A suit filed after a prior dismissal constitutes an abuse of process if time constraints do not justify the action.

[1] The present appeal arose from the decision of the learned High Court judge who had dismissed the appellant's application to strike out the respondent's claim pursuant to O 18 r 19(1) of the Rules of 2012 ( ROC ). (Enclosure 8).

[2] The appellant was the defendant in the Court below and the respondent, the plaintiff. For convenience, the appellant and the respondent will be referred to as the defendant and plaintiff respectively.

Background

[3] The facts and sequence of events leading to the filing of the plaintiff's claim against the defendant vide suit no 22 NCVC-1365-11/2012 (the present suit) are crucial in determining whether the learned judge was correct in her decision to dismiss the defendant's application to strike out the plaintiff's claim (Enclosure 8).

(i) The 652 Suit

[4] On 19 June 2007, the plaintiff together with 8 others were sued by Everland Asia Development Sdn Bhd and Intra Tejas (M) Sdn Bhd vide suit number S5-22-652-2007 (the 652 suit) for trespass upon their property, Paradise Estate (the said estate) and conversion for harvesting rubber wood from the said estate.

[5] In the 652 suit, the plaintiff was named as the 1st defendant. On 5 June 2008 the plaintiff obtained leave to bring in the defendant herein as a third party.

[6] Via this third party proceedings the plaintiff sought to claim full indemnity from the defendant on the ground that the defendant had committed fraud on the plaintiff by representing himself as the owner of the said estate having the authority to deal with the same. Acting on that representation the plaintiff claimed that he had paid over to the defendant a sum of RM570,000 for the right to extract rubber wood from the said estate.

[7] It was asserted by the plaintiff in their affidavit in support of their third party application that it was only upon being served with the injunction order by the plaintiffs in the 652 suit that he (the plaintiff) became aware that the defendant had misrepresented himself as the owner of the said estate and had the requisite authority to allow the plaintiff herein to extract rubber wood from the said estate for a total purchase price of RM570,000.00.

[8] The plaintiff therefore claimed full indemnity from the defendant in respect of the 652 suit plus general damages, or alternatively damages in the sum of RM1,252,611.00.

[9] It was not disputed that the defendant failed in his attempt to set aside the third party notice in the High Court. The Court of Appeal also dismissed the defendant's appeal on 4 January 2012.

(ii) Case Management

[10] As stated by the learned judge in her grounds of judgment, the problem for the plaintiff began during case management.

[11] On the scheduled date for case management, which was on 24 October 2012, all parties appeared before the learned judge except for Mr Kalaimany, learned counsel for the plaintiff and the 1st defendant in the 652 suit.

[12] The learned judge then fixed 30 October 2012 as the next case management date with the following direction-

"Defendant Pertama - to appear and to file the Ikatan Pliding and Witness Statement untuk dimasukkan."

She then set the case for trial on the 6th to 8th November 2012.

(see the Notes of Proceeding, pgs 263-264, Record of Appeal).

[13] On 30 October 2012, Mr Kalaimany again failed to appear. Counsel for the third party then applied for the 1st defendant's (the plaintiff's) claim against the third party (the defendant) be struck out with costs of RM10,000.00.

[14] The learned judge allowed the defendant's application and struck out the plaintiff's claim with costs of RM10,000.00 and fixed 2 November 2012 as the next case management date. (the said order).

[15] On 2 November 2012, Mr Kalaimany appeared before