Geahin Engineering Berhad & Anor

[2014] MLRHU 1469 v. Medan Prestasi Sdn Bhd (Encl 10) pg 1

GEAHIN ENGINEERING BERHAD & ANOR

v.
MEDAN PRESTASI SDN BHD (ENCL 10)

High Court Malaya, Shah Alam

Choo Kah Sing JC
[Civil Suit No: 22-NCVC-444-2011]
12 December 2014

Case(s) referred to:

Buga Singh v. Koh Bon Keo [1966] 1 MLRH 404; [1967] 1 MLJ 16 (refd)
Gan Boon Kyee v. Yap Hong Sin & Anor [1997] 1 MLRA 388; [1997] 2 MLJ 598;
[1997] 3 CLJ 822 (refd)
Hatara (M) Sdn Bhd v. Petroliam Nasional Bhd & Anor [2010] 1 MLRA 68;
[2010] 4 MLJ 17; [2010] 3 CLJ 550 (refd)
Kesatuan Pekerja-Pekerja Malaysia Shipyard & Engineering Sdn Bhd v. Malaysia
Shipyard & Engineering Sdn Bhd & Anor And Another Appeal [2010] 2 MLRA
259; [2010] 6 MLJ 306; [2010] 7 CLJ 987 (refd)
Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 2 MLRA 91; [1996] 1
MLJ 223; [1997] 1 CLJ 396; [1996] 1 AMR 846 (refd)
Saei Suser v. Jabatan Perkhidmatan Awam Malaysia & Anor [2002] 2 MLRH 14;
[2002] 6 CLJ 181 (refd)
Sinnathamby Klonda Koundan & Anor v. Lee Chooi Ying & Another Case [1986]
1 MLRA 335; [1987] 1 MLJ 110; [1987] CLJ 336 (refd)
Soon Huat Construction Sdn Bhd v. Kiong Siang Construction Sdn Bhd [1999] 1
MLRH 814; [1999] 4 MLJ 130; [1999] 3 CLJ 778; [1999] 4 AMR 4969 (refd)
Tengku Ismail Tengku Sulaiman & Ors v. Sia Cheng Soon & Anor [2006] 1
MLRA 803; [2006] 5 MLJ 228; [2006] 3 CLJ 556; [2006] 4 AMR 781 (refd)
Wong Koon Seng v. Rahman Hydraulic Tin Berhad & Ors [2010] 4 MLRA 590;
[2011] 4 MLJ 337 (refd)
Yap An Chai & Yang Lain Lwn. Rhb Bank Berhad [2002] 5 MLRH 849 (refd)
Yogananthy As Thambaiya v. Idris Osman [2009] 4 MLRA 251; [2010] 5 MLJ
576; [2010] 5 CLJ 654 (refd)

Legislation referred to:

Rules Of Court 2012, O 34, O 42 r 13, O 92 r 4

Counsel:
For the 2nd plaintiff: KS Lau; M/s Shook Lin & Bok
For the defendant: Alister Henry; M/s Abd Halim Ushah & Associates

[Application rejected.]

GROUNDS OF DECISION

Choo Kah Sing JC:

 Geahin Engineering Berhad & Anor
pg 2 v. Medan Prestasi Sdn Bhd (Encl 10) [2014] MLRHU 1469

[Enclosure 10]

Introduction

[1] This is an application made by the 2nd Plaintiff to reinstate the Writ which
was struck out during the case management stage on 4 February 2013. The
Writ was struck out on the ground that the Court's direction was not complied
with pursuant to O 34 ROC 2012. After a lapse of 18 months, the 2nd Plaintiff
filed this application. I disallowed the application on 4 December 2014. My
grounds for the decision are as below.

The Background Facts

[2] On 11 April 2012, the Plaintiffs filed a Writ through a firm of solicitors
known as Messrs Paul Cheah & Associates. The parties proceeded to file their
respective pleadings. The parties' solicitors attended several case managements
before the Deputy Registrar as well as the then High Court Judge YA Dr
Prasad Sandosham Abraham.

[3] On 3 December 2012, the case was fixed before the learned Judge for case
management. On that morning, the Plaintiffs' counsel did not turn up. The
case was stood down to the afternoon. Around 2.00 pm., when the case was
called up, the Plaintiffs' counsel was still not present. The Defendant's counsel
contacted the Plaintiff's firm of solicitors and he was told the counsel in charge
Mr Lim Choon Wee had passed away on 31 October 2012. In view of that, the
learned Judge adjourned the case and directed parties to file Common Bundles
before the next case management date which was fixed on 4 February 2012.
Trial dates were already fixed on 20-21 February 2012 by the parties earlier.

[4] By way of a letter dated 4 December 2012, the Defendant's solicitor

informed the Plaintiffs' firm of solicitors what had transpired in court on 3
December 2012. The Defendant's solicitor also informed the Plaintiff's firm of
solicitors that they were to prepare and file Common Bundles of Documents
before the next case management date fixed on 4 February 2013 [see Afidavit
Jawapan Defendan - Exhibit "D-2"].

[5] On 4 February 2013, no counsel from the firm Messrs Paul Cheah &
Associates appeared for the Plaintiffs. The learned Judge, after having
considered the status of the case, struck out the Writ on the ground that the
Plaintiff's solicitor did not comply with the direction of the Court given on the
previous case management.

[6] Sometime in April 2014, the 2nd Plaintiff discharged the firm Messrs Paul
Cheah & Associates and appointed the present firm Messrs Shook Lin & Bok
to take over the conduct of the matter.

[7] On 29 August 2014, the 2nd Plaintiff through the present firm of solicitors
filed this application to reinstate the Writ after a lapse of 18 months from the
date that it was struck out - 4 February 2013.
 Geahin Engineering Berhad & Anor
[2014] MLRHU 1469 v. Medan Prestasi Sdn Bhd (Encl 10) pg 3

[8] This application was filed by only the 2nd Plaintiff, because the 1st Plaintiff
had on 11 June 2004 via a court order issued by the High Court of Melaka
Petition No MT1-26-3-2004 vested all its rights to the 2nd Plaintiff, including
the alleged debt owing by the Defendant to the 1st Plaintiff. Further, the 1st
Plaintiff has been wound up since 3 December 2012.

The Principles In Exercising The Court's Inherent Jurisdiction

[9] This Court has to bear in mind three trite principles in an application for
reinstatement. First, an applicant could not require a court to reinstate a matter
which has been struck out as of right. It is not merely a matter of partaking in
an automatic formal exercise. Secondly, reinstatement involves an exercise of
the court's discretion. Thirdly, there must be sufficient material before the
court to enable it to exercise its discretion in the applicant's favour. These
principles are enunciated by the Court of Appeal in Kesatuan Pekerja-Pekerja
Malaysia Shipyard & Engineering Sdn Bhd v. Malaysia Shipyard & Engineering
Sdn Bhd & Anor and Another Appeal [2010] 2 MLRA 259; [2010] 6 MLJ 306;
[2010] 7 CLJ 987 at 997.

[10] Having these principles in mind, I will proceed to consider the Plaintiff's
application. First, the Writ was struck out not as of right, but for
noncompliance of a court's directive. Secondly, the power to reinstate the Writ
is the Court's discretion. Lastly, it is my duty to consider whether there is
sufficient material or not adduced before me in support of the application to
enable me to exercise my discretion in the 2nd Plaintiff's favour.

Whether There Is Sufficient Material For This Court To Invoke Its Inherent
Jurisdiction Or Not?

[11] The 2nd Plaintiff in support of its application has filed two affidavits
affirmed by its Director Ngoh Tee Hiang dated 15 August 2014 and 14
October 2014 respectively. The reasons given for the delay in filing this
application were summarized in the written submissions of the 2nd Plaintiff's
counsel.

[12] The 2nd Plaintiff's counsel submitted that the 2nd Plaintiff was completely
unaware of the case management fixed on 4 February 2013 due to the demise
of Mr Lim Choon Wee, the counsel in charge of the matter, and the
breakdown in communication between the 2nd Plaintiff and the then firm of
solicitors, Messrs Paul Cheah & Associates.

[13] The counsel cited a string of cases to support his submission that the
absence of the 2nd Plaintiff (or its counsel) on 4 February 2013 ought not to be
construed as intentional or contumelious, and that this Court should exercise
its discretion in the 2nd Plaintiff's favour based on these decided cases.

[14] However, I am not convinced to exercise my discretion in the 2nd

Plaintiff's favour based on these cases.
 Geahin Engineering Berhad & Anor
pg 4 v. Medan Prestasi Sdn Bhd (Encl 10) [2014] MLRHU 1469

[15] In Yogananthy As Thambaiya v. Idris Osman [2009] 4 MLRA 251; [2010] 5

MLJ 576; [2010] 5 CLJ 654 the counsels' absence at the trial dates was due to
miscommunication and misunderstanding of the dates when the same were
communicated to them by another firm of solicitors. One of the counsels in
fact appeared in court (after 4 pm) and was told that the case was heard and
disposed of on the same day. The counsel appeared before the learned judge
the very next morning to seek clarification and explain his absence in court,
and on that very next day an application for reinstatement was filed. The
Court of Appeal found that the conduct of the appellant and her counsel
clearly and unequivocally do not reflect their intentions to deliberately and
intentionally absent themselves from attending the trial (see p 660).

[16] In this instant case, there was no miscommunication from the Defendant's
firm of solicitors to the then Plaintiffs' firm of solicitors informing of the next
case management date. The 2nd Plaintiff cannot use the deceased solicitor as
an excuse saying that as a result of his death, therefore, no counsel was present
during both case managements. The then Plaintiffs' firm of solicitors were not
a sole proprietor firm. It is inappropriate for the firm not to send a counsel to
attend the case management on 4 February 2013 when the date was properly
communicated to them. Unless and until discharged, or Notice of Change of
solicitors had been filed, a counsel from the firm of solicitors on record was
required to be present [see Wong Koon Seng v. Rahman Hydraulic Tin Bhd &
Ors [2010] 4 MLRA 590; [2011] 4 MLJ 337]. The failure of counsel to turn up
in court on two consecutive case management dates could not be construed as
unintentional or not deliberate or contumelious.

[17] In Yap An Chai & 3 others v. RHB Bank Berhad [2002] 5 MLRH 849;
[2002] MLJU 161, this case confirms that a court has the inherent jurisdiction
to exercise its discretion to reinstate an action under O 92 r 4 of ROC (then
RHC).

[18] In Saei Suser v. Jabatan Perkhidmatan Awam Malaysia & Anor [2002] 2
MLRH 14; [2002] 6 CLJ 181, it states that a mistake of an advocate can be a
factor for moving the exercise of the discretion of the court. But, in this instant
case, I find no material evidence to suggest a mistake was made on the part of
the Plaintiffs' firm of solicitors.

[19] Two more cases were cited for consideration of this Court, namely,
Sinnathamby & Anor v. Lee Chooi Ying [1986] 1 MLRA 335; [1987] 1 MLJ
110 ; [1987] CLJ 336 and Soon Huat Construction Sdn Bhd v. Kiong Siang
Construction Bhd [1999] 1 MLRH 814; [1999] 4 MLJ 130; [1999] 3 CLJ 778;
[1999] 4 AMR 4969. These cases discuss the exercise of the court's discretion
in granting an extension of time instead of reinstatement.

[20] The principle in Buga Singh v. Koh Bon Keo [1966] 1 MLRH 404; [1967] 1
MLJ 16 is that if a claim shows some merits and justice can be done by
compensating the other side for any costs thrown away, then new trial ought
to be ordered. With greatest respect to the judge presiding in that case, it is this
Court's humble opinion that merit alone cannot be the sole determining factor
to exercise its discretion to reinstate a new trial. I am bound by Kesatuan
 Geahin Engineering Berhad & Anor
[2014] MLRHU 1469 v. Medan Prestasi Sdn Bhd (Encl 10) pg 5

Pekerja-Pekerja Malaysia Shipyard & Engineering Sdn Bhd to consider

whether there is sufficient material to exercise my discretion.

[21] Thus far, the scales has not tipped in favour of the 2nd Plaintiff.

[22] The 2nd Plaintiff's counsel submitted that the 2nd Plaintiff is still within
the 30-day time period to file this application, because O 42 r 13 ROC 2012
permits it. The counsel submitted that the 2nd Plaintiff has yet to be served
with an order of the Court's decision of the striking out. I find this argument
devoid of merits. This O 42 r 13 ROC 2012 is not applicable to an application
for reinstatement of a writ that has been struck out.

[23] The 2nd Plaintiff was fully aware of the court's ruling when it was
informed by their solicitors the next following day. The 2nd Plaintiff did not
take immediate steps to reclaim its right. The Defendant's counsel correctly
cited the case Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 2
MLRA 91; [1996] 1 MLJ 223; [1997] 1 CLJ 396; [1996] 1 AMR 846, wherein
Gopal Sri Ram JCA (as he then was) said:

It is a cardinal principle of law, that when a litigant seeks the intervent

ion of the Court in a matter that affects his rights, he must do so
timeously.

[24] The 2nd Plaintiff took 15 months to decide to discharge its previous firm
of solicitors and to appoint the present firm of solicitors. The present firm of
solicitors, after accepting the brief, took 3 months to file this application.
Taking 3 months to prepare the necessary ground works and filing of this
application, to be fair, is acceptable. However, the burden is still on the 2nd
Plaintiff to render a satisfactory explanation why it took 15 months to appoint
a new firm of solicitors. The only reason provided was that the 2nd Plaintiff
was attempting to negotiate for an amicable settlement of the matter. If
successful, it would avoid the need for filing this application. This Court is not
satisfied with the explanation. The 2nd Plaintiff ought to know that the time
was running out, and its claim was at peril. Ignorance of the procedural law is
not a valid excuse for a litigant. And, it is not justifiable that it has taken 15
months for the 2nd Plaintiff to realise that the negotiation for settlement has
failed. It seems to me that the 2nd Plaintiff was more of an indolent litigant.

[25] In Hatara (M) Sdn Bhd v. Petroliam Nasional Bhd (Petronas) & Anor [2010]
1 MLRA 68; [2010] 4 MLJ 17; [2010] 3 CLJ 550, a delay of 3 months in filing
a reinstatement application due to the plaintiff's impecuniosity was said to be
reasonable by the Court of Appeal. In this instant case, there is no issue of
impecuniosity of the 2nd Plaintiff. In Hatara, the plaintiff there had shown to
the Court it did not purposely ignore a peremptory order of the court. It was
because the plaintiff's counsel had discharged themselves that put her in such a
difficult position to comply with the order. This was a sufficient material for
the court to exercise its judicial discretion to avoid a substantial miscarriage of
justice. In this instant case, there is nothing of this nature to compel this Court
to consider it as sufficient material to exercise its judicial discretion in the 2nd
Plaintiff's favour.
 Geahin Engineering Berhad & Anor
pg 6 v. Medan Prestasi Sdn Bhd (Encl 10) [2014] MLRHU 1469

[26] The 2nd Plaintiff's counsel submitted that if the application for
reinstatement is not allowed the 2nd Plaintiff would be prejudiced because a
fresh action against the Defendant would be barred by the Limitation Act, and
that the Defendant would get away from paying the 2nd Plaintiff. I think the
latter is a consequence of the former. Therefore, I will consider both at the
same time.

[27] In Hatara, the Court considered the time bar factor, but its decision was
not solely based on that. The Court had also taken into account other factors,
such as the plaintiff's impecuniosity which had delayed the filing of the
application and the discharge of the plaintiff's counsel which had contributed
to her inability to comply with the peremptory order.

[28] In this instant case, only the time bar factor is worth considering. The
jurisprudence behind the law of limitation is said: firstly, there is a
presumption that a right that is not exercised for a long time is nonexistent.
Secondly, it is necessary that matters of right in general should not be left too
long in a state of uncertainty or suspense. Limitation law is thus promulgated
for the primary object of discouraging plaintiffs from sleeping on their actions,
and more importantly, to have a definite end to litigation [see Tengku Ismail
Tengku Sulaiman v. Sia Cheng Soon [2006] 1 MLRA 803; [2006] 5 MLJ 228;
[2006] 3 CLJ 556 at 561; [2006] 4 AMR 781].

[29] The purported debt accrued way back in 2006, and the Writ was filed on
11 April 2011. The Plaintiffs waited 5 years to file the Writ; the end of the
limitation period was not far away then. The Writ was struck out on 4
February 2013, and the application to reinstate was filed 18 months later. Even
if the present firm of solicitors had used 3 months to prepare the application,
and these 3 months were disregarded, there would still be 15 months of delay.
But taking 15 months to appoint a new firm of solicitors, to me, the 2nd
Plaintiff had taken a lackadaisical attitude in pursuing the matter. The 2nd
Plaintiff had left the matter unattended for too long and delayed in seeking the
assistance from the Court. The sluggish pace of the 2nd Plaintiff in coming
back to the Court for assistance is questionable. The 2nd Plaintiff now cannot
rely on the time bar factor to say there is a miscarriage of justice if the
application is not allowed. I quote, "it is axiomatic that the law assists the
vigilant and not the indolent", as per Gopal Sri Ram JCA (as he then was) in
Gan Boon Kyee v. Yap Hong Sin & Anor [1997] 1 MLRA 388; [1997] 2 MLJ
598; [1997] 3 CLJ 822 at p 826.

[30] I would like to address one last point which was raised in the submissions
of the parties that is the non-compliance of the Court's direction on 4 February
2013. The Plaintiff's counsel submitted that the previous firm of solicitors had
forwarded all the necessary draft documents (Issues to be tried; Summary of
Case; Agreed Facts, Bundle of Pleadings and Plaintiffs' Bundle of Documents)
to the Defendant's firm of solicitors on 18 January 2012 for their approval or
comments. The 2nd Plaintiff's counsel submitted that the previous firm of
solicitors did not receive a reply from the Defendant's firm of solicitors. He
further submitted that it was not disputed that those documents were never
 Geahin Engineering Berhad & Anor
[2014] MLRHU 1469 v. Medan Prestasi Sdn Bhd (Encl 10) pg 7

served on the 2nd Plaintiff's previous firm of solicitors. In response to this

point, I am of the view that there were two options the previous firm of
solicitors could have taken. First, the 2nd Plaintiff's previous firm of solicitors
could have filed a Plaintiffs' Bundle of Documents without any delay despite
not having received a reply from the Defendant's firm of solicitors; or the
second option is, a counsel from the previous firm of solicitors could have
attended the case management and explained to the learned Judge why they
did not file the Bundle of Documents. The 2nd Plaintiff's previous firm of
solicitors failed to do either one. Hence, the submission of the 2nd Plaintiff's
counsel on this point is of no help to the application.

Decision

[31] In conclusion, I was not convinced by the arguments relied on by the 2nd
Plaintiffs' counsel. There were no compelling facts that satisfied me why the
2nd Plaintiff took 15 months to file this application. I have considered each
and every argument carefully and found no sufficient material to compel me to
exercise my discretion to allow this application. Therefore, I disallowed the
application and awarded costs RM3,000.00 to the Defendant.

[32] This decision shall bind 2 other cases, namely, 22NCVC-524-2011 and
22NCVC-579-2011 filed in the High Court of Shah Alam. The parties are the
same and similar applications were filed in these two suits as well.