1. ) Parvathy A/P Subramaniam v 1. ) Sakthivel Nagalingam (AA-23NCvC-7-07/2024)

PARVATHY A/P SUBRAMANIAM 10

VASANTHI A/P RAMAN (NO. K/P: 660116-05-5518) …PLAINTIFFS (menyaman sebagai Pentadbir-Pentadbir bagi harta pusaka, RAJEANTERAN A/L 15 MARIMUTHU, si mati)

SAKTHIVEL NAGALINGAM 20

JOSEPH A/L SEBESTIAN (NO. K/P:540502-10-5169) (Pemilik Tunggal yang beramal 25 atas nama dan gaya Tetuan Amran Joseph, Chan & Co.)

3.

SHAHRIL BIN LAMIN (NO. K/P: 650819-10-8015) (Pemilik Tunggal yang beramal atas nama dan gaya Tetuan

TETUAN LAMIN & CO. …DEFENDANTS GROUNDS OF JUDGMENT 12/09/2025 15:28:37 AA-23NCvC-7-07/2024 Kand. 30 40 Introduction [1]. This court considers it necessary at the outset to make plain the nature of the decision that follows. The judgment delivered herein does not turn upon the factual controversies between the plaintiffs and the defendants, nor upon the arguments raised in 45 respect of the substantive claim. Instead, the court’s determination rests entirely upon the procedural framework in Order 34 of the Rules of Court 2012. The defendants, despite repeated opportunities and clear directions, failed to comply with this court’s mandatory case management requirements. 50 Their persistent absence, neglect, and disregard of orders made in pre-trial case management have left the court with no alternative but to invoke its express powers under Order 34 rule 1(3) and/or rule 2(3) to strike out their defences and to enter judgment in favour of the plaintiffs. 55 Background Facts [2]. For completeness, the court sets out the relevant background facts. The plaintiffs, Parvathy a/p Subramaniam and Vasanthi a/p Raman, are the duly appointed administrators of the estate of the late Rajeanteran a/l Marimuthu (“the Deceased”)

The court further relies on Order 34 rule 6(1), which 230 expressly empowers the court to do the same in instances where there is a failure by a party to attend a pre-trial case management. Append below the relevant Rules of Court 2012: “O 34 r 1 Orders and directions for just, expeditious and economical disposal of proceedings 235

Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that- 240

all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

such directions may be given as to the future course of the action as appear best adapted to secure the just, 245 expeditious and economical disposal thereof. …

Where any party fails to comply with any order made or direction given by the Court under paragraph (1), the Court may dismiss the action, strike out the defence or 250 counterclaim or make such other order as it thinks fit. O 34 r 2 Pre-trial case management when directed by the Court … 255

At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be 260 made to secure the just, expeditious and economical disposal of the action or proceedings, including- …

The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of 265 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. 270 O 34 r 6 Failure to attend

If, at the time appointed for the pre-trial case management, any party fails to attend, the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order 275 as the Court thinks fit.” [13]. In this case, the defendants’ non-compliance with the directions of the court in not filing the pre-trial case management documents on time allows the court to exercise its discretion to 280 strike out the defendants’ defence and enter judgment against them pursuant to Order 34 rule 2(3). This is similar to the High Court case of Ri-Yaz Hotels and Resorts Sdn Bhd v Dynamics Capital Sdn Bhd [2023] 1 AMR 142; [2022] MLJU 2762; [2022] CLJU 2610; [2022] MLRHU 2319). In Ri-Yaz 285 Hotels (supra), the plaintiff had filed an action against the defendant for defaulting on payment to the plaintiff under agreements. The High Court directed the parties at pre-trial case management to file their list of witnesses and witness statements by 22.1.2022. This direction was not complied with 290 as the defendant’s solicitors discharged themselves and new solicitors started acting for the defendant on 6.2.2022. The court gave a new direction to file the same by 2.3.2022. This direction again was not complied with. [14]. The plaintiff, as a result, applied to strike out the defendant’s 295 defence and to enter judgment against it pursuant to Order 34 rule 2(3). Arik Sanusi Yeop Johari JC (now J) decided in favour of the plaintiff’s application based on the following reasons after referring to the authority: “[28] Applying the abovementioned principles and having 300 considered the chronologies and the facts of this case, this Court is of the view that this is a proper case for the Court to exercise its powers under Order 34 rule 2(3) of ROC 2012 to strike out the Defendant’s Defence and/or Counterclaim and to enter judgment against the Defendant as the 305 Defendant had clearly breached and failed to comply with the Court’s directions during the pre-trial case management to file the witness statements by or before 2/3/2022 without any reasonable justification.” … 310 [30] It is also to be noted that this is not the first time the Defendant had failed to comply with the Court’s directions to file the witness statements. In a previous occasion, the Defendant had also failed to file the witness statements by or before 22/1/2022 as directed by this Court. No reason 315 was given by the Defendant for the non-compliance. However, when the Defendant’s former solicitors discharged themselves from representing the Defendant on 31/1/2022, this Court was informed that they did not get any instruction and cooperation from the Defendant. Hence, the 320 Defendant’s failure to comply with the Court’s direction to file the witness statements by or before 2/3/2022 is the second occasion. [15]. In Ri-Yaz Hotels (supra), the court felt it appropriate to strike 325 out the defendant’s defence and to enter judgment where pre-trial case management directions to file the list of witnesses and witness statements were not complied with twice. Here, the defendants’ non-compliance was with much disregard for the directions and was taken very lightly. There were multiple 330 deadlines fixed by the court for the filing of the pre-trial case management documents but the defendants did not follow all of them. Based on the authority of Ri-Yaz Hotels (supra), it is justifiable for the defendants’ defence to be struck out and for judgment to be entered against them in favour of the plaintiff. 335 [16]. A further matter arises with respect to attendance at case management. Order 34 rule 4 permits parties to be represented either by their solicitors or, with leave of the court, to attend personally. In this case, the 1st defendant and his solicitors failed to attend any case management, while the 2nd and 3rd 340 defendants or their solicitors ceased attendance from 5 June 2025 onwards. Their unexplained absences reflect a wholesale disregard for procedural obligations. Such conduct, in my judgment, provides an additional basis for the court to strike out their defences and enter judgment for the plaintiffs. 345 [17]. This conclusion is supported by Prasarana Malaysia Bhd v Pentadbir Tanah Daerah Kelang [2022] 10 MLJ 37; [2022] 1 AMR 788; [2022] 2 CLJ 951; [2022] 2 MLRH 694. In that case, land was acquired for the construction of the LRT, and the applicant disputed the quantum of compensation. However, 350 despite fixing five separate case managements, the applicant or its counsel repeatedly failed to attend, while the respondent’s counsel was present throughout. On the fifth date, the respondent applied to strike out the reference. Wong Kian Kheong J (now JCA) allowed the application, holding that the 355 court’s discretion to dismiss or strike out proceedings flows directly from Order 34 rule 6(1), which empowers the court to make “such other order as it thinks fit” where a party fails to attend case management. The rationale in Prasarana is directly applicable here, given the sustained absence of the defendants 360 or their solicitors despite multiple indulgences. Justice Wong Kian Kheong allowed the striking out of the land reference on the following basis: “WHETHER THE COURT MAY STRIKE OUT LAND REFERENCE IF APPLICANT OR APPLICANT’S 365 SOLICITOR IS NOT PRESENT IN CM (LAND REFERENCE) [19] Order 5 r 6 and O 34 r 4 of the RC provide as follows: “O 5 r 6

Subject to paragraph (2) and Order 76, rule 2, any 370 person, whether or not he sues as trustee or personal representative or in any other representative capacity, may begin and carry on proceedings in the Court by a solicitor or in person.

Except as expressly provided by or under any written 375 law, a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor. O 34 r 4 The parties to the action or proceedings may be represented at the pre-trial case management by their solicitor, if any, but 380 may, if they so desire, with the leave of the Court, attend the pre-trial case management personally, at the time originally appointed or as adjourned, in addition to their solicitor. (Emphasis added.)” [20] If an applicant of a land reference is an individual 385 (‘individual applicant’), the individual applicant may personally attend a CM (Land Reference). The individual applicant may also appoint a ‘solicitor’ to represent the individual applicant in a CM (Land Reference). This is clear from O 5 r 6(1) and O 34 r 4 of the RC. According to O 1 r 390 1(4) of the RC, a ‘solicitor’ means an Advocate and Solicitor (‘A&S’) as defined in s 3 of the Legal Profession Act 1976. [21] Notwithstanding O 5 r 6(1) and O 34 r 4 RC, if an applicant in a land reference is a company (‘corporate applicant’), O 5 r 6(2) of the RC requires a corporate 395 applicant to be represented by an A&S in all legal proceedings, including a land reference and CM (Land Reference). [22] In this reference, the applicant is a company. As such, by virtue of O 5 r 6(2) and O 34 r 4 of the RC, the applicant 400 should be represented by an A&S (not by the applicant’s directors, officers, employees, shareholders and agents) in all the CM’s in this reference. [23] When the applicant’s A&S did not attend the CM (23 September 2021), the court has a discretion to make any 405 order as the court thinks fit under O 34 r 6(1) of the RC, including an order to strike out this land reference. The court’s power to strike out a land reference in a CM (Land Reference) is clear from the words in O 34 r 6(1) RC (‘the Court may … make such other order as the Court thinks fit’). 410 [24] Premised on the absence of the applicant’s A&S in the four CM’s and CM (23 September 2021), the respondent’s learned counsel, Encik Mohd Abdul Hakim bin Mohd Ali, had applied for the court to strike out this reference. I exercise my discretion under O 34 r 6(1) of the RC to make the High 415 Court’s striking out order (this reference) because the applicant’s A&S did not attend the four CM’s and CM (23 September 2021).” [18]. In light of the foregoing, I am satisfied that Order 34 rule 6(1) is 420 the proper basis to strike out the defences of the 1st, 2nd, and 3rd defendants and to enter judgment for the plaintiffs. While in Perigi Emas Resources M Sdn Bhd v International Islamic University Malaysia [2024] CLJU 111; [2024] AMEJ 0106 and Lee Man Cheong & Anor v Lee Woon Yong & Anor [2025] 425 CLJU 29; [2025] MLRHU 26; [2025] AMEJ 0024, the court invoked Order 34 rule 1(3) in similar contexts, I respectfully observe that where the failure consists of non-attendance, the more precise provision is Order 34 rule 6(1). That said, the distinction is largely academic in this case: whether under rule 430 1(3) or rule 6(1), the defendants’ repeated defaults, absences, and indifference fully justify striking out their pleadings and entering judgment in favour of the plaintiffs. Conclusion [19]. Accordingly, the court holds that sufficient indulgence had 435 already been granted, and the continued failure of the defendants to comply warranted a firm exercise of case management powers. Judgment was therefore entered in favour of the plaintiffs in the terms of their Statement of Claim against all defendants. Accordingly, the plaintiffs’ claim was 440 allowed. Dated : 9 September 2025 [MOSES SUSAYAN] 445 JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 450 For the plaintiffs : Natasha Parvena Loh Advocates and Solicitors [Messrs Loh Velu & Partners] 455 Petaling Jaya, Selangor For the 4th and 5th defendants: Amir Mukhlis Advocates and Solicitors [Messrs Wong & Kiu] 460 Kuala Lumpur Head notes: Procedural non-compliance – Striking-out under O 34 – Persistent default – Non-attendance – Pre-trial directions ignored – Defendant's defence struck out – Judgment entered for plaintiffs– Where parties 465 repeatedly failed to comply with case-management directions under O 34 r 1(1) and r 2(2) of the Rules of Court 2012, and remained absent from pre-trial proceedings despite indulgences, the Court is empowered under O 34 r 1(3), r 2(3) and r 6(1) to strike out the defences – Defendants' conduct amounted to procedural abuse – 470 Court invoked its case-management jurisdiction to enter judgment in full for the plaintiffs