Sia Sung Ho v Usaha Cendera Cerah Sdn. Bhd, 24-04-2007

• Judge: Y.A. TUAN HAJI HAMID SULTAN BIN ABU BACKER
• Judgment Date: 24 April 2007
• Court: High Court (Malaysia)
• Record Number: 22-50-2003-II

46

S-22-50-2003-II

MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING

SUIT NO 22-50-2003-II

BETWEEN

SIA SUNG HO

87, Lot 4618, Jalan New Airport, Borneo Garden,

93250 Kuching, Sarawak … Plaintiff

AND

USAHA CENDERA CERAH SDN BHD

Lot 333, Tabuan Laru Commercial Centre,

93350 Kuching Sarawaak. … Defendant

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER

Y.A. TUAN HAJI HAMID SULTAN BIN ABU BACKER

IN CHAMBERS

JUDGMENT

1. This is my judgment in respect of the appellant’s/plaintiff’s appeal (encl. 71) against the decision of the learned Deputy Registrar allowing the respondent’s/defendant’s application encl. 31 to strike out the plaintiff’s claim for want of prosecution, pursuant to order 25 rule 1(4), order 34 rule 2 (2), order 27 rule (3) and/or inherent jurisdiction of the court.

2. The grounds of the application for encl. 31 of the respondent was that:

(a) no notice of trial has been given, no summons for directions has been issued and no discovery made; (b) no steps have been taken to set down the action for trial; (c) the plaintiff’s default has been intentional and contumelious; and (d) there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers giving rise to a substantial risk that a fair trial would not be possible or cause serious prejudice to the defendants.

3. In opposing encl. 31, the plaintiff has filed an affidavit, inter alia, stating that:

(a) writ and statement of claim was issued on 9-05-2003. They were amended on 27-05-2003. Memorandum of appearance was filed on 29-05-2003. By consent, defence and counterclaim was filed on 24-06-2003. On 16-07-2003 reply and defence to counterclaim was filed.

(b) the defendant has not filed a reply to defence and counterclaim till date.

(c) plaintiff on 29-05-2003 filed application for specific performance. A number of affidavits were filed by both parties.

(d) on 27-08-2003, at the hearing of the application before the court, the plaintiff’s and the defendant’s counsels conceded that from the pleadings and affidavits filed herein, there was triable issues in respect of sublots 22 and 23 and that these triable issues could only be resolved at the trial proper, but that the plaintiff was entitled to specific performance in respect of sublots 24 and 25. Accordingly, on 27-08-2003, by consent, the court ordered, inter alia, that “the Defendant shall deliver the titles to all the Parcels in Sublots 24 and 25 of Lot 9681 Block 11 Muara Tebas Land District together with the Memoranda of Transfer and all other incidental documents to transfer the ownership of Sublots 24 and 25 to the Plaintiff within fourteen (14) days from the sealing of this Order”, without prejudice to the defendant’s defence, assertions and stand in respect of sublots 24 and 25.

(e) the period from 27-08-2003 when the order of court was given to 26-102004, was preoccupied with the implementation of the order of court in exploring alternative resolution to the dispute between the plaintifff and the defendant in respect of sublots 22 and 23.

(f) on 26-10-2004, the defendant’s advocates wrote to the advocates of the plaintiff, indicating no possibility of alternative resolution to the dispute.

(g) on 18-11-2004, the plaintiff filed the Originating Summons No. 24-492-2004-III(II) applying for an order to remove caveat instrument No.11367/2002 registered at the Kuching Land Registry Office on 6-06-2002, and lodged by the defendant against his land. Various affidavits were filed by both parties. On 7-03-2005, the court gave the order to remove the said caveat.

(h) in consequence of the circumstances stated above, the requirement to take out the summons for directions and notice to attend pre-trial case management was overlooked. The oversight was neither intentional nor contumelious, and in the circumstances of the case, the delay is not inordinate or inexcusable such as to give rise to a substantial risk that a fair trial would not be possible or will cause serious prejudice to the defendant.

4. The defendant in his supporting affidavit for encl. 31, inter alia, states that:

(a) there was no necessity to file a reply merely to deny the allegations contained in the defence to counterclaim as the Rules of High Court provide that there is a joinder of issue on the defence and that pleadings are deemed to be closed.

(b) the order dated 27-08-2003 was complied with by all parties forthwith i.e. from 27-08-2003, notwithstanding that the sealed copy was served on 01-10-2003. The memoranda of transfer (sublots 24 and 25) to the plaintiff was registered on 16-10-2003 at the Kuching Land Registry. The implementation of the order was concluded within 14 days and the end result of the order was achieved within 7 weeks from the granting of the order. Therefore, the implementation of the order did not take a period from 27-08-2003 to 26-10-2004, but rather 14 days or at most 7 weeks from 27-08-2003.

(c) the plaintiff’s averment to alternative dispute resolution in respect of sublots 22 and 23 is not admissible evidence for it was conducted on a without prejudice basis.

(d) the proceedings relating to Originating Summons No. 24-492-2004-III(II) and its chronology relate to a separate and distinct case and the plaintiff had stated in that proceedings has no connection with the parties to this action. In consequences, the “circumstances” referred to whether taken separately or together cannot form any basis for overlooking summons for directions/notice to attend pre-trial case management and therefore the plaintiff’s denial of intention and contumacy is baseless.

(e) there has been an admission by the plaintiff of his indebtness to the defendants for the sum of RM 800,000.00 as pleaded in the defence and counterclaim. In the event, the plaintiff’s action is dismissed for want of prosecution. The defendant would be entitled to have judgment by admission entered against the plaintiff for the said sum of RM 800,000.00.

5. The defendant, inter alia, submits as follows:

(a) Order 25 rule 1(4) RHC 1980 state as follows:

“(1) With a view to providing, in every action to which this rule applies, an occasion for the consideration by the court of the preparations for the trial of the action, so that —

(a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

(b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof,

the plaintiff must, within one month after the pleadings in the action are deemed to be closed, take out a summons in Form 46 (in these rules referred to as a summons for directions) returnable in not less than 14 days.

(4) If the plaintiff does not take out a summons for directions in accordance with the foregoing provisions of this rule, the defendant or any defendant may do so or apply for an order to dismiss the action.”

(i) given that there was no necessity for the defendant to file a reply merely to deny the allegations contained in the defence to counterclaim dated 09-07-2003; as the Rules of High Court provides that there is a joinder of issue on the defence; pleadings are deemed to be closed after the 14 days to reply expires i.e. on 23-07-2003.

(ii) from the above chronology, there is a delay of more than 2 years from the time pleadings are deemed closed to the defendant’s application for dismissal for want of prosecution filed on 5-08-2005.

(iii) the failure to take out summons for directions within one month has in many cases been construed adversely against the plaintiff. In Dato’ Leong Pow Kue & Ors v. Gan Kim Sing [1998] 7 MLJ 133, the court stated that:

“Thus, in Ratnam v Cumarasamy & Anor [1964] 3 All ER 933, Lord Guest had this to say at p 935 of the report:

The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.

Then there is the case of Revici v Prentice Hall Incorporated & Ors [1969] 1 All ER 772, where Lord Denning MR said at p 774 of the report:

Nowadays we regard time very differently from what they did in the nineteenth century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the rules as to time. So, here, although the time is not so very long, it is quite long enough. There was ample time for considering whether there should be an appeal or not. (I should imagine it was considered.) Moreover (and this is important), not a single ground or excuse is put forward to explain the delay and why he did not appeal. The plaintiff had 31/2 months in which to lodge his notice of appeal to the judge and he did not do so. I am quite content with the way in which the judge has exercised his discretion. I would dismiss the appeal and refuse to extend the time any more.

In short knife stabbing words, Lord Denning MR in Burmah Oil Co Ltd v Bank of England [1979] 2 All ER 461 remarked...