1. ) SYMPHONY ORIC DEVELOPMENT SDN BHD 2. ) Chin Jit Pyng v 1. ) OPEN ROAD ASIA SDN BHD 2. ) GOH POO ENG 3. ) ROSLIZAN BIN NEKMAT

Case Significance

Illustrates the distinction between striking out and dismissing a claim where a plaintiff appears at a fixed trial without counsel and unready: exercising its discretion under Order 35 rule 1 and Order 1A of the Rules of Court 2012, the court struck out the claim with costs and heard the counterclaim.

This High Court decision at Shah Alam concerns the exercise of the court's discretion to deal with a plaintiff's claim where the plaintiff is unrepresented and unready at the door of the court. The plaintiffs had sued the defendants over an alleged breach of a Joint Development Agreement (Perjanjian Pembangunan Bersama) dated 28 April 2021, and the matter had been fixed for full trial on 14 and 15 July 2025. At the trial the plaintiff's company representative applied for a postponement in order to appoint new solicitors after the plaintiff's solicitors had discharged themselves, while the defendants asked that the plaintiff's claim be dismissed. The court refused the application for a postponement, holding that it could not indulge a party who came to a long-fixed trial without counsel and without readiness, but it declined simply to dismiss the plaintiff's claim. Instead, exercising its discretion under Order 35 rule 1(1) and (2) and having regard to the overriding interest of justice reflected in Order 1A of the Rules of Court 2012, the court struck out (membatalkan) the plaintiff's Writ of Summons and Statement of Claim and proceeded to hear the defendants' counterclaim on its merits. The court explained that a striking out in these circumstances, rather than a dismissal on the merits, appropriately reflected that the plaintiff had not prosecuted its claim while allowing the defendants' counterclaim to be adjudicated. In the result the plaintiff's claim was struck out with costs, and the court dealt with the counterclaim. The judgment is a useful illustration of the distinction between dismissing a claim and striking it out where a plaintiff fails to appear ready for trial, and of how the court balances the discretion to refuse an adjournment against the interests of justice under Order 35 and Order 1A of the Rules of Court 2012.