The court emphasized that strict adherence to procedural rules must not preclude the substantive rights of a party to obtain remedy, especially in cases containing serious allegations that warrant a full trial.

[1] This is an appeal by the appellant (the plaintiff in the High Court) against the order made by the learned Judicial Commissioner (JC) of the High Court in striking out suit 22NCVC-279-2014 ("Suit") with no liberty to file afresh.

[2] After hearing submission from the counsel and perusing through the Appeal Records, unanimously, we are of the view that there are merits in the appeal. We therefore allowed the appeal, set aside the order of the learned JC and remitted the Suit back to the High Court for the same to proceed with further case management in preparation for full trial.

[3] Herein below are our grounds. Parties will be referred to, as they were, in the High Court.

Background

[4] The claim by the plaintiff against the defendants was premised on, inter alia, breach of trust and conspiracy over a non-existent land deal.

[5] The plaintiff claimed that it had paid RM9 million in deposit for a land transaction to the 2nd defendant, a law firm.

[6] The 3rd defendant is the Managing Partner of the 2nd defendant.

[7] During case management on 4 December 2015, the plaintiff's newly appointed counsel made an oral application to withdraw the Suit "with liberty to file afresh". The defendants' counsel had no objections to the withdrawal of the suit but insisted that the withdrawal shall be "with no liberty to file afresh".

[8] After hearing submissions, the learned JC ordered that the Suit to be struck out with no liberty to file afresh. Hence, the present appeal before us.

[9] The Suit has been discontinued against the 5th to the 11th defendants on 28 November 2014; therefore the appeal herein is only concerned with the claim against the 1st to the 4th defendants.

Submission By The Plaintiff

[10] The application by counsel for the plaintiff before the learned JC was for the Suit to be withdrawn with liberty to file afresh. It was the submission of the plaintiff that when the learned JC allowed the application for the withdrawal of the same but with no liberty to file afresh, he was acting in excess of jurisdiction. Pursuant to O 21 r 3 of the Rules of 2012, the Court may either allow the plaintiff 's application to withdraw the Suit with liberty to file afresh or to dismiss the application by the plaintiff entirely. The Court has no power to substitute the plaintiff 's application with another Order which was never prayed for, ie to allow the withdrawal of the Suit without liberty to file afresh.

[11] It was also argued that, that was not the only alternative order available to the Court. The Court could have made an order dismissing the application to withdraw with liberty to file afresh and ordered for the Suit to proceed with trial.

[12] Further, in view of the nature of the claim by the plaintiff against the defendants, the plaintiff stood to be gravely prejudiced by the Order of the learned JC, in that plaintiff stand to incur a loss of over RM9 million. It was submitted that this loss was disproportionate to any prejudice that would have been incurred by the defendants as compared to the case being rescheduled for trial and the defendants being compensated with costs.

[13] It was submitted that at the very least, the judge should have informed the plaintiff 's counsel that he was not minded to grant what was prayed for and then left an option to counsel as to what would be the next course of action. The plaintiff should not have been left with