HONG XIN CONSTRUCTION SDN BHD v TETUAN CHONG + KHENG HOE

Case Significance

Confirms that an allegation of false evidence cannot be pursued by committal where the underlying factual issue has already been finally decided, such proceedings being an abuse of process, while reserving indemnity costs for exceptional cases of bad faith.

This High Court decision at Johor Bahru concerns an application to strike out committal proceedings. The committal proceedings had been brought by a law firm, as applicant, alleging that the respondents — a construction company and two individuals connected to it — had sworn a false affidavit in an earlier originating summons between the same parties, specifically by stating that the firm's legal fee invoices had never been served on them. The firm contended that this false statement had deceived the court into making an order in the respondents' favour on 20 August 2024 and amounted to a contempt of court. The respondents applied under Order 18 rule 19 of the Rules of Court 2012 to strike out the committal proceedings as disclosing no cause of action and as frivolous, vexatious or an abuse of process. The Court had to consider several questions: whether an issue already finally determined could form the basis of fresh committal proceedings, given the principles of res judicata and finality of litigation; whether the committal was premature while an appeal remained pending; whether committal was the appropriate remedy for an allegation of false evidence, as opposed to an action to set aside the earlier order for fraud on the court; and whether the moratorium under section 410 of the Companies Act 2016, arising from judicial management, barred committal proceedings, bearing in mind the distinction between an ordinary civil action and the court's quasi-criminal contempt jurisdiction. The Court found that the very issue underlying the false-affidavit allegation — proof of service of the invoices — had already been conclusively decided in the earlier originating summons, so that the committal proceedings were an abuse of process and fell to be struck out. On costs, however, it declined to order indemnity costs, holding that the applicant had not acted mala fide and had a reasonable legal basis for its belief, and awarded costs on the ordinary party-and-party basis.