The court emphasized the necessity of clear guidelines in 'unless orders' and ruled that striking out a claim without consideration of party attendance is a misuse of judicial discretion.

Anselm Charles Fernandis J:

Introduction

[1] Before me is an appeal from the decision of the Learned Sessions Court Judge (SCJ) made on 9 October 2023 in striking out the Plaintiffs' claim with cost. The SCJ also allowed the Defendant's counterclaim. The decision by the made pursuant to O 34 r 2(3) Rules of Court 2012 ( ROC 2012).

[2] For the ease of reference, Appellants will be referred as Plaintiffs (P) and Respondent will be referred as Defendant (D).

[3] P appealed against the decision of the SCJ to the High Court. After hearing both parties this Court allowed P's appeal and ordered that the case to be set for trial at the Sessions Court.

[4] Not being satisfied with the decision, D has appealed to the Court of Appeal. I now give my reasons for my decision.

[5] For ease of reference O 34 r 2(3) ROC 2012 is reproduced here:

(3) The Court, having given directions under r 2(2) or r 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit.

Background Facts

[6] P had entered into an agreement to build a house for D. P alleged that D had failed to make full payment to P for the building of the house. P then commenced a writ action against D for the sum of RM200,828.50. D counterclaimed for, among other things, work not completed by P in which D had to engage a third party to complete the work.

[7] There was a case management on 4 April 2023 where both parties attended pre-trial directions. The case then was fixed for trial on 9 October 2023 at 9.00am.

[8] From the case management notes the following instructions were given by the SCJ to the parties on 4 April 2023:

"Bicara ditetapkan jam 9.00 pagi dan berakhir pada jam 11.00 pagi tertakluk kepada perubahan dan arahan selanjutnya oleh Mahkamah. Pihak-pihak digalakan untuk menyediakan salinan bercetak segala ikatan dokumen dan pernyataan saksi serta menyerahkan satu salinan kepada mahkamah.

Mahkamah: 4. Permohonan penangguhan kerana ketidakhadiran saksi atau tanpa; alasan munasabah tidak dibenarkan. Siia. rancang perjalanan tuan/puan. Sekiranya

pihak-pihak gagai hadir jam 9.00 pagi, maka mahkamah boleh membuat perintah yang lain sebagaimana difikirkan patut termasuklah meneruskan perbicaraan tanpa kehadiran pihak lagi satu atau membatalkan kes ini dengan kebebasan failkan semula. (Unless order)."

[9] On 9 October 2023, P's counsel was not in Court at 9am.

[10] Counsel for D who was present in Court at that time asked the matter to be stood down until counsel for P turned up. He also informed the Court that the second Plaintiff (P2) was present in Court.

[11] The SCJ then waited for another 10 minutes. As counsel for P was still not present by then the SCJ ordered that P's claim be struck out with cost. He also ordered that D's counterclaim be allowed with cost.

[12] P then filed a Notice of Appeal on 22 October 2023 against the the decision.

[13] On the same date P also filed an application to set aside the order of the SCJ made on 9 October 2023 pursuant to O 35 r 2(1) ROC 2012 and O 42 r 13 2012 ("the application").

[14] On 28 November 2023, the SCJ struck out the application as he was of the view that there was no need to hear the application as D had already appealed against his decision of 9 October 2023 to the High Court. He had also