EDWIN TEOH JIT SIONG v PLENTIFIELD MARKETING SDN.BHD.

Case Significance

Illustrates that an action struck out for non-attendance will not be reinstated where the applicant offers no reasonable and convincing justification for the default, particularly where the true reason was unpreparedness to proceed to trial.

This High Court decision, sitting in its appellate jurisdiction, concerns an appeal against a Sessions Court's refusal to reinstate an action that had been struck out for non-attendance at trial. The appellant's action in the Sessions Court had been struck out when his then counsel failed to attend the scheduled trial date and failed to file witness statements as directed by the court. The appellant applied to reinstate the action under Order 35 rule 2(1), Order 42 rule 13 and Order 92 of the Rules of Court 2012; the Sessions Court Judge heard the application on its merits and dismissed it, and the appellant appealed. A preliminary point was that the appellant's application did not in terms seek to set aside the striking-out order, even though the rules relied on provide for the setting aside of a court order, and it was contended that the court could not reinstate an action without first considering whether the striking-out order ought to be set aside. On the merits, the court found that the appellant had failed to provide any reasonable and convincing justification for his absence on the trial date that would warrant the exercise of the court's discretion in his favour; the evidence indicated that he had in truth refused to attend because he had not filed a witness statement and was unprepared to testify, rather than because of any mistaken date, which was unsupported by evidence. Characterising the appellant's conduct as reflecting a "couldn't care less" attitude, and finding that his difficulties in appointing new solicitors and meeting a costs order were not compelling reasons, the court held that the reinstatement had rightly been refused and dismissed the appeal with costs of RM5,000.00. The judgment illustrates that reinstatement of a struck-out action requires a convincing explanation for the default. The court's approach reflects that reinstatement is not a formality to which a defaulting litigant is entitled on demand, but a discretionary indulgence that presupposes a candid and convincing account of why the default occurred.