Kong Wan Looi v 1. ) Ong Poo Lee (JA-33-534-10/2024)

ONG POO LEE

CHEN VIN CI …RESPONDENTS GROUNDS OF JUDGMENT

The Appellant has filed a divorce petition (Enclosure 1) against the First Respondent (“R1”), inter alia, seeking a divorce, custody, care and control of the child, maintenance and also the matrimonial properties to be sold and proceeds to be divided between the Appellant and the R1. The Appellant is also seeking loss and damages or compensation including mental breakdown, embarrassment suffered by the Appellant as a result of adultery against R1 and/or the R2 amounting to RM S/N ZClObEEV0anyqatenMV3g 500,000.00.

The R1 has filed a Reply and Cross Petition against the Appellant, inter alia, seeking a divorce, joint custody of the child be given to the Appellant and R1, care and control be given to the Appellant, maintenance of the child and the Appellant, and the Singapore matrimonial property to be converted to the single ownership of R1 where R1 will pay the Appellant a sum of

On 21.07.2025 during the case management, I allowed the R1’s Cross Petition as follows due to failure of the Appellant to comply with the Pre-Trial directions given by the Deputy Registrar:

Enclosure 1 is struck out;

the marriage to be dissolved immediately;

joint custody of the child to be given to the Appellant and R1;

the care and control of the child to be given to the Appellant with reasonable access to R1, which include at least twice a month visitation access with prior notice from R1 and/or R1’s mother;

the Singaporean property bearing the address at No. 16, Canberra Drive #03-35, Singapore 768097 be sold and the proceeds to be distributed equally between the Appellant and R1 after deducting all the necessary S/N ZClObEEV0anyqatenMV3g expenses of the sale;

R1 shall provide SGD3,000.00 per month as maintenance of the child; and

the Appellant bear the costs of the proceedings.

I also struck out the claim against R2.

Below are the grounds of my decision.

The background facts in Enclosure 1 are gathered from the cause papers filed by the parties in chronological order.

On 24.03.2013, the Appellant was legally married with the R1 before the Registrar of Marriages at Persatuan Penganut Agama Buddha Hock Lin, Johor Bahru.

The Appellant and R1 have one (1) child, Ong xx (“the child”) in this marriage, aged 3 now.

There are marital properties between the Appellant and the R1 as follows:

the Singaporean matrimonial property bearing the address at No. 16 Canberra Drive, #03-35, Singapore 768097 which is owned by Appellant and R1 purchased in March 2015;

the Singaporean BMW car No.: SNH8542S registered S/N ZClObEEV0anyqatenMV3g under the name of R1;

the Malaysian property of Senibong Isola Coast registered under the name of R1 purchased on 19.11.2023 and the completion date estimated to be in 2026; and

the Malaysian property of Setia lndah Double Storey Corner House bearing address at No. 1, Jalan Setia 12/19, Taman Setia lndah, 81100 Johor Bahru, Johor under the name of R1 and R1’s father.

The Appellant averred that the marriage of the Appellant and R1 should be dissolved because the marriage has irretrievably broken-down and cannot be restored based on inter alia, the following reasons:

they no longer have an understanding and do not want to continue the marriage because they feel that there is no more love for each other and are also unable to communicate well with each other and there has always been arguments between the two of them; and

the R1 has an extra marital affair with R2.

On the other hand, R1 states that the reason he wanted a divorce was due to the Appellant unreasonable behaviour that R1 cannot reasonably been expected to live with the Appellant. The reasons for their marriage breakdown are as follows:

the Appellant has frequently demanded substantial and increasing monetary transfers from R1’s accounts S/N ZClObEEV0anyqatenMV3g without his consent;

disregard for R1’s health and work commitment;

neglect her household responsibilities; and

neglect R1’s family.

R2 via her Reply to the Petition has denied she is related to the Petition and denied the adultery alleged by the Appellant.

ISSUE TO BE DETERMINED The only issue to be determined by the Court is whether the Court can strike out Enclosure 1 and allow the Respondent’s Cross Petition due to the failure of the Appellant to comply with directives including filing pre-trial documents by deadline. COURT ANALYSIS AND FINDINGS Whether the Court can strike out Enclosure 1 and allow the Respondent’s Cross Petition due to the failure of the Appellant to comply with directives including filing pre-trial documents by deadline

Order 34 of the Rule of Court (“ROC”) 2012 provides as follows: “(3) The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit.

Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just.”. [Emphasis added] S/N ZClObEEV0anyqatenMV3g

In the case of Hong Leong Finance Bhd V Low Thiam Hoe And Another Appeal 1 [MLJ] 2016, it was decided as follows:- “[18] It is pertinent to note that Yamada Motor was decided under the old RHC 1980. The civil procedure has since then changed with the introduction of the pre-trial case management in the year 2000 under O34 of the RHC 1980 (22 September 2000) and now under O34 of the RC 2012 (1 August [2016] 1 MLJ 301 at 309 2012). Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat (see the case of Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] 9 CLJ 557).... “. [Emphasis added]

Therefore, based on the authority above, the court will take a pro-active role to prevent any delay in the progress of a case to a trial.

Further, I refer to the Court of Appeal decision in Faisal @ Ibrahim Siraj & Anor v. Pentadbiran Tanah Daerah Hulu Langat & Ors [2024] 2 MLRA 146 which has ruled that Order 34 Rule 2(4) is applicable by way of a setting aside application and not appeal where it was held that— “[16] On 17 December 2019, the High Court had struck out the Plaintiffs’ claims on the reason that the Plaintiffs had failed to comply with the Court’s instructions to file the cause papers required for trial, i.e. the Bundle of Agreed Documents, the Agreed Facts and Issues to be tried. Dissatisfied, the Plaintiffs moved an appeal to the Court S/N ZClObEEV0anyqatenMV3g of Appeal in Civil Appeal No: B-01(IM)(NCvC)- 35-01/2020. The appeal was struck out on 6 July 2020 with an award for cost of RM3,000.00 in favour of D7 in which the Court of Appeal had allowed the Respondents to strike out the appeal based on the reason that the Plaintiffs had wrongfully appealed against such order. The Plaintiffs should first apply to the High Court in accordance to O 34 r 2(4) of the Rules of Court 2012.” [Emphasis added]

In the instant case, the Appellant has on 11.08.2025 filed an application to set aside the Order and later filed Notice of Appeal on 12.08.2025. Applying the principles of the case above, Appeal should be struck out and the Court will proceed with the application to set aside the Order. However, I leave it to the Court of Appeal to decide whether the appeal should proceed.

The Deputy Registrar has during the case management via e-Review on 12.12.2024, instructed the parties to file the following PTCM documents:

Bundle of Pleadings;

Bundle of Documents in Part A, B and C;

Brief Facts of the Appellant;

Brief Facts of the Respondents;

Agreed Facts;

Issues To Be Tried; and

Witness Statement, on or before 15.02.2025 (the “PTCM Direction”). The case is fixed for case management on 24.03.2025 and later adjourned to 07.07.2025.

On 07.07.2025 during the case management, the Appellant’s solicitor did not attend the Court with the excuse that they have a case at the Shah Alam Court and requested a solicitor to mention on their behalf. The solicitor informed the Court that the parties are in the midst of settlement and requested another date to update the status of settlement. The Respondents’ solicitor informed that they have sent their comments on the PTCM document to the Appellant’s solicitor on 21.02.2025 and reminder on 20.05.2025 as they received no response from the Appellant’s solicitor. The Respondents’s solicitor have informed the Appellant’s solicitor that they have filed unapproved draft Issues To Be Tried and not the one commented by them.

Upon checking, I find the Appellant’s solicitor has filed the Bundle of Pleadings, Brief Facts of the Appellant and the Issues To Be Tried. However, as at 07.07.2025, the Appellant has failed to file Bundle of Documents and Agreed Facts. The Respondents did not file their brief facts. The Respondents’ solicitor raised the non-compliance of the PTCM Direction by the Appellant’s solicitor and lackadaisical approach of the matter by the Appellant’s solicitor. I then adjourned the matter to 21.07.2025 for the parties to resolve the issues and to file the rest of PTCM documents before

21.07.2025. I further ordered that, the Appellant’s solicitor who is handling the matter to attend Court on 21.07.2025 and if the Appellant failed to comply with the direction given by me, I will strike out L1 and allow the R1’s Cross Petition on 21.07.2025.

Despite being ordered, the Appellant’s solicitor did not turn up on 21.07.2025, instead they have requested the Respondent’s solicitor to mention on their behalf via email sent to the Respondents’ on 21.07.2025 at 8.00 am. They have informed via their email that they have a case at Kuala Lumpur without giving details such as which court they are attending and the case number. The Respondents’ solicitor informed the Court that they refused to mention on their behalf and requested the Court to strike out Enclosure 1 and allow their Cross Petition as the Appellant’s solicitor failed to file the rest of the PTCM Documents as directed by the Court on 07.07.2025.

The Respondents’ solicitor has requested some amendment be made to paragraph 58 as follows based on the agreement of the parties before the Court made an order:

subparagraph (d) is amended to reflect that the parties agreed to sell the Singapore matrimonial property and proceeds of the sale to be distributed after deducting all the expenses;

(ii) delete subparagraph (e); and

(iii) amend subparagraph (f) by substituting the payment of S/N ZClObEEV0anyqatenMV3g SGD2000.00 to the payment of SGD3000.00 being the maintenance of the child.

I allowed the amendment to subparagraphs 58(d), (e) and (f) as proposed by the Respondents’ solicitor. Pursuant to Order 34 rule 2(4) ROC 2012, I allowed the Cross Petition of R1 as per subparagraphs 58 (a) to (d), (f) and (g) based on the unless order made by the Court pursuant to Order 34 rule 2(3) of ROC 2012. The Order made by me is in fact in favour of the Appellant and is in accordance to the Appellant’s proposal through the parties negotiation prior to the Court Order.

The Appellant’s solicitor has blatantly disregarded the Court’s direction to attend Court on 21.07.2025 and has failed to take any action to comply with the PTCM Direction and also direction given by this Court on 07.07.2025.

In this regard, I refer to the case of Lim Goh Eng Holdings Sdn Bhd v Off-Shore-CPI Supply Sdn Bhd [2020] MLJU 275, where the High Court held that— “[8] An unless order is an order of the Court which requires a person to do something within a fixed time and states the consequences of transgression. There is abundant authority to the effect that an unless order being a pre-emptory order of the Court, must be adhered to and its non compliance would automatically attract the penalty prescribed in the order. Failure to comply may therefore result in the dismissal of an action or the striking out of the defence. See How Hock Sing @ Low Kim Peng [2015] MLJU 712 and Reiss v Woolf [1952] 2 All ER 112. S/N ZClObEEV0anyqatenMV3g … [16] It bears mention that unless there are good reasons for non-compliance, disobedience of a peremptory order will be considered contumelious conduct justifying a striking out….”. [Emphasis added]

Further, in the case of Koh Heng Jin v. Gan Kooi Ann [2015] CLJU 1244, where the Court of Appeal held that – “[40] In our view even though the learned judge did not issue an “unless order”, O. 34 r. 2(2) of the ROC (not O. 34 r. 1 as cited by counsel) clearly contemplates that orders and directions issued by the court during pre-trial case management are peremptory in nature as O. 34 r. (3) of the ROC confers on the court the power to, inter alia, strike out a party’s claim either on its own motion or upon the application of any party, in the event that such party defaults in complying with any order and/or directive issued by the court under the said O. 34 r. 2(2).”. [Emphasis added]

Obviously, the Appellant’s solicitor did not provide any cogent explanation as to why they failed to adhere to the PTCM Directions and the direction given by me on 07.07.2025.

The arrogant attitude of the Appellant’s solicitor for not appearing in Court on 21.07.2025 despite being ordered to do so has behaved disgracefully toward the Court. The conduct of the Appellant’s solicitor is unprofessional and has no respect to this Court. The Appellant’s solicitor has clearly violated Rule 15 Legal Profession (Etiquette and Conduct) Rules 1978 which provides S/N ZClObEEV0anyqatenMV3g that— “Respect to court. An advocate and solicitor shall maintain a respectful attitude towards the Court.”. [Emphasis added]

Further, the Appellant’s solicitor should not have accept this case if they are not able to appear in Johor Bahru High Court on the date fixed by this Court. The conduct of the Appellant’s solicitor has contravened Rule 6 and Rule 24 of the Legal Profession (Etiquette and Conduct) Rules 1978 which provides that— “Rule 6. An advocate and solicitor not to accept brief if unable to appear

An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

An advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Rule 24. Advocate and solicitor to be ready for the day fixed for trial

An advocate and solicitor shall make every effort to be ready for trial on the day fixed.

An advocate and solicitor may apply for postponement of a case fixed for hearing for good and cogent reasons only.

Except in an emergency, it is improper for an advocate and solicitor to apply for a postponement in the absence of counsel or S/N ZClObEEV0anyqatenMV3g the other side unless he has given the counsel concerned at least forty eight hours notice of his intention to make the application.”. [Emphasis added]

CONCLUSION Based on the reasons above, I allowed the R1’s Cross Petition for paragraph 58 as stated in paragraph 3 above and I struck out the claim against R2. Dated 8 October 2025. Signed by: SGD ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Appellant: Mr. Muhammad Khairuddin Bin Anuar Messrs. Yoon & Partners Counsel/Solicitor For the Respondents: Mr. Ronald Ang Yu Chye