Soon Her Sing Industries (M) Sdn. Bhd. v M & R Forwarding Malaysia Sdn. Bhd. (JA-22NCvC-204-12/2024)

This judgment is pursuant to an ‘Unless Order’ granted by this court for failure to comply with pre-trial directions given. A. Background facts

The fact of this matter can be shortly stated.

This matter was first called for pre-trial case management on 27.3.2025. Pursuant to the pleadings being deemed closed, the 09/12/2025 08:22:07 JA-22NCvC-204-12/2024 Kand. 75 learned Senior Assistant Registrar (“SAR”) had directed the following to be filed by 27.5.2025: a. Bundle of Pleadings. b. Common Bundle of Documents. c. Statement of Agreed Facts. d. Statement of Issues to be Tried. e. List of Witnesses. f. Summary of case.

At the case management, parties were reminded by the SAR to comply with the above directions. Failing which, an Unless Order would be given by the court. The learned SAR had then scheduled the next case management before me, on 11.6.2025.

At the second case management, the Defendant had requested for an extension of time to file the pre-trial documents. This reason for this extension was explained via the Defendant’s letter dated 27.5.2025 in enclosure 9. This court allowed the same and extended the deadline to 15.7.2025.

By giving a new deadline, it would only mean that an Unless Order have been invoked which would lead to either the suit being dismissed, or judgment entered against the party failing to comply. This was to ensure strict compliance by both parties.

The matter was called up for a third case management on 15.7.2025. Unfortunately, based on the court’s records, only the following documents were filed within the deadline: a. The Plaintiff’s summary of case. b. The Plaintiff’s list of witnesses. c. The Plaintiff’s Statement of Agreed Facts. d. The Plaintiff’s Statement of Issues to be Tried. e. The Common Bundle of Documents of the Plaintiff. f. The Defendant’s summary of case.

The remaining documents were not filed by the Defendant, despite a deadline given. It follows, as indicated by the SAR, an Unless Order being in place. During the case management on 15.7.2025, no reasonable excuses were given for this failure so as to move this court to consider exercising its inherent discretion. This court was also informed that the documents contained in the Common Bundle of Documents filed consist only of the Plaintiff’s documents.

At the case management on 15.7.2025, no indication was given by the Defendant’s solicitors as to when their pre-trial documents can be filed. At that point, a period of 7 months has lapsed since the filing of this suit and lightly more than 2 months since the Defence was filed on 5.5.2025.

It is unacceptable for the Defendant to sit on filing its own documents, especially when such documents would be required in preparation of its own Defence anyway. Allowing a party to continuously delay the filing of its own documents would be inconsistent with an expeditious and economical disposal of this matter.

Given the failure of the Defendant to comply with this court’s directions and the Unless Order in place, this court was moved to strike out the Defendant’s Defence. Pursuant to the Defence being struck out, this court allowed judgment to be entered against the Defendant.

In placing the Unless Order, this court was guided by Order 34, rule 1 of the Rules of Court 2012: “Orders and directions for just, expeditious and economical disposal of proceedings (O. 34, r. 1)

(1) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that—

all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

Where the Court makes orders or gives directions under paragraph (1), the Court may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued.

Where any party fails to comply with any order made or direction given by the Court under paragraph (1), the Court may dismiss the action, strike out the defence or counterclaim or make such other order as it thinks fit.”

Next in deciding whether the Unless Order should take effect, this court is guided by the principles in common law. It is axiomatic that when a party does not obey an Unless Order, the court will impose the stated consequence. In Re Jokai Tea Holdings Ltd (Note) [1992] 1 WLR 1196, the English Court of Appeal explained that when a party fails to comply with an Unless Order, the key consideration is whether the failure was deliberate. Courts should not be quick to find excuses for such failures. Obeying court orders are essential, but if a party can clearly show that the failure was unintentional and beyond their control, then the failure would not be viewed as deliberate or as a reason to deny the party its rights.

Following the English Court of Appeal case of Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666, the correct approach that ought to be taken by this court: a. An Unless Order is a last resort; usually made after there have been earlier failures to comply. It seeks to give the party one final chance. b. If the party still fails to comply, the sanction will follow. c. This is to ensure there is strict discipline in court proceedings and prevent any unnecessary backlogs of cases. d. If there is deliberate failure, the court can exercise its discretion accordingly.

There is an abundance of local authorities on this principle, all of which echo the above. C. Findings of the court

Both parties had fair opportunity to comply with the pre-trial directions. For ease, the chronology of events is as follows: Date Event Time given 27.12.2024 The suit was filed.

20.1.2025 The Writ of Summons was amended pursuant to O. 20, r. 1 of the ROC

2012.

24.1.2025 The 1st case management before the DR.

5.3.2025 The Defence was filed.

27.3.2025 The 2nd case management before the DR. Pleadings were closed and pre-trial directions were directed to be filed by 27.5.2025. 2 months given to comply.

11.6.2025 The 3rd case management, scheduled before me. An extension of time was given and an Unless Order was in place. 1 month, 4 days given to comply. Pre-trial documents are to be filed before the next case management on 15.7.2025.

A total of 3 months and 13 days (from 27.3.2025 to 15.7.2025) were given to both parties to comply with the pre-trial directions. By that stage, 5 months and 25 days has lapsed since the Amended Writ of Summons was filed and no positive progress is seen on this case. The pre-trial documents required were not unfamiliar or complex, and in the ordinary course of exchanging pleadings, the Defendant would have already had the bulk of these documents as part of their case. There was therefore no reasonable basis for the delay.

If the Defendant had any genuine difficulty in preparing its documents, it should have explained the nature of the difficulty and sought proper directions. This was not done. The Defendant did not file a written request for an extension of time, did not indicate any good reasons orally during case management, and did not show any effort to update the Court on its progress. The absence of any explanation here is important; suggesting that the failure to comply was not due to something beyond their control.

Further, this inaction had caused delay to the progression of the case. As the pre-trial directions were not complied with fully, this case could not progress to the next stage, i.e. trial dates could not be set yet despite the 7-months maturity of this matter. In this regard, this court is mindful of the Arahan Amalan Bil 1/2020.

Even at the final case management on 15.7.2025 and when the deadline had passed, the Defendant’s solicitors were still unable to inform the Court when it could comply. This court cannot be expected to continue giving extensions indefinitely when there is no sign of progress. It is only after the Unless Order had taken effect and judgment was entered against them, had the Defendant filed in their documents that evening.

Accordingly, this court had no choice but to enforce the Unless Order. The Defence was struck out, and judgment was entered for the Plaintiff.

Paragraphs (a) to (e) of the Amended Writ of Summons in enclosure 4 was thus allowed. After hearing submissions of parties, costs of RM10,000.00 was granted subject to allocator. (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA JOHOR BAHRU Dated 15th July 2025 Solicitors for the Plaintiff : Alvin Chang Teck Kiam Messrs Alvin’s Chang Chamber Solicitors for the Defendant : 1.

Amni Humaira binti Rosman