Bandari Simma Realty Sdn. Bhd. v TAN BON KIAT (JA-12BNCvC-30-12/2023)

BADAN PENGURUSAN BERSAMA PELITA INDAH

BANDARI SIMMA REALTY SDN. BHD.

KANG HOCK HIN

JOTHI A/P MUNIANDY

INDRA DEVI A/P LECHANAM (NO. K/P: 850620-01-6240) ...DEFENDANTS 21/01/2026 17:15:54 JA-12BNCvC-30-12/2023 Kand. 39 (IN THE ORIGINAL ACTION) BANDARI SIMMA REALTY SDN. BHD. (NO. SYARIKAT: 936685-H) …PLAINTIF (NO. K/P: 480521-01-5685) …DEFENDANT (COUNTER CLAIM) GROUNDS OF JUDGMENT

This is an appeal by the Appellant against the decision of the Sessions Court Judge (“SCJ”) dated 03.12.2023 whereby the Appellant’s counter claim dated 02.07.2018 was dismissed.

After having read the grounds of the judgement of the SCJ, the Appeal records, Parties’ written submissions and oral submissions, I dismissed the Appeal with costs of RM50,000.00 to be paid by each of the directors of the Appellant jointly and severally to the Respondent within fourteen (14) days from the date of the Order. I further order costs of RM50,000.00 to be paid by Subramaniam Paidathally to the Respondent within fourteen (14) days from the date of the Order.

Below are the grounds of my decision.

This matter was an appeal at the Johor Bahru High Court vide Civil Appeal No: JA-12ANCvC-90-10/2021 filed by the Respondent against the SCJ’s decision which dismissed the Respondent’s application to set aside the Judgment granted by the Sessions Court Johor Bahru on 07.10.2020 declaring the Appellant (“Bandari Simma”) as the beneficial owner of the Pelita Indah Condominium units.

The Johor Bahru High Court allowed the Respondent’s appeal and set aside the Sessions Court Judgment granted on 07.10.2020 and further ordered for the Appellant ’s counter claim to be remitted to the Sessions Court Johor Bahru for a retrial.

At the trial of the counter claim on 03.12.2023, the Appellant’s solicitors failed to appear and the SCJ dismissed the counter claim.

The SCJ has awarded costs of RM10,000.00 to be paid by the Appellant to the Respondent (see pages 1-3 of the Supplemental

Dissatified with the decision of the SCJ, the Appellants filed notice of appeal contending that the SCJ erred in law and in fact, principally on grounds of alleged breach of natural justice, refusal of adjournment, and denial of the Appellant’s right to be heard.

Having carefully considered the Records of Appeal, Supplementary Records of Appeal, and the written and oral submissions of both parties, I find no merit in this appeal and dismissed the Appellants’ appeal with costs of RM50,000.00 to be paid by each of the directors of the Appellant jointly and severally to the Respondent within fourteen (14) days from the date of the Order. I further order costs of RM50,000.00 to be paid by Subramaniam Paidathally to the Respondent within fourteen (14) days from the date of the Order.

The issues for the determination of this Court are as follows:

whether the SCJ erred in law by dismissing the counter claim due to the non-appearance of the Appellant’s solicitors;

whether the refusal to grant an adjournment amounted to a breach of natural justice; and

whether appellate intervention is warranted. COURT ANALYSIS AND FINDINGS

In order to determine the issues, I have to examine the evidence and exhibits presented and also the grounds of judgment of the SCJ. Whether the SCJ erred in law by dismissing the counter claim due to the non-appearance of the Appellant’s solicitors

The Rules of Court 2012 (“ROC 2012”) governing adjournments is found under Order 35 Rule 3. It reads as follows: "The Judge may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and upon such terms, if any, as he thinks fit.".

In the case of Lee Ah Tee v. Ong Tiow Pheng & Ors. [1984] 1 CLJ Rep 187, the Federal Court ruled that— “It can be seen clearly here that this is not really a case of refusing an application for adjournment but a case of refusing to further adjourn the hearing after a number of adjournments granted previously.... The discretion of the Judge to allow or refuse an application for adjournment was a subject dealt with in depth by the Court of Appeal in Dick v. Piller. We agree to and adopt the following principles as regards the discretion in allowing or refusing an adjournment:

Whether or not a party should be granted an adjournment is wholly at the discretion of the Judge. He would exercise the discretion solely upon his view of the facts.

Prima facie this discretion is unfettered.

The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment.". [Emphasis added]

In the case of Dick v. Piller [1943] 1 All ER 627 as cited by the Federal Court in Lee Ah Tee's case, the English Court of Appeal held as follows: "The case resolves itself into a short question of law. If an important witness - a fortiori if he is a party - is prevented by illness from attending the court for an adjourned hearing, at which his evidence is directly and seriously material, what is the legal duty of the judge when an adjournment is asked for? In my view, if he is satisfied (i) of the medical fact and (ii) that the evidence is relevant and may be important, it is his duty to give an adjournment - it may be on terms - but he ought to give it unless, on the other hand, he is satisfied that an injustice would thereby be done to the other side which cannot be reduced by costs. These questions may depend on matters of degree, and matter of fact may be involved. ". [Emphasis added]

The burden is on the person seeking the adjournment to persuade the court to exercise the discretion in his or her favour. (See Sheikh Abdul Aziz Sheikh Shukor & ors v. Sheikh Mustapha Sheikh Shukor & ors [2004] 3 CLJ 108).

Further, in the case of Lim Siew Kim v. Kien Huat Realty Sdn. Bhd. & Anor [2022] MLJU 3484, Ahmad Fairuz Zainol Abidin HCJ (as he then was) stated the following: “[20] In other words, the Plaintiff must cross the threshold of having good grounds for an adjournment. If the Plaintiff has good grounds, the discretion should generally be exercised to grant the adjournment unless it will cause prejudice to the Defendants in a manner that cannot be compensated by costs. What this means is, an adjournment should not be granted if the Defendants will be prejudiced in a manner that cannot be compensated by costs regardless of how valid and meritorious the Plaintiff's grounds are for seeking the adjournment. [21] In the recent English High Court case of The Financial Conduct Authority (A Company Limited by Guarantee) v. Avacade Limited (in liquidation) (trading as Avacade Investment Options), Alexandra Associates (U.K.) Limited (trading as Avacade Future Solutions), Craig Stanley Lummis, Lee Edward Lummis, Raymond George Fox [2020] EWHC 26 (Ch), the court observed that matters beyond medical evidence should be considered in exercising its discretion whether to allow an application for adjournment: "74. I am asked to adjourn the trial. That is essentially a case management decision which I must make taking account of all relevant factors and bearing in mind in particular the overriding objective and the need to deal with cases justly. As has been said, that involves looking at the position in the round and not from the perspective of one party only. I must therefore obviously take into account matters beyond the medical evidence available to me. I draw attention in particular to the following.

First, the nature of the proceedings. It is true that the proceedings involve serious allegations against, amongst others, the third and fourth defendants which will have serious consequences for them if sustained...

Fourth, I must record the negative consequences arising from an adjournment at such a late stage. These are obvious and very serious. They include, but are not limited to, the inconvenience to the witnesses who have been warned, wasted court time and resources and costs thrown away which may ultimately be irrecoverable.

Fifth, there is the wider public interest in the present litigation being concluded in a timely manner, in particular given the time that has elapsed so far since the proceedings were commenced." … The Plaintiff's track record [49] The track record of the Plaintiff paints a picture of her being of a reluctant and hesitant litigant. This Court granted numerous adjournments due to the medical evidence produced. This was primarily due to humanitarian considerations. The Plaintiff was after all an elderly litigant who might be expected to be susceptible health issues. However, the generosity of this Court has its limits. [50] The latest Application has taken the request to a different level. It has resulted in the need for this Court to look not just at the plight of the Plaintiff but also those embroiled in the suit. This is where this Court is guided by the principles of Lee Ah Tee and Dick v. Piller. The prejudice to the Defendants must be considered beyond the medical evidence of the Plaintiff.”. [Emphasis added]

In the case of Yeoh Soon Peng v Swaminathan Swetharanyam @ SM Swetharanyam a/l Swaminathan Chettiar & Ors [2016] MLJU 882, Lim Chong Fong HCJ (as he then was) stated the following: “[16] It is clear that the decision whether to grant an adjournment is a discretionary one albeit it must be exercised judicially. To me, the Plaintiff had not acted in a fair and open manner by disclosing his bankruptcy to his solicitors with promptitude. By his late revelation here, the Plaintiff has inconvenienced, if not also prejudiced the Defendants who have come fully prepared for the trial to defend the claim as well as pursue their counter claim. That aside, the court is put to a bind in that three precious days allocated for the trial is wasted. Moreover the reallocation of new trial dates would have to be at the expense of other cases already in the queue. Compliance with the current court policy of concluding the case within 9 – 12 months is no longer achievable too. The parties are presently unable to ascertain when the sanction of the Director General of Insolvency as well as the leave of the bankruptcy court can be obtained. Thus the conclusion of the action has been set at large. Plainly, there is injustice caused here by the Plaintiff that ought to have been circumvented from the beginning. [17] In the circumstances and in exercise of my inherent power and discretion, I refused the adjournment and dismissed the action. In the Federal Court case of Lee Ah Tee v. Ong Tiow Pheng & Ors [1984] 1 MLJ 107, Hashim Yeop A Sani FJ (later CJ(Malaya)) held as follows at 109 with emphasis added: “The discretion of the Judge to allow or refuse an application for adjournment was a subject dealt with in depth by the Court of Appeal in Dick v Piller [1943] 1 All ER 627. We agree to and adopt the following principles as regards the discretion in allowing or refusing an adjournment:

Whether or not a party should be granted an adjournment is wholly at the discretion of the Judge. He would exercise the discretion solely upon his view of the facts.

Prima facie this discretion is unfettered.

The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment.

Although an appellate court has power to interfere with the Judge’s decision in regard to the granting of an adjournment, it would refrain from doing so unless it appears that such discretion has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.

An appellate court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate court has power and indeed a duty to review the exercise of the discretion. Normally, the refusal of an adjournment would result in the trial proceeding. This course is however not possible here. The converse course is to instead dismiss the action because the Plaintiff has caused inexcusable delay. The Federal Court case of Toh Hock Thye & Ors v. Toh Chwee Biow [1982] 1 MLJ 152 is an instance where the action was dismissed based on the court’s inherent powers by reason that the plaintiff was guilty of inordinate and inexcusable delay that prejudiced the defendant: see also Vasudevan Vazhapulli Raman v. T. Damodaran P V Raman & Anor [1981] CLJ Rep 101.”. [Emphasis added]

Based on the principles laid down in the above cases, the Court will only interfere with the exercise of discretion of the SCJ in dismissing the Appellant’s counter claim only if it appears that the result of the order would defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties. The burden is on the Appellants to prove the SCJ’s decision has been in breach of natural justice.

The Appellants submitted that a fair hearing is a fundamental constitutional principle, and no party should be deprived of their rights without due process. The Appellants submitted that the SCJ breached the rules of natural justice by failing to uphold these principles.

The Appellants submitted that the first material error occurred when the SCJ struck out the counter claim solely due to the absence of the Appellant’s solicitor, despite the Appellant’s repeated but unsuccessful attempts to contact them. In doing so, the Court penalized the Appellant for their solicitor’s conduct, resulting in severe prejudice as the counter claim was dismissed without any consideration of its merits or witnesses being heard.

The Respondent on the other hand argued that the Appellant’s solicitor in this case, Messrs Krish & Co. has never conducted any case involving the Appellant and the Appellant has always appointed their counsels. The counsels too did not appear on the trial date. The Respondent argued that the adjournment sought by the Appellant was a blatant ruse.

According to the SCJ on pages 2-5 of the Memorandum of Appeal, she has considered the fact that on 03.10.2023, new trial dates were fixed after the Sessions Court was informed that the High Court had dismissed the Appellant’s stay application. The trial dates were fixed on 03.12.2023, 08.12.2023 and 12.12.2023. The SCJ was informed that the Appellants have yet to file the trial documents despite the order to do so had been made in May 2023. The SCJ gave stern warning to Mr. Krishna who appeared that day for the Appellant, for failure to comply with the Pre-Trial Case Management (“PTCM”) Order will result in adverse consequences to the Appellant ’s counter claim.

On 05.11.2023, the SCJ dismissed Enclosure 179 (Recusal Application) with costs of RM1,500.00 to be paid within 14 days from the date of the decision. On this occasion as well, the SCJ reminded counsels who appeared for both parties to be ready for trial and no adjournment whatsoever shall be granted since this matter had been pending for quite some time.

On 30.11.2023, through the e-filing system, the Appellant’s solicitors filed Enclosure 203, an application to withdraw themselves from representing the Appellant in this claim. The application was fixed for hearing on 03.12.2023 i.e. the same trial date for the counter claim.

On the trial date 03.12.2023, the Respondent’s solicitors were in attendance. The Appellant’s solicitors, Mr. Krishna was not present. In attendance was the Appellant’s director one Jothi a/p Muniandy (the 4th Defendant) with three (3) individuals who identified themselves as the witnesses for the Appellant.

Upon inquiry by the SCJ as to the whereabout of Mr. Krishna, the 4th Defendant said she could not contact Mr. Krishna. She was aware that today was fixed for hearing of Enclosure 179 and the trial for the counter claim. She said the Appellant was informed orally by Mr. Krishna two (2) weeks before the trial date that he and his firm wished to withdraw from representing the Appellant in this case. The 4th Defendant said she did not object to Mr. Krishna’s request despite the fact that the trial date was looming nearer.

The SCJ told the 4th Defendant that the Court intended to proceed with the trial and under no circumstances that it shall be postponed. The 4th Defendant informed the Court that the Appellant was not ready to proceed with its counter claim because the Appellant needed to appoint new solicitors. The 4th Defendant informed the Court that the Appellant needed time to find a new one.

To make matter worse, the Appellant’s solicitors, Messrs Krishna & Co. was still on record since Enclosure 203 was yet to be heard and disposed by the Court. Mr. Krishna from the firm was not present for the hearing of Enclosure 203. The Appellant’s director, the 4th Defendant only said she tried to contact Mr. Krishna Moorthi but it seemed that he was missing in action on that day and did not pick up her call.

When the SCJ delivered her decision on Enclosure 179 on 05.11.2023, the Court had reminded the parties that the trial would proceed on 03.12.2023 and no adjournment would be allowed. At that point of time, there was not an inkling of indication coming from Mr. Krishna who was present on that day that he and his firm, Messrs Krish & Co. intended or had in mind to discharge themselves from representing the Appellant.

The reason given by Mr. Krishna in his affidavit in support of Enclosure 203, was that the firm was moving from its current location in Johor Bahru to Kuala Lumpur at the end of November 2023 and that would be cumbersome for him to continue attending to this matter in Johor Bahru. Further he averred that two (2) weeks prior to the filing of Enclosure 203, he informed the Appellant of his intention. He further said that the Appellant would not have enough time to appoint new solicitors for the trial.

It was the SCJ’s opinion that the decision to move the office from one location to another is a serious business and certainly does not materialise in one day. It would have involved careful planning ahead of time especially with regards to the client ’s brief and interest. The SCJ was of the view that the decision to move the firm was made much earlier than November 2023, which means Mr. Krishna could have informed the Appellant much earlier than what he averred in the affidavit in support.

Further the SCJ found that his averment that it would be difficult for him to attend to this case after moving to Kuala Lumpur is also unconvincing. Kuala Lumpur is just three (3) hours away from Johor Bahru by highway and many solicitors or firms based in Kuala Lumpur have their cases and clients in Johor Bahru. The SCJ felt that in this age of highways and airways, distance is not an issue. Mr. Krishna could have easily come from Kuala Lumpur to Johor Bahru to continue with this case.

The SCJ said that the fact Mr Krishna only informed his clients at the last minute even though he knew that the Appellant would need time to find a new solicitor before the trial date either shows his lackadaisical attitude towards the case or that all of them, the scheming solicitors and the Appellants themselves colluded to avoid from proceeding with the trial on 03.12.2023.

The SCJ opined that the latter is the truth behind the connundrum. This is fortified by the fact that Mr. Krishna himself was missing on that day itself and unable to be contacted. Had Mr. Krishna attended court that day, the SCJ would definitely dismiss Enclosure 203 and directed the Appellant to proceed with the trial. Thus, in order to avoid that from happening, it was much easier if Mr. Krishna did not turn up at all although his application or rather the firm’s application was still pending before the court.

The SCJ was of the opinion that the Appellant was doing all it can to avoid the trial of the counter claim from proceeding for reasons best known to only themselves.

Upon examining the chronology of events for this case, I find that the Appellant has used the same tactics and pattern throughout the proceedings to delay the trial. The counter claim was initially fixed for trial on the 30.07.2023. Then, it was adjourned due to the Stay Application filed by the Appellant on 30.06.2023 which was about one (1) month before the trial. Another attempt to adjourn the counter claim trial was done when the Appellant filed their Recusal Application on the 24.08.2023 to remove Messrs G Ravi as solicitors for the Respondent. The Recusal Application was dismissed. Then, the Appellant’s solicitors filed his Notice of Discharge Solicitors’ application on the 30.11.2023 just three (3) days before the trial date on the 03.12.2023. It is a tactical maneuver to avoid from proceeding with the trial on 03.12.2023.

The Appellant’s solicitor who did not appear in Court on 03.12.2023 despite being ordered to do so has behaved disgracefully toward the SCJ. The conduct of the Appellant’s solicitor is unprofessional and has no respect to the SCJ. The Appellant’s solicitor has clearly violated Rule 15 Legal Profession (Etiquette and Conduct) Rules 1978 which provides that— “Respect to court. An advocate and solicitor shall maintain a respectful attitude towards the Court.”. [Emphasis added]

Further, the Appellant’s solicitor should not have accept this case if he was not able to appear in Session Court at Johor Bahru on 03.12.2023. The conduct of the Appellant’s solicitor has contravened Rule 6 and Rule 24 of the Legal Profession (Etiquette and Conduct) Rules 1978 respectively which provides that— “Rule 6. An advocate and solicitor not to accept brief if unable to appear

An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

An advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Rule 24. Advocate and solicitor to be ready for the day fixed for trial

An advocate and solicitor shall make every effort to be ready for trial on the day fixed.

An advocate and solicitor may apply for postponement of a case fixed for hearing for good and cogent reasons only.

Except in an emergency, it is improper for an advocate and solicitor to apply for a postponement in the absence of counsel or the other side unless he has given the counsel concerned at least forty eight hours notice of his intention to make the application.”. [Emphasis added]

I refer to the the Court of Appeal’s decision in Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh Bin Mamat & Ors [2009] 4 MLJ 610 is directly on point, where His Lordship James Foong FCJ emphatically held: "[21] This excuse offered by the defendants seem to lay the blame on an employee engaged by the defendants' solicitors who failed to enter into the diary the hearing date. But an employer is responsible for the action of his employee and so is the conduct of the defendants' solicitors binding the defendants. Undoubtedly, such callous act of the defendants' solicitors speaks very poorly of them. And such excuse has for the last decade become a common feature for an applicant to convince the court into granting him a retrial. But from authorities [Mohd Yusof Mohamad v Electrolux Home Centers Sdn Bhd [1999] 2 CLJ 866; Asia Commercial Finance (M) Bhd v Pasadena Properties Development Sdn Bhd & Ors [1991] 1 MLJ 111; [1990] 1 CLJ (Rep) 606) such excuse has not been tolerated. This has in fact irked the court to remark in Lim Soh Wah & Anor v Wong Sin Chong & Anor and another appeal 2 CLJ 344 : One of the fundamental duties of a solicitor is to diarize his cases, keep his client informed of the diarized dates and prepare the case with his client. The present instance is a case where there was a failure to discharge this rather fundamental obligation. As a result, the clients suffered. [22] We would further like to add that if the proprietors of the defendants' solicitors' firm were indifferent or had little interest in managing their firm properly by failing to devise a system to monitor and check on whether the duties or instructions given to its employee were carried out then this would amount to a deliberate act or defiance of a court order if such order were given to such employee and not complied with. This is no longer a mistake or an accident especially in this modern world of technology, where systems for monitoring compliance of duties imposed on staff and other members of an organization are readily available in the market and have reached a sophisticated level. Poor management and the lack of caretaken to record a hearing date can no longer be tolerated." [23] Aside from the above, the plaintiffs have also adduced evidence, which is not rebutted by the defendants, that they have sent by letter of reminder to the defendants' lawyer of the hearing date. Though Encik Munir may have been careless in not entering this date into the diary such notification would have alerted other members in the defendants' solicitors' firm of the forthcoming event. And if they chose to ignore it then their reason for the absence of the defendants is inexcusable. [24] We would like also to mention that against the present judicial policy of strict adherence to hearing dates once set this excuse of the defendants attracts minimum tolerance from the court. Waste of judicial time and resources undermines the efforts of the judiciaries to eradicate the backlog of cases faced by the courts.”. [Emphasis added]

In the instant case, the excuses advanced by the Appellant’s solicitor fall squarely within the category of excuses repeatedly rejected by the appellate courts.

The track record of adjournment and lackadaisical attitude of the Appellant’s solicitor shows the unprofessionalism and incompetence of the Appellant’s solicitors. I find the SCJ has exercised her discretion judiciously and in accordance with the law. The discretion of the SCJ justify the rejection of the adjournment on 03.12.2023 and dismissal of the counter claim of the Appellant. Whether the refusal to grant an adjournment amounted to a breach of natural justice

The fact that the Appellants knew all about the trial dates which were fixed before hand and still consented to their solicitors discharging themselves at the eleventh hour and failed to appoint a new one immediately only show that the Appellants made light of the SCJ’s instruction and did not take the matter seriously. It also shows that the Appellant had no respect for the court ’s procedure.

In this regard, I agree with the Respondent that the solicitors of the Appellant , Messrs Krish & Co. only filed the application to discharge themselves on the 30.11.2023, three (3) days before the Trial on 03.12.2023 which had been fixed much earlier by the SCJ.

The reasons given by the Appellent’s solicitor in his affidavit in support was most frivolous i.e. that the solicitor was shifting the firm to Kuala Lumpur. There was no documentary evidence to prove the same. The only document exhibited was a letter by Messrs Krish & Co. dated 27.11.2023 written to the Appellant’s directors that he was discharging himself.

Therefore, I find the SCJ exercised her discretion judiciously and in accordance with the law, taking into account—

the history of delays by the Appellant;

the clear prior warning by the SCJ that the trial would proceed without further delay or postponement; and

the absence of any legally sustainable justification for adjournment.

The Appellants submitted that the SCJ has erred in failing to specify any prejudice suffered by the Respondent had the SCJ granted an adjournment due to the solicitor’s absence.

The Appellants argued that the SCJ, in paragraph 20 of her Grounds of Judgment, explicitly recognized that a corporate entity can only be represented by a solicitor at trial. Despite this acknowledgment, the Appellant’s claim was struck out due to circumstances entirely beyond its control.

The Respondent argued that in discharging himself, the Appellant’s solicitors, Messrs Krish & Co. also did not obtain the services of any other solicitor or lawyer to address the Appellant’s case and took for granted that the SCJ would allow the adjournment.

The Respondent further submitted, to add salt to the wound, the Appellant’s solicitor did not turn up at all even though the application to discharge himself was also fixed on 03.12.2023, the same date for trial.

I find that the right to be heard does not extend to a right to indefinite adjournments, nor does it protect a party from the consequences of its own procedural defaults.

I find no breach of natural justice. On the contrary, the interest of justice required the matter to proceed and be brought to finality. Therefore, I rule that the SCJ’s decision is fair and reasonable and there is no necessity for me to interfere with the discretionary decision of the trial court because it is not plainly wrong or based on irrelevant considerations. Whether appellate intervention is warranted

The Court of Appeal in the case of Sivalingam s/o Periasamy v. Periasamy & Anor [1995] 3 MLJ 395 when stating the principles governing appeal has held that— “It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusts the primary task of evaluation of the evidence. However, the appellate court has a duty to intervene where a trial court has so fundamentally misdirected itself, that one may say that no reasonable court which had properly directed itself and asked the correct question would have arrived at the same conclusion.”. [Emphasis added]

Further, I referred to the case of UMW Toyota Motor Sdn. Bhd. V Allan Chong Teck Khin & Anor. [2021] 5 CLJ 193 where the Court of Appeal has reiterated the principles of appellate intervention where it stated as follows: “Principles Of Appellate Intervention [28] Foremost on our minds are the two tests, namely, “plainly wrong” test and “insufficient judicial appreciation of evidence” test for appellate interference in a subordinate court’s finding. In respect of the two tests, the Court of Appeal held as follows in Lee Ing Chin Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97 at pp. 98 to 99:

Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against these. He must also test the evidence of a witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set aside on appeal …”. [Emphasis added]

Based on the principles laid down above, it is trite law that the Court will be slow in interfering the findings made by the lower court and will only interfere if the trial judge acted on a wrong principle of law or has insufficient appreciation of the evidence before them.

In the present case, I find that the SCJ has considered all the reasons advanced for the solicitors’ non-attendance including office relocation and have come to the final and correct conclusion that those reasons do not constitute exceptional circumstances warranting adjournment, particularly when the trial dates had long been fixed and confirmed.

Based on the reasons stated above, I find the decision of the SCJ was firmly grounded in law and procedure and does not warrant appellate interference.

The Respondent argued that the entire submissions of the Appellant is a fraudulent exercise of a litigant and his lawyers who shows no repentance and tries to trick the Court into lending legality to their immoral and/or illegal acts. Hence, the Respondent urged this Court to not only dismiss the Appellant’s appeal with costs but also to hold the directors of the Appellant and also Mr. Subramaniam Paidathally, who appeared on the date of trial, liable for exemplary and punitive costs.

The Respondent submitted that the conduct of the Appellant in bringing a case with the intention to defraud the Court is most heinous and an act of contempt to this Court and therefore must be dealt with strictly.

I have considered the reasons advanced for the Appellant’s solicitors non-attendance which includes their feeble attempt of an excuse, which is the office relocation to Kuala Lumpur makes it difficult for them to continue representing their clients in Johor Bahru.

I have taken into account that Messrs Krish & Co remained as the Appellant’s solicitors on record until and unless their application to discharge was heard and allowed. No such application was heard on 03.12.2023 as the solicitors who filed the discharge application failed to attend the hearing of the application themselves.

With regards to costs, I find that in light of the manner in which the appeal was pursued and the prejudice occasioned to the Respondent, I find the costs awarded should be punitive in nature to reflect the seriousness of the matter and to punish the Appellant for abusing the process of the court in order to defraud the Court and an act of contempt to this Court .

The checkered history of this case shows the dishonest behavior of the Appellant, its directors and Subramaniam Paidathally. Despite having full knowledge about the High Court’s judgement dated 28.12.2016 vide the suit no JA-22NCVC-197-11/2014 (“suit 197”) which declared the Respondent is the beneficial owner of the five (5) units of the Pelita Indah Condominum, yet they have vide suit no. JA– A52NCvC-93-05/2018, filed a counter claim against the Respondent on 02.07.2018 seeking the same relief. They then obtained the judgement from the former SCJ on 07.10.2020 to declare the Appellant is the beneficial owner of the same five (5) units of the Pelita Indah Condiminum. Both conflicting court’s decision was brought to the attention of Justice Noor Hisham bin Ismail when he heard the appeal of the Respondent against the decision of the former SCJ. Justice Noor Hisham bin Ismail after hearing the appeal has set aside the former SCJ’s decision and ordered the matter be remitted to the Session Court for a retrial.

It is pertinent to note that the High Court Judge, Justice Al-Baisah Binti Abdul Manap in dismissing the Appellant’s claim vide the suit 197 has noted the demeanour and made scathing remarks on the credibility of Subramaniam Paidathally and the 4th Defendant. The decision of Justice Al-Baisah Binti Abdul Manap was affirmed by the Court of Appeal on 21.02.2018, except the claim for double rental was not allowed.

Based on the Notes of Proceedings, the grounds of judgment of the former High Court Judges, the grounds of judgment of the SCJ, the written submissions and oral submissions of both parties and the authorites above, I find that the Appellant has willfully disobeyed the instructions and orders of the SCJ to be prepared for trial, the filing of a last minute discharge application to be an abuse of the court process, and the non-appearance of solicitors to represent the Appellant at the hearing of the discharge application and the trial to be a blatant disregard of the Court’s authority. Hence, it would be fair for costs to be awarded to the Respondent for the Appellant’s heinous delay tactics.

I then allowed the costs of RM50,000.00 to be paid by each of the directors of the Appellant jointly and severally to the Respondent within fourteen (14) days from the date of the Order. I further order costs of RM50,000.00 to be paid by Subramaniam Paidathally to the Respondent within fourteen (14) days from the date of the Order.

Based on the above findings, I affirm the decision of the SCJ dated 03.12.2023 and dismissing the Appellant’s appeal with costs.

I further award costs of RM50,000.00 to be paid by each of the directors of the Appellant jointly and severally to the Respondent within fourteen (14) days from the date of the Order. I further order costs of RM50,000.00 to be paid by Subramaniam Paidathally to the Respondent within fourteen (14) days from the date of the Order. Dated 12 January 2026. Signed by: SGD ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Appellant: Ms. Nurul Hibbah Abd Khalid Messrs Rabia Farihan & Sures Counsel/Solicitor For the Respondent: Mr. G Ravi and Ms. Aida Hassan