Tan Kwan Yung v Tan Bo Ren (WA-22NCC-635-09/2024)

On 4.3.2026, I allowed the Plaintiffs to enter judgment against the Defendant (“D”). This was due to D’s disregard of two peremptory orders and his non - compliance with pre - trial case management (“PTCM”) directions. Here is my explanation. Background facts

At a case management before the judge held on 22.4.2025 (“first CM”), PTCM directions were issued to the parties. The next case management was scheduled to take place about a month later.

D appeared in person at the first CM. This was because his former solicitors, Messrs Lo Chambers, had discharged themselves from representing D via an order of court dated 18.2.2025.

In the affidavit in support of the discharge application (Enclosure 23), Messrs Lo Chambers stated : “5) Saya sesungguh nya menyatakan bahawa pada awal Januari 2024, pihak kami menghadapi kesukaran untuk menghubungi Defendan untuk mendapatkan arahan nya bagi tindakan ini. 6) Walaupun pihak kami telah berkali - kali bercuba, pihak kami masih gagal menghubungi Defendan untuk mengambil arahan berkenaan pemfailan kertas kertas kausa bagi tindakan ini. 7) Pihak kami telah menjelaskan bahawa sekira nya pihak kami tidak mendapat balasan daripada Defendan selewat - Iewat nya pada 20.1.2025, pihak kami terpaksa menarik diri daripada mewakili Defendan di sebabkan ketiadaan komunikasi dan arahan oleh Defendan. 8) Namun, tiada apa-apa balasan di beri oleh Defendan sehingga tarikh afidavit ini. 9) OIeh itu, saya percaya bahawa Tetuan Lo Chambers harus lah menarik diri daripada mewakili Tan Bo Ren, Defendan dalam tindakan ini kerana pihak kami Iangsung tidak mampu bertindak atau pun mengambil Iangkah yang selanjut nya untuk tindakan ini.”

At the next case management conducted on 29.5.2025 (“second CM”), the Plaintiffs’ solicitors informed the court that the draft PTCM documents were served to D on 6.5.2025. However, D did not revert on the PTCM documents. Nonetheless, the Plaintiffs proceeded to file the draft PTCM documents in order to comply with the court’s direction.

D again appeared in person at the second CM. He informed the court that he had recently secured legal representation. The next case management was scheduled to take place about two weeks later.

At the next case management conducted on 13.6.2025 (“third CM”), a new firm of solicitors i.e. Messrs Syahril & Partners appeared for D. The matter was set down for trial on 18 to 21 January 2027. D’s new solicitors were given two months to comply with the PTCM directions.

At the next case management conducted on 13.8.2025 (“fourth CM”), Messrs Syahril & Partners informed the court that they were unable to comply with the PTCM directions. They explained that the reason is because “the defendant client had disappeared and could not be contacted despite multiple attempts”.

Messrs Syahril & Partners asked for a “final two months extension to give one last warning to the client to comply with court directions. If no cooperation was received during this period, they will withdraw from the case”. The next case management was scheduled to take place about two months later.

Meanwhile, the Plaintiffs had filed an application to amend their statement of claim via Enclosure 40 dated 25.9.2025. Enclosure 40 was fixed for hearing at the next case management date.

At the next case management conducted on 13.10.2025 (“fifth CM”), the Plaintiffs’ application to amend the statement of claim in Enclosure 40 was allowed. D’s solicitors asked for time to file an amended defence as well as the PTCM documents. The next case management was scheduled to take place about six weeks later.

At the next case management conducted on 24.11.2025 (“sixth CM”), D’s solicitors asked for an extension of time to file the amended defence and the PTCM documents. The next case management was scheduled to take place about six weeks later.

At the next case management conducted on 5.1.2026 (“seventh CM”), D’s solicitors again informed the court that they were unable to comply with the PTCM directions. They gave a similar explanation. Namely, that “the Defendant refused to communicate with his solicitors”.

Messrs Syahril & Partners then informed the court of their intention to file an application to discharge themselves from acting for D. Subsequently, they filed the discharge application via Enclosure 52 on 12.1.2026. Enclosure 52 was fixed for hearing at the next case management date.

In the brief grounds in support of Enclosure 52, Messrs Syahril & Partners stated : “1) Tetuan Syahril & Partners mengalami kesukaran untuk berjumpa, berkomunikasi dan berbincang dengan Defendan bagi perjalanan kes ini. 2) Selepas perlantikan sebagai peguamcara pada lebih kurang Jun 2025, Defendan tidak mahu datang ke pejabat firma guaman Tetuan Syahril & Partners atau bertemu dengan peguam di mana-mana lokasi lain bagi perbincangan lanjut mengenai kes ini termasuklah menyerahkan semua dokumen yang relevan untuk penyediaan kes ke perbicaraan penuh. 3) Segala email dari Tetuan Syahril & Partners kepada Defendan langsung tidak di balas, begitu juga dengan panggilan telefon yang sukar di hubungi / di capai dan / atau tidak di jawab oleh Defendan. 4) Ketiadaan kerjasama sepenuhnya dari Defendan menyukarkan Tetuan Syahril & Partners untuk terus bertindak sebagai Peguamcara Defendan dalam kes ini.”

At the next case management conducted on 15.1.2026 (“eight CM”), Messrs Syahril & Partners informed the court that D was evading personal service of the cause papers pertaining to Enclosure 52. As such, they will serve the cause papers on D by registered post.

The hearing of Enclosure 52 was postponed to 19.1.2026. I requested Messrs Syahril & Partners to notify D of the hearing date. Further, to convey the court’s instruction that D must attend the hearing. Messrs Syahril & Partners duly did so. (See their affidavit of service in Enclosure 54).

D did not attend the hearing of Enclosure 52 on 19.1.2026. Messrs Syahril & Partners’ application to cease acting for D was allowed.

At the hearing on 19.1.2026, I issued a peremptory order against D. I directed D to comply with the PTCM directions within two weeks. I further directed D to attend the next case management. If he fails to do so, judgment will be entered against him. A further case management was scheduled to take place on 23.2.2026.

I requested the Plaintiffs’ solicitors to notify D of the next case management date. I also requested the Plaintiffs’ solicitors to notify D of my peremptory order. The Plaintiffs’ solicitors duly did so. (See their letter dated 12.2.2025 in Enclosure 60).

At the next case management conducted on 23.2.2026 (“ninth CM”), D was absent yet again. I issued a second and final peremptory order against D. A further case management was scheduled to take place on 4.3.2026.

I again requested the Plaintiffs’ solicitors to notify D of the next case management date. I also requested the Plaintiffs’ solicitors to notify D of my second and final peremptory order. The Plaintiffs’ solicitors did so. (See their affidavit of service dated 27.2.2026 in Enclosure 62).

At the next case management conducted on 4.3.2026 (“tenth CM”), D was still absent. In accordance with my second and final peremptory order, judgment was entered against D.

The court has the power to enter judgment against a defendant who fails to comply with PTCM directions. This is spelt out in Order 34 rule 2

of the Rules of Court 2012, which reads : “2. Pre - trial case management when directed by the Court (O. 34 r. 2) …

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.”

The court also has the power to enter judgment against a defendant who fails to attend case management. This is spelt out in Order 34 rule 6

of the Rules of Court 2012, which reads : “6. Failure to attend (O. 34 r. 6)

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 as the Court thinks fit.”

In exercise of the aforementioned powers, judgment was entered against D. Firstly, because D had ignored the warning in two peremptory orders. Secondly, because D had defaulted in complying with the PTCM directions. Thirdly, because D had disobeyed my express instruction to attend the case management.

D absented himself from the case management on no less than three occasions. Namely on 19.1.2026, 23.2.2026 and 4.3.2026. This was despite being explicitly told to attend.

D cannot feign ignorance of the said hearing dates. Nor of the two peremptory orders and my instructions. Those were undoubtedly communicated to him. This is evinced by the affidavits of service filed by his former solicitors and by the Plaintiffs’ solicitors respectively.

In view of D’s contumelious default and wilful disobedience, judgment was entered against him. This was done only after two peremptory orders had been issued, which D chose to ignore.

I consider D’s non - compliance to be deliberate and intentional. This is demonstrated by the fact that two different firm of solicitors had to cease acting for him. Their reasons for discharging themselves paint a similar narrative. They portray D as one who was not at all interested in defending himself in this suit. He refused to meet with his solicitors, rejected their phone calls, and declined to respond to their emails. He pulled a disappearing act on his solicitors.

The PTCM directions were issued as far back as April 2025. The PTCM documents were supposed to have been filed as far back as May

Various extensions of time had been granted to D with regard to the filing of the PTCM documents and his amended defence.

However, P has shown contemptuous conduct by his blatant disregard of the PTCM directions and by his absence during the case management. His default in complying with the PTCM directions, and his absence during the case management, has hindered me from getting the matter ready for trial.

I am mindful of the remarks made by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1; [2016] 1 MLJ 301 (albeit in the context of an application to amend pleading). In essence, that civil procedure has changed with the introduction of pre - trial case management in the year 2000 under Order 34 of the Rules of Court.

The Federal Court observed that under the new case management regime, a different approach must be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants, but with the court in the driver’s seat. Delay would disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process. The management of cases by the courts prior to the trial is intended to ensure a just, expeditious and economical disposal of an action. Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime.

The Federal Court in Hong Leong Finance (supra) said : “[18] … The civil procedure has since then changed with the introduction of the pre-trial case management in the year 2000 under O. 34 of the RHC 1980 (w.e.f. 22 September 2000) and now under O. 34 of the RC 2012 (w.e.f. August 2012). Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat. … an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process. … [19] The development of the law relating to civil procedure and in particular with regard to amendment application on pleadings is not only seen in Malaysia but in other jurisdictions as well. In the United Kingdom as far back as 1988, the House of Lords in the decision of Ketteman and Others v. Hansel Properties Ltd [1988] 1 All ER 38 had already taken into consideration the strain of litigation on parties when new issues are introduced and an amendment application is made late. The statement of a general principle against delayed amendment was well set out by Lord Griffiths in that case at p. 62 as follows : Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear on the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore, to allow an amendment before a trial begin, it is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads rather than by allowing an amendment at a very late stage of the proceedings. The principle in Ketteman has been considered on numerous occasions by the Malaysian courts … … [26] … The management of cases by the courts prior to the trial is intended to ensure “just, expeditious and economical disposal” of an action. (See O. 34 r. 4(1) of the RHC 1980 (now O. 34 r. 1(1) of the RC 2012) and the Practice Direction No. 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime.”

Here, I took into account the strain the litigation imposes on the Plaintiffs, who are personal litigants. They have a legitimate expectation of a just, expeditious and economical disposal of the dispute, one way or the other. Unfortunately, D’s cavalier attitude towards compliance with the PTCM directions and attendance at the case management has prevented a timely disposal of the matter.

In the circumstances, I deemed it fit to invoke the powers under Order 34 of the Rules of Court 2012, as cited above. By the time judgment was entered against D on 4.3.2026 :

more than ten months had passed since the PTCM directions were issued in April 2025;

more than nine months had passed since the PTCM documents were due in May 2025;

no less than ten case managements had been conducted before the judge;

D had absented himself from the case management on at least three occasions;

two peremptory orders had been made against D; and

there had been a breach of Order 34 rule 5 of the Rules of Court 2012, which stipulates that a case management may be adjourned not more than three times.

It is plain that there has been repeated and consistent failure by D to comply with the PTCM directions and attend the case management. Crucially, he has ignored two peremptory orders. I am guided by the following authorities.

In Folin & Brothers Sdn Bhd (in liquidation) v Wong Foh Ling & Wong Swee Lin & Ors [2001] 5 CLJ 476 at 480, the High Court held that disobedience of a peremptory order tantamounts to contumelious behaviour. The court said : “To me an “unless” order would spell out the consequences of the failure to comply with its terms, and any disobedience to such an order is likely to be held to be contumelious behaviour which would result in the dismissal of the action or the striking out of the defence and in the event it gives rise to a dismissal of the action, it may prevent the plaintiff from issuing a second writ even though the period of limitation has not expired. Ward L.J. in Hytec Information Systems Ltd v Coventry City Council (1997) 1 WLR 1666 1674 spoke of the “unless” order in these fine words : “(1) An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party’s last chance to put his case in order.

Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed.

This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure.

It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred) flouts the order then he can expect no mercy.

A sufficient exoneration will almost inevitably require that he satisfies the order that something beyond his control has caused his failure to comply with the order.

The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice.

The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.”

Repeated failure by a party to comply with an order of the court will justify dismissing a party’s claim or entering judgment against the party. In Lakefront Residence Sdn Bhd v Tetuan Lui & Bhullar (menjalankan perniagaan firma guaman secara perkongsian) & Ors [2025] MLJU 1093, the High Court said : “[48] ... In this case, however, the Plaintiff’s repeated non - compliance demonstrates a pattern that justifies the order made. [49] The dismissal is proportionate given the repeated failure to comply with court directions and the clear warning in the unless order. The Plaintiff was well aware of the consequences of non - compliance. … [51] While courts should generally strive to decide cases on their merits, this principle must be balanced against the need for procedural discipline and the finality of litigation. The Plaintiff has had ample opportunity to comply with court directions but has failed to do so without reasonable excuse.”

The importance of complying with a court order, and the effect of failing to comply with a court order, has been highlighted time and again by the appellate courts.

In Hup Soon Omnibus Co Sdn Bhd & Anor v Lim Chee @ Lam Kum Chee [2017] MLJU 1937, the Court of Appeal held : “[6] On the factual matrix of the present case, it is quite plain to us that the appellants had wilfully breached the 31.3.2016 Order requiring them to deposit RM 50,000.00 within 14 days as security for the costs. [7] The appellants had offered no plausible explanation for the breach of the order. In our view, the non - compliance was a wilful and blatant disregard of the order of the Court of Appeal for which sanctions would be justified. “[8] The Court will pay particular regard to the paramount importance of securing compliance with its orders. In Stolzenberg and Others v CIBC Mellon Trust Co. Ltd. [2004] EWCA Civ 827, Arden L J said at paragraph 167 :- “… Compliance with orders of the court is not a question of judicial amour prope. It goes to the essence of the rule of law that parties subject to the court’s jurisdiction … should comply with the court’s orders. The gravity of the matter of non - compliance is plainly increased where the non - compliance results from a conscious decision, as in this case. It follows, as Ward LJ said in Hytec Limited v Coventry City Council [1997] 1WLR 1666 at 1674 to 1675, that, ‘If a party intentionally or deliberately ... flouts the order, he can expect no mercy’. He has to persuade the court that in all the circumstances the injustice to him outweighs the interests of the administration of justice and the injury to the other party.’ … [12] Before parting with this appeal, we would like to emphasise that a court order is a court order. It must be obeyed as ordered unless set aside or varied. It is not a mere technicality that can be ignored. If we allowed court orders to be ignored with impunity, this would destroy the authority of judicial orders which is the heart of all judicial systems. We hold a firm view that a court order is not a mere technical rule of procedure that can be simply ignored. In our jurisprudence, court orders must be respected and complied with. Those who choose to ignore them do so at their own peril.”

In Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal

2 MLJ 217 at 220 - 221, the Supreme Court held : “Obedience to court order It is established law that a person against whom an order of court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied. Any person who fails to obey an order of court runs the risk of being held in contempt with all its attendant consequences.”

Finally, D’s absence during the case management cannot be looked upon with leniency. On this aspect, I refer to the Federal Court decision in Lembaga Kemajuan Tanah Persekutuan (Felda) & Anor v Awang Soh Mamat & Ors and another application [2010] 3 CLJ 895 at 902 (albeit in the context of absence during trial) : “[8] Before we conclude there is a matter to which we must allude. It is well known that courts at all levels are saddled with an enormous amount of work. Judicial arbiters are working very hard to clear the backlog. What we must aim for is a trial that takes place a few months and not several years after the commencement of the action. Counsel on all sides must cooperate to achieve this. Diligence in diarising dates is essential. We think it safe to say that gone are the days when the absence of a solicitor or counsel or a party on the hearing date will be looked upon with lenience. Quite the opposite. There must be good grounds for postponing a trial or for setting aside a judgement obtained by reason of the absence of a party or its counsel at trial. That is not to say that a trial ought never to be postponed or that a judgment entered in the absence of a party ought never to be set aside. Each case depends on its own facts and what the judicial arbiter must always bear in mind is the justice of the particular case. We cannot over emphasise that justice is too precious a commodity to be sacrificed at the altar of expediency.”

I am conscious that judgment was entered against D without the matter being heard on the merits. D has not had his day in court. But he has only himself to blame. He did not attend the case management. He did not comply with the PTCM directions. He ignored two peremptory orders. Having absented himself from the case management, flouted the PTCM directions and disregarded the peremptory orders, D can expect no mercy.

Hence, entering judgment against D is an appropriate last resort sanction in these circumstances. I consider that the imposition of such sanction is necessary for the administration of justice. Otherwise, judges would be paying lip service to peremptory orders. It would ring hollow the next time we issue an unless order.

To quote case law, the public interest in the administration of justice to contain the procedural inefficiencies caused by the twin scourges of delay and wasted costs outweighs the prejudice to D. D’s history of non - compliance demonstrates a pattern that justifies the judgment entered against him.

The judgment entered against D is proportionate, given his repeated failure to attend the case management, comply with the PTCM directions and the clear warning in the peremptory orders. The need for procedural discipline and the finality of litigation trumps over any injustice to D. Conclusion

For the reasons above, I consider it just and proper that judgment be entered against D. Dated 6 April 2026 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2) Counsel Ng Choon Kiat (Messrs. Guok Partnership) for the Plaintiffs Case reference 1. Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1; [2016] 1 MLJ 301 2. Folin & Brothers Sdn Bhd (in liquidation) v Wong Foh Ling & Wong Swee Lin & Ors [2001] 5 CLJ 476 3. Lakefront Residence Sdn Bhd v Tetuan Lui & Bhullar (menjalankan perniagaan firma guaman secara perkongsian) & Ors [2025] MLJU 1093 4. Hup Soon Omnibus Co Sdn Bhd & Anor v Lim Chee @ Lam Kum Chee [2017] MLJU 1937 5. Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal (1993) 2 MLJ 217 6. Lembaga Kemajuan Tanah Persekutuan (Felda) & Anor v Awang Soh Mamat & Ors and another application [2010] 3 CLJ 895