Low Hop Bing J:

Application

[1] The plaintiff vide application by way of summons in chambers in encl (30) has originally sought a variety of orders, but has subsequently prayed for an order requiring the first and second defendants to produce, at the office of the plaintiff's solicitors, documents for the plaintiff to make notes and copies thereof upon payment of reasonable fees, and in the event of the defendants' failure to comply therewith, to strike out the defence and enter judgment for the plaintiff.

Factual Background

[2] Six plaintiffs, including the plaintiff herein, have on 15 February 2002 filed six separate civil suits against the defendants. These suits were consolidated on 22 May 2003.

[3] The parties have consented to treat the decision in the instant suit as binding on the other five suits.

[4] The plaintiff's affidavit in support averred that he was the purchaser of a low cost house in a housing project for which he had paid RM23,782 representing 60% of the purchase price. The housing project has since been abandoned but was subsequently taken over by the first defendant ("D1") to whom the second defendant ("D2") has given a loan of RM3.2 million with a view to rehabilitation, completion and delivery of vacant possession to the purchasers including the plaintiff.

[5] The plaintiff alleged that D1 had completed the project but had instead sold the plaintiff's house to a third party. The plaintiff has commenced the instant suit as an equitable and beneficial owner of the house.

[6] In the defence, both the defendants denied any responsibility or trust in favour of the plaintiff.

[7] On 5 March 2003, pursuant to O. 24 r. 10 of the Rules of the High Court 1980, the plaintiff served on D1's solicitors a notice to produce, inter alia, the following documents:

(1) Order of the court dated 15 September 1992 in Melaka High Court SP 24-205-1991;

(2) Transfer Form from Lock Kim Lian to D1;

(3) D1's application to D2 for a term loan repayable with interest for 18 months;

(4) Agreement;

(5) Letter dated 1 October 1996;

(6) Agreement between D1 and D2; and

(7) D1's letter of offer to plaintiff.

[8] On 5 March 2003, also pursuant to O. 24 r. 10, the plaintiff's solicitors served on D2's solicitors a notice to produce a variety of documents including:

(1) Agreement between D1 and D2;

(2) Evaluation Report Reference No. "TPPT/A-025/HQ 0074" by Ernst & Young;

(3) Debenture between D1 and D2;

(4) Deed of assignment between D1 and D2; and

(5) First charge by D1.

D1'S Right To Object

[9] Mr. Mogan Karupiah learned counsel for the plaintiff submitted that by reason of D1's failure to file an affidavit in reply, D1 has lost the right to object to the plaintiff's application herein, relying on:

(1) Ng Hee Thoong & Anor v. Public Bank Bhd[1995] 1 CLJ 609 CA;

(2) Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1985] SCR 353 SC; and

(3) Abdul Razak Ahmad v. Majlis Bandaraya Johor Bahru [1995] 4 CLJ 339 HC.

[10] D1's learned counsel Mr. Bala Gopal has deemed it unnecessary to reply to the above submission.

[11] The merits of the plaintiff's submission will no doubt be apparent after my analysis of the authorities referred to above.

[12] First, in Ng Hee Thoong, supra, the two appellants-guarantors ("the guarantors") gave their address in the guarantee as 83, Jalan Iskandar, Ipoh. Their liability depended on the making of demand upon them by the respondent-bank ("the bank"). Upon default of payment, the bank sent a letter of demand, addressed to the first guarantor at 86 Jalan Theatre Ipoh while that addressed to the second guarantor bore the address of No 5 Jalan Chung Ah Moi, Chateau Garden, Ipoh. Hearing nothing from the guarantors, the bank issued a writ and statement of claim against, inter alia, the guarantors and obtained judgment in default of appearance against them. Subsequently, the guarantors succeeded in applying to set it aside, and then delivered their defence. About 15 months later, the bank took out a su