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    PJB Capital SDN BHD V Dato Peh Teck Quee

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    Nur Aliah
    The defendant's counsel was present at the trial, but the defendant himself was absent. The defendant then applied to set aside the judgment obtained by the plaintiff under O. 35 r. 2(1), which allows judgments obtained in a party's absence to be set aside. However, the court dismissed the application, finding that since the defendant's counsel was present, the defendant was deemed to have appeared at the trial for the purposes of the rule. The court noted the defendant's counsel had acted strangely by informing the court his client discharged him, then seeking to be excused, and questioned his understanding of the consequences. The defendant's only recourse was found to be appeal to the higher court.

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    PJB Capital SDN BHD V Dato Peh Teck Quee

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    Nur Aliah
    199 views2 pages
    The defendant's counsel was present at the trial, but the defendant himself was absent. The defendant then applied to set aside the judgment obtained by the plaintiff under O. 35 r. 2(1), which allows judgments obtained in a party's absence to be set aside. However, the court dismissed the application, finding that since the defendant's counsel was present, the defendant was deemed to have appeared at the trial for the purposes of the rule. The court noted the defendant's counsel had acted strangely by informing the court his client discharged him, then seeking to be excused, and questioned his understanding of the consequences. The defendant's only recourse was found to be appeal to the higher court.

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    Pjb Capital Sdn Bhd v Dato Peh Teck Quee

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    The defendant's counsel was present at the trial, but the defendant himself was absent. The defendant then applied to set aside the judgment obtained by the plaintiff under O. 35 r. 2(1), which allows judgments obtained in a party's absence to be set aside. However, the court dismissed the application, finding that since the defendant's counsel was present, the defendant was deemed to have appeared at the trial for the purposes of the rule. The court noted the defendant's counsel had acted strangely by informing the court his client discharged him, then seeking to be excused, and questioned his understanding of the consequences. The defendant's only recourse was found to be appeal to the higher court.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    199 views2 pages

    PJB Capital SDN BHD V Dato Peh Teck Quee

    Uploaded by

    Nur Aliah
    The defendant's counsel was present at the trial, but the defendant himself was absent. The defendant then applied to set aside the judgment obtained by the plaintiff under O. 35 r. 2(1), which allows judgments obtained in a party's absence to be set aside. However, the court dismissed the application, finding that since the defendant's counsel was present, the defendant was deemed to have appeared at the trial for the purposes of the rule. The court noted the defendant's counsel had acted strangely by informing the court his client discharged him, then seeking to be excused, and questioned his understanding of the consequences. The defendant's only recourse was found to be appeal to the higher court.

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    PJB CAPITAL SDN BHD v.

    DATO PEH TECK QUEE [2004] 1 CLJ 608


    HIGH COURT MALAYA, KUALA LUMPUR
    MOHD HISHAMUDIN YUNUS J
    Summary of Facts
    1. This is an application by the defendant to set aside a judgment obtained by
    the plaintiff at the conclusion of a trial before Rekhraj J on 11 June 2001.
    2.
    At the trial, the defendants counsel was present; but

    the

    applicant/defendant himself was not. The court proceeded with the trial and
    gave judgment if favour of the plaintiff.
    3. This application to set aside the judgment is made pursuant to O. 35 r. 2(1) of
    the Rules of the High Court (the RHC) which states:
    2. Judgment, etc given in absence of party may be set aside.
    (1) Any judgment or order obtained where one party does not
    appear at the trial may be set aside by the Court, on the application
    of that party, on such terms as it thinks fit.
    Issue:
    1. Whether defendant can make an application to set aside judgment obtained
    by plaintiff in defendants absence in trial or not.
    2. Whether defendant considered to have appeared for trial or not.

    Defendant
    s
    Argument

    1. Defendant must be taken to have not appeared on the day of


    the trial because the defendant himself was personally absent.
    2. If only the defendants counsel is present but the defendant
    himself is absent, or vice versa, then the defendant for the
    purpose of r. (2)(1) of Order 35 cannot be considered to have
    appeared at the trial.
    3. Defendant referred to the case of Permalu Vyrapanv. G. Papathi
    Govindasamy [1994] 3 CLJ 484, in which Vincent Ng Kim Koay J
    said, The expression one party in O. 35 r. 2(1) should be taken
    in its plain literal meaning and should not be read as one party
    with counsel. To say that the word party encompasses also his
    counsel would create an absurdity as counsel is never a party to
    an action unless he is made a party in the action.

    Plaintiffs
    Argument

    1. O. 35 r. (2)(1) is not applicable as, although the defendant was not


    present at the trial, nevertheless, his counsel was; and therefore,
    the defendant was deem to have appeared at the trial.
    2. As referred to the meaning of appear in Words and Phrases
    Legally Define, where it is stated:
    in the conduct of proceedings in court an appearance may
    be made either by the party appearing in person or appearing
    by counsel or solicitor. If counsel appears in court for a party
    then that party is taken to have appeared in the proceedings.
    [Application dismissed]

    Courts
    decision
    and
    reasoning

    1. Since the defendants counsel was present, the defendant must


    be taken to have appeared at the trial for the purpose of r. 2(1) of
    O. 35.
    2. The day at the trial commenced, Encik Tan (defendants solicitor)
    informed the court that his client had discharged his firm and
    he sought permission to leave the courtroom and to be excused
    from the trial proceedings. The learned judge allowed him to do
    so. The trial then proceeded in the absence of Encik Tan. At the
    conclusion of the trial, the learned judge gave judgment for the
    plaintiff.
    3. The question arise as why did Encik Tan inform the judge that his
    client had discharged his firm then ask to be excused from the
    trial proceedings?
    4. Mr Tan seems did not understand the consequences from what he
    did in the trial.
    5. The defendant cannot apply to set aside the judgment of 11 June
    by relying on O. 32 r. 2(1). His only recourse is to appeal to the
    Court of Appeal.

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