[2022] 1 LNS 2731 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA
(BAHAGIAN SIVIL)
[GUAMAN SIVIL NO: WA-22NCvC-719-09/2019]

ANTARA

SERI STAMFORD COLLEGE SDN BHD

(No. Syarikat:184286-A) … PLAINTIF

DAN

1. ILIMO SATELLITE TOWNSHIP DEVELOPMENT LIMITED

(Papua New Guinea No. Pendaftaran: 1-103759)

2. MOK CHEE HOONG … DEFENDAN-DEFENDAN

JUDGMENT

(Enclosure 41)

INTRODUCTION

[1] The Plaintiff filed a Notice of Application (enclosure 41) for

leave to withdraw the Writ of Summons and the amended Statement of
Claim (SoC) dated 07.02.2020 with the liberty to file afresh, and costs
of this application are to be borne by the Plaintiff. The First
Defendant (D1) objected to this application because they have filed a
counterclaim against the P. The withdrawal with liberty to file afresh
is unfair to the Defendants (Ds) as they are now the Plaintiff in this
suit due to the counterclaim, and they have to amend the relevant
cause papers to reflect the new status. In the circumstances, D1 asked
that the Plaintiff’s Notice of Application to withdraw is with a caveat
that there will be no liberty to file afresh. The Second Defendant (D2)

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did not file any affidavit in reply but informed the Court that he
adopted the submission by D1.

[2] The relevant cause papers and written submissions are as

follows:

(a) The amended Statement of Claim dated 07.02.2020

(enclosure 16);

(b) D2 statement of defense dated 12.03.2020 (enclosure 19);

(c) D1 statement of defense dan counterclaim

dated 13.03.2020 (enclosure 20);

(d) Notice of application dated 22.03.2022 (enclosure 41);

(e) Plaintiff’s affidavit in support affirmed by Chee Guan Kai

on 23.03.2022 (enclosure 42);

(f) D1’s affidavit in reply affirmed by Mok Chee Hoong on

01.04.2022 (enclosure 43);

Submissions/submissions in reply filed by the Plaintiff and the

Defendant.

[3] This Notice of Application was heard on 20.06.2022. After

perusing the cause papers filed and the respective written submissions
of the parties, I allowed the said application (enclosure 41) with costs
of RM5,000.00 to be paid to D1 and RM3,000.00 to be paid to D2
within 14 days. Dissatisfied, D1 filed this appeal, and my reasons are
as follows:

BRIEF FACTS

[4] The cause papers show that Parties collaborated commercially in

an undergraduate scholarship program involving Papua New Guinea
Students at the private tertiary college involving the Plaintiff on

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agreed terms and conditions via an MoU dated 22.08.2016. However,

from 2015 to 2018, outstanding financial issues affected the parties’
relationship leading to a filing of a suit in the KL HC Civil Suit: WA-
22NCvC-760-11/2018 (suit 760) on 16.11.2018. This deadlock led to
numerous negotiations and compromises, culminating in a Deed of
Settlement (29.11.2018) between them. Subsequently, suit 760 was
withdrawn with a Notice of Discontinuance dated 30.01.2019. But the
impasse between the parties remained after the Deed of Settlement
with allegations of breach of the Deed by D1 leading to the present
suit, with the Plaintiff still seeking the agreed payment of the
outstanding sum from D1.

SUBMISSIONS BY THE PLAINTIFF

[5] In support of enclosure 41, Plaintiff argued that:

(a) Cited O. 21 r. 3 RC 2012:

(1) Except as provided by rule 2, a party may not

discontinue an action (whether begun by writ or
otherwise) or counterclaim, or withdraw any
particular claim made by him therein, without the
leave of the Court and the Court hearing an
application for the grant of such leave may order the
action or counterclaim to be discontinued, or any
particular claim made therein to be struck out, as
against any or all of the parties against whom it is
brought or made on such terms as to costs, the
bringing of a subsequent action or otherwise as it
thinks just.

(2) An application for leave under this rule shall be

made by a notice of application.

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It is a fundamental rule that a litigant should not be compelled

to litigate against his will. MAJLIS PEGUAM MALAYSIA & ORS
v. RAJA SEGARAN S KRISHNAN [2002] 3 CLJ 370, CA was
cited:

“What comes across clearly from the authorities that they

have referred to is the fact that a judge exercising his
power under O. 21 r. 3, which permits discontinuance,
has wide discretion. But it is not an unprincipled
discretion. There are important guidelines that act as
beacons, guiding him through those blurred areas of which
we spoke a moment ago. One of these guidelines is that if
a defendant is dominus litis, the general rule is to refuse
leave to discontinue... Another guideline is that where the
case is at a very advanced stage, care should be taken not
to permit discontinuance. And what constitutes an
advanced stage depends on the facts and circumstances of
each case, as illustrated by the case of Fox v. Star
Newspaper Company [1898] 1 QB 636. Another
consideration; yet another guideline; which a judge ought
to bear in mind is any interim interlocutory advantage
that the Plaintiff may have gained between the date of
issue of the writ and the point of time he seeks to
discontinue O’Neal v. Mann [2000] FCA 1680. The upshot
is that it all depends on the facts and circumstances of
each case bearing in mind that one ought not to depart
from the outer parameters established by the guidelines
to which we have referred.”

(b) In the circumstances, Plaintiff argued that it has a genuine

interest in its claim for the outstanding sums owed by the
Defendant and/or expenses incurred for the Defendant. The
Plaintiff will suffer losses if its claim is not allowed.
Therefore, Plaintiff is the dominus litis and argued that:

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(i) Plaintiff is the dominus litis;

(ii) The application herein is bone fide;

(iii) The proceedings are not at an advanced stage;

(iv) Plaintiff gained no advantage from the initiation of

the proceedings until now;

(v) There is no evidence to show that the Plaintiff has

gained any advantage between the date the writ of
summons was filed and the date the application to
withdraw the action was made; and

(vi) Plaintiff is not attempting to circumvent the Court

Order in dismissing its application to amend its
Amended Writ and the Amended SoC; and

(vii) Plaintiff’s new solicitor believes that the present

claim is insufficient and substantial amendments
would be needed to rectify it and is not intended as a
tactical manoeuvre.

Citing in support JPK (Malaysia) Sdn Bhd v. Sunny Tech (M)

Sdn Bhd & Ors [2018] 1 LNS 89, HC:

[19] In allowing the Plaintiff to withdraw the action with

liberty to file afresh, the main consideration is that
although all trial documents and the relevant bundles
have been filed and parties are ready for trial, this is not
considered an advanced stage since the trial has not even
commenced. The application was made by the learned
counsel for the Plaintiff during the case management
stage, and the trial is only scheduled to commence in
about a week.

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It is just in the circumstances that the Court allows this withdrawal

with liberty to file afresh.

SUBMISSIONS BY THE FIRST DEFENDANT (D1)

[6] D1 argued that:

(a) That there are only two issues to be considered in this

application:

(i) Whether the Plaintiff should be afforded leave to file

afresh; and

(ii) The status of the counterclaim by D1 if the

withdrawal is allowed.

D1 similarly cited the principles in Majlis Peguam Malaysia &

Ors, CA, (supra). Overseas Union Finance Ltd v. Lim Joo Chong
[1971] 2 MLJ 124 was also cited, where the Raja Azlan Shah J
observed that:

“However, it is at my discretion whether I should allow

discontinuance. Guidelines to the discretion can be found
in the Annual Practice 1963 on page 593 under the
heading Before judgment which reads: - “Leave may be
refused to a plaintiff to discontinue the action if the
Plaintiff is not wholly dominus litis or if the Defendant has
by the proceedings obtained an advantage of which it does
not seem just to deprive him. If the applicant is dominus
litis, then leave to discontinue may be granted. If he is not,
then it is unlikely that I will grant him leave to
discontinue. I do not think that the applicant is wholly
dominus litis. He cannot dispose of the case as he thinks fit
or allows it to be dismissed, or let judgment go by default.
The parties have come to a stage where the respondent

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chargor has gained the upper hand by an advantage in that

he could find flaws in the applicant/chargee ’s allegation,
namely the wrong dates in the memorandum, etc. and the
fact that the reason for wanting a discontinuance is not a
very strong one. The respondent/chargor is not to be
deprived of these advantages, which have made him a well -
matched adversary in the arena. Having considered all the
points, I am of the opinion that the application to
discontinue should be dismissed.”

(b) Now, the Plaintiffs reasoning for this withdrawal is that

there are many amendments to be made to its pleadings.
Given that this matter is only scheduled for a full trial in
November 2022, there is ample time for the Plaintiff to file
a formal application for amendment should there be such a
need for said amendments. However, to attempt to
withdraw this action now with liberty to file afresh reeks
only of a backdoor attempt to circumvent the dismissal of
the Plaintiff’s earlier application to amend its case that the
Deed of Settlement is voidable instead of void (and
thereby altering the whole nature of the Plaintiffs claim).

(c) In the circumstances, D1 argued that this withdrawal with

liberty to file afresh, as sought by the Plaintiff, if allowed,
would severely prejudice the Ds and deprive them of the
defences available to them at this juncture if the Plaintiff
is entitled to refile its claim. Therefore, if allowed, the Ds
pray that the withdrawal must be with no liberty to file
afresh.

THE LAW

[7] Discontinuance of action with leave (O. 21 r. 3 RC 2012)

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(1) Except as provided by rule 2, a party may not discontinue

an action (whether begun by writ or otherwise) or
counterclaim, or withdraw any particular claim made by
him therein, without the leave of the Court and the Court
hearing an application for the grant of such leave may
order the action or counterclaim to be discontinued, or
any particular claim made therein to be struck out, as
against any or all of the parties against whom it is brought
or made on such terms as to costs, the bringing of a
subsequent action or otherwise as it thinks just.

(2) An application for leave under this rule shall be made by a

notice of application.

[8] The Court of Appeal has recently reiterated the governing

principles in the exercise of discretion in Newlake Development Sdn
Bhd v. Zenith Delight Sdn Bhd & Ors [2017] 1 LNS 527, where it was
ruled in the following terms:-

“[22] The Plaintiff herein applied to discontinue the Suit under

O. 21 r. 3(1) of the Rules of Court 2012. In the exercise of
its discretion when granting leave, the Court has a wide
discretion based on judicial principles. Practical
considerations do come into play when exercising
discretion (see Majlis Peguam Malaysia & Ors v. Raja
Segaran a/l S Krishnan [2002] 3 CLJ 370; [2002] 3 MLJ
155). The Court may/can impose terms (Chamberlain &
Hookham, Ltd v. Huddersfield Corporation [1901] 18 Rep
Pat Cas 454, United Asian Bank Bhd v. Balakrishnan
[1992] 3 CLJ Rep 742; [1992] 1 CLJ 522; Wah Bee
Construction Engineering v. Pembenaan Fungsi Baik Sdn
Bhd [1996] 3 CLJ 858; [1996] 2 AMR 2412).

[9] The Court must be satisfied that:

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(a) If the Defendant is dominus litis, the general rule is to

refuse leave to discontinue: Overseas Union Finance Ltd v.
Lim Joo Chong (supra);

(b) The case is not at an advanced stage; if so, care must be

taken not to permit discontinuance. What constitutes an
advanced stage depends on the facts and circumstances of
the case: United Asian Bank Bhd v. Balakrishnan (t/a
Balakrishnan Restaurant & Ors [1992] 1 CLJ 522 citing
Fox v. Star Newspaper Company [1898] 1 QB 636:

“The principle of the rule is plain. It is that after the

proceedings have reached a certain stage, the Plaintiff,
who has brought his adversary into Court, shall not be
able to escape by a side door and avoid the contest. He is
then to be no longer dominus litis, and it is for the Judge
to say... whether the action shall be discontinued or not
and upon what terms... The substance of the provision is
that after a stage of the action has been reached at which
the adversaries are meeting face to face, it shall only be in
the discretion of the Judge whether the Plainti ff shall be
allowed to withdraw from the action so as to retain the
right of bringing another action for the same subject -
matter”.

(c) The Plaintiff may have gained an interim interlocutory

advantage between the date of issue of the writ and the
point of time he seeks to discontinue: O’Neal v. Mann
[2000] FCA 1680;

(d) There is no miscarriage of justice occasioned by its

refusal to permit the discontinuance;

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(e) It will not prejudice the opponent to the application or

take away from him any advantage to which he is fairly
and reasonably entitled.

[10] In Hanhyo Sdn Bhd v. Marplan Sdn Bhd & Ors [1991] 2 CLJ
Rep 684; [1992] 1 MLJ 51, HC observed:

“The principles that can be extracted from the aforementioned

cases are that the Court would not compel a Plaintiff to
continue his action against a Defendant if he does not want to
do so provided no injustice is caused to the Defendant .
Injustice would be caused to the Defendant if:

(1) The discontinuance was made with an ulterior motive to

obtain a collateral advantage, as in the case of Castanho
v. Brown & Root Ltd;

(2) The discontinuance was not made bona fide by the

Plaintiff, but it was made to obtain an advantage to which
he has no right to retain since he has ceased to be dominis
litis as the Defendant has a perfectly good defense:
Overseas Union Finance Ltd v. Lim Joo Chong ;

(3) By the discontinuance of the action, the Defendant would

be deprived of an advantage which he has already gained
in the litigation: Covell Matthews & Partners v. French
Wools Ltd [1997] 1 WLR 876; [1977] 2 All ER 59 ”.

[11] Dominus Litis:

(a) In Overseas Union Finance Ltd v. Lim Joo Chong (supra),

Raja Azlan Shah J made the following observation which I
have summarised as follows:

(i) Guidelines for the exercise of discretion can be found

in the Annual Practice 1963 on page 593:

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“Leave may be refused to a plaintiff to discontinue

the action, if the plaintiff is not wholly dominus litis
or if the defendant has by the proceedings obtained
an advantage of which it does not seem just to
deprive him.”

(ii) If the applicant is dominus litis, leave to discontinue

may be granted.

(iii) If not, then it is unlikely that leave will be granted.

(iv) The parties have come to a stage where a party has

gained an advantage in that he could find flaws in the
case of the other, leading to the application being
made.

(v) That party with the upper hand or advantage should

not be denied these advantages which have made him
a well-matched adversary in the arena.

(vi) In such circumstances, the application to discontinue

should be dismissed.

(b) In Newlake Development Sdn Bhd v. Zenith Delight Sdn

Bhd (supra) the Court of Appeal observed that the Court
will have to balance the prejudices caused to the Plaintiff
and the Defendant and see where the justice lies. The
Court has to consider whether the order to discontinue will
prejudice the opponent to the application or take away
from him any advantage to which he is fairly and
reasonably entitled. An advantage can be in the sense of
procedural advantage or technical advantage which does
not derive from the facts of the case or the act of the
parties, for example, irregularity in the proceedings,
incompliance with the Rules of Court 2012, or unrebutted
argument. An advantage can also be in the form of having

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learned a weakness or flaw in the opponent’s case in the

course of the proceedings, and it can be assumed that the
discontinuance was only to refile after rectifying that
weakness or flaw in his case.

(c) IJi Zhan Capital Sdn Bhd v. Chua & Chew Sdn Bhd [2020]
6 AMR 709; [2020] MLJU 856; [2020] 10 CLJ 670 ,
considered dominus litis as:

“a person to whom the suit belongs, who derives the

benefit of a favorable and is liable to the effects of an
adverse judgment. One may be dominus litis, although his
name be not in a suit as either pursuer or defender. Thus,
a father is subjected in the expense of a process, which has
been awarded against his son, in respect that, although not
himself the party, he had undertaken to defend his son, and
had not allowed himself a sufficient aliment. ”

It further held that the dominus litis is a person who is really

and directedly interested in the suit as a party, has the right to
sue any person as a Defendant who he has grievance for
necessary relief, and cannot be compelled to sue a person whom
he does not seek any relief.

[12] The Court has broad discretion in granting an application to

discontinue an action subject to terms that befit the facts and
circumstances of the case. This includes imposing terms not prayed
for, terms against a third party, and terms that carry over a court order
from one suit to another to preserve the advantage obtained by the
party. The terms on discontinuance are generally as to costs, as to the
bringing of a subsequent action or otherwise as the Court thinks just:
Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd CA (supra).

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FINDINGS

[13] From the cause papers and arguments before me, I find that:

(a) The Plaintiff is still dominus litis in this proceeding. I find

no compelling evidence to hold otherwise save for bare
assertions;

(b) The proceedings are not yet at an advanced stage as at the

disposal of enclosure 41 before me;

(c) There are no compelling materials to show that the

Plaintiff has gained any advantage from the filing of the
writ of summons and the date the application to withdraw
was made;

(d) The Plaintiff argued that they moved enclosure 41 at the

advice of the new learned counsel, who believes that the
present suit requires extensive amendments to its SoC to
represent the action of the Plaintiff fully:

(i) The Defendant submits no compelling reason to

oppose save that this supposed application is to
circumvent the order of the Court in denying the
Plaintiff’s application to amend the present SoC
concerning a particular paragraph. I am, however,
unpersuaded with such arguments. It has been argued
in passing that the Plaintiff should amend the SoC
rather than had it withdrawn with liberty, affecting
any advantage allegedly gained by the Ds.

(ii) I find no reason to disbelieve the Plaintiff’s

assertions on the supposed substantial amendment to
the present SoC by the newly appointed learned
counsel unless adverse evidence can be adduced to
suggest otherwise.

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(iii) The legal position on the amendment is trite as was

held in Hock Hua Bank Bhd v. Leong Yew Chin
[1987] CLJ, SC:

“As for the general principles for the granting of

leave to amend:

“It is a guiding principle of cardinal importance on

the question of an amendment that, generally
speaking, all such amendments ought to be made ‘for
the purpose of determining the real question in
controversy between the parties to any proceedings
or of correcting any defect or error in any
proceedings’ (see per Jenkins L.J. in GL Bakar Ltd v.
Medway Building & Supplies Ltd [1958] 1 WLR 1216
p 1231; [1958] 3 All ER 540 p 546).

‘It is a well-established principle that the object of

the Court is to decide the rights of the parties, and
not to punish them for mistakes they make in the
conduct of their cases by deciding otherwise than in
accordance with their rights ... I know of no kind of
error or mistake which, if not fraudulent or intended
to overreach, the Court ought not to correct, if it can
be done without injustice to the other party. Courts
do not exist for the sake of discipline, but for the
sake of deciding matters in controversy, and I do not
regard such amendment as a matter of favor or grace
... It seems to me that as soon as it appears that the
way in which a party has framed his case will not
lead to a decision of the real matter in controversy,
it is as much a matter of right on his part to have it
corrected if it can be done without injustice, as
anything else in the case is a matter of right ’ (per
Bowen L.J. in Cropper v. Smith [1883] 26 ChD 700

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pp 710-722, with which observations A.L. Smith L.J.

expressed ‘emphatic agreement’ in Shoe Machinery
Co v. Cultam [1896] 1 Ch 108 p 112).

In Tildesley v. Harper [1876] 10 ChD 393 pp

396397, Bramwell L.J. said: ‘My practice has always
been to give leave to amend unless I have been
satisfied that the party applying was acting mala
fide, or that, by his blunder, he had done some injury
to his opponent which could not be compensated for
by costs or otherwise.”

…….

“There is absolutely nothing to show from the long

line of authorities that if a new or substantially new
relief arises out of the new cause of action, the Court
is ceased of its power to grant such leave, or that by
doing so, the Court would be acting outside the scope
of r. 5. I am unable to accept any contention to that
effect. In my view, Para (5) of r. 5 is clear in its
terms. Effect should therefore be given to the rule
which clearly enables the Court to exercise its
discretion in cases where it is satisfied that the new
cause of action arises out of the same or
substantially the same facts as the new cause of
action in respect of which relief has already been
claimed.

(iv) Christopher Bandi v. Tumbung Nakis & Anor; Jamil

Sindi (Third Party) [2016] 4 CLJ 831, CA observed:

“[16] In our deliberation, we also find the recent

decision of the Hong Leong Finance Bhd v. Low
Thiam Hoe & Another Appeal [2015] 8 CLJ 1 to be

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of some significance and valuable guidance. In that

case, it also concerned an application to amend
pleadings and the principle of the often-quoted case
of Yamaha Motor Co Ltd v. Yamaha (M) Sdn Bhd &
Ors [1983] 1 CLJ 191; [1983] CLJ (Rep) 428 was
discussed. The defendant there had applied for an
amendment of his defence which was dismissed by the
High Court Judge. However, on appeal to this court,
the application for amendment was allowed. On
appeal to the Federal Court, the decision of the High
Court Judge in dismissing the application to amend
the defence was reinstated. To recapitulate, the
principle of Yamaha Motor case, supra, in brief is
simply this and that is as long as the amendment of
the pleadings is bona fide and does not prejudice the
opposing party, the application ought to be granted
as the opposing party can be compensated with
costs.”

(v) It must be observed that the extensiveness of any

suggested amendments as alluded to in the present
case can effectively be said not only to be a
significant improvement of the suit but, in effect, is a
total replacement/overhaul of the SoC, which may
not be allowed since an amendment is not intended
for such purpose. If that is the intention, then maybe
the filing of a new SoC must be considered, such as
in a case where the proposed amendments turn the
suit from one character into a claim of another
inconsistent nature. This will substantially impact the
SoC character and would be inconsistent with its
original form: Chin Kok Kwong Construction Sdn
Bhd v. Sunrise Towers Sdn Bhd [1986] 2 MLJ 41. An
amendment is more likely to be allowed where it

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departs the least from the pleadings, and the least

prejudice to the opposing party is expected to arise
Ismail bin Ibrahim v. Sum Poh Development Sdn Bhd
[1988] 3 MLJ 348.

(vi) If any proposed amendment involves a substantial

and/or fundamental overhaul of the SoC involving its
character gathered from the Plaintiff herein, it is fair
in such circumstances for parties to consider a
withdrawal of the SoC with the liberty to file afresh.
Consequently, it cannot amount to a tactical
manoeuvre to stifle the suit against the opposing side
without any adverse materials to the contrary.

(e) In the circumstances, I find enclosure 41 for the

withdrawal of the SoC to be made with bone fide
intentions to rectify and realign its true claim against the
Ds’;

(f) The worry by D1 on the impact on its counterclaim is

legally misplaced. That counterclaim is an independent
suit on its own against the Plaintiff, which can either
proceed in the present lawsuit or be pursued separately as
provided for by the rules (refer O. 15 r. 2 RC 2012). There
is no adverse impact on it by the Plaintiff’s withdrawal.

[14] In the circumstances. I remain unpersuaded with the Ds’ bare

arguments that this withdrawal will impact an advantage they’ve
supposedly gained against the Plaintiff with no compelling materials
to support it. Therefore, I see no reason to allow the Plaintiff’s
withdrawal with no liberty to file afresh, as in the circumstances, that
is tantamount to denying its rights to pursue legal recourse against the
Ds, which has yet to be legally determined on its merits. I find no
miscarriage of justice in making this determination. There is no abuse
of process in enclosure 41. An application for withdrawal will not be

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entertained if it is tantamount to an abuse of the Court process: Chan

Guan Seng v. Gale Force Sdn Bhd [2014] 1 LNS 1651; [2015] 10 MLJ
466, HC.

CONCLUSION

[15] In light of the foregoing and after closely scrutinizing the

application and examining all evidence adduced before me,
considering the written and oral submissions of respective counsels, I
allowed the said application (enclosure 41) and costs of RM5,000.00
to D1 and RM3,000.00 to D2, to be paid within 14 days from this
order.

Dated: 30 AUGUST 2022

(HAYATUL AKMAL ABDUL AZIZ)

Judge
High Court of Malaya
Wilayah Psersekutuan Kuala Lumpur

COUNSEL:

For the plaintiff - Pang Li Xuan; M/s Chellam Wong

For the first defendant - Sng Eu Kim; M/s Sulaiman

For the second defendant - Taye & Chong Kah Heng; M/s KH Chong
& Associates

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Case(s) referred to:

Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd & Ors
[2017] 1 LNS 527

Hanhyo Sdn Bhd v. Marplan Sdn Bhd & Ors [1991] 2 CLJ Rep 684;
[1992] 1 MLJ 51

Chan Guan Seng v. Gale Force Sdn Bhd [2014] 1 LNS 1651; [2015]
10 MLJ 466

Legislation referred to:

Rules of Court 2012, O. 21 r. 3

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