1. ) TRILLION TREASURE SDN. BHD. 2. ) ASIAH FARIHAH BINTI JEFFREY v 1. ) MAMMOTH EMPIRE CONSTRUCTION SDN BHD 2. ) COSMOPOLITAN AVENUE SDN BHD

Case Significance

Applies the dominus litis principle under Order 21 Rule 3: a plaintiff may discontinue with liberty to file afresh unless it works an injustice on the defendant, and the pendency of an undecided strike-out application does not, without more, justify refusing that liberty.

This decision of the High Court of Malaya at Shah Alam concerns an application by plaintiffs to discontinue their action with liberty to file afresh, made in the shadow of the defendants' pending strike-out application. The defendants — two companies — had applied under Order 18 Rule 19(1) and Order 92 Rule 4 of the Rules of Court 2012 to strike out the plaintiffs' claim. At the conclusion of oral submissions on that application, the plaintiffs sought time to take instructions and then notified the court that they wished to withdraw the suit with liberty to file afresh and with reasonable costs. The defendants objected, contending that any withdrawal should be without liberty to file afresh, so as to bring a final end to the plaintiffs' claim.

The governing principle, drawn from Order 21 Rule 3, is that a plaintiff who seeks to discontinue remains dominus litis — master of the suit — and will ordinarily be permitted to withdraw with liberty to file afresh unless doing so would work an injustice on the defendant, for instance by depriving the defendant of an accrued advantage or where the discontinuance is not bona fide but is sought to gain a collateral advantage. The court held that no such injustice arose here. No decision had been made in the defendants' favour, so it would be premature to assume that their strike-out application would have succeeded; the matter had not been set down for trial, and the plaintiffs' case had not been heard on its merits; and the plaintiffs had secured no interlocutory advantage to be preserved. In those circumstances it would be wrong to deny the plaintiffs their right to have their claim determined substantively. The court accordingly allowed the discontinuance with liberty to file afresh and awarded the defendants costs of RM10,000; the defendants appealed against the grant of liberty.