1. Is recognised in Malaysian jurisprudence

In Kam Thai Eng Linda & Anor v Tan Sri Dato’ Kam Woon Wah & Ors [2023] 1 MLJ 765 (“Kam Thai Eng Linda”), the Court of Appeal was of the view that: :

“… the principle of judicial estoppel is recognised in our shores as enunciated by this court in Nurul Izzah and Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63.”[1] (Emphasis mine)

2. Applies to a position taken by a party in a prior proceeding

In Edwards v Aetna Life and Casualty (1980) 690 F 2s 595 [“Edwards”], the United States Court of Appeals (6th Circuit) made the following observations:

“The doctrine of judicial estoppel applies to a party who has successfully and unequivocally asserted a position in a prior proceeding; he is estopped from asserting an inconsistent position in a subsequent proceeding.”[2] (Emphasis mine)

The above extract was quoted approvingly by Christopher Clarke J in OJSC Oil Co Yugraneft (in liquidation) v Abramovich and others [2008] EWHC 2613 (Comm), which was relied upon by  the Court of Appeal in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 [“Leisure Farm Corp”].[3]

Idrus Harun JCA (later FCJ) also noted in Leisure Farm Corp that:

“It is clear to this court that the object of judicial estoppel is to prevent a party who assumes a particular position in litigation to take an inconsistent position in later litigation.”[4] (Emphasis mine)

See Mee Chun JCA made a similar observation in Kam Thai Eng Linda.[5]

3. To prevent intentional inconsistency

In Peguam Negara Malaysia v Nurul Izzah Anwar & Ors [2017] MLJU 273 (CA) [“Nurul Izzah”], Idrus Harun JCA (later FCJ) held that:

“The essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[6] (Emphasis mine)

Idrus Harun JCA (later FCJ) made the same remark in Leisure Farm Corp:

“Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[7] (Emphasis mine)

4. To prevent abuse of the judicial process

In Balbeer Singh a/l Karam Singh & Ors v Sentul Raya Sdn Bhd [2022] 1 MLJ 30, the Court of Appeal remarked the following:

“It is important to bear in mind that the theory behind the doctrine of judicial estoppel is that parties should not be permitted to abuse the judicial process by taking inconsistent stands.”[8] (Emphasis mine)

5. May be applied even if detrimental reliance or privity does not exist

The United States Court of Appeals (6th Circuit) observed in Edwards that:

“Unlike equitable estoppel, judicial estoppel may be applied even if detrimental reliance or privity does not exist.”[9] (Emphasis mine)

The above extract was quoted approvingly by Christopher Clarke J in OJSC Oil Co Yugraneft (in liquidation) v Abramovich and others [2008] EWHC 2613 (Comm), which was relied upon by  the Court of Appeal in Leisure Farm Corp.[10]


[1] Kam Thai Eng Linda & Anor v Tan Sri Dato’ Kam Woon Wah & Ors [2023] 1 MLJ 765 (CA), at para 31

[2] Edwards v Aetna Life and Casualty (1980) 690 F 2s 595, at p. 598

[3] Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 (CA), at para 16

[4] Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 (CA), at para 16

[5] Kam Thai Eng Linda & Anor v Tan Sri Dato’ Kam Woon Wah & Ors [2023] 1 MLJ 765 (CA), at para 34

[6] Peguam Negara Malaysia v Nurul Izzah Anwar & Ors [2017] MLJU 273 (CA), at para 21

[7] Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 (CA), at para 17

[8] Balbeer Singh a/l Karam Singh & Ors v Sentul Raya Sdn Bhd [2022] 1 MLJ 30 (CA), at para 80

[9]  Edwards v Aetna Life and Casualty (1980) 690 F 2s 595, at p. 598

[10] Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 (CA), at para 16