Raja Azlan Shah J (delivering oral judgment):

The appellant in this case is a business man in Klang and he claims that $552 is the balance owing to him on an IOU chit dated 1 February 1952 which was executed by the respondent in favour of him. Paragraph 4 of the statement of claim avers that on three occasions in 1963 the respondent paid him a total sum of $48. That is denied by the respondent. The case came up for hearing from time to time but was postponed for various reasons. The case was finally heard before the learned magistrate at Klang on 5 October 1965. On that day both the appellant and his Counsel were absent but respondent and his Counsel were present. In the circumstances the learned magistrate dismissed the case with costs.

It is in that state of affairs that the case comes before me this morning. The appellant now claims for a new trial on the ground that it is not his mistake that his Counsel had failed to appear.

To my mind, so long as the claim shows some merits and justice can be done by compensating the other side for any costs thrown away, then a new trial ought to be ordered. In the present case Counsel for the respondent sought to argue that the claim bears no merits as it contravenes the limitation law, that is, the IOU chit was executed in 1952 but action was brought in 1964. That may be so, but p. 4 of the statement of claim avers that in 1963 three sums of money were paid on various dates by the respondent in respect of the alleged loan. Therefore, if that averment is substantiated, the appellant's claim may be well founded as time runs afresh from date of payment, i.e. from 1963. That is an issue to be tried and, in my judgment, contains some merits.

It is not my intention to exegesise the law on this subject but I will merely refer to the case of Hayman v. Rowlands [1957] 1 All ER 323 where Denning LJ had this to say:

I have always understood that, if by some oversight or mistake a party does not appear at the Court on the day fixed for the hearing, and judgment goes against him but justice can be done by compensating the other side for any costs and trouble to which he has been put, then a new trial ought to be granted. The party asking for a new trial ought to show some defence on the merits, but, so long as he does so, the strength or weakness of it does not matter.

In my view there are some merits in the claim, and justice can be done by compensating the respondent for any costs thrown away. I will allow this appeal and order a fresh trial. The appellant will have to bear all costs thrown away by the respondent.

Appeal allowed.