Seah J:

On 26 November 1977 I ruled that unless the defendant paid into Court the sum of $37,960.11 within 15 days from date thereof, the defence relating to this claim should be struck out and the plaintiff be at liberty to enter judgment against the sum claimed. On the application of the defendant, made within four days from the date of the order, I adjourned the matter into open Court for further argument. The argument was heard on 5 December 1975 where both Counsel for the plaintiff and the defendant had put in written submissions. At the end I reserved judgment.

It was contended by Counsel for the defendant that the Court was wrong to impose a condition about payment into Court of the sum of $37,960.11 within a time-limit since the application was made under O. 19 r. 19 and r. 27, O. 21 r. 1 and O. 25 r. 4 of the High Court in Borneo Rules 1963. It was further argued under these Orders or rules, that the jurisdiction of the Court is limited to striking out pleadings and it may order the action to be stayed or dismissed or judgment to be entered accordingly. As may be just.

Counsel for the defendant submitted that the power of the Court to impose terms when leave to defend was given could only be invoked if the application was made under O. 14 (see O. 14 r. 4 and r. 6). Reliance was placed on the Federal Court case of Alliance (Malaya) Engineering Co. Sdn. Bhd. v. San Development Sdn. Bhd .

For the plaintiff it was contended that the application for leave to enter judgment against the defendant was made under O. 14 as well as under O. 19 r. 19 and r. 27, O. 21 r. 1 and O. 25 r. 4, and that the Court was justified to impose the term in granting conditional leave to defend on that term.

I have re-examined the summons-in-chambers dated 14 September 1977 and the notes of proceedings. I have been unable to find any indication that reliance was also placed on O. 14 of the Rules of the High Court in Borneo 1963.

Under the circumstances, I agree with the submission of Counsel for the defendant that in an application under O. 19 r. 19 and r. 27, O. 21 r. 1 and O. 25 r. 4 the Court has no jurisdiction to grant conditional leave to defend. Under these said Orders or rules of the High Court in Borneo, the jurisdiction of the Court is confined to either striking out the pleadings and giving leave to enter judgment accordingly or dismissing the application. I agree that only in applications under O. 14 for summary judgment conditions may be imposed if the Court is not satisfied with the bona fide of the defence, albeit the defence does raise triable issues.

I have expunged from my ruling the following sentences starting from:

I am satisfied that the defence has raised triable issues but I am doubtful as to the bona fide of the defence relating to money paid by the plaintiff on behalf of the defendant. I therefore make an order that unless the defendant pays into Court the sum of $37,960.11 within fifteen days from date hereof, the defence relating to this claim should be struck out and the plaintiff be at liberty to enter judgment against the sum claimed. Subject to this condition, the application is refused. I make no order as to the costs of this application.

I have therefore re-examined the whole matter in the light of the above exposition of the laws. In my opinion, paras. 1, 2, 3, 4, 5 and 6 of the defence are frivolous or vexatious and they are unnecessary or tend to prejudice, embarrass or delay the fair trial of the action and are an abuse of the process of the Court. I therefore order that they be struck out and judgment be entered against the defendant for the sum of $37,960.11 with interest thereon at the rate of 50% per annum from the date of the issue of the writ and thereafter at 60% per annum on the $37,960.11 to date of payment. However, paras. 7, 8 and 9 of the defence are to remain. Costs in the cause to be taxed.

From the above judgment the defendant appealed to the Federal Court.

JUDGMENT

Lee Hun