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2021 MarsdenLR 683
HIGH COURT MALAYA KUALA LUMPUR
TEH WEI KIAN – Appellant
Versus
YANG JIN & ORS – Respondent
[Suit No: WA-22NCvC-466-07/2021]
The discretion to allow a plaintiff to discontinue a suit hinges on the stage of proceedings and the absence of undue advantages or prejudice to the opposing parties.
Headnote:(A) Rules of Court 2012 – Order 21 r 3(1) – Discontinuance of a suit – The Plaintiff sought to discontinue an action against the Defendants; however, the 2nd and 3rd Defendants opposed, claiming dominus litis status – The Court's discretion considered multiple factors including the stage of the case and potential prejudice to the Defendants. (Paras 6-18)
(B) Judicial discretion – The Court upheld that discretion regarding discontinuance depends heavily on the facts of the case, emphasizing no disadvantage to the Defendants or any interim advantage obtained by the Plaintiff. (Paras 6-24)
Facts of the case: The Plaintiff filed an Originating Summons concerning the Will of The Soon Seng and shares in a company. The Defendants raised objections to the discontinuance application, particularly the 2nd and 3rd Defendants claiming they were dominus litis.
Findings of Court: The Court found no party had an upper hand and decided to allow the discontinuance without liberty to file afresh, emphasizing that no party was dominus litis at this stage.
Issues: The main issues revolved around whether the Plaintiff was dominus litis and the appropriateness of allowing discontinuance at this procedural point.
Ratio Decidendi: The Court ruled that as neither party had gained significant procedural advantage, and the case was at an early stage, the discontinuance should be allowed but without leave to reinstate or file anew.
Result: Plaintiff's suit struck out without liberty to file afresh.
JUDGMENT
A. Background
[1] The Plaintiff appeared before this Court today seeking to discontinue the action and this is being objected to by the 2nd to 3rd Defendants.
[2] The Plaintiff had filed an Originating Summons on 28 August 2019 against the Defendants relating to the Will of the deceased The Soon Seng and the shares in the company known as Golden Plus Holdings Berhad.
[3] The 2nd and 3rd Defendants are of the opinion that this Court should not allow the application for discontinuance sought by the as it is of the opinion that they are allegedly now dominus litis.
[4] The other Defendants do not have any objection to the application to discontinue save that the 5th Defendant seeks costs as it has had to incur legal fees and it would be equitable that it be compensated for costs. The other Defendants' counsels confirm that they do not have any objection to the withdrawal and are not seeking costs.
B. Decision Of This Court
[5] I have considered the arguments put forward by the 2nd and 3rd Defendants.
[6] I refer to the decision of Raja Azlan Shah J (as he then was) in Overseas Union Finance Ltd v. Lim Joo Chong , where his Lordship explained concerning the right of a litigant to withdraw a suit:
However, it is at my discretion whether I should allow a discontinuance. Guidelines to the exercise of discretion can be found in the Annual Practice 1963 at p 593 under the heading Before Judgment which reads:
Leave may be refused to a plaintiff to discontinue the action, if the plaintiff is not wholly dominis litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him.
If the applicant here is dominis litis then leave to discontinue may be granted. If he is not, then it is unlikely that I would grant him leave to discontinue. I do not think that the applicant is wholly dominis litis. He cannot dispose of the case as he thinks fit or allows it to be dismissed or let judgment go by default. The parties have come to a stage where the respondent/ chargor has gained an upper hand by an advantage in that he could find flaws in the applicant/chargee's allegations namely the wrong dates in the memorandum etc. and the fact that the reason for wanting a discontinuance is not a very strong one. The respondent/ chargor is not to be deprived of these advantages which have made him a well-matched adversary in the arena.
[7] I also refer to the decision of the Court of Appeal in Newlake Development Sdn Bhd v. Zenithh Delight Sdn Bhd where Zabariah JCA (as she then was) stated:
22. The Plaintiff herein applied to discontinue the Suit under O 21 r 3(1) of the Rules of 2012. In the exercise of its discretion when granting leave, the Court has a wide discretion, based on judicial principles. Practical considerations do come into play when exercising the discretion, (see Majlis Peguam Malaysia & Ors v. Raja Segaran S. Krishnan, ). The Court may/can impose terms (Chamberlain & Hookham, Ld v. Huddersfield Corporation [ISO] ] 18 Rep. Pat Cas 454: United Asian Bank Bhd v. Balakrishnan; [1992] 1 MLJ 587; [1992] 3 CLJ (Rep) 742: Wah Bee Construction Engineering v. Pembenaan Fungsi Baik Sdn Bhd; [1996] 3 CLJ 858; [1996] 2 AMR 2412.
23. Before granting the order for discontinuance of an action, the Court must be satisfied that:
"i) if a defendant is dominus litis, the general rule is to refuse leave to discontinue (see; [1971] 1 MLRH 23, );
ii) the case is not at an advanced stage; if so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and circumstances of the case (see Fox v. Star Newspaper Company [1898] 1 QB 636;
iii) the plaintiff may have gained an interim interlocutory advantage between the date of issue of the writ and the point of time he seeks to discontinue (O'Neal v. Mann [2000] FCA 1680);
iv) there is no miscarriage of justice occasioned by its refusal to permit the discontinuance;
v) it will not prejudice the op
