SPIRAL PRISTINE SDN BHD Sime Darby Property (Bukit Jelutong) Sdn Bhd

BA-22C-44-10/2017 Kand. 142 IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN 14/11/2023 14:25:02 CIVIL SUIT NO: BA-22C-43-10/2017 BETWEEN 1. OOI CHENG HUAT @ OOI PENG HUAT (NRIC. No.: 540105-02-5317) (Suing in his own name and as the Executor and Trustee of the Estate of Linda Patricia Lim Sooi Hong, deceased) 2. BRYAN PATRICK OOI SZE-YUEN (NRIC. No.: 890827-10-5765) 3. SHAWN PHILIP OOI SZE-YUWN (NRIC. No.: 911125-10-5613) … PLAINTIFFS AND SIME DARBY PROPERTY BERHAD (Co. No.: 15631-P) … DEFENDANT (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN CIVIL SUIT NO: BA-22C-44-10/2017 BETWEEN SPIRAL PRISTINE SDN. BHD. (Co. No.: 775532-T) … PLAINTIFF AND SIME DARBY PROPERTY BERHAD (Co. No.: 15631-P) … DEFENDANT (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN CIVIL SUIT NO: BA-22C-45-10/2017 BETWEEN SHAIFUL HAMIDI BIN BASIRDIN (NRIC. No.: 750513-08-6309) … PLAINTIFF AND SIME DARBY PROPERTY BERHAD (Co. No.: 15631-P) … DEFENDANT S/N JFpm/NHTuEeNzwiRliFetw 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN CIVIL SUIT NO: BA-22C-46-10/2017 BETWEEN ROSLI BIN MUSA (NRIC. No.: 620521-10-5789) … PLAINTIFF AND SIME DARBY PROPERTY BERHAD (Co. No.: 15631-P) … DEFENDANT (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN CIVIL SUIT NO: BA-22C-47-10/2017 BETWEEN 1. NITT SDN. BHD. (Co. No.: 867883-M) 2. SUSILAWATI BINTI AHMAD (NRIC. No.: 700702-10-5016) … PLAINTIFFS AND SIME DARBY PROPERTY BERHAD (Co. No.: 15631-P) … DEFENDANT (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN CIVIL SUIT NO: BA-22C-49-11/2018 BETWEEN 1. ALBERT CHAI MIN CHUNG (NRIC. No.: 730120-13-5159) 2. ADELE LEONG BON YIEN (NRIC. No.: 730915-13-5144) … PLAINTIFFS AND SIME DARBY PROPERTY BERHAD (Co. No.: 15631-P) … DEFENDANT S/N JFpm/NHTuEeNzwiRliFetw 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal JUDGMENT (Defendant’s application to recall plaintiffs’ expert witnesses after completion of trial) A. Introduction 1. This judgment discusses the court’s discretionary power to - (1) allow a party under s 138(4) of the Evidence Act 1950 (EA) to recall the opposing party’s expert witnesses for further cross-examination after the completion of a trial; and (2) allow the party to reopen the party’s case after trial has been completed solely for the purpose of the recall. B. Background 2. In the above six suits (6 Suits), purchasers (Plaintiffs) of six bungalows built and sold (6 Bungalows) by the defendant company (Defendant), have claimed that the Defendant has breached various provisions of six Sale and Purchase Agreements of the 6 Bungalows entered into by the Plaintiffs and Defendant. 3. By consent of parties, the 6 Suits have been tried together (Trial). 4. At the Trial - (1) the Plaintiffs had called, among others, the following two architects to testify - (a) Encik Mushahar bin Mohamed Suki (SP9); and S/N JFpm/NHTuEeNzwiRliFetw 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) Encik Adifazli bin Ahmad (SP10); (2) on 21.7.2020, 22.7.2020 and 27.7.2020, SP9 and SP10 had been called by the Plaintiffs’ learned counsel, Mr. Colin Andrew Pereira, to testify regarding the defects in the 6 Bungalows [Alleged Defects (6 Bungalows)]. The Defendant’s learned counsel, Mr. Rohan Arasoo A/L Jeyabalah, then cross-examined SP9 and SP10 on the Alleged Defects (6 Bungalows); (3) on 27.7.2020 - (a) after Mr. Pereira’s re-examination of SP9 and SP10, he applied to court for their release as witnesses subject to recall by the Plaintiffs because subsequent to 27.7.2020, he wanted to conduct further examination-in-chief of SP9 and SP10 regarding the type of timber used in the construction of the 6 Bungalows (Timber Issue); and (b) the court then released SP9 and SP10 subject to recall by the Plaintiffs’ learned counsel; (4) on 10.4.2021 - (a) Mr. Pereira recalled SP9 and SP10 for further examination-in- chief regarding the Timber Issue; (b) SP9 and SP10 were further cross-examined by Mr. Rohan on the Timber Issue; and S/N JFpm/NHTuEeNzwiRliFetw 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) after further re-examination of SP9 and SP10 by Mr. Pereira, the court released SP9 and SP10 as witnesses without any condition [Court’s Unconditional Release (SP9 and SP10)]; and (5) on 17.2.2020, Mr. Rohan informed the court that the Defendant had closed the Defendant’s case [Close (Defence Case)]. Hence, the Trial was concluded on 17.2.2020. C. Defendant’s six applications to recall SP9 and SP10 for further cross-examination 5. On 17.3.2022, the Defendant filed six applications in the 6 Suits (Defendant’s 6 Applications) for, among others, leave of court to recall SP9 and SP10 for further cross-examination regarding the cost for the Plaintiffs to rectify the Alleged Defects (6 Bungalows) [Rectification Cost (6 Bungalows)]. 6. Mr. Pereira had strenuously resisted the Defendant’s 6 Applications on the following grounds: (1) before SP9 and SP10 gave their expert opinions on 21.7.2020, SP9 and SP10 had affirmed affidavits [Affidavits (SP9 and SP10)] under O 40A of the Rules of Court 2012 (RC). The Affidavits (SP9 and SP10) contained, among others, the expert views of SP9 and SP10 on Rectification Cost (6 Bungalows). The Defendant’s solicitors had been served with the Affidavits (SP9 and SP10) and had prior actual notice of the expert opinions of SP9 and SP10 regarding Rectification Cost (6 Bungalows). Consequently, on 27.7.2020 Mr. S/N JFpm/NHTuEeNzwiRliFetw 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal Rohan should have cross-examined SP9 and SP10 on Rectification Cost (6 Bungalows); (2) SP9 and SP10 had been recalled by Mr. Pereira on 10.4.2021 for further examination-in-chief on the Timber Issue. Hence, on 10.4.2021 Mr. Rohan had a second opportunity to conduct further cross-examination of SP9 and SP10 regarding Rectification Cost (6 Bungalows); (3) if the Defendant’s 6 Applications were allowed by the court, the Plaintiffs would be irreparably prejudiced because the Plaintiffs had already closed their case; (4) the Defendant’s 6 Applications had been filed after the Close (Defence Case), namely after the completion of the Trial. It was therefore too late for the court to allow the Defendant’s 6 Applications at this juncture; and (5) five of the 6 Suits were filed in 2017 while one suit was instituted in 2018. If the court allowed the Defendant’s 6 Applications, there would be a further delay in the disposal of the 6 Suits. Mr. Pereira has cited a host of cases to oppose the Defendant’s 6 Applications. 7. The following evidence had been adduced in support of the Defendant’s 6 Applications: (1) the solicitors for the Plaintiffs and Defendant had previously agreed for Mr. Rohan to reserve further cross-examination of SP9 and S/N JFpm/NHTuEeNzwiRliFetw 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal SP10 with regard to the Rectification Cost (6 Bungalows) [Parties’ Agreement (Further Cross-Examination of SP9 and SP10)]; and (2) the Parties’ Agreement (Further Cross-Examination of SP9 and SP10) was evidenced by way of an exchange of “WhatsApp” messages between the Plaintiffs’ then solicitor (Ms. Tan Wee Jiun) and Ms. Pan Yee Teng (who assists Mr. Rohan in these 6 Suits) (WhatsApp Messages). D. Court’s discretion to allow recall of witness and reopening of party’s case 8. The relevant parts of ss 135, 136(1) and 138(4) EA are reproduced below: “s 135 Order of production and examination of witnesses The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court. s 136 Court to decide as to admissibility of evidence (1) When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise. s 138 Order of examinations and direction of re-examination … (4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, S/N JFpm/NHTuEeNzwiRliFetw 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal and if it does so, the parties have the right of further cross- examination and re-examination respectively.” (emphasis added). 9. I am of the following view regarding the court’s discretionary power to allow a party to recall a witness and to re-open the party’s case solely for the purpose of the recall: (1) it is clear from the employment of the directory term “may” in s 138(4) EA that the court has a discretion to allow any party (X) to recall any witness (Y) who has previously testified at a trial for one of the following two purposes - (a) X’s further examination-in-chief of Y; or (b) X’s further cross-examination of Y [Court’s Discretionary Power (X’s Recall of Y)]. It is decided by Mary Lim Thiam Suan JCA (as she then was) in the Court of Appeal case of Theow Say Kow @ Teoh Kiang Seng, Henry v Graceful Frontier Sdn Bhd & Ors and other appeals [2020] MLJU 57, at [107] and [108], as follows - “[107] Section 138 [EA] empowers the Court to permit in all cases, a witness to be recalled either for further examination-in- chief or for further cross-examination. It is a discretionary power. Where the Court exercises discretion in favour of recalling any witness, the parties have the right to further cross- examination and re-examination respectively. S/N JFpm/NHTuEeNzwiRliFetw 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal [108] In Evidence: Practice and Procedure by Augustine Paul [Malayan Law Journal Sdn Bhd, Third edition, 2003, page 1069], it was reminded that such discretion must be exercised judicially. Strong or cogent reasons must be given and there must be every opportunity or sufficient opportunity afforded to affected parties, to respond by way of cross-examination or rebuttal evidence. Arulanandom J in Ong Yoke Eng & Anor v Lim Ah Yew [1982] 1 MLJ 226, 227, cautioned that “although under ordinary circumstances it may not be necessary or permissible to allow a witness once examined and dismissed by a party to be recalled for it is expected that if the advocate will interrogate him on all material points touching his case, unforeseen situations may develop and there may be also inadvertent omissions. In such a case the Court may at its discretion allow a witness to be recalled, but surprise or prejudice to the other party should be guarded against.” We agree with this dicta; that there must be fair play in the determination of a claim and in the pursuit of justice and the Court must guard against surprise or prejudice. The discretion on recall is not limited to particular witnesses, it is in fact, available in “all cases”, regardless whether the witness being recalled was a party to the claim or simply as a witness.” (emphasis added); (2) s 138(4) EA is silent on how the Court’s Discretionary Power (X’s Recall of Y) should be exercised. I cannot claim to explain all the decided cases which have allowed or dismissed X’s application to recall Y (X’s Application). Nor am I able to reconcile all these cases. It suffices for me to state that from the view point of the stare decisis doctrine, a court’s written judgment on the exercise or non- exercise of the Court’s Discretionary Power (X’s Recall of Y) is S/N JFpm/NHTuEeNzwiRliFetw 9 **Note : Serial number will be used to verify the originality of this document via eFILING portal necessarily dependent on the particular facts of the case in question and the judgment cannot therefore constitute a binding legal precedent. A decided case on the application or non-application of the Court’s Discretionary Power (X’s Recall of Y) can only provide valuable guidance to litigants and learned counsel regarding the court’s approach (not as a rule of law) in a particular factual situation; (3) according to Arulanandom J in the High Court in Ong Yoke Eng & Anor v Lim Ah Yew [1982] 1 MLJ 226, at 227 - “In civil proceedings, it is in the discretion of the court of first instance to recall a witness or call further witnesses after his case is closed. Although under ordinary circumstances it may not be necessary or permissible to allow a witness once examined and dismissed by a party to be recalled for it is expected that the advocate will interrogate him on all material points touching his case, unforeseen situations may develop and there may be also inadvertent omissions. In such a case the court may at its discretion allow a witness to be recalled, but surprise or prejudice to the other party should be guarded against. The objection by the defendant to the application was however not on these anticipated grounds. Nevertheless on allowing the application the court granted liberty to the defendant to cross-examine the recalled witness and further witnesses and call evidence in rebuttal.” (emphasis added). The above judgment has been affirmed by our Court of Appeal in the following two cases - S/N JFpm/NHTuEeNzwiRliFetw 10 **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) Gopal Sri Ram JCA (as he then was) held as follows in Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445, at [8], [18] and [19] - “[8] In my judgment, the better view is that expressed in Ong Yoke Eng. A trial judge must be given a wide discretion on matters relating to evidence. After all, the [EA] itself places the matter of relevance and therefore admissibility upon the court for it provides as follows in s 136(1): … … [18] One last point. Counsel for the defendants made a sustained submission on the discretion of a judge to permit a party to recall a witness after the close of his case. He reads to us Shedden v Patrick (1869) LR 1 HL Sc 470 and Pernas Trading Sdn Bhd v Senali Construction Works Sdn Bhd [1991] 2 CLJ 1587 which are authorities for the proposition that the court must be slow to permit the recall of a witness after the cases of both parties have concluded. I accept, of course that the power to permit the recall of a witness is in the discretion of the court as provided by s 138(4) [EA] which reads: … [19] … In any event, the principle as to the recall of witnesses is the same in both civil and criminal cases. And all I really need do is to quote from the judgment of Ali J (as he then was) in Public Prosecutor v Boo Chew Hia [1963] MLJ 33: “The law permits a witness to be recalled whenever it is essential to the just decision of the S/N JFpm/NHTuEeNzwiRliFetw 11 **Note : Serial number will be used to verify the originality of this document via eFILING portal case. Merely recalling a witness is not in itself an irregularity.” (emphasis added); and (b) Theow Say Kow, at [108]; (4) X bears the burden to persuade the trial court to allow X’s Application because - (a) X’s learned counsel has previously examined-in-chief or cross- examined Y (Y’s Previous Examination-In-Chief/Cross- Examination). X must therefore provide a “strong” or “cogent” reason for X’s recall of Y [X’s Reason (Recall of Y)] - Theow Say Kow, at [108]; and (b) in an adversarial legal system, X should not be allowed to have a “second bite at the cherry”. This consideration should be outweighed by the need for the court to achieve justice - please refer to sub-paragraph (5)(a) below; (5) the following matters should be considered by the trial court in deciding X’s Application - (a) whether it is in the interest of justice for the trial court to allow X’s Application based on X’s Reason (Recall of Y). This should be the primary consideration. In this regard - (i) X’s Reason (Recall of Y) should allude to the proposed evidence to be adduced through Y’s recall [Proposed Evidence (Y)]; and S/N JFpm/NHTuEeNzwiRliFetw 12 **Note : Serial number will be used to verify the originality of this document via eFILING portal (ii) the trial court should then decide whether the Proposed Evidence (Y) is capable of assisting the trial court to decide the dispute in a just manner. Unless it is clear that the Proposed Evidence (Y) cannot assist the trial court to decide justly the controversy in the dispute, it is better for the trial court to err on the side of caution and allow X’s Application. In this manner, there is no ground for X to appeal to the appellate court against the trial court’s refusal of X’s Application and there is therefore no risk of a retrial being ordered by the appellate court (Risk of Retrial) {as had happened in Tan Kah Khiam, at [20]}. At first blush, it seems that if X’s Application is allowed by the trial court [Trial Court’s Favourable Decision (X’s Application)], this may prolong the trial and increase costs for the parties. In other words, the Trial Court’s Favourable Decision (X’s Application) may give the impression that the suit has not been expeditiously and economically disposed of. Upon careful consideration, if the Trial Court’s Favourable Decision (X’s Application) is arrived at after an application of the approach proposed in the above sub-paragraphs (i) and (ii) (Proposed Approach), ie., the Proposed Evidence (Y) is capable of assisting the trial court to decide the suit in a just manner, the Proposed Approach has the following advantages - (a)(i) the Risk of Retrial does not arise at all; S/N JFpm/NHTuEeNzwiRliFetw 13 **Note : Serial number will be used to verify the originality of this document via eFILING portal (a)(ii) limited judicial resources are not wasted if a retrial is ordered by an appellate court and parties need not waste valuable time, effort and costs to conduct a retrial; and (a)(iii) with X’s recall of Y and the trial court’s decision after trial, parties may appeal thereafter against the trial court’s decision. In this sense, there is finality in litigation; (b) if the Proposed Evidence (Y) is capable of assisting the trial court to decide the dispute in a just manner, the court should allow X’s Application even if there was an “inadvertent omission” on the part of X and/or X’s learned counsel in the conduct of Y’s Previous Examination-In-Chief/Cross- Examination. This is clear from the following cases - (i) Ong Yoke Eng, at p. 227; (ii) in the Court of Appeal case of Tenaga Nasional Bhd v Prorak Sdn Bhd [2000] 1 MLJ 479, at 484 (TNB’s Case), Gopal Sri Ram JCA (as he then was) has decided as follows - “Whenever possible, where there is no risk of sacrifice of principle in the name of justice or at the altar of convenience, we do our best to ensure that a lay client does not suffer because of the mistake of his legal advisers. We do so in the interests of justice. When we act, we always bear in mind what Lord Denning S/N JFpm/NHTuEeNzwiRliFetw 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal said in Doyle v Olby (Ironmongers) Ltd [1969] 2 All ER 119, at p 121: We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously affected the course of the evidence, in which case we can at best order a new trial.” (emphasis added); and (iii) according to Tan Kah Khiam, at [10] - “[10] … It is a long standing principle that the object of courts is to decide the rights of the parties in litigation and not to punish for mistakes made in the conduct of a case unless the circumstances be exceptional. That principle was expressed in the following way by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at p 710: “Now, I think it is a well established principle that the object of Courts 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. Speaking for myself, and in conformity with what I have heard laid down by the other division of the S/N JFpm/NHTuEeNzwiRliFetw 15 **Note : Serial number will be used to verify the originality of this document via eFILING portal Court of Appeal and by myself as a member of it, 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, ... ” (emphasis added). The Court of Appeal in Tan Kah Khiam, at [11], has affirmed the above part of the judgment in TNB’s Case as reproduced in the above sub-paragraph (5)(b)(ii); (c) whether there was an unforeseeable matter which X and/or X’s learned counsel could not have raised in Y’s Previous Examination-In-Chief/Cross-Examination - Ong Yoke Eng, at p. 227; (d) whether there was evidence which only came into being after Y’s Previous Examination-In-Chief/Cross-Examination; and (e) whether X and/or X’s learned counsel had now obtained evidence which was not available to X and/or X’s learned counsel at the time of Y’s Previous Examination-In-Chief/Cross- Examination and such evidence could not have been made available to X and/or X’s learned counsel with reasonable diligence on the part of X and/or X’s learned counsel at the time of Y’s Previous Examination-In-Chief/Cross-Examination; S/N JFpm/NHTuEeNzwiRliFetw 16 **Note : Serial number will be used to verify the originality of this document via eFILING portal (f) whether X’s recall of Y would prejudice the opposing party (Z) - Ong Yoke Eng, at p. 227. Z may not be prejudiced by X’s recall of Y because - (i) s 138(4) EA itself provides that Z has a right of further cross-examination or further re-examination, as the case may be, after X’s recall of Y; (ii) in the interest of justice, the court may allow Z to call a new witness or recall a witness who has previously testified, to rebut Y’s evidence given pursuant to X’s recall of Y (Rebuttal Witness) - Ong Yoke Eng, at p. 227; (iii) Z and Z’s learned counsel should be given sufficient time to prepare for - (f)(i) Y’s recall; and (f)(ii) Z’s calling of the Rebuttal Witness (if any); and (iv) X should pay costs to Z because Z should be compensated for the costs which will be incurred by Z due to X’s recall of Y and Z’s calling of the Rebuttal Witness (if any); and (g) whether there is a delay in making X’s Application (X’s Delay) and if “yes” - (i) is there a reasonable explanation for X’s Delay?; and (ii) whether X’s Delay has caused prejudice to Z and if so, can Z be compensated in costs by X for such a prejudice?; S/N JFpm/NHTuEeNzwiRliFetw 17 **Note : Serial number will be used to verify the originality of this document via eFILING portal (h) whether X and/or Z has/have closed their case - this will be discussed in detail in sub-paragraph (6) below; and (i) the circumstances discussed in the above sub-paragraphs (a) to (h), needless to say, cannot be exhaustive; (6) with regard to the court’s discretionary power to allow a party to reopen the party’s case [Court’s Discretionary Power (Reopening of Party’s Case)] - (a) there are three possible bases for the Court’s Discretionary Power (Reopening of Party’s Case) as follows - (i) in Tan Kah Khiam, at [8], the Court of Appeal has relied on s 136(1) EA as the basis of the Court’s Discretionary Power (Reopening of Party’s Case); (ii) I am of the diffident view that s 135 EA provides for the Court’s Discretionary Power (Reopening of Party’s Case). Section 135 EA provides that the “order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil … procedure respectively, and in the absence of any such law by the discretion of the court”. RC do not provide for the Court’s Discretionary Power (Reopening of Party’s Case). Hence, the court has a discretion under s 135 EA to allow a party to reopen the party’s case; and S/N JFpm/NHTuEeNzwiRliFetw 18 **Note : Serial number will be used to verify the originality of this document via eFILING portal (iii) when the Court’s Discretionary Power (X’s Recall of Y) is exercised in favour of allowing X’s Application, the court has an implied power under s 138(4) EA read with s 40(1) of the Interpretation Acts 1948 and 1967 (IA) to allow X and/or Z to reopen their cases - please refer to sub- paragraph (6)(c) below; (b) as to how the Court’s Discretionary Power (Reopening of Party’s Case) should be exercised, it is decided in Tan Kah Khiam, at [6], [9], [10] and [14], as follows - “[6] … For temporally speaking, whether the trial judge may exercise his discretion to permit the reopening of a party's case will very much depend on the stage at which the application is made. It may be more likely that discretion may be exercised at the stage where the application is made immediately after a party closes his case. But it may be less likely that discretion will be favourably exercised where the application is made after the defendants have closed their case and just before the trial judge is about to pronounce his judgment. In the spectrum of factual possibilities that exist between each of these two extremes the exercise of discretion would, in my judgment, very much depend as to where the justice of the case lies having regard to the peculiar facts and circumstances before the court. … [9] The view I have to make is supported by the decision in TD Canada Trust v McMaster et al [2003] BCD (Civ) 16394, where Garson J said: S/N JFpm/NHTuEeNzwiRliFetw 19 **Note : Serial number will be used to verify the originality of this document via eFILING portal In Dudas v Munroe [1993] BCJ 2035 (SC) (QL), Braidwood J (as he then was) summarised the law concerning the court's discretion to re-open a trial before judgment is entered as follows: In deciding whether or not to re-open a case, the governing considerations are first, would a miscarriage of justice probably occur without a re-hearing; and second, would a re-hearing probably produce a change of result?. The discretion to re-open a trial before judgment is entered is an unfettered discretion but one that should be used sparingly (Sykes v Sykes (1995) 6 BCLR (3d) 296 (CA)) and has as its purpose the correction of what would otherwise be a miscarriage of justice (Kemp v Wittenberg, 1999 BCJ 810 (SC)). [10] Again in Lubrizol Corp v Imperial Oil Ltd 62 ACWS (3d) 902, the Federal Court of Appeal of Canada (Stone, Linden and McDonald JJA) when dealing with the point under discussion said (in the joint judgment of Stone and Linden JJA): Save in exceptional circumstances, a litigant who has had a full opportunity of adducing evidence at trial will not be permitted to reopen his case so as to allow new evidence to be introduced after the judgment at trial. [Becker Milk Co Ltd et al v Consumers' Gas Co (1974) 2 OR (2d) 554 (CA) ]. It has been well observed that as under our adversary system of justice, 'what witnesses are S/N JFpm/NHTuEeNzwiRliFetw 20 **Note : Serial number will be used to verify the originality of this document via eFILING portal called and what questions they are asked is a matter left to counsel' and it is counsel who 'makes decisions, both strategic and tactical, as to what approach will be taken… counsel cannot later complain about the absence of evidence at trial.' [International Corona Resources Ltd v LAC Minerals Ltd (1988) 66 OR (2d) 610. … [14] … Here we can look at all the facts and see how a reasonable tribunal would have acted in their face. And there is no question that a reasonable tribunal would have rejected the defendants' illogical suggestion and proceeded to deal with the plaintiff's application to reopen his case at the time before the defendants began their defence. A reasonable tribunal would have had the interests of justice as the overriding consideration in its mind and taken into consideration the principle that as far as is possible a litigant should not be punished for the error of his or her counsel. In that state of affairs, a reasonable tribunal armed with all the relevant material that was before the trial judge would have permitted the plaintiff to reopen his case. Especially so as the defendants would have suffered no prejudice in real terms by the grant of the application. Also time and costs would have been saved. And the trial could have proceeded with smoothly.” (emphasis added). It is clear from Tan Kah Khiam that whether the Court’s Discretionary Power (Reopening of Party’s Case) will be invoked or otherwise, depends on the “interests of justice as the overriding consideration”; and S/N JFpm/NHTuEeNzwiRliFetw 21 **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) Tan Kah Khiam does not concern an application to recall a witness under s 138(4) EA. According to s 2(1)(b) IA, Part I IA applies to EA because the EA has been revised under the Revision of Laws Act 1968. Section 40(1) IA is in Part I IA and provides as follows - “s 40 Implied powers (1) Where a written law confers a power on any person to do or enforce the doing of any act or thing, all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.” (emphasis added). If the court decides to exercise its discretion under s 138(4) EA to allow X to recall Y and at the same time if the court also allows Z to recall the Rebuttal Witness [please see the above sub-paragraph (5)(f)(ii)], even if both X and Z have closed their case, by reason of s 40(1) IA, the court may allow - (i) X to reopen X’s case for the sole purpose of recalling Y; and (ii) Z to reopen Z’s case so as to enable Z to call the Rebuttal Witness - which is “reasonably necessary” for X’s recall of Y and for Z to call the Rebuttal Witness. S/N JFpm/NHTuEeNzwiRliFetw 22 **Note : Serial number will be used to verify the originality of this document via eFILING portal If the Court’s Discretionary Power (Reopening of Party’s Case) is not implied under s 138(4) EA read with s 40(1) IA - (c)(i) this will render redundant the court’s discretionary power pursuant to s 138(4) EA to allow X’s Recall of Y after the close of X’s case; (c)(ii) such an outcome is contrary to the phrase “all cases” in s 138(4) EA; and (c)(iii) this may cause an injustice to X if X has a good reason to recall Y - please refer to the above sub- paragraphs (5)(a) to (e); (7) if X’s Application is made after the completion of a trial, the Court’s Discretionary Power (X’s Recall of Y) and Court’s Discretionary Power (Reopening of Party’s Case) may be exercised in favour of X’s Application if - (a) it is just for the court to do so - please refer to the above sub- paragraphs (5)(a) and (6)(b); and (b) there is no prejudice to Z [please see the above sub-paragraph (5)(f)] and Z may be allowed in the interest of justice to call the Rebuttal Witness [please refer to the above sub-paragraph (5)(f)(ii)]; (8) the fact that Y has been unconditionally released as a witness by the court, does not fetter the exercise of the Court’s Discretionary Power (X’s Recall of Y) and Court’s Discretionary Power S/N JFpm/NHTuEeNzwiRliFetw 23 **Note : Serial number will be used to verify the originality of this document via eFILING portal (Reopening of Party’s Case). This is because if Y has been released as a witness by the court subject to recall [Court’s Conditional Release (Y)], X can simply recall Y based on the Court’s Conditional Release (Y) and X need not apply to court under s 138(4) EA for leave to recall Y and to reopen X’s case. Accordingly, I cannot accept Mr. Pereira’s reliance on the Court’s Unconditional Release (SP9 and SP10) as a ground to oppose the Defendant’s 6 Applications; and (9) the Court’s Discretionary Power (X’s Recall of Y) and Court’s Discretionary Power (Reopening of Party’s Case) cease upon the delivery of the court’s decision on the merits of the trial. E. Should court allow Defendant’s 6 Applications? 10. Firstly, the WhatsApp Messages are admissible as evidence in court proceedings - please refer to Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor and another case [2019] 7 MLJ 175, at [23(1)]. 11. Secondly, I attach great weight to the WhatsApp Messages because - (1) the WhatsApp Messages constituted contemporaneous documentary evidence; and (2) the Plaintiffs’ solicitors could not deny the truth of the contents of the WhatsApp Messages. 12. In view of the WhatsApp Messages, the existence of the Parties’ Agreement (Further Cross-Examination of SP9 and SP10) has been proven by the Defendant. S/N JFpm/NHTuEeNzwiRliFetw 24 **Note : Serial number will be used to verify the originality of this document via eFILING portal 13. I have no hesitation to decide that the Defendant has discharged the onus to persuade the court to allow the Defendant’s 6 Applications. This decision is premised on the following evidence and reasons: (1) if the Defendant’s 6 Applications is dismissed, the Defendant’s learned counsel would not have the right to challenge the expert testimonies of SP9 and SP10 regarding the Rectification Cost (6 Bungalows). In such an event, as decided by Raja Azlan Shah CJ (Malaya) (as His Majesty then was) in the Federal Court case of Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212, at 213, the Defendant would be deemed in law to have accepted the expert views of SP9 and SP10 on the Rectification Cost (6 Bungalows). This will cause an injustice to the Defendant in the 6 Suits; (2) the Plaintiffs are not prejudiced in any manner if the court allows the Defendant’s 6 Applications because - (a) in view of the Parties’ Agreement (Further Cross-Examination of SP9 and SP10), the Plaintiffs were not caught by surprise by the Defendant’s 6 Applications; (b) after Mr. Rohan’s further cross-examination of SP9 and SP10 on the Rectification Cost (6 Bungalows), Mr. Pereira has a right of further re-examination SP9 and SP10 pursuant to s 138(4) EA; and (c) as explained in the above sub-paragraph (5)(f)(ii), Mr. Pereira has a right to call a Rebuttal Witness after Mr. Rohan’s further S/N JFpm/NHTuEeNzwiRliFetw 25 **Note : Serial number will be used to verify the originality of this document via eFILING portal cross-examination of SP9 and SP10 in respect of the Rectification Cost (6 Bungalows); and (3) the doctrine of equitable estoppel has a wide application - please refer to the Federal Court’s judgment delivered by Gopal Sri Ram JCA (as he then was) in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 294. The Plaintiffs are estopped by the Parties’ Agreement (Further Cross-Examination of SP9 and SP10) from opposing the Defendant’s 6 Applications. It is clearly unjust for the Plaintiffs to resile from the Parties’ Agreement (Further Cross-Examination of SP9 and SP10) (Plaintiffs’ Inequitable Conduct) and resist the Defendant’s 6 Applications. 14. All the cases relied on by Mr. Pereira can be easily distinguished due to the existence of the Parties’ Agreement (Further Cross-Examination of SP9 and SP10) in support of the Defendant’s 6 Applications. F. Costs 15. As explained in the above sub-paragraph 9(5)(f)(iv), if the court allows a defendant’s application to recall a witness and to reopen the defendant’s case after the conclusion of a trial, costs of the application should ordinarily be borne by the defendant. However, in view of the Plaintiffs’ Inequitable Conduct, for the Defendant’s 6 Applications, I award costs of RM5,000,00 as costs in the cause of the 6 Suits (subject to allocatur fee). Such a decision is made pursuant to O 59 r 8(b) RC which reads as follows: S/N JFpm/NHTuEeNzwiRliFetw 26 **Note : Serial number will be used to verify the originality of this document via eFILING portal “r 8 The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account - … (b) the conduct of all the parties, including conduct before and during the proceedings; ” (emphasis added). G. Court’s decision 16. Premised on the evidence and reasons explained in the above paragraphs 10 to 13, the Defendant’s 6 Applications are allowed with the following orders: (1) the Defendant is allowed to recall SP9 and SP10 for further cross- examination which is confined to the Rectification Cost (6 Bungalows); (2) the Defendant is granted leave to reopen the Defendant’s case for the sole purpose as stated in the above sub-paragraph (1); and (3) costs of the Defendant’s 6 Applications is provided in the above paragraph 14. WONG KIAN KHEONG Judge Court of Appeal, Malaysia S/N JFpm/NHTuEeNzwiRliFetw 27 **Note : Serial number will be used to verify the originality of this document via eFILING portal DATE: 7 NOVEMBER 2023 Counsel for Plaintiffs Mr. Colin Andrew Pereira & Mr. Gary Wong Kin Wai (in 6 Suits): (Messrs Goh Wong Pereira) Counsel for Defendant Mr. Rohan Arasoo A/L Jeyabalah (in 6 Suits): Ms. Amy Hiew Kar Yi & Ms. Pan Yan Teng (Messrs Harold & Lam Partnership) S/N JFpm/NHTuEeNzwiRliFetw 28 **Note : Serial number will be used to verify the originality of this document via eFILING portal