JUDGMENT

Mohamed Dzaiddin Bin Hj Abdullah SCJ:

This is an appeal by the appellant, United Malayan Banking Corporation Berhad, from the judgment of the Kuala Lumpur High Court given on 5 August 1992, upholding the decision of the Senior Assistant Registrar in allowing the dismissal of the appellant's action for want of prosecution.

The following account of the facts of the case is taken largely from the learned Judge's grounds of judgment (p. 13 A.R.). On 12 November 1979, the appellant, who was the plaintiff in the Court below, filed a specially indorsed writ and a statement of claim against the first respondent and three others, claiming for monies owed under banking facilities granted to the first respondent and guaranteed by the second, third and fourth respondents. On 22 November 1979, the respondents entered appearance and filed their defence and counterclaim. On 12 January 1980, the plaintiff filed the reply and defence to counterclaim. On 31 March 1980, the respondents filed an amended defence and counterclaim. Later, the respondents filed a reamended defence and counterclaim, followed by the filing of an amended reply and defence to the said counterclaim.

Subsequently, on 16 June 1981, the plaintiff filed an application for an O. 14 judgment. On 9 January 1982, the Judge refused to grant leave to enter summary judgment and on appeal to the then Federal Court, the said appeal was dismissed with a direction that an early date be granted for the trial of the action.

On 4 April 1986, the plaintiff's solicitors took out a summons for direction and on 25 July 1986, the Senior Assistant Registrar ordered the parties to serve on each other a list of documents and file an affidavit verifying such list within 60 days; that there be inspection of documents within 14 days of service of the list and the filing of the affidavits; and that the estimated length of time for the trial be four days and that there be 14 witnesses and that the trial be set down for hearing within 120 days. The plaintiff's solicitors accordingly filed an affidavit verifying the list of documents on 6 October 1987 and served it on the respondents on the same date. Then, on 8 December 1987, the said solicitors sent a reminder to the respondents' solicitors giving them notice to file their affidavit within two weeks.

As there was no response at all, on 3 July 1988, the plaintiff's solicitors filed the request for setting down action for trial. Nothing happened until after more or less waking up from their slumber, the respondents suddenly realised that it was time to apply for a dismissal of the plaintiff's claim for want of prosecution. On 3 April 1989, the respondents filed their summons in chambers which was heard by the Senior Assistant Registrar who, on 20 April 1989, granted the application and accordingly struck out the suit.

On appeal to the Judge in chambers, the respondents contended that there was a lapse of more than 3 years from the date of the judgment of the Federal Court until the plaintiff took out summons for directions. The respondents also contended that the plaintiff had not 1 properly set down the action for trial for about 2 / 2 years after the expiry of the period allowed by the Court under the order on the summons for directions.

All in all, nine years had passed since the filing of the writ and during this period, important key witnesses had died and the control of the plaintiff bank had changed hands a few times. According to the respondents, this had substantially prejudiced them if the action were to go to trial. Finally, the respondents contended that the plaintiff's solicitors had not complied with the order of summons for directions when they filed the affidavit verifying the list of documents.

The plaintiff, in its affidavit, averred that between late 1982 and April 1986, negotiations had taken place between the parties. After a lapse of about three months, a second series of negotiations took place. According to the pla