Wong Eng Boon Low Seng Kai

IN THE HIGH COURT OF MALAYA AT MELAKA CIVIL APPEAL NO. MA-12ANCvC-16-12/2020 Between 5 Wong Eng Boon (No. K/P: 720323-08-6095) … Appellant And 10 Low Seng Kai (No. K/P: 770813-04-5697) … Respondent 15 GROUNDS OF JUDGMENT [1] Enclosure 1 is the Appellant’s appeal against the decision of the Sessions Court where the Sessions dismissed the Appellant’s 20 application to “revive” the main action by the Appellant against the Respondent in the Sessions Court. [2] The Appellant was the Plaintiff while the Respondent was the Defendant in the proceedings before the Sessions Court. 25 [3] The Appellant will be referred to as the Plaintiff and the Respondent will be referred to as the Defendant as they appeared before the Sessions Court. 30 Proceedings before the Sessions Court [4] On 10.6.2020, the Plaintiff commenced an action against the Defendant in the Sessions Court. 1 [5] On 3.8.2020, the Defendant filed and served a Defence and a Counterclaim. [6] On 18.8.2020, the Plaintiff filed a Notice of Discontinuance and 5 discontinued the main action. [7] On 17.9.2020, the Plaintiff filed a Defence to the Counterclaim. [8] The counter-claim by the Defendant was set down for trial. The 10 trial of the counter-claim in the Sessions Court is scheduled on 26.8.2021 and 27.8.2021. [9] On 1.10.2020, the Plaintiff filed a notice of application (Enclosure 10) for an order that “tuntutan Plaintif yang diberhentikan 15 melalui Notis Pemberhentian bertarikh 18.8.2020 dihidupkan semula”. [10] On 18.12.2020, the Sessions Court dismissed Enclosure 10. 20 Determination by the High Court [11] The Plaintiff filed Enclosure 10 pursuant to Order 21 Rule 4 of the Rules of Court 2021. [12] Order 21 Rule 4 of the Rules of Court 2021 states that: 25 “4. Effect of discontinuance (O. 21, r. 4) Subject to any terms imposed by the Court in granting leave under rule 3, the fact that a party has discontinued an action or 2 counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action.” 5 [13] This Court noted that Order 21 Rule 4 is concerned with a situation where under Order 21 Rule 3, leave to discontinue an action is granted by the Court. [14] This Court finds that the language of Order 21 Rule 4 of the 10 Rules of Court 2012 is plain and clear. In the event a party discontinues an action or a counterclaim, the discontinuance of the first action or counterclaim shall not be held against that party in the event that party commences a second action. 15 [15] Applying the provisions of Order 21 Rule 4 of the Rules of Court 2012 to the facts of the instant appeal, if the Plaintiff were to commence a subsequent (i.e. new) action against the Defendant, the discontinuance of the instant main action shall not be a defence to the Defendant in the subsequent (i.e. new) action by the Plaintiff. 20 [16] Given the above, Order 21 Rule 4 of the Rules of Court 2012 was not the appropriate provision and does not assist the Plaintiff with regard to Enclosure 10. 25 [17] This Court finds that the Sessions Court did not err with regard to its determination that Order 21 Rule 4 of the Rules of Court 2012 was not applicable. 3 [18] This Court also finds that there are no other provisions in the Rules of Court 2012 with regard to the relief sought by the Plaintiff in Enclosure 10. 5 [19] Indeed, during the Plaintiff’s further submission, the Plaintiff conceded that Enclosure 10 was filed pursuant to the inherent jurisdiction of the Court. [20] The Plaintiff submitted that there is jurisdiction under common 10 law for the relief sought by the Plaintiff. In this respect, the Plaintiff cited the decision in The Kronprinz (1887) 12 App Cas 256. [21] This Court reviewed and considered the decision in The Kronprinz. 15 [22] This Court found that the facts in that case are dissimilar in that in that case, the issue before the Court was whether an action which was discontinued by consent of the parties may be reinstated by the Court. The Court in that case answered the issue in the affirmative 20 and rescinded the consent order to discontinue the action and reinstated the action also by consent. [23] The learned authors of the Malaysian Civil Procedure 2018 Volume 1 in Note 21/4/5 commented on The Kronprinz case as 25 follows: 4 “Revival after discontinuance – If the action is discontinued by a consent order, the order can later be set aside and the action revived by a subsequent order made by consent (the Kronprinz (1997) 12 App Cas 256)”. 5 [Emphasis added] [24] The decision in the case of The Kronprinz does not assist the Plaintiff. As stated above, in the instant appeal, the Plaintiff unilaterally filed a notice to discontinue and discontinued the main 10 action. [25] This Court is of the view that having chosen to discontinue the main action, the Plaintiff should not be allowed to approbate and reprobate as the Plaintiff chooses. 15 [26] In Express Newspapers Plc v News (UK) Ltd & Ors [1990] 3 All ER 376 at 383 – 384 Sir Nicholas Browne-Wilkinson VC held that: “There is a principle of law of general application that it is not 20 possible to approbate and reprobate. That means that you are not allowed to blow hot and cold in the attitude towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” 25 5 [27] The decision in Express Newspapers Plc v News (UK) Ltd & Ors [1990] 3 All ER 376 was cited with approval in Cheah Theam Kheng v City Centre Sdn Bhd (In Liquidation) & Other Appeals [2012] 2 CLJ 16, CA. 5 [28] In reliance of the Plaintiff’s chosen course of action, the Defendant moved forward with his counter-claim and set it down for trial. 10 [29] According to the Defendant, all directions with regard to the trial of the counter-claim have been complied with and the counter- claim is ready for trial. [30] As stated above, the trial of the counter-claim in the Sessions 15 Court is scheduled on 26.8.2021 and 27.8.2021. [31] This Court finds that, even without the Defendant having to aver so, the Defendant is clearly prejudiced if the Plaintiff were granted the order as sought by the Plaintiff in Enclosure 10. 20 [32] There is another factor which must also be taken into account. Having filed the Notice of Discontinuance on 18.8.2020, and having proceeded to file a Defence to the Counter claim on 17.9.2020, it was only on 1.10.2020 that the Plaintiff filed Enclosure 10. 25 [33] The Plaintiff averred that the Notice of Discontinuance was filed on 18.8.2020 to enable the Plaintiff to file a new action. The purported reason offered by the Plaintiff is of course not stated in the 6 Notice of Discontinuance filed on 18.8.2020. In any event, to-date, the Plaintiff has not filed a new action. [34] Given the chronology of events as they unfolded at the material 5 time, and contrary to the Plaintiff’s submission, this Court finds that the Plaintiff ought to have acted in a prompt and timely manner. [35] This Court also finds that, ultimately, after filing the Notice of Discontinuance on 18.8.2020, the Plaintiff had a change of mind – so 10 to speak. At that juncture, the Plaintiff had other options which the Plaintiff could have pursued. The Plaintiff chose not to do so. [36] In the circumstances of this appeal, this Court finds that the Sessions Court did not err in dismissing Enclosure 10. 15 Decision of the High Court [37] On 25.6.2021, this Court dismissed the appeal by the Plaintiff (Enclosure 1). 20 [38] This Court also ordered that costs in the sum of RM2,000.00 shall be paid by the Plaintiff to the Defendant. -Signed- 25 (MAIDZUARA BINTI MOHAMMED) Judicial Commissioner High Court Melaka 1 July 2021 30 X COA 01072021 7 Counsel for the Appellant: Mr Gandhi Palanisamy Messrs Gandhi & Associates Advocates & Solicitors 5 No. 5 (Tingkat 1), Jalan Idaman Taman Idaman 14100 Simpang Ampat Pulau Pinang [Your Ref: GA/CV/115/20] 10 Counsel for the Respondent: Mr Terrence Lee Rohui Messrs Rohui Sean Chng & Randy 15 Advocates & Solicitors Suite D4-U3-13, Level U3 Block D4 Solaris Dutamas, No. 1 Jalan Dutamas 50480 Kuala Lumpur [Your Ref: L00263/20/TL] 8