Janwell Sdn Bhd v Teguh Majuria Sdn Bhd (BA-22NCvC-7-01/2021)

The Plaintiff’s suit was struck out by Order of the Court on 3-10- 2023 (“Order”) due to non-compliance by the Plaintiff with pre-trial case management directions to file witness statements before 28-8-2023. The Order was made on day 2 of what would have been the trial of the suit. There was a procedural history before the Order that I do not need to go into. 03/01/2025 08:41:06 BA-22NCvC-7-01/2021 Kand. 206 S/N U0pUsAzhAUajUafqn7Vjdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

The Plaintiff applied vide Enclosure 149 to set aside the Order dated 3-10-2023 and vide Enclosure 151 to reinstate the suit. I dismissed both applications on 10-12-2024 based on a preliminary objection raised by the Defendant that the Court was functus officio to decide Enclosures 149 and 151. The Plaintiff has appealed.

The appeal raises a straightforward question of whether the proper mode of challenging the dismissal of an action for non-compliance with a pre-trial direction of the High Court is by way of an appeal to the Court of Appeal or by the mode undertaken by the Plaintiff in this case, and why. To my mind, this question has been answered by the Federal Court and it is premised on the principle that a Court becomes functus officio once it has decided on a matter.

Based on settled law as laid down in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 (“Hock Hua”), the Court has no power under any application in the same action to alter, vary or set aside an order regularly obtained after it had been drawn up, except under the slip rule, so far as is necessary to correct errors in expressing the intention of the Court, or where it is obtained by default or made in the absence of a party.

As later clarified in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (“Badiaddin”), it is now also settled law that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction for the same reason, but the filing a fresh suit to do so is permissible if the aggrieved party can bring himself within the category of exceptional cases where the order is void for illegality or want of jurisdiction. S/N U0pUsAzhAUajUafqn7Vjdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

In Lim Oh & Ors v Allen & Gledhill [2001] 3 CLJ 233 (“Lim Oh”), the High Court had set aside the issuance and service out of time of an amended writ and statement of claim following an order allowing leave to amend. Instead of appealing that decision, the appellant filed a fresh action which was then met with a striking out application.

The Federal Court in Lim Oh held that it was an abuse of process to file a fresh action where a suit had been set aside for failure to comply with a peremptory order of the court. Relevantly, the Federal Court in Lim Oh equated the failure on the part of the appellant to comply with the amendment order with non-compliance of a peremptory order of the court.

The ratio in Lim Oh is that the proper approach is to appeal the setting aside of the first action, following Janov v. Morris [1981] 3 All ER 78 per Watkins LJ who said inter alia: “In the event of his action being ordered to be struck out for failure to obey a peremptory order, he may appeal against that order seeking, if necessary an extension of time within which to do so. The outcome of such an appeal will to some extent depend on the excuse for failure preferably set forth in affidavit form provided for the court's consideration. If a litigant neglects to avail himself of that procedure and brings a fresh but precisely similar action to that ordered to be struck out, without any explanation then or at any later time for a failure to obey the peremptory order, he should not be surprised that the commencement of the second action is found to be an abuse of the process of the court and for that reason it, too, is struck out.” S/N U0pUsAzhAUajUafqn7Vjdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

Although Badiaddin and Lim Oh concerned the filing of a fresh action rather than an application within the same action, the essential ruling in those cases is that the proper mode to challenge an impugned decision is to appeal. In other words, save for the exceptions spelt out in Hock Hua and Badiaddin, the proper mode of challenging a final perfected order regularly obtained is to appeal.

Against the aforesaid Federal Court decisions, the Plaintiff relied on the case of Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) & Anor [2010] 4 MLJ 17 (“Hatara”). There the Court of Appeal allowed a reinstatement of an action struck off for failure to comply with case management directions and held that the proper mode to challenge an impugned order depends on whether the court had struck out or dismissed a case on merits.

The ratio in Hatara was that the plaintiff had locus to apply to reinstate the action under the inherent jurisdiction of the court pursuant to O 92 r 4 of the Rules of the High Court 1980 as the merits of the suit had not been heard. The Court of Appeal was of the view that to strike out the plaintiff's suit in such circumstances would involve an error in principle in the exercise of judicial discretion and it had occasioned a substantial miscarriage of justice. S/N U0pUsAzhAUajUafqn7Vjdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The functus officio theory was not considered in Hatara and neither was the doctrine of res judicata which the functus officio theory is a part of. I declined to follow Hatara and instead followed Lim Oh, Badiaddin and Hock Hua, all of which applied a principled approach in dealing with the proper mode to challenge an impugned order.

I am fortified in this view by reference to the decision of Nazlan JC (as he then was) in How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712 which considered both decisions (i.e. Lim Oh and Hatara) in a detailed analysis. As observed, Lim Oh has been followed and is considered settled law without distinguishing cases struck out on merits and those that do not. The following observation was also made: “In addition, in the instant case, the decision of the learned DR in removing the action by the plaintiff is strictly a “dismissal” in accordance with the wordings in the present Order 34 r 2 (3), which provision confers upon the learned DR the authority to make such order in the first place. Given the introduction of the term “dismissal” in the present Order 34 r 2 (3), decisions to dismiss actions under the said Order 34 r 2 (3) following any failure to obey an “unless order” could, applying Tee Ha Leong, be construed to be capable of challenge only by way of an appeal, thus at the same time reinforcing the principle enunciated in Lim Oh.” S/N U0pUsAzhAUajUafqn7Vjdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

For the above reasons, this Court concluded that the Order dated 3-10-2023 was a final, perfected order regularly obtained that cannot be challenged in the same proceedings because the Court is functus officio and that the proper mode to challenge it would have been to appeal. Thus, both Enclosures 149 and 151 were dismissed with costs of RM5,000.00. Bertarikh : 3 Januari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif : Muhammad Qayyim Irfan bin Baharuddin, Messrs Christopher Yeo & KP Chang (Kuala Lumpur) Untuk Defendan : Wee Choo Keong (with Yeo Wei Min), Messrs Wee Choo Keong & Faaiz (Kuala Lumpur) S/N U0pUsAzhAUajUafqn7Vjdw **Note : Serial number will be used to verify the originality of this document via eFILING portal