SHAH ALAM HIGH COURT APPEAL NO: 12-452-2010

AUTO EUROKARS SDN. BHD

Appelant/Defendant

VS

NOOR ADILAH BINTI AHMAD

1st Respondent/ 1st Plaintiff

SASCHA SAINER
2nd Respondent/ 2nd Plaintiff

Dato' Mokhzani Mahathir, Chairman of Jaseri Auto

Eurokars Centre showroom and service facility in Glenmarie, Shah Alam, Selangor.

Eurokars' fully equipped service centre

Issues
This case analysis is pertaining to the appeal case from Shah Alam Session Court to Shah Alam High Court. This appeal made by Auto Eurokars Sdn Bhd against the decision of Shah Alam Session Court where Auto Eurokars Sdn Bhd as a defendant /appellant and Noor Adilah binti Ahmad and Sascha Sainer as plaintiffs/respondents (hereinafter collectively referred to as Adilah).

Case Chronology
In the year 2008, Adilah sent her Porsche car to Auto Eurokars for repairing. Auto Eurokars agreed to repair the car and fulfilled the agreement The cost was RM 31,017.60 Adilah issued the cheque for said amount however the said cheque was bounced. Auto Eurokars has demanded many times for the payment and Adilah failed to honour the payment.

Cont.
Auto Eurokars has demanded many times for the payment and Adilah failed to honour the payment. Auto Eurokars has filed summons against Adilah thru summon no 52-2267-2008 at Shah Alam Session Court During the first mentioned date, Adilah appeared and the court instructed her to file the statement of defence before the next mention date. However, Adilah failed to do so.

Cont.
Consequently, the judge has entered judgment in default of defence against Adilah. Adilah has filed an application to set aside the said judgment in default of defence (JID) in the session court. However, the court has dismissed her application with cost. As such, the said JID obtained by Auto Eurokars still exists.

Cont
In the year 2009, Adilah has filed a fresh suit against Auto Eurokars claiming for the sum of RM 131,296.60 through summon no 52-2456-2009 for repairing cost at different workshop. She contended that Auto Eurokars failed to repair her car; that made her to send to another workshop. Auto Eurokars has filed in defence against the statement of claim and also filed a counter claim against Adilah Auto Eurokars claiming that Adilah who was actually indebted to them for the judgment sum obtained in 2008

Cont
Based on that ground, Auto Eurokars has filed in an application to striking out Adilah summons and statement of claim under order 14 rules 21(1) (d) subordinates court rule 1980 (hereinafter referred to as O.14 SCR) Due to Adilah's action has no cause of action and all the issue and facts in this action has been decided by the session court in 2008 And therefore, it is res judicata. It is also an abuse of the process of court.

Cont
Auto Eurokars application has been supported by supporting affidavit by which the said affidavit stated that; 1) Auto Eurokars has repaired Adilahs car WHD 7200 , plaintif satisfied and handed-over the cheque RHB 52587 amounting to RM31, 017.60 as full payment. However, the cheque was bounced. And she failed to make payment eventhough has been demanded many times by Auto Eurokars. 2) Adilah also failed to surrender the said car type Porsche to Auto Eurokars for repairing if the car is still not in good condition as what she contended.

Cont
3) Due to no payment from Adilahs Auto Eurokars has filed summons against her through summon no 52-22672008 at Shah Alam Session Court 4) Adilah appeared at 1st mentioned and the court instructed her to file the statement of defence before the next mention date,however, Adilah failed to do so.Consequently, the judge has entered judgment in default of defence against Adilah 5) Adilah has filed an application to set aside the said judgment in default of defence (JID) in the session court. However, the court has dismissed her application with cost.

High Court Decision

An appeal from Auto Eurokars against the decision of the said session court has been allowed by high court. As such, appeal by Auto Eurokars has been allowed with cost of RM 1500.00.

Ground of Judgment of the decision is: According to the High Court Judge, the current case is obviously sustainable. The High Court Judge also of the opinion that Adilahs action is at abuse process of court

Cont
The High Court Judge also of the opinion that Adilahs action is at abuse process of court and not in good faith (bona fide). This is because all the facts and issue in this case are same as the earlier case which has been initiated earlier on by Auto Eurokars. This opinion is in line with the opinion given by Low Hop Bing (HMR) in the case of Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd [2010] 1 LNS 1038;

Cont
High Court Judge also agreed that Adilah's action is against doctrine of res judicata. On the ground that the present case and the previous case which has been filed by Auto Eurokars has the same facts and issues which has been decided by sessions court judge.

The doctrine of res judicata has been clearly explained in the case Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783; [1995] 3 MLJ 189;

Group Opinion
From the above case, Adilah have no intention to the pay the cost repairing their Porsche, by issuing fake cheqeu to Auto Eurokars Sdn Bhd. They also tried to fool the court by filing the groundless summons towards Auto Eurokars Sdn Bhd. Nevertheless, courts should not allowed cases that already been heard to be re-trial by the same parties on the same issue when judgment already been said this is best explain by the doctrine of res judicata.

Res-Judicata
Based on the said doctrine of res judicata which has been explained in the above stated case, it is obvious that the court must be satisfied with the final decision that been made in the previous case which involved the same parties, pertaining to the same issue, with the same cause of action which has been decided on merit.

Breach of Contract
Contract is an agreement is formed between parties to carry out a service and payment for that service. If one of the parties fails to carry out their side of the agreement then the party can be said to be in breach of contract Included of non payment for a service or not paying on time without a reasonable excuse Terms and conditions are a fundamental part of a legally binding contract and any broken terms can lead to breach of contract.

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