GROUNDS OF DECISION

1. Enclosure 4 was an application by the Defendant for the Writ and Statement of Claim to be struck out with costs. The application was brought pursuant to Order 18 Rule 19 (b), (c) and (d) of the Rules of High Court 1980 (RHC 1980) and the inherent jurisdiction of the Court. The application was supported by the Defendants Affidavit (Enclosure 5) and Affidavit Tambahan (Enclosure 8). The other Affidavits filed in this application were:-

(i) Afidavit Jawapan Plaintiff (Enclosure 9);

(ii) Afidavit Balasan Defendan (Enclosure 11);

(iii) Afidavit Jawapan Plaintiff (2) (Enclosure 12);

(iv) Afidavit Balasan Defendant II (Enclosure 13).

2. Background Facts.

(a) In 2006, Plaintiff had filed a suit against Defendant vide KL High Court Suit D1-22-270-2006 (The 2006 Suit) based on the same facts and for same relief as is set out now in this action.

(b) Pursuant to an application by Defendant for discovery of documents in the 2006 suit, an order of Court had been issued against the Plaintiff on 31.10.2008, whereby it was ordered:-

- that the Plaintiff was to file an Affidavit to disclose all documents in the Plaintiffs possession within a stipulated time,

- and that, should the Plaintiff fail to do so, the Defendant was at liberty to apply to strike out the suit pursuant to Order 24 r. 16 pf the RHC, 1980,

and in the meanwhile all further proceedings in that suit was to be stayed pending compliance by the Plaintiff of the discovery order of 28.10.2008, unless the Plaintiff obtained leave of Court to revive or recommence the 2006 proceedings.

(c) The Plaintiff did not lodge any appeal against that Order of Court of 31.10.2008 in the 2006 Suit and neither did the Plaintiff comply with the order to make the discovery of document by Affidavit within the time ordered by Court in that Suit.

(d) On 25.08.2009 the Court on its own volition issued to the Plaintiff a Notice to Show Cause in the 2006 Suit as to why the suit should not be struck out as no further action been taken by the Plaintiff on the file.

(e) On 15.09.2009 the Deputy Registrar proceeded to strike out the 2006 Suit upon the hearing of the Notice to Show Cause.

It should be noted that the Plaintiff did not file any Affidavit in response to the Notice to Show Cause to give any answer or satisfactory explanation for non-compliance of the order of the Court of 2006. (The necessity to file such an affidavit has been stated in the decision of our Federal Court in Toh Hock Thye & Ors v. Toh Chwee Biow (1982) 1 MLJ 152.)

More significant however was the fact that there was also no attempt made by Plaintiff to either file and/or tender an Affidavit disclosing documents that the Plaintiff would rely on even at that stage.

(f) Before the Deputy Registrar, the Plaintiffs explanation from the Bar was rejected. The Deputy Registrar in her finding/conclusion held expressly that the Plaintiffs delay in proceeding with the further prosecution of the 2006 Suit was intentional and contumelious default (as opposed to merely an inordinate and inexcusable delay) and that was ground enough for the suit to be struck out.

(g) The Plaintiff then appealed against the decision of the Deputy Registrar given on 15.09.2009 and the appeal was heard by Abdul Aziz bin Abdul Rahim, J on 20.01.2010. The Learned Judge after hearing parties proceeded to dismiss the Plaintiffs appeal thereby affirming the Deputy Registrar order of 15.09.2009 striking out the 2006 Suit.

(h) The Plaintiff did not file any appeal against the Learned Judges decision of 20.01.2010 (ie, on the appeal) from the Deputy Registrars decision) but chose instead to file this present suit on 27.05.2010, which for all intents and purposes was a fresh action (or a second suit) for the same relief based on the same set of facts. The Plaintiff maintained that as no statutory limitation had set in, the Plaintiff was entitled to bring this fresh proceedings against the Defendant.

3.1. Before the substantive appli