Vincent Ng J:

Preamble

[1] On 14 June 2002 the learned senior assistant registrar (SAR) allowed the preliminary objections raised by the sixth defendant's solicitor and struck off with costs the plaintiff's application for summary judgment in encl 8.

[2] Hence this appeal (encl 61) before me today.

[3] Without going into much detail, suffice to say, the plaintiff's claim against the sixth defendant was for the return of US$617,756.37, being monies received from the plaintiff's customer and wrongfully retained by the sixth defendant and a sum of US$501.37 for goods sold and delivered.

[4] Although at the onset, the sixth defendant raised seven (7) preliminary objections to defeat the plaintiff's application for summary judgment, for the purposes of this appeal, only five (5) of them merit discussion, the total effect of which, in my opinion justified the learned SAR's decision.

The First Preliminary Objection - Delay

[5] The following facts are undisputed. The plaintiff commenced this action against the defendants on 31 December 1998. The sixth defendant entered their appearance and filed their defence by 4 March 1999. The plaintiff only took out their summary judgment application three months after the sixth defendant entered appearance and two months after the filing of the defence.

[6] The plaintiff's explanation for the delay was contained in their supporting affidavits (exh. DL1 encl 8A and encls 8b & 44A). The plaintiff needed time, not only to instruct their solicitors and forward documents but also to coordinate and prepare the supporting affidavits as the plaintiff was based in the United States of America (USA) whilst the deponents of the supporting affidavits were in both USA and Australia. In light of these circumstances, the plaintiff sought to persuade this court, that the delay was not inordinate. I am mindful that delay in recourse to a summary judgment application is not per se fatal.

[7] Aside from the fact that the sixth defendant was disputing the admissibility of the supporting affidavits, the sixth defendant maintained that the explanation on the delay forwarded by the plaintiff was unacceptable.

[8] On the delay, I am in agreement with the sixth defendant, as I am bound to follow the decision of the Supreme court in Krishnamurthi & Anor v. Malayan Finance Corporation Bhd, [1986] 2 MLJ 134; [1986] CLJ (Rep) 170. Having commenced the suit against the defendants, presumably with instructions to apply for summary judgment supported by affidavits to be secured from USA, the plaintiff should have prepared all the relevant documents for the expeditious conduct of their case.

[9] This is of material consideration in the light of the present day litigation culture which enjoins speedy disposal of cases. The plaintiff had failed to discharge the onus on them to show that the delay was justified under the circumstances of their case. (See McLardy v. Slateum [1980] 24 QBD 504, K & N Kenanga Sdn Bhd v. Latchman Dass Shewaram, [1986] CLJ (Rep) 388, Standard Chartered Bank (M) Bhd v. Eng Song Huat; [1996] 1 MLJ 446; [1996] 2 CLJ 714; [1996] 1 AMR 726 and Perkapalan Shamelin Jaya Sdn Bhd & Anor v. Alpine Bulk Transport New York; [1997] 3 MLJ 818; [1998] 1 CLJ 424; [1997] 4 AMR 3999 & [1998] 1 AMR 258 (CA).)

The Second Preliminary Objection - English Affidavits

[10] What is more pivotal to my decision is the sixth defendant's objection to the admissibility of all the affidavits affirmed by David Lee Kim Meng (Lee), the plaintiff's solicitor, (encls 8A, 9, 10, 23, 26, 33C, 35 and 44) and the affidavits of Evert Alan Butters (Butters) exhibited in the former's affidavits (exh 'DL1' of encl 8A, exh 'DL2' of encl 9, exh 'DL2' of encl 10, exhs 'DLA' of encl 23, exh 'DL4' of encl 26, exh 'DL5' of encl 33C, exh 'DL6' of encl 35 and exh 'DL A' of encl 44).

[11] All of Butters' affidavits were affirmed in English with an unaffirmed copy of the same in Bahasa Malaysia attached thereto. These affidavits were annexed to Lee's affidavits