Ng Bee Hui & Ors v Nanopac Innovation Limited & Ors

Appellant(s):

• Neo Chiew Yueh
• Ng Bee Hui
• Koh Chun Ping
• Lee Tong Kok
• Lee Tin Loy

Respondent(s):

• Nanopac Innovation Limited
• Nanopac (M) Sdn Bhd
• Cheng Kok Leong
• Gain Angel International Sdn Bhd
• Idia Investment Limited
• Tetuan Farid, Wong & Wee

• YA Datuk Mohamed Zaini Bin Mazlan
• YA Dato' Faizah Binti Jamaludin
• YA Dato' Hajah Aliza binti Sulaiman

• 32 plaintiffs sued 6 defendants for alleged misrepresentation arising from share subscriptions; the suit was filed in March 2020 and pre-trial case management directions for filing witness statements were first given in May 2021 but were repeatedly not complied with over more than five years.
• On the first day fixed for trial (7 July 2025), the High Court struck out the claims of 13 plaintiffs under Order 34 rule 1(3) of the Rules of Court 2012 for non-compliance with directions to file witness statements, with no order as to costs.
• Only five of the 13 affected plaintiffs appealed; these five had in fact filed their witness statements (albeit late, on 26 June 2025, and without prior leave) before the trial date, unlike other struck-out plaintiffs who had filed none at all.

• Whether the High Court had power under Order 34 rule 1(3) to strike out the appellants' claims for non-compliance with pre-trial case management (PTCM) directions.
• Whether, absent a prior warning, unless order or peremptory order, the sanction of striking out was a proportionate response to the default, particularly given the distinction between plaintiffs who filed late statements and those who filed none.
• Whether the respondents' prejudice — including that the trial had since proceeded for four days on the footing that only 19 plaintiffs remained — precluded reinstatement of the appellants' claims, and whether appellate intervention against a discretionary case-management order was warranted.

• The Court held that while Order 34 rule 1(3) empowers striking out for non-compliance with PTCM directions and no unless order is a precondition, the sanction must be proportionate; the absence of a prior warning is a material (though not decisive) factor, and the High Court's grounds did not show that proportionality — including the distinction between late-filing and non-filing plaintiffs — was properly considered.
• Appellate intervention was justified because the discretion was exercised without regard to relevant matters bearing on proportionality (e.g., that the appellants had in fact filed statements before trial, absence of any unless order, and availability of lesser sanctions), notwithstanding the general restraint appellate courts owe to discretionary case-management decisions.
• The appeal was allowed and the striking-out order set aside as against the five appellants; their claims were reinstated subject to strict conditions (confinement to the witness statements already filed, no further witnesses without leave, formal applications required to recall witnesses, and payment of costs thrown away), with the appellants also ordered to pay RM40,000 costs of the appeal to the respondents.