Mtr Freight Sdn Bhd v J&T Express (Malaysia) Sdn Bhd (WA-27NCC-8-02/2024)

The Defendant D filed a notice of application dated 5.12.2025 in Enclosure 203 to strike out the Plaintiff s P claim and enter judgment . The striking out application is made under Order 24 rule 16 of the Rules of Court 2012.

Via Enclosure 203, D seeks to :

the writ and statement of claim both dated 7.2.2024;

defence to counterclaim dated 8.4.2024; and

claimed pursuant to the defence and counterclaim dated 20.3.2024.

On 11.2.2026, I allowed striking out application in Enclosure 203. Here are my reasons. Background facts

On 21.8.2024, a previous judge granted a discovery order discovery order Under the discovery order, P was ordered to prepare, file and serve on D four months from the date of the discovery o discovery documents

all air way bills from the airline companies supporting the weightage that was charged by P in P D from the years 2018 to 2023;

all master air way bills from the airline companies supporting the weightage that was charged by P in s invoices issued to D from the years 2018 to 2023; and

all weight slips from the cargo terminal operator supporting the weightage that was charged by P in P D from the years 2018 to 2023.

On 23.6.2025, due to P - compliance with the discovery order, D filed an application to vary the discovery order to include a peremptory order.

On 14.10.2025, the previous judge allowed D granted amended discovery order Whereby the following peremptory order was inserted as part of the discovery order : that the Plaintiff fails to make, file and serve on the Defendant solicitors the discovery documents within 30 days from the date of the amended discovery order, the Court orders that : a) the Plaintiff writ and the statement of claim, both dated 7 February 2024, be struck out with costs forthwith; b) the Plaintiff defence to the counterclaim be struck out with costs forthwith; and c) a judgment (for the Defendant counterclaim) be entered against the

Despite the amended discovery order and the peremptory order contained therein, P failed to comply with the same. As such, D filed the present striking out application in Enclosure 203. The law

The court has the power to dismiss an action, strike out a defence and enter a judgment if there has been non - compliance with a discovery order.

This is by virtue of Order 24 rule 16 of the Rules of Court 2012, which reads : If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11

(1), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered

In Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia [2008] 1 MLRA 759; [2008] 3 MLJ 625, the Court of Appeal held : Rule 16 (1) of O 24 of the RHC should apply to the appellants / applicants. The effect of non - compliance is quite severe. It provides that the court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered dismissing the appellants / applicants three applications with costs even though such a prayer appears in the summons in chambers of the respondents / defendants dated 13 May 2005. And such an order was made by the High Court on 31 July 2007 as seen at pp 1 - We do not see anything wrong with the order of the High Court ... ... [41] Pleading and Practice (22nd Ed) by DB Casson and IH Dennis which merits reproduction. There at pp 238 - 239, the learned authors wrote : Default in Making Discovery If any party fails to discover or produce or allow inspection of documents as provided by any of the foregoing rules, or as ordered, the court has power under rule 16 (1) to make any order it thinks just. This includes, in particular, the power to order that an action be dismissed, or that a defence be struck out with judgment to be entered accordingly (Salomon v Hole [1905] 53 WR Ltd [1975] 1 WLR 603). Normally, however, the court is reluctant to exercise such power and will only do so when a party has at least once disobeyed a peremptory order insisting, for example, that he make discovery within a time specified in the order. A party who fails to comply with an order for discovery or production is also liable to committal [rule 16

(2)]. These are highly penal provisions and will only be enforced in the last resort, where it seems clear that the party in default really intends not to comply with an order of the court.

The court also has the power to dismiss an action, strike out a defence and enter a judgment, if there has been a breach of a peremptory order.

In Lim Goh Eng Holdings Sdn Bhd v Off - Shore - CPI Supply Sdn Bhd [2020] MLJU 275, the High Court said : 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. The Plaintiff s non - compliance with the amended discovery order

In the present case, what would need to be determined is whether P has complied with the terms of the amended discovery order. It is my finding that P has failed to comply with the terms of the amended discovery order.

Accordingly, the effect of the peremptory order stated in the amended discovery order ought to be enforced. Thereby striking out P claim and defence to counterclaim, and entering judgment against P in respect of

The terms of the amended discovery order and the peremptory order contained therein is plain. It reads : 1) Plaintif, dalam tempoh 4 bulan dari tarikh Perintah ini, hendak memberi penzahiran kepada Defendan dengan membuat, memfailkan dan menyampaikan kepada peguamcara Defendan dokumen-dokumen yang berikut : a) semua bil-bil jalan udara (air way bills) daripada syarikat-syarikat penerbangan menyokong berat yang di caj oleh Plaintif dalam invois-invois Plaintif yang di isukan kepada Defendan dari tahun 2018 hingga tahun 2023; b) semua bil-bil jalan udara induk (master air way bills) daripada syarikat-syarikat penerbangan menyokong berat yang di caj oleh Plaintif dalam invois-invois Plaintif yang di isukan kepada Defendan dari tahun 2018 hingga tahun 2023; dan c) semua slip-slip berat (weight slips) daripada pengendali terminal kargo (cargo terminal operator) menyokong berat yang di caj oleh Plaintif dalam invois-invois Plaintif yang di isukan kepada Defendan dari tahun 2018 hingga tahun 2023. 4) Sekiranya Plaintif gagal membuat, memfailkan dan menyampaikan kepada peguamcara Defendan dokumen-dokumen yang di senaraikan di dalam perengan-perengan 1 (a) hingga 1 (c) di atas dalam tempoh masa 30 hari dari tarikh Perintah Terpinda di sini, maka Mahkamah memerintahkan bahawa : a) Tindakan asal Plaintif yang di failkan melalui Writ dan Pernyataan Tuntutan Plaintif, kedua - duanya bertarikh 7 Februari 2024, adalah di batalkan dengan kos serta merta; b) Pembelaan kepada Tuntutan Balas Plaintif bertarikh 8 April 2024 adalah di batalkan dengan kos serta merta; dan c) Penghakiman (bagi Tuntutan Balas Defendan) adalah di masukkan terhadap Plaintif dengan serta - merta.

No appeal was filed by P against the discovery order or the amended discovery order. Accordingly, P has accepted and is bound to fully comply with both the discovery order and the amended discovery order.

It is indisputable that P to - date has failed to fully disclose to D solicitors the discovery documents. By its own admission in the affidavit in reply dated 24.12.2025 in Enclosure 226, P stated that it had only provided to D the following documents :

Even taking P P has yet to disclose to D solicitors the following documents : Documents ordered to be produced Documents produced Documents not produced All air way bills from the airline companies supporting the weightage that was issued to D from the years 2018 to 2023 House airway bills from August 2022 to November 2023 House airway bills from January 2018 to July 2022 House airway bills in December 2023 All master air way bills from the airline companies supporting the weightage invoices issued to D from the years 2018 to 2023 Master airways bills from August 2022 to November 2023 Master airway bills from January 2018 to July 2022 Master airway bills in December 2023 All weight slips from the cargo terminal operator supporting the weightage invoices issued to D from the years 2018 to 2023 None All weight slips from 2018 to 2023

In the premises, there has been a breach of the amended discovery order by P. Accordingly, the peremptory order stated in the amended discovery order ought to be given effect. The Plaintiff - compliance with the amended discovery order is said to be prejudicial to the Defendant

The Defendant asserts that the discovery documents are material and crucial to its case. Without the discovery documents, D is deprived of the opportunity to ascertain the amount that P had allegedly overcharged D previously.

Notwithstanding P - compliance with the amended discovery order, based on the documents that have been provided by P to D thus far, D claims that it discovered that the amount overcharged by P is at least RM 3.8 million. This amount is conservative as it was derived without the benefit of the full set of the discovery documents ordered to be produced by P.

Without the discovery documents, D says that it is severely prejudiced to properly pursue and fully advance its counterclaim and claim for set - off, and to mount a complete and effective defence against P suit.

On this aspect, the High Court in Yayasan Khazanah v Dina Izazi Zulqaisar & Ors [2025] MLJU 2027, , found that the failure of the plaintiff to comply with a discovery order has caused material prejudice to the defendant.

The High Court said : failure to comply with the discovery order has caused material prejudice to the defendants and has disrupted the orderly progression defendants were unable to file their amended defence and counterclaim by the deadline fixed by this Court, namely on 12.12.2024. [32] The documents sought are central to the dispute, particularly in relation to The respond meaningfully to the claims and to mount an effective defence. [33] The legal consequences of non - compliance with peremptory discovery orders have been clearly articulated by the Federal Court in Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2013] 1 MLRA 181; [2012] 9 CLJ 557; [2013] 1 AMR. In the absence of cogent justifications, the court is entitled to treat the non - compliance as unjustified and to impose the

To oppose the striking out application in Enclosure 203, P canvassed the following arguments :

P has complied with the discovery order and the amended discovery order, by producing the documents that are within its possession; and

There is no contumelious and intentional non - compliance with the discovery order and the amended discovery order.

I will deal with the arguments in turn Allegation 1 : The Plaintiff has complied with the discovery order and the amended discovery order, by producing the documents that are within its possession

Simply put, P discovery order and the amended discovery order, merely because P has produced the discovery documents that are within its possession.

P had filed four lists of documents, namely :

list of documents dated 20.12.2024 in Enclosure 160 ( first list of documents );

list of documents dated 21.4.2025 in Enclosure 166 ( second list of documents );

list of documents dated 14.11.2025 in Enclosure 198 ( third list of documents ); and

amended list of documents dated 18.11.2025 in Enclosure 200 ( fourth list of documents ).

I consider that P them from breaching the discovery order and the amended discovery order. The Plaintiff order and the amended discovery order

It is important to emphasize that the discovery order and the amended discovery order is an order for specific discovery. It compels P to make, file and serve on D - à - vis the discovery documents. The discovery order and the amended discovery order is not an order stating that P is only required to produce the discovery documents that are in its possession, control or custody.

As such, even if it is true that P does not have in its possession the outstanding discovery documents, this does not provide a defence to P for breaching the discovery order and the amended discovery order.

In the circumstances, there is wilful disobedience by P of the discovery order and the amended discovery order. It justifies sanctions to such conduct as per the terms of the peremptory order contained in the amended discovery order pursuant to Order 24 rule 16 of the Rules of Court 2012.

The Court of Appeal in Ong Boon Hua (supra) held : [59] The failure on the part of Chin Peng to produce those documents sought by the respondents / defendants for inspection was fatal. Discovery was not given by the stated time and at the end of that time since the discovery has not been given, the High Court was right in allowing the respondents / of the RHC with costs in the cause and, [60] It is always prudent to remember that O 24 r 16 (1) of the RHC gives power to the court to order, for instance, that the defence be struck out and that judgment be entered accordingly unless the party complies with the rule or order for discovery by the stated hour of the stated day (see the Supreme Court Practice (1985 Ed) at p 417, at 24 / 16 / 1). Here, the High Court was right in dismissing the appellants /

In Azraimah Che Abdullah v Ahmad Sharil Ikram Ramli & Anor [2019] 1 LNS 1209, the High Court said : In the instant OS, if the plaintiff is not happy with the nature of the discovery order, what the plaintiff should have done is to make an application to set aside or otherwise vary the same so as to insert the phrase a government's document examiner . There was nothing in the discovery order that even mentioned the word government . In the circumstances, the original discovery order remains an order that has to be complied with. A non - compliance of the same without a valid ground would certainly attract the application of O. 24 r. 16 (1) for the OS be dismissed. [36] The grounds given by the plaintiff in the AIR - 24 are untenable. Until and unless the discovery order is varied in the manner in which the plaintiff envisaged it to be, the plaintiff has no choice but to comply with the same. If the plaintiff opted not to comply with the discovery order as reflected in the

I conclude that P - compliance with the amended discovery order warrants the invocation of the peremptory order contained therein. The issue of the Plaintiff not being in possession of the discovery documents is barred by res judicata, and the Plaintiff is estopped from alleging that it is not in possession of the discovery documents

I consider that P is estopped from raising the allegation that it is not in possession of the discovery documents. The issue of whether or not P is in possession of the discovery documents is barred by res judicata. At all material time, P has never sought to raise the allegation that it does not have possession of the discovery documents during the discovery application.

One of the elements that the court has to be satisfied when granting discovery is whether the documents sought are within the possession, custody or power of the opposing party. (See the High Court case of Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 at 585).

In view of the fact that P never saw it fit to raise the issue that the discovery documents are not in its possession, the previous judge granted the discovery order directing P to make, file and serve specific documents (i.e. the discovery documents). When the discovery application was allowed, P did not see it fit to appeal against the discovery order. In other words, P accepted the full terms of the discovery order.

In Bakar (Deceased) (Representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 10 MLJ 900, the High Court struck out the first - compliance with a discovery order. The court held that it was too late and unacceptable for the first defendant to claim non - existence of the documents after a perfected discovery order, and the fact that no such contention was raised during the discovery proceedings itself.

The High Court said (at page 916 - 917) : Reverting back to the non - did not say at the outset of the discovery proceedings that these documents did not exist possession, custody or control the reports and diagnosis on the basis that they never existed is not convincing to me to justify the non - compliance by D1. It is imperative to note that in his affidavit in reply in encl 142 to oppose the discovery did not say these documents did not exist, but instead raised issues on irrelevancy and that they were academic. When not a whisper that these documents do not exist. [35] Yew & Anor v Tan Sri Lim Kok Thay & Anor [2017] 1 LNS 1791 to be misconceived as that case concerns an application for discovery. Here, the decision to order discovery has already been made; the court has decided such order is necessary either for disposing fairly of the case or matter or for saving costs, and bearing in mind, that the cause of action of the plaintiffs pertain to the allegation of deception practised on the court through deliberate and conscious concealment of the relevant and material facts by D1 in OS 131. The documents sought to be discovered by D3 are as such relevant, necessary and taking out OS 131 and defending this action. The principles laid out in the case of IOI Loders Croklaan Oils Sdn Bhd v LK Freight Services (M) Sdn Bhd & Ors - compliance. [36] since the discovery order has already been made and perfected, to now claim the reports sought and diagnosis do not exist is too late and unacceptable. Further, I have no jurisdiction to review the matter and any challenge to my decision lay by way of

Similarly here, P ought to be estopped from now raising the allegation that the discovery documents are not in its possession. (See the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 at 344 - 345 and 348).

Further, the issue of P not being in possession of the discovery documents was raised (albeit belatedly) by P in resisting D notice of application dated 23.6.2025 in Enclosure 168 to vary the discovery order to include a peremptory order.

Despite P verment above, the previous judge allowed application to vary the discovery order. Thus, the issue of whether P is in possession of the discovery documents is caught by res judicata.

The Court of Appeal in Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 said : The learned judge, on 13 October 1993, was faced with an objection as to the form of proceedings which had been adopted by the appellants. He came to the conclusion that the form chosen by the appellants was not irregular. Although that was a decision made on an interlocutory matter which was purely procedural in nature it was nevertheless binding on the court and on all parties to the lis until its reversal on appeal. In our judgment the decision of the learned judge overruling the respondent s preliminary objection rendered the point taken res judicata. If authority is needed for the proposition which has commended itself to us, it is to be found in Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 which was drawn to the attention of counsel during argument and in which there appears the following passage in the judgment of Sharma J (at p 76) : In Satyadhyan Ghosel & Ors v Sint Deorajin Dobi and another AIR 1960 SC 941, the statement of the law on the subject is given thus : to judicial decisions. What it says is that once a res is judicata, it shall be not adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicatais embodied in relation to suits in s 11 of the Code of Civil Procedure; but even where s 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re - agitate the matter again at a subsequent stage of the same proceedings A decision given by a court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. A failure to adhere to the principle expressed in the judgment of Sharma J just quoted may lead to chaos in the conduct of civil proceedings. The facts of this very case afford a good illustration of such a consequence. We have here an earlier decision by the judge upon a procedural issue determining it in the and applies to the judge to reopen the issue and review his earlier decision. The judge obliged and reversed himself. What was there to prevent the appellants from then an application to the judge to re - review his decision reversing himself? On the assumption of the law made by counsel before us, there would have been no bar to the judge undertaking such an exercise. The process could then be repeated ad infinitum with no conclusion. It would be a circular tail chasing exercise with no forward movement, proving to the man on the street that the ensue in accepting the contention of counsel demonstrates the inaccuracy of the proposition advanced. We cannot over emphasize the proposition that once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened willy - nilly

It bears reiterating that P did not appeal against the amended discovery order. In other words, P accepted the decision of the court in allowing the application to vary the discovery order, and granting the amended discovery order containing the peremptory order.

Having accepted both the discovery order and the amended discovery order and having chosen not to appeal against the same, it does not lie in P discovery documents are not in its possession. As such, the question of whether P is in possession of the discovery documents is a non - starter. Allegation 2 : There is no contumelious and intentional non - compliance with the discovery order and the amended discovery order by the Plaintiff

P maintains that there is no contumelious and intentional non - compliance with the discovery order and the amended discovery order, as it has made best effort to locate the discovery documents and had produced all the discovery documents that are within its possession.

However, the issue of whether there is contumelious and intentional non - compliance with the amended discovery order is irrelevant to the present striking out application. The amended discovery order is clear in that non - compliance triggers the effect of the peremptory order. The question of why the amended discovery order was breached, and whether there was intention to breach the amended discovery order, is immaterial.

The Court of Appeal in Damai Jaya Realty Sdn Bhd v Pendaftar Hakmilik Tanah, Selangor [2015] 2 MLJ 768 at 771 - 772 held : Federal Court that all orders of court must be obeyed by the relevant parties (unless the order is set aside), a principle which is much entrenched in our jurisprudence It is also well settled the motive for disobedience is irrelevant The failure to act and decide as enunciated by the Federal Court on the face of record is bad under the Federal Constitution, as it compromises the authority and jurisdiction of the court and paves way and also stands as a precedent for relevant parties to breach an order of court. The consequence of breach of order of court is a serious matter and amounts to contempt and the Federal Constitution preserves the power of the Superior Court to punish for contempt under art 126 to ensure order of courts are complied by all, inclusive of all

In any event, this allegation by P is without merit. Firstly, as explained earlier, the issue of P not being in possession of the discovery documents is barred by res judicata. P is estopped from alleging that it is not in possession of the discovery documents.

Secondly, contrary to P intentional breach of the discovery order and the amended discovery order on the part of P. irst non - compliance with the discovery order

On 4.12.2024, after the granting of the discovery order, P wrote to the court via a letter dated 4.12.2024 in Enclosure 157, to request for an extension of time of four months until 21.4.2025 to produce the documents pursuant to the discovery order. This was on the ground that the documents ordered for discovery are voluminous.

During a case management on 11.12.2024, P was granted an extension of time until 21.4.2025 to comply with the discovery order. This was on the condition that P forwards to D the documents that P had managed to compile for the time being at the material time.

On 21.12.2024, by way of P P served on D first list of documents. Which P claims to be all copies of House Airway Bills and Master Airway Bills arranged according to the relevant Invoice No. from July 2023 until November 2023

It cannot be disputed that the documents in the first list of documents were not the full discovery documents as ordered in the discovery order. non - compliance with the discovery order

On 22.4.2025 (which is a day after the extended deadline of 21.4.2025 allowed by the court), by way of P

22.4.2025, P served on D second list of documents. Which P all retrievable copies of House Airway Bills and Master Airway Bills arranged according to the relevant Invoice No. from August 2022 until December 2022 which is attached herein as Attac

In this regard, P has again not complied with the discovery order. Whereby the documents produced in the first list of documents and the second list of documents are not the full discovery documents. non - compliance with the discovery order

On 14.11.2025 (which is a day after the deadline of 13.11.2025

On 18.11.2025, P served on D fourth list of documents. Which P claims to stated in Schedule 2 of the third list of documents. No new documents were produced in the fourth list of documents.

The truth is that whilst P has filed the third list of documents and the fourth list of documents after the amended discovery order was granted, there are no new documents that were provided by P to D which were not previously already provided in the first list of documents and the second list of documents.

In this regard :

By way of the first list of documents and the second list of documents, P has produced the house airway bills and master airway bills from August 2022 to December 2022 and July 2023 to November 2023.

In the third list of documents and the fourth list of documents, whilst P all copies of House Airway Bills and Master Airway Bills arranged according to the relevant documents produced therein are actually the same documents produced in the first list of documents and the second list of documents.

In other words, the third list of documents and the fourth list of documents are a compilation of the first list of documents and the second list of documents, without including any other new documents.

Contrary to P master airway bills from January 2023 to June 2023 have been produced in the third list of documents and the fourth list of documents, these documents were never produced.

It is evident that there has been repeated and consistent failure by P to abide by the discovery order and the amended discovery order. Which in itself shows contumelious non - compliance.

In Folin & Brothers Sdn Bhd (in liquidation) v Wong Foh Ling & Wong Swee Lin & Ors [2001] 5 CLJ 476 at 480, the High Court held that the disobedience of an unless order is likely to be held as contumelious behaviour. The court said : comply with its terms, and any disobedience to such an order is likely to be held to be contumelious behaviour which would result in the dismissal of the action or the striking out of the defence and in the event it gives rise to a dismissal of the action, it may prevent the plaintiff from issuing a second writ even though the period of limitation has not expired. Ward L.J. in Hytec Information Systems Ltd v Cove in these fine words : An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party s last chance to put his case in order.

Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed.

This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure.

It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred) flouts the order then he can expect no mercy.

A sufficient exoneration will almost inevitably require that he satisfies the order that something beyond his control has caused his failure to comply with the order.

The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice.

The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two

Repeated failure by a party to comply with an order of the court will ing judgment. In Lakefront Residence Sdn Bhd v Tetuan Lui & Bhullar (menjalankan perniagaan firma guaman secara perkongsian) & Ors [2025] MLJU 1093, the High Court said : - compliance demonstrates a pattern that justifies the order made. [49] The dismissal is proportionate given the repeated failure to comply with court directions and the clear warning in the unless order. The Plaintiff was well aware of the consequences of non - compliance. [51] While courts should generally strive to decide cases on their merits, this principle must be balanced against the need for procedural discipline and the finality of litigation. The Plaintiff has had ample opportunity to comply with court

As the amended discovery order was a last chance for P to produce the discovery documents, it is axiomatic that P - compliance with the orders granted by the court amount to contumelious conduct.

In any event, there is no merit in P best effort to locate all the documents under the discovery order and the amended discovery order and had produced all the discovery documents that are within it .

Save for such bare allegation, there are no particulars or documents produced by P locate the discovery documents and had produced all the discovery documents that are within its .

Further, there is also no explanation or demonstration of the steps taken or how P has allegedly discovery documents. If arguments such as these put forward by P is acceded to, the utility of a discovery order and the amended discovery order containing the peremptory order, and the implications of non - compliance of the same, would be rendered illusory.

Bare unsubstantiated allegations ought to be rejected. (See the Court of Appeal case of Puncak Niaga (M) Sdn Bhd v NZ Wheels Sdn Bhd [2012] 1 MLJ 27 at paragraph 22; the Federal Court case of Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 at 314).

The importance of complying with a court order, and the effect of failing to comply with a court order, has been highlighted time and again by the appellate courts.

In Hup Soon Omnibus Co Sdn Bhd & Anor v Lim Chee @ Lam Kum Chee [2017] MLJU 1937, the Court of Appeal held : On the factual matrix of the present case, it is quite plain to us that the appellants had wilfully breached the 31.3.2016 Order requiring them to deposit RM 50,000.00 within 14 days as security for the costs. [7] The appellants had offered no plausible explanation for the breach of the order. In our view, the non - compliance was a wilful and blatant disregard of the order of the Court of Appeal for which sanctions would be justified. [8] The Court will pay particular regard to the paramount importance of securing compliance with its orders. In Stolzenberg and Others v CIBC Mellon Trust Co. Ltd. [2004] EWCA Civ 827, Arden L J said at paragraph 167 :- Compliance with orders of the court is not a question of judicial amour prope. It goes to the essence of the rule of law that parties subject to the the matter of non - compliance is plainly increased where the non - compliance results from a conscious decision, as in this case. It follows, as Ward LJ said in Hytec Limited v Coventry City Council [1997] 1WLR 1666 ... flouts the order, he can expect no m circumstances the injustice to him outweighs the interests of the [12] Before parting with this appeal, we would like to emphasise that a court order is a court order. It must be obeyed as ordered unless set aside or varied. It is not a mere technicality that can be ignored. If we allowed court orders to be ignored with impunity, this would destroy the authority of judicial orders which is the heart of all judicial systems. We hold a firm view that a court order is not a mere technical rule of procedure that can be simply ignored. In our jurisprudence, court orders must be respected and complied with. Those who choose to ignore them do so at th

In Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal

2 MLJ 217 at 220 - 221, the Supreme Court held : It is established law that a person against whom an order of court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied. Any person who fails to obey an order of court runs

It is insufficient for P to now contend that it has not intentionally not complied with the amended discovery order on the excuse that it has discovery documents.

In Howitt Transport Ltd and another v Transport and General [1973] ICR 1, it was held : First, orders of any court must be complied with strictly in accordance with their terms. It is not sufficient by way of answer to an allegation that a court order . But if a court order requires a certain state of affairs to be achieved the only way in which the order can be complied with is by achieving that state of affairs. Secondly, no court will order action to be taken which is impossible.

In summary :

The order for discovery in this matter is specific. It does not merely require P to only produce documents that are in its possession;

The question of possession, control or custody was never raised by P during the application for discovery;

There has been repeated and consistent failure by P to abide by the discovery order over a period of 14 months, which led to the court granting the amended discovery order;

The amended discovery order already makes it clear that non - compliance of the same will result in P ing struck out and judgment being entered in favour of D on its counterclaim; and

Though irrelevant, P the discovery documents are not supported. These are bare allegations which have no utility before the court.

I am conscious that striking out is a draconian power. Ordinarily, I would be slow to exercise such power. In this case however, P has disobeyed a peremptory order. It is apparent that P will not or cannot comply with the discovery order and the amended discovery order.

The discovery order has already been made. At law, it must be on the basis that the discovery documents exist and are in the possession, custody or power of P. Further, that the discovery documents are necessary for a fair disposal of the matter or for saving costs. On top of that, the discovery order was reinforced by the amended discovery order which stated the peremptory order.

If truly it was impossible for P to abide by the discovery order or the amended discovery order, they ought to have appealed or applied to vary the order. They have only themselves to blame for being in this situation. Having putting themselves in this situation, P can expect no mercy.

Hence striking out is an appropriate last resort sanction in these circumstances. I consider that the imposition of such sanction is necessary for the administration of justice. Otherwise, the court would be paying lip service to a peremptory order, and it would be meaningless to issue an unless order.

For the reasons above, I consider it just and proper that P struck out and judgment be entered in favour of D on its counterclaim. This would be in accordance with the peremptory order stated in the amended discovery order. striking out application in Enclosure 203.

I entered judgment in favour of D as per paragraph 34.3 of its counterclaim. Namely an order that P shall repay to D any and all amounts which P had overcharged D for the freight services.

I ordered an assessment of damages pursuant to paragraph 34.3 of counterclaim. I ordered costs to be in the cause of the assessment of damages. Dated 3 March 2026 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2) Counsels James Ng Kean Yip and Tay Yeong Hui (Messrs. Arifin & Partners) for the Plaintiff Leong Chee Weng, M. Naveen Sri Kantha and Harshinie Paranitharan (Messrs. Lee & Poh Partnership) for the Defendant Case reference 1. Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia [2008] 1 MLRA 759; [2008] 3 MLJ 625 2. Lim Goh Eng Holdings Sdn Bhd v Off - Shore - CPI Supply Sdn Bhd [2020] MLJU 275 3. Yayasan Khazanah v Dina Izazi Zulqaisar & Ors [2025] MLJU 2027 4. Azraimah Che Abdullah v Ahmad Sharil Ikram Ramli & Anor [2019] 1 LNS 1209 5. Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 6. (Deceased) (Representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 10 MLJ 900 7. Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 8. Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 9. Damai Jaya Realty Sdn Bhd v Pendaftar Hakmilik Tanah, Selangor [2015] 2 MLJ 768

Folin & Brothers Sdn Bhd (in liquidation) v Wong Foh Ling & Wong Swee Lin &

Ors [2001] 5 CLJ 476 Lakefront Residence Sdn Bhd v Tetuan Lui & Bhullar (menjalankan perniagaan firma guaman secara perkongsian) & Ors [2025] MLJU 1093

Puncak Niaga (M) Sdn Bhd v NZ Wheel Sdn Bhd [2012] 1 MLJ 27

Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301

Hup Soon Omnibus Co Sdn Bhd & Anor v Lim Chee @ Lam Kum Chee [2017]

MLJU 1937 Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal (1993) 2 MLJ 217

Howitt Transport Ltd and another v Transport and Gene [1973] ICR 1 Legislation reference 1. Order 24 rule 16 of the Rules of Court 2012