A party's absence at trial must be justified to set aside an ex parte judgment, and credibility of evidence presented is critical.

[1] This is an application to set aside an ex parte trial judgment.

[2] The applicant ("Yantai") is a company incorporated in the Peoples Republic of China which is the 3rd plaintiff (By Counterclaim) in the action.

[3] The respondent ("BJBST") is also a company incorporated in the Peoples Republic of China which is the plaintiff (By Original Action) and 1st defendant (By Counterclaim) in the action.

Background Facts

[4] On 9 September 2016, BJBST initiated the action against two defendants (By Original Action) ("BKC" and "Pharmatech" respectively) for, amongst others, the following:

(i) infringing its registered trade mark "Bao Fu Ling";

(ii) passing off of Yantais products as products of BJBST; and

(iii) BKC and Pharmatech had wrongfully applied to register the trade mark

[5] On 25 November 2016 and concurrent to BKC and Pharmatech having entered their defence against BJBST (By Original Action), they together with Yantai initiated a counterclaim against BJBST and two defendants (By Counterclaim) ("GSL" and "BFLGE" respectively) for, amongst others, the following:

(i) that BJBSTs registered trade mark be expunged; and

(ii) that Yantai is the common law and beneficial owner of the trade mark.

[6] At that juncture, BKC, Pharmatech and Yantai were represented by solicitors, Messrs Gan Partnership.

[7] The trial of the Original Action and Counterclaim was fixed on 16 to 18 August 2017. On 9 August 2017, Messrs Gan Partnership applied to discharge themselves by reason that they have not obtained sufficient instructions from their clients to continue representing them in the action.

[8] My predecessor, Wong Kian Keong JC (now J) on 11 August 2017 allowed the discharge application and directed Joseph Loo Teong Hee ("Joseph"), the local representative of BKC and Michael Wong Meng Xiang ("Michael"), the local representative of Pharmatech to appoint new solicitors for themselves as well as to inform Yantai to appoint new solicitors. The action was accordingly re-fixed for further case management on 28 August 2017.

[9] As the result, Messrs Fong Cheng Leong & Co was appointed to represent BKC and Pharmatech. Joseph had also communicated to Yantai to appoint its new solicitors.

[10] During the case management on 28 August 2017, Messrs Fong Chan Leong & Co informed the court that they were acting only for BKC and Pharmatech but not Yantai.

[11] In the subsequent case management on 8 September 2017, Wong Kian Keong JC directed BJBST to write to Yantai in English and Chinese languages that the trial had been re-fixed on 20 to 21 November 2017 and 15 to 19 January 2018.

[12] At the commencement of the trial on 20 November 2017 as scheduled, Yantai was absent. The court proceeded accordingly including the hearing of the witnesses of BJBST who were present. Wong Kian Kheong JC thereafter dismissed Yantais counterclaim with costs of RM50,000.00 and interest thereon to BJBST, GSL and BFLGE ("Judgment"). He pronounced the following ex tempore grounds of judgment:

"Alright. This is my judgment. I am satisfied from the evidence of WSSD1 that the 1st defendant is a common law proprietor of the mark Bao Fu Ling. There is therefore no ground to expunge this trade mark under s 45(1)(a) from the Trade Marks Act 1976. Furthermore the trade mark has been registered since 11 August 2008. Under s 37 of the Trade Ma