LEE AH TEE v ONG TIOW PHENG & ORSFEDERAL COURT

WAN SULEIMAN, MOHAMED AZMI & HASHIM YEOP A SANI FJJSummary of Fact of the Case

1. Appellant took out a petition under section 181 of the Companies Act, 1965 as a shareholder of a company and alleged mismanagement, misappropriation of company funds, fraud, embezzlement and general disregard for the rules of the company.

2 March 1982 : First Hearing

3 March 1982 : Hearing commenced and continued, and then adjourned to 17 March 1982 and then adjourned again to 7 April 1982 for continued hearing.7 April 1982 : Appellant lost his counsel who had discharged themselves. The appellant new counsel applied for adjournment which was granted and fixed to be on 7 June 1982.

7 June 1982 : Appellants counsel applied for adjournment and was fixed on 24 June 1982.

24 June 1982 : Appellant again applied for an adjournment apparently to engage a new counsel.

2. Judicial Commissioner refuses to give an adjournment after a series of adjournment made before this.

Issue:

Whether tthe learned Judicial Commissioner was wrong to deny him the adjournment he asked for.

Appellants Arguments -

Respondents ArgumentsThe respondent opposed the application on the grounds that like all the previous applications for adjournments by the appellant this was also applied for at the last minute

Courts decision and reasoning 1. On the facts of this case, the Court found no ground to disagree with the learned Judicial Commissioner and accordingly dismissed the appeal on the question of adjournment. The learned Judicial Commissioner exercised his discretion correctly in refusing a further adjournment after all the previous adjournments.

2. The Court has adopt the following principles as regards the discretion in allowing or refusing an adjournment:-

(1) Whether or not a party should be granted an adjournment is wholly at the discretion of the Judge. He would exercise the discretion solely upon his view of the facts.

(2) Prima facie this discretion is unfettered.

(3) The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment.

(4) Although an appellate court has power to interfere with the Judge's decision in regard to the granting of an adjournment, it would refrain from doing so unless it appears that such discretion has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.

(5) An appellate court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate court has power and indeed a duty to review the exercise of the discretion.

3. This is not really a case of refusing an application for adjournment but a case of refusing to further adjourn the hearing after a number of adjournments granted previously.