Wwf Corporate Recovery Sdn. Bhd. v Kim Marcellus A/L K.M. Matthews (WA-12ANCvC-183-10/2024)

There are two (2) appeals before me arising from two (2) interlocutory matters dealt with by the Sessions Court. Due to the interconnected nature of both appeals, they are heard together.

In Civil Appeal No. WA-12ANCvC-183-10/2024 ("Appeal 183"), the plaintiff (appellant herein) is appealing against the decision of the learned Sessions Court Judge in allowing the defendant (respondent herein) to strike out the Writ and Statement of Claim 20/07/2025 19:04:03 WA-12ANCvC-183-10/2024 Kand. 20 S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 8 dated 18 June 2024 under Order 18 rule 19 of the Rules of Court 2012 ("ROC").

Meanwhile, in Civil Appeal No. WA-12ANCvC-185-10/2024 ("Appeal 185"), the plaintiff is appealing the decision of the learned Sessions Court Judge who dismissed its application for judgment in default of defence.

In accordance with a Letter of Employment dated 2 January 2013, the plaintiff employed the defendant as a Liquidation Executive with a salary of RM4,500.00.

On 29 December 2021, he was promoted to Liquidation Manager with a salary of RM6,150.00.

In the period between 31 May 2021 and 18 August 2021, the plaintiff wrote a few warning letters to the defendant regarding the defendant's working attitude.

Meanwhile, the defendant wrote letters dated 1 September 2021, 8 August 2022, 7 September 2022 and 5 October 2022 alleging that his salaries for July, August and September 2022 were not fully paid.

Consequently, the defendant claims that he had no choice but to resort to 'forced resignation' as stated in his letter dated 21 October 2022. S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal

As a result, the defendant filed a complaint with the Industrial Relations Department, and the case has been referred to the Industrial Court as Case No. 2/4-1445/23.

Nevertheless, the plaintiff filed the action at the Sessions Court on 18 June 2024 claiming, amongst others, a declaration that the defendant had breached his duty of care towards the plaintiff, that the defendant acted negligently, that the defendant breached his duty of care on confidentiality, as well as damages.

The defendant then filed his Memorandum of Appearance on 25 July 2024.

He then filed his striking out application on 5 August 2024, and pending its determination, held off on filing his defence.

The striking out application was filed within fourteen (14) days after he entered an appearance, but no defence was filed within that period.

In response to this opportunity, the plaintiff filed an application for judgment in default of defence.

The learned Sessions Court Judge then proceeded to allow the defendant’s striking out application on the basis that, amongst others, the plaintiff did not file its affidavit in reply to the striking out application within time, and when it did, it failed to request an extension of time to file the same out of time. In addition, the learned S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 8 Sessions Court judge held that the plaintiff's action constituted a multiplicity of actions.

Simultaneously, the learned Sessions Court Judge dismissed the plaintiff's application for a judgment in default of defence, stating that it had become academic.

As a result of the plaintiff's dissatisfaction, it filed these two appeals.

In Appeal 183, the plaintiff argues that the learned Sessions Court Judge erred in law and/or fact when Her Honour failed to grasp how important it is that the relief sought by the plaintiff in the Sessions Court cannot be granted by the Malaysian Industrial Court in the case filed by the defendant.

Additionally, the plaintiff argues that the learned Sessions Court Judge should exercise Her Honour’s discretion to allow the plaintiff's affidavit in reply instead of rejecting it outright.

To begin with, I will discuss the plaintiff's failure to file its affidavit in reply on time as instructed by the court.

In this regard, the learned Sessions Court Judge instructed the plaintiff to file his affidavit in reply by 28 August 2024, but the same was only filed on 11 September 2024. S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal

On this issue, I do not find any error on the part of the learned Sessions Court Judge in not exercising Her Honour’s discretion to admit the said affidavit in reply as suggested by the plaintiff.

More specifically, not only was there no compliance with the court's directions regarding such filing of the affidavit in reply, but there was no proper application to the Sessions Court for an extension of time made by the plaintiff.

To this end, it would have been different if the Sessions Court had received such an application together with the reasons for the delay for the Court's consideration. As a result, the Sessions Court was unable to weigh both sides' positions due to the absence of a proper and valid affidavit in reply.

In this regard, it goes without saying that compliance with the Court's directions cannot be taken lightly.

Given the above, the Sessions Court was correct to hold that the plaintiff's application to enter a judgment in default of defence has become academic.

Aside from that, I am also aware that the Court will generally be reluctant to grant a declaration as part of a default judgment without any evidence. His Lordship Gopal Sri Ram JCA (as His Lordship then was) observed as follows at p 825 in Gan Boon Kyee v. Yap Hong Sin & Anor [1997] 3 CLJ 822: S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 8 “I have read the judgment of the learned Judicial Commissioner with great care, bearing in mind that this is not the case of an ordinary judgment in default but one of declaratory relief. As observed by Zamir & Woolf, on “The Declaratory Judgment” (2nd Edn.) at p. 264: ... Courts will generally be reluctant to grant a declaration as part of a default judgment in the absence of any evidence and argument. Before the Court grants a declaration it wants to be sure, as in the case of an injunction, that it is appropriate to grant that relief.”

Moreover, I find that this is not a case where the defendant simply neglected to file a defence. This is because the application to strike out the plaintiff's action was made within the time limit for filing the defence.

Aside from that, the defendant also requested a specific prayer in his application for an extension of time to file his defence if his application to strike out is dismissed.

Due to the above, the plaintiff should have contested such an application by filing its affidavit in reply within the time as directed by the Sessions Court, which it did not do.

Consequently, the plaintiff's position was fatal. Technically, the Court has nothing to decide on (See Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 CLJ 609). S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Having relied on the above findings, these appeals should be dismissed for that reason alone.

However, I will take a brief look at the merits of the appeal, particularly Appeal 183, for completeness.

Regarding the plaintiff's action amounting to a multiplicity of proceedings, I agree with the learned Sessions Court Judge’s finding that the nature of the plaintiff's declaration still relates and arises due to the defendant's alleged ‘forced resignation’. In any event, there can still be a multiplicity of actions even if the issues raised and the relief sought are not similar. Accordingly, there can be no conflict between decisions made by two separate courts.

In Chen Joon Onn v. Kong Siew Kin [2006] 7 CLJ 1, Her Ladyship Heliliah Mohd Yusof J (as Her Ladyship then was) observed as follows at p 10: “[12] Reliance was placed on the case of Lai Kim Loi v. Dato’ Lai Fook Kim & Anor [1989] 2 CLJ 107; [1989] 1 CLJ (Rep) 61. Gunn Chit Tuan SCJ (as he then was) in delivering the decision of the Supreme Court had then observed that the filing of a petition by a petitioner who had also filed a writ of summons and statement of claim amounted to multiplicity of actions. His Lordships observations were as follows: Although the issues raised and the relief sought are not totally similar yet we consider that the substantial supplication of issues and relief sought in both actions amounted to multiplicity of actions and in all the S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 8 of 8 circumstances of this case, the petition presented is vexatious and is an abuse of the process of the court and ought to be struck out as the learned judge has done and not stayed or the petition be allowed to be amended as suggested by counsel for the petitioner.”

Based on the above findings, Appeal 183 and Appeal 185 are dismissed with costs of RM5,000.00 each, subject to allocatur. …………………………………………… (RAJA AHMAD MOHZANUDDIN SHAH) Judge High Court of Kuala Lumpur Dated 13th May 2025 For the Appellant/Plaintiff - Messrs Muhillan Ng & Gomez Muhillan Sivananthan & Sum Pui Si (Samantha) For the Respondent/ - Messrs Mohan Kumar Defendant S. Mohan Kumar S/N sDRsiSnGbEybwsMp0Rv5w **Note : Serial number will be used to verify the originality of this document via eFILING portal