1. ) Spm Energy Sdn Bhd v Elektro Serve (Malaysia) Sdn Bhd (WA-22C-70-09/2021)

SPM ENERGY SDN BHD

SYSTEM PROTECTION AND MAINTENANCE SDN BHD (NO. SYARIKAT: 126032-D) …PLAINTIF-PLAINTIFF DAN ELEKTRO SERVE (MALAYSIA) SDN BHD (NO. SYARIKAT: 202859-K) …DEFENDAN GROUNDS OF JUDGMENT (Enclosure 1)

This is an appeal against the decision of this Court given on 14.4.2023 allowing the Plaintiff via its oral application to withdraw the Suit herein before this Court with liberty to file afresh.

The Defendant had vehemently protested against the withdrawal of the Suit and submitted to this Court that the same should only be allowed if there is no liberty to file afresh.

On 22.3.2023, the Plaintiffs have appointed new solicitors to take over the conduct from the previous solicitors. The Notice of Change of Solicitors was filed on 22.3.2023.

During the case management on 31.3.2023, the Plaintiffs made an oral application to withdraw their claims in the suit herein with liberty to file afresh.

The Defendant submitted that the Plaintiffs’ application to withdraw the suit with liberty to file afresh had to come with the condition that they were not entitled to file afresh prayers 16(b) and 16(c) of the Amended Statement of Claim, being: a. Backcharges imposed by the employer in the sum of RM2,433,447.48; and b. Liquidated ascertained damages in the sum of RM1,688,280.78 ( “the Two Claims”).

The basis of the Defendant’s position was that the Plaintiffs’ former solicitors have previously represented to the Court that the Plaintiffs would not pursue the Two Claims in a Submissions dated 27.10.2021.

This Honourable Court allowed leave for the withdrawal of this case with liberty to file afresh, but reserved 2 issues and directed parties to submit on same: a. Whether the Plaintiffs’ withdrawal be granted without conditions, or with condition that the Plaintiffs are not entitled to file afresh for the Two Claims? b. Should the Plaintiffs be liable for the costs of withdrawal of the suit? If yes, what is the amount?

In coming to my decision, this Court had firstly considered if there was indeed a withdrawal of the Two Claims as alleged by the Defendant.

From a perusal of the Court’s records, there appears to be no application by the Plaintiff whether made formally and/or orally to this Court to withdraw the Two Claims and no order was made by this Court granting the same.

The Defendant had submitted that the Application arose when the Plaintiff’s solicitors letter dated 23.3.2023 had requested for the trial in April 2023 to be vacated on the following grounds:- a) the pleadings do not accurately reflect the Plaintiff’s claims and the documents filed by the previous solicitors are insufficient b) Messrs Rosli Dahlan Saravana (“RDS”) had been instructed to prepare an application to amend the Amended Statement of Claim and produce further documents not included in the bundles c) there was severe prejudice to the Plaintiff’s rights and case if the trial were to proceed based on current pleadings and documents

The Defendant’s learned counsel had also submitted that the Plaintiff had put forward on no less than 4 occasions previously, with this Application being the 5th, different claims by either amending or filing afresh the Suit, with the same being as follows:-

The 1st time on 27.1.2020, the Plaintiffs claimed RM10,240,390-57 against the Defendant in the writ in Enclosure 1.

The 2nd time on 25.2.2020, the Plaintiffs claimed RM5,050,921-39 against the Defendant in the statement of claim in Enclosure 4.

The 3rd time on 24.5.2021, the Plaintiffs claimed RM9,933,776- 64 against the Defendant in their Amended Statement of Claim in Enclosure 47.

The 4th time - on 24.11.2021, the Plaintiffs in response to the Defendant’s application for further and better particulars abandoned 2 heads of their claims, resulting in the reduction of their overall claim from RM9,933,776-64 to RM5,812,048-38.

The 5th time on 23.3.2023, the Plaintiff wrote to the Court intending to file an application to amend the Amended Statement of Claim.

After considering the Defendant’s submissions, I however agree with learned counsel for the Plaintiff that there must be an application for discontinuance of an action with leave and an order for the withdrawal in compliance with Order 21 rule 3 of the Rules of Court 2012 for there to be a withdrawal of the Two Claims based on the facts herein. The said Order 21 rule 3 provides as follows:

Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw any particular claim made by him therein, without the leave of the court, and the court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.

I find that the plain and unambiguous words of the said Order 21 rule 3 as being a mandatory compliance for any action or Suit to be discontinued, wherein the Defendant has filed its Statement of Defence and a period of more than fourteen days after the service of the defence on the Plaintiff has lapsed, an application for discontinuance of an action, albeit orally, for leave must be made for any discontinuance of the Suit to be valid and effective.

Accordingly, I hold that the Two Claims remain as part of the claims in the Writ and Statement of Claim before this Court.

After due consideration of the respective parties contentions and the facts before me, with particular regards to the Plaintiff’s claim, and balancing of the said issues raised as well as the law thereto; I find no advantage has been lost by the Defendant as a result of the Application which cannot be compensated by costs. The Plaintiff should not suffer or be punished due to the mistake of its previous solicitors as per the authority of New Lake Development Sdn Bhd v Zenith Delight Sdn Bhd & Ors [2017] MLJU 671 where the Court of Appeal in a judgment delivered by Zabariah Mohd Yusof JCA held: “[52] Although the Plaintiff in this case is not entirely without fault due to the lackadaisical attitude of his previous counsel, however he should not be punished for the absence/lack of actions on the part of his counsel. Lord Denning in Doyle v Olby (Ironmongers) Ltd [1969] 2 All ER 119 said at page 1214 that: “We never allow a client to suffer for the mistakes of his counsel if we can possibly help it. We will always seek to rectify it so far as we can. We will correct it whenever we are able to do so without prejudice to the other side.” Similar principle was adopted by the Court of Appeal in Tenaga Nasional Bhd v Porak Sdn Bhd [2000] 1 MLJ 479 at page 483 when Gopal Sri Ram JCA in delivering the judgment of the Court said: “This case demonstrates the terrible harm that may be visited upon the litigant’s head because of his solicitor’s mistake. We hasten to add that the solicitor concerned is no longer on record in the proceedings before us. Whenever possible, where there is no risk of sacrifice of principle in the name of justice or at the alter 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 interest of justice. When we act, we always bear in mind what Lord Denning said in Doyle v Olby (Ironmongers) Ltd [1969] 1 All ER 119 at page 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.”

I have accepted the above said Court of Appeal case of Newlake Development Sdn Bhd (supra) compared to the High Court decision in Ji Zhan Capital Sdn Bhd v Chua & Chew Sdn Bhd [2021] 8 MLJ 330 which the Defendant’s learned counsel has urged this Court to follow, as I am not only bound by the doctrine of stare decisis, but also, as I totally agree with the said principle enunciated in Newlake Development Sdn Bhd (supra).

Thus, the Defendant’s contentions of prejudice, a second bite at the cherry and/or the Plaintiff attempting to ‘re organise to launch a fresh attack’ are in the circumstances, with due respect, misconceived and of no merit.

Finally, in coming to my decision, I hold that as the Plaintiff’s claims have yet to be decided on its merit and the trial has yet to be proceeded with, either party may ventilate its claims and/or defences in court when the time comes in the fresh suit, if any. There is, so to speak, no gain by the Defendant, be it in the alleged current weakness and deficiencies in the Plaintiff’s case, which again, in my view cannot be compensated by costs. I therefore cannot accept that the case can only be withdrawn without liberty to file afresh as argued by the learned counsel for the Defendant.

In the circumstances, I allowed the Plaintiff’s oral application with costs of RM40,000 to be paid to the Defendant. Dated: 14th day of April 2023 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Lim Zhi Jian and Kooy Wei Nee (Messrs Rosli Dahlan Saravana Partnership] COUNSEL FOR THE DEFENDANT: Lee Sher Zanne [Messrs Richard Kok]