SOON HER SING INDUSTRIES (M) SDN. BHD. v M & R FORWARDING MALAYSIA SDN. BHD.

Case Significance

Illustrates the two-stage operation of an unless order in civil case management, where an extension of time is itself the sanction-triggering event, and the court's power to strike out a defence and enter judgment where a party persistently misses pre-trial deadlines.

This High Court decision explains the enforcement of an "unless order" made for non-compliance with pre-trial directions in a civil suit. The plaintiff, Soon Her Sing Industries (M) Sdn Bhd, had sued the defendant, M & R Forwarding Malaysia Sdn Bhd, and the matter proceeded to pre-trial case management after the pleadings were deemed closed. At the first case management, the Senior Assistant Registrar directed both parties to file a set of pre-trial documents, comprising the bundle of pleadings, the common bundle of documents, the statement of agreed facts, the statement of issues to be tried, the list of witnesses and a summary of the case, by a stated deadline, and warned that an unless order would follow on default. At a later case management the defendant sought and was granted an extension of time to file the pre-trial documents, the court explaining that the grant of a fresh deadline itself operated to invoke an unless order, meaning that continued default would result either in the suit being dismissed or in judgment being entered against the defaulting party. When the extended deadline passed and the defendant's solicitors were still unable to tell the court when compliance would occur, the court held that it could not be expected to continue granting extensions indefinitely in the absence of any sign of progress. Only after the unless order had taken effect and judgment had been entered against the defendant did the defendant file its documents that same evening. The court enforced the unless order: the defence was struck out and judgment was entered for the plaintiff, allowing paragraphs (a) to (e) of the amended writ of summons, with costs of RM10,000 subject to allocatur. The judgment is a useful illustration of the two-stage operation of an unless order, whereby an extension of time is itself the sanction-triggering event, and of the court's control over its own process where a party persistently fails to meet pre-trial deadlines.