ALASAN PENGHAKIMAN

This is an application by the plaintiff as follows:

a) kebenaran diberi kepada Plaintif untuk memfailkan permohonan ini diluar masa;

b) Perintah Mahkamah yang bertarikh 18hb Ogos 1997 bahawa tuntutan Plaintif terhadap Defendan dibatalkan dihidupkan semula;

c) Perintah Mahkamah yang bertarikh 18hb Ogos 1997 yang menyatakan bahawa penghakiman ingkar dimasukkan untuk Tuntutan Balas Defendan terhadap Plaintif diketepikan;

d) kos adalah dalam kausa;

e) lain-lain relief yang Mahkamah yang mulia ini sifatkan adil dan berpatutan.

On August 18, 1997, the court had dismissed the application of the plaintiffs' counsel to withdraw; and proceeding with the hearing, dismissed the plaintiffs' claim and entered judgment on the defendants' counterclaim.

Prayer a) being an application for leave to file this application out of time had previously been allowed.

The prayer b) is "Perintah Mahkamah yang bertarikh 18hb Ogos 1997 bahawa tuntutan Plaintif terhadap Defendan dibatalkan dihidupkan semula;". It is not necessary to "dihidupkan semula" the "Perintah Mahkamah yang bertarikh 18hb Ogos 1997 bahawa tuntutan Plaintif terhadap Defendan dibatalkan". There is only one course open to this Court, and that is to dismiss this prayer.

As regards the second prayer, it relates to the entry of judgment on the counterclaim when the defendant failed to proceed with his defence. August 18, 1997 being a trial date, and counsel for the plaintiff being present although unable to proceed for lack of instructions, trial of the counterclaim had been called on. The second prayer seeks that the judgment entered on the counterclaim be set aside.

In this regard, it is useful to refer to the decision in Hayman v Rowlands [1957] 1 All ER 323 wherein Denning LJ had this to say:

"I have always understood that, if by some oversight or mistake a party does not appear at the court on the day fixed for the hearing, and judgment goes against him but justice can be done by compensating the other side for any costs and trouble to which he has been put, then a new trial ought to be granted. The party asking for a new trial ought to show some defense on the merits, but, so long as he does so, the strength or weakness of it does not matter."

This principle was adopted in Buga Singh v Koh Bon Keo [1967] 1 MLJ 16by Raja Azlan Shah J. as his majesty then was.

The principle is based on the basic premise that justice is better served by a trial on merits rather than on a technical basis such as a judgment in default. Thus the Supreme Court had in Fira Development Sdn Bhd v Goldwin Sdn Bhd [1989] 1 MLJ 40 applied the principle stated by Lord Atkin in Evans v Bartlam [1937] AC 473 as follows:

"... The principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure."

Thus the Supreme Court held that:

"Where judgment is entered on the failure of a defendant to take any of the procedural steps laid down under the Rules of the High Court 1980, the court has an absolute discretion to set aside the judgment, if necessary, on terms and allow the case to be heard on the merits."

The judgment obtained on August 18, 1997 being a judgment in default is not a

L Oppenheim & Co v Mahomed Haneef [1922] 1 AC 482. This case was referred to in the judgment of the Supreme Court above.

This application to set aside the judgment of August 18, 1997 was filed on September 6, 1997. Delay therefore was minimal and is not the issue.

The affidavit of one Chin Ping Sang was filed in support of the application. Based on the record, the 2 affidavits by this person leaves much to be desired. On record the previous counsel sought to withdraw on the basis that he did not receive instructions from the plaintiff. The plaintiff's affidavit seeks to suggest that it was the previous counsel that sought t

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