Noor Asma Binti Abdullah v Lora Binti Abdul Rahim (WA-22NCvC-86-02/2024)

This is an application by the Defendants to set aside the Judgment dated 15.10.2025 (Encl. 87) wherein the reliefs sought for are as follows: a) Bahawa Perintah yang direkodkan terhadap Defendan-Defendan bertarikh 15.10.2025 ("Perintah tersebut") diketepikan dan/atau dibatalkan secara keseluruhannya; b) Bahawa Defendan-Defendan diberi kebenaran untuk memfailkan dokumen-dokumen pra bicara bermula dari tarikh perintah dalam Permohonan ini diberikan; c) Bahawa Defendan-Defendan diberi kebenaran untuk meneruskan Pembelaan dari tarikh perintah dalam Permohonan ini diberikan; d) Bahawa kos permohonan ini dijadikan kos dalam kausa; dan e) Lain-lain relif dan/atau perintah selanjutnya yang Mahkamah Yang Mulia ini anggap wajar dan sesuai.

The documents filed by respective parties in support and oppose Encl. 87 are as follows: Encl. No.DocumentsDate of Filing88Affidavit in Support1.11.202594Affidavit in reply by Plaintiff11.12.202599Affidavit in reply by Defendant31.12.2025

The $ 1^{\mathrm{st}} $ plaintiff and Alias bin Mohd Nor (deceased) were married on 3.7.1988. Sometime in January 2014, the deceased went missing despite the Plaintiffs' repeated attempts to find him, he could not be located.

The deceased later resurfaced. In a police report dated 27.11.2018, the deceased confirmed that he had been missing since January 2014. He only re-established contact with the $ 1^{\mathrm{st}} $ Plaintiff on 7.2.2018. He also informed his family members that his signature on certain property documents had been forged.

On 7.2.2024, the Plaintiffs commenced this suit alleging fraud and misconduct against the Defendants.

Consequently on 31.1.2025, the Defendants entered their appearance and filed their respective defences. The Plaintiffs subsequently filed their reply on 14.2.2025. During the pre-trial case management (PTCM), directions were duly given by the court.

While the Plaintiffs complied with the PTCM directions, the Defendants had failed to do so. On 15.10.2025, during the hearing of case management, and at the Plaintiffs' insistence, the previous judge struck out and dismissed the Defendants' defence for non-compliance with PTCM directions. Judgment against the Defendants was duly entered by the Court (Encl. 90) on that same day.

On 27.10.2025, an application (Encl. 87) to set aside Encl. 90 was filed by the Defendants. The grounds relied on by the Defendants as set out in the supporting affidavits (Encl. 88) namely: i. No 'unless order' issued by the Court. ii. The alleged non-compliance with the directions of the Court was not intentional and contumelious.

On 28.4.2026, I allowed Encl. 87 with costs of RM10,000.00 to be paid to the Plaintiffs. Consequently, the Defendants' defence was reinstated. Further directions were issued to be complied with by the next case management date on 8.7.2026.

However before addressing the merits of Encl. 87, the Court will first deal with the preliminary objections raised by the Plaintiffs namely: a) Given that the fact the court is functus officio upon the judgement, the proper mode for the Defendants' to challenge the Judgment Encl. 90 would be to appeal, and not by an application to set aside Encl. 90; and b) The basis on application under O34 r4, O42 r13 and O92 r4 of ROC are misplaced.

It is the Plaintiffs' contention that the defendants should have proceeded by way of appeal and not by way of an application to set aside the Judgment Encl. 90 under O34 r2 (4) ROC. In support of her contention, the Plaintiffs cited the case of Janwell Sdn Bhd v Teguh Majuria Sdn Bhd [2025] CLJU 14 (Janwell) and How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712. (How Hock Sing).

To address the Plaintiffs' contention, the court must examine O34 r2

ROC and its judicial interpretation.

O34 r2 (4) RHC read as follows: Pre-trial case management when directed by the Court (O.34,r.2)

Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just.

It is clear that under O34 r2(4) ROC, an aggrieved party may apply to set aside any judgment or order made pursuant to O32 r2 by way of application. After all, a perusal of the Judgment Encl.90 confirms that the judgment was entered against the Defendants under O34 r 2 (3) ROC. Furthermore Order 34 r2 specifically stipulates that any setting aside process of the judgement is to be initiated by way of application.

In the case of Janwell, where the learned judge held that an appeal is the correct procedure for challenging a dismissal resulting from noncompliance with a pre-trial direction of the court. In that case, the Plaintiff had failed to file their witness statement by 28.8.2023 deadline as per the PTCM direction. Consequently, the learned judge concluded that the order dated 3.10.2023 which struck out the Plaintiff's claim, was a final and perfected order.

In doing so, the learned judge relied on the principle established in the off-cited case of Hock Hua Bank Bhd v. Sahari bin Murid [1980] CLJU 92 FC (foll) and Badiaddin bin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 MLJ 393, the Plaintiff should have filed an appeal against the impugned order rather than applying to set it aside. Accordingly, the learned judge dismissed the plaintiff's application with costs of RM5,000.00.

However, the issue of O34 r2 (4) ROC was not brought to the learned Judge's attention. Since the impugned order arose from a failure to comply with the PTCM directions under O34 r2, the court should have considered O34 r2 (4). This specific rule provides that on the application of the aggrieved party, the court has express power to set aside any order or judgment granted due to non-compliance with such directions.

In any event the decision of Janwell was overturned by the Court of Appeal and the case remitted back to High court for trial. See the court of appeal suit No B-02(IM)(NCVC)-15-01/2025.

As to the case of How Hock Sing, the Plaintiff's action was struck out by the learned Deputy Registrar (DR) by reason of the failure by the Plaintiff to comply with an "unless order". Consequently, there was an appeal to the Judge from the DR decision. On the issue of O34 r2 (4) the learned Judge opined that it should be by way of appeal relying on a Federal Court case of Lim Oh & Ors v Allen & Gledhill [2001] 3 CLJ 233 (Lim Oh).

The issue in the Lim Oh case involved a provision for a pre-emptory order (also known as an unless order) which was provided in the Rules of the High Court 1980 (RHC). However, RHC 1980 was repealed and replaced by the Rules of Court 2012 (ROC). Although there was a provision O34 r4 in RHC 1980 which addressed PTCM, it did not have a specific provision for the setting aside an order resulting from non compliance. This has been addressed with the current provision O34 r2 (4) ROC. Hence Lim Oh should be restricted to its facts. See also the case of Nadarajah Lingam a/l Sinnadurai & Ors v Dato' Sri Dr Suresh Raj Lachmanan & Ors [2025] MLJU 608 (HC).

Furthermore, it is to be noted that in How Hock Sing, it was the decision of the DR which the aggrieved party was challenging. Under O56 r1, any challenge of the decision of DR is by way of appeal. This was recognised by the learned judge at para 53; "[53] ...Additionally, the mode initiated by the plaintiff challenging the dismissal by the learned DR by applying to set aside the same and reinstate the action is wrong in law as the proper procedure that ought to have been taken was to have the decision appealed to the Judge in Chambers under O. 56 r.1 of the RC 2012. The present appeal itself is considerably out of time and is therefore defective. Neither the breach of the "unless order" nor the erroneous mode of challenging the dismissal can be cured by O.1A of the RC 2012. The appeal is dismissed with costs of RM800 to each of the four defendants."

Moreover, the case of How Hock Sing can be distinguished from our case since the former case deals with an appeal under O56 r1 ROC that specifically provides for the mode to challenge the decision of DR which is through an appeal to the judge.

The Court of Appeal addressed this issue in the case of Dr Sim Kui Hian v Chong Chieng Jen & Ors appeals [2021] MLJU 562, a defamation suit that was initially dismissed by the High Court. The High Court had summarily dismissed the plaintiff's claim under O34 r2 (3) due to a failure to comply with case management directions notwithstanding the absence of any prior "unless order".

During the proceedings, the defendant counsel argued that the plaintiff should have filed an application to set aside the judgment under O34 r2 (4) ROC before filing an appeal to the Court of Appeal. The Court of Appeal held: [37] Counsel for the defendant also raised an argument belatedly during oral submissions that the plaintiff should have applied to set aside the order of dismissal of his claim under Order 34 rule 2(4) of the Rules of Court 2012 before appealing to the Court of Appeal. We note that the provision uses the permissive "may" when giving the option to the aggrieved party to go before the same court to set aside the order of dismissal of the action. It does not prevent the filing of an appeal. In this case, the learned Judicial Commissioner made various findings of fact in respect of the explanation for the delay that was proffered by counsel for the plaintiff. His Lordship also found counsel for the plaintiff guilty of "prima facie, contempt of court". In the premises, we do not think that the plaintiff should be compelled to invoke Order 34 rule 2(4) of the Rules of Court 2012. Terms of draft order"

Similarly, in another Court of Appeal case of Faisal @ Ibrahim bin Haji Shiraz & Ors v Ahmad Zaki Sdn Bhd & Ors [2020] 1 LNS 105 the court held that the proper course is to apply for the setting aside of the Judgment under O34 r2 (4) ROC rather than filing an appeal. In this case, the High Court had struck out the Plaintiffs' claims on grounds of failure to comply with Court's instruction given during PTCM namely: "[16] On 17 December 2019, the High Court had struck out the plaintiff 's claims on the reason that the plaintiff had failed to comply with the court's instructions to file the cause papers required for trial, ie the bundle of agreed documents, the agreed facts and issues to be tried. Dissatisfied, the plaintiffs moved an appeal to the Court of Appeal in Civil Appeal No B-01 (IM)(NCvC)- 35-01 of 2020. The appeal was struck out on 6 July 2020 with an award for cost of RM3,000 in favour of D7 in which the Court of Appeal had allowed the respondents to strike out the appeal based on the reason that the plaintiffs had wrongfully appealed against such order. The plaintiffs should first apply to the High Court in accordance toO34 r 2(4) of the Rules of Court 2012."

Following from that, the High Court in case of Nadarajah Lingam a/l Sinnadurai & Ors and Syarikat Perumahan Negara Bhd v Tan Tuan Sing [2025] MLJU 3254 likewise held that where a judgment or order is made pursuant to O34 r2 (4), correct procedure for the aggrieved party is to apply to set aside the judgment rather than to file an appeal.

In any event, following the subsequent decisions of Court of Appeal in Dr Sim Kui Hian and Faisal@ Ibrahim Siraj, the position is clear that any decision or judgment as a result of non-compliance with the directions under O34 r2 (PTCM), the challenge should be by way of application as in O34 r2 (4) and not through an appeal. Consequently, I dismissed the preliminary objection of the Plaintiff.

It is to be noted that both Court of Appeal cases of Dr Sim Kui Hian and Faisal @ Ibrahim bin Hj. Siraj were not brought to the attention of the learned judge in Janwell"s case.

In respect of the $ 2^{\mathrm{nd}} $ preliminary objection of whether under O42 r13, the aggrieved party should only apply to set aside or vary any order or judgment within 30 days after the receipt of the order or judgment by him, this is a non-issue since the Defendants' application under O34 r2 (4) was correctly filed.

Merits of the Defendants' application.

Before dealing with the merits, the chronology of events from the affidavits filed by the respective parties are as set out below: DateSummary(Plaintiff)Encl.102Summary(Defendant)Encl.10520.5.2025First PTCM for filing of documentsFirst PTCM for filing of documents23.7.2025Plaintiff solicitors served draft documents to Defendant solicitors(Proposed Bundle of Documents,Draft Issues to be Tried and Draft Common Chronology of Events)Defendant highlighted the documents which contained various issues were only served by the Plaintiff solicitors approximately 2 months later and they requested for reply by25.7.2025(2 days later)29.07.2025Plaintiff solicitors filed PTCM documents per Court's instructions on20.5.2025-30.7.2025·Defendant solicitors were supposed to file Executive Summary by end of30.7.2025but only filed on14.10.2025(First Breach)·Court's instructed not to file but to bring a copy of the draft Common Chronology of Events,Draft Issues to be Tried and Draft Agreed Facts onCM date on14.10.2025·Defendant solicitors informed the Court regarding the document issue and was instructed to complete all PTCM documents and to update the court on15.10.2026(page3Encl105)24.9.2025Plaintiff solicitors issued followed-up letter(first letter on23.7.2025)to Defendant solicitors for agreement of remaining PTCM documents and also Defendant's Proposed-Bundle of Documents, but no reply was received.25.9.2025-Plaintiff solicitors requested for original documents from Defendant solicitors of which said original documents should have been in the Plaintiff's possession. They also threatened to invoke adverse inference for failure to provide said documents.14.10.2025(morning)Plaintiff wrote in to Court to inform about the no response from Defendant's solicitorsPlaintiff did not file Common Bundle of Documents, Common Chronology of Events, Issues to be Tried and Agreed Facts(Second Breach-non-reply from Defendant solicitors caused Plaintiff solicitors to not file said documents)-14.10.2025(night)Defendant solicitors requested for extension of time to file said PTCM documents-15.10.2025YA Avinder Singh strike out Defendant's case due to non-complianceReasons for delay in filing documents(per Encl 88 para 20):a) draft issues to be tried submitted by the Plaintiffs are too much, exceeding sixty(60) issues; b) huge part of the documents in this case are more than six (6) years old and involves long-standing dealings between several parties; c) Second Defendant's law firm restructuring and relocations has directly affected the arrangement and access to old files; and d) Plaintiff solicitors' request for original documents created confusion regarding the handling of the documents as the originals ought to be with them.27.10.2025-Defendant filed application to set aside Order dated 15.10.2025

The Plaintiffs' contention that there was no necessity to give an "unless order" when the directions were given during the PTCM under O34 r2 before the Defendants' defence should be struck out for noncompliance with the directions.

O34 r2(3) ROC Pre-trial case management when directed by the Court (O.34,r.2)

the period within which objections to the contents of the witness statement or other evidence of a witness shall be taken; and an estimate of the length of the trial and the date for trial. The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit.

It is clear that under O34 r2 (3) ROC, there is no requirement for the court to issue an "unless order" following a party's failure to comply with its direction. The court has the discretion either on its own motion or upon the application of a party to dismiss the defaulting party's action or strike out the defence or counterclaim or enter judgment or make such order as it deems fit. The only prerequisite for the court to exercise its discretion in this manner is that it must have previously issued directions under O34 rule 2 (2) or rule 3 ROC.

In our case, the court did not issue any "unless order" when giving its directions during both PTCM. Hence the court in exercising its discretion must determine whether the defendants' alleged noncompliance with the directions of the court was unintentional or not contumelious. See the dicta of Justice Ravinthran Paramaguru JCA in case of Dr Sim Kui Hian; [34] We also note that there was no prior warning that the court would dismiss the claim of the plaintiff if the Bundle of Documents were not filed within the stipulated time. There was no unless or peremptory order issued by the court prior to the date of the dismissal of the action. We are mindful that the requirement for a prior peremptory order or unless order is not stated in Order 34 rule 2(3). Be that as it may, we are of the view that unless the nature of the non-compliance is sufficiently serious to defeat the purpose of the case management directions, the drastic action of dismissing the action without warning should not be resorted to. The purpose of pre-trial case management directions is to "secure the just, expeditious and economic disposal of the action or proceedings" (see Order 34 rule 2(2) of Rules of Court 2012). In the instant case, by all accounts including that of counsel for the defendant as we noted earlier, the trial schedule was not disrupted despite the delay in the filing of the Bundle of Documents by the plaintiff. Therefore, the dismissal of the suit merely because the explanation for the delay was unbelievable cannot be reconciled with the main purpose of the case management regime provided in Order 34 of the Rules of Court 2012 that we adverted to earlier."

The Plaintiffs contented that the defendants' non-compliance was sufficiently serious to warrant the striking out of the defendants' defence without warning being first given to the defendants.

The Plaintiff alleged that the Defendants failed to comply with the directions given during the second PTCM on 30.7.2025. The relevant details of which are as follows: "PD : We received the Pltf's documents on 23/7 so we need time to revert. Mah : PP should not have waited so close to today's CM date to provide the documents to PD. Counsels are to complete the exchange and classification of documents and all Parts A and B documents are to be filed before the next CM date. If there's any Part C documents, these are to be raised at the next CM (what documents and why in Part C). PP : Refer to our letter to PD dated 23/7 (a copy is produced) regarding the BoD, ITBT, AF and CCoE. PD : The clients have not reverted on the draft AF, CCoE and ITBT. Mah : Draft AF, CCoE and ITBT as agreed by the parties are to be discussed at the next CM.15.10.2025,9.00 a.m. (CM-encl.1 for compliance with today's directions). PP : Can we file an application for discovery at any time or there's a timeline?" (Note: the abbreviation AF means Agreed Facts, CCOE means Common Chronology of Events and ITBT means Issues to be Tried.)

Following the court's direction, the parties were supposed to come to court to discuss the drafts AF, CCOE and ITBT at the subsequent case management on 15.10.2025. These drafts were given to the Defendants on 23.7.2025.

However, by 14.10.2025, the Defendants had not reverted back to the Plaintiffs with the necessary comments and amendments to draft AF, CCOE and ITBT. Although Defendants had on 14.10.2025 written to the Plaintiff for an extension of time, the Defendants' failure to comply was brought to the court's attention during the case management on 15.10.2025.

However, the Defendants requested additional time that since the Plaintiffs action was based on the allegations of fraud, misrepresentation and misappropriation of money, it required more extensive preparation. After all, the disputes involved two (2) Sale and Purchase Agreements (SPAs) which were executed sometime in 2014 and 2015.

The $ 2^{\mathrm{nd}} $ defendant was the law firm which attended to the SPAs and the $ 3^{\mathrm{rd}} $ defendant is its sole proprietor. The defendants' argued that their ability to locate the necessary files was hindered by the restructuring and relocation of the law firm and which affected their ability to locate the old files.

Furthermore, as the 2 SPAs involved several parties including financial institutions and Syariah lawyers, the Defendants needed time to identify and locate the relevant individuals. This is necessary to obtain the necessary clarification and explanation regarding the facts surrounding the Plaintiff's claims.

Moreover, the Defendants are responding to the action brought by the Plaintiffs. Consequently, the Defendants could only begin preparing their defences after being served with the relevant Statement of Claims. Unlike the Plaintiffs who had the advantage of gathering evidence and preparing their case prior to filing the action, the Defendants must respond to the Plaintiffs claims based on events that occurred over 10 years ago.

In any event, since parties were told to come to court on 15.5.2025 to discuss and finalise the draft AF, CCOE and AITB, it was expected that these drafts would not be finalised beforehand. Although the Defendants did not revert to the Plaintiff regarding the drafts, their actions do not amount to intentional non-compliance with the court's directions.

In fact, there were numerous issues raised in the draft AITBT which exceeded 60 in total which the Plaintiffs should have known could not be finalised prior to the case management on 15.10.2025.

It is trite that the purpose of the PTCM directions is to "secure the just, expeditious and economic disposal of the action or proceedings" (see O34 r2(2) ROC). Given the expectation that these drafts were to be finalised during the case management on 15.10.2025, the Plaintiffs did not show how they were prejudiced or how the trial schedule would be negatively affected. Furthermore, there is no evidence of intentional or contumacious non-compliance by the Defendants.

Additionally, there is no history of non-compliance given the brief 3 months between directions given on 30.7.2025 and hearing on 15.10.2025. See the case of Md Amin bin Md Yusof & Anor v Cityvilla Sdn Bhd [2004] 4 MLJ 446 (CA) where the trial judge's decision to strike out the appellant's counterclaim was overturned. In that case his lordship Nik Hashim JCA opined as follows: [14] Whilst it is true that a party's action or counterclaim could be struck out for non-compliance with a peremptory or an unless order of the court, the order would not be made unless there is a history of failure to comply with other orders. A peremptory or an unless order is an order of last resort (see Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 at p 1674H). Surely, it would not meet the ends of justice if the order made results in a miscarriage of justice. Therefore, all the circumstances of the case, inclusive of whether the failure to comply with the peremptory or unless order was indeed intentional and contumelious, should be looked at by the judge before penalizing the defaulting party (see In re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 (CA)). [15] In the instant case, the learned judge overlooked the fact that the respondent too was not free from fault in that it also failed to comply with para (e) of the learned judge's directions. This failure is certainly a factor which must be taken into account in considering whether the striking out order is an appropriate one under O 34 r 7 of the RHC."

In conclusion, striking out the Defendants' defence and entering judgment against them merely because the explanation for the delay was unconvincing is inconsistent with the primary objective of the case management regime under Order 34 of the Rules of Court 2012. This is especially true since there was no "unless order" was issued on 30.7.2025.

At the time the learned judge gave the directions for the AF, CCOE and ITBT, it was anticipated that these documents would be finalised in her presence during the next case management on 15.10.2025. Therefore, was no question of delaying the scheduled trial.

Under these circumstances, it is just and proper to allow Encl. 87 with costs RM10,000.00. Dated: 20th July 2026 HIGH COURT OF MALAYA KUALA LUMPUR Counsel for Plaintiffs: Miss Nur Syafiqah Mohd Sofian Messrs. Shafee & Co. (Kuala Lumpur) Counsel for Defendants: Miss Zahidah Md Zaman Messrs. Shaikh Harun & Co. (Kuala Lumpur)