Axiata Digital Capital Sdn Bhd v 1. ) Wonder 7 Global Sdn Bhd (WA-22NCC-489-09/2022)

LOI DER LIANG DEFENDANTS 1 GROUNDS OF JUDGMENT (APPLICATION TO DISCONTINUE) A. Introduction 1. The Plaintiff’s Counsel had on the second day of the trial applied to have the suit discontinued with liberty to file afresh. The application was made orally by Counsel for the Plaintiff.

Note that I have enquired as to the need that such a request must be undertaken through a notice of motion and an affidavit in reply. Counsel for the Defendants countenanced that the requirement to file an application with a supporting affidavit should be dispensed with in view of the status of this suit. As parties agreed to dispense with this requirement, I then proceeded to hear the said application.

This Court after considering the oral application by the Plaintiff’s Counsel and the issues put forth by the Defendants’ Counsel finds that leave to withdraw the claim should be allowed without liberty to file afresh and costs to be paid by the Plaintiff to each set of Defendants’ solicitors.

My reasons for making such orders are provided in the following paragraphs. B. Decision not allowing withdrawal with liberty to file afresh 5. It is important that this Court notes that this is a 2022 case. The chronology of this case’s history is important: -

Writ Summons and Statement of Claim filed on 14-9-2022.

(ii) An application for a Mareva Injunction was filed by the Plaintiff and such an order was obtained before Justice Wan Muhammad Amin bin Wan Yahya on 5-10-2022 against D1 to D7.

(iii) The Plaintiff then added the 8th to 15th Defendants as additional Defendants pursuant to the Court order date 7-7-2023.

(iv) Case Managements were held on 7-7-2023, 8-8-2023, 23-8- 2023, 30-8-2023, 21-9-2023, 6-11-2023, 12-12-2023, 16-1- 2024, 29-2-2024, 1-4-2024, 22-4-2024, 2-5-2024, 3-7-2-2024, 5- 11-2024, 9-1-2025, 21-1-2025, 21-3-2025 and 28-3-2025.

The trial of this claim was fixed to be heard for 13 days beginning from 7-4-2025 to 30-4-2025.

(vi) Directions were given for filing of bundle of pleadings, issues to be tried, agreed facts, bundle of documents and witness statements. Clear guidance and directions were given by this Court that these directions are to be complied with and that no additional documents will be entertained unless leave of Court is granted. Sufficient and reasonable explanation must be provided before any new documents are allowed to be filed so as to ensure that case management directions are complied with.

This Court further notes that the trial did proceed on 7-4-2025. The Plaintiff chose to produce one Kabilarasan Pramisavam as its first witness. He had been subjected to cross-examination by Counsel for the 8th to 15th Defendants and the 1st to 7th Defendants. Substantial issues were raised by the Defendant showing discrepancies and issues in the Plaintiff’s claim for fraud and other alleged misconduct against the Defendants.

On the 2nd day of trial, the Plaintiff tried to adduce additional documents by way of a Notice of Application in Enclosure 268. This application was not supported by an affidavit. The Plaintiff tried to adduce new evidence in its attempt to repair the weakness and issues raised by the Defendants and argued that these new documents should be allowed as the failure to adduce them earlier was caused by the alleged negligence or failure of the previous solicitors and that this will prejudice the Plaintiff’s claim.

After considering the said application and the objections raised by the Defendants, I did not allow the new evidence to be tendered at this late stage. The Plaintiff’s Counsel admits that the evidence was available to his client and should have added these evidences earlier but the fault for the delay in filing the documents lies with the previous solicitors and his client should not be blamed for the same.

I find that this excuse or proposition put forth by the Plaintiff’s Counsel is not acceptable to this Court. The scheme under which cases are managed by the Courts in modern proceedings requires active management of the case file not only by the Court but also by the solicitors and the clients themselves. The clients cannot simply brush aside the failure to comply with clear directions given by Court and attempt to put the same solely on the shoulders of the solicitors handling the case.

The client and the solicitors appearing in Court should ensure that the case management directions are complied with and all documents necessary to prove its case are before the Court at the day of trial. Unless there are exceptional or reasonable circumstances, delay by Counsel, solicitors or even by the client cannot be reasons why this Court should entertain indolent behavior left unchecked especially in a case that is lounging in the Court docket for more than three (3) years.

This suit has been hanging over the heads of the Defendants for about three (3) years and the Mareva Injunction has been hanging over the heads of the 1st to 7th Defendants for the same period of time. The Plaintiff having obtained such order and pursuing a claim of fraud against the said Defendants, among others, should have ensured that its case is water tight from the start and should have ensured that all directions and documents are filed in preparation for the trial of the claim. The records show that the Defendants are ready for trial and had complied with all directions given by this Court.

The excuse given by the Plaintiff on the second day of trial is not acceptable and shows that they were merely back peddling based on the attacks made by counsel for the 8th to 15th Defendants to the Plaintiff’s case during the cross-examination of the Plaintiff’s first witness and the documents produced by the Plaintiff at this stage. To allow the new documents to come in at this stage will be unfair to the Defendants and would be contrary to the intention of Order 34 rule 2 of the Rules of Court 2012.

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

I further refer to the decision of James Foong FCJ sitting at the Court of Appeal in Lembaga Kemajuan Tanah Persekutuan (Felda) v. Awang Soh bin Mamat [2009] 5 CLJ 1: - “[21] This excuse offered by the defendants seem to lay the blame on an employee engaged by the defendants' solicitors who failed to enter into the diary the hearing date. But an employer is responsible for the action of his employee and so is the conduct of the defendants' solicitors binding the defendants. Undoubtedly, such callous act of the defendants' solicitors speaks very poorly of them. And such excuse has for the last decade become a common feature for an applicant to convince the court into granting him a retrial. But from authorities (Mohd Yusof Mohamad v. Electrolux Home Centres Sdn Bhd [1999] 2 CLJ 866; Asia Commercial Finance (M) Bhd v. Pasadena Properties Development & Ors [1990] 2 CLJ 961; [1990] 1 CLJ (Rep) 606) such excuse has not been tolerated. This has in fact irked the court to remark in Lim Soh Wah & Anor v. Wong Sin Chong & Anor & Another Appeal [2001] 2 CLJ 344: One of the fundamental duties of a solicitor is to diarize his cases, keep his client informed of the diarized dates and prepare the case with his client. The present instance is a case where there was a failure to discharge this rather fundamental obligation. As a result the clients suffered. [22] We would further like to add that if the proprietors of the defendants' solicitors' firm were indifferent or had little interest in managing their firm properly by failing to devise a system to monitor and check on whether the duties or instructions given to its employee were carried out then this would amount to a deliberate act or defiance of a court order if such order were given to such employee and not complied with. This is no longer a mistake or an accident especially in this modern world of technology, where systems for monitoring compliance of duties imposed on staff and other members of an organisation are readily available in the market and have reached a sophisticated level. Poor management and the lack of care taken to record a hearing date can no longer be tolerated.”

Therefore, considering the state of affairs that as it stands on the second day of trial, especially the evidence before this Court, I find that to allow the Plaintiff to withdraw the claim with liberty to file afresh would be an afront to justice and unfair against the Defendants. I refer to the decision of Hasnah Mohammed Hashim J (as her lady then was) in Punj Lloyd Oil & Gas (Malaysia) v. Etiqa Insurance Berhad & Ors [2014] CLJU 1152. The decision of the High Court was affirmed by the Court of Appeal.

I also refer to the decision of Raja Azlan Shah J (as he then was) in Overseas Union Finance Ltd v. Lim Joo Chong [1971] CLJU 101 where he stated: - "However, it is at my discretion whether I should allow discontinuance. Guidelines to the discretion can be found in the Annual Practice 1963 at page 593 under the heading Before Judgment which reads: - "Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him." If the applicant is dominus litis, then leave to discontinue may be granted. If he is not then it is unlikely that I would grant him leave to discontinue. I do not think that the applicant is wholly dominus litis. He cannot dispose of the case as he thinks fit or allow it to be dismissed or let judgment go by default. The parties have come to a stage where the respondent chargor has gained an upper hand by an advantage in that he could find flaws in the applicant/chargee's allegation namely the wrong dates in the memorandum etc. and the fact that the reason for wanting a discontinuance is not a very strong one. The respondent/chargor is not to be deprived of these advantages which have made him a well-matched adversary in the arena. Having considered all the points, I am of the opinion that the application to discontinue should be dismissed."

I have also taken into consideration the factors laid down by the Court of Appeal in Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd & Ors [2017] CLJU 527 where Zabariah Mohd Yusof JCA (as she then was) held: - “23. Before granting the order for discontinuance of an action, the court must be satisfied that: i) if a defendant is dominus litis, the general rule is to refuse leave to discontinue (see Overseas Union Finance Ltd v. Lim Joo Chong [1971] CLJU 101; [1971] 1 LNS 101; [1971] 2 MLJ 124); ii) the case is not at an advanced stage; if so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and circumstances of the case (see Fox v. Star Newspaper Company [1898] 1 QB 636; iii) the plaintiff may have gained an interim interlocutory advantage between the date of issue of the writ and the point of time he seeks to discontinue (O'Neal v. Mann [2000] FCA 1680); iv) there is no miscarriage of justice occasioned by its refusal to permit the discontinuance; v) it will not prejudice the opponent to the application or take away from him any advantage to which he is fairly and reasonably entitled.

In summary, the discretion to allow the application to discontinue an action and the discretion to impose the terms accompanying it, depends very much on the facts and circumstances of each case.”

I also refer to the decision of the English Courts in Fox v. Star Newspaper Company [1898] 1 QB 636 where Chitty LJ held: - “The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms. I think it would be a great error to construe the rule by reference to the old meaning of the term "discontinuance" or any mere technical sense of words. The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter.”

Gopal Sri Ram JCA (as he then was) in Majlis Peguam Malaysia v. Raja Segaran a/l Krishnan [2002] 3 MLJ 155 had this to say on this issue: - “..a judge exercising his power under O. 21 r. 3 which permits discontinuance has a wide discretion. But it is not an unprincipled discretion. There are important guidelines that act as beacons, guiding him through those blurred areas of which we spoke a moment ago. One of these guidelines is that if a defendant is dominus litis, the general rule is to refuse leave to discontinue. See Overseas Union Finance Ltd v. Lim Joo Chong [1971] 2 MLJ 124. Another guideline is that where the case is at a very advanced stage, care should be taken not to permit discontinuance. And what constitutes an advanced stage depends on the facts and circumstances of each case as illustrated by the case of Fox v. Star Newspaper Company [1898] 1 QB 636. Another consideration; yet another guideline; which a judge ought to bear in mind is any interim or interlocutory advantage that the plaintiff may have gained between the date of issue of the writ and the point of time which he seeks to discontinue: O'Neal v. Mann [2000] FCA 1680. The upshot is that it all depends on the facts and circumstances of each case bearing in mind that one ought not to depart from the outer parameters established by the guidelines to which we have referred. Mr. Vijandran submits that the general rule is that the plaintiff is to be permitted to discontinue the action which he has initiated. In the context of O. 21 r. 3, we would, with much respect, dissent from that submission. We do so for the reasons we have advanced thus far when discussing the guidelines which any judge should respect when exercising his discretion.”

This Court also refers to United Asian Bank Bhd. v. Balakrishnan Thanakodi & Ors [1992] 1 CLJ 522, Hanhyo Sdn. Bhd. v. Marplan Sdn. Bhd. [1991] 3 CLJ 1783 and Punj Lloyd Oil & Gas (Malaysia) Sdn Bhd v. Etiqa Insurance Bhd [2016] 5 CLJ 549 (Court of Appeal affirming the High Court Order).

The factors that this Court should take into consideration could be summarized as follows: -

What stage are the proceedings at?

(ii) Who could be considered to be dominus litis?

(iii) Whether the Plaintiff obtained any interlocutory orders to its advantage and when the application to withdraw is filed?

(iv) Whether the Defendant would suffer any irreparable harm?

What orders should be made, in the interest of justice, even if a discontinuance should be allowed?

After considering the overall facts of this case, especially taking into account (i) the status of the proceedings, (ii) the importance of the subject matter of the claim and the gravity of the allegations made against the Defendants, (iii) the Mareva Injunction obtained by the Plaintiff, (iv) the prejudice that will be faced Defendants having to face the same allegations again after having to face this suit for a period of about three

years from its inception and the (iv) conduct of parties as well as the progression of this case, I find that the Defendants have shown that they are dominus litis at this stage and to allow the Plaintiff to withdraw this claim with liberty to file afresh would be unfair and prejudicial to the Defendants.

As stated earlier, one of the factors I must consider is the gravity of the allegations levelled against the Defendants and how the Mareva order would have affected the 1st to 7th Defendants for the last three (3) years. To allow the Plaintiff to discontinue the claim with liberty despite them obtaining the advantage of the Mareva Order would be unfair in the circumstances of this case.

The factors that I have considered are as follows: -

The advanced stage of this litigation. The matter has been pending in Court for more than three (3) years since 2022. Parties have complied with all case managements, prepared for trial and incurred substantial expenses in preparation for trial.

(ii) The Plaintiff has obtained a Mareva Injunction against the 1st to 7th Defendants – an advantage that should not be allowed to continue. It would be unfair to allow the Plaintiff a second bite of the cherry at this stage and obtain another similar order by way of a new suit.

(iii) The trial has started and the Defendant has shown that it has a good arguable defence through the cross-examination of the Plaintiff’s first witness.

(iv) That the Plaintiff has attempted to backtrack and repair its case through the filing of new documents that were rejected by the Court as these were filed at the eleventh hour and without any reasonable reasons.

That the Defendants are now dominus litis at this stage of this suit.

I find that to allow the Plaintiff the right to discontinue the suit with leave at this stage, to only allow them to improve their case at a later stage, will be unfair. The Plaintiff did obtain a Mareva injunction against the 1st to 7th Defendants. Having started this suit based on allegations of fraud against the Defendants and after obtaining a Mareva Injunction, the Plaintiff should have been ready for trial.

I also find that discontinuing the claim at the last hour with the hope that this Court will allow them a second bite of the proverbial cherry should not be entertain by this Court unless real cogent reasons are given. None was shown by Counsel for the Plaintiffs when the oral application was made.

To allow the sword of Damocles to hang over the heads of the Defendants despite taking all efforts to defend the current claim would be unfair and wrong. To quote Edgar Allen Poe, this will cause “the agony of suspense” to grow,” at length, intolerable” on the Defendants.

I note that the Plaintiff suggests that it should be allowed to withdraw with liberty due to the proposition that (i) it is a government-linked company, that (ii) the claim involved the use of public funded monies and

(iii) that this will cause the Defendants to be enriched at the expense of the Plaintiff as well as the Defendants alleged fraudulent activities.

I find that the said reasons put forth by the Plaintiff show that it should have been ready for trial. This case has been case managed at various times from its inception in 2022 to this trial heard in 2025. Counsel and solicitors present at these case management were warned that the claim must be heard on the dates on which the trial has been set down. Therefore, the Plaintiff should have been prepared with the case brought against the Defendants.

I refer to Tan Eng Hoe v. Liang Hooi Kiang [1960] CLJU 135 where Ong J held: - “As to discontinuance, it is again well settled that it lies entirely within the Judge's discretion whether or not to allow a plaintiff to discontinue with the right of bringing another action. The object of O. 26 r. 1 is that "after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into Court, shall not be able to escape by a side door and avoid the contest..... and it is for the Judge to say whether the action shall be discontinued or not and upon what terms" (per Chitty LJ in Fox v. Star Newspaper Co. [1898] 1 QB 636). With respect, I think Smith J rightly held that the reason for not allowing an adjournment was a sufficient reason for not allowing discontinuance which, if permitted, would have rendered the respondent liable to further harassment by the appellant with another action on the same subject matter.”

After all, the Plaintiff was willing and able to pursue the Mareva Injunction against the Defendants and provide the necessary undertakings for damages for any wrongful order. Therefore, in view of the gravity of the claims and the importance of the claim, Plaintiff should have ensured that it is ready for the trial of the claim. Having sat on the file for the past three (3) years, after obtaining the Mareva Injunction, the Plaintiff should have pursued the claim to its conclusion. I am therefore unable to allow the Plaintiff to withdraw the action with liberty to file afresh.

As indicated by the cases that I referred to earlier, the Plaintiff should not be forced to continue with the claim if it does not wish to do so. However, the Plaintiff cannot be allowed to escape the consequences of its action and its decision to stop this suit once it finds itself on the back foot with the hope that it could repair its case by filing afresh.

For the above reasons, I allow the Plaintiff the right to withdraw the claim against the Defendants but without liberty to file afresh. The Plaintiff is also directed to pay costs to each set of Defendants their costs of RM 50,000.00 for each set of solicitors subject to allocator. I make such orders considering the gravity of the claim, the importance of the subject matter, the advanced stage of the claim and the seniority of Counsel appearing before this Court. Dated 8 April 2025 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC5 F Counsel: Aswath Ramakrishnan, Irdina Syahirah, Jeslyn Ling and Nigy Shazman Tai Ahmad Deniel, Ruben & Co. Advocates & Solicitors Tan Han Sam & Yap Yee Hui for the 1st to 7th Defendants Law Chambers of Han & Zi Advocates & Solicitors Dato' Manpal Singh Sachdev, Gary Au & Brenda Ng Pui Ying for the 8th to 15th Defendants Manjit Singh Sachdev, Mohammad Radzi & Partners