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2011 MarsdenLR 3241
HIGH COURT MALAYA, KUALA LUMPUR
SARASWATHY RAJAHRAM – Appellant
Versus
AS AS ANGGERIK SDN BHD & ORS – Respondent
[Suit No. D5-22-253-2007]
The court dismissed a fraud claim due to the plaintiff's repeated adjournment requests, emphasizing the necessity of cross-examination for evidence admissibility.
Headnote:(A) Civil Procedure - Adjournment requests - The court's discretionary power to grant adjournments is limited; repeated adjournment requests without valid grounds are discouraged. The right to cross-examine must be afforded for evidence to be admissible; failure to do so results in evidence being disregarded. (Para [6])
(B) Evidence - Admissibility - If cross-examination is not completed, evidence from the plaintiff is deemed inadmissible against the defendants. This principle is established in prior case law. (Para [6])
Facts of the case:
The plaintiff sought to set aside a sale agreement on fraud grounds involving multiple defendants. The trial faced multiple adjournments due to the plaintiff’s health issues, ultimately leading to trial proceeding without her evidence being challenged.
Findings of Court:
The court ruled that the plaintiff did not present adequate evidence or challenge the defendants' testimonies, resulting in the dismissal of her claims.
Issues: Whether the plaintiff's inability to present her case effectively impacted the outcome of the trial.
Ratio Decidendi: The court emphasized the necessity of a real opportunity for cross-examination; without it, the plaintiff's claims lacked substantiation.
Result: The plaintiff’s claim is dismissed with costs.
| Table of Content |
|---|
| 1. outcome of the claim and cost orders (Para 1 , 6) |
| 2. trial proceedings and plaintiff's absence (Para 2 , 4 , 5) |
| 3. citations from relevant case law (Para 3) |
[1] This is my JUDGMENT in respect of the plaintiffs claim in essence to set aside a sale and purchase agreement on the grounds of fraud. The 1st to 4th defendants and 5th defendant are represented by different solicitors.
[2] It is important to note in this case: (i) trial commenced on 30.10.2011; (ii) the plaintiffs expert witness PW1 gave evidence; (iii) the plaintiff, PW2, gave evidence and cross-examination commenced and subsequently the plaintiff sought an adjournment on the ground that she was not well; (iv) the matter was adjourned to 7.12.2011; (v) on 7.12.2011 the plaintiffs counsel sought an adjournment on the ground that the plaintiff was not well; (vi) the court agreed to grant the adjournment only if the plaintiff was prepared to proceed to give evidence on 9.12.2011; (vii) after the plaintiffs counsel took instruction from the plaintiff, the plaintiffs counsel informed the court that his client has agreed to give evidence on 9.12.2011; (viii) on 9.12.2011 the plaintiffs counsel again sought an adjournment on medical grounds which was refused, and also the grounds stated were not sufficient to grant repeated adjournments; (ix) the plaintiffs counsel immediately thereafter applied orally to discharge himself. And this is what the learned counsel said:
"my clients instruction are that she's unwell, generally unwell and she is unable to attend court today. And she asked the postponement and in the event the postponement is not allowed. My Lord, her straight instruction to me, asked to discharge myself as a solicitor, and she does not wish trial to proceed in her absent.";
(x) I refused the oral application for discharge and the plaintiffs counsel left the court after confirming that their other witnesses are also not in court; (xi) trial proceeded in the absence of the plaintiffs counsel and in consequence the defendants' witnesses' evidence was not challenged; (xii) upon the close of the defendants' case I directed written submission and ordered the plaintiffs counsel be informed and submission also to be served; (xiii) defendant's counsel has informed court that the plaintiffs counsel had informed that they will not be replying to the submission.
[3] The parties have relied on the following cases: Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & 3 Ors & Another Case [1995] 1 MLRA 546 , [1995] 2 MLJ 770 ; Dr. Shanmuganathan v. Periasamy Sithambaram Pillai [1997] 1 MLRA 1 ; [1997] 3 MLJ 61 ; [1997] 2 CLJ 153 ; [1997] 3 AMR 3012 ; Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1 ; [2005] 2 MLJ 1 ; [2004] 4 CLJ 309 ; [2004] 6 AMR 781 ; Yong Tim v. Hoo Kok Chong & Anor [2005] 1 MLRA 440 ; [2005] 3 CLJ 229 ; [2005] 3 AMR 553 ; Asia Commercial finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 1 MLRA 611 ; [1995] 3 MLJ 189 ; [1995] 3 CLJ 783 ; [1995] 3 AMR 2559 ; Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 MLRA 183 ; [1998] 1 MLJ 393 ; [1998] 2 CLJ 75 ; [1998] 1 AMR 909 ; Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 1 MLRA 98 ; [2001] 4 MLJ 346 ; [2001] 2 CLJ 321 ; [2001] 3 AMR 2609 ; Paramill Sdn Bhd & Anor v. Datuk Joseph Pairin Kitingan [2007] 2 MLRA 255 ; [2007] 7 MLJ 289 ; [2007] 6 CLJ 192 ; PJB Capital Sdn Bhd v. Dato' Peh Teck Quee [2004] 1 CLJ 608 .
Brief Facts
[4] The plaintiffs claim against the 1st to 4th defendants is that the property secured by the 1st defendant was obtained by fraud and against the 5th defendant and should refund the redemption sum. The brief summary of the plaintiffs case and brief summary of the respective defendants' case are found in enclosures 66, 68 and 75 respectively.
Preliminaries
[5] Three witnesses gave evidence for the plaintiff and five for the defendants. The learned counsel for the 1st to 4th defendants went through the relevant witness statements and exhibits meticu
