GROUNDS OF JUDGMENT

[1] The plaintiff company filed this suit on 18.8.2003 claiming against the defendant, its managing director the sum of RM800,000, interest and costs being losses caused to the plaintiff by the defendant's negligence and breach of fiduciary duty to the plaintiff. After the disposal of myriad applications over the years, the suit was fixed for hearing on 15 and 16 March 2010. On 8 September 2010, the court directed the plaintiff to file and serve witness statements one month before the hearing date; and the defendant to file his witness statements two weeks before the hearing date.

[2] When the case was called up for hearing on 15 March 2010, Che Rogayah Binti Sudin for the plaintiff informed the court that she had just been told that very morning that the plaintiff's directors were away in China although they were aware of the hearing date. She had no instructions why they chose to be in China. She was unable to proceed with the hearing and prayed for a postponement. No witness statements had been filed as directed. Cik Rao Suryana for the defendant was ready to proceed although she had also failed to file any witness statement.

[3] Pursuant to RHC O. 35 r. 3 , the Judge may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and upon such terms, if any, as he thinks fit. In the circumstances, I refused a postponement. This was a claim filed 6½ years prior to the hearing date. As the company was represented, the directors were not required to be present except if required to testify as witnesses. Learned counsel said she only had one witness to call but that witness was not present in court nor was any reason given for his absence. In fact, he was not even identified given that his witness statement was not filed. The plaintiff had adopted a totally cavalier attitude by presuming on an adjournment without the courtesy of a prior application. There was no other case fixed for hearing and it would have been a complete waste of judicial time to grant an adjournment given that 2 days had been set aside for hearing. It is not in the interests of justice to adjourn the trial on a whim of the plaintiff.

[4] Whether an adjournment should or should not be granted is a matter entirely within the discretion of the court to which the application is made. In ; [1984] 1 MLJ 107; [1984] 1 CLJ 187 , the Federal court cited with approval the case of Maxwell v. Keun & Ors [1928] 1 KB 645 where Atkin LJ observed that in the exercise of a proper judicial discretion no Judge ought to make such an order as would defeat the rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only properly be done to the other party by coming to that conclusion. However, in ; [2004] 3 CLJ 108 , the court of Appeal found it implied in Maxwell's case that before a judge is asked for the benefit of exercise of discretion, there must be placed before him adequate material on which the discretion may be exercised, the burden being on the applicant to do so. In the instant case, there was a dearth of any such material.

[5] This was not a case to which RHC O. 35 r. 1 applies as learned counsel for both parties and the defendant were in court and a striking out of the case was not the proper order. The plaintiff had no witness to call and there being no evidence offered, I dismissed the claim with costs. James Foong J (as he then was) in ; [2005] 4 MLJ 426; [2005] 2 CLJ 78; [2005] 3 AMR 806 adopted a similar course of action when a plaintiff absented himself despite being refused a postponement and his counsel could not proceed with the trial. In the circumstances of this case, an order of dismissal with costs was justified and proper.