Spade Capital Sdn. Bhd. v 1. ) Paragrene Land Berhad (WA-22NCC-90-02/2024)

MOHD HALIM WHY BIN ABDULLAH DEFENDANTS GROUNDS OF JUDGMENT (ENCLOSURE 20) S/N z3krvutQokSMkuaiAZ8ZEg

The Plaintiff seeks to withdraw this claim with liberty to file afresh in accordance with Order 21 rule 3 of the Rules of Court.

After considering the chronology of this case and the fact that the case has not been set down for trial and the merits have not been considered by this Court, I find that the Plaintiff should be allowed to withdraw this claim subject to payment of costs to the Defendants and that it should be given liberty to refile the claim if it wishes to do so. Costs as ordered by this Court must be paid in full to the Defendants before any new suit could be filed by the Plaintiff. B. Chronology 3. I lay down the important chronology of events concerning the progress of this file before this Court: -

The Plaintiff files its Writ of Summons and Statement of Claim (Encls. 1 and 2) – 7-2-2024

(ii) The Defendants file their Statement of Defence (Encl. 5). – 29-2- 2024 S/N z3krvutQokSMkuaiAZ8ZEg

(iii) The Plaintiff files the Plaintiff’s Amended Statement of Claim (Encl. 6) – 13-3-2024.

(iv) The Defendants file the Defendants’ Application to object to the Plaintiff’s Amended Statement of Claim (Encl. 8). – 22-3-2024.

The Court allows the Defendants’ Application to object to the Plaintiff’s Amended Statement of Claim, i.e., the Plaintiff’s Amended Statement of Claim is disallowed (Encl. 24) 18-9-2024.

(vi) The Plaintiff files this Application to withdraw their suit against the Defendants with liberty to file afresh (Encl. 20). 25-9-2024.

(vii) The Plaintiff files an appeal to the Court of Appeal against the Court’s decision dated 18-9-2024 in regard to the disallowing of the Plaintiff’s Amended Statement of Claim (Encl. 26) 17-10-

2024.

The Defendants do not agree with the application filed by the Plaintiff. They believe that the application is an abuse of process and should not be allowed, or at the very least, the suit should be discontinued without liberty to file afresh. The arguments put forth to support their position are as follows: - S/N z3krvutQokSMkuaiAZ8ZEg

The Plaintiff is merely trying to improve its case against the Defendants. Despite not being allowed to amend its Statement of Claim, it now wishes to withdraw the claim with liberty and then file a new suit against the Defendants for the same claim but with an improved Statement of Claim.

(ii) The Defendants are put at a disadvantage as their defence has been fully disclosed to the Plaintiff, and they could change the particulars of their claim against them in a new suit.

(iii) The withdrawal of this suit is a tactic utilized to improve the Plaintiff’s claim in a new suit.

(iv) The Defendants are willing and able to have the trial fixed and heard on its merits. C. Decision of this Court

I must first consider the factors that have been identified by our Superior Courts when dealing with an application to withdraw a suit under Order 21 rule 3 of the Rules of Court. S/N z3krvutQokSMkuaiAZ8ZEg

The leading case in this area is the decision of Raja Azlan Shah J (as he then was) in Overseas Union Finance Ltd v Lim Joo Chong [1971] CLJU 101, where he laid down the guidelines that must be considered by a Judge when dealing with such an application: - "However, it is at my discretion whether I should allow discontinuance. Guidelines to the discretion can be found in the Annual Practice 1963 at page 593 under the heading Before Judgment which reads:- "Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him." If the applicant is dominus litis, then leave to discontinue may be granted. If he is not then it is unlikely that I would grant him leave to discontinue. I do not think that the applicant is wholly dominus litis. He cannot dispose of the case as he thinks fit or allow it to be dismissed or let judgment go by default. The parties have come to a stage where the respondent chargor has gained an upper hand by an advantage in that he could find flaws in the applicant/chargee's allegation, namely the wrong dates in the memorandum, etc, and the fact that the reason for wanting a discontinuance is not a very strong one. The respondent/chargor is not to S/N z3krvutQokSMkuaiAZ8ZEg be deprived of these advantages which have made him a well-matched adversary in the arena. Having considered all the points, I am of the opinion that the application to discontinue should be dismissed."

I have also taken into consideration the factors laid down by the Court of Appeal in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd & Ors [2017] CLJU 527, where Zabariah Mohd Yusof JCA (as she then was) held: - “23. Before granting the order for discontinuance of an action, the court must be satisfied that: i) if a defendant is dominus litis, the general rule is to refuse leave to discontinue (see Overseas Union Finance Ltd v. Lim Joo Chong [1971] CLJU 101; [1971] 1 LNS 101; [1971] 2 MLJ 124); ii) The case is not at an advanced stage; if so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and circumstances of the case (see Fox v. Star Newspaper Company [1898] 1 QB 636); S/N z3krvutQokSMkuaiAZ8ZEg iii) the plaintiff may have gained an interim interlocutory advantage between the date of issue of the writ and the point of time he seeks to discontinue (O'Neal v. Mann [2000] FCA 1680); iv) there is no miscarriage of justice occasioned by its refusal to permit the discontinuance; v) it will not prejudice the opponent to the application or take away from him any advantage to which he is fairly and reasonably entitled.

In summary, the discretion to allow the application to discontinue an action and the discretion to impose the terms accompanying it, depend very much on the facts and circumstances of each case..”

I also refer to the decision of the English Courts in Fox v Star Newspaper Company [1898] 1 QB 636 where Chitty LJ held: - “The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms. I think it would be a great error to construe the rule by reference to the old meaning of the term "discontinuance" or any S/N z3krvutQokSMkuaiAZ8ZEg mere technical sense of words. The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter.”

It would be remiss of me not to refer to Gopal Sri Ram JCA (as he then was) in Majlis Peguam Malaysia v Raja Segaran [2002] 3 MLJ 155 had this to say on this issue: - “..a judge exercising his power under O. 21 r. 3 which permits discontinuance has a wide discretion. But it is not an unprincipled discretion. There are important guidelines that act as beacons, guiding him through those blurred areas of which we spoke a moment ago. One of these guidelines is that if a defendant is dominus litis, the general rule is to refuse leave to discontinue. See Overseas Union Finance Ltd v. Lim Joo Chong [1971] 2 MLJ 124. Another guideline is that where the case is at a very advanced stage, care should be taken not to permit discontinuance. And what constitutes an advanced stage depends on the facts and circumstances of each case as illustrated by the case of Fox v. Star Newspaper Company [1898] 1 S/N z3krvutQokSMkuaiAZ8ZEg QB 636. Another consideration; yet another guideline; which a judge ought to bear in mind is any interim or interlocutory advantage that the plaintiff may have gained between the date of issue of the writ and the point of time which he seeks to discontinue: O'Neal v. Mann [2000] FCA

The upshot is that it all depends on the facts and circumstances of each case, bearing in mind that one ought not to depart from the outer parameters established by the guidelines to which we have referred. Mr. Vijandran submits that the general rule is that the plaintiff is to be permitted to discontinue the action which he has initiated. In the context of O. 21 r. 3, we would, with much respect, dissent from that submission. We do so for the reasons we have advanced thus far when discussing the guidelines which any judge should respect when exercising his discretion.”

This Court also refers to United Asian Bank Bhd v Balakrishnan Thanakodi & Ors [1992] 1 CLJ 522, Hanhyo Sdn Bhd v Marplan Sdn Bhd [1991] 3 CLJ 1783 and Punj Lloyd Oil & Gas (Malaysia) Sdn Bhd v Etiqa Insurance Bhd [2016] 5 CLJ 549 (Court of Appeal affirming the High Court Order). S/N z3krvutQokSMkuaiAZ8ZEg

The factors that this Court should take into consideration could be summarized as follows: -

What stage are the proceedings at?

(ii) Who could be considered to be dominus litis?

(iii) Whether the Plaintiff obtained any interlocutory orders to its advantage and when the application to withdraw is filed?

(iv) Whether the Defendant would suffer any irreparable harm?

What orders should be made, in the interest of justice, even if a discontinuance should be allowed?

Considering the above, I find that the Plaintiff should be allowed to withdraw his claim with liberty to file afresh due to the following factors: -

This claim is at an early stage. Parties have only exchanged pleadings and have not filed their documents, witness statements, and other important documents as directed by the Court. No trial dates have been fixed.

(ii) The Defendants are not dominus litis as they have only successfully challenged the amended statement of claim filed by the Plaintiff. The case S/N z3krvutQokSMkuaiAZ8ZEg has not been set down for trial, and to say that the Defendants would eventually win the suit based on the chronology of the file at this stage would be wrong.

(iii) The Plaintiff has not obtained any interlocutory orders to its disadvantage in this suit.

(iv) This Court should not compel the Plaintiff to continue the claim against the Defendants at this early stage. Parties have only exchanged their pleadings. No trial date has been fixed, and it would be wrong to remove the Plaintiff from their right to have their claim heard on its merits.

The application to withdraw and the conduct of the Plaintiff throughout the suit cannot be said to be abusive. The fact that this Court did not allow the amendments to the Plaintiff’s claim does not mean that the Defendants will be successful in this suit, and does not on its own show that the whole suit was filed abusively by the Plaintiff against the Defendants.

I further opine that this Court should allow the Plaintiff’s application subject to the condition that the costs of this suit be paid by the Plaintiff to the Defendants to compensate them for the discontinuance. I also believe that the Plaintiff should not be forced to continue with this claim despite S/N z3krvutQokSMkuaiAZ8ZEg the Defendants’ insistence. The Defendants are still not the dominant litigant at this early stage, and I do not believe they would have won the suit if it had been heard at trial.

I also opine that the Plaintiff’s withdrawal of this claim should be made with an express order that it be given liberty to file afresh. This is due to the fact that this claim is still at its early inception and has not fully bloomed to enable this Court to determine whether the Defendants were at the cusp of victory. It is when the Defendants are able to show that they are Dominant Litis should this Court (i) not allow the withdrawal or (ii) at the very least allow the said withdrawal but direct that it be made without liberty to file afresh and costs to be paid. This case has not reached the said stage, and I find that it is in the interest of justice that the Plaintiff should be given liberty to file afresh.

Nonetheless, I do agree that the Defendants should be paid the costs as directed by this Court before any new suit is filed by the Plaintiff. The Plaintiff should bear that responsibility and to show bona fides on their part. S/N z3krvutQokSMkuaiAZ8ZEg

For the above reasons, I make the following orders:-

Enclosure 20 is allowed with costs against the Plaintiff.

(ii) The Plaintiff is given liberty to file afresh, subject that the costs as ordered by this Court of RM 10,000.00 to be paid by Plaintiff to Defendants must be paid before any new suit is filed.

(iii) Costs subject to allocator. Dated 13th May 2025 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC5 S/N z3krvutQokSMkuaiAZ8ZEg Counsel: Tiong Hui Yii For the Plaintiff Tiong & Associates Advocates & Solicitors Dinesh Nandrajog For the Defendants Nandrajog Advocates & Solicitors S/N z3krvutQokSMkuaiAZ8ZEg