CASE COMMENT

NORWEST HOLDINGS SDN BHD V MUHIBBAH ENGINEERING (M)BHD

HIGH COURT MALAYA, SHAH ALAM

Civil Suit No. MT1-22-812-2001

SURIYADI HALIM OMAR, J

18 OCTOBER 2004

Civil Procedure-Striking Out –Time frame to file O.18 r. 19 RHC 1980 application- Interpretation of phrase “at any stage of proceedings”-Effect of amendments to Rules of the High Court vide O. 1A and O 2 r 3.

Brief Facts

Object of this case note is to highlight the unique feature of this suit where a striking out application (“the application”) pursuant to O. 18 r 19 RHC 1980 and inherent powers of Court was allowed by the High Court despite such application being filed by the Defendant:-

(i) 3 month after close of pleading;

(ii) 2 and ½ month after the O34 RHC 1980 pre trial case management notice was filed by the Plaintiff;

(iii) After having filed unconditional appearance.

Naturally, the Plaintiff argued that it was too late in the day for the application to be entertained.

Plaintiff placed reliance on the following authorities in support of their contention:-

(i) Thiruchelvasegaram Manickavasegar v Mahadevi Nadchatiram [2001] 3 CLJ 743 HC where the Court held that a striking out application must normally be made before close of pleading;

(ii) Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 CLJ 461 SC and Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor [2001] 7 CLJ 313 HC for the proposition that one is precluded from filing the application after having filed an unconditional appearance.

The Court, in face of what was thought as settled law, pronounced that the time frame to file the application has changed, a change prompted by P.U.(A) 197 which introduced O 1A and O. 2 r 3 RHC 1980 on 16.5.2002.

Suriyadi J opined that by these amendments, the Courts are now required to have regard to the justice of the particular case and not only technical non compliance of the Rules and in effect placed “all technical objections at its rightful place , i.e., irrelevant at its rightful place”

The Court took note that O 18 r 19 RHC 1980 “in no uncertain term” expressly state that the court may at any stage of the proceeding order among others that a pleading be struck out. Nothing is provided under O 18 to preclude the filing of the application on the grounds either that pleadings are closed or that the applicant had filed an unconditional appearance.

The High Court ruled that to maintain a restrictive definition to the phrase “at any stage of the proceeding” to preclude applications so filed after close of pleading and after filing of an unconditional appearance result in the denial of the “court’s right” to exercise its discretionary powers accorded by O.18 r 19 RHC 1980 and other provisions of the Rules of High Court including O1A and O2 r 3 RHC 1980.

In short, the Court ruled that O 18 r 19 RHC 1980 falls within the ambit of the spirit of O1A and O 2 r 3 RHC 1980 in that administration of the rules of court concerns more on justice of the case as opposed to technical non compliance of the rules. Thus the 3 cases referred by the Plaintiff above which were all decided before May 2002 (prior to the introduction of O1A & O2 r 3 RHC 1980) in support of the contention that the application was not promptly filed was in the words of Suriyadi J “doomed to meet failure”

Commentary

Courts are created to settle disputes between litigants. Such dispute ought not be resolve by resorting to technical or procedural objections that does not relate to the root of the dispute unless substantial injustice is caused. To that end it is submitted that this judgment is of immense benefit to practitioners.

Unless amended, a suit that is liable to be struck out on the grounds that its pleadings is plain and obviously unsustainable, remains plain and obviously unsustainable no matter how late an application to strike out is filed.

Even if the Court forms the view that the application was not filed promptly, it is submitted that the necessary penalty by way of denial to an order of cost either in part or in full can be made thus depriving the dilatory applicant from what should be his order for cost in a successful application.

This would serve the administration of justice a great deal better than to permit a suit premised on a pleading which is plain and obviously unsustainable to be litigated in a full blown open court trial which naturally takes time, expense and manpower to conclude.

Note

Readers do note that this case note focus solely on the time frame for filing of a striking out application and how that time frame has change as a result of the amendment to the Rules of High Court 1980. The issue of the merits on the application subject matter of this suit is not considered. This case is reported as Norwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd [2004] & CLJ 400

Dated 10^th February 2010

Norazali Nordin

Chair

Professional Development Sub Committee

Perak Bar