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CASE NO.4: Part II Bandar Baru Villa Sdn Bhd v

Malaysia Building Society Berhad
! 01 APR 2018 " ADMIN # COURT CASES $ 0

[CIVIL PROCEDURE-SETTING ASIDE CONSENT JUDGMENT]

Civil Procedure : Striking out – Applica1on for – Defendant applied to strike out
plain1ff’s writ of summons and statement of claim – Plain1ff defaulted on facility
agreement and failed to comply with consent judgment – Whether there was a bona
fide dispute on indebtedness – Whether there was any basis for plain1ff to set aside
consent judgment – Whether plain1ff’s challenge of s 218 Companies Act
1965 and Form 16D (NaNonal Land Code) declara1on made by defendant res judicata
– Whether plain1ff estopped from denying its liability – Whether consent judgment
s1ll valid – Whether plain1ff’s claim sustainable

Civil Procedure : Judgment - Consent judgment - SeFng aside - Factors to be

considered - Plain1ff sought to declare consent judgment with defendant invalid -
Whether specific grounds in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian
Finance Bhd to set aside consent judgment established - Whether consent judgment
s1ll valid

Mohd Nazlan Mohd Ghazali J:

IntroducNon

[1] This was an applica1on filed by the defendant in encl 8 to strike out the writ of
summons and the statement of claim of the plain1ff in pursuance of O 18 r 19 (1)
(b) and (1)(d) of the Rules of Court 2012 ("the ROC 2012"). I allowed the striking
out of the statement of claim at the end of the hearing on 1 April 2016, and
highlighted the broad grounds for my decision. This judgment contains the full
reasons for my decision.

Brief Background Facts

[2] The plain1ff had, on 6 August 2008, obtained term loan and bridging loan facili1es
totalling RM5,500,000.00 ("the Facility") from the defendant to finance a housing
project in Bandar BUKIT BARU in Melaka, to be developed on two pieces of land,
both of which were created as first party legal charge under the NaNonal Land
Code 1965 ("NLC") in favour of the defendant as security for the repayment of
the Facility in accordance with a facility agreement executed by the par1es on 27
February 2009.

[3] Following a default of the Facility Agreement by the plain1ff, the defendant
commenced a civil suit at Kuala Lumpur High Court Suit No: 22NCC-169-05-2014
to recover all amount outstanding under the facility agreement. Both the plain1ff
and the defendant however then recorded a consent judgment on 23 October
2014 ("the Consent Judgment") (which followed the terms of a seelement offer
leeer dated 2 September 2014 accepted by the plain1ff on 17 October 2014),
whereby based on the plain1ff's admission of its indebtedness to the amount of
RM2,301,708.96 under the facility agreement calculated as at 4 March 2014, the
plain1ff was however only obliged to pay a lesser amount of RM2,140,000.00 by
10 March 2015 as the agreed seelement sum, failing which the plain1ff must pay
all amount outstanding under the Facility Agreement less whatever amount
received before 10 March 2015, and the defendant would be en1tled to proceed
with foreclosing the lands under the charges. It is of note that the reduc1on in
the sum to be paid by the plain1ff as against its original indebtedness was
aeributed to the waiver of penalty interest of RM299,000.00 by the defendant.

[4] In accordance with the Consent Judgment, the plain1ff paid the ini1al sum of
RM50,000.00 to the defendant, and was supposed to have paid RM2,090,000.00
by 10 March 2015, but for the former's request for an extension of 1me to pay
the balance RM2,090,000.00 by one month, un1l 10 April 2015, which the
defendant agreed, subject to the following payment arrangement:

(i) RM300,000.00 to be paid by 27 March 2015; and

 (ii) RM1,790,000.00 to be paid by 10 April 2015, failing which the plain1ff
would have to pay the en1re amount due and owing under the Facility
Agreement as s1pulated in the Consent Judgment.

[5] The plain1ff did not pay the agreed RM1,790,000.00 by 10 April 2015 and further
failed to comply with the defendant's demand for a comprehensive wrieen
proposal to pay the en1re amount outstanding. The plain1ff instead requested
for further financing of the housing development, and made subsequent
proposals unacceptable to the defendant, resul1ng in the defendant's solicitors
issuing a statutory no1ce pursuant to s 218 of the Companies Act 1965 ("the s
218 NoNce") on 10 June 2015 demanding the payment of RM2,081,702.00 within
21 days from receipt of the same. A statutory no1ce under Form 16D of the
NLC in respect of each of the said lands was also issued to the plain1ff on 10 June
2015 demanding payment of the said sum.

[6] The plain1ff then responded by ins1tu1ng a writ ac1on and filed its statement of
claim on 7 July 2015 against the defendant and the pleadings in its statement of
claim significantly include, for present purposes, the following main prayers for
relief:

(i) A declara1on that the said s 218 NoNce dated 10 June 2015 is unlawful
and its issuance by the defendant cons1tutes an abuse of court process;

(ii) An injunc1on restraining the defendant from presen1ng a creditors'

pe11on on the s 218 NoNce;

(iii) A declara1on that the Consent Judgment dated 23 October 2014 is not
valid; and

(iv) A declara1on that the Form 16D dated 8 May 2015 is not valid.

[7] On 22 October 2015, this court dismissed the plain1ff's applica1on for
a Fortuna injunc1on against the s 218 NoNce.

The Law On Striking Out

[8] The applica1on by the defendant was premised on two of the four limbs under O
18 r 19(1) of the Rules of Court 2012 (the "ROC 2012"), which read as follows:

"19. Striking out pleadings and endorsements (O 18 r 19)

 (1) The court may at any stage of the proceedings order to be struck out or
amended any pleading or the endorsement, of any writ in the ac1on, or
anything in any pleading or in the endorsement, on the ground that:

it discloses no reasonable cause of ac1on or defence, as the case may be;

it is scandalous, frivolous or vexa1ous;
it may prejudice, embarrass or delay the fair trial of the ac1on; or
it is otherwise an abuse of the process of the court,

and may order the ac1on to be stayed or dismissed or judgment to be entered

accordingly, as the case may be."

[9] The defendant in the instant case relied on limbs (b) and (d). Thus it was claimed
that the statement of claim was frivolous, vexa1ous and otherwise tantamounts
to an abuse of court process.

[10] The leading authority on O 18 r 19(1) is the Supreme Court's decision in Bandar
Builder Sdn Bhd & Ors v. United Malayan Banking Corpora;on Bhd [1993] 1
MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969, and in par1cular,
the following part of the judgment of Mohamed Dzaiddin Hj Abdullah SCJ (as he
then was):

"The principles upon which the court acts in exercising its power under any of the
four limbs of O 18 r 19(1) Rules of the High Court are well seeled. It is only in
plain and obvious cases that recourse should be had to the summary process
under this rule (per Lindley MR in Hubbuck v. Wilkinson [1899] 1 QB 86, p 91), and
this summary procedure can only be adopted when it can be clearly seen that a
claim or answer is on the face of it "obviously unsustainable" (A:orney-General
of Duchy of Lancaster v. L & NW Ry Co [1892] 3 Ch 274). It cannot be exercised by
a minute examina1on of the documents and facts of the case, in order to see
whether the party has a cause of ac1on or a defence (Wenlock v. Moloney [1965]
1 WLR 1238; [1965] 2 All ER 871). The authori1es further show that if there is a
point of law which requires serious discussion, an objec1on should be taken on
the pleadings and the point set down for argument under O 33 r 3 (which is in
pari materia with our O 33 r 2 Rules of the High Court) (Hubbuck v. Wilkinson)
(supra). The court must be sa1sfied that there is no reasonable cause of ac1on or
that the claims are frivolous or vexa1ous or that the defences raised are not
arguable."
 [11] It is also well-seeled that as for limb (b), the test is the same considera1on on the
claim being obviously unsustainable and that for limb (d), it arises when the
process of the court is not used in a bona fide manner and has been abused (see
the Court of Appeal's decision in Harapan Permai Sdn Bhd v. Sabah Forest
Industries Sdn Bhd [2010] 3 MLRA 37; [2011] 2 MLJ 192; [2011] 1 CLJ 285) and
the said claim must also be proven to be obviously unsustainable (see another
Court of Appeal's decision of Zaina Abidin Hamid & Ors v. Kerajaan Malaysia &
Ors [2009] 2 MLRA 626; [2009] 6 MLJ 863; [2009] 6 CLJ 683). It is equally clear as
it is prac1cal that the situa1ons that could fall within the categories under items
(b) and (d) are never closed given the variety of circumstances arising from the
facts of each par1cular case.

EvaluaNon And Findings Of This Court

Whether There Is Bona Fide Dispute On Indebtedness?

2] The representa1ve of the plain1ff who affirmed affidavits on behalf of the

plain1ff, Mr Jeffrey Yeoh, a Director of the plain1ff averred in his affidavit in reply
dated 24 August 2015 resis1ng this striking out applica1on that the suit had been
filed because the amount demanded by the defendant in the s 218 NoNce was
different from the sum actually due from the plain1ff. In the plain1ff's statement
of claim, it was specifically pleaded the issuance of the s 218 NoNce was wrong in
law since the outstanding sum was only RM1.79 million and not RM2,081,702.27
as demanded in the laeer.

3] It is thus clear that the fact of indebtedness is not in dispute but the amount is, as
suggested by the plain1ff. It is to be observed that in the first place, evidence of
admission of the original indebtedness is incontrover1ble. It is both specifically
and expressly stated in the seelement offer leeer as accepted by Mr Jeffrey Yeoh
himself, on behalf of the plain1ff, to the following effect:

"A. ADMISSION OF BUKIT BARU VILLAS’ DEBT BUKIT BARU VILLAS admits and
undertakes that the amount due and owing by BUKIT BARU VILLAS to MBSB in
respect of the aforesaid Loan Facili1es is Ringgit Malaysia Two Million Three
Hundred One Thousand Seven Hundred Eight and Cents Ninety Six
(RM2,301,708.96) only calculated as at 4 March 2014 ("Indebtedness")."

[14] It is equally manifest, as it is unsurprising, that should the plain1ff default in

making the requisite payment by 10 March 2015, both the seelement offer leeer
and the Consent Judgment provide for the termina1on of the validity of the
 agreed seelement sum and the reversion to the outstanding amount under the
Facility Agreement, to be calculated as at 10 March 2015 onwards, inclusive of
penalty interest for late payment charges which shall also include the penalty
interest of RM299,000.00 previously waived by the defendant. As such, as the
plain1ff failed to honour the terms of the Consent Judgment and make payment
by the s1pulated deadline, the defendant was fully en1tled, in accordance with
the terms of the Consent Judgment, to treat the outstanding sum from the
plain1ff to be reverted to that calculated under the Facility Agreement, instead of
con1nuing to demand for the agreed seelement sum of RM2,140,000.00. It is to
be observed that the plain1ff is asser1ng that the amount outstanding was only
RM1.79 million, and this figure is derived aqer deduc1ng the RM50,000.00 and
RM300,000.00, already paid by the plain1ff to the defendant (RM2.14 million
minus RM350,000.00 equals RM1.79 million). This posi1on is palpably
misconceived for the plain1ff is no longer en1tled to rely on the agreed
seelement sum as the basis of its indebtedness. Its asser1on to the contrary is
en1rely unsubstan1ated and wholly bereq of merit.

[15] In any event, the plain1ff's incontrover1ble admission to the debt of

RM1,790,000.00 but not to RM2,081,702.27 does not do much to for1fy its case.
This is because the Federal Court in the case of Malaysia Air Charter Company
Sdn Bhd v. Petronas Dagangan Sdn Bhd [2000] 1 MLRA 649; [2000] 4 MLJ 657;
[2000] 4 CLJ 437; [2000] 1 AMR 757 has ruled that a no1ce of demand under s
218(2)(a) of the Companies Act 1965 need not specify the exact sum due as at
the date of the demand since for so long as the sum due exceeds RM500.00 and
remains unpaid, aqer a demand has been made, without a reasonable
explana1on to the sa1sfac1on of the court, there is "neglect" to pay such sum
within the meaning of the said sec1on. It could thus be said the winding-up
no1ce demanding for the payment of a sum which is in the amount which is
substan1ally not disputed such as the RM1.79 million is valid and not defec1ve.

[16] The plain1ff raised two other arguments to the effect that reliance on the
Consent Judgment is no longer valid in view of alleged varia1ons to the same. The
first conten1on is that the Consent Judgment provided for the balance of
RM2,090,000.00 to be paid within six months from the date of the Consent
Judgment which should righrully be due by 22 April 2015, but the defendant
demanded payment of the same prior to the expiry of the six-month period. This
conten1on is similarly unmeritorious and en1rely baseless for the Consent
Judgment clearly provides in para (b)(ii) for the six-month period to run from 11
September 2014. It does not start from the date of the Consent Judgment.

[17] Secondly, it was submieed that since the defendant had agreed to depart from
the terms of the Consent Judgment by extending the payment period by one
month, the defendant cannot then premise its s 218 NoNce on the Consent
Judgment. This conten1on too is short on substance. There is no basis to say that
 the Consent Judgment can be set aside even if it was true that there was a
varia1on (see further below on absence of basis for seFng aside of the Consent
Judgment). In any event, notwithstanding the one-month extension, the plain1ff
s1ll failed to abide by the same by not making the payment of RM1,790,000.00
by 10 April 2015, thus rendering the extension to be of no further effect if not
en1rely not valid as a result. Furthermore, if accepted, the plain1ff's conten1on
would for all intents and purposes infringe the principle that a party cannot
benefit from its own default.

[18] It is an established presump1on in law that par1es to a contract do not intend

that either party should be able rely on its own breach of obliga1ons to avoid a
contract or obtain any benefit under it, unless the contrary is clearly provided for
by the contract (see the House of Lords' decision in New Zealand Shipping Co Ltd
v. Societe des Ateliers et ChanLers de France [1919] AC 1). The leading textbook
authority of Chi:y on Contracts (30th edn, 2008) at para 12.082 states that:

"Party Cannot Rely on His Own Breach

It has been said that, as a maeer of construc1on, unless the contract clearly
provides to the contrary it will be presumed that it was not the inten1on of the
par1es that either should be en1tled to rely on his own breach of duty to avoid
the contract or bring it to an end or to obtain a benefit under it. This presump1on
applies only to acts or omissions which cons1tute a breach by that party of an
express or implied contractual obliga1on, or (possibly) of a non-contractual duty,
owed by him to the other party ..."

[19] It is therefore not competent for the plain1ff to now argue for nonreliance on the
Consent Judgment when the issue arose as a result of its own breach of the
same, and not just on a single occasion, and more so when the very existence of
the Consent Judgment too first came about following the plain1ff's infringement
of the terms of the Facility Agreement.

[20] During the hearing of encl 8, the counsel for the plain1ff made the argument that
there was a genuine dispute on the s 218 NoNce since the defendant had been
demanding different figures at various stages. The plain1ff asserted that the
correct amount due was RM1.79 million but the defendant's Form 16D no1ces
claimed for RM2.484 million whilst the s 218 NoNce contains the figure of
RM2,081,702.00. There is in my evalua1on, plainly no confusion as to the actual
amount due and owing to the defendant. The RM1.79 million is no longer
relevant given the default by the plain1ff of the terms of payment as s1pulated in
the Consent Judgment. The demanded amount of RM2,081,702.00 stated in the s
218 NoNce is within the contempla1on of the terms of the Consent Judgement
and is the same as the sum so claimed by the defendant in the two Form
16D no1ces in respect of the two charges. It is clear that the leeers from the
 solicitors for the defendant dated 10 June 2015 enclosing the Form 16D no1ces
for the two charges respec1vely stated that the no1ces supersede any Forms
16D issued prior in 1me. As such, the sum of RM2.484 million as demanded in
the earlier Forms 16D dated 8 May 2015 is no longer valid and has been revised
to a lower amount in the subsequent Form 16D no1ces. Thus, par1es are again
back to the original ques1on on the true amount of indebtedness, either RM1.79
million or RM2,081,702.00 but which essence and substance of purported
dispute as advanced by the plain1ff is in my view premised on asser1ons which
are at best doubly tenuous and spurious in the face of the clear terms of the
Consent Judgment which militate against the posi1on taken by the plain1ff.

Absence Of Basis To Set Aside Consent Judgment

[21] The plain1ff sought to invalidate the Consent Judgment in its statement of claim.
Its conten1on that that specific prayer to be irrelevant to the applica1on now
brought by the defendant because par1es in this striking out applica1on are not
challenging whether or not the Consent Judgment ought to be set aside is in my
view unsustainable. The maeer was plainly pleaded in its statement of claim, and
it is precisely because it was so included in the claim of the plain1ff against the
defendant that en1tles the laeer to ins1tute this striking out applica1on on the
basis of the pleadings which the defendant asserts fall within the ambit of items
(b) and (d) of O 18 r 19(1).

[22] However, the law is so well-seeled that a consent judgment can only be set aside
on specific grounds, as established by the Federal Court in the leading case
of Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1
MLRA 183; [1998] 1 MLJ 393; [1998] 2 CLJ 75; [1998] 1 AMR 909, where Peh
Swee Chin FCJ, in one of the judgments delivered by the Federal Court, stated
instruc1vely as follows:

"The grounds referred to for seFng aside a consent order of a judgment by

consent are grounds which basically relate to consensus ad idemor the free
consent of par1es to a binding agreement or contract. It is elementary that if it is
proved that there are grounds which vi1ate such free consent, the agreement is
not binding. Now a consent order or a judgment by consent is undoubtedly based
on an agreement of both par1es where consent to the agreement must or should
have been free in the first place. If the agreement upon which a consent order or
judgment by consent is based, is viNated by any ground recognised in equity as
viNaNng such free consent, such as fraud, mistake, total failure of consideraNon,
(see Huddesfield Banking Co v. Henry Lister [1895] 2 Ch 273 and the cases cited
therein), then such a perfected consent order or judgment by consent could be
set aside in a fresh ac1on filed for the purpose. Grounds which would viNate
 such free consent should also include misrepresentaNon, coercion, and undue
influence and other grounds in equity."

[Emphasis Added]

[23] It is of relevance to note that the plain1ff did not in its statement of claim or in
any of its affidavits in reply make men1on of, let alone specifically plead any of
the aforesaid grounds established by Badiaddin Mohd Mahidin that could
legi1mately jus1fy the plain1ff seFng aside the Consent Judgment. There was no
allega1on of mistake or fraud or misrepresenta1on, and indeed it would have
resolutely been disingenuous if the plain1ff had alleged coercion on the part of
the defendant who accommodated the plain1ff's own request for extension of
1me.

[24] The plain1ff appeared to argue that the agreement on the part of the defendant
to provide indulgence and extend the 1me for the plain1ff to pay the balance
seelement amount by one month had the effect of vi1a1ng the Consent
Judgment altogether but it is plain that this is not a basis that the law permits the
Consent Judgment to be set aside or declared not valid. As such, the aeempt by
the plain1ff to have the Consent Judgment vi1ated is en1rely without substance
and must fail, and the rule as established in the decision of the former Federal
Court in Ganapathy CheSar v. Lum Kum Chum & Ors; Meenachi v. Lum Kum
Chum & Ors [1981] 1 MLRA 525; [1981] 2 MLJ 145 that an order by consent is
evidence of the contract between par1es which is binding on them must thus in
the instant case be firmly upheld.

The SecNon 218 NoNce Already Ruled To Be Valid - Res Judicata

[25] Furthermore, in any event, it is worthy of emphasis that in dismissing

the Fortuna injunc1on applica1on, this court, in the reported judgment of
Harmindar Singh Dhaliwal J (now JCA) has already ruled that the s 218 NoNce was
valid as it was based on the terms of the Consent Judgment, and that even if it
was issued in excess of the actual amount due, it is s1ll valid for the purpose of s
218. The plain1ff's admission that the amount due and owing being
RM1,790,000.00 was held to be more than sufficient jus1fica1on for a winding-up
order to be made against the plain1ff. This therefore further for1fies the
argument of the defendant that there are no issues to be tried in this ac1on.
[26] The principal prayer in the statement of claim of the plain1ff for the defendant be
restrained by an injunc1on from presen1ng a creditors' pe11on on the s 218
NoNce now being pursued in the instant proceeding has manifestly already been
adjudicated in the hearing for encl 4 for the Fortuna injunc1on applica1on. They
are exactly the same reliefs prayed for, and nothing can be construed to be more
clearly res judicata than the maeer in the claim now being pursued by the
plain1ff. As the issue has already been judicially determined previously in encl 4
and thus res judicata, any further li1ga1on on the same maeer ought thus to be
prohibited.

[27] The common law doctrine of res judicata has been incorporated into the statute
law in Malaysia as can be found in s 25(2) of the Courts of Judicature Act 1964
("CJA") which confers addi1onal powers to the High Court as set out in item 11 of
the schedule to the CJA as follows:

"11. Power to dismiss or stay proceedings where the maeer in ques1on is res
judicata between the par1es, or by reason of mul1plicity of proceedings in any
court or courts the proceedings ought not to be con1nued."

[28] There cannot therefore be any argument about the applicability of res judicata in
the instant case as the relief for the Fortunainjunc1on has been adjudicated by
this court, between the same par1es in dispute.

[29] In addi1on, it is well-seeled in local jurisprudence that the principle of res

judicata is of wider remit, and extends to maeers which are part of the subject
maeer of a li1ga1on which ought to have been raised even if not actually raised
to be determined, due either to in advertence, negligence or deliberately. The
Supreme Court made it clear in Asia Commercial Finance (M) Berhad v. Kawal
Teli; Sdn Bhd [1995] 1 MLRA 611; [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 3
AMR 2559 that there are two kinds of estoppel per rem judicatum, namely cause
of ac1on estoppel and issue estoppel. The relevant passages from the judgment
of Peh Swee Chin SCJ read as follow:

"[1] The significance of res judicata lies in its effect of crea1ng an estoppel
per rem judicatum, which may take the form of either cause of ac1on
estoppel or issue estoppel. The cause of ac1on estoppel arises when
rights or liabili1es involving a par1cular right to take a par1cular ac1on
in court for a par1cular remedy are determined in a final judgment and
such right of ac1on, that is the cause of ac1on, merges into the said
final judgment. The issue estoppel, on the other hand, means simply an
issue which a party is estopped from raising in a subsequent
proceeding.

[2] The doctrine of res judicata is not confined to causes of ac1on or issues
which the court is actually asked to decide or has already decided. It
covers also causes of ac1on or issues or facts which, though not already
 decided as a result of the same not being brought forward due to
negligence, inadvertence or deliberately, are so clearly part of the
subject maeer of the li1ga1on 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."

There are a number of other cases which have since followed this
principle (see, for example, the Court of Appeal's decisions in Huawei
Tech Investment Co Limited v. Transi;on Systems (M) Sdn Bhd [2014] 1
MLRA 148; [2013] 5 MLJ 396 and OCBC Bank (Malaysia) Bhd v. Kredin
Sdn Bhd [1997] 1 MLRA 84; [1997] 2 MLJ 544; [1997] 2 CLJ 534).

[30] Accordingly, given the prayer for a Fortuna injunc1on pleaded by the
plain1ff in the instant case in its statement of claim, and by challenging
the validity of the s 218 NoNce, in turn revolving around the issue of
the actual amount due to the defendant from the plain1ff or even on
other maeers, if any, that could have been raised in the encl 4 hearing
but had actually not been, the same would doubtless s1ll fall within the
scope of res judicata in the nature of both cause of ac1on and issue
estoppel, and thus cannot be further adjudicated upon. It would
otherwise tantamount to an abuse of the process of the court should it
be allowed to be pursued. The Malaysian Rules of Court 2012 - An
AnnotaLon, vol 1, (Lexis Nexis) states that the most common instance
of maeers which are struck out under O 18 r 19 for being frivolous and
vexa1ous are those which are res judicata.

Concluding Analysis

[31] Furthermore, I also agree with the submission of the defendant that as par1es
are duty bound to obey an order of the court such as the Consent Judgment un1l
and unless it is varied or set aside, and disobedience may subject the defaul1ng
party to commieal proceedings (see the Supreme Court's decision in Wee Choo
Keong v. MBf Holdings Bhd & Anor And Another Appeal[1993] 1 MLRA 260;
[1993] 2 MLJ 217; [1993] 3 CLJ 210, the plain1ff is certainly estopped from
denying its liability to pay the en1re amount outstanding under the Facility
Agreement (see also the Federal Court decision in Boustead Trading (1985) Sdn
Bhd v. Arab-Malaysian Merchant Bank Berhad [1995] 1 MLRA 738; [1995] 3 MLJ
331; [1995] 4 CLJ 283; [1995] 3 AMR 2871). In addi1on, the fact that it was the
plain1ff itself who breached the terms of the Consent Judgment could also be
construed to mean that its aeempt to apply for protec1on from a winding-up
 pe11on, in the form of the Fortuna injunc1on was certainly less than jus1fied, for
it is trite law that one who seeks equity must come to court with clean hands
(see Tahan Steel Corpora;on Sdn Bhd v. Bank Islam Malaysia Bhd [2004] 1
MLRH 675; [2004] 6 MLJ 1; [2004] 6 CLJ 25; [2008] 3 AMR 43 and the Court of
Appeal decision in Eastern Proper;es Sdn Bhd v. Hampstead Corpora;on Sdn
Bhd [2007] 2 MLRA 406; [2007] 6 CLJ 538).

[32] The essence of the indebtedness of the plain1ff to the defendant is encapsulated
in the Consent Judgment, which by defini1on evidences the former's admission
to the same, and records, under the sanc1on of the court, the agreement by
par1es on the repayment arrangement. In the absence of any legally recognised
basis to impugn the con1nued validity of the Consent Judgment which remains
resolutely unchallenged and unimpaired, its terms must con1nue to be binding
and govern the rela1onship between the plain1ff and the defendant in respect of
the indebtedness. Any aeempt by the plain1ff to depart or move away from
strictly adhering to the same would thus tantamount to a form of non-
compliance, if not an outright transgression. As it transpired, the plain1ff had
indeed failed to abide by the terms of the Consent Judgment, despite having
earlier made payment in the aggregate amount of RM350,000.00 in pursuance of
the terms of the same, thus clearly then demonstra1ng it having acceded to the
Consent Judgment, albeit only un1l prior to its failure to fulfil its obliga1on to pay
RM2,090,000.00 by the s1pulated deadline of 10 March 2015, and, subsequently
again defaul1ng on honouring the balance payment by the extended deadline of
10 April 2015, which had been accommodated by the defendant en1rely because
of the specific request by the plain1ff itself. Having infringed the terms of the
Consent Judgment, the plain1ff cannot now turn around and aeempt to argue on
the imaginary strength of what in truth are some spurious grounds that the terms
cannot presently be relied on by the defendant. I must also make it clear that I
find no basis which supports the plain1ff's argument, referring to the Court of
Appeal's decision in Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant
Bankers Bhd & Ors [2000] 1 MLRA 111; [2000] 2 MLJ 417; [2000] 2 CLJ 457;
[2000] 2 AMR 1319 that there was a serious conflict of material evidence which
could only be resolved by the calling and hearing of witnesses at trial. For
completeness, it is also trite law that a creditor is not prevented from enforcing
all its legal rights simultaneously to recover against the debtor (see the Supreme
Court case of Low Lee Lian v. Ban Hin Lee Bank Bhd [1996] 2 MLRA 491; [1997] 1
MLJ 77; [1997] 2 CLJ 36; [1997] 1 AMR 1036). There is thus no impediment to the
defendant pursuing both a winding-up ac1on as well as a foreclosure proceeding
under the NLC. As iden1fied above, the disputes in the instant case are far from
being material, and the arguments by the plain1ff on the purported disputes are
either bereq of merit or merely a convenient and an unsubstan1ated
aqerthought at the same 1me.

[33] Given that the Consent Judgment con1nues to be valid and is not varied or set
aside, and the issue of Fortuna injunc1on already res judicata, the basis of the
plain1ff pursuing the suit becomes doubrul and in my view may thus jus1fiably
 be construed as being frivolous and vexa1ous instead, as well as an abuse of the
process of the court, for there is liele consequence in allowing the same be
proceeded with when the essence of the plain1ff's complaint on the extent of
indebtedness vis-a-vis the s 218 NoNce has been shown to be plainly very short
on substance and decidedly unmeritorious. In other words, the claim is obviously
unsustainable. At the same 1me, in addi1on, coupled with the other arguments
raised by the plain1ff as discussed in the earlier part of this judgment, the
plain1ff has unmistakably not demonstrated any triable or arguable issues that
could provide the basis for the claim of the plain1ff not to be struck out and to be
pursued and heard in a full trial instead.

Conclusion

[34] Although the power of the court to dismiss an ac1on summarily under O 18 r
19 is dras1c and ought to be resorted to sparingly, the evalua1on of the facts and
circumstances of the instant case as disclosed in affidavit evidence as discussed
above, cannot lead this court to any other finding apart from one which
concludes that it is conspicuously clear that the claim as filed by the plain1ff is
obviously unsustainable within the test established in the Bandar Builder case.
The evidence more than jus1fies the finding that it is plain and obvious that the
claim ought to be struck out under O 18 r 19(1)(b) for being frivolous and
vexa1ous and under (1)(d) for being an abuse of the process of the court, as well
as under the inherent jurisdic1on of the court to prevent abuse under O 92 r 4 of
the ROC 2012.

[35] In conclusion, in view of the foregoing reasons, it is my judgment that the

defendant has successfully established its case on a balance of probabili1es to
have the claim of the plain1ff struck out under O 18 r 19(1)(b) and (1)(d) and
under O 92 r 4 of the ROC 2012. I therefore allow encl 8 for the defendant with
costs.

COUNSEL:

For the plain1ff: B Devandra; M/s Kamil Hashim Raj & Lim
For the defendant: Helmi Hamzah; M/s Hisham Sobri & Kadir

NOTE:
For full report, please refer to Bandar Baru Villa Sdn Bhd v Malaysia Building
Society Berhad [2017] 1 MLRH 1
 ∠ CASE NO.3: Part I Bandar Baru Villa Sdn Bhd v Malaysia Building Society Berhad
CASE NO.5 Lembaga Minyak Sawit Malaysia v. Arunamari Plantations Sdn Bhd ∠

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