tower block by the first defendant to the second defendant is at the very heart of the matter in the first OS and that the plaintiff knew of it and that must be the reason why the plaintiff filed the first OS. The defendants pose a pertinent question: if you don't know of the existence of the sale and purchase agreement, why do you bring the action in the first OS?

The defendants then refer to the affidavit of Tan Boon Gark that was affirmed on August 14, 2001 as seen in enclosure 10 particularly to the exhibit marked as "TBG-1" which is the minutes of the meeting of the plaintiff that was held on August 6, 1998. It must be recalled that the first OS was filed on March 21, 2000 and it can be surmised that the plaintiff knew about the minutes of that meeting which was chaired by Dato Moehamad Izat Bin Achmad Habechi Emir - the deponent of the affidavits in enclosures 2 and 6B. Vijayandran a/l K. Thanigasalam was elected as the secretary of that meeting and he too affirmed two affidavits - in enclosures 3 and 1B. Of pertinence would be this. All the facts as alluded to in the minutes of the meeting particularly about the sale of the tower block to the second defendant, about the high pricing of the car parks belonging to the second defendant were known to the plaintiff on August 6, 1998 - before the filing of the first OS. At its lowest ebb, it can be said that all the facts that were necessary to give rise to the present originating summons were known to the plaintiff even before the plaintiff filed its first OS.

In my judgment, if the plaintiff desires to challenge the issuance of the strata titles by the Registrar in respect of the AHU rooms, toilets, risers, roof top and car parks, then the plaintiff's cause of action, if at all, should be against the party that issued the strata titles. In my judgment, as far as the defendants are concerned none of their actions contravene or militate against the provisions of the Strata Titles Act, 1985 (Act 318). And consequently, as the night follows the day, I say that the doctrine of res judicata applies in this case.

It must be recalled, for fear of repetition, that in the first OS the plaintiff seeks a declaration to become the management corporation of the tower block and the podiums - to become in the words of section 42 (1) of the Strata Titles Act, 1985 (Act 318) "the proprietor of the common property". And by virtue of section 4 of the same Act anything that "is not comprised in any parcel" title is a common property. The plaintiff applied in the first OS and obtained what is sought before Azmel Maamor J. The plaintiff elected not to seek the present prayers in enclosure one (1) in the first OS before Azmel Maamor J. As I see it, before his Lordship Azmel Maamor J., the parties argued to the fullest on the merits of the case. Full arguments on the merits were advanced before his Lordship in regard to the first OS. But in the case of Wong Sai Tack @ Ong Tee Dake v. Chien Hon Keong (Pegawai Awam bagi Persatuan Chha Yong Fay Choon Kuan Selangor dan Wilayah Persekutuan (supra), which was a case that was decided by me, the scenario was different. That was a case where the party was wrongly sued. That was also the case where there was a failure to name the public officer and that the matter was not determined on its merits.

In regard to the case of Kluang Wood Products Sdn Bhd & Anor v. Hong Leong Finance Bhd & Anor (supra), the grounds of decision of the Johor Bahru court were not exhibited whereas in the present originating summons the grounds of judgment of Azmel Maamor J., were exhibited. In that case too, the facts and circumstances giving rise to the second action were not available during the first action. Here, the whole facts were available in the first OS before the plaintiff files the present originating summons as set out in the minutes of the meeting.

In regard to the case of Official Assignee of the estate of Tan Hsiu Lan, a bankrupt v. Pua Ai Seok & Ors (supra), it is said that the issue of estoppel may arise in that case. The same would be true here. As a management corporation the plaintiff manages the "common property" - referring to those property without parcel titles. That being the case, the plaintiff should know of the existence of the sale and purchase agreement because of the presence of the minutes of the meeting as alluded to earlier.

In regard to the case of Greenhalgh v. Mallard (supra), I would entirely agree with the sound proposition of the law as set out in that case by Somervell L.JJ. and applying the law as enunciated therein to the facts of the present originating summons, I must hold that enclosure one (1) is a hopeless piece of litigation. I hold and it is part and parcel of my judgment that there was no reason for the plaintiff to overlook putting the prayers in the present originating summons into the prayers of the first OS. It cannot be doubted that the present originating summons is premised on the assumption that the AHU rooms, toilets, risers, roof top and car parks are caught within the ambit of the definition of the phrase "common property".

That would certainly be a wrong assumption. Sections 14, 15 and 16 of the Strata Titles Act, 1985 (Act 318) are very clear. The plaintiff should have proceeded to the land office and ascertain from the Registrar whether the property which the plaintiff claimed to be "common property" are contained in the parcel of titles. At any rate, the First Schedule to the sale and purchase agreement as seen in exhibit "B" to enclosure 2 and which has been reproduced earlier would show the title numbers and even the strata titles which are exhibited at page 55 to page 63 of enclosure 2 and these would confirm that they are not "common property". All these were available to the plaintiff even before the plaintiff filed the first OS. This is purely a matter of record that the plaintiff could not deny. It is said that a party who alleges that it is a "common property" must come to court and prove that indeed there is no title. Here, it is a classic case where the particulars of the titles are set out in enclosure 2. This brings to mind the sage words of the late Peh Swee Chin FCJ in the case of Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd (1995) 3 MLJ 189, 200:

"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."

As alluded to earlier, the plaintiff knew of the sale and purchase agreement even before the filing of the first OS and I must say that the defence of ignorance will not exculpate the plaintiff at all. The defendants here are vexed for the wrong reasons. The defendants too are vexed for a non-starter. The doctrine of res judicata is grounded on public policy (Mahendar Sucha Singh & Anor v. Emile Joseph (2000) 6 CLJ 257) and the defendants are certainly clinging onto the doctrine of res judicata based on the Strata Tiles Act, 1985 (Act 318) and not against the said Act.

I would without hesitation agree with the learned senior assistant registrar when she allowed enclosures 5 and 14. Consequently, the appeals

in enclosures 17 and 20 should be dismissed with costs.

Lest I be accused of an oversight, I must proceed further.

Mr. J.D. Goonting, the learned counsel for the second defendant, submitted in style and he associated himself with the salient submissions of the learned counsel for the first defendant. Mr. J.D. Goonting rightly submitted that res judicata not only prevents parties from re-litigating questions formally adjudicated by the court but it also extends to matters and issues which could have been raised before the court but was not done so. I have this to say. That the plaintiff in the first OS was free to either:

(i) amend the first OS to include the prayers and reliefs now sought in the present originating summons; or

(ii) to commence a new and fresh originating summons at the material time and praying for the reliefs now sought in the present originating summons and thereafter making a formal application to consolidate the two originating summonses.

I will now refer to the speeches of other eminent judges in the following cases. In Superintendent Of Pudu Prison & 3 Ors v. Sim Kie Chon (1986) CLJ (Rep) 256, S.C., Eusoffee Abdoolcader SCJ in style said at page 261 to page 262 of the report:

"The earlier action instituted by the respondent on 2 July 1985 and which was struck out sought relief on the ground of discrimination in breach of Article 8 of the Constitution but in the present proceedings the grounds for relief have been augmented and declarations sought to the effect we have indicated earlier. The appellants plead res judicata in this regard and we think the point is well taken and is supported by authority, and we would refer to the pronouncement of the Privy Council in Hoystead & Ors. v. Commissioner of Taxation [1926] AC 155 (at pp. 165 - 166) and a catenation of cases to the like effect, namely, that the plea of res judicata applies, except perhaps where special circumstances may conceivably arise of sufficient merit to exclude its operation, 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 moreover the inherent jurisdiction of the Court in cases where res judicata is not strictly established, and where estoppel per rem judicatam has not been sufficiently pleaded, or made out, but nevertheless the circumstances are such as to render any reagitation of the questions formally adjudicated upon a scandal and an abuse, the Court will not hesitate to dismiss the action, or stay proceedings therein, or strike out the defence thereto, as the case may require. It would suffice in this regard to refer to the judgment of the Privy Council delivered by Lord Wilberforce in Brisbane City Council and Myer Shopping Centres Pty. Ltd. v. Attorney-General for Queensland [1979] AC 411 (at p. 425):

`The second defence is one of `res judicata'. There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, and should, have raised in earlier proceedings. The classic statement of this doctrine is contained in the judgment of Wigram V-C in Henderson v. Henderson [1843] 3 Hare 100 and its existence has been reaffirmed by this Board in Hoystead v. Commissioner of Taxation [1926] AC 155. A recent application of it is to be found in the decision of the Board in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] AC 581. It was, in the judgment of the Board, there described in these words:

`...there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings'. (p. 590).'

The attempt by way of the instant proceedings to relitigate and re-open the earlier action clearly reflects the appositeness of the caption suggested for this matter in the prelude to this judgment and would appear to us to be as clear an instance of an abuse of the process of the Court as one can find within the connotation thereof enunciated in the speech of Lord Diplock in Hunter v. Chief Constable of the West Midlands Police and Ors. [1982] AC 529 (at page 542).".

In Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd (supra), the late Peh Swee Chin FCJ aptly said at page 198 to page 199 of the report:

"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, ie 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. A few cases below will illustrate the point."

In Daewoo Corp v. Bauer (M) Sdn Bhd (No: 2) (1999) 3 MLJ 417, Nik Hashim J., said at page 424 of the report:

"The first OS was initiated by the plaintiff and it had control over it. It is, therefore, the duty of the plaintiff to join all causes of action against the defendant in a single action (see O 5 r 1 (1) (a) of the Rules of the High Court 1980 (`the RHC'). Further, the plaintiff could have applied to amend the first OS to include the present four work orders but it did not do so. The plaintiff could have taken out a second OS for the four work orders and have them consolidated (see O 4 r 1 (1) of the RHC) and argued at the same time as the first OS. This course, too, was not adopted by the plaintiff."

In Johnson v Gore Wood & Co (a firm) (2001) 1 All ER 481, Lord Bingham of Cornhill aptly said:

"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early 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."

In Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd (2001) 2 CLJ 321, Gopal Sri Ram JCA succinctly said at page 331 to page 332 of the report:

"The doctrine may thus be seen to encompass several categories. In its narrowest sense, res judicata, I think, refers to estoppel by record. It refers to the actual decision the earlier action or proceeding. In its wider sense, it encompasses issues, and causes of action that could justly and fairly have been equally adjudicated in the earlier suit or proceeding. This wider operation of the doctrine is sometimes referred to `constructive res judicata'. It houses the twin concepts of issue estoppel and cause of action estoppel. Like the tree of which they form the branches, they are designed to ensure that there is finality in litigation.

Pausing for a moment, I think that it is essential to bear in mind that Wigram V-C spoke these words in the Court of Chancery and that the court he referred to was that court, of which he was the Vice-Chancellor at the time. I make mention of these matters in order to demonstrate that the doctrine of res judicata has its roots in equity and hence retains its discretionary nature that is common to all equitable doctrines.

Now, there is a dimension to the doctrine of res judicata that is not always appreciated. It is this. Since the doctrine (whether in its narrow or broader sense) is designed to achieve justice, a court may decline to apply it where to do so would lead to an unjust result. And there is respectable authority in support of the view I have just expressed."

Now, the recent decisions of Johnson and Chee Pok Choy appear to lay down the principles that an abuse of the process of the court for res judicata in the wider sense are to be determined by reference to justice and equity.

Of course, the facts of these two cases are distinguishable from the facts of the present originating summons. On the facts of these two cases, it was quite clear that the plea of res judicata in the wider sense did not prevail.

In my judgment, the plaintiff has failed to show any circumstances or facts to justify that it is just or equitable that the plaintiff should be permitted to continue with the present originating summons. In my judgment too, the abuse of the process is seen at its height in the context of the doctrine of res judicata which should be vigorously applied to the present originating summons in order to ensure finality in litigation and that a party should not be vexed twice in the same matter. In my judgment, both the defendants are further prejudiced for the following reasons:

(1) the defendants have to incur unnecessary expenditure to defend a case where the issues could and should have been raised in the first OS;

(2) the plaintiff having the advantage of legal professional advice from experienced counsel and with the knowledge of the existence of the sale and purchase agreement and its terms thereto, had the opportunity to amend the first OS in order to plead, pray for and to argue the remedies sought for herein in the present originating summons in the first OS; and

(3) that by the present originating summons, the plaintiff now seeks to interfere in a commercial transaction and contractual relations of third parties.

It was argued on behalf of the plaintiff that its rights are derived from statute, in particular the Strata Titles Act, 1985 (Act 318), and that there can be no estoppel against the contravention of a statute. But as against this argument, it must be noted that the subject matter of the present originating summons is not the "common property" as contended by the plaintiff because there are separate titles to the building in question. In my judgment, the defendants did not contravene the provisions of the Strata Titles Act, 1985 (Act 318).

The affidavit of Dato' Moehamad Izat bin Achmad Habechi Emir in enclosure 2 was replied to in categorical terms by Tan Boon Seng in his affidavit that was affirmed on July 17, 2001 as seen in enclosure 8. Tan Boon Seng's affidavit cleared the air, so to speak, once and for all. At paragraph 17 of enclosure 8, Tan Boon Seng averred as follows:

"17. So far as the tower block is concerned subsidiary titles were issued for the office space, the pantry, the toilets, the AHU rooms, risers and the roof top. Separate titles became necessary for the toilets, pantry and AHU rooms because these were separated by the lift, and the stair case and were to be owned separately and not to become common property."

Then, at paragraphs 18 to 24 of the affidavit of Tan Boon Seng in enclosure 8, the following recitals appear:

"18. The car parks were all separate property and separate titles were issued for each car park. These were not and never intended to be common property.

19. I am aware that the 1st defendant by agreement dated 8.1.1997 the 1st defendant sold the Tower Block except for a part of the first floor to the 2nd defendant and all the car parks. A copy of the agreement is exhibit `B' referred to in paragraph 7 of the Plaintiff's 1st affidavit.

20. I deny paragraph 10 of the Plaintiff's 1st affidavit. I believed that the Plaintiff has no claim, right or title to the items mentioned in paragraph 9 of the Plaintiff's 1st affidavit.

21. As to paragraph 11 of the Plaintiff's 1st affidavit, I state the car parks existed at the time of the sale agreement but not the tower block (E) and hence the agreement for sale of blocks A to D did and could not deal with the Tower Block as the items mentioned in paragraph 9 were exclusive property of the 1st Defendant and an integral part of the Tower Block.

22. In the circumstances, the sale to the 2nd Defendant is valid and cannot be set aside. I am advised that the Plaintiff cannot maintain any claim to set aside the sale to the 2nd Defendant.

23. I believe that the Plaintiff's claim is misconceived and frivolous and vexatious.

24. I pray that the Plaintiff's claim be dismissed with costs."

The sting of those paragraphs as alluded to above as found in enclosure 8 can never be denied. Lord Hobson in delivering the judgment of the Privy Council in the case of Yaw Duedu v. Evi Yiboe (1961) 1 WLR 1040 said at page 1045 of the report:

"As Romer J. pointed out in Shoe Machinery Co. v. Cutlan [1896] 1 Ch. 667, 670-671, in a passage cited by Van Lare Ag. C.J.:

`It is not necessary, in considering the question of res judicata, that there should be an express finding in terms, if, when you look at the judgment and examine the issues raised before the court, you see that the point came to be decided as a separate issue for decision, and was decided between the parties'."

And continuing at page 1046 of the report, Lord Hobson remarked:

"Lord Romer, in delivering the judgment of the Privy Council in New Brunswick Railway Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1, 43 said:

`It is no doubt true to say that whenever a question has in substance been decided, has in substance formed the ratio of, or been fundamental to, the decision in an earlier action between the same parties, each party is estopped from litigating the same question thereafter'."

Lord Maugham L.C. in New Brunswick Rail. Co. v. British and French Trust Corporation, Ltd (1939) A.C. 1, H.L., at pages 19 to 20, aptly said:

"... the doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and common sense. If an issue has been distinctly raised and decided in action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them."

That would be the narrower version of res judicata. The wider version

of res judicata would extend to those questions that were omitted to be raised in the earlier proceedings. In the context of the present case, the plaintiff could and ought to have obtained the declarations sought in the present originating summons in the first OS pertaining to the "common property" of the tower block. There was no explanation advanced by the plaintiff as to why the plaintiff chose not to include in the first OS the reliefs sought in the present originating summons. In 1843, Sir James Wigram V.C., in Henderson v. Henderson (1843) 3 Hare 100 at page 114 in lucid terms said:

"In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case."

This is an old vintage authority. Its strength continues to this day. It is accepted by Lord Shaw in Hoystead v. Taxation Commissioner (1926) A.C. 155, P.C., when his Lordship said at page 165 to page 166:

"In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle - namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs."

Put bluntly, the plaintiff is prevented from raising in the present originating summons matters which the plaintiff could and should have raised in the first OS (Henderson v. Henderson (supra)) but failed to do so. The Privy Council in Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd. And Another (1975) 2 WLR 690 affirmed the law as enunciated in Henderson v. Henderson (supra) and at page 696, Lord Kilbrandon aptly said:

"But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings."

Reverting back to Henderson v. Henderson (supra), Sir James Wigram V.C. (supra) at page 115 of the report remarked that:

"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."

For all the reasons as adumbrated above, it is part and parcel of my judgment that the plaintiff cannot maintain the present originating summons because the reliefs sought ought to and should have been raised and determined in the first OS for the following reasons:

(a) the parties in the first OS are the same as in the present originating summons;

(b) the subject matter of the first OS was in regard to the management of Plaza Pekeliling and the right to properties of the management corporation whereas the subject matter of the

present originating summons is also on the alleged claim to property of the management corporation;

(c) the property claimed in the present originating summons is the tower block and that tower block is part of the subject matter of the first OS;

(d) the plaintiff was aware of the sale of the tower block by the first defendant to the second defendant in the course of the proceedings in the first OS;

(e) the plaintiff could have amended and included the claim in the present originating summons into the first OS or, alternatively, the plaintiff could also have filed the present originating summons and apply to consolidate it with the first OS;

(f) the plaintiff did not do either and the plaintiff did not advance any explanation as to why the plaintiff did not and could not do that;

(g) that a party cannot by limiting his claim to particular items of a subject matter bring successive actions because this constitutes harassment and an abuse of process of the court; and

(h) that the plaintiff's present originating summons is prohibited by operation of the principle of res judicata which covers issues or facts which are so clearly part of the subject matter of the

litigation and so clearly could have been raised in the first OS and therefore it would have been an abuse of the process of the court to allow a new proceeding to be started in respect of them in the form of the present originating summons.

The sum total of it all would be this. That the appeals in enclosures 17 and 20 should be dismissed with costs.

Justice Dato' Hj Abdul Malik bin Hj Ishak

Judge High Court

Kuala Lumpur

February 20, 2003

Counsel:

(1) For the plaintiff: Mr. T. Gunaseelan assisted by

Mr. John Skelchy

Solicitor: Messrs Gunaseelan & Associates

Advocates & Solicitors

Kuala Lumpur

(2) For the first defendant: Mr. Pathmanathan assisted by

Mr. Ch'ng Kim Hock

Solicitor: Messrs R. Rajasingam & Company

Advocates & Solicitors

Kuala Lumpur

(3) For the second defendant: Mr. J.D. Goonting assisted by

Miss ML Lam

Solicitor: Messrs Collin Goonting & Associates

Advocates & Solicitors

Kuala Lumpur