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2021 MarsdenLR 915
HIGH COURT MALAYA MUAR
GOH YONG – Appellant
Versus
GOH KWANG & ANOR (ENCL 41) – Respondent
[Civil Appeal No: JB-22NCVC-74-11/2019]
A plaintiff cannot withdraw a claim without costs if the defendant is dominus litis and has gained an advantage during proceedings.
Headnote:(A) Rules of 2012 – Order 21 – Discontinuance of action – Application by Plaintiff to withdraw Writ of Summons and Statement of Claim, subject to costs and liberty to file afresh – Defendant objected claiming potential prejudice due to defense costs incurred – Under Order 21, Plaintiff may withdraw action with leave of Court, but principles dictate that if Defendant is dominus litis, withdrawal should generally be refused if proceedings are at an advanced stage or if the Defendant has gained an advantage – The Court ruled that the Plaintiff, having been privy to Defendant's claims, cannot claim liberty to file afresh without imposing undue disadvantage on the Defendant – The Writ of Summons and Statement of Claim was struck out with costs awarded to the Defendant. (Paras 4, 28, 31)
Facts of the case: The Plaintiff sought to withdraw legal action against the Defendant with conditions. The Defendant opposed this request asserting that discontinuance would prejudice them by losing the advantage of already seeing the Plaintiff's claims.
Findings of Court: The Court found that allowing withdrawal with liberty to file afresh would unfairly disadvantage the Defendant, as the Plaintiff would have the advantage of knowledge over the Defendant's defense.
Issues: The main issue was whether the Plaintiff could withdraw the action while the Defendant was considered dominus litis.
Ratio Decidendi: The Court clarified that a Plaintiff cannot withdraw a case if the Defendant has already gained considerable knowledge and position during proceedings, which would handicap the Defendant unfairly if the Plaintiff was allowed to initiate a new suit on the same matter.
Result: The Writ of Summons and Statement of Claim were struck out, with costs awarded to the Defendant.
The grounds of appeal in this case are primarily based on the court's decision to refuse the plaintiff's application for discontinuance with liberty to file afresh, and the consequential striking out of the Writ of Summons and Statement of Claim without liberty to refile, along with the award of costs to the defendant. The appellant may argue that the court erred in its discretion by refusing the discontinuance, particularly on the basis that the plaintiff had sought to withdraw the claim at an earlier stage and with the condition of liberty to file anew. The appellant could contend that the court overlooked the fact that the plaintiff was not wholly dominus litis, as the defendant had already gained a significant advantage and was at an advanced stage in the proceedings, which should have justified allowing the discontinuance with costs. Additionally, the appellant might assert that the court failed to adequately consider the potential prejudice to the defendant and the principles guiding the exercise of judicial discretion in discontinuance applications, especially when the plaintiff's case was still at a preparatory stage but the defendant had already obtained a substantial advantage. The appeal may also challenge the court’s conclusion that allowing the withdrawal would unfairly disadvantage the defendant, emphasizing that the plaintiff’s right to discontinue should have been balanced against the defendant’s interests, and that costs should not have been awarded in a manner that effectively denied the plaintiff an opportunity to refile.
JUDGMENT
(Enclosure 41)
Introduction
[1] This is an application by the Plaintiff to withdraw the Writ of Summons (encl 1) as well as the Statement of Claim (encl 2) vide a Notice of Application (Enclosure 41).
[2] The application to withdraw is subject to 2 conditions:
i. No order as to cost.
ii. With liberty to file afresh.
[3] The Defendant objected to the application particularly on the 2 conditions. Withdrawal per se is not objectionable. Cost was incurred in the preparation of defence and further it puts the Defendant in a difficult position, having to defend against the action again.
The Issue In This Application Pursuant To Enclosure 41
[4] There is only one issue here which is whether the Defendant is now Dominus Litis and the Plaintiff should be granted the Orders sought for pursuant to encl 41.
[5] Discontinuance of an action is found in O 21 Rules of 2012 and I shall reproduced the provision for ease of reference.
[6] We reproduced O 21 of the Rules of 2012 for easy reference.
21 Withdrawal and discontinuance
1. Withdrawal of appearance (O 21 r 1)
A party who has entered an appearance in an action may withdraw the appearance at any time with the leave of the Court.
2. Discontinuance of action without leave (O 21 r 2)
(1) The plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than fourteen days after the service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice in Form 32 to that effect on the defendant concerned.
(2) A defendant may, without the leave of the Court:
(a) withdraw his defence or any part of it at anytime; or
(b) discontinue a counterclaim, or withdraw any particular claim made by him therein, as against any or all of the parties against whom it is made, at any time not later than fourteen days after:
(i) the service on him of a defence to the counterclaim; or
(ii) if the counterclaim is made against two or more parties, of the defence to the counterclaim last served on him, by serving a notice in Form 32 to that effect on the plaintiff or any other party concerned.
(3) Where there are two or more defendants to an action and not all of them serve a defence on the plaintiff, and the period fixed by or under these Rules for the service of the defence by any of those defendants expires after the latest date on which any other defendant serves his defence, paragraph (1) shall have effect as if the reference therein to the service of the defence last served were a reference to the expiration of that period. This paragraph shall apply in relation to a counterclaim as it applies in relation to an action with the references to a defence, to the plaintiff and to paragraph (1) substituted with the references to a defence to the counterclaim, to the defendant and to paragraph (2) respectively.
(4) If all the parties to an action consent, the action may be withdrawn without the leave of the Court at any time before trial by producing to the Court a written consent to the action being withdrawn duly signed by all the parties.
3. Discontinuance of action with leave (O 21 r 3).
(1) Except as provided by r 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for leave under this rule shall be made by a notice of application.
4. Effect of Discontinuance (O 21 r 4).
Subject to any terms imposed by the Court in granting
