Persatuan Badminton Malaysia v Inter-Sports Marketing Sdn. Bhd., 11-04-2011

• Judge: Y.A. TUAN LEE SWEE SENG
• Judgment Date: 11 April 2011
• Court: High Court (Malaysia)
• Record Number: S-22NCVC-46-2011

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

CIVIL DIVISION

SUIT NO: S-22NCVC-46-2011

BETWEEN

NG CHIN CHAI (K/P No: 630520-05-5379)

Selaku Pegawai Awam serta Setiausaha Kehormat

PERSATUAN BADMINTON MALAYSIA ....PLAINTIFF

AND

INTER-SPORTS MARKETING SDN. BHD.

(No Syarikat: 145489-H) ....DEFENDANT

The Judgment of Judicial Commissioner

Tuan Lee Swee Seng

Prologue

This judgment answers the question as to whether a Defendant can raise res judicata when before his application for striking out of the Plaintiff’s claim was heard, the Plaintiff withdrew the claim with liberty to file afresh and then subsequently refiled a fresh claim. Upon being served with a fresh claim the Defendant duly applied to have the claim struck out.

Parties

The Plaintiff is the Honorary Secretary and the Public Officer of Persatuan Badminton Malaysia, a sports body. The Defendant is a company incorporated under the Companies Act 1965. The Plaintiff sued the Defendant under an Agreement dated 15 December 2005 wherein in consideration of the Plaintiff giving sole and exclusive right to the Defendant with respect to commercial promotion, advertising marketing and commercial licensing in the territories agreed upon as well as broadcasting rights of the World Badminton Championship 2007 the Defendant agreed to pay the Plaintiff sponsorship sum of USD900 000.00.

The Defendant had paid USD595, 000.00 leaving a balance of USD 305,000.00 which is the substantive subject matter of the suit.

Problem

The Plaintiff in an earlier suit filed on 3 November 2010, had sued under the name of “Persatuan Badminton Malaysia”. The decision to sue in the name of the society was due to the fact that under Section 16 of the Sports Development Act 1997 (SDA), it is provided inter alia that any sports body registered under the Societies Act 1966 shall, on the date of coming into force of this Act, cease to be registered under the Societies Act 1966.

The Defendant applied in the earlier suit to have the Writ and Statement of Claim struck out under O18 r 19(b) and (c) and/or under the inherent powers of the Court under O 92 r 4 of the Rules of the High Court 1980 (RHC) for non-compliance with Section 9(c) of the Societies Act 1966.

On the case management date on 4 January 2011 when the matter was called up before the learned Judicial Commissioner, the Defendant’s counsel informed the Court that he had filed the above application. Whilst no date had then been fixed for the hearing of the application, the Plaintiff’s counsel informed the Court that the point raised by the Defendant’s counsel is an issue of law and that the Plaintiff can always make an application to amend the name of the Plaintiff to reflect the name of the public officer that is suing on behalf of the society.

The Defendant’s counsel indicated that he would be objecting to such an application for amendment. Plaintiff’s counsel then decided that it would be prudent for him to withdraw the Plaintiff’s action against the Defendant with liberty to file afresh. The Writ and Statement of Claim were thus struck out and costs of RM200.00 was ordered by the Court for the Plaintiff to pay the Defendant.

The Plaintiff now files a fresh suit and the Defendant, having entered a conditional appearance, applied for the Writ and Statement of Claim to be struck out under O 18 r 19(b), (c), (d) and/or under the inherent powers of the Court under O 92 r 4 RHC.

Prayers

The Defendant’s application in Enclosure 6 is for striking out the Plaintiff’s Writ and Statement of Claim under O 18 r 19(b),(c),(d) and/or under the inherent powers of the Court under O 92 r 4 RHC. The brief reasons given are as follows:

1. This action is filed for a second time;

2. The Plaintiff had earlier commenced the same action against the Defendant in Guaman Sivil No: S-22NCvC-11-2011, referred to as the 1^st action ;

3. The difference being the name of the Plaintiff;

4. The Defendant had filed Appearance and Defence in the 1^st action;

5. Parties had appeared before the Court on a few occasions for case management and parties had finalized agreed facts and issues to be tried;

6. Bundle of Pleadings, Bundle of Documents, Issues to be Tried and Statement of Agreed Facts had been filed for the purpose of getting ready the 1^st action for trial;

7. The Court had given leave to the Defendant to issue a Third Party Notice on 9 December 2010;

8. The Defendant had served the Third Party Notice on the third party, Sports Media Promotions Sdn Bhd;

9. The Defendant had on 28 December 2010 filed an application to strike out the Plaintiff’s Writ and Statement of Claim on ground that the Plaintiff had failed to comply with the mandatory statutory requirement of Section 9(c) of the Societies Act 1966;

10.On the case management date on 4 January 2011, the Plaintiff had withdrawn its action with costs of RM200.00 to be paid to the Defendant;

11. The Defendant states that the Plaintiff should have filed a formal application for leave to amend the name of the Plaintiff to meet the requirements of Section 9(c) of the Societies Act 1966;

12. The Plaintiff cannot now file a fresh action against the Defendant after they had withdrawn the 1^st action when it should have applied to amend;

13. The Plaintiff’s action is an abuse of the court’s process;

14. The Plaintiff’s action had wasted the parties’ time and caused unnecessary costs to be incurred including that of the Court;

15. The Plaintiff is estopped from filing this current action after it had withdrawn the 1^st action as the matter is now res judicata and the Plaintiff is estopped by conduct from filing the current action as the Plaintiff should have applied to amend ;

16. The Defendant has to incur additional fees and costs to defend this current action; and

17. The Court in the 1^st action was ready to fix the trial of the action as all the relevant documents had been filed.

Principles

The Oxford Dictionary of Law, 6^th Edition, Oxford University Press defines “res judicata” as follows:

“The principle that when a matter has been finally adjudicated upon by a court of competent jurisdiction it may not be reopened or challenged by the original parties or their successors in interest. Also known as action estoppels. It does not preclude an appeal or a challenge to the jurisdiction of the court. Its justification is the need for finality in litigation.”

The Federal Court in Tong Lee Hua v Lee Yoke San [1979] 1 MLJ 24 was confronted with a situation where the Respondent had claimed for work done as a valuer at the request of the Appellants. There was a question as to whether the work was done for the appellants personally or for a company known as Chi Liung & Sons Sdn Bhd or for the estate of Chi Liung. On an application by the Respondent to sign final judgment, an order of court was made on 26 March 1973 that the application be withdrawn with liberty to join the other parties involved in the Probate Suit relating to the estate of Chi Liung. The Respondent did not avail himself of this liberty but instead made an application to strike out the defences of the Appellants as disclosing no reasonable answer and as being frivolous and vexatious and to sign final judgment. At the hearing of the application, an order in terms was made ([1978] 2 MLJ 112). The Federal Court in dismissing the appeal observed on the issue of res judicata raised by the Appellants with respect to the order of 26 March 1973 as follows at p. 24:

“At the hearing of the appeal, it was put to counsel for the appellants that to constitute a res judicata, the earlier judgment must, in terms of the Privy Council decision in Kok Hoong v. Leong Cheong Kweng Mines Ltd. [1964] A.C. 993; [1964] M.L.J.49, “necessarily and with precision” determine the point in issue, and he was asked to indicate to the court how the earlier judgment did necessarily and with precision determine the liability of the appellants to pay the respondent for work done for them at their request. He did not do so. We do not, with respect, see how he could succeed.”

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