Timely filing of applications is essential, and delay can lead to dismissal of applications under issue estoppel principles.

Azlan Sulaiman JC:

(Plaintiffs' Preliminary Objections to encl 244)

Introduction

[1] The Plaintiffs raise two preliminary objections to the Defendants' Application in encl 244 ("the Defendants' Application") to set aside the Anton Pillar Order made ex-parte on 5 August 2020 ("the APO") and the ad-interim Order given on 25 August 2020 extending the operation of the APO until the inter-parte s hearing of the Plaintiffs' Application for the APO ("the ad interim Order").

[2] The preliminary objections are that there was inordinate delay in the filing of the Defendants' Application, and that it is defeated by issue estoppel, given the Defendants' earlier applications in encls 15, 26 and 41 that also involved the APO. Enclosure 15, by the 1st, 2nd and 3rd Defendants, was to set aside Part A of the APO (the protective order); encl 26, by the 1st, 2nd and 3rd Defendants, was to stay execution of Part B of the APO (the unboxing of the items seized under the APO); and encl 41 by all of the Defendants, was to dismiss the whole action with costs and discharge the APO and the ad interim Order.

Analysis And Decision

Delay

[3] This preliminary objection boils down to whether the Defendants could have applied to set aside the APO and the ad interim Order much earlier than it did on 28 September 2022.

[4] The Plaintiffs say that the Defendants' Application should have been filed under O 42 r 13 of the Rules of , 2012, that required the Defendants' Application to have been filed within 30 days of receipt of the APO and the ad interim Order. The Defendants instead say that O 32 r 6 , for setting aside orders made ex- parte and which does not set a time-frame for applying, is more apt since the APO was made ex-parte. That said, it would not apply to the ad interim Order since it was made inter partes.

[5] In my view, the Defendants' were guilty of inordinate delay whichever provision applied. Even if O 32 r 6 without any time specified did apply, it would still be subject to being made within reasonable time. The APO was and the ad interim Order were both made in August 2020, and by no stretch of imagination can 25 months later in September 2022 be regarded as such.

[6] The Defendants' contend that the time should run from July 2022 when their new solicitors received the unredacted cause papers and documents after giving the undertakings required by the Plaintiffs as to protecting the confidentiality of their contents, and therefore there was in fact no delay.

[7] I reject this contention. Firstly, the only part of the Statement of Claim that was redacted was para 12, relating to the Plaintiff's trade secrets and confidential information. The Defendants would have been able to discern from the remainder of the redacted Statement of Claim what the Plaintiffs claim against them was.

[8] Secondly, there was really nothing to stop them from giving those undertakings much, much earlier. Even if their first step was to challenge the Plaintiff's demand for them, at some point when they failed in that challenge they could have given them. Instead, for reasons best known to them, the Defendants refrained from doing so.

[9] Thirdly, it appeared that only with the change in their solicitors on 15 July 2022 were the Defendants able to be persuaded to change their mind. However, a change of mind occasioned by a change in solicitors and advice by their new solicitors cannot reasonably be regarded as adequate explanations for delay. If they were, then any delaying party would simply need to resort to changing solicitors and having a change of heart based on new advice to overcome and defeat any allegation of delay.

[10] In this regard, I refer to and adopt the following extracts from paragraphs [34]