1. ) Bandari Simma Realty Sdn. Bhd. 2. ) Subramaniam A/l Paidhatally v TAN BON KIAT

Case Significance

Holds that a self-induced non-appearance engineered through a last-minute solicitors' discharge cannot ground a natural-justice challenge to the dismissal of a counterclaim, and upholds the Sessions Court's dismissal on appeal.

This High Court decision at Johor Bahru is an appeal against a Sessions Court's dismissal of a counterclaim following the non-appearance of the appellant's solicitors at trial. The appellant, a company (with one of its directors also a party), had counterclaimed against the respondent in a suit at the Sessions Court. When the matter came on for trial, the appellant's solicitors did not appear, having filed an application to discharge themselves only three days before the trial date, and the Sessions Court judge dismissed the counterclaim. The appellant contended on appeal that the refusal to grant an adjournment, and the dismissal that followed, amounted to a breach of natural justice, and that appellate intervention was warranted.

The High Court reviewed the record, including the grounds of the Sessions Court judgment, the appeal records, and the parties' submissions. It also had regard to the litigation history between the parties, in which an earlier High Court judge had made adverse findings on the credibility of the appellant's director, findings later affirmed on appeal. The court characterised the appellant's conduct in strong terms: it found that the appellant had wilfully disobeyed the Sessions Court's instructions and orders to be ready for trial, that the filing of a last-minute discharge application was an abuse of the court's process, and that the non-appearance of solicitors at the hearing of the discharge application and at the trial was a blatant disregard of the court's authority.

On that footing the court held that no breach of natural justice arose from the refusal to adjourn, since a party cannot manufacture a ground of complaint by engineering the absence of its own representation. It dismissed the appeal with costs, ordering costs of RM50,000 to be paid to the respondent by each of the directors of the appellant jointly and severally, and a further RM50,000 by the individual second appellant. The judgment illustrates that a self-induced non-appearance, achieved through a last-minute discharge, will not found a natural-justice challenge to the dismissal that follows.