Zulkefli Makinudin FCJ:

Introduction

[1] This is an appeal by the appellant against the decision of the Court of Appeal which dismissed the appellant's appeal against the decision of the Muar High Court Civil Suit No 22-49-2002. Before the High Court the appellant was the defendant and the respondent was the plaintiff. We shall refer to the parties as they were before the High Court.

Background Facts

[2] On 2 April 1996, the plaintiff filed an action against the defendant for breach of trust at the Muar High Court ("the first suit"). On 12 August 1999 the High Court gave directions as to the conduct of the suit. The plaintiff did not comply with these directions. On 9 March 2002 the High Court acting on a notice to show cause issued by it on 15 January 2002 made an Order striking out the first suit. The plaintiff did not appeal against this Order. Instead the plaintiff filed a second suit against the defendant. This second suit was filed on 3 April 2002. The defendant took part in the second suit by filing an appearance, statement of defence and amended statement of defence. Pursuant to O 34 of the Rules of High 1980 ("RHC 1980"), the plaintiff filed a notice of pre-trial case