PANG SHYIAN JUANG

Case Significance

Sets aside as a nullity an order that would have re-opened a concluded and consented estate-distribution order, applying the wide doctrine of res judicata against a backdoor appeal and the court's power to set aside ex debito justitiae.

This High Court (Johor Bahru) decision concerns an intervener's application to set aside an earlier order in estate-administration proceedings on the basis that the order was a nullity as a whole. The proceedings related to the administration of an intestate estate, the deceased having died intestate, and the underlying dispute concerned whether certain property formed part of the deceased's estate. The application to set aside was made under Order 71 of the Rules of Court 2012 and invoked section 24(f) of the Courts of Judicature Act 1964, together with the court's inherent jurisdiction.

Having read the submissions and all the cause papers, the court allowed the intervener's application to set aside the impugned order, with costs of RM3,000 payable by the applicant to the intervener. The grounds engaged included the jurisdiction to set aside an ex parte order, the right to be heard, whether the court was functus officio, allegations of misrepresentation and non-disclosure of material facts, and whether the impugned order conflicted with a prior order and offended the finality of an administrative distribution order made through the Estate Distribution Officer under the Small Estates (Distribution) Act 1955.

Central to the reasoning was the doctrine of res judicata and the principle that a regularly and properly concluded matter cannot be re-litigated. The court found that the impugned order had the effect of revisiting a distribution order dated 15 October 2019 that had already been concluded and consented to by the beneficiaries of the estate, and that allowing it to stand would subvert that concluded order. Drawing on the Federal Court's statement in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd that the re-litigation of a properly concluded matter is prohibited by the wide doctrine of res judicata, and observing that permitting the order to stand would amount to a backdoor appeal against a concluded High Court order, the court set the order aside ex debito justitiae. The applicant thereafter filed an appeal to the Court of Appeal.