Chapter 2 - Pre-Litigation Issues - Equitable Remedies and Res Judicata

Question 1

OVERVIEW

Answer 1

1) Equitable remedies

• Acquiescence
• Laches

2) Res judicata
3) Constructive res judicata

Question 2

EQUITABLE REMEDIES

Overview

Answer 2

1) The law
2) The definition & meaning
3) The test
4) Application & example
5) Recent example & application

Question 3

EQUITABLE REMEDIES

The law

Answer 3

S.32:

• court has equitable jurisdiction to refuse relief on several grounds;
• e.g. laches, acquiescence

Question 4

EQUITABLE REMEDIES

The definition & meaning

Answer 4

Alfred Templeton v Low Yat Holdings Sdn Bhd

• meaning of laches: inaction with one eyes open.
• i.e. P has slept upon his rights for great length of time

Question 5

EQUITABLE REMEDIES

The definition & meaning

CA, 2020

Answer 5

Eagaivallinayagi Ammal v Chin Min Hua

• Laches: equitable form of estoppel working against P, based on unjustified & unexplained delay on the part of P.

Question 6

EQUITABLE REMEDIES

The test

A & P

Answer 6

Alfred Templeton v Low Yat Holdings Sdn Bhd

• whether there has been ACQUISCENCE on the P’s part;
• whether there has been any change in POSITION on the D’s part.

Question 7

EQUITABLE REMEDIES

Application & example

Answer 7

Gan Hock Soon v Gan Thay & Ors

• claim is struck out on the grounds of laches;
• unexplained delay of 23 years.

Question 8

EQUITABLE REMEDIES

Recent application & example

FC, 2020

Answer 8

Sivadevi Sivalingam v CIMB Bank Bhd, per Rohana Yusuf FCJ

• S.21 has no application to enforcement of registered charge by way of order for sale.
• if the chargee took forever to enforce charge, chargor could avail to equitable defence such as laches to show cause to contrary.

Question 9

RES JUDICATA

Overview

Answer 9

1) Meaning
2) Objective
3) Elements
4) Examples
5) Constructive res judicata

Question 10

RES JUDICATA

Meaning

CA, 2016

Answer 10

Malpac Capital Sdn Bhd v Yong Toi Mee

• fundamental legal doctrine that prevents party from re- litigating any claim or defence already litigated.
• res judicata can give rise to cause of action estoppel or an issue estoppel (constructive res judicata).

Question 11

RES JUDICATA

Objective

CA, 2016

Answer 11

Malpac Capital Sdn Bhd v Yong Toi Mee

• to ensure the finality of judgments;
• to conserve judicial resources whilst protecting litigants from multiple litigation involving the same claims or issues.

Question 12

RES JUDICATA

Elements

FC, 2019

JPJ FOM SQ P

Answer 12

Syarikat Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor

• J: judicial - the decision was judicially relevant;
• P: pronouncement - the decision was pronounced;
• J: jurisdiction - the decision was made with jurisdiction;
• FOM: final & on merits - the decision was final & made on merits.
• SQ: same question - the decision determined the same questions as that raised in the later question;
• P: parties - the parties of the later litigation were either parties to the earlier litigation or their privies

Question 13

RES JUDICATA

Example

2018

Answer 13

Scott English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd:

• when appeal to CA & leave to appeal to FC are dismissed, all litigation pertaining to decision made by HC has run its entire course.
• The parties have exhausted all possible appeals;
• Attempt to re-litigate the same matter is barred by res judicata.

Question 14

CONSTRUCTIVE RES JUDICATA

Overview

Answer 14

1) Meaning & scope
2) Origin
3) The rule

Question 15

CONSTRUCTIVE RES JUDICATA

Meaning & scope

Answer 15

• An issue that was not raised by a party during the initial legal proceedings can still be estopped from being put forward.
• Although there was no actual decision in litigation between parties as to the issue involved in a present case, the issue could, and should, have been raised before.

Question 16

CONSTRUCTIVE RES JUDICATA

Origin

Answer 16

Yat Tung Investment Co Ltd v. Dao Heng Bank Ltd:

• The board acknowledged that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.

Question 17

CONSTRUCTIVE RES JUDICATA

The rule

Answer 17

Government of Malaysia v. Dato Chong Kok Lim:

• A matter which might and ought to have been made a ground of attack or defence becomes a matter which was constructively in issue.
• The plea of res judicata is deemed to have been a matter directly and substantially in issue in the former application;
• A matter which may not have been actually directly and substantially in issue is still regarded as, having been constructively, directly and substantially in issue.