7 Vision Realty Sdn. Bhd. v Melaka Bekal Sdn. Bhd. (MA-22NCvC-17-04/2022)

MELAKA BEKAL SDN BHD (No. Syarikat: 725895-K)

YAYASAN MELAKA ...DEFENDAN KEDUA GROUNDS OF JUDGMENT INTRODUCTION [1] Pre-trial case management under Order 34 of the Rules of Court 2012 is the machinery by which a civil action is made ready for trial. Its directions are not administrative suggestions to be observed when convenient; they are orders of the Court. Yet a pattern recurs with troubling regularity in the civil lists: directions for the filing of pre-trial documents are given, deadlines pass, extensions multiply, and compliance - if it comes at all - arrives at the eleventh hour, on the eve of trial. This application presents that pattern in an acute form, and it calls for an answer that goes beyond the disposal of the application itself. [2] The Second Defendant applies, pursuant to Order 34 rule 2(2) and (3) of the Rules of Court 2012, for the dismissal of the Plaintiff's action against it on the ground of the Plaintiff's failure to comply with directions given at pre-trial case management. The application, filed on 22.07.2026, was heard on 28.07.2026 - two days before the trial fixed for 30.07.2026 and 31.07.2026. [3] Because the problem disclosed by this file is one that surfaces repeatedly, these grounds also set out, in structured form, the framework which this Court will henceforth apply to non-compliance with pre-trial case management directions, so that both bench and Bar know with certainty how such defaults will be managed and what consequences will follow. THE APPLICATION [4] The Second Defendant seeks the dismissal of the Plaintiff's action against it in its entirety under Order 34 rule 2(2) and (3) for default in complying with directions given during pre-trial case management, with costs. The application is supported by the affidavit of the Second Defendant's General Manager, affirmed on 22.07.2026, which deposes that as at that date no pre-trial documents had been delivered to its solicitors. The further matters relied upon - that such compliance as was belatedly attempted was not properly served, and that the documents delivered were incomplete and unilateral - emerged at the hearing and are addressed below on that footing. The grounds advanced are, in substance, that the pre-trial directions had remained uncomplied with for years despite repeated indulgence, and that the Plaintiff's persistent defaults amount to intentional and contumelious conduct which has left the Second Defendant unable fairly to prepare for trial. A question upon the form in which the application is supported also arises, and is dealt with at the outset of the analysis below. THE PLEADED POSITIONS [5] The Plaintiff's claim against the Second Defendant is for general, specific and exemplary damages. Its pleaded case, as it appears from the bundle of pleadings, includes an allegation of fraudulent misrepresentation said to have been made by the Second Defendant, whether jointly with or severally from the First Defendant, and the pleading itself defers the proof of that allegation to trial: the Plaintiff pleads that the relevant documents will be produced, and the material witnesses called, at the hearing. [6] The Second Defendant submitted, consistently with its pleaded Defence, that no cause of action lay against it because it was not a party to the agreement relied upon by the Plaintiff. By letter dated 11.01.2018 it informed the First Defendant that its Board of Directors had agreed to confer on the First Defendant exclusive rights as 'wakil ejen khas' to manage the extraction, processing, storage, sale and exportation of iron ore, upon terms to be concluded in an agreement to be signed between them. By further letter dated 16.03.2018 it informed the First Defendant that the Surat Kelulusan Skim Pengendalian Melombong, which had taken effect from 27.12.2013 for a period of one year, had expired, and that its renewal was to be applied for from the Minerals and Geoscience Department. On the Second Defendant's pleaded case, no binding agreement was ever concluded with the First Defendant because the relevant departmental approval had not been renewed and verification of the mining lease and of the land area remained in progress. The Plaintiff and the First Defendant had nonetheless entered into an iron ore mining agreement dated 19.03.2018 in respect of the land known as PT 532, Mukim Sungai Baru Ulu, Daerah Alor Gajah, Melaka, for a period of two years from 19.03.2018 to 18.03.2020. Nothing in these grounds decides any of these matters; nor were they the subject of evidence on this application. They are recorded, as they were presented, because they bear upon the question of trial prejudice, to which I return below. THE PROCEDURAL CHRONOLOGY [7] The action was commenced by writ filed on 07.04.2022. On 22.08.2022, after recording that the pleadings were closed, the Court gave the first directions for the filing and service of the pre-trial case management documents. The minute expressly records that an unless order was given. In September 2022 the Defendants filed applications to strike out the action. Those applications, at K.14 and 16, were dismissed on 01.06.2023. [8] On 02.06.2023, the Court directed that the pre-trial documents - the bundle of pleadings, the common bundle of documents, the issues to be tried, the statement of agreed facts, the list of witnesses and the case summary - be filed before 03.09.2023. At the case management commencing on 04.09.2023, further time was sought, and the Court subsequently directed that the documents be filed before 04.12.2023. On 04.12.2023, the Plaintiff had filed only the bundle of pleadings and sought further time for the outstanding documents; the next deadline was 04.03.2024. At successive case managements on 04.03.2024, 06.05.2024, 10.07.2024, 10.09.2024 and 11.11.2024, the record continued to show that only the bundle of pleadings had been filed, and the Court successively extended the time to 06.05.2024, 10.07.2024, 10.09.2024 and 11.11.2024. A final case management was subsequently fixed for 13.01.2025 to update the Court on settlement, with further directions to follow if settlement was not achieved. The prospect of settlement had featured in the record from as early as 04.09.2023 and formed part of the background to several of the later indulgences. [9] On 11.11.2024, all parties confirmed to the Court that they had reached a conditional settlement on 07.10.2024. The Court indicated that a consent judgment might be recorded if the settlement was finalised. On 27.01.2025, the Court allowed the parties further time to finalise either a consent judgment or a new settlement agreement, indicating that final pre-trial directions would be given if no settlement was reached. On 14.04.2025 and again on 22.05.2025, the Court was informed that the parties remained in the course of finalising the settlement. [10] On 26.06.2025, the Court directed that the outstanding pre-trial documents be filed before the next case management on 20.08.2025 and fixed the trial for 30.07.2026 and 31.07.2026. On 20.08.2025, the Court sought the parties' explanation for the continuing non-compliance with the pre-trial directions. No explanation was given, and the matter was fixed for case management before the Judge. On 20.11.2025, following the retirement of the presiding Judge and in the absence of a replacement, the case management was rescheduled to 21.01.2026. On 21.01.2026 and 26.02.2026, the Court was informed that the parties remained in the course of finalising a settlement which had not yet been concluded. [11] On 30.03.2026, the Court gave a further timetable for the completion of the pre-trial documents. The record shows that the Plaintiff's solicitors did not attend that case management, a matter which was not contradicted. The Court directed that the list of witnesses, the common bundle of documents, the agreed facts, the issues to be tried and the case summary be filed by 13.04.2026, and that the witness statements be filed by 16.07.2026. [12] The deadline of 13.04.2026 passed without compliance, and the materials identify no communication or explanation from the Plaintiff by that date. By letter dated 15.07.2026, emailed to the parties on the same day, the Second Defendant's solicitors informed the Court that they had received no pre-trial documents from the Plaintiff and requested that the trial be converted into a case management for appropriate orders to be made. The Plaintiff subsequently disputed both its receipt of that letter and the assertion that no documents had been transmitted, maintaining that certain pre-trial documents had been emailed to the Second Defendant's managing partner on 08.07.2026. THE EVENTS OF JULY 2026 AND THE MANNER OF DELIVERY [13] The documentary record then discloses the following. On 07.07.2026 the Plaintiff's solicitors transmitted the draft index to the common bundle of documents to the First Defendant's solicitors. On 08.07.2026 they transmitted by email to an address belonging to the Second Defendant's solicitors sealed copies of a three-volume document bundle, the bundle of pleadings, the Plaintiff's statement of facts and the Plaintiff's issues to be tried, together with the index to the common bundle. The Plaintiff's documents were said to comprise some 761 pages. It was further stated, and not contradicted, that a set of the trial documents was delivered to the Court for the use of the Judge on 20.07.2026. On 22.07.2026 the Plaintiff filed its list of witnesses and the witness statements of its two witnesses, and on 23.07.2026 transmitted those documents by email to the solicitors for both Defendants. By letter to the Court dated 23.07.2026 the Plaintiff's solicitors apologised for the delay and affirmed the Plaintiff's readiness to proceed with the trial as fixed. [14] The manner of the transmission of 08.07.2026 requires attention. The following account was placed before the Court and was not specifically contradicted, although the Plaintiff maintained that the email constituted delivery of the documents. The email was addressed not to the solicitor said to have had conduct of this matter for the Second Defendant since 2022, and whose electronic address had previously been used in correspondence between the firms, but to the address of the firm's managing partner, who was said neither to have appeared nor corresponded in the action. On that account, the email was diverted to the spam repository of that address and was not brought to the attention of the solicitor in charge; no hard copy was delivered; and the solicitor in charge first learned of the transmission by telephone at about 1.45 pm on 23.07.2026, the day after the present application was filed. These matters were not deposed to in the supporting affidavit. I therefore treat them not as findings of primary fact but as an unchallenged account of how the transmission came to be overlooked. As will appear, nothing in the disposal of this application turns upon accepting that account as proved: whether the transmission of 08.07.2026 constituted valid service falls to be determined as a matter of law. [15] That account explains a feature of the supporting affidavit which would otherwise call for comment. On 22.07.2026 the deponent affirmed, on information supplied by the Second Defendant's solicitors, that none of the outstanding pre-trial documents or their drafts had been delivered. An email containing several of those documents had in fact been transmitted on 08.07.2026 to another address within the solicitors' firm. On the uncontradicted account placed before the Court, however, it entered the spam repository of that address and had not come to the attention of the solicitor conducting the matter when the affidavit was affirmed. Read in that context, I do not regard the affidavit as knowingly inaccurate or misleading. Whether the transmission of 08.07.2026 nevertheless constituted valid service is a separate question of law considered below. THE GOVERNING LAW AND FRAMEWORK [16] Order 34 of the Rules of Court 2012 institutionalises judicial case management of civil actions. Rule 2(2) empowers the Court at pre-trial case management to make such orders and give such directions as it thinks fit for the just, expeditious and economical disposal of the action, including directions for the filing of the documents by which the trial is prepared among them, under rule 2(2)(j), a statement of agreed facts. Rule 2(3) supplies the sanction: where a party defaults in complying with any such direction, the Court may dismiss the action or the proceedings, strike out the defence or counterclaim, enter judgment, or make such other order as it thinks just. [17] Order 34 does not, however, operate in isolation. Order 1A directs that, in administering the Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with the Rules. Order 2 rule 1(1) provides that where there has been non-compliance with the requirement of the Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. Rule 1(2) declares the Rules to be a procedural code subject to the overriding objective of enabling the Court to deal with cases justly, and requires the parties to assist the Court in achieving that objective. Rule 1(3) empowers the Court, on the ground of such non-compliance and on such terms as to costs or otherwise as it thinks just, to exercise its discretion to allow amendments and to make such order dealing with the proceedings generally as it thinks fit in order to cure the irregularity. Rule 2(1) confines applications to set aside for irregularity to cases where the non-compliance has occasioned a substantial miscarriage of justice or prejudice incurable by amendment or an appropriate order for costs, and rule 3 forbids the Court to allow a preliminary objection founded only upon non-compliance with a provision of the Rules save upon the same stringent conditions. [18] A distinction must nonetheless be observed, and it is one which is easily elided. Order 2 rule 1 is directed expressly to noncompliance with the requirements of the Rules themselves. A default in complying with a direction given under Order 34 rule 2(2) is more specifically governed by rule 2(3), which confers on the Court a discretionary range of responses, including dismissal, the striking out of a defence or counterclaim, the entry of judgment, or such other order as it thinks fit. Order 2 rule 1 does not therefore, of itself, reduce every breach of a case-management direction to a mere irregularity or neutralise the specific power conferred by rule 2(3). [19] Order 1A and Order 2 nevertheless form part of the context in which that discretion is exercised. The Rules are to be administered with regard to the overriding interest of justice and not merely to technical non-compliance; their procedural machinery should not be converted into an instrument of disproportionate forfeiture. In Voltan Installation & Services & Ors v Mohd Kamaruzzaman bin Ghani [2025] MLJU 2063 the High Court allowed an appeal against the striking out of a claim under Order 34 rule 2(3). In Voltan at [30], the High Court reproduced paragraphs [5] and [6] of Redang Paradise Vacation Sdn Bhd v Yap Chuan Bin & Other Appeals [2017] 10 CLJ 296: paragraph [5] quoted Janab's civil-procedure text, while paragraph [6] stated the Court of Appeal's own conclusion concerning regularisation, prejudice and compensation by costs. [20] That reasoning must not be overextended. It neither displaces rule 2(3) nor immunises a party who disobeys a case-management direction. More directly, it was explained in Dr Sim Kui Hian v Michael Kong Feng Nian [2022] MLJU 2260 (HC) at [34]----[35] that, particularly where no prior warning has been given, dismissal should not be resorted to unless the noncompliance is sufficiently serious to defeat the purpose of the case-management directions. Whether dismissal is justified therefore depends upon the nature and gravity of the default, its effect upon the conduct and fairness of the trial, any warning or peremptory order previously given, and whether a lesser order including an appropriate order for costs - can adequately meet its consequences. [21] Three features of the rule must be kept steadily in view. First, the power is discretionary. Rule 2(3) provides a range of possible dispositions, comprising both terminal sanctions and lesser, more proportionate orders. The auxiliary verb "may" takes its meaning from the context in which it appears and is not invariably permissive; depending upon that context, it may denote a requirement rather than an option, just as "shall" may sometimes be directional rather than mandatory. Maya Maju (M) Sdn Bhd v Putrajaya Homes Sdn Bhd [2018] MLJU 1629 at [56], [58] and [59] illustrates that principle of contextual construction: once the option to which "may" attached was exercised, the contractual consequence was obligatory. Maya Maju did not concern Order 34, however, and its relevance here is confined to that general principle. Read in its own setting, the "may" in rule 2(3) governs alternative dispositions - dismissal of the action or proceedings, striking out of the defence or counterclaim, entry of judgment, or such other order as the Court thinks fit. Its text and structure admit of no automatic consequence: the Court is empowered, not obliged, to impose an appropriate order upon default. [22] Secondly, directions given under Order 34 are binding directions of the Court. Under the modern regime, the Court no longer leaves the parties to move litigation at their own pace but assumes responsibility for setting the timetable for its progress: Syed Omar Syed Mohamed v Perbadanan Nasional Berhad [2013] 1 MLRA 181 (FC), as explained in Ho Khar Fui v Wan Jun Yi & Ors [2026] MLJU 2270 at [69] - [70]. The powers conferred by Order 34 for that purpose are correspondingly wide. As the Federal Court stated in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1 at [18], reproduced in Voltan (supra) at [32], the progress of the case is no longer left in the hands of the litigants; the Court is in the driver's seat. A party who disregards those directions therefore does more than commit a procedural lapse: the default may obstruct the orderly progress of the case, prejudice trial preparation and consume judicial resources required by other litigants. [23] Thirdly, rule 2(3) must be administered consistently with the overriding interest of justice. Order 34 identifies the object of case management as the just, expeditious and economical disposal of proceedings. Its enforcement powers exist to secure that object, while preserving adjudication on the merits wherever that remains fairly and proportionately possible. The sanction must therefore serve the proper conduct of the action rather than supplant its adjudication. [24] From these features the governing principles follow. Dismissal of an action for non-compliance with pre-trial directions is a drastic remedy of last resort because it extinguishes the claim without adjudication and may, where limitation has intervened and the dismissal is not set aside, prevent its subsequent pursuit. The authorities identify two principal, though not exhaustive, routes by which that sanction may be justified: first, intentional and contumelious default - that is, deliberate or continuing disobedience evincing defiance or conscious disregard of the Court's authority, of which breach of a clear peremptory order is a powerful, though not conclusive, indication; and secondly, inordinate and inexcusable delay which has created a substantial risk that a fair trial is no longer possible or serious prejudice to the opposing party which cannot adequately be addressed by costs or a lesser order. The ultimate assessment remains holistic and fact-specific. [25] These principles draw support from appellate authority although it must be acknowledged - as Lui Wei Ping v Yau Cheng Ee & Ors [2026] MLJU 601 observed - that no decision of the apex court directly delineates the threshold under Order 34 rules 1(3) and 2(3). In Md Amin bin Md Yusof & Anor v Cityvilla Sdn Bhd [2004] 4 MLJ 446, the Court of Appeal held that striking out for non-compliance must meet the ends of justice and that all the circumstances must be considered, including the history of non-compliance and whether the failure was intentional and contumelious. It further held, on the facts, that the applicant's own failure to comply with the Court's directions was a material consideration against striking out. Likewise, in United Malayan Banking Corporation Bhd v Palm & Vegetable Oils (M) Sdn Bhd & Ors [1994] 3 MLJ 73 (SC), it was recognised, in the context of dismissal for want of prosecution, that an applicant's contribution to the delay is material. [26] These authorities articulate enduring safeguards against disproportionate procedural sanction: dismissal is not to be employed merely as punishment but only where justice assessed in the light of the entire procedural history, requires it. Accordingly, the exercise of the discretion under rule 2(3) is fact-centric and must be exercised judiciously upon a proper and wholesome consideration of the facts and circumstances of the particular case: Voltan (supra) at [34]. [27] This Court recently had occasion to synthesise these principles in Lui Wei Ping (supra). While Order 34 is procedural in origin, the sanction of dismissal is substantive in consequence: it extinguishes the plaintiff's cause of action without trial, and the gravity of that consequence demands that the threshold for its exercise be correspondingly high. Order 34 exists to advance the overriding objective of justice - to ensure that proceedings are conducted fairly, efficiently and economically. It is not designed to create a regime of procedural forfeiture; case management is an instrument of justice, not its substitute. The threshold therefore reflects three underlying principles: access to justice, in that a litigant should not be deprived of the opportunity to be heard unless the circumstances plainly justify it; fairness between the parties, in that a party who has contributed to delay cannot ordinarily invoke that delay to obtain termination of the action; and proportionality, in that the sanction imposed must be proportionate to the default. [28] The structured and contextual inquiry laid down in Lui Wei Ping (supra) directs attention to factors which are central, though not exhaustive. The Court considers the nature of the noncompliance, which may fall along a spectrum from minor procedural delay, through repeated disregard of directions, to the breach of a peremptory or unless order and deliberate defiance of the Court's authority, the severity of the sanction corresponding to the seriousness of the breach. It considers whether the conduct is intentional and contumelious: the term "contumelious" is not to be deployed loosely; it denotes conduct that is obstinate, defiant or in conscious disregard of the Court's authority, and is qualitatively distinct from inefficiency, administrative oversight, strategic misjudgment or delay caused by multi-party procedural complexity, a finding of contumelious conduct requiring clear evidence of wilful disobedience. It considers whether the delay is inordinate, having regard to the procedural stage of the action and the complexity of the matter, and inexcusable, meaning unsupported by credible explanation. It considers whether the applicant has itself contributed to the delay, for equity does not assist a party to profit from its own default, and where delay is mutual the appropriate response is correction and direction, not termination. It considers prejudice the protective core of the jurisdiction: prejudice must be real, material and substantiated by evidence, the Court asking whether the delay has rendered a fair trial impossible, whether witnesses have become unavailable, whether documents have been irretrievably lost, and whether evidentiary integrity has been compromised; mere assertions of inconvenience, anxiety or delay do not suffice. And it considers proportionality: whether the objectives of case management can be achieved through less severe means, including peremptory directions with defined timelines, costs sanctions, limitation of issues and case sequencing orders, dismissal being reserved for cases where lesser measures would plainly be ineffective. These factors are a judicial synthesis, non-exhaustive in character, and are applied as guidance rather than as a rigid code. [29] These factors are not to be applied mechanically. The Court conducts a holistic assessment of the entire procedural history, and the ultimate question remains constant: has the conduct of the defaulting party so undermined the administration of justice that the only proportionate and fair response is dismissal? If the answer is no, the action should proceed, subject to appropriate case management controls. Order 34 must not be transformed into a tactical instrument for defendants to obtain the termination of actions through incremental procedural delay, nor become a shield for dilatory plaintiffs. Its proper role is supervisory, and the Court must guard against allowing procedural discipline to eclipse substantive justice. [30] The same discipline animates Ho Khar Fui (supra), in which the High Court, after repeated indulgence and the breach of an unless order, struck out an action shortly before trial. Several strands of that decision merit emphasis. Pre-trial documents are not administrative formalities: they define the trial, telling the parties what facts are agreed upon, what facts are disputed, what issues need to be tried, what documents will be relied on and which witnesses will be called; without proper compliance the opposing parties cannot properly prepare for trial, and the Court cannot manage the trial efficiently. An unless order is not a mere formality but a final opportunity to comply. Equally, and as that decision itself records at [78] (c), striking out is a serious sanction and is not to be used for a minor or technical breach. The appellate authorities gathered in that decision supply the wider frame: directions issued during pre-trial case management are peremptory in nature (Koh Heng Jin @ Koh Heng Leong v Gan Kooi Ann [2015] MLRAU 403 (CA)); yet substantive rights are not to be taken away lightly, and striking out for inordinate or contumelious delay ordinarily presupposes that an unless or peremptory order has been obtained (Vellasamy Ponnusamy & Ors v Gurbachan Singh Bagawan Singh & Anor [2020] 5 MLRA 190 (CA)); and dismissal may be disproportionate where the trial schedule is not disrupted and the non-compliance does not affect the conduct of the trial (Dr Sim Kui Hian v Chong Chieng Jen & Other Appeals [2021] 4 MLRA 348 (CA), whose relevant grounds are reproduced at [16] of Dr Sim Kui Hian v Michael Kong Feng Nian (supra)). There the principle appears in these terms: 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; and that where the non-compliance cannot be construed as amounting to a total disregard of directions affecting the conduct of a trial which was still on track, the avenue of penalising the defaulting party under Order 59 rule 8(b) at the end of the trial, with a costs order marking the Court's disapproval, would have been the more appropriate course. The same passage makes clear that the position would have been otherwise had the bundles not been filed at all, or had other directions been ignored despite a looming trial date. The Arahan Amalan Hakim Besar Malaya Bilangan 2 Tahun 2025 on civil pre-trial case management, issued under Order 92 rule 3B, recognises that a trial date may be fixed even while some pre-trial directions remain outstanding, but the directions must still be complied with within the time set, and failure to comply with directions given during case management may lead to further orders, including costs or striking out. The discretion is nonetheless to be exercised judicially: the Court considers the history of the case, the nature of the non-compliance, whether an unless order was made, whether the default affected trial readiness, and whether a lesser order would suffice; striking out is not to be used for a minor or technical breach; and the right of a party to have his case heard on the merits must be balanced against the duty of the Court to ensure that litigation proceeds justly, expeditiously and economically. The action in Ho Khar Fui was struck out not as punishment for a minor procedural lapse, but because repeated pre-trial directions and the unless order had been breached and the action was no longer in a position to proceed fairly to trial. [31] The peremptory, or unless, order is a central feature of the scheme, though it is not an indispensable precondition to the exercise of the powers under Order 34 rule 2(3). It is the instrument by which the Court may convert indulgence into finality: a valid unless order identifies the act required, fixes a definite time for its performance, specifies the precise consequence of default, and places the affected party on unmistakable notice that the stipulated consequence may be enforced upon default. These are requirements of substance. The terms of an unless order must be specific as to the act required of the party; they must state the time within which that act is to be done; and they must state precisely the consequence of non-compliance. In short, the order must be clear as to its form and effect. These requirements are reflected in Kong Yin Siong & Anor v Chin Chee Fui [2019] MLJU 431 (CA) and were formulated in express terms in Voltan (supra) at [37]. Where doubt attends the terms of such an order, that doubt is to be resolved in favour of the party adversely affected by it: The Gigek [1999] 4 MLJ 74, applied in Voltan at [38]. An order which does not answer that description cannot bear a consequence which its terms did not clearly prescribe. Where no peremptory order subsists, the terminal sanction of dismissal remains available, but ordinarily requires non-compliance sufficiently serious to defeat the purpose of the case-management directions - for example, wilful disregard of the Court's authority or substantial prejudice affecting the fairness or conduct of the trial. Where a valid peremptory order has been made and breached, the Court may enforce its stated consequence, subject always to the terms of the order, to the Rules - including rule 2(4), which contemplates the setting aside of an order made under rule 2(3) - and to the justice of the particular case. Enforcement remains a judicial act, not an automatic one. [32] One further body of law is engaged: the law of service. Filing and service are distinct obligations, and a direction that documents be filed and served is discharged only when both have been accomplished. Order 62 rule 6(1) prescribes the modes by which a document not required to be served personally may be served. Paragraph (cc) permits service by means of electronic communication "in accordance with any practice direction issued for that purpose". The High Court has held in two decisions that, no such practice direction having been issued or shown to exist, service by email under that paragraph is unavailable: valid service under paragraph (cc) can be effected only in accordance with a practice direction issued for that purpose and, until such a direction is issued, there can be no valid service by email under it: Lim Kwee Fen & Anor (trading under the name and style of HH Fresh Market) v KT Home Mart Sdn Bhd [2023] 10 MLJ 506, followed on that point in Lim Chee Yong v Thong Hoe Khin [2025] MLJU 2839. Paragraph (d) permits service in such other manner as may be agreed between the party serving and the party to be served. The condition precedent to its application is the existence of an agreement between the parties or their solicitors to that effect; the agreement must be express, preferably in writing, and its terms must be specific rather than vague. It is equally established in Lim Kwee Fen at [27] that e-filing a document in Court and serving that document through the electronic filing service are distinct acts. The date of e-filing is not, without more, the date of service, and treating the act of filing as though it were service was not the purpose for which Order 63A rule 17 was introduced. Lim Chee Yong, for its part, followed Lim Kwee Fen on the separate question of email service under Order 62 rule 6(1)(cc). To these principles must be added a related but distinct obligation under Order 34 rule 8: the parties and their solicitors must give such information and produce such documents as the Court may reasonably require to enable it properly to deal with the action. Unless the Court authorises otherwise under rule 8(2), any information or document given or produced to the Court must also be given or produced to all parties present and represented. Compliance with that obligation does not, without more, discharge a separate direction requiring formal service upon an opposing party. A litigant does not discharge an obligation owed to his opponent merely by performing a different obligation owed to the Court. THE ISSUES FOR DETERMINATION [33] Five issues arise: first, a preliminary question upon the form in which the application is supported; secondly, whether and when the pre-trial documents were served on the Second Defendant in a manner known to the law; thirdly, whether the Plaintiff's defaults amount to intentional and contumelious default, or otherwise justify the dismissal of the action; fourthly, if they do not, what proportionate orders the justice of the case requires; and fifthly, the prospective framework by which defaults of this kind are to be managed. ANALYSIS AND DETERMINATION The Form Of The Application [34] A question arises at the threshold. The application is made under Order 34, whilst the affidavit filed in its support is intituled by reference to Order 18. The two Orders are distinct in scope, purpose and procedure: Order 18 governs pleadings, being the written statements of the parties' respective cases, whereas Order 34 governs pre-trial case management. A misdescription of that kind is not to be encouraged, and where a defect in form obscures the basis upon which relief is sought it may have consequences. It does not, however, avail as an objection here. Such a misdescription is at most an irregularity, and under Order 2 rule 1(1) an irregularity neither nullifies the proceedings nor any step taken in them nor any document filed in them. Order 2 rule 3 goes further and forbids the Court to allow an objection founded only upon non-compliance with a provision of the Rules unless the Court is of opinion that the non-compliance has occasioned a substantial miscarriage of justice or prejudice that cannot be cured by amendment or an appropriate order for costs, or both. Neither condition is met. The relief sought, the provision under which it is sought and the ground upon which it is sought appear unmistakably from the notice of application itself; the affidavit addresses that ground and no other; and no party has been embarrassed in meeting it. There is a symmetry here which should be stated plainly, because it disciplines the whole of the analysis which follows. The provisions which temper the consequences of default in the preparation of an action for trial are the same provisions which deny an objection founded upon a defect of form in the application by which that default is brought before the Court. The Rules are not a code of forfeiture, and they are not to be operated selectively according to the interest of the party invoking them. WHETHER THE PRE-TRIAL DOCUMENTS WERE PROPERLY SERVED [35] The transmission of 08.07.2026 did not constitute good service, and the point is one of law which does not depend upon the account concerning the address used, the spam repository or the solicitors' knowledge. No practice direction under Order 62 rule 6(1)(cc) has been shown to have been issued, and service by email was therefore not available under that paragraph. Nor can the transmission be brought within paragraph (d): no agreement between the parties or their solicitors permitting cause papers or pre-trial documents in this action to be served by email was shown to exist, and none was suggested. Nor was the act of e-filing the documents itself service: filing and serving are distinct acts. Nor, for the reasons already given, is the position altered by the delivery of a set of the trial documents to the Court on 20.07.2026. That delivery addressed the Plaintiff's obligation to provide documents for the use of the Court; it did not, without more, discharge the separate direction requiring service upon the Second Defendant. It follows that, as at the hearing of this application, the pre-trial documents had not been shown to have been served upon the Second Defendant by any mode recognised by the Rules. At most, on 23.07.2026 seven days before trial the Second Defendant's solicitors acquired actual knowledge of the earlier transmission when it was drawn to the attention of the solicitor conducting the matter by telephone at approximately 1.45 p.m. Later that day, the Plaintiff's list of witnesses and witness statements were emailed to the Second Defendant's solicitors. Neither event, without an authorised mode of service, constituted service according to law. Knowledge of the existence of documents is not service of them. [36] Even on the material transmitted, compliance was incomplete and, in material part, unilateral. The statement of facts delivered was expressly the Plaintiff's own statement, not the statement of agreed facts contemplated by Order 34 rule 2(2)(j) and directed by the Court. The issues to be tried were likewise expressly identified as the Plaintiff's issues and had been prepared unilaterally, although Order 34 rule 2(2)(k), unlike rule 2(2)(j), does not in terms require the issues to be agreed. It was further asserted, and not directly contradicted, that documents had been placed in Part B of the common bundle without the Second Defendant's concurrence, thereby purporting to assign an evidential status to documents whose classification required agreement that their authenticity was not disputed. The case summary is not shown to have been filed at all. The statement of agreed facts remained unconcluded, and no draft statement of agreed facts is shown to have been circulated for the Defendants' consideration. The only draft affirmatively shown to have been circulated was the draft index to the common bundle in July 2026; the facts and issues transmitted on 08.07.2026 were sealed Plaintiff documents rather than drafts circulated for discussion. These are not trivial omissions. The statement of agreed facts and the agreed classification of documents in the common bundle exist precisely to narrow the compass of the trial. A unilateral statement of facts cannot, in any meaningful sense, constitute the statement of agreed facts which the Rules and the Court's direction required. [37] The procedural history of this action is lamentable, and nothing in these grounds should be read as condoning it. Between 02.06.2023 and 13.01.2025 the Plaintiff was granted seven successive extensions for the filing of the pre-trial documents, and throughout that period produced only the bundle of pleadings. Directions of the Court were repeatedly allowed to lapse, on several occasions without explanation, including on 20.08.2025, when the Court expressly called for an explanation for the documents that remained unfiled and none was given. The Plaintiff's solicitors are recorded as not having attended the case management on 30.03.2026, at which the final timetable was fixed; that record was not contradicted. No explanation for the ensuing non-compliance was offered to the Court before the Plaintiff's letter of 23.07.2026, which apologised for the delay but supplied no reason for it. Delay of itself may not be fatal, but delay unaccompanied by a reasonable explanation may properly leave the Court unsympathetic to the defaulter: Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, applied in Lim Chee Yong (supra). The record must nevertheless be viewed fairly. Settlement featured in the case-management history, and on several occasions the Court itself allowed the parties time to pursue it. Such negotiations did not, however, suspend any operative direction or deadline unless the Court varied or stayed it. A party who considers that settlement negotiations prevent compliance must seek an appropriate variation from the Court; it cannot simply allow an existing direction to lapse. Such repeated and unexplained noncompliance is discourteous to the Court, places an unfair burden upon the opposing parties and consumes judicial time that must be shared among all litigants. [38] That said, the discretion under rule 2(3) must be exercised on the whole of the record, and the record discloses features which materially attenuate that picture. [39] First, the settlement context extends further back than the formal indulgence granted in 2025. The prospect of settlement featured in the case-management record from March 2024; and on 11.11.2024 all parties confirmed to the Court that a conditional settlement had been reached on 07.10.2024. On 27.01.2025 the Court allowed the parties time to conclude the settlement and expressly indicated that final pre-trial directions would be given if no settlement was reached. On 14.04.2025 and 22.05.2025 the Court was informed that the settlement was still being finalised. That Court-sanctioned period of indulgence ended no later than 26.06.2025, when the Court directed that the pre-trial documents be filed by 20.08.2025 and fixed the trial for 30.07.2026 and 31.07.2026. Although settlement discussions continued thereafter and were again reported on 21.01.2026 and 26.02.2026, they did not suspend those operative directions. The earlier settlement period nevertheless bears materially upon the allocation of responsibility for delay and upon whether the Plaintiff's conduct was contumelious: delay during a period which the Court itself allowed for settlement cannot fairly be attributed to the Plaintiff alone. Conversely, the settlement discussions cannot excuse noncompliance with the directions made on 26.06.2025 or with the subsequent final timetable. The further rescheduling on 20.11.2025 was occasioned by the retirement of the presiding Judge and is attributable to neither party, although it does not explain the Plaintiff's failure to meet the preceding deadline of 20.08.2025. [40] Secondly, the directions of 30.03.2026 supplied the final operative timetable. They did not erase the earlier procedural history, which remains relevant to the holistic exercise of the discretion; but the proximity of the final defaults to trial gives those defaults particular weight, and it is principally against that timetable that they fall to be measured. So measured, they were serious but bounded. On 08.07.2026 the Plaintiff transmitted, ineffectively, the common bundle of documents, the bundle of pleadings, its own statement of facts and its own statement of the issues to be tried, together with the index to the common bundle. Those documents came to the actual knowledge of the Second Defendant's solicitors only on 23.07.2026 and were never served in a manner known to the law. The Plaintiff's list of witnesses and the witness statements of its two witnesses were filed on 22.07.2026 and transmitted the following day. The case summary is not shown to have been filed; the statement of agreed facts remains unconcluded; and the classification of documents in the common bundle was not agreed with the Second Defendant. [41] As a matter of timing alone, the filing on 22.07.2026 and the transmission on 23.07.2026 occurred not less than seven days before the first day of trial. That corresponds to the residual minimum prescribed by Order 38 rule 2(4), under which, unless otherwise ordered by the Court, a witness statement must be filed and served not less than seven days before it is to be tendered and read at trial. It did not amount to compliance with that rule. The Court had ordered otherwise by fixing 16.07.2026 as the filing date; and, independently, the transmission on 23.07.2026 was not valid service. Compliance with the timing component of a residual minimum cannot cure the breach of a specific direction or the absence of service. The seven-day period nevertheless supplies a limited point of reference when prejudice is assessed: the Second Defendant acquired actual knowledge of the witness statements seven days before trial. It does not follow, however, that the Rules treat seven days as invariably sufficient for the preparation of an entire defence, particularly where the documentary bundle comprised approximately 761 pages and the other trial documents remained incomplete. [42] Responsibility for that incompleteness lies principally with the Plaintiff. Order 34 rule 2(2) places responsibility for filing the relevant bundles upon the plaintiff, although all parties remain obliged to cooperate in identifying agreed facts, settling the classification of documents and defining the issues for trial. That process could not meaningfully proceed until the Plaintiff circulated the necessary drafts, and no such material reached the Second Defendant until July 2026. The absence of the Plaintiff's documents also materially impeded, although it did not render wholly impossible, the Second Defendant's preparation of its witnesses and defence. There is no evidence that the Second Defendant caused or induced the Plaintiff's operative defaults. Whatever may be said of the Second Defendant's own state of preparation, the safeguard concerning contributory delay recognised in Md Amin (supra) and United Malayan Banking Corporation (supra) therefore carries limited weight here, and the application falls to be determined principally by the remaining factors. [43] The decisive question on the first limb is whether the Plaintiff's conduct was intentional and contumelious. The term denotes conduct that is obstinate, defiant or in conscious disregard of the Court's authority, and a finding of contumely requires clear evidence of wilful disobedience. The Plaintiff's repeated defaults, particularly after the final timetable of 30.03.2026, were serious and are capable of supporting a strongly adverse view of its diligence. The record does not, however, establish to the requisite standard that those defaults represented a deliberate refusal to obey the Court. On 07.07.2026 the Plaintiff circulated a draft index to the common bundle, and on 08.07.2026 it transmitted a substantial body of the trial documents. Those steps preceded both the Second Defendant's letter of 15.07.2026 and the filing of the present application. The filing on 22.07.2026 and the transmission on

07.2026 added the Plaintiff's list of witnesses and the witness statements of its two witnesses. Although those acts did not amount to compliance with the Court's directions and left material matters outstanding, they weigh against an inference that the Plaintiff had resolved not to comply. The Plaintiff's letter of 23.07.2026 apologised for the delay and affirmed its readiness to proceed with the trial, although it supplied no explanation for the delay and did not acknowledge or cure the defective service. [44] The mode of transmission merits censure. The documents were sent to an address which had not been used by the solicitor conducting the matter for the Second Defendant; no hard copy was delivered; and no legally recognised mode of service was subsequently employed. The record does not, however, establish that the Plaintiff deliberately selected that course in order to evade service. The conduct is consistent with serious carelessness or a mistaken appreciation of the requirements of service, but neither carelessness nor mistake, without more, establishes calculated defiance. [45] The circumstances are distinguishable from Lim Chee Yong (supra). There, mandatory timelines governing an appeal had been breached; the supplementary record containing the memorandum of appeal was filed more than four months after the due date and more than two months after the striking-out application; no leave was sought to regularise the late filing, even after the defect was raised by the Court; and no acceptable explanation was offered. That persistence led the Court to characterise the conduct as contumelious and as demonstrating a complete and utter disregard of the timelines and requirements of the Rules. Here, the directions of 30.03.2026 were binding, but the consequence of their breach fell within the calibrated discretion conferred by Order 34 rule 2(3); a substantial, though incomplete and legally defective, body of documents had been filed or transmitted before the application was heard; and no clear peremptory order prescribing dismissal as the consequence of breach of that timetable has been shown. [46] Voltan (supra) at [34] identifies repeated breaches of court orders, or a breach causing prejudice and delay to the trial, as circumstances capable of supporting the exercise of the discretion under rule 2(3). The repeated breaches in the present case therefore remain material and cannot be dismissed as technical. Voltan also makes clear, however, that the inquiry is fact-centric and that the discretion must rest upon a proper consideration of the whole record. Taken as a whole, the evidence establishes grave and censurable neglect, but falls short of clear proof of wilful or defiant disobedience. The first limb is therefore not satisfied. [47] Nor has the Second Defendant established the existence of a subsisting peremptory order carrying dismissal as the stated consequence of default. The minute of 22.08.2022 records that an unless order was issued, but the material before the Court does not establish the precise consequence attached to noncompliance. An order whose operative consequence has not been established cannot safely be enforced as though it prescribed dismissal. That conclusion is not a matter of indulgence but of principle. An unless order must specify the act required, fix the time within which it is to be performed and state precisely the consequence of default; it must, in short, be clear as to its form and effect, these requirements being reflected in Kong Yin Siong (supra) and formulated in express terms in Voltan (supra) at [37]. On the material produced, the entry of 22.08.2022 does not establish those essential matters. Any doubt concerning its terms must be resolved in favour of the party adversely affected by it: The Gigek (supra), applied in Voltan (supra) at [38]. [48] The subsequent history makes it still less safe to treat that entry as a subsisting trigger for dismissal. The original timetable was followed by seven extensions, some sought by the parties and others granted in the course of successive case managements; the Court later allowed time for settlement; and on 30.03.2026 it imposed a fresh final timetable which stated no consequence of default. No order has been identified which preserved, renewed or attached the unidentified consequence of the 2022 entry to that later timetable. The entry remains part of the procedural history and bears upon the seriousness of the Plaintiff's repeated non-compliance, but it does not furnish a foundation for enforcing dismissal as an automatic consequence. The caution expressed in Vellasamy Ponnusamy (supra) that substantive rights should not be taken away lightly in the absence of an operative unless or peremptory order therefore reinforces the need for restraint. It does not remove the discretion under Order 34 rule 2(3), which may still be exercised where the default itself is contumelious or has caused irremediable prejudice. [49] The comparison with Ho Khar Fui (supra) must nevertheless be made with care. Both cases involved repeated indulgence, persistent non-compliance and the approach of fixed trial dates. The material distinctions are that in Ho Khar Fui a recent unless order was made after earlier indulgence as a final opportunity to comply; that order was breached; the first trial date had already been vacated and the remaining dates were found to be at risk; and, when the application was determined, the action was not in a proper state to proceed fairly to trial. In the present case, no peremptory order attaching dismissal to breach of the timetable of 30.03.2026 has been shown; the Court expressly maintained the trial date on 15.07.2026; and a substantial, though incomplete and ineffectively served, body of trial documents had been produced before the application was heard. [50] There was also in Ho Khar Fui an unresolved issue concerning the bankruptcy of the Third Defendant and the possible need for leave or sanction to proceed against him. That issue had persisted from 2024 until April 2026 and was found to affect the shape of the action and its readiness for trial. No comparable unresolved issue concerning the legal status of a party or the ability of the action to proceed in its existing form has been identified here. These distinctions do not excuse the Plaintiff's defaults, but they materially weaken the analogy with Ho Khar Fui. [51] On the second limb, the analysis proceeds in two stages. The delay following the deadline of 13.04.2026 was inordinate when measured against the proximity of a trial which had been fixed approximately thirteen months in advance; and, no explanation having been offered even by the eve of trial, it was inexcusable. But inordinate and inexcusable delay does not of itself warrant dismissal. It must also give rise to a substantial risk that a fair trial is no longer possible, or cause serious prejudice which cannot adequately be cured by costs or an appropriate case-management order. That is the protective core of the jurisdiction, and it is to prejudice that the analysis must therefore turn. [52] The preparation burden imposed upon the Second Defendant was real, and the Court does not minimise it. The underlying chronology is established by the documentary record, although the particular consequences said to follow were advanced in argument rather than proved by affidavit evidence. Upon acquiring actual knowledge of the documents on 23.07.2026, the Second Defendant was left with seven days before trial in which to compile and organise its own documentary evidence; to review and analyse a common bundle stated to comprise approximately 761 pages; to identify and locate the witnesses required to answer that material; and to prepare those witnesses for trial. Those tasks had to be undertaken in an action involving an allegation of fraudulent misrepresentation, an allegation of particular gravity in civil litigation. These are among the burdens which pre-trial directions are intended to distribute in an orderly manner over the period preceding trial, because the pre-trial documents define the evidential and factual compass of the case. Their compression into the final week before trial resulted principally from the Plaintiff's failure to circulate the necessary drafts and effect valid service within the periods directed by the Court. [53] That compression establishes substantial practical disadvantage. It does not, without more, establish that a fair trial had become impossible or that the resulting prejudice was incapable of cure. No affidavit evidence identified any witness who had become unavailable, any document which had been lost, any evidential opportunity which had been irretrievably foreclosed or any other impairment which could not be addressed by further directions, an adjournment or an appropriate order for costs. Whether the demonstrated preparation burden crossed the threshold into irremediable prejudice must be determined with those evidential limitations in view. [54] The question, however, is not merely whether prejudice exists, but whether it is of such a character that a fair trial is no longer possible or that appropriate trial directions, an adjournment where necessary and an order for costs cannot adequately cure it. The condition is a composite one: it is where the party affected can both demonstrate prejudice and establish that the breach cannot be compensated by costs that the case enters the small and exceptional class in which the non-compliance cannot be condoned at all: Voltan (supra) at [30], setting out the passage reproduced by the Court of Appeal in Redang Paradise (supra). [55] Several features bear upon that question. No affidavit evidence identifies any witness who has become unavailable, any document which has been lost, any memory which has irretrievably faded or any other impairment of evidentiary integrity. The last pleadings were filed in August 2022, and the issues disclosed by those pleadings have therefore been known for a substantial period, although knowledge of the pleaded issues is not equivalent to timely knowledge of the evidence by which the Plaintiff proposes to prove them. Material elements of the Second Defendant's pleaded position including the alleged absence of a binding agreement and want of privity are founded upon its own dealings and correspondence, including its letters of 11.01.2018 and 16.03.2018, and upon the expiry and proposed renewal of the mining-scheme approval. Those matters are within its own knowledge and records, though they do not necessarily exhaust the evidential preparation required to meet the Plaintiff's case. It was further contended that a substantial part of the common bundle consisted of documents emanating from, or already held by, the Defendants. That contention was not proved by affidavit, and its precise extent has not been independently established. It nevertheless identifies a potentially relevant consideration. A comparable feature was treated as material by the Court of Appeal in Dr Sim Kui Hian v Chong Chieng Jen (supra), whose grounds are reproduced at [16] of Dr Sim Kui Hian v Michael Kong Feng Nian (supra): the documents there were in the public domain and the plaintiff's bundle consisted largely of the defendant's documents, so that the alleged unfair material advantage was not established. The comparison must not be carried too far. In that case the trial was approximately two months away, defence counsel did not seek an adjournment or suggest that the timetable could not be met, and instead indicated that the required preparation would be undertaken. Here, the Second Defendant acquired actual knowledge only seven days before trial and maintained that proper preparation within that period was impossible. [57] The Plaintiff bears the legal burden of proving the alleged fraudulent misrepresentation on the balance of probabilities: Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 (FC). The Second Defendant is not required to disprove the claim before trial, although it must be afforded a fair opportunity to examine the Plaintiff's evidence and prepare its answer. The Plaintiff's own pleading states that the necessary evidence will be adduced at trial. The demonstrated prejudice therefore consists principally of the severe compression of the Second Defendant's preparation time. It is substantial, but no evidence establishes that it is irreversible. It is capable of being addressed by directions requiring immediate valid service and completion of the outstanding documents; by determining the admissibility and classification of disputed documents; by taking the Plaintiff's evidence first; by allowing sufficient time before the Second Defendant is required to call its witnesses; by adjourning or continuing the trial if that proves necessary; and by an appropriate order for the costs occasioned by the Plaintiff's defaults. [58] It would be inaccurate to say that the Second Defendant never sought displacement of the trial dates. By its letter of 15.07.2026 it invited the Court to convert those dates into a case management for appropriate orders. The Court declined that request and expressly maintained the trial date of 30.07.2026. In the present application the Second Defendant seeks dismissal rather than an adjournment or other lesser case-management relief. The preservation of the trial date is therefore relevant, although not conclusive. Dr Sim Kui Hian establishes that where non-compliance has not derailed the trial and can be prevented from affecting its fair conduct, dismissal may be disproportionate; in such circumstances the Court's disapproval may appropriately be marked by a costs order under Order 59 rule 8(b), which requires the Court, when exercising its discretion as to costs, to consider in appropriate circumstances the conduct of all the parties, including conduct before and during the proceedings. [59] The evidence does not establish that fair adjudication has become impossible. Whether the whole trial can properly be completed on 30.07.2026 and 31.07.2026 is a matter for case management in light of the Second Defendant's actual state of preparation; but the action can proceed without extinguishing the Plaintiff's claim, subject to strict directions and such continuation or adjournment as fairness requires. In the absence of prejudice shown to be real, material and incurable, dismissal would assume a punitive rather than protective character, and that is not the function of Order 34. [60] Proportionality confirms that dismissal is not warranted. Order 34 must neither be transformed into a tactical instrument by which defendants obtain the termination of actions through procedural default, nor be permitted to operate as a shield for dilatory plaintiffs; the present case requires the Court to guard against both extremes. The Plaintiff's prosecution of this action has been gravely dilatory. A litigant asserting substantial rights might reasonably have been expected to prosecute its claim with considerably greater diligence than this record displays, and its failure to do so is a proper subject of censure and of costs. That failure does not, however, determine the merits of the claim. Where a fair adjudication remains possible and the prejudice occasioned by the default can be addressed by case-management directions and costs, the proportionate response is to permit the action to proceed under strict and, where appropriate, peremptory directions, with provision for the sequencing or continuation of the trial if required, rather than to prevent adjudication altogether. Dismissal at this juncture would extinguish the claim without adjudication shortly before the fixed trial, after more than four years of litigation and nearly four years of case management, notwithstanding that the residual prejudice is capable of being addressed by lesser measures. Dismissal is reserved for cases in which such measures would plainly be ineffective, and that has not been established here: Lui Wei Ping (supra) at [36] and [37]. The Plaintiff's defaults are serious and are neither minor nor merely technical; but seriousness does not, without more, make dismissal proportionate. Ho Khar Fui (supra) at [78] (b) and (c) confirms both the need to consider whether a lesser order would suffice and the gravity of striking out as a sanction. Voltan (supra) likewise confirms at [33] and [34] that the discretion is fact-centric and must rest upon a proper and wholesome consideration of all the circumstances. Its result turned upon the particular matters identified in that case, including the ambiguity of the unless order, the presence of the plaintiff's representative and the filing of the witness statement, the alternatives stated in the earlier order, and the factual misapprehension under which the striking-out order was made. It therefore reinforces the need for consideration of the whole record rather than supporting any general immunity from the consequences of default. The course adopted here accords with Order 1A, which requires the Rules to be administered with regard to the overriding interest of justice and not merely to technical non-compliance, and with the purpose of case management under Order 34 to secure the just, expeditious and economical disposal of the action. GUIDANCE ON THE MANAGEMENT OF PRE-TRIAL NON-COMPLIANCE [61] Because defaults of this kind recur with regularity, and because certainty in their treatment serves both the Bar and the efficient administration of the civil lists, the Court sets out the framework which will henceforth guide its approach to non-compliance with directions given under Order 34:

Directions given at pre-trial case management are orders of the Court. Compliance is obligatory, not aspirational, and the timetable fixed is the timetable to be met.

A party who foresees that it cannot comply must, before the deadline expires, inform the Court and apply for an extension supported by reasons. Retrospective indulgence is not to be presumed, and silence in the face of an expired deadline is itself a default.

Upon a first default, the Court may record the default, may grant one further extension where the reasons warrant it, and may mark its disapproval in costs.

Continued default means any default occurring after a first default has been recorded under sub-paragraph (c) - that is, a second default, whether of the extended date then allowed or of any other direction given at case management. One extension is the ordinary limit of indulgence; a second is granted only upon reasons of substance, and a third is not to be expected. Upon continued default, the Court may make a peremptory order: a clear and dated order, recorded in the notes of proceedings and extracted, which fixes a final deadline and specifies the precise consequence of noncompliance - dismissal of the action, striking out of the defence or counterclaim, or entry of judgment, as the case may be; the full range of orders under rule 2(3) remains available. Such an order must be clear as to its form and effect: it must identify the act required, the time for its performance and the consequence of default. An order which is not clear in those respects will not bear the consequence it purports to carry, and any doubt attending its terms will be resolved in favour of the party adversely affected by it.

Upon breach of a peremptory order, the Court may enforce the stated consequence, subject to the terms of the order, to the Rules - including rule 2(4), which contemplates the setting aside of an order made under rule 2(3) - to any application properly brought, and to the justice of the particular case.

Dismissal in the absence of a breached peremptory order is reserved for intentional and contumelious default, or for inordinate and inexcusable delay giving rise to a substantial risk that a fair trial is not possible or to serious prejudice which costs cannot cure.

Compliance achieved late, but before the determination of an application for sanction, does not purge the default; it bears, however, materially on proportionality. The ordinary sanction for a remediated default is costs, which may in an appropriate case be ordered on an indemnity basis or made payable forthwith; and, where a proper legal basis is shown and after notice and an opportunity to be heard, the costs occasioned by the default may be ordered to be borne by the solicitors personally.

Trial dates, once fixed, are to be preserved. A party aggrieved by default should move the Court promptly when the default occurs, not hold its application in reserve for the eve of trial; and the sanction selected should, wherever possible, preserve rather than imperil the trial date.

Settlement negotiations do not suspend a direction.A direction remains in force until the Court varies it; a deadline allowed to pass unenforced is not a deadline suspended; and neither the announcement of negotiations nor the recording of a conditional settlement alters the timetable. A party who wishes the timetable to yield to negotiation must say so before the deadline expires and apply for an order to that effect.

Such an application is not, however, to be refused reflexively. Order 1A requires economy as well as expedition, and little is served by compelling the preparation of a complete trial bundle for a trial which both sides expect will never take place. The question is therefore not whether directions may yield to settlement, but which of them may yield, and for how long. For that purpose the pre-trial documents fall into two classes. The statement of agreed facts, the issues to be tried and the list of witnesses are inexpensive to produce, and their function is to define the dispute; documents of that class are not an obstacle to settlement but an aid to it, for parties who have agreed what is common ground and identified what truly divides them negotiate from a far better position than parties negotiating in the abstract. Directions for those documents are therefore not to be suspended on account of settlement, and may with advantage be brought forward. It is the second class - the common bundle in its final form, the witness statements and the case summary - which represents the expenditure that settlement would waste, and it is that class alone which may properly be deferred.

Any deferment is to be granted by order and upon terms: for a fixed and short period expiring by effluxion of time rather than until further order; with the deferred dates refixed in the same order, so that the file never carries a vacuum; without vacating any trial date; and providing that, upon the expiry of the period, the parties shall either file a consent judgment or a notice of discontinuance or resume compliance upon the dates so fixed, the order thus taking effect of itself and requiring no further application. Indulgence is to be granted upon substance and not upon assertion: a statement that the settlement is being finalised is not of itself a ground for extending a timetable, and the Court should require a short joint written statement identifying the stage reached, what remains outstanding, who is to attend to it, and the date by which the settlement will be concluded or abandoned. The aggregate period of indulgence already granted for settlement is to be recorded on each occasion; and where that aggregate becomes substantial, negotiation is thereafter to proceed in parallel with full compliance rather than in place of it. Where a genuine need for time exists, a referral to mediation upon a fixed return date is the appropriate instrument, and not an informal accommodation; and the costs thrown away by a failed settlement for which time was allowed will ordinarily lie where they fall, the accommodation having been granted for the benefit of all parties.

Where the default has been substantially remedied and the trial can still fairly proceed, the ordinary course is to compel the action to trial upon peremptory terms and to mark the default in costs, including by an order made at the conclusion of the trial under Order 59 rule 8(b) having regard to the conduct of the parties before and during the proceedings.

The stages set out above govern the consequences of default. Two further matters concern not those consequences but what compliance itself requires, and they are to be understood accordingly. The statement of agreed facts, the agreed issues and the common bundle are joint documents. The Rules place the filing of the bundles upon the plaintiff, and it is for the plaintiff to circulate drafts in good time; the defendants must respond within the time the Court fixes. Neither passivity nor the unilateral filing of one party's version discharges the obligation, and no party may fix the classification of documents in the common bundle without the concurrence of the others. Where agreement genuinely cannot be reached, the disagreement is to be recorded and separate documents filed within the timetable.

Filing is not service, and a direction to file and serve is discharged only when both have been done. Pre-trial documents must be served, in a mode recognised by Order 62 rule 6(1), upon the solicitor having the conduct of the matter. Transmission by email in the absence of an issued practice direction or an express agreement between the solicitors, transmission to an address not used in the conduct of the action, and reliance upon efiling as though it were service, are none of them compliance. Nor does the provision of documents for the use of the Court under Order 34 rule 8 discharge the obligation to serve the opposing party. [62] This framework is guidance, not a fetter: the discretion conferred by rule 2(3) remains to be exercised holistically upon the circumstances of each case. Its object is certainty of expectation. Solicitors will know that a first default will ordinarily be recorded, that continued default will ordinarily attract a peremptory order, and that the breach of a peremptory order places the defaulter at real risk of the stated consequence. The era of open-ended, serially extended pre-trial timetables is at an end. CONCLUSION [63] For the reasons given, the Plaintiff's defaults were serious and deserving of censure: the pre-trial documents were never served in a manner known to the law, coming to the knowledge of the Second Defendant's solicitors only seven days before trial; they remain in part incomplete and unilateral; and they were preceded by prolonged delay, much of it — particularly in the final phase from March 2026 — unexplained. But the defaults do not amount to intentional and contumelious default; they do not stem from the breach of any enforceable subsisting peremptory order; and they have not given rise to prejudice which costs and trial directions cannot cure, or to any real risk that a fair trial is not possible. This is not, in short, one of the rare cases in which the non-compliance cannot be condoned at all. The dismissal of the action would be a disproportionate exercise of the discretion under Order 34 rule 2(3). [64] Accordingly, the Court orders as follows:

the Second Defendant's application is dismissed;

(ii) by way of peremptory order made under Order 34 rule 2(3), the Plaintiff shall, by not later than 4.00 p.m. on 29.07.2026, do each of the acts specified in subparagraphs (aa), (bb) and (cc) below: (aa) file the case summary; (bb) serve upon the solicitors on record for the First Defendant and upon the solicitors on record for the Second Defendant, at their respective addresses for service, one complete set in hard copy of each of the following documents: the bundle of pleadings; the common bundle of documents in three volumes, together with its index; the Plaintiff's statement of facts; the Plaintiff's statement of the issues to be tried; the list of witnesses; the witness statements of the Plaintiff's two witnesses; and the case summary filed under sub-paragraph (aa); and

(cc) serve upon those solicitors, at the same addresses and in hard copy, the Plaintiff's final draft of the statement of agreed facts, of the issues to be tried and of the proposed classification of every document in the common bundle, each such draft being marked as final, together with a schedule listing every item in those documents upon which the Plaintiff understands agreement not to have been reached; For the purposes of this order, service is to be effected by delivery of hard copies at the addresses for service, that being a mode of service recognised by Order 62 rule 6(1). The Plaintiff shall in addition transmit the same documents by electronic mail to the solicitor having the conduct of the matter for each Defendant, but no such transmission shall of itself constitute service. The agreement or concurrence of either Defendant is not a condition of the Plaintiff's compliance with this order. The Plaintiff shall, by not later than 9.00 a.m. on 30.07.2026, file an affidavit of service exhibiting proof of the delivery of each document required to be served under sub-paragraphs (bb) and (cc). The matter shall be mentioned before this Court at 9.00 a.m. on 30.07.2026, when the Court will determine whether this order has been complied with. If the Court determines that the Plaintiff has failed to do any one or more of the acts required by subparagraphs (aa), (bb) and (cc) within the time fixed, the Plaintiff's action against both Defendants shall thereupon be dismissed, with costs to and paid by the Plaintiff to each Defendant unless otherwise agreed, and no further application shall be necessary for that purpose;

(iii) the trial shall proceed on 30.07.2026 and 31.07.2026 as fixed; the Plaintiff's case shall be opened and its witnesses taken first; the Defendants shall be at liberty to file and serve their witness statements at any time before the close of the Plaintiff's case; and the parties are at liberty to apply for such further directions as the conduct of the trial may require; and (iv) the Plaintiff shall pay the Second Defendant the costs of this application in any event, such costs to be assessed and paid at the conclusion of the trial, regard being had to the conduct of the parties before and during the proceedings. Dated 28 July 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff : Encik Ahmad Muzhaffar bin Abdul Razak Tetuan Muzhaffar Razak Chambers Peguambela dan Peguamcara No. 49-1, Jalan TU 40, Taman Tasik Utama, 75450 Ayer Keroh, Melaka. Lawyer For Defendant : Encik Muhammad Farhan Mirza bin Azme Tetuan Sault Scott & Co. Peguambela dan Peguamcara No. 2B-3, Jalan Kesidang 3/6, Off Jalan Tun Perak, 75300 Bacang, Melaka. (b/p Defendan Pertama) Cik Nurul Nasyira binti Mohd Haliemy bersama Cik Fithriyaani Hafzhan binti Mohd Shaari Tetuan Adillah A. Nordin Peguambela dan Peguamcara No.82, Jalan TU 2, Taman Tasik Utama, 75450 Ayer Keroh, Melaka. (b/p Defendan Kedua)