Annamoorthy A/L Mookan v 1. Hap Seng Star Sdn Bhd (22NCVC-750-11/2016)

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DAIMLER CHRYSLER AG … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 25)

These are my grounds of judgment in respect of an application by the plaintiff (Enclosure 25) to reinstate the Writ and Statement of Claim dated 25 November 2016 which was struck out on 19 April 2017. The plaintiff also seeks to set aside the judgment in default which was entered against the plaintiff in respect of the first defendant’s counterclaim on 19 April 2017.

In this case, the suit was fixed for full trial on 24, 25 and 26 May

These dates were fixed on 21 December 2016. When the matter was called up for case management on 19 April 2017, counsel for the plaintiff did not appear. The plaintiff’s counsel also did not turn up on the earlier case management date i.e. 13 April 2017. There is no dispute that as at 19 April 2017, the plaintiff had not complied with the pre-trial case management directions (“PTCM directions”) which were issued on 21 December 2016. Hence, the suit was struck out as there was non-compliance with the PTCM directions and also due to the non-attendance of the plaintiff’s counsel. On that date, judgment was also entered against the plaintiff in respect of the first defendant’s counter-claim. The starting point in the present context is the PTCM directions that were issued on 21 December 2016. They are as follows:- “Court: Trial Date(s): 24, 25 & 26.05.2017 (3 Days) at 9.00am Plaintiff: 3 Witnesses Defendant: 5 Witnesses (D1 -2 Witnesses, D2/D3: 3 Witnesses) Interlocutory applications (if any) are to be filed no later than 26.01.2017 Pre-trial CM directions: All Pre-Trial Case Management directions must be fully complied with by 19.04.2017, failing which the suit or counterclaim (if any) will be struck out or judgment entered accordingly, depending on who is to blame for the non-compliance. There should be no Part C documents unless they meet the criteria for inclusion in Part C. Witness Statements: All witness statements are to be filed and served by 11.05.2017, failing which the evidence of the witness whose witness statement was not filed by the due date will not be taken during the trial. There should be no witnesses under subpoena without prior notice to and approval by the Judge at CM. Efforts must be made to obtain a full witness statement from the witness under subpoena and if the witness refuses to give the answers to the questions then he/she must be given a list of questions (without answers) in advance of the trial. Page 3 of 42 All documents must be in the Bundle of Documents and should not be tendered at trial through any of the witnesses. CM date(s): 1) 26.01.2017 at 8.30am 2) 19.04.2017 at 8.30 a.m.” [Emphasis added]

I should add that the plaintiff was at all material times represented by the firm of Messrs. Ram. Counsel from that firm who appeared for the plaintiff was Mr. Sundramoorthy. I turn now to the Court’s minutes for 19 April 2017 which read as follows: “Court: P's sol. are not present in Court today. They were not present on the last CM date as well (13.04.2017). PTCM directions have not been complied with. As P's sol. have carriage of the case and bear principal responsibility to get the case ready and ensure full compliance with PTCM directions and as there is no explanation by P's sol. as to why PCTM directions have not been complied with - the case is hereby struck off. Suit is struck off. Under Order 34 Rule 2 (3) and/or Order 34 Rule 6 (1) - I hereby enter judgment in default in respect of D1's counterclaim - prayer (A), (B), (E) and (F) of Encl (6) are allowed P to pay costs of RM 7,500.00 to D1 (subject to 4% allocatur). P to pay total costs of RM 5,000.00 to D2 and D3 (subject to 4% allocatur) Trial on 24 - 25 May 2017 is vacated Encl (14) is struck off. No order as to costs. Suit against D4 is struck off.” [emphasis added]

Consequently, the Order dated 19 April 2017 that was extracted reads as follows: “.....PURSUANT TO Order 34 ruled 2(3) and 6(1) of the Rules of Court 2012 IT IS ADJUDGED that this action against the 1st, 2nd, 3rd and 4th Defendants be dismissed and the Plaintiff shall pay the costs of (i) RM7,500.00 to the 1st Defendant, and (ii) RM5,000.00 to the 2nd and 3rd Defendants. Page 4 of 42 IT IS FURTHER ADJUDGED that the Plaintiff shall pay to the 1st

Storage Charge from 14 May 2016 until 30 December 2016 amounting to RM12,243.00;

Storage Charge at the rate of RM50,00 (per day from 31 December 2016 until the Plaintiff or his authorized representative has removed his Car from the 1st Defendant’s premises; and 3. Interest at the rate of 5% per annum on all sums due and payable by the Plaintiff to the 1st Defendant from 30 December 2016 until full and final settlement. IT IS DECLARED that the 1st Defendant is at liberty to dispose of the Plaintiff’s car with Registration No. WA 9991 M, Model No. E250 AVA (W212) (CKD), Chassis No. WDD2120366L042468 and Engine No. 27492030157666 (“Car”) in anyway the 1st Defendant deems fit and the Plaintiff shall indemnify the 1st Defendant for any costs incurred as a result of such removal.”

I should add that the order reads as the action against the defendants be “dismissed”. This part of the order dated 19 April 2017 was subsequently amended under Order 20 rule 11 Rules of Court 2012 (“slip rule”) to read as “struck out”. I turn now to the facts of the case. Plaintiff’s synopsis

The plaintiff’s case is that in August 2014, he purchased from the first defendant (“D1”), a brand new Mercedes Benz E250 CKD model with registration number WA9991-M (“the said motorcar”) for a sum of RM404,962.50.

The plaintiff claims that he purchased the said motorcar which was designed, manufactured, tested, distributed, delivered, supplied, inspected, marketed, sold and warranted by the defendants.

The plaintiff also claims that he was deceived by the defendants’ misrepresentations regarding the reliability, durability and dealer support for the said motorcar. The plaintiff claims that he did not receive the benefit of the bargain and suffered loss as a result of the defendants’ misrepresentations.

According to the plaintiff, a substantial factor in the plaintiff’s purchasing decision was the defendants’ extensive promotional and advertising campaign which focussed on the superior quality, reliability, durability, fuel economy and dealer support for the said motorcar. According to the plaintiff, at the time of the sale, he was under the impression that he was purchasing a vehicle that was free of any design defects. However, the plaintiff was unaware that the said motorcar was in fact suffering from design defects.

In this regard, the plaintiff claims that approximately between 2-8 months after purchasing the said motorcar, he began to experience substantial, continuous and multiple problems with the said motorcar. Some of the necessary repairs and replacements were covered by the original manufacturer’s warranty.

It was at this moment in time that the plaintiff was finally made aware that he had purchased a motorcar that was plagued by design defects. The plaintiff allegedly suffered damages as a result of purchasing the said motorcar.

In addition to the damages which he has suffered, he claims that he has also endured pain, suffering, damage and considerable inconvenience. According to the plaintiff, this action concerns the numerous quality, design, manufacturing and reliability defects with the said motorcar that renders it to be of unmerchantable quality and unsuitable for use. The plaintiff alleges that the lack of merchantable quality and unsuitability for use of the said motorcar is contrary to the defendants’ representations.

Also, it is alleged by the plaintiff that the repeated repairs and replacements during the warranty period had failed to ensure that the said motorcar was repaired or defects corrected in any lasting way and the said motorcar could neither function as required nor as represented. The plaintiff therefore seeks an award of damages against the defendants for intentional, wilful, and/or negligent failure to disclose that the said motorcar was inherently defective and was in a dangerous condition.

The reliefs sought by the plaintiff (per paragraph 63 of the statement of claim) are as follows:- “ i. General Damages for loss of usage of the said car, the diminished value of the said Mercedes Benz, costs of replacing the said car with another car for daily travel/usage, pain and suffering, stress, trouble and inconvenience; ii. Punitive, Aggravated and Exemplary Damages for a sum of RM2,000,000.00 and/or an amount that this Honourable Court deems appropriate; iii. A Declaration that the Defendants are jointly and severally liable for any and all damages awarded; iv. Restitution and/or a refund off all monies paid to or received by the Defendants from the sale of the said Mercedes Benz to the Plaintiff on the basis that the said Mercedes Benz was return to D1on 13.6.2016 and unjust enrichment; v. Rescission of the Hire Purchase Agreement dated 26.9.2014 between D3and the Plaintiff; vi. Alternative to prayer 63 (iv) above, the Defendants to provide a latest brand new trouble free Mercedes Benz Model E250 car of same model of current year; vii. Pre and post judgment interest pursuant Rules of Court 2012; viii. Costs; ix. Such further and other relief as this Honourable Court may deem just and appropriate in all the circumstances;”

I turn now to D1’s position. Page 8 of 42 First defendant’s position

D1 is one of the authorised dealer of the second defendant (“D2”). On or around 7 August 2014, the plaintiff purchased the said motorcar from D1 and agreed to be governed by inter alia the following documents: a. Offer to Purchase Form dated 7 August 2014 (“OTP Form”); and b. D2’s Warranty Terms & Conditions (“Warranty T & C”).

According to D1, the Warranty T & C records all warranties that were given to the plaintiff and this is expressly provided for in the OTP Form. In accordance with the Warranty T & C, all complaints made by the plaintiff were investigated and repaired by D1. Further, when sending the said motorcar for repairs, the plaintiff expressly agreed to be bound by inter alia the Pre-Work in Progress (WIP) form which inter alia provides that: a. Any claim for any damage caused to the said motorcar is limited to the rectification free of cost; b. No claim for incident and/or consequential losses is admissible; and Page 9 of 42 c. Storage charge is payable if the plaintiff does not collect the said motorcar within 3 days of the date of completion of its repairs.

According to D1, notwithstanding these terms and conditions, the plaintiff still failed, refused and/or neglected to collect the said motorcar from D1’s premises. Hence, D1’s position in this suit is inter alia as follows: a. The plaintiff's assertions of defects are without merits, as the complaints had already been dealt with in accordance with inter alia the Warranty T & C; b. In any event, the plaintiff agreed to inter alia limit any claim to the rectification free of cost and to not hold D1 liable for any loss, damage or deterioration to the said motorcar during its storage with D1; and c. The plaintiff’s failure to collect the said motorcar is a breach of contract and amounts to a trespass.

As such, D1 has counterclaimed for the following reliefs:- “ A. Storage Charge from 14.05.2016 until 30.12.2016 amounting to RM12,243.00; B. Storage Charge at the rate of RM50.00 per day from 31.12.2016 until the Plaintiff or his authorised representative has removed his Car from the 1st Defendant’s premises; Page 10 of 42 C. Loss and damages suffered by D1as a result of the Plaintiff’s trespass; D. Mandatory injunction to compel the Plaintiff or his authorised representative to remove his Car from the 1st Defendant’s premises within 7 days from the judgment date; E. Declaration that D1is at liberty to dispose of the Plaintiff’s Car in anyway D1deems fit and the Plaintiff shall indemnify D1for any costs incurred as a result of such removal; F. Interest at the rate of 5% per annum on all sums due and payable by the Plaintiff to D1from 30.12.2016 until full and final settlement; G. Costs; and H. Any further and other reliefs this Honourable Court deems fit and proper to grant.” Second defendant’s position

At all material times, D2 assembled certain models of Mercedes-Benz motor vehicles and distributes those vehicles to its authorized dealers such as D1 in Malaysia. D1 is an authorized dealer of D2 and is authorized by D2 to sell the Mercedes-Benz motor vehicles to end customers such as the plaintiff in Malaysia, but such authorization is not for and on behalf of D2.

It is D2’s position that the plaintiff is not entitled to his claim, particularly for a new replacement motorcar and/or a refund of all monies paid to the defendants to date, for the following reasons:-

All vehicles distributed by D2 are in compliance with the Sale of Goods Act 1957 and the Consumer Protection Act 1999, and are of merchantable quality, fit for the purposes for which they are supplied and free from defects;

At all material times when the said motorcar was delivered to D1 for its sale to the end customer, the said motorcar was of merchantable quality, fit for the purposes for which it is supplied and free from defects;

A vehicle delivery certificate was issued by D1 showing that the said motorcar was of merchantable quality and that the necessary jobs and/or checking were completed before the said motorcar was delivered. The vehicle delivery certificate was also acknowledged by the plaintiff himself confirming the same;

A warranty for defective material or workmanship on the terms and conditions as set out in a standard form Passenger Car Introduction Booklet would be attached to such vehicle sold for a period of 4 years from the date of registration of the said motorcar (“Warranty”);

D2’s liability is as set out in the Warranty that is attached to the said motorcar and is limited to the repair or exchange of parts as D2 in its sole discretion deems appropriate and shall not be liable for any consequential losses or damage arising through any defects.

All the complaints in respect of the said motorcar have been promptly attended to where necessary under and in accordance with the Warranty. The said motorcar had been attended to and duly repaired where necessary under and in accordance with the Warranty, and has been ready for collection since 11 May 2016 and that it is the plaintiff who has refused and/or failed to collect the said motorcar.

D2 has not been involved with any handling, service or repair of the said motorcar since it was delivered to D1 prior to D1’s sale of the said motorcar to the plaintiff.

The said motorcar is not unmerchantable and/or unsuitable for use as alleged by the plaintiff.

A courtesy motor vehicle was provided to the plaintiff to keep the plaintiff on the road at all times during the time when the said motorcar was checked in under the Warranty with D1 until the said motorcar is complete and ready for the plaintiff’s collection.

I turn now to the third defendant’s position. Third defendant’s position

The third defendant (“D3”) is a company incorporated in Malaysia and having its principal business of activity in hire purchase financing, dealer floor-stock financing and marketing of branded motor insurance products. D3 also provides financial services to the customers of D2 as well as its authorized dealers. The sole connection that D3 has with the matters averred to in this action is that it provided a hire purchase loan to the plaintiff with regards to his purchase of the said motorcar.

In this regard, D3 contends that there is no cause of action against D3 and all allegations by the plaintiff as against D3 are without basis. Therefore, the plaintiff’s claim against D3 is an abuse of the process and is unsustainable. The arguments

As I said at the outset, the Court had given PTCM directions and the parties were under a duty to comply with the said directions by 19 April 2017.

However, the plaintiff’s previous solicitors, Messrs. Ram failed to comply with the PTCM direction which resulted in the plaintiff’s suit being struck out and judgment in default entered in favour of D1’s counter claim. The Writ Summons and Statement of Claim dated 25 November 2016 was struck out in pursuant to Order 34 Rule 2(3) and Order 34 Rule 6(1), Rules of Court 2012 (“ROC”) and they read as:- “Order 34 Rule 2(3):- “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”. Order 34 Rule 6(1): “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”.

But, Order 34 Rule 2(4) and Rule 6(2) ROC 2012 provides a remedy wherein it states:- “Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just”

And Order 34 Rule 6(2) provides that:- “An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court, on the application of that party, on such terms as it thinks just”

It was therefore contended for the plaintiff that based on Order 34 Rule 2(4) and Rule 6(2) ROC, this Court is clothed with jurisdiction to set aside the judgment dated 19 April 2017 and reinstate the plaintiff’s action.

It is conceded by counsel for the plaintiff that the suit was dismissed based on non-compliance with the PTCM directions and due to non-attendance of the plaintiff’s previous solicitor on the last case management date on 19 April 2016.

The plaintiff’s present solicitors referred to Exhibit TEC 8 pg 160 of D1’s Affidavit and Exhibits D2-5 and D3-6 of D2 & D3’s Affidavits and contended that the plaintiff’s previous solicitor, Mr. Sundramoorthy has been adjudicated a bankrupt and that is the reason for his failure to comply with the PTCM directions and failure to attend court on the case management date on 19 April 2014. According to the plaintiff, when a solicitor has been served with an adjudicating and receiving order, the said solicitor is no longer fit or qualified to practice and therefore is not an advocate and solicitor of the High Court of Malaya.

It is alleged that the plaintiff’s previous solicitor had through his Whatsapp message dated 18 May 2017, (Exhibit A-2 Affidavit in Support – Enclosure 26) informed the plaintiff that he had to cease practice immediately and this fact was only informed to the court after the judgment was entered on 19 April 2017 through letter dated 11 May 2017.

The plaintiff maintains that he did not intentionally disobey the PTCM directions or failed to attend court. Further, the plaintiff had been constantly following up on the status of the case as may be seen from Exhibits A-5, of the Plaintiff’s Affidavits in Reply. The plaintiff alleges that the actions of the previous solicitors had clearly fallen below the standard of care required of a solicitor to protect his client’s interest. The plaintiff was not aware of non-attendance of the previous solicitor on 13 April 2017 and again on 19 April 2017.

According to the plaintiff, the Affidavits of the defendants also reveal that they had problems communicating with the plaintiff’s previous solicitor and they had the same problem of contacting him on the final case management date (see: D1’s Affidavit para 24 pg 12).

Further, the plaintiff relied on Exhibits A-1, A-2 & A-5 of the Plaintiffs Affidavit in Support (Enclosure 26) and the Plaintiff’s Affidavits in reply (Enclosure 31) to prove that:- Page 17 of 42 a) He was aware of the trial dates on 24, 25 and 27 May 2017; b) The plaintiff was also aware of the case management date on 19 April 2017; c) The plaintiff was informed that the bundle of documents was filed in court and therefore on 27 January 2017 the plaintiff requested for a copy of the bundle from his previous solicitors. Refer Exhibit A-5, Plaintiff’s Affidavits in Reply (see: Enclosure 31) d) The plaintiff was not informed of the non-attendance of his previous solicitors on 19 April 2017 when he informed the solicitor on 20 April 2017 that his payment has been banked in; e) On 18 May 2017, the plaintiff’s previous solicitors had informed that he had to cease practice immediately and therefore had requested for adjournment of trial date from the court, (see: Exhibit A-2 Affidavit in Support; f) The previous solicitor did not inform him that he had been adjudicated a bankrupt; g) The plaintiff was not aware of his case being struck out by the court and that judgment has been entered favouring D1; Page 18 of 42 h) The plaintiff was only aware of the status of his case upon consulting the current solicitor on 13 June 2017; and i) Immediately and upon obtaining a copy of the judgment from D2 and D3’s solicitor, the plaintiff proceeded to file this application on 29 June 2017.

Based on the above explanations, it was submitted for the plaintiff that this is a deserving case for this Court to exercise its discretion conferred under the Court’s inherent jurisdiction and under Order 34 Rule 2(3) and Rule 6(2) ROC to allow the plaintiff’s application herein and for the matter to be set down for full trial. Counsel for the plaintiff urged that the plaintiff should not be denied access to justice due to the clear negligence committed by his previous solicitor. The crux of the plaintiff’s case for reinstatement is that he should not be penalised for his solicitor’s negligence. The question is first, whether the plaintiff’s solicitor was negligent and if so, whether that of itself is sufficient for the Court to exercise its discretion to reinstate the suit and set aside the judgment in default. Solicitor’s mistake/negligence

On the facts, it is without doubt that the Order to strike out the suit and entry of judgment in default (vis-a-vis D1’s counterclaim) was caused by the plaintiff’s own solicitors’ negligence.

There is no evidence whatsoever to show that the plaintiff’s previous solicitor had done all that was necessary with regards to compliance with PTCM directions.

In Chua Cheng Wan v Chua Thiam Siew & 7 Ors [1999] AMEJ 0005, Abdul Wahab Patail J held that a party cannot rely on its own solicitors’ mistake to support its application to reinstate a suit which was struck out. He held:- “… even if the predicament of the plaintiff arises from a mistake of the counsel, it would not have been reason for the exercise of the discretion to reinstate even if it exists. A lawyer’s mistake is not an excuse.”

In How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712, Mohd Nazlan Mohd Ghazali JC (as he then was) warned against the court being too accommodative to a party whose non-compliance caused delay and waited costs. He also explained the rationale for the rigid enforcement of the rule that a solicitor’s mistake is not an excuse for non-compliance with the Court’s directions. In that case, he said:- “… even if it was argued that the predicament of the plaintiff arises from a mistake of his counsel, this is still not a sufficient excuse … it would become a charter for the incompetent if the court had to conduct almost impossible investigations in apportioning blame between the solicitor on one hand and his client on another.”

Hence, applying the approach that was taken in the cases referred to above, it appears that the plaintiff cannot be allowed to shield behind his previous solicitor’s negligence for inter alia non-compliance with the PTCM directions. The plaintiff is bound by his solicitors’ acts and omissions.

As for the plaintiff’s suggestion that a dismissal of Enclosure 25 would constitute a denial of his right to be heard on merits, it is relevant to refer to the judgment of Selventhiranathan J (as he then was) in Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd [2002] 7 MLJ 538 (High Court) where he said:- “The court was not unaware that such an order would effectively shut out the defendant from ventilating its defence and counterclaim prior to judgment being entered in favour of the plaintiff and that such a step would in the normal course be considered as being against that rule of natural justice which enjoins that no final curial decision should be made in favour of one party without the other party being given an opportunity to be heard. … that rule of natural justice could not apply here as this was not a situation of the defendant being prevented from presenting its case. On the contrary, this was an instance where the defendant elected not to avail itself of the benefit of that rule by consciously electing to disregard the directions of the court given pursuant to the provisions of O 34 ...”

In any event, following Chua Cheng Wan (per Abdul Wahab Patail J) the merits of the plaintiff’s case is immaterial to the disposal of Enclosure 25. In that case the learned Judge held:- “The argument that a plaintiff’s claim has merit is of peripheral interest in an application for reinstatement, which is concerned more with the question why the action was struck off in the first place.”

Here, the action was struck off due to the plaintiff’s blatant disregard of the PTCM directions, which must be taken seriously by all parties at all times. It is worth repeating that at the first case management on 21 December 2016, the plaintiff, D1, D2 and D3 by their solicitors were present at this Honourable Court wherein it was directed that, inter alia:- a) all PTCM directions must be fully complied by 19 April 2017, failing which the suit or counterclaim (if any) will be struck out or judgment entered accordingly, depending on who is to blame for non-compliance; b) parties are to attend case management on 26 January 2017 and 19 April 2017 to update the Court on the status of the matter; and c) trial was fixed on 24 May 2017, 25 May 2017 and 16 May 2017.

On 26 January 2017, Mr. Sundramoorthy attended court for the case management. The case was then fixed for case management on 20 March 2017. On 20 March 2017, Mr. Sundramoorthy did not attend and had on the morning of 20 March 2017 requested that the solicitors for D2 and D3 to mention on his behalf. The solicitors for D2 and D3 had proceeded to do so as requested. The Court had on this occasion fixed the matter for next case management on 13 April 2017.

On 13 April 2017, Mr. Sundramoorthy once again did not attend to the case management and had again on the morning of 13 April 2017 requested D1’s solicitors, Messrs. Gan Partnership, to mention on his behalf. This time around, D1’s solicitors only undertook to this Court to inform Messrs. Ram of the outcome of the case management, which D1’s solicitors did. On this date, the Court reminded parties that all the pre-trial directions and trial documents are to be complied with by 19 April 2017 as it had earlier directed. This reminder was stressed to Messrs. Ram by D1’s solicitors via their letter of 13 April 2017 which reads as:- “….. We refer to the case management held before Yang Arif Tuan S. Nantha Balan on 13 April 2017 and the tele-conversation between your Mr Ramasundramoorthy a/l Permalu and our Lee Xin Div on 13 April 2017.

We undertook to inform you in respect of the outcome of the case management.

The Learned Judge directed as follows:

3.1 Unless all “pre-trial case management directions” are duly complied with by 19 April 2017 (Wednesday) at 8.30 am, this suit will be struck out or judgment will be entered accordingly.

3.2 The next case management to be on 19 April 2017 (Wednesday) at 8.30 am.”

However, neither Mr. Sundramoorthy nor the plaintiff was present at the case management on 19 April 2017. Furthermore, the PTCM directions were not complied with by the plaintiff and the suit against all the defendants was accordingly struck out and a judgment in terms of D1’s counterclaim against the plaintiff was entered pursuant to Order 34 Rule 2(3) and Rule 6(1) ROC.

On 8 May 2017, D1’s solicitors wrote to Messrs Ram and the letter reads as:- “2. We enclose herewith the following documents by way of service on you as solicitors for the Plaintiff:

2.1 Sealed Judgment dated 19 April 2017; and

2.2 Sealed Allocator dated 19 April 2017.

Your client must:

3.1 comply with the terms of the Judgment; and

3.2 forward to us RM7,500.00 being the costs awarded by the Court to our client and RM200.00 being the allocator fees.

Unless the terms of the Judgment are complied with, and our costs and the allocator fees are paid to us, within 7 days hereof, our client may be constrained to inter alia:

4.1 take enforcement proceedings against your client; and 4.2 dispose of your client’s vehicle in any way our client deems fit and your client shall indemnify our client for any costs incurred as a result of such removal without further reference to you.”

On 11 May 2017, Messrs. Ram wrote to the Court with a copy the solicitors for D2 and D3 as well as solicitors for D1, requesting that the trial dates of this action be rescheduled given that Mr. Sundramoorthy had to ‘cease practice’ due to an adjudicating and receiving order against the said solicitor. The letter reads as:- “Date: 11.5.2017 ….. PER: MAHKAMAH TINGGI KUALA LUMPUR KES NO WA- 22NCVC-750-11/2016 Kami merujuk kepada perkara diatas yang ditetapkan untuk bicara kes pada 25.2.2017. Kami memohon agar bicara kes ini ditunda ke tarikh lain memandangkan anak guam terpaksa mengambil peguam bagi menggantikan saya. Kami terpaksa ‘cease practice’ secara serta merta akibat satu Perintah AORO ke atas kami pada bulan April 2017 yang dilakukan tanpa pengetahuan kami. Kami dalam proses mengenepikan Perintah tersebut. Memandangkan keadaan diluar jangkaan ini, kami memohon agar faktor ini diambil kira untuk membenarkan permohonan ini dan peguamcara baru akan mengambil alih kes ini dalam masa terdekat.”

On 20 June 2017, more than 2 months after the judgment dated 19 April 2017, D2’s and D3’s solicitors received a letter from the plaintiff’s current solicitors, Messrs. Louis, Kali & Co enclosing a copy of the Notice of Change of Solicitor dated 19 June 2017, before being served with the plaintiff’s application for a reinstatement of the action on 28 June 2017.

Essentially, for a reinstatement to be allowed, there are three principles to be borne in mind:- a) Reinstatement is not a matter as of right. b) Reinstatement involves an exercise of the court’s discretion. c) There must be sufficient material before the court to enable it to find the exercise of its discretion. see:- Hewlett Packard Sales (M) Sdn Bhv v Active Team Mould Engineering Sdn Bhd & Ors [2003] 1 MLJ 247 (CA) at page 250 para C – D. Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 130 (HC) at page 135 para 9.

In exercising its discretion, the court will consider various factors such as:- a) In instances where one party had failed to appear, whether there are sufficient and reasonable reasons for the absence. b) Whether there is a serious risk of prejudice to the other party. Page 26 of 42 c) Whether there was an issue of delay for the reinstatement. d) Whether the conduct of the party who is applying for reinstatement was intentional and contumelious. see:- Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) &Anor [2010] 4 MLJ 17 (CA) at page 23 para 17 – 19; Yogananthy a/p AS Thambaiya v Idris bin Osman [2010] 5 MLJ 676 (CA) at page 681, para 12; Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 135 (HC) at page 135 para 9; Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan [1983] 1 MLJ 351 (ACJ) at page 352 para B, right column.

The plaintiff argued that first, the action was struck out because of Mr. Sundramoorthy’s non-compliance of the PTCM directions and non-attendance of the case management, which the plaintiff did not have knowledge of, given that at all material times, he was under the impression that Mr. Sundramoorthy had complied with all the PTCM directions and attended the case management.

Therefore, the plaintiff states that he should not be penalized and shut out from pursing his case against the defendants (see: para 3, 4, 16 - 18 and 26 of the plaintiff’s Affidavit in Support (Enclosure 26) and paragraph 5 of the plaintiff’s Affidavit in Reply (Enclosure 31). In particular, it is relevant to quote the following paragraphs in the plaintiff’s affidavit in support of the present application which summarises the plaintiff’s predicament:- “26. Saya sesungguhnya menyatakan bahawa berdasarkan keterangan di atas ia adalah jelas bahawa ketidakhadiran peguam terdahulu tiada dalam pengetahuan saya dan kecuaian peguamcara saya yang terdahulu tidak sepatutnya digunakan bagi menghukum saya dengan membatalkan tindakan saya yang mempunyai satu kes yang bermerit dan patut ditetapkan bagi bicara penuh.

Saya sesungguhnya juga menyatakan bahawa saya telah mempercayai peguamcara saya terdahulu dan telah mempercayai penerangan beliau bahawa Mahkamah akan menghantar surat kepada saya untuk memaklumkan berkenaan dengan tarikh yang baru dan hanya telah mengetahui hal yang sebenarnya apabila berjumpa dengan peguamcara yang baru pada 13.6.2017.

Saya menegaskan bahawa keadaan ini yang telah menyebabkan kes saya telah dibatalkan oleh Mahkamah ini bukan disengajakan atau dilakukan oleh saya. Saya dengan ini memohon maaf bagi segala kesulitan kepada Mahkamah ini memandangkan saya telah percaya kes berada ditangan peguam yang bertindak bagi kepentingan diri saya. Saya sememangnya merupakan mangsa bagi tindakan peguam saya terdahulu yang tidak professional.

Saya juga menyatakan bahawa jika permohonan ini dibenarkan oleh Mahkamah yang Mulia, peguamcara saya akan memfailkan kesemua kertas kausa yang perlu difailkan mengikut arahan Mahkamah ini. Saya amat berharap supaya diberikan satu lagi peluang untuk meneruskan dengan tindakan ini supaya kes didengar atas merit memandangkan dari bukti-bukti yang diekshibitkan ianya jelas bahawa saya tiada langsung mempunyai pengetahuan mengenai status kes saya kerana tidak dimaklum langsung oleh peguam saya terdahulu.”

It was submitted for the defendants that the plaintiff’s lack of knowledge as to Mr. Sundramoorthy’s situation or whether he had complied with PTCM directions, is not a sufficient or valid reason for the Court to exercise its discretion to allow for the reinstatement. First, given that Mr. Sundramoorthy was appointed to represent the plaintiff, the conduct of Mr. Sundramoorthy on the matter should bind the plaintiff, regardless of whether the plaintiff had full knowledge of how the plaintiff’s action was being conducted by Mr. Sundramoorthy. Secondly, the negligence (as alleged by the plaintiff in para 26 of the Affidavit in Support) of Mr. Sundramoorthy in failing to comply with the PTCM directions and to attend the case management is also not a sufficient reason for reinstatement. In Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610 (CA) at page 631 paragraph 21 it was held by the Court of Appeal that the conduct of the solicitor binds the litigant whom the solicitor is representing and solicitors who fail to act in the best interest of the client, ‘do so at their own peril and to the detriment of their client’.

Furthermore, the plaintiff had stated in his Affidavit in Support (para 17) and his Affidavit in Reply (para 14) that the plaintiff encountered difficulties getting updates from Mr. Sundramoorthy. Again, this should not be a reason for reinstatement.

The plaintiff as the litigant ought to have taken steps to ensure that Messrs. Ram was acting in the best interest of the plaintiff. Clearly, this also goes to show that the plaintiff had a lack of interest in ensuring that the action was conducted properly by Mr. Sundramoorthy.

In so far as D2 and D3 are concerned, it was submitted that will be unfair and prejudicial to D2 and D3 if the reinstatement is allowed, this is because:- a) D2 and D3 are not privy to the issues of communications between the plaintiff and Mr. Sundramoorthy and in any event it should not be used to penalize D2 and D3; b) D2 and D3 had at all times complied with all the PTCM directions and attended to all the case managements fixed by this Honourable Court; and c) The defendants had taken further steps to inform Mr. Sundramoorthy of the outcome of the case managements. The solicitors for D1 had informed Mr. Sundramoorthy of the need for compliance of PTCM directions and of the case management which the plaintiff and Mr. Sundramoorty were clearly aware of.

In terms of timelines, it is to be noted that the suit was filed on 25 November 2016. The action was struck out on 19 April 2017 and on 29 June 2017 the plaintiff filed Enclosure 25. The defendants maintain that considerable judicial time and resources as well as the parties’ time and resources had been wasted by reason of the dilatoriness of the plaintiff’s previous solicitors.

According to counsel for the defendants, the Court should keep at the forefront of its mind the need and importance of ensuring strict compliance of pre-trial case managements directions given to litigants when exercising the discretion for reinstatement. Analysis and conclusion

From the narrative of events that transpired, it is clear that before 19 April 2017, the matter had come up for case management on 13 April

On 13 April 2017, Mr. Sundramoorthy did not turn up and the solicitors for D1 undertook to inform him of the outcome.

The explanation by counsel for the plaintiff for Mr. Sundramoorthy’s absence in Court on 19 April 2017 and his failure to comply with PTCM directions, is quite untenable. Indeed, it can be seen from the narrative of the plaintiff’s summary of case that the background facts took place in or around August 2015. The suit was filed in 25 November 2016 and PTCM directions were given on 21 December 2016.

Thus, it was known all round that if PTCM directions were not complied with, then there will be adverse consequences. At any rate, parties were fully aware that based on the PTCM directions, the suit will be struck out or judgment entered depending on who is to blame for the non-compliance. Looking at the events that have transpired, I have no hesitation in concluding that in the present situation, it is the plaintiff (through his previous solicitors), who is totally to be blamed for the dilatoriness in getting their case for trial.

In this regard, it is also necessary to refer to the case of How Hock Sing v Lee Say Peng & Ors [2015] 9 CLJ 368 HC, where Nazlan Ghazali JC (as he then was) had at paragraphs [16] to [22] comprehensively examined and discussed the relevant principles on this aspect of the adjectival law on case management directions, which I gratefully adopt:- “The Applicable Law & Findings By This Court Order 34 & "Unless Order" [16] The rules on pre-trial case management are contained in O. 34 of RC 2012. They came into effect on 1 August 2012 and superseded the previous O. 34 of the Rules of High Court 1980 ("RHC 1980") which applied to actions begun by writ. The amendments brought into effect significant changes to the procedures to be adhered to prior to the trial of an action. The term "case management" is described by Brown J in George Westen Ltd v. Domtar Inc [2012] 354 DLR (4th) 121 as follows: Page 32 of 42 refers to a broad range of powers exercised by judges in the course of managing a civil proceeding. Through case management, a judge intervenes in the proceedings prior to trial in order to give directions for the preparation of the case for trial, for the actual conduct of the trial, or to attempt to resolve the proceedings. Case management requires the application of a range of management tools in order to secure the just, most expeditious, least expensive and proportionate determination of proceedings on its merits. [17] However, the pro-active role expected of the courts in stipulating time-frames and giving directions for the purpose of the trial, supported by the authority to impose sanctions for failure to comply with such directions is not newly introduced by O. 34 of the RC 2012. It was already embodied in O. 34 of RHC 1980. In the decision of the Federal Court in Tan GeokLan v. La Kuan [2004] 2 CLJ 301; [2004] 3 MLJ 465, Mohd Noor Ahmad FCJ stated the following: The learned trial judge should have also considered the need to expedite the disposal of the case with a view of saving costs, reducing delays and minimizing the burden of the court. Our civil procedure had been revamped from time to time for the purpose. One example is the case management procedure (Order 34 of the Rules of the High Court 1980 ("the RHC")). The significance of this procedure is that it marks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. Now, under the procedure the court controls the progress of cases by the exercise of its powers given to it to enable it, and not the parties, to dictate the progress of cases at the pre-trial stage, ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused. [18] Nevertheless, the language in the present O. 34 unmistakably provides for a greater emphasis in the directory and pro-active nature of the judicial role and extent of involvement now envisaged in pre-trial case management. The relevant parts of O. 34 r. 2(1) and (2) of RC 2012 read as follows: Pre-trial case management when directed by the Court (Order 34 r 2) 2(1) without prejudice to rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial case management relating to the matters arising in the action or proceedings.

at a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including... [19] It surely therefore stands to reason that a necessary pre-requisite for a workable and efficient environment where the courts are under the duty "to secure the just, expeditious and economical disposal" of actions is that there ought to be a robust case management system which does not easily tolerate lax enforcement of case management orders. This is acknowledged by the new provision in O. 34 r. 2(3) which is more specific in stating the consequence of not complying with such orders if compared against the previous O. 34 r. 7 of RHC 1980. The latter reads as follows:

Failure to comply with Judge's direction If any party to an action fails to comply with any direction given by the Judge at any pre-trial conference, such order may be made against the defaulting party by the Judge as meets the ends of justice. [20] The case of Sunway PMI-Pile Construction SdnBhd v. Pembenaan Chan & Chua SdnBhd [2003] 5 CLJ 63; [2002] 7 MLJ 538 held that authority to make such orders must include the power to order that the defence and counterclaim be dismissed and judgment be entered for the plaintiff. The present O. 34 r. 2(3) and (4) of RC 2012 on the other hand more categorically provides the following:

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 to make such order as it thinks fit.

Any judgment or order made under rule 2 (3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. [emphasis added] Page 34 of 42

Ultimately, the question here is whether the plaintiff’s application discloses sufficient grounds for the exercise of the Court’s discretion to reinstate the suit and set-aside the judgment in default date 19 April 2017. It will be recalled that the PTCM directions were not at all complied with by the plaintiff. In fact, there was absolutely no evidence that the plaintiff’s solicitors had taken any steps towards compliance with PTCM directions. Counsel for the plaintiff now says that the plaintiff should not be prejudiced because of the fault, negligence or bankrupt status of the previous solicitor, Mr. Sundramoorthy.

In this regard, I observe that other than stating that adjudicating and receiving orders were made against Mr. Sundramoorthy, there is no credible evidence that adjudicating and receiving orders were in fact made against Mr. Sundramoorthy prior to 19 April 2017. At any rate, even if adjudicating and receiving orders were made against Mr. Sundramoorthy, that does not qualify as an excuse for non-compliance with PTCM directions. Thus, assuming it is factually true that Mr. Sundramoorthy had been adjudicated a bankrupt, prior to 19 April 2017, then he ought to have been transparent with his client and arrange for the file to be transferred to another solicitor who will be able to ensure that the PTCM directions are complied with.

In this regard, I should add that any last minute perfunctory attempt at complying with PTCM directions is an exercise in futility as there would have to be sufficient time for the input of the other solicitors to be taken and for amendments and adjustments to be made to the issues to be tried, agreed facts and bundle of documents. All of these will obviously take time.

Here, the Court had issued PTCM directions on 21 December 2016 and parties were directed to ensure that there was full compliance with PTCM directions, failing which the suit or counterclaim will be struck out or judgment entered as the case may be, depending on who is to blame for non-compliance. There was no ambiguity about the PTCM directions and the consequences that will follow in the event of non-compliance. Thus, even if Mr. Sundramoorthy had turned up on 19 April 2017, the outcome would have been no different as there was absolutely no compliance with the PTCM directions. It is clear that Mr. Sundramoorthy, as the solicitor for the plaintiff at that time, had not taken the Court’s PTCM directions seriously.

Indeed, even the letter dated 13 April 2017, from Messrs. Gan Partnership to Messrs. Ram appears to have had no effect as it did not jolt Mr. Sundramoorthy into any form of action in terms of urgently complying with PTCM directions.

Also, I have not had the benefit of Mr. Sundramoorthy’s explanation via an affidavit for purposes of the present explanation. Hence, everything in relation to what he did or did not do or even as regard his so-called bankruptcy status remains in the realm of speculation and surmise. It is important to note that as a result of non-compliance with PTCM directions and Mr. Sundramoorthy’s non-attendance on 19 April 2017, the suit was struck out and judgment entered in respect of D1’s counterclaim and consequently the trial dates on 24, 25 and 26 May 2017 were vacated. Counsel for the plaintiff submitted that there is no prejudice and that the case can be fixed for trial the soonest possible. That is easier said than done. Counsel’s submissions ignores the fact that the Court does not have an unlimited set of dates to fill up and that trial dates are fixed well in advance so that the Court’s diary is properly and efficiently utilised and managed. The suggestion that new trial dates can be fixed means that we are to start at “ground zero” and is patently a suggestion that does not sit well with the current litigation landscape and the strict adjectival rules on case management.

It is critical to emphasise that it was neither the Court nor the opposite parties which prevented the plaintiff from having his day in Court. In this case, the denial of access to justice was “self-induced” by the acts or omissions of the plaintiff’s previous solicitor. At times a party may have to pay the ultimate price for the acts or omission or mistake of their solicitor.

In this regard, one may draw comparisons with Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors 2009] 4 MLJ 610 CA where the defendant’s solicitors and the defendants did not turn up on the trial date, because the solicitor who last attended court for case management (and who had since left the firm representing the defendants) had not entered the date in the firm’s diary. That was a case which was properly case managed and was ready for trial, in the sense that all pre-trial protocols had been complied with. It is just that due to a human “slip-up” the trial date was not entered in the diary and the solicitors for the defendants (and their client) did not turn up at the trial as they were unaware of the trial date. The court went ahead with the trial and entered judgment against the defendant. The defendant’s application to set aside the judgment was refused by the High Court and the appeal to the Court of Appeal was dismissed. In paragraph 24 of the judgment, the Court of Appeal highlighted the present judicial policy of strict adherence to hearing dates and the court’s minimum tolerance to adjournments to say nothing of the waste of judicial time and resources and the undermining of the efforts of the judiciary to eradicate the backlog of cases faced by the courts.

No doubt, that was a case which involved an application to set aside a judgment after a full trial, whereas here it is an application to set aside an order to strike out the suit and the entry of judgment in default in respect of D1’s counterclaim due to counsel’s absence in Court and the failure on the plaintiff’s part to ensure full compliance with PTCM directions.

It is trite that the plaintiff, as the protagonist of the suit had carriage of the suit and was primarily responsible for ensuring full compliance with PTCM directions. Indeed, the plaintiff’s present solicitors have not sought to shift the blame to anyone other than Mr. Sundramoorthy. Rightly so. They candidly accept that it was Mr. Sundramoorthy’s fault or negligence that resulted in non-compliance with PTCM directions. I do not understand how Mr. Sundramoorthy’s so-called bankruptcy status per se, can be relied upon as an excuse for the non-compliance with the PTCM directions which was issued approximately five (5) month before 19 April 2017 which gave Mr. Sundramoorthy ample time to comply with the PTCM directions. No doubt, it is said that the sins or mistake of the solicitor should not be visited upon the client. But this is not an inflexible rule. It is not even a rule to start off with. It is merely a reminder to the Court that in certain situations, it may be unfair or inequitable to blame the client for the acts or omissions of the solicitor.

In my view, the plaintiff, as the client also has a responsibility to ensure that the solicitor has done his part. No doubt there appears to have be some degree of Whats-App communication between the plaintiff and Mr. Sundramoorthy as to the status of the suit and preparation towards trial. But I do think that more could and should have been done by the plaintiff.

It is worth emphasising that the plaintiff’s case here is predicated on a complaint that the said motor-car was inherently defective and that it suffered from design flaws. This begs the question as to how the plaintiff intended to prove these allegations at trial. Would it be just his mere say-so or would he have proven this through an expert automobile engineer’s report? If it is the plaintiff’s mere say so then it would at-best be a lay-man’s uninformed opinion, which would be quite unhelpful in terms of proving his case. And if it is to be proven via an expert automobile engineer’s report after the expert had inspected, examined and test-run the said motorcar, then such a report should have been in existence prior to 19 April 2017. But in his affidavit, the plaintiff did not mention the existence of any such report which means that there is presently no such report in existence. And so, the question is, what steps did the plaintiff take in terms of providing the requisite documents towards preparation of the trial. Ultimately, it appears that the plaintiff had left everything to Mr. Sundramoorthy who in turn appears to have done nothing in so far as compliance with PTCM directions are concerned.

In the upshot, despite the impassioned plea and the trenchant submissions that were made on behalf of the plaintiff, I was not convinced that this was, as counsel for the plaintiff put it, “a deserving case”, for the exercise of the Court’s discretion to reinstate the suit and to set aside the judgment in default. Indeed, it would be both unfair and inequitable to excuse the plaintiff for non-compliance with PTCM directions and for the suit to be reinstated and the judgment in default on D1’s counterclaim to be set aside. I find that the plaintiff’s application is devoid of any merit. As such, for the reasons as discussed above, I dismissed the plaintiff’s application and ordered the plaintiff to pay costs of RM3,000.00 (subject to 4% allocator) to D1 and costs of RM2,000.00 (subject to 4% allocatur) to D2 and RM2,000.00 (subject to 4% allocator) to D3. Order accordingly. Date: 29 September 2017 S. Nantha Balan Judge High Court Kuala Lumpur Page 41 of 42 Counsel: Ms. Komathi Kaliappan together with Jessica Mary Louis (Messrs Louis, Kali & Co) for the plaintiffs. Mr. Lee Xin Div (Messrs Gan Partnership) for the first defendant. Ms. Tan Hwee Yee (Messrs Chooi & Co) for the second & third defendants. Statute: Order 34 Rule 2(3) Rules of Court 2012 Order 34 Rule 2(4) Rules of Court 2012 Order 34 Rule 6(1) Rules of Court 2012 Order 34 Rule 6(2) Rules of Court 2012 Cases: Chua Cheng Wan v Chua Thiam Siew & 7 Ors [1999] AMEJ 0005 HC How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712 HC Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd [2002] 7 MLJ 538 HC Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610 CA Hewlett Packard Sales (M) Sdn Bhd v Active Team Mould Engineering Sdn Bhd & Ors [2003] 1 MLJ 247 CA Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 130 HC Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) &Anor [2010] 4 MLJ 17 CA Page 42 of 42 Yogananthy a/p AS Thambaiya v Idris bin Osman [2010] 5 MLJ 676 CA Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 135 HC Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan [1983] 1 MLJ 351