PERUNDING IZA'D SENDIRIAN BERHAD v 1. ) Ketua Setiausaha Kementerian Pertahanan Malaysia 2. ) Kerajaan Malaysia

Case Significance

An engineer's consultancy-fee appeal dismissed on res judicata after the same claim was litigated against the main contractor, a wrong-appeal-form objection being excused as a non-fatal defect under Order 1A.

This High Court decision is an appeal by a firm of mechanical and electrical engineers against the dismissal of its claim for professional consultancy fees said to be owed by the Government of Malaysia in connection with a project. The firm contended that it had completed some 80% of the required consultancy work — tender-ready designs and Bills of Quantities — and was entitled to remuneration on that basis, whereas the Sessions Court had found its work limited to a much earlier schematic phase.

Two distinct issues framed the appeal. The first was a preliminary objection of a procedural character: the Notice of Appeal had been filed using Form 111 instead of the prescribed Form 111A. The Court treated this as a technical non-compliance that was not fatal, invoking Order 1A of the Rules of Court 2012 and the overriding interest of justice; the respondent had been fully apprised of the grounds of appeal, no substantial miscarriage of justice or prejudice had resulted, and any defect could be remedied by costs, so the objection did not defeat the appeal. The second, and decisive, issue was res judicata. The firm had previously sued the main contractor in respect of the same project, and the present suit against the Government sought the same professional fees; the questions of liability and quantum had, in substance, already been finally adjudicated, and to allow the fresh action was to permit litigation by instalments.

The Court held that the Sessions Court had been correct in law to uphold the plea of res judicata, and found no manifest error in the factual determination that the firm's work was confined to the schematic phase rather than the 80% claimed. Finding nothing plainly wrong in the decision below, it dismissed the appeal with costs. The judgment illustrates both the tolerance shown to non-fatal procedural defects under Order 1A and the strictness with which res judicata bars a second action over an already-adjudicated claim.