Kok Hoong v Leong Cheong Kweng Mines Ltd

APPEAL (No. 36 of 1962) from an order of the Supreme Court of the Federation of Malaya in the Court of Appeal at Kuala Lumpur (March 6, 1962) reversing an order of the High Court at Kuala Lumpur (September 6, 1961).

The following introductory statement is taken from the judgment of the Judicial Committee. The issue raised by this appeal involves a preliminary point of law taken by the appellant in an action pending between him and the respondent company in the High Court of the Federation of Malaya. In that action the appellant is suing the respondent for moneys alleged to be due to him and certain other relief, and he has objected to a defence, or set of defences, put in by the respondent, on the ground that the latter is estopped from raising them by virtue of a previous judgment given in an earlier action between the same parties. It is the validity of this objection that was argued and decided as a preliminary point. In the High Court Ong J. upheld it: his judgment was reversed in the Court of Appeal (Thomson C.J., Hill and Good JJ.A.), who decided that there was no estoppel.

The issue is one of law. The relevant facts embrace nothing more than the circumstances of the earlier action, in which was given the judgment that is said to have created the estoppel, and the pleadings in the present action which is now pending.

The former action was instituted as a civil suit in the High Court of the Federation on June 30, 1954. The appellant filed a plaint by way of summary procedure, alleging that under an agreement in writing dated June 20, 1952, he had let certain machinery and equipment on hire to the respondent for 12 months from the date of the agreement at an agreed monthly rent, and that on the expiry of the 12 months' period the respondent had continued the hiring on the same terms. The respondent was, he claimed, in arrears with the rental payments for the month commencing from September 20, 1953, and subsequent months, and he asked for judgment accordingly for a stated sum of dollars in respect of rent and a further sum in respect of interest on areas of rent, as provided in the agreement. Particulars showing the manner in which these sums were computed were annexed to the plaint.

On November 3, 1954, the appellant obtained a decree in his suit giving him judgment against the respondent for the sums of money claimed. This judgment was obtained on the respondent's default, the decree reciting that the respondent had not obtained leave to appear and defend.

The present action was begun on June 14, 1957. It also is a civil suit in the High Court and it is between the same parties as before. The appellant has filed a plaint in the suit, and in its amended form, paragraphs 2 to 10 inclusive of the plaint run as follows:

“2. That under an agreement in writing dated the 20th day of June, 1952 the plaintiff let certain machinery and equipment on hire to the defendant for the term of 12 months from the 20th day of June, 1952 at $2,500/-(dollars two thousand five hundred only) per month, the first of such payments to be made on the 19th July, 1952 and each subsequent payment on the 19th day of each succeeding month. A copy of the said agreement is attached hereto and marked ‘A.’ 3. That on the expiry of the term of 12 months aforesaid the defendant continued hiring the said machinery and equipment on the terms and conditions contained in the said agreement.

4. By arrangement with the defendant the plaintiff re-took possession of two items of the said machinery and equipment in May, 1955 and it was agreed between the plaintiff and the defendant that the defendant was to continue hiring the remainder of the said machinery and equipment, which are in the defendant's possession, on the terms and conditions contained in the said agreement subject to the following variations thereof, namely:-(a) The hiring to commence from the 20th day of April, 1955. (b) The rent for the hire to be $2,000/-(dollars two thousand only) with first payment on the 19th day of May and subsequent payments on the 19th day of each succeeding month. (c) That insurance to be in the sum of $80,000/-(dollars eighty thousand only). 5. The particulars of the two items hereinbefore...