Ho Khar Fui v WAN JUN YI (BA-22NCvC-86-02/2024)

WAN JUN YI [NRIC NO.: 931120-03-5407]

SONG WEI KAR [PRACTICING AS AN ADVOCATE & SOLICITOR IN THE NAME AND STYLE OF SONG & PARTNERS]

NG YOKE CHOON [NRIC NO.: 701222-10-6022]

CIMB BANK BHD [COMPANY NO.: 197201001799 (13491-P)]

PENDAFTAR HAKMILIK NEGERI SELANGOR ... DEFENDANTS 04/06/2026 08:19:54 BA-22NCvC-86-02/2024 Kand. 51

This action was commenced by the Plaintiff, Ho Khar Fui, against the Defendants arising from an alleged fraudulent transfer of land. The Plaintiff alleged that he did not intend to sell his property. He alleged that he only intended to obtain a business loan and that the title to the property was given as security for that purpose.

The action did not proceed to trial. On 13 April 2026, I struck out the Plaintiff’s action with costs of RM3,000.00 each to the 4th Defendant and the 5th Defendant.

The action was struck out because the Plaintiff failed to comply with the Court’s pre-trial case management directions under Order 34 of the Rules of Court 2012 (ROC) and the “unless order” made on 9 March 2026.

These grounds explain why the Court exercised its discretion to strike out the action.

The Plaintiff, Ho Khar Fui, claimed to be the registered proprietor or former registered proprietor of the property held under Geran 338045 Lot 30647, Pekan Cheras, Daerah Ulu Langat, Negeri Selangor.

The 1st Defendant, Wan Jun Yi, was allegedly the person who represented that she could assist the Plaintiff to obtain a loan. The Plaintiff asserts that the property was later transferred to the 1st Defendant.

The 2nd Defendant, Song Wei Kar, practising as Song & Partners, was allegedly involved as a solicitor in the impugned transaction. However, the Plaintiff’s claim against the 2nd Defendant was struck out earlier pursuant to Order 18 rule 19 in Enclosure 16.

The 3rd Defendant, Ng Yoke Choon, was alleged to be the subsequent purchaser or transferee of the property. It was also stated during case management that the 3rd Defendant had been adjudged bankrupt.

The 4th Defendant, CIMB Bank Bhd, was the chargee bank. The 4th Defendant pleaded that it was a subsequent purchaser in good faith for valuable consideration and that it had acquired an indefeasible interest in the property through a registered charge.

The 5th Defendant, the Registrar of Titles, Selangor, was named as a formal party in relation to the land registration reliefs sought by the Plaintiff.

The Plaintiff’s claim was based on fraud, deceit and fraudulent transfer of land.

The Plaintiff pleaded that, after the COVID-19 pandemic, he intended to start a business and sought a loan. He alleged that he later met the 1st Defendant, who represented that she could help him obtain a loan.

The Plaintiff alleged that the 1st Defendant asked him to attend the 2nd Defendant’s office to sign documents. The Plaintiff’s case was that the documents were for a loan, not for the sale of the property.

The Plaintiff also alleged that he brought the original title to the property and handed it over as security for the loan. He alleged that he never received any loan.

The Plaintiff later received a letter from the 2nd Defendant demanding vacant possession under a sale and purchase agreement. The Plaintiff’s position was that he had never intended to sell the property.

The Plaintiff pleaded that the transaction was tainted by fraud and that the transfer of the property should be set aside.

The 4th Defendant pleaded a different case. The 4th Defendant’s position was that the 3rd Defendant had purchased the property and that the 4th Defendant had granted financing to the 3rd Defendant, secured by a registered charge over the property.

I do not make any finding on the merits of the fraud claim in these grounds. The issue before the Court on 13 April 2026 was procedural. The issue was whether the Plaintiff’s failure to comply with Order 34 directions and the unless order justified the striking out of the action.

The case management history is central to the Court’s decision. The action was not struck out because of one isolated failure. The order was made after repeated directions, repeated indulgence, and a final unless order. The earlier case managements were conducted mainly before the Senior Assistant Registrar through the e-Review platform. The matter was later fixed before me via Zoom. Early service and pleadings

On 27 March 2024, the case was at an early case management stage. The Plaintiff informed the Court that the writ and statement of claim had been served on the 2nd, 4th and 5th Defendants.

There were service issues involving the 1st and 3rd Defendants. The Court directed the Plaintiff to conduct JPN (Jabatan Pendaftaran Negara) searches and to ensure proper personal service. The Plaintiff was also directed to file the relevant affidavits of service.

On 22 April 2024, the 4th Defendant informed the Court that its Defence and Counterclaim had been filed and served. The Plaintiff said he had received the 4th Defendant’s defence and would file a reply. The Plaintiff also informed the Court that cause papers had been sent to the 1st and 3rd Defendants by registered post.

The Court questioned the source of the addresses and reminded the parties that personal service had to be properly effected. The Court noted that no affidavit of service had been filed for the Court’s reference.

On 30 April 2024, the Plaintiff informed the Court that he had filed his reply to the 4th Defendant’s defence and defence to the 4th Defendant’s counterclaim. The Plaintiff also said that he had received the 2nd Defendant’s defence and would file his reply.

The Plaintiff further informed the Court that he would file an application for substituted service against the 1st Defendant because the address in the JPN search was said to be false. The 3rd Defendant’s bankruptcy issue

On 9 May 2024, the Court raised the issue that the 3rd Defendant was said to be a bankrupt. The Court asked whether leave or sanction was required before proceeding against the 3rd Defendant.

The Plaintiff said he was not aware that the 3rd Defendant was bankrupt.

On 5 June 2024, the case had been transferred from NCVC 4 to NCVC 9. The Court asked parties to update on the cause of action, reliefs sought, the status of pleadings, and the issue of leave under section 8(1) of the Insolvency Act 1967 for the claim against the 3rd Defendant.

The 4th Defendant maintained that the Plaintiff needed leave before proceeding against the bankrupt 3rd Defendant. The Plaintiff did not answer the Court’s question on the status of leave.

The Court directed that the status of leave in respect of the 3rd Defendant be updated later.

On 18 November 2024, the 4th Defendant again raised the issue of section 8(1) of the Insolvency Act 1967. The Plaintiff sought one month to obtain leave. Counsel for the Plaintiff said they needed to appoint a Sabah lawyer.

On 20 December 2024, the Plaintiff again sought further time. Counsel said he required time for advertisement and to obtain consent from the Official Assignee in Sabah.

The matter was fixed for further case management before me on 16 January 2025. The Court directed that the leave issue should be addressed so that the matter could proceed towards pre-trial directions. Trial dates and pre-trial directions

On 16 January 2025, the Plaintiff updated the Court that substituted service on the 1st Defendant had been done and that a certificate of non-appearance would be filed.

As to the 3rd Defendant, the Plaintiff said that the 3rd Defendant had been adjudged bankrupt by the Kota Kinabalu Court by an order dated 29 December 2022. Counsel said he had no locus to practise in Sabah and was liaising with Sabah lawyers.

Despite the unresolved issue involving the 3rd Defendant, the Court fixed the full trial on 27 to 30 April 2026.

The Court also directed that witness statements be filed by 6 April 2026. The pleadings bundle, bundle of documents, issues to be tried, agreed facts and summaries of case were to be filed by 3 November 2025. A further case management was fixed for 9 June 2025 to update on the 1st and 3rd Defendants.

On 9 June 2025, the 4th Defendant reminded the Court that the matter was fixed for an update on leave to proceed against the 3rd Defendant and for further pre-trial directions.

The Court gave detailed pre-trial directions. These included directions on the pleadings bundle, case summaries, bundle of documents, agreed facts, issues to be tried, witness list, witness statements and trial dates.

The Court asked the Plaintiff about the status of the 3rd Defendant. The Plaintiff said he had tried to contact Sabah lawyers to file the application for leave, but had not obtained cooperation.

The 4th Defendant submitted that the pre-trial documents could not be finalised if there was no certainty whether the Plaintiff had a valid claim against the 3rd Defendant.

The Court noted that about five months had passed since the January 2025 case management, and the Plaintiff still had not obtained leave to proceed against the 3rd Defendant. There was also no indication that any application for leave had been filed by then.

The matter was fixed for further case management before me on 13 August 2025.

On 13 August 2025, the Plaintiff again stated that he had difficulty obtaining a Sabah lawyer to commence the application against the 3rd Defendant.

The Court gave further directions. The bundle of documents was to be filed by 8 January 2026. Witness statements were to be filed two weeks before trial. The filing of issues to be tried, agreed facts and summaries of case was put on hold at that stage. Final Order 34 directions and the unless order

After earlier directions and indulgence, the Court later gave more focused Order 34 directions to prepare the matter for trial.

The Plaintiff was required to serve the draft issues to be tried and agreed facts on the 4th and 5th Defendants by 30 January 2026.

The issues to be tried, agreed facts, summary of case, facts of case and list of witnesses were to be filed by 2 March 2026.

Witness statements were to be filed and exchanged by 6 April 2026.

On 9 March 2026, the Plaintiff had still not regularised the position. The 4th Defendant raised that the claim against the 3rd Defendant remained outstanding and that the issues to be tried had not been filed. The 5th Defendant also took the same position.

The Court vacated the trial date of 27 April 2026 and made an unless order. The Plaintiff was required to comply with the pre-trial case management directions. The Court also directed that everything had to be ready before the next case management. The relevant part of the minutes reads: ‘Mahk: 27.04.2026 - to be vacated. Unless order - Plaintiff to comply with PTCM direction - everything must be ready before next CM date - Plaintiff need to be ready with their case first - Defendant no need to file witness statement 13.04.2026 @ 9.30 a.m - Final CM via Zoom 10.20 a.m – end’.

The matter was fixed for final case management on 13 April 2026. The hearing on 13 April 2026

On 13 April 2026, the Plaintiff appeared with a new development. Counsel for the Plaintiff informed the Court that a notice of change of solicitor had been filed in March.

Counsel for the Plaintiff also said that the 3rd Defendant was bankrupt and that leave or sanction from the Kota Kinabalu Court was required. Counsel further said that he are not aware of the unless order.

The 4th Defendant objected. The 4th Defendant submitted that the issue concerning the 3rd Defendant had been raised from an early stage. The 4th Defendant also submitted that no documents had been provided and that the notice of change of solicitor had not been served.

The 5th Defendant submitted that, based on the previous case management notes, an unless order had been made. The 5th Defendant also said that it had received nothing from the Plaintiff.

The 4th Defendant applied for the action to be struck out. The 5th Defendant supported the application and sought costs.

After hearing the parties and considering the history of the matter, I struck out the Plaintiff’s action under Order 34 for failure to comply with the Court’s directions and the unless order.

I awarded costs of RM3,000.00 each to the 4th Defendant and the 5th Defendant. I also vacated the remaining trial dates from 28 to 30 April 2026 and fixed 15 May 2026 for case management on the status of the 4th Defendant’s counterclaim.

Order 34 of the ROC gives the Court active control over pre-trial preparation. The purpose is to secure the just, expeditious and economical disposal of proceedings.

Order 34 rule 1(1) allows the Court, at any time after commencement of proceedings, to direct parties to attend before the Court so that the Court may give orders or directions on interlocutory matters and the future course of the action.

Order 34 rule 1(3) provides that where a party fails to comply with an order or direction given by the Court under rule 1(1), the Court may dismiss the action, strike out the defence or counterclaim, or make such other order as it thinks fit.

Order 34 rule 2(2) allows the Court to give pre-trial directions, including directions on the bundle of pleadings, bundle of documents, agreed facts, issues to be tried, list of witnesses and witness statements.

Order 34 rule 2(3) provides that where a party defaults in complying with directions under rule 2(2) or rule 3, the Court may dismiss the action or proceedings, strike out the defence or counterclaim, enter judgment, or make such order as it thinks fit.

Apart from Order 34, the Court also takes into account Arahan Amalan Hakim Besar Malaya Bilangan 2 Tahun 2025 (the Arahan Amalan) on civil pre-trial case management. The Arahan Amalan was issued under Order 92 rule 3B of the ROC. It gives practical directions on how civil cases are to be managed before trial.

Paragraph 4.5 of the Arahan Amalan concerns case management before a Judge in writ actions. It provides that, after the directions for pre-trial documents are complied with, the Judge shall fix the trial date. It also recognises that a Judge may fix a trial date even if the earlier directions have not been fully complied with, but those directions must still be complied with no later than 30 days before the trial date. Witness statements are to be filed no later than 14 days before trial.

Paragraph 9.2 of the Arahan Amalan provides that e-Review case management begins at 8.00 a.m. and ends at 4.00 p.m. on the date fixed for case management. In my view, this reinforces the duty of solicitors and parties to monitor the e-Review session and to comply with directions issued within that case management process.

Paragraph 9.4 of the Arahan Amalan is also material. It provides that where any party fails to comply with directions given by the Judge or Court officer during case management, whether through e-Review or physical attendance, the Court may make such further order as it thinks fit. This includes an order on costs or striking out the action or proceeding. This paragraph reinforces the Court’s power to enforce compliance with case management directions.

The Federal Court in Syed Omar Syed Mohamed v Perbadanan Nasional Berhad [2013] 1 MLRA 181 held that under Order 34, the Court no longer leaves parties to move litigation at their own pace. The Court assumes the role of setting the timetable for the progress of the case.

The Federal Court also stated that under Order 34 rule 1(3), the High Court must take into account all breaches and non-compliance by the Plaintiff when evaluating the failure to progress the case before deciding whether to dismiss the action.

In Koh Heng Jin @ Koh Heng Leong v Gan Kooi Ann [2015] MLRAU 403, the Court of Appeal held that directions issued during pre-trial case management are peremptory in nature. The Court also recognised the power of the Court to strike out a party’s claim where the party defaults in complying with orders or directions given under Order 34.

However, the discretion to strike out must be exercised carefully. In Md Amin Md Yusof & Anor v Cityvilla Sdn Bhd [2004] 1 MLRA 702, the Court of Appeal held that although an action or counterclaim may be struck out for non-compliance with a peremptory or unless order, all circumstances must be considered. This includes whether there was a history of non-compliance and whether the default was intentional or contumelious.

In Vellasamy Ponnusamy & Ors v Gurbachan Singh Bagawan Singh & Anor [2020] 5 MLRA 190, the Court of Appeal emphasised that substantive rights should not be taken away lightly. The Court observed that there was no provision for striking out for inordinate or contumelious delay unless parties had obtained unless orders or peremptory orders.

In Dr Sim Kui Hian v Chong Chieng Jen & Other Appeals [2021] 4 MLRA 348, the Court of Appeal held that the purpose of pre-trial case management directions is to secure the just, expeditious and economical disposal of the action. The Court cautioned that dismissal may be disproportionate if the trial schedule is not disrupted and the non-compliance does not affect the conduct of the trial. However, the Court also stated that it would have been otherwise if the bundles were not filed at all or other directions were ignored despite a looming trial date.

In Muhammad Ammar Haron v Sharifah Zahidah Syed Nooh & Ors [2024] MLRHU 1928, the High Court recognised the Court’s discretionary power to strike out a claim for non-compliance with case management directions, but stressed that procedural discipline must be balanced with the need to decide cases on their merits. The non-compliance must be serious enough to defeat the purpose of case management before the drastic order of dismissal is made.

In Mohamed Haniffa Sainudin v Dato’ Seri Sulaiman Sainuddin & Anor [2024] MLRHU 161 and Soonher Sing Industries (M) Sdn Bhd v M & R Forwarding Malaysia Sdn Bhd [2025] MLRHU 2898, the High Court enforced Order 34 consequences where there had been repeated non-compliance despite indulgence and warning.

These cases show that an unless order is not a mere formality. It is a final opportunity to comply.

From these authorities, I take the following principles. a) The Court has an express power under Order 34 to dismiss an action or strike out a pleading where a party fails to comply with case management directions. b) The Court must exercise the power judicially. The Court must consider the history of the case, the nature of the non-compliance, whether there was an unless order, whether the default affected trial readiness, and whether a lesser order would suffice. c) Striking out should not be used for a minor or technical breach. It is a serious sanction. d) There is a history of non-compliance and an unless order has been made after earlier indulgence, the Court is entitled to enforce the consequence if the party still fails to comply without sufficient explanation. e) The Court must balance the right of a party to have his case heard on the merits against the duty of the Court to ensure that litigation proceeds justly, expeditiously and economically. Exercise of Discretion under Order 34

The Court is always slow to shut out a litigant from having his claim heard on the merits. This is especially so where the pleaded claim concerns fraud in a land transaction. The Plaintiff alleged that he did not intend to sell his property and that the transfer was procured by fraud. That is a serious allegation.

But the seriousness of the allegation does not exempt the Plaintiff from complying with Court directions. A litigant who brings a serious claim must also take serious steps to prepare the claim for trial.

The discretion under Order 34 must be exercised with balance. The Court must not use its case management powers mechanically or punitively. At the same time, the Court must ensure that litigation moves in a fair, orderly and efficient manner.

The Court must look not only at the effort said to have been made, but also at the result of that effort. If repeated effort produces no real progress, the Court is entitled to ask whether the case is in fact ready for trial.

I first considered the long history of the 3rd Defendant’s bankruptcy issue.

The issue was raised as early as May and June 2024. The Plaintiff was told that the 3rd Defendant was a bankrupt and that leave or sanction may be required before the Plaintiff could proceed against him.

The Plaintiff did not resolve the issue. On 18 November 2024, the Plaintiff sought one month to obtain leave because counsel had to appoint a Sabah lawyer. On 20 December 2024, further time was sought because counsel said time was needed for advertisement and consent from the Official Assignee in Sabah.

On 16 January 2025, counsel again informed the Court that he had no locus to practise in Sabah and was liaising with Sabah lawyers.

On 9 June 2025, counsel said he had tried to contact Sabah lawyers but had not obtained cooperation. On 13 August 2025, the same difficulty was again raised.

By 13 April 2026, the position was still not regularised.

In my view, this was not a small matter. The 3rd Defendant was not peripheral. The Plaintiff’s pleaded case concerned a transfer of the property to the 1st Defendant, a subsequent transaction involving the 3rd Defendant, and a charge in favour of the 4th Defendant. The status of the 3rd Defendant affected the shape of the action and the trial.

I next considered the Plaintiff’s non-compliance with the pre-trial directions.

Trial dates had been fixed for 27 to 30 April 2026. The Court had given directions on the documents required for trial, including issues to be tried, agreed facts, summary of case, facts of case, list of witnesses and witness statements.

These were not administrative formalities. These documents define the trial. They tell the parties what facts are agreed upon, what facts are disputed, what issues need to be tried, what documents will be relied on, and which witnesses will be called.

Without proper compliance, the 4th and 5th Defendants could not properly prepare for trial. The Court also could not manage the trial efficiently.

On 9 March 2026, the Court gave the Plaintiff a final opportunity. The Court made an unless order. The Plaintiff had to comply with the pre-trial case management directions. The matter was then fixed for final case management on 13 April 2026.

The Arahan Amalan also supports the approach taken by the Court. The trial date may be fixed even when some pre-trial directions are still outstanding, but the directions must still be complied with within the time set. In this case, the Court had already fixed trial dates. The Plaintiff was therefore required to use the remaining time to put his case in order. He did not do so.

By 13 April 2026, the Plaintiff still had not complied. The Plaintiff’s new counsel said the Plaintiff was not aware of the unless order. The 4th Defendant objected. The 5th Defendant also confirmed that it had received nothing.

I considered whether the change of solicitor justified further indulgence. I found that it did not.

A change of solicitor does not set aside previous directions. It does not erase an unless order. The duty to comply remained with the Plaintiff. If the Plaintiff said he was unaware of the unless order, the proper course was to place a sufficient explanation before the Court and seek appropriate relief. That was not done.

I also did not accept the explanation that the Plaintiff was not aware of the unless order as a sufficient reason for further indulgence. The earlier case managements were conducted through the e-Review platform. Under paragraph 9.2 of the Arahan Amalan, e-Review case management runs from 8.00 a.m. to 4.00 p.m. on the case management date. Parties and their solicitors are expected to monitor the platform and take note of directions issued by the Court. The Plaintiff cannot rely on lack of awareness to avoid the consequence of non-compliance, without a proper application and a sufficient explanation.

Paragraph 9.4 of the Arahan Amalan is also relevant. The Plaintiff’s failure was not outside the case management framework. It was a failure to comply with directions given during case management. The Arahan Amalan expressly recognises that such failure may lead to further orders, including costs or striking out.

I therefore considered the Plaintiff’s non-compliance under Order 34 and in light of the current case management practice direction issued under Order 92 rule 3B of the ROC. I also considered whether a costs order would have been sufficient. I found that it would not.

This was not merely a case of late filing that caused no prejudice. The unresolved status of the 3rd Defendant and the failure to comply with the Order 34 directions affected the readiness of the case for trial. The trial dates were close. The first trial date had already been vacated on 9 March 2026, and the remaining trial dates were at risk. For that reason, the action was not in a proper state to proceed.

I considered the authorities relied on. Dr Sim Kui Hian is distinguishable because, in that case, the trial schedule was not disrupted. Here, the Plaintiff’s non-compliance affected trial readiness and the trial date had to be vacated. Md Amin is also distinguishable because both sides were in default there. Here, the material default was the Plaintiff’s, while the 4th and 5th Defendants needed certainty to prepare for trial. Vellasamy cautions that substantive rights should not be taken away merely because of delay, but this case involved more than delay. There was an unless order, repeated indulgence and continued default. Syed Omar supports the Court’s power to consider the whole history of non-compliance. Looking at the whole chronology, the Plaintiff’s default was persistent.

I found that the Plaintiff’s conduct of the proceedings showed a lack of diligence. The Plaintiff had allowed central procedural issues to remain unresolved despite repeated case management sessions, repeated reminders, fixed trial dates and finally an unless order.

The Court had given time and opportunity. But the Plaintiff did not produce the required result.

In my judgment, the non-compliance was serious. It defeated the purpose of the Order 34 directions. It affected the Defendants’ ability to prepare for trial. It also affected the Court’s ability to conduct the trial on the fixed dates in a just, expeditious and economical manner.

I therefore found that this was a proper case to exercise the Court’s discretion under Order 34 to strike out the Plaintiff’s action.

The order was not made as punishment for a minor procedural lapse. It was made because the Plaintiff failed to comply with repeated pre-trial directions and the unless order, and because the action was no longer in a position to proceed fairly to trial.

For the reasons stated, I struck out the Plaintiff’s action under Order 34 of the ROC. The remaining trial dates fixed from 28- 30 April 2026 were vacated.

I awarded costs of RM3,000.00 to the 4th Defendant, subject to the allocator and RM3,000 to the 5th Defendant.

For completeness, on 15 May 2026, the 4th Defendant withdrew its counterclaim against the Plaintiff, the 1st Defendant and the 3rd Defendant with liberty to file afresh and with no order as to costs. The Court allowed the withdrawal on those terms. Dated this: 3 June 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Plaintiff : Wan Guan Hui Messrs Caitlen, Nicholas Cheoh & Partners For the 2nd Defendant : Lau Mark Chi-Ming Messrs Sreenevasan Young For the 4th Defendant : K.Y Sim together with Hong Jia Yi and Syarifah Dewi Siti Fatimah Syed Ahmad Fahmi Wafa Messrs K.Y. Sim & Co. For the 5th Defendant : Hani Aziza binti Ismail