JUDGMENT

Stephen Chung JC:

1. This is an application by the Defendants that the Plaintiffs' action be dismissed for want of prosecution. The Defendants' application is supported by the following affidavits: Affidavit in support dated 08 May 2009, Affidavit in Reply dated 29 September 2009, Further Affidavit in Reply dated 23 October 2009 and Further Affidavit in Reply dated 17 November 2009. The Plaintiffs have filed the following affidavits to oppose the application: Affidavit in Oppositions dated 17 September 2009, Affidavit in Reply dated 12 October 2009, Further Affidavit in Reply dated 09 November 2009 and Further Affidavit in Reply dated 30 November 2009.

2. The chronology of proceedings in the suit is as follow:

3. The Defendants averred that the Plaintiffs are using this suit to stop the 5th Defendant from executing a judgment which the 5th Defendant had obtained against the Plaintiffs in suit No. K22-62-2004. The Plaintiffs denied this and said that the cause of action in this suit is different from that of the other suit. In opposing this application the Plaintiffs explained that they relied on M/s Roland Cheng & Co to prosecute this suit on their behalf and they were not aware and not informed that M/s Roland Cheng & Co had discharged themselves as solicitors. They only found out that the summary judgment application had been struck out on 18 December 2008 upon perusing Enclosure 38, after they were served with the Defendants' application to dismiss for want of prosecution. They said that the delay was not deliberate and unintended.

4. provides that if the plaintiff does not take out a summons for directions in accordance with the foregoing provisions of this rule, the defendant or any defendant may do so or apply for an order to dismiss the action. In addition to these express powers to dismiss for want of prosecution, the Court has an inherent jurisdiction to dismiss in cases where there has been default in complying with the rules or where' there is excessive delay in prosecuting the action.

5. The power to dismiss should be exercised only where the Court is satisfied either:

(1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the Court or conduct amounting to an abuse of the process of the Court; or

(2) (a) there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and (b) such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them themselves and the plaintiff or between each other or between them and a third party: Birkett v. James [1978] AC 297, ; [1981] 2 MLJ 150 ; [1981] CLJ (Rep) 101, Part 25.1.4 Malaysian Court Practice High Court.

6. The defendant has the right to apply for the action to be dismissed once the plaintiff fails to take out a summons for directions within the prescribed time. It is for the defendant to satisfy the Court that one or other of the conditions for dismissal of the action for want of prosecution exists, and the nature and extent of the prejudice suffered by him. On an application to dismiss for want of prosecution, except in a very clear case, it is desirable that the