TELEKOM MALAYSIA BERHAD SWIS RESOURCES SDN BHD

TELEKOM MALAYSIA BERHAD SWIS RESOURCES SDN BHD

The Sessions Court erred: the striking out order was made before the deadline for compliance had passed and thus before a default arose; on the facts the breach was first-time, the reason (difficulty locating a retired witness) was acceptable, there was no significant prejudice or derailing of trial and the merits were not considered; dismissal was disproportionate. Appeal allowed, striking out set aside and matter reinstated with costs awarded to Respondent (RM5,000).

Citation
BA-12BNCvC-17-04/2024 (Mahkamah Tinggi)
Parties
Appellant/perayu: Telekom Malaysia Berhad; Respondent/responden: Swis Resources Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
30 September 2024
Case Number
BA-12BNCvC-17-04/2024 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / Hearing on Appeal From Sessions Court Order
Outcome
Appeal allowed. Order striking out set aside. Case reinstated to Sepang Sessions Court for hearing before a different judge. Costs awarded to Respondent in the sum of RM5,000 subject to allocatur.
Legal Topics
Order 34 R.2(2)(l) and (m) Rules of Court 2012, Order 34 R.2(3) Rules of Court 2012, Striking Out for Non Compliance, Unless Orders, Pre Trial Directions, Costs
Source Language
Malay/English
Civil Procedure Case Management Court Discretion Evidence Management Order 34 R.2(2)(l) and (m) Rules of Court 2012 Order 34 R.2(3) Rules of Court 2012 Striking Out for Non Compliance Unless Orders +2 more

Case Brief

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Parties

Telekom Malaysia Berhad

Appellant/perayu

Swis Resources Sdn Bhd

Respondent/responden

Procedural Posture

Civil Appeal / Hearing on Appeal From Sessions Court Order

Legal Issues

  1. 1 Whether there was non-compliance with pre-trial case management directions when the Sessions Court struck out the Appellant’s claim under Order 34 r.2(3) ROC 2012
  2. 2 Whether absence of an unless order, peremptory order, warning or second chance prevents exercise of discretion under Order 34 r.2(3) ROC 2012
  3. 3 Whether the Court may exercise Order 34 r.2(3) ROC 2012 on its own motion without an application by the non-defaulting party

Ratio Decidendi

The Sessions Court erred: the striking out order was made before the deadline for compliance had passed and thus before a default arose; on the facts the breach was first-time, the reason (difficulty locating a retired witness) was acceptable, there was no significant prejudice or derailing of trial and the merits were not considered; dismissal was disproportionate. Appeal allowed, striking out set aside and matter reinstated with costs awarded to Respondent (RM5,000).

Court Disposition

Appeal allowed. Order striking out set aside. Case reinstated to Sepang Sessions Court for hearing before a different judge. Costs awarded to Respondent in the sum of RM5,000 subject to allocatur.

Orders

  • Order striking out the Appellant’s claim set aside
  • Case reinstated to the Sepang Sessions Court to be heard before a different Sessions Court Judge