LEE POH CHOO v SEA HOUSING CORPORATION SB

LEE POH CHOO (F) V. SEA HOUSING CORPORATION SB

HIGH COURT [KUALA LUMPUR]
SUIT NO F116 OF 1982
RAHMAH HUSSAIN, J

31 MAY 1999

JUDGMENT

The Plaintiff's claim is for liquidated damages for late delivery for the period of 16 June 1977 to 10 June 1982 (1852 days) at the statutory rate of 8% per annum. Thereafter at RM38.36 per day until delivery of vacant possession.

Thus the Plaintiff's claim is straightforward and clear. By a written agreement dated 2 January 1974, (hereinafter referred to as "the said Agreement") [see pages 94-116 Bundle A] the Plaintiff agreed to purchase from the Defendant the relevant property known as Lot No. 25602 together with a three storey shophouse to be erected thereon (hereinafter referred to as the "the said Building") at the purchase price of RM175,000.00.

Pursuant to Clause 17 of the said Agreement [see page 105 - Bundle A] the said Building was to have been completed and vacant possession thereof delivered by the Defendant to the Plaintiff by 1 July 1975.

The building was completed by the Defendant on 16 June 1977. The Defendant had vide Notice dated 16 June 1977 [see pages 117-119 -- Bundle [3] A] requested the Purchaser to take possession of the said Property within 14 days from the date of the said Notice. The Defendant in the said letter/notice also demanded from the Plaintiff payment of the balance purchase price of RM17,500.00 and RM407.20 as quit rent.

The Plaintiff upon receipt of the Defendant's Notice however maintained that they were entitled to set off liquidated damages for late delivery at 8% per annum of the purchase price which amounted to RM27,826.66 i.e. from 2 July 1975 to 16 June 1977 from the said claim of the Defendant for the balance purchase price and quit rent. [See pages 120-121 -- Bundle A; pages 124, 128-129 -- Bundle A].

The issue of set off was litigated in Kuala Lumpur High Court Civil Suit No. 2962/77 wherein the Plaintiff was awarded liquidated damages for late delivery for the period from 1 July 1975 to 16 June 1977 [amounting to RM27,826.66] and the Plaintiff obtained only RM9,916.46, after setting off the sum of RM17,907.20 held to be due to the Defendant.

The decision of the High Court as reported in Lee Poh Choo v S.E.A. Housing Corporation Sdn. Bhd. (1982) 1 MLJ 324 , was affirmed by the then Federal Court. [See S.E.A. Housing Corporation Sdn. Bhd. v Lee Poh Choo (1982) 2 MLJ 32. - These two cases are hereinafter collectively referred to as "The First Suit"].

The present suit was filed by the Plaintiff on or about 17 May 1982 and the claim herein is for damages for late delivery for the period 16 June 1977 to 10 June 1982 (1852 days) at the statutory rate of 8% per annum. [4]

In his written submission learned counsel for the Defendant raised several issues. However as the only defence pleaded in the Statement of Defence is that of res judicata [see paragraphs 6 & 8 -- Statement of Defence] I shall only deal with this issue.

It is submitted on behalf of the Plaintiff that the doctrine of res judicata does not apply to the facts of our case. According to learned counsel for the Plaintiff, the First Suit was essentially a claim by the Plaintiff for specific performance of the Agreement i.e. to force the Defendant to transfer the property to the Plaintiff. The Plaintiff also claimed damages in addition to specific performance which were necessarily limited to that which had accrued up to the filing of the suit. Whereas the Second Suit i.e. the suit herein is for damages for the period 16 June 1977 to 10 June 1982. Thus the bringing of an action for damages for part of a period does not preclude or bar a claim for a subsequent period.

It is trite law that a party is bound by his/her pleading [see Abdul Rahman Bin Abdul Karim v Abdul Wahab Bin Hamid (1996) 4 MLJ 623 ]. Therefore the only issue for me to determine in this case is whether the claim in the Second Suit herein, is similar in nature with the claim in the First Suit, so as not to be caught by the principle of res judicata.

The Supreme Court in a very recent decision in Asia Commercial Finance (M) Bhd. v Kawal Teliti Sdn. Bhd. (1995) 3 AMR 2559, had very clearly expounded the law on the plea of res judicata. The learned Supreme [5] Court Judge, Peh Swee Chin, FCJ (as he then was) had this to say at page 2571 lines 32-45:

"What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation -- interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action -- nemo debet bis vaxari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy."

His Lordship also makes reference to the celebrated passage by Wigram V.C. in the case of Henderson v Henderson (1843) 3 Hare 100, 115 which is:

"The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time."

Thus having perused the pleadings in both the suits, and after having heard the evidence as adduced by the Plaintiff, I was satisfied that the First Suit was essentially a claim for Specific Performance of the Agreement as the Defendant had refused to transfer the property to the Plaintiff. Although the Plaintiff also claimed damages, in addition to Specific Performance, the claim was however limited to that which had accrued up to the filing of the suit. Whereas the Second Suit herein, is a claim for damages, for the period of 16 June 1977 to 10 June 1982, which is after the filing date of the First Suit. [6] According to the Plaintiff "I filed this suit on 17 May 1982. I had not received possession of the building at this time". I totally agree with the submission by learned counsel for the Plaintiff that the bringing of an action for damages for part of a period does not preclude or bar a claim for subsequent period. Thus it is my considered opinion that the principle of res judicata does not apply in this case.

As I have said earlier, I shall not touch on the other issues raised by learned counsel for the Defendant as they have not been pleaded. I shall now deal with the award of interest. In this case I have decided to award interest at 8% p.a. from 11 June 1982 (that is after the date of delivery of vacant possession) up to the date of payment on the basis that the Plaintiff has been kept out of the use of whatever money she was entitled to.

Thus for the above reasons, I gave judgment to the Plaintiff as follows:

(a) ;damages in the sum of RM71,035.61;

(b) ;interest thereon at 8% p.a. from 11.6.82 up to date of payment;

(c) ;costs.