1. ) WONG ZHENG KAI 2. ) JOHAN BIN ABDUL SAMAD 3. ) CHIANG WAI LAM 4. ) Ting Tik Chai [Menyaman Dibawah Nama Peribadinya Dan Sebagai Perniagaan Milikan Tunggal Di Bawah Gaya Dan Nama Vizifix Enterprise) (No. Pendaftaran Perniagaan: 202303104870 (Ra0099925-v)] 5. ) LEE WEE HOU v 1. ) MOHD SHAHRIZAL BIN SHARIF 2. ) MOHD HAZREL BIN MOHAMED HANIFFA

Case Significance

Enters judgment for the plaintiffs on unrebutted evidence at an undefended trial, the defendants' defence and counterclaim having been struck out under Order 34 rule 2 for breach of an Unless Order, and treats the defendants' non-appearance as strongly discrediting their case.

This High Court (Kuala Lumpur) decision follows a trial in which the defendants' defence and counterclaim had already been struck out, so that judgment was entered on the plaintiffs' evidence alone. The matter had been set down for full trial on 14 April 2025, at which the plaintiffs called three witnesses to testify, while the defendants called none. The court had earlier, on 19 February 2025, struck off the defendants' defence and counterclaim for non-compliance with an Unless Order concerning the filing of pre-trial documents, the defendants being present on that day and thereafter informed of the trial date. The defendants had not appealed the order of 19 February 2025 that struck off their defence and counterclaim under Order 34 rule 2 of the Rules of Court 2012.

In the absence of the defendants at trial and given that there was no defence remaining, and based on the evidence of the three plaintiffs' witnesses, the court allowed the plaintiffs' claim with costs. It held that, since the evidence tendered by the plaintiffs was not rebutted, the plaintiffs had on a balance of probabilities succeeded in proving their case in accordance with section 101 of the Evidence Act 1950.

In its reasoning the court cited the principle, drawn from authority, that non-appearance as a witness by a party who alone knows the whole circumstances and could give evidence and submit to cross-examination is the strongest possible circumstance to discredit the truth of that party's case. Relying on that principle and on authorities including cases on the effect of an undefended trial, the court allowed the plaintiffs' claim for the specified prayers with costs. The judgment illustrates the consequences of a defendant's defence being struck out under Order 34 rule 2 for non-compliance with an Unless Order, and the entry of judgment on the plaintiffs' unrebutted evidence where the defendants neither appeared nor gave evidence at trial.