The absence of a party at a trial is a predominant consideration for setting aside a judgment; sufficient reasons and fairness must be demonstrated to justify a rehearing.

[1] This is an appeal by the Appellant against the decision of the High Court, given on 15 March 2018, in dismissing the Appellant's Notice of Application to set aside the assessment order dated 29 August 2017 with costs of RM5,000.00.

[2] The Appellant is the Defendant in the High Court action and the Respondent is the Plaintiff. The Government of Malaysia is the Third Party and it is not the party in this appeal. We shall refer the parties as in the High Court action.

Background Facts

[3] Jabatan Kerja Raya ("JKR") appointed the Defendant to build a new road from Seremban Highway-Port Dickson to FR5 (Exit 5) for a contract sum of RM117,694,883.33 ("the said contract").

[4] The Defendant in turn appointed the Plaintiff as the subcontractor for the said contract vide two Letters of Award, namely, the Letter of Award dated 7 August 2009 in respect of Package B and Letter of Award dated 18 June 2010 in respect of Package B.

[5] Subsequently, the Plaintiff filed a claim against the Defendant in the High Court claiming payments for work done and completed in respect of Package A and Package B.

[6] The Defendant brought in the Government of Malaysia (JKR) as a third party by way of a third party notice. On 2 April 2015, the Plaintiff and the Defendant entered into a Consent Order of idem date. Clause (d) of the Consent Order states:

(d) The Plaintiff and the Defendant agree that the balance sum as claimed by the Plaintiff amounting to the sum of RM17,472,961.82 will be subject to assessment of damages which will be undertaken by the Registrar in the High Court after the completion of the trial between the Defendant and the third party and in any event within 12 months from the date of this order. In the event, the dispute between the Defendant and the third party is settled the Plaintiff is at liberty to proceed with assessment of damages immediately.

[7] Trial for the action between the Defendant and the third party was scheduled before the High Court but on 13 May 2015, the Defendant withdrew its claim against the third party.

[8] Thereafter, the Plaintiff initiated the assessment of damages proceedings vide the application dated 12 September 2015 [Enclosure 120]. However, the hearing of the assessment of damages before the High Court was prolonged because of a stay order [granted upon Defendant's application] which was later, on appeal, set aside by the Court of Appeal. Several hearing dates were vacated at the request of the Defendant, who throughout this period changed numerous solicitors.

[9] The High Court fixed the final date of hearing the assessment of damages on 24 July 2017 and 25 July 2017.

[10] By the letter dated 6 July 2017 [Rekod Rayuan Jilid 2, pp 143-144], the Defendant's previous Solicitors, Messrs K Mano & Associates ["the Defendant's Solicitors"] requested for the hearing date on 25 July 2017 to be vacated as its counsel Mr Manoharan had to attend a trial in the Kuala Lumpur High Court on the said date in Suit No: 22NCVC-440-09/2014.

[11] On 14 July 2017 [Rekod Rayuan Jilid 2, pp 146-147], the Court allowed the Defendant Solicitors' application to vacate the date 25 July 2017 and fixed the case management on 21 August 2017.

[12] On 19 July 2017 [Rekod Rayuan Jilid 2, pp 148-149], the Plaintiff's Solicitors wrote to the Court requesting for the date for the assessment of damages to be maintained as the assessment of damages had been prolonged for a long period of time (two years) and that all the Court's directions had been complied with. The Appellant should not be allowed to further prolong the assessment of damages.

[13] By