Inordinate and unexplained delay in filing applications can constitute an abuse of process, warranting dismissal of petitions, affirming the importance of timely action in legal proceedings.

[1] This is an appeal from the decision of the learned judge of the High Court of Ipoh who, on 22 May 2009, had dismissed the appellant's (the respondent at the winding up proceedings before the High Court) application to strike out the respondents' (the petitioners at the winding up proceedings before the High Court) winding up petition pursuant to O. 18 r. 19(1)(a) and O. 92 r. 4 of the Rules of the High 1980 .

[2] The petition filed by the respondents was pursuant to an alleged failure to comply with a demand notice that they had served on the appellant pursuant to s. 218(1)(e) of the Companies Act 1965 . The notice of demand is based on an Ipoh High Court consent order dated 18 October 1996 obtained by the respondents against the appellant vide Ipoh High Court Petition No. 26-3-1995 wherein the appellant was ordered, inter alia , to pay various sums of money to the respondents.

[3] The contention of the appellant in their striking out application is that the petition discloses no reasonable cause of action as (allegedly) the s. 218 notice is null and void being in contravention of s. 218(2)(a) of the Companies Act .

[4] Before the High Court the respondents opposed the application. They filed an affidavit complaining, among others, the very long delay on the part of the appellant in making the application. The appellant responded by filing an affidavit in reply. In their affidavit they had the opportunity to explain for the delay. But they chose not to do so. They merely averred:

8. Delay

In regards to paragraph 9 of 'Ramasamy's affidavit', I am advised that my solicitor will submit on the grounds of ex-debito justitae at the hearing.

[5] The learned High Court Judge, in dismissing the appellant's application, unfortunately did not furnish his grounds of judgment. So we do not know the reason of his decision.

[6] Be that as it may, on our part, having heard submissions from Dato' (Dr.) Cyrus Das, the learned counsel for the appellant (the applicant/respondent before the High Court) and Encik Viswanathan, the learned counsel for the respondents (the respondents/petitioners before the High Court), we had dismissed the appeal with costs.

[7] We now give our reason.

[8] Although the learned counsel for the respondents, in opposing the appeal, has put forward several arguments, we have, however, dismissed the appeal of the appellant, Blue Valley Plantation Berhad (that is, the respondent in the winding up petition proceeding below), on only one ground: that is of inordinate and unexplained delay on the part of the appellant in making the striking out application. The petition was filed on 1 November 2000. However, the O. 18 r. 19 application was filed only on 7 November 2008, that is to say, some eight years later.

[9] Now, although we are mindful of the provisions of O. 18 r. 19(1) which states:

(1) The Court may at any stage of the proceedings order to be struck out ... (emphasis added)

nevertheless, we do not think that the words 'at any stage of the proceedings' should be literally interpreted so as to mean that a party to a proceeding is at liberty to make the striking out application at any time he wishes however so late. We take the view that as a general rule the application must be made promptly and, in any event, it should not be allowed after a very long delay, and all the more so where the long delay is unexplained (see Jamir Hassan Najir Hassan v. Kang Min and Bank Bumiputra (M) Bhd & Anor v. Lorrain Esme Osman & Another Case ; and Malaysian Court Practice , 2007 Desk Edition, High Court I, p. 240 para. 18.19.1).

[10] If, indeed, the appellant has taken the position that the petition discloses no reasonable cause of