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CIVIL PROCEDURE – STRIKE OUT UNDER ORDER 18 RULE 19(1)(A),(B) RULES OF COURT 2012 – EXTENSION OF TIME APPLICATION

1. Summary and Facts:
Badan Pengurusan Subang Parkhomes V Zen Estates Sdn Bhd (Sebelum ini dikenali sebagai Sendi Bangga Development Sdn Bhd) (Fadhullah & Assoc Consulting Engineers Sdn Bhd, Pihak ketiga)” [2025] MLJU 3591 the dispute arose from a claim by the management body of a condominium, Badan Pengurusan Subang Parkhomes (“the Plaintiff”), against the developer, Zen Estates Sdn Bhd (“the Defendant”), for latent defects in the building. The High Court had earlier, on 22 January 2024, found the defendant liable for the defects and ordered damages to be assessed, including damages for unrectified defects, non-compliance with the Electricity Regulations 1994, and loss of use of common property. The defendant, in turn, had a third-party claim against its engineering consultant, Fadhullah & Associates Consulting Engineers Sdn Bhd, for indemnity relating to the electrical non-compliance. Following the judgment on liability, the matter proceeded to assessment of damages, during which procedural disputes arose between the parties.

2. Legal Issues:
• Whether the plaintiff’s delay in filing the Notice of Appointment for Assessment of Damages beyond six months under Order 37 rule 1(5) of the Rules of Court 2012 should cause the assessment proceedings to be struck out.
• Whether the defendant suffered any actual prejudice due to the plaintiff’s delay in filing the Notice of Appointment.

3. Court’s Findings:
• The High Court dismissed the Defendant’s application and allowed the plaintiff’s request for an extension.
• The court found that the Defendant had failed to substantiate any actual prejudice or damages suffered from the delay.
• Order 37 Rule 1(5) ROC 2012 was not mandatory, citing the Court of appeal decision in Vellasamy
a/l Ponnusamy & Ors v Gurbachan Singh a/l Bagawan Singh & Anor [2020] MLJU 695, which emphasized that;
• The Rules of Court 2012 adopt an inquisitorial approach and case management approach rather than a rigid adversarial one.

4. Practical Implications:
This judgment affirms that Malaysian courts emphasize on this substantive justice over procedural technicalities, whereas:
• The court characterized the defendat’s application with costs of RM5,000.00 as a mere afterthought aimed at delaying the assessment of damages.
• Order 37 ROC 2012 should not be interpreted rigidly and non-compliance willl not render proceedings void unless it causes substantial prejudice or contravenes an “unless order”.
This case reinforces the judiciary’s commitment to the overriding objective of ensuring matters are resolved on their merits rather than being struck out for technical delay.

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