Non-compliance with court orders regarding security for costs empowers dismissal of the suit, reaffirming the principle that parties cannot benefit from their own defaults.

[1] This is an application filed by the third defendant in enclosure 86 to strike out the suit instituted by the plaintiff given the failure by the latter to comply with the order for payment of security of cost.

[2] At the conclusion of the hearing, I allowed the application, and stated my reasons for the decision. This judgment contains the full reasons for my decision.

The Application

[3] In order to better appreciate the nature of the request before me, it is apposite that I set out the entirety of the notice of application, the grounds in support included, as filed by the third defendant to strike out the writ action of the plaintiff. It reads as follows:-

"(a) Satu Perintah bahawa tindakan di dalam ini dibuang di bawah kuasa sedia ada Mahkamah atas alasan bahawa Plaintif enggan dan/atau gagal mematuhi Perintah Mahkamah Yang Mulia ini bertarikh 14 Jun 2017 yang memerintahkan Plaintif dalam masa 21 hari dari tarikh Perintah tersebut memberi jaminan mengenai kos Defendan Ketiga sebanyak RM50,000.00;

(b) relif lain atau selanjutnya yang Mahkamah fikir patut; dan/atau

(c) kos.

Alasan-alasan membuat permohonan adalah bahawa:

1. Menurut Perintah bertarikh 14 Jun 2017, Plaintif diperintahkan untuk memberi jaminan mengenai kos Defendan Ketiga sebanyak RM50,000.00 dalam masa 21 hari dari tarikh Perintah tersebut;

2. Plaintif enggan dan/atau gagal mematuhi Perintah tersebut tanpa alasan atau alasan yang mencukupi; dan

3. Kelakuan Plaintif merupakan ketidakpatuhan Perintah Mahkamah dan merupakan suatu penghinaan Mahkamah

dan dikemukakan dalam affidavit Tan Chin Yen yang difailkan pada 12 Julai 2017".

Summary Of Contention Of Parties

[4] The application by the third defendant is resisted by the plaintiff principally on the ground that the order for security for cost granted to the former merely have the effect of staying the proceedings until payment by the plaintiff during the stipulated period. The failure to comply does not, according to the plaintiff, additionally entitle the third defendant to seek the striking out of the proceedings. The third defendant was attempting to present its case in installments, which should be rejected.

[5] The third defendant, on the other hand, argued that the basis of the application before this Court is the non-compliance with the order of the Court on the part of the plaintiff.

Evaluation And Findings Of This Court

[6] It is common ground that pursuant to enclosure 38, the third defendant had prayed for security for costs of RM60,000.00, and pending the giving of such security, all proceedings in the underlying suit be stayed. Thus the relevant prayer in that application for security for cost merely stated that the suit be stayed in the event of non-payment of security for costs.

[7] This application succeeded before me where on 14 June 2017, I allowed the prayer by granting the third defendant security for costs of RM50,000.00 and ordered that pending the giving of such security, which must be made within 21 days, all proceedings in the suit be stayed.

[8] The plaintiff then found it objectionable that on 17 July 2017, after the expiry of the period stipulated in the Order for payment, the third defendant applied to strike out this suit on the non-payment of security for costs. The plaintiff asserted that it was never the third defendant's intention that this suit shall be struck out for non-payment of security for costs