Hartajaya Benteng Timur.Amr Jeli Jv Sdn Bhd v Edgenta Propel Berhad (No Syarikat: 171667-P) (W-02(IM)(NCVC)-775-04/2018)

This is an appeal by the Appellant against the decision of the High Court, given on 15.3.2018, in dismissing the Appellant’s Notice of Application to set aside the assessment order dated 29.8.2017 with costs of RM5,000.00.

The Appellant is the Defendant in the High Court action and the Respondent is the Plaintiff. The Government of Malaysia is the Third Party and it is not the party in this appeal. We shall refer the parties as in the High Court action. Background Facts 3. Jabatan Kerja Raya (“JKR”) appointed the Defendant to build a new road from Seremban Highway-Port Dickson to FR5 (Exit 5) for a contract sum of RM117,694,883.33 (“the said contract”).

The Defendant in turn appointed the Plaintiff as the subcontractor for the said contract vide two Letters of Award, namely, the Letter of Award dated 7.8.2009 in respect of Package B and Letter of Award dated 18.6.2010 in respect of Package B.

Subsequently, the Plaintiff filed a claim against the Defendant in the High Court claiming payments for work done and completed in respect of Package A and Package B.

The Defendant brought in the Government of Malaysia (JKR) as a third party by way of a third party notice. On 2.4.2015, the Plaintiff 3 and the Defendant entered into a Consent Order of idem date. Clause (d) of the Consent Order states:

The Plaintiff and the Defendant agree that the balance sum as claimed by the Plaintiff amounting to the sum of RM17,472,961.82 will be subject to assessment of damages which will be undertaken by the Registrar in the High Court after the completion of the trial between the Defendant and the third party and in any event within 12 months from the date of this order. In the event, the dispute between the Defendant and the third party is settled the Plaintiff is at liberty to proceed with assessment of damages immediately.

Trial for the action between the Defendant and the third party was scheduled before the High Court but on 13.5.2015, the Defendant withdrew its claim against the third party.

Thereafter, the Plaintiff initiated the assessment of damages proceedings vide the application dated 12.9.2015 [Enclosure 120]. However, the hearing of the assessment of damages before the High Court was prolonged because of a stay order [granted upon Defendant’s application] which was later, on appeal, set aside by the Court of Appeal. Several hearing dates were vacated at the request of the Defendant, who throughout this period changed numerous solicitors. 4

The High Court fixed the final date of hearing the assessment of damages on 24.7.2017 and 25.7.2017.

By the letter dated 6.7.20171, the Defendant’s previous Solicitors, Messrs. K Mano & Associates [“the Defendant’s Solicitors”] requested for the hearing date on 25.7.2017 to be vacated as its counsel Mr Manoharan had to attend a trial in the Kuala Lumpur High Court on the said date in Suit No. 22NCVC-440-09/2014.

On 14.7.2017 2 , the Court allowed the Defendant Solicitors’ application to vacate the date 25.7.2017 and fixed the case management on 21.8.2017.

On 19.7.20173, the Plaintiff’s Solicitors wrote to the Court requesting for the date for the assessment of damages to be maintained as the assessment of damages had been prolonged for a long period of time (two years) and that all the Court’s directions had been complied with. The Appellant should not be allowed to further prolong the assessment of damages.

By a letter dated 21.7.20174, the Court informed the parties that the Court had only allowed the date 25.7.2017 initially scheduled for assessment of damages to be vacated as per the request of the Defendant’s Solicitors and that the assessment scheduled on 24.7.2017 was maintained and would proceed as scheduled. 1 Rekod Rayuan Jilid 2, pages 143-144. 2 Rekod Rayuan Jilid 2, pages 146-147. 3 Rekod Rayuan Jilid 2, pages 148-149. 4 Rekod Rayuan Jilid 2, pages 150-151. 5

On 24.7.2017, the matter was called before the Court. The Plaintiff’s counsel was present with the Plaintiff’s witnesses. The Defendant’s counsel was however absent but its employee, one Mr Raman, was present in Court and requested to be heard by the Court.

Mr Raman informed the Court that the Defendant’s counsel Mr Manoharan was not well and requested for the assessment of damages to be adjourned.

Given that Mr Raman did not have any medical certificate or letter from the hospital/clinic to certify the health condition of Mr Manoharan, the Court stood down the hearing and requested Mr Ramon to produce either a medical certificate or a letter from the hospital/clinic certifying Mr Manoharan was not well and unfit to attend Court. In lieu of which, a photographs of the same may be sent via his mobile phone.

The Court recalled the assessment of damages half an hour later, Mr Raman was unable to provide medical certificate/letter/ photographs and this prompted the Court to make a search on the Court’s e-system. The search revealed that the High Court Suit No. 22NCVC-440-09/2014 was not fixed for trial but only for hearing of an application to intervene. This is confirmed by Mr Raman.

The Court again stood down the matter and requested Mr Raman to inform Mr Manoharan to send a lawyer to court to explain to the Court the situation and to provide valid reasons for the Defendant’s failure to attend Court failing which, the Court would proceed with the assessment of damages. 6

When the Court recalled the matter for the third time, Mr Raman had left the Court but prior to leaving the Court he informed the Plaintiff’s Solicitors that he had contacted Mr Manoharan and informed him of the directions of the Court. However, no lawyer would attend the Court for the matter.

The Court thereafter proceeded with the assessment of damages on 24.7.2017 wherein Plaintiff’s witness was called to the stand to testify. Upon the completion of the Plaintiff’s witness’ testimony, the Court concluded the assessment for damages and directed the parties to file its respective submission on or before 7.8.2017 and decision was reserved to 29.8.2017.

On the same day, the Plaintiff’ Solicitors wrote to the Defendant’s Solicitors informing them of what transpired in the Court and to inform them of the Court’s directions to file written submissions by 7.8.2017 5.

The Court on its part had written a letter dated 26.7.2017 6 to the Solicitors of both parties, directing them to file submission by 7.8.2017 and informing them that the Court would deliver its decision on 29.8.2017.

On 1.8.2017 7, the Defendant’s Solicitors wrote to the Plaintiff’s Solicitors alleging that the Plaintiff’s Solicitors had forced the Court 5 Rekod Rayuan Jilid 2, pages 153 and 154. 6 Rekod Rayuan Jilid 2, pages 155-156. 7 Rekod Rayuan Jilid 2, pages 157-158. 7 to proceed with the assessment of damages. The Plaintiff’s Solicitors vide their letter dated 4.8.20178, rebutted the Defendant’s Solicitors’ allegations therein.

On the same date9, the Defendant’s Solicitors wrote to the Court requesting for an opportunity to cross-examine the Plaintiff’s witnesses on 21.8.2017. They also explained that on 23.7.2017 at 8.00 p.m., Mr Manoharan was admitted to the Intensive Care Unit (Cardiac) at the Serdang Hospital due to heart attack and was discharged the next day on 24.7.2017 at 1.00 a.m. He did not ask for sick leave under the impression that the hearing of the assessment had been vacated.

In this connection, the Court had on 2.8.2017 10 written to the Solicitors of both parties, directing them to attend a case management on 9.8.2017.

On 7.8.2017, the Plaintiff’s Solicitors filed and served the Plaintiff’s submission in accordance with the Court’s direction. The Defendant’s Solicitors did not file any submission.

On 9.8.2017, during the case management in Court, the Plaintiff’s Solicitors was present. Mr Raman was present but Mr Manoharan had again failed to attend Court. The Court adjourned the case management to 23.8.2017 to afford the Defendant’s Solicitors a final opportunity to appear before the Court. 8 Rekod Rayuan Jilid 2, 105-106. 9 Rekod Rayuan Jilid 2, page 129-130. 10 Rekod Rayuan Jilid2, pages 159-160. 8

On 23.8.2017, the Defendant’s Solicitors was again absent. The Court then fixed the delivery of its decision on the assessment of damages on 29.8.2017.

On 29.8.2017, the Court delivered its decision in the absence of the Defendant’s Solicitors, who were again absent.

On 5.9.201711, the Plaintiff’s Solicitors forwarded the draf Perakuan Untuk Taksiran Ganti Rugi dated 29.8.2017 for the Defendant’s Solicitors’ approval. The latter did not respond to the same.

On 11.9.201712, the Plaintiff’s Solicitors wrote to the Court and requested the Court to approve the draf Perakuan Untuk Taksiran Ganti Rugi dated 29.8.2017 given that the Defendant’s Solicitors had failed and/or refused to approve the same. The Court then approved the said draft and proceeded to seal it.

On 8.11.2017, the Plaintiff issued a Notice pursuant to sections 465 and 466 of the Companies Act 2016 to the Defendant.13

The Defendant through different Solicitors filed the present application on 22.11.2017 to set aside the Perakuan Untuk Taksiran Ganti Rugi. 11 Rekod Rayuan jld 2, page 166. 12 Rekod Rayuan Jilid 2, pages 167-168. 13 Rekod Rayuan Jilid 2, page 169. 9 Contention of the Defendant before the High Court

At the High Court, the Defendant relied on the following grounds in its application to set aside the assessment order dated 29.8.2017: i) The absence of the previous lawyer was a mistake as one of the hearing dates had been previously adjourned and Mr Manoharan was under the mistaken belief that the matter was for case management. ii) Mr Manoharan was admitted to Serdang Hospital due to heart attack and because he was under the mistaken belief that the hearing was adjourned, did not request for a medical certificate and had only obtained the M.C. when directed by the Court. iii) One Mr Raman, an employee of Mr Manoharan had informed the court of Mr Manoharan’s medical condition; and iv) Mr Manoharan was a sole proprietor and even though the court had stood down the matter three times that day, Mr Manoharan could not seek any assistance from any lawyer to appear on his behalf. High Court’s Decision 35. The learned Judge found that Mr Manoharan’s absence appeared to be occasioned by his medical condition. However, Mr Manoharan 10 did not seek immediately or soon after discontinue acting for the Defendant.

Learned Judge found the explanation of “mistaken belief” for the absence of the Defendant and the Defendant’s Solicitors implausible and that their absence cannot be due to a mistake for the following reasons.

The court’s records showed that the Court had on 21.7.2017 informed the parties that the adjournment of the assessment of damages was only allowed on 25.7.2017 and that the assessment of damages on 24.7.2017 would proceed as scheduled.

The Defendant was duly notified of the assessment of damages on 24.7.2017 but had chosen not to attend Court. The Defendant was accorded further opportunity to address the Court via two subsequent case management which were fixed for the benefit of the Defendant but the Defendant had again refused, neglected and/or failed to attend Court.

Finally, the Defendant was given the opportunity to attend court to raise any objection and/or tender its submission before the decision date on 29.8.2017 but the Defendant once again refused, neglected and/or failed to attend Court.

It was held that the Defendant’s conduct tantamount to a flagrant and contumelious disregard of the directions and or the authority of the Court and cannot be condoned. The Defendant and its Solicitors 11 have on numerous occasions by their cavalier and contumelious conduct wasted precious judicial time.

The learned Judge also found there was delay in making the application. The Court was of the view that the fact that Mr Manoharan did not notify or update the Defendant is a matter between Mr Manoharan and the Defendant. The draf Perakuan Untuk Taksiran Ganti Rugi dated 29.8.2017 was served on the Defendant’s Solicitors and as such the Defendant is deemed to have been aware of the Court’s decision as early as 5.9.2017 and not 8.11.2017 when the Defendant was served with the notice dated 8.11.2017 [pursuant to s 465(1)(e) and s 466(1)(a) of the Companies Act 2016].

The learned Judge further found that based on the available evidence before the Court, the Defendant does not have any merit in defending the Plaintiff’s claim for the damages sought. The Defendant did not file in any documents and had only filed three witness statements, all of which were taken into consideration by the learned Registrar when assessing the damages.

The learned Judge was of the view that the Plaintiff will be severely prejudiced if the certificate dated 29.8.2017 is set aside as the learned Registrar had properly assessed the Plaintiff’s damages having heard and considered the evidence before him and the certificate was regularly and properly issued. The Plaintiff should not be denied of its fruit of litigation any longer. 12

The learned Judge held, “From the outset, the Defendant and/or its Solicitors had demonstrated, by is conduct, its willful disobedience and contempt of court directions. Mr Manoharan had been far from candid in applying for, and obtaining, an adjournment of the second date of the hearing for assessment i.e. 25.7.2017 and despite being notified that 24.7.2017 would be maintained, chose to claim that he was under the “mistaken belief” that the assessment proceedings were vacated.

It was further held, “It is not in the interest of justice to allow this application as the Defendant’s bona fides in making this application is in doubt in light of the foregoing where there has been considerable delay in making the application which delay is consistent with the Defendant’s cavalier conduct throughout to prolong the matter and derive the Plaintiff of the fruit of litigation.”

The present application is made under Order 35 rule 2 of the Rules of Court 2012 which states as follows:

Judgment given in absence of party may be set aside (O. 35 r. 2)

Any judgment or order obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just. 13

An application under this rule shall be made within fourteen days after the date of the judgment or order sought to be set aside without prejudice, however, to the power of the Court to extend the period.

In considering an application made under this rule, the Court shall have regard to the following matters:

the interest of justice;

whether the absence of the applicant or counsel was deliberate, or due to an accident or mistake;

the prospects of success of the applicant at trial;

whether there is any delay in making the application;

whether the conduct of the applicant has caused prejudice to the other party which cannot be compensated by an order of costs.

The Appellant’s criticism of the High Court’s decision is premised on three grounds as follows:

The learned Judge erred in fact in failing to consider the reason preferred by the previous Solicitor (who is a sole-proprietor) for his absence [Ground (a)];

(ii) The learned Judge erred in law in finding that there is a duty on the part of the Defendant to pay the astronomical sum of RM 17,472,961.82 without calling the Defendant’s witness although three witness statements have been filed by the 14 Defendant and/or failed to call any witnesses from JKR who are the expert in this filed to assess the said sum. [Ground (b)]

(iii) The learned Judge erred in fact in failing to consider the terms of the Consent Order which clearly states the need for the sum of RM 17,472,961.82 to be assessed by the Court. [Ground

(c), and Ground (a): Reasons for absence of Defendant’s Solicitors

Learned Counsel for the Defendant submitted that the learned Judge had fallen into error when she failed to consider that explanation given by the Defendant’s Solicitors for his non-attendance on the hearing fixed on 24.7.2017 and the evidence and/or documents that have been produced to the High Court to prove the previous Solicitor was indeed ill and had been admitted to Serdang hospital due to chronic cardiac illness on 24.7.2017.

Learned Counsel for the Defendant submitted that it is the duty of the Court to consider the reasons for absence of the Defendant’s Solicitors as that is the most important consideration for this type of application, citing Mah Siew Seng & Anor v Seema Development Sdn. Bhd.14 and Yogananthy a/p AS Thambaiya v Idris bin Osman15, where this Court held: [12] The most important consideration in this type of application is whether the appellant had given sufficient and reasonable reasons for her or her counsel's 14 [2014] 7 MLJ 372. 15 [2010] 5 MLJ 676. 15 absence on the trial date. In the leading authority of Shocked & Anor v Goldschmidt & Ors [1998] 1 All ER 372 the Court of Appeal held that on an application to set aside a judgment given after a trial in the absence of the applicant, the predominant consideration of the court is not whether there is a defence on the merits but the reason why the applicant was absent. If the absence was deliberate and not due to an accident or mistake, the court would be unlikely to allow a rehearing.

Learned Counsel for the Plaintiff in his submission merely relied and cited the decision of this Court in Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors16, which held: [17] We shall now return to the appeal proper. We start by stating that in an application to set aside a default judgment due to non appearance of a party, a distinction must be made between one where such judgment was obtained without a trial having proceeded and one which did. In the former, which covers default due to a failure to file an appearance after the writ was served or default of defence, the principle in Evans v Bartlam [1937] AC 473 applies. It is basically: unless and until the court has pronounced a judgment upon the merits or by consent, it is to have power to revoke the expression of its coercive powers where that has only been obtained by a failure to follow any rules of procedure. And in Burnes v Kondel [1971] 1 Lloyd's Rep 554 at p 444, Lord Denning MR expanded to say that a 'defence on the merits' means a defence which discloses an arguable and triable issue. In short, the court, as a general rule, will not set aside such default judgment unless the defendant can establish a defence on merit. This seems to be the predominant feature against the 16 [2009] 4 MLJ 610. 16 explanation for the default or for any delay in applying to set it aside. [18] But when a judgment is entered after a trial has proceeded a different set of rules applies. In the English Court of Appeal case of Shocked & Anor v Goldschmidt & Ors [1998] 1 All ER 372, the major factors to be considered to set aside such default judgment differ from that in Evans v Bartlamin the order of priority and prominence. The reason for the absence of the party at the trial has become the 'predominant consideration' over that of a defence on merit. This can be observed from the judgment of Leggatt LJ when he said:

Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

Where the setting aside would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are strong reasons for doing so.

The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

Delaying in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. 17

A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short. [19] Our courts have adopted this principle in Abdul Rafar bin Maimunni & Anor v HM Latiff bin KM Haneefa [2008] 1 LNS 157 and Ng Chek Kiam & Anor (Seng Heng Wholesale Fruit Dealer) v Best Fruits Sdn Bhd [2006] 1 LNS 267. We are of the view that this represents the current state of the law when dealing with an application to set aside a default judgment where a trial has proceeded and we shall apply this to the facts of this case. FACTOR: REASONS FOR THE ABSENCE [20] As reason for the defendants' absence has become the predominant consideration, we shall first examine the excuse rendered by the defendants for failing to turn up in court for the hearing. According to the defendants' counsel's submission the excuse was: The solicitor who had conduct of the matter, namely one Munir Shah bin Mohd Husan, had resigned from the firm of Wong Lu Peen & Tunku Alina (the defendants' solicitors). However, prior to the date of his resignation from the firm in December 2008, the date of the hearing was not entered into the firm's diary by the said lawyer. As such, no solicitor for the appellants was present at the Kota Bharu High Court on 13 January 2008 when the above matter was fixed for trial. [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 18 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 Centers Sdn Bhd [1999] 2 CLJ 866; Asia Commercial Finance (M) Bhd v Pasadena Properties Development Sdn Bhd & Ors [1991] 1 MLJ 111; [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 and another appeal [2001] 2 CLJ 344 : One of the fundamental duties of a solicitor is to diarise his cases, keep his client informed of the diarised 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. [23] Aside from the above, the plaintiffs have also adduced evidence, which is not rebutted by the defendants, that they have sent by letter of reminder to the defendants' lawyer of the hearing date. Though Encik Munir may have been careless in not entering this date into the diary such notification would have alerted other members in the defendants' solicitors' firm of the forthcoming event. And if they chose to ignore it then 19 their reason for the absence of the defendants is inexcusable. [emphasis added by defence counsel]

Learned counsel for the Plaintiff submitted that premised on the above, it is clear that the conduct of the Defendant should not be condoned and their reasons for the absence is inexcusable.

It is amply clear from the case of Lembaga Kemajuan Tanah Persekutuan, supra, different considerations are accorded to setting aside a default judgment which was obtained without a trial having proceeded and one which did. In the former, which covers default due to non-appearance of a party, the court will not set aside such default judgment unless the defendant can establish a defence on merit. This seems to be the predominant feature against the explanation for the default or for any delay in applying to set it aside. In the latter case, the reason for the absence of the party at the trial becomes the “predominant consideration” over that of a defence on merit.

After a careful perusal of the grounds of judgment, we noticed that the learned High Court Judge merely made a passing remark on Mr Manoharan’s explanation for his absence due to his medical condition, thus: “Mr Manoharan’s absence appear to be occasioned by his medical condition. However, it is to be noted that he did not seek to immediately or soon after the proceedings, discontinue representing the Defendant.”17 17 Rekod Rayuan Tambahan page 22, paragraph 37 of the “DECISION”. 20

In most of the decision, the learned Judge focused mainly on Mr Manoharan’s other reason for his absence, that is, the mistaken belief due to the impression given by the High Court in vacating the hearing date on 24.7.2017 and fixing a case management on 21.8.2017 instead, which the learned Judge disbelieved on the ground that the Court had informed the parties that the adjournment was allowed for 25.7.2017 and the hearing on 24.7.2017 would be maintained and the assessment would proceed as scheduled.

We are of the view that even though the learned Judge may not believe the “mistaken belief” explanation, the learned Judge should have at least given adequate consideration to the other reason, that is, the medical condition of Mr Manoharan at the material time. As submitted by learned counsel for the Defendant, nowhere in the grounds of judgment was reference made by the learned Judge to the letter dated 1.8.2017 18 which explained that the previous Solicitor was admitted to Serdang Hospital Emergency Unit on 23.7.2017 at 8.00 p.m. due to heart attack. No medical certificate was sought from the hospital as the Mr Manoharan had mistakenly believed that the hearing was adjourned. Mr Manoharan only took the initiative to obtain such documents later when sought by the Court.

We take note that Mr Manoharan did try to mitigate the failure of his non-attendance on 24.7.2017 by seeking in the same letter dated 1818 Rekod Rayuan Jilid 2, page 129-130. 21

1.8.2017 for the Court’s direction to cross-examine the Plaintiff’s witness.

We disagreed with the Defendant that the Court never responded to this letter. We observed that the Court did respond by way of the letter dated 2.8.201719 written to the parties directing them to attend a case management on 9.8.2017.

However, Mr Manoharan again did not attend court and the case management was further adjourned to 23.8.2017 to give Mr Manoharan a final chance to appear before the Court and he was again absent on 23.8.2017.

Mr Manoharan explained in paragraphs 14-16 of his AFIDAVIT TAMBAHAN DEFENDAN (2) 20 as follows:

Dengan merujuk kepada perenggan-perenggan 7(13), 7(14) dan 7(15), saya menafikan kronologi peristiwa tersebut atas sebab saya telah dimasukkan ke dalam wad Unit Penjagaan Rapi (Intensive Care Unit) Cardiac di Hospital Serdang dari 4hb Ogos 2017 hingga 11hb Ogos 2017 dan oleh itu, saya tidak boleh langsung menghadiri mana-mana pengurusan kes yang dirujuk oleh peguamcara Plaintif. Sila Merujuk kepada Ekshibit “KM-6”21 7.8.2017.22 19 Rekod Rayuan Jilid 2, page 159-160. 20 Rekod Rayuan Jilid 2, page 76-77. 21 Rekod Rayuan Jilid 2, page 134. 22 Rekod Rayuan Jilid 2, page 134. 22

Mr Manoharan also explained his absence on 23.8.2017 averred in paragraph 7.17 in AFIDAVIT JAWAPAN PLAINTIF23 as follows: 17) Sebagai jawapan kepada perenggan-perenggan 7(15), 7(16), 7(18), 7(19) dan 7(20), saya menyatakan bahawa peristiwa-peristiwa ini yang telah berlaku sejurus sebelum pembedahan saya yang mana saya sememangnya tidak sihat dan tidak berupaya untuk menghadiri perkara-perkara Mahkamah oleh sebab penyakit jantung saya ini yang serius. Segala keadaan-keadaan perubatan saya adalah dikendalikan oleh doktor-doktor kerajaan di Unit Kardiologi Hospital Kerajaan dan bukannya klinik-klinik di tepi jalan yang tidak harus dianggap sebagai palsu ataupun tipuhelah.

We are of the view that if the learned Judge had exercised her duty to adequately considered the medical condition of the previous solicitor who was then 70 years of age at the material time, she would have found that the non-attendance of the previous solicitor was not deliberate and that he had sufficient and reasonable reasons for his inability to attend.

For the reasons stated above, we find that the learned Judge was wrong for failing to give adequate consideration for Mr Manoharan’s absence due to his health condition. 23 Rekod Rayuan Jilid 2, page 60. 23 Whether it is in the interest of justice to set aside the assessment order

We have also considered whether it is in the interest of justice to set aside the assessment order.

Learned Counsel for the Defendant submitted that the Appellant had obtained a judgment against JKR for the proof of liability in the High Court Kuala Lumpur Civil Suit No; 21C-2-06/2015 [“High Court Suit 2”] filed between the Appellant as the Plaintiff and JR as the Defendant. See, Hartajaya-Benteng Timur-Amr Jeli Jv Sdn. Bhd. v. Kerajaan Malaysia and another appeal24 [2018] MLJU 331.

Learned Counsel for the Defendant submitted that the Plaintiff had sought to intervene in the High Court Suit 2 but the intervention application was dismissed by the High Court on 15.1.2018.

Learned Counsel for the Defendant submitted that High Court Suit 2 is currently set for hearing of the assessment of damages between the Appellant and JKR. JKR is the regulatory body and is the responsible party in assessing the sum owned amounting to RM104,747,688.86 in the High Court Suit 22 whereby the said sum is also inclusive of the sum of RM17, 472,961. 82 in the assessment order.

Learned Counsel for the Defendant submitted that since the contractual obligations between parties in this contract was of a 24 [2018] MLJU 331. 24 back to back relationship, that is, the Defendant is the contractor to the JKR whereas the Plaintiff is the subcontractor to the Defendant. Therefore, the damages can only be thoroughly examined and verified by the JKR as third party who is an expert in this field and not merely by the Senior Assistance Registrar solely.

Regard being had to the above in the light of the intention of the parties when entering the Consent Order, that is, the sum of RM17,472,961.82 will be subject to the verification by the JKR and that the parties are at liberty to appeal the assessments made by the registrar, we considered that the appeal ought to be allowed in the interest of justice.

Accordingly, it is our unanimous decision that the appeal be allowed with no order as to cost. We set aside the assessments of the Senior Assistant Registrar Order subject to the following terms and conditions:

that the applicant pay into court or into a joint solicitor/client interest bearing account the sum of RM10 million within 14 days from today; and

(ii) the assessment be conducted before a High Court Judge.

In the event, the said sum is not paid within the timeline, the Senior 25 Assistant Registrar assessment order should be final and binding. Deposit to be refunded. Dated: 30 September 2019 Sgd ________________________ YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya Counsel For : Dato’ Rabinder Singh (Syereen Tang Bersamanya) The Appellants [THE CHAMBERS OF P. RAJENDRAN] Counsel For : K. Gobinath (Adam Lee Bersamanya) The Respondents [SANJAY MOHAN] Notice: This copy of the court’s reasons for judgment is subject to editorial revision.