BMG GLOBAL SDN BHD v JUANG-ANTARA BINA SDN BHD

Case Significance

Illustrates the consequences under Order 35 rule 1(2) of the Rules of Court 2012 where a plaintiff abandons its trial by dismissing its solicitors and failing to appear: the court struck out the claim and entered judgment on the defendant's counterclaim in the plaintiff's absence.

This High Court decision at Shah Alam concerns the court's response to a plaintiff that abandoned its own trial, in a construction dispute between a main contractor and its sub-contractor. The plaintiff, BMG Global Sdn Bhd, was the main contractor for a bridge project across Sungai Pahang, and it had sued the defendant, Juang-Antara Bina Sdn Bhd, the sub-contractor appointed under a letter of award, principally for liquidated ascertained damages of RM3,609,000 said to arise from delay in completing the sub-contract works, to be set off against sums owing to the defendant, together with a further sum claimed on the final sub-contract account. The defendant counterclaimed for the value of works it said it had done. On the day fixed for trial, the plaintiff's solicitors appeared and informed the court that the plaintiff had terminated them the night before; the plaintiff had not appointed replacement solicitors to take over conduct of the trial, had not written to the court about the termination, and had sent no representative to court to address the position or to seek a postponement. The defendant made an oral application for the plaintiff's claim to be struck out and to proceed on its counterclaim. Exercising its power under Order 35 rule 1(2) of the Rules of Court 2012, which permits the court to deal with an action where a party fails to appear at trial, the court struck out the plaintiff's claim and heard the counterclaim in the plaintiff's absence. It allowed the defendant's counterclaim in the sum of RM1,146,869.87, to be paid within fourteen days together with simple interest at 5% per annum from the date of judgment until full settlement, and awarded costs of RM20,000 to the defendant. The judgment is a useful illustration of the consequences under Order 35 of a plaintiff failing to appear ready for trial, and of the court proceeding to judgment on a counterclaim in the plaintiff's absence.