Edwin Teoh Jit Siong v Plentifield Marketing Sdn.Bhd. (BA-12ANCvC-63-11/2024)

This is an appeal by the Appellant against the decision of the Session Court Judge (SCJ) on 18.10.2024, dismissing his application to reinstate the action in the Session Court.

The Appellant’s action was struck out on 22.7.2024 due to the Appellant’s previous counsel’s failure to attend the scheduled trial date or file his witness statements as directed by the Court.

The Appellant applied to reinstate pursuant to Order 35 Rule 2(1), Order 42 Rule 13 and Order 92 of the Rules of Court 2012 (ROC) on 19.8.2024.

The SCJ heard the application on its merits and dismissed it on 29.10.2024. Hence, this appeal before me.

Having heard both parties and read the submissions filed, I have dismissed the appeal with costs of RM5000.

Dissatisfied with the above decision, Appellant now appealed to the Court of Appeal and below are my reasons.

It was brought to my attention by the Respondent, as a preliminary objection, that the Appellant’s application before the SCJ does not seek or pray for the setting aside of the order given by the SCJ, though it was made pursuant to the relevant Orders of the ROC, which provide for the setting aside of a Court order.

The Appellant, however, sought to reinstate the entire action and subsequently, leave to file his witness statements.

It was submitted by the Respondent that Order 35 Rule 2 nor Order 42 Rule 13 of the ROC vest the Court with the powers to reinstate an action without first considering whether the prior order of striking out of the action ought to be set aside.

It is further submitted that the reliefs sought by the Appellant are consequential in nature and can only be granted once the striking out order has been correctly set aside. There exists no provision within the ROC that permits the granting of such consequential reliefs in the absence of a prior setting aside of the striking out order.

It is pertinent to note that the striking out order granted by the SCJ was due to the Appellant and his counsel (previous solicitor) failing to be present or attend the trial, and the Appellant’s failure to comply with the pre-trial directions regarding the filing of the witness statement.

On the above preliminary objection raised, I am of the view that this Court is empowered under Order 35 Rule 1 and Order 34 Rule 2(3) that a striking out order can be made for non-compliance with the Court’s directions. To set it aside, the Appellant ought to have relied on both the same Orders of the ROC (Order 34 Rule 2(4)) and not under Order 42 Rule 13 and Order 92, which are both procedurally and substantively wrong in law.

In view of the Appellant’s failure to seek specific relief for setting aside the striking out order, and further failure to rely on the appropriate provision under Order 34 Rule 2(4) of the ROC, I find that the Sessions Court lacks the requisite jurisdiction and power to grant the orders sought in the application. Thus, the SCJ’s decision not to allow the application was correct in law. The Respondent’s preliminary objection is therefore upheld.

However, for completeness, I will now consider the merits of the application.

The Appellant’s grounds for the application to reinstate the action are as follows:

The application was made bona fide, as it was struck out due to a mistake by the previous solicitor, Messrs. Govin T Durai & Co, who allegedly informed the Appellant of the wrong date.

Appellant was required to pay the cost of RM10,000.00 to the Respondent before being able to file for this application.

As the limitation had set in, Appellant cannot re-file the action unless reinstated.

Respondent themself had not complied with the Court directions on the service of the witness statement within the time frame.

Appellant was not caught by the limitation issue as the action was still within the limitation period.

The SCJ dismissed the Appellant’s application on the following grounds:

The scheduled trial date was fixed after considering the counsels’ (previous counsel Messrs Govin T Durai & Co) free dates and the witness statements to be filed one week earlier.

Respondent had complied with the filing of their witness statements.

On the trial date, 22.7.2024, Respondent and their counsel attended Court, but Appellant and his counsel were absent.

The SCJ had waited until 3.00 pm before ordering the matter to be struck out with costs of RM10,000.

The order was served on the Appellant’s counsel the next day (23.7.2024), but the Appellant only filed this application to reinstate on 19.8.2024 (after 27 days).

SCJ relied on Order 34 Rule 2(3) in striking out the case. To set it aside, SOJ was of the opinion that it should be made under Order 34 Rule 2(4).

Appellant cannot rely on Order 42 Rule 13 or Order 92, as there is a specific provision available to challenge the order made (maxim generalia specialibus non derogant).

Appellant does not have a potential prospect of success on the issue of limitation.

Appellant’s absence with his counsel, due to counsel’s mistake, is not a cogent reason to be accepted.

There was an unexplained delay in making this application.

Prejudice against the Respondent cannot be compensated by cost.

On the justice of the case, Appellant’s nonchalant and lackadaisical attitude should not be tolerated.

In contemplating to strike out an action due to failure to be present at the trial date by a party or his/her counsel, the Court will need to consider whether their absence was deliberate or due to an accident or mistake (Order 35 Rule 2(3) ROC). Other considerations would be the prospects of success of the Appellant at trial, whether there is a delay in making the application and whether the conduct of the Appellant has caused prejudice to the Respondent which cannot be compensated by costs.

On the prospects of success of the Appellant’s case, I perused the pleadings and considered the brief submission by the parties, which states that:

The essence of the Appellant’s cause of action is a claim for a reward or benefit, which is based on the terms stipulated in an appointment letter issued by the Respondent dated 31.12.2010.

In relation to this reward/benefit, the Appellant claims that he is entitled to the reward/benefit if he continued working with the Respondent until the completion of the Respondent’s project in 2015.

The Appellant’s cause of action in this case relates to the breach or non-performance of the terms of the appointment letter concerning the reward/benefit that was allegedly due to the Appellant in 2015, after the completion of the project.

To support this claim, the Appellant also filed and relied on an EA form, which purportedly states that RM500,000.00 is owed to the Appellant as a gratuity up to 2015.

It was submitted that the Appellant was himself aware, and had knowledge, that the arrears now being claimed in this action have been accruing since 2015.

Therefore, it is the Respondent’s defence that the Appellant’s claim for enforcement of the reward/benefit terms under the letter of appointment is time-barred, as this action was only filed in 2023, which is approximately 8 years later.

In addition, the reward/benefit now being claimed by the Appellant in the action before the Sessions Court was a benefit created under his employment contract with the Respondent.

It was allegedly not disputed that the Appellant only worked with the Respondent until June 2016, and therefore any contractual relationship between the Respondent and the Appellant, if any, was terminated in June 2016. It was then submitted that this cause of action, arising from the employment contract, is barred by the time limitation.

The Appellant contended that the claim is premised on the EA Form 2016; however, according to the Respondent, this was never the Appellant pleaded case.

The crux of the matter lies in the issue of limitation for the determination of the trial Court. At least it would be one of the main issues of significant concern. However, it is trite that a cause of action founded on contract accrues on the date of its breach and in a case of a debt, the cause of action arises at the time when the debt could have first been recovered (see the case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014]

Upon perusing the Appellant’s Statement of Claim, I would agree with the Respondent that the Appellant’s pleaded case is that such reward/benefit is payable upon the completion of the Respondent’s project in 2015, based on the letter of appointment and not based on the EA Form 2016.

Therefore, I am inclined to agree with the line of argument by the Respondent that the prospect of the success of the Appellant was slim.

On the absence of both the Appellant and his counsel on the trial date, unless the Appellant can provide a real and cogent reason to explain their failure to attend Court on the scheduled date, I am of the opinion that such a deliberate failure to be present at a Court proceeding amounts to disrespect for the Court and defiance of a court order.

A trial date fixed by the Court is not for the benefit of one party alone. Courts across the country are overwhelmed with numerous cases, with parties waiting for their Day In Court. Once a case is set for trial, both parties must ensure their presence and be prepared to proceed. Pre-trial case management directions must not be taken lightly by either party. Non-compliance may result in the Court exercising its power to strike out the action. Therefore, both parties should take pre-trial case management directions seriously.

Back to the present appeal, either the Appellant or his counsel had been present on the trial date. I agree with the Respondent that a mistake made by the Appellant’s counsel is neither a valid nor reasonable ground for the Court to condone a party’s failure to comply with the Court’s directions (see the case of Khor Cheng Wah v. Sungai Way Leasing Sdn. Bhd. [1997] 1 CLJ 396).

In addition, the Appellant has failed to provide any reasonable and convincing justification for his absence on the trial date that warrants the exercise of the Court’s discretion in his favour.

It was also submitted by the Respondent, however, that there was ample evidence indicating that the Appellant’s absence was intentional and not due to any mistake of his counsel, such as:

There is no record or evidence of communication between Messrs Govin T Durai and the Appellant regarding this matter.

No evidence to show that any arrangement was made to secure external witnesses for the trial.

It is highly unlikely that the Appellant and his previous counsel were unaware of the trial dates.

As such, I am minded to agree with the suggestion that the Appellant actually refused to attend the trial because he had not filed a witness statement and was unprepared to testify in Court as a witness in this case, rather than due to a mistaken date that is unsupported by any evidence.

Finally, in the interest of justice, I am of the view that the Appellant was not prepared for the trial and therefore intentionally absented himself on the scheduled date. The Court should not tolerate such an attitude, and his failure to comply with the directions of the Court constitutes an abuse of Court process.

I refer to the case of Diong Hiew King @ Tiong Hiew King v Lau Swee Nguong @ Lau Sui Guang [2012] 1 LNS 1086, as it was held that: “The Court agreed with and accepted the submissions of the learned counsel for the Plaintiff that the failure of the Defendant to comply with the direction of the Court given on 21 June 2012 constituted an abuse of the process of the Court. The reasons are, firstly, it had obstructed the smooth administration of justice by the Court in respect of the Plaintiff’s action. Secondly, it has caused the bona fides of the Defendant’s Defence to the Plaintiff’s claim as set out in his Defence to be highly questionable. Thirdly, the Court was of the impression that the Defendant was not really sincere in defending the Plaintiff’s claim. The Defendant could not show any reason for his non-compliance of the previous direction of the Court to file and exchange his witness statement with the learned counsel for the Plaintiff on or before 27 July 2012 let alone a good reason.” -emphasis added

As correctly observed by the SCJ, the Appellant has shown a “couldn’t care less” attitude in handling his case. The delay in appointing new solicitors and/or the Appellant’s difficulty in securing the RM10,000.00 costs payment are not compelling reasons to justify the delay in filing this application before the SCJ; instead, they reflect the Appellant’s own conduct.

Based on the above, on the overall justice of this case, I find it favours the Respondent. In these circumstances, the Appellant’s application to reinstate was rightfully dismissed by the SCJ.

The appeal is hereby dismissed with costs of RM5000, subject to the allocator. Dated this: 17th October 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsels: For the Appellant : Rozeka Kamdari Messrs Ong Siew Ming & Associates For the Respondent :