Leave of the court is required before the Defendant may withdraw their counterclaim, this is depicted in O. 21 R. 3. Halsbury’s Laws of Malaysia has a section on withdrawal by consent without leave (attached herewith). However, upon reading the case of Macedonia Maritime Co v Austin & Pickersgill [1989] 2 Llyod’s Rep 73, it is submitted that this principle does not apply to withdrawal of a counterclaim. Instead, it applies to withdrawal of an action with consent of all parties.

 The case of YONG THSU KHIN & ANOR v MMCE PROTIES & ANOR AND ANOTHER ACTION [2005] 5 MLJ 419 stated in paragraph 22 that ‘It is quite safe to say that when applications are made for leave to discontinue a case, more often than not courts will grant it. This is so as it is undesirable to compel a plaintiff to pursue any litigation against his will, so long as no injustice will be caused to the defendant (Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876; [1977] 2 All ER 591)’. This indicates the factors that will be taken into consideration by the court in grating a leave to withdraw an action.

 

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