Arziah Mohamed Apandi JC:

GROUNDS OF JUDGMENT

Introduction

[1]This judgment is on the Plaintiff’s application in Enc. 120 to set aside this Court’s order dated 14 August 2024 (Enc. 116) (Unless Order) in striking out the Plaintiff’s claim and allowing the Defendants’ counterclaim (the Setting Aside Application).

[2]After carefully considering all cause papers and submissions filed and presented with the backdrop of the case progression, I have decided to dismiss the Setting Aside Application for the reasons set out below.

Background Facts

[3]The Plaintiff initially filed this suit on 21 December 2021. The chronology of the case has been extensively set out in the parties’ submissions but I would only reproduce the following pertinent key events to the Setting Aside Application.

[4]On 27 October 2023, this Court gave directions for parties to file the Common Bundle of Documents, Statement of Agreed Facts, Issues To Be Tried, and Bundle of Pleadings. On 27 December 2023, the Plaintiff failed to comply with this Court’s direction.

[5]During subsequent case management sessions on 29 January 2024, 19 February 2024 and 26 March 2024, parties informed the Court of ongoing settlement discussions. However, it is noted that at no point did the parties seek a formal stay of proceedings pending these discussions.

[6]On 3 May 2024, I directed parties to comply with this Court’s earlier directions but was informed the non-compliance was because the previous High Court Judge got transferred to another division. I then directed parties to file the Common Bundle of Documents, Statement of Agreed Facts, Issues To Be Tried, Bundle of Pleadings, Summary of Case, and List of Witnesses (the PTCM Documents) by 10 July 2024, should settlement efforts fail.

[7]On 27 May 2024, the Mediation slot was vacated upon the Plaintiff’s request for their solicitor, Ms Patricia to attend a close relative’s funeral. On 14 June 2024, this Court re-scheduled the case to 20 June 2024 as the Senior Assistant Registrar (SAR) was on medical leave. On 20 June 2024, this Court reiterated the same directions for the PTCM Documents to be filed by 9 July 2024.

[8]On 9 July 2024, the Defendants filed a letter (Enc. 112) stating that they would not be filing any PTCM Documents as the Plaintiff had not responded to their letter dated 18 June 2024 concerning the preparation of the PTCM documents.

[9]On 10 July 2024, the Plaintiff again failed to comply with the Court’s directions. As a result, this Court issued an unless order under O 34 r 2(3) Rules of Court 2012

[10]On 14 August 2024, following the Plaintiff’s continued noncompliance, this Court executed the Unless Order, struck out the Plaintiff’s claim, and allowed the Defendants’ counterclaim, as reflected in Enc. 116.

Issues for Determination

[11]The Setting Aside Application raises two main issues:

(a)Whether this Court has jurisdiction to hear, or whether the Plaintiff should have filed an appeal instead; and

(b)If the Court has jurisdiction, are there sufficient grounds to set aside the Unless Order?

The Law and Analysis(a) Jurisdiction to Hear

[12]The Defendants contend that the Plaintiff ought to have appealed against the Unless Order rather than applying to set it aside, citing primarily the Federal Court decision in Lim Oh & Ors v Allen & Gledhill (2001) 3 CLJ 233 FC (Lim Oh) and the High Court decision in How Hock Sing @ Low Kim Chwee v Lee Say Peng (2015) 9 CLJ 368 HC.

[13]The Plaintiff argues these cases are distinguishable because Lim Oh was decided under the Rules of High Court 1980 (RHC), not the current Rules of Court 2012 (ROC); that Order 34 r.2(4) of the ROC“may be set aside by the Court, on the application of the party”; and that the Court of Appeal in Hatara (M) Sdn Bhd v Petroliam Nasional Bhd & Anor (2010) 1 MLRA 68 CA recognised a distinction between striking out and dismissing a case.

[14]In Lim Oh, the appellants (plaintiffs) filed a new suit after the first was set aside by the respondent (defendant). Crying foul of