1. ) MICHAEL ANG AEK HANG 2. ) KENNY ANG AEK KIAN 3. ) KONG CHEE SHEN 4. ) IEVPAD MALAYSIA SDN BHD 5. ) E & S SUPPLY TRADING v WEE YONG HUANG

Case Significance

Illustrates the discovery-enforcement power under Order 24 rule 16(1) of the Rules of Court 2012 as a distinct basis for striking out a defence and counterclaim — separate from the merits-based power in Order 18 rule 19 — where a party fails to comply with discovery requirements; the High Court declined to disturb the Sessions Court's exercise of that discretion.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Choong Yeow Choy, is an appeal against the striking out of a defence and counterclaim for failure to comply with discovery obligations. The appellants — three individuals together with two business entities, IEVPAD Malaysia Sdn Bhd and E & S Supply Trading — had been the defendants in a Sessions Court suit brought by the respondent. The Sessions Court had struck out the appellants' defence and counterclaim and entered judgment against them, and importantly it had done so not under Order 18 rule 19(1) of the Rules of Court 2012 (the summary striking-out power) but under Order 24 rule 16(1), for failure to comply with the requirements for discovery, together with the court's inherent jurisdiction under Order 92 rule 4. The appellants challenged that exercise of power.

The court dismissed the appeal. It analysed the distinct footing on which the striking-out order had been made: Order 24 rule 16(1) empowers a court to strike out a pleading where a party has failed to comply with an order or requirement for discovery, a sanction directed at securing compliance with the discovery regime rather than at testing the intrinsic merits of the pleading. Applying the established principles governing that power, the court was of the considered view that the learned Sessions Court Judge had rightly exercised her discretion in striking out the appellants' defence and counterclaim and entering judgment for the respondent. It found no basis to interfere with that discretionary decision. It accordingly dismissed the appeal and ordered the appellants to pay costs of RM20,000 to the respondent, subject to allocatur. The judgment is a useful illustration of the discovery-enforcement power under Order 24 rule 16(1) of the Rules of Court 2012 as a distinct basis for striking out a pleading, separate from the merits-based power under Order 18 rule 19.