Raja Azlan Shah J:

This is an application by the plaintiff by way of a summons-in-chambers for an order that certain paragraphs of the statement of defence be struck out as disclosing no reasonable defence or as being frivolous or vexatious or tending to delay the fair trial of this action and costs.

The case was argued open court. Counsel for the defence raised a preliminary objection to this application. In a nutshell it was the contention of the defence that this application dated 16 March 1970 was out of time because the plaintiff, having filed its reply on 17 August 1969, O. 27 r. 13 of the Rules of the Supreme Court, 1957 provides for the close of pleadings seven days after the delivery of a reply, therefore rendering the plaintiff' application nugatory. Counsel for the defence further buttressed his objection by stating that on 18 September 1969 plaintiff filed its notice of entry of trial and on the same day notice of trial was issued and only after nearly six months later did the plaintiff file this particular application.

The preliminary objection is not without merit. Order 71 r. 1(10) provides that pleadings "include any petition or summons" Then again, in Cross v. Earl Howe 62 LJ Ch. 342 it was held that an application to strike out a defence or any part thereof should always be made promptly and as a rule, this should be before the close of pleadings. It follows therefore that undue delay in presenting an application to strike out under either O. 19 r. 27 or O. 25 r. 4 may be refused by the Court in exercise of it's discretion.

Nonetheless each application and for that matter every objection has to be judged on its own merit and circumstances. In this case, the plaintiff did file its reply on 17 August 1969 and did also have the notice of trial issued on 18 September 1969. However on 2 December 1969 the plaintiff filed a summonsin-chambers asking for an order that the defendant serve on the plaintiff particulars of the statement of defence. To this application there was no record of the defendant objecting that it was out of time. In fact the defendant in compliance with the order of the learned senior assistant Registrar pursuant to the summons-in-chambers dated 2 December 1969 did file his particulars on 2 February 1970. Evidently Counsel for the plaintiff felt that the particulars were insufficient so he then filed a summons-in-chambers on 16 March 1970 asking that the Court strike out such parts of the defence as enumerated in the said summons-in- chambers. To this application, Counsel for the defendant has raised his objection.

As has been stated earlier, this objection is not without merit. However, after considering the events that have led to this application, in particular, the fact that this application was made after the filing of particulars by the defendant on 2 February 1970, it is felt that the application was made reasonably promptly since in any event, this case was not yet set down for trial. Further the application was only made after the defendant was given every opportunity to particularise his defence which he seems not to have done. The objection is accordingly disallowed.

Coming now to the essence of the application, it is the assertion of Counsel for the plaintiff that paras. 4, 5, 6, 7, 9 and 11 of the statement of defence disclose no reasonable cause of defence or are frivolous or vexatious or tend to delay the fair trial of this action. It can safely be presumed that the plaintiff came to this conclusion after the defendant filed his particulars, which particulars the plaintiff thinks do not add more to or clarify the statement of defence.

No precise legal definition can be found as yet, as to the meaning of "no reasonable defence" or "frivolous or vexatious" or "tending to delay the fair trial of the action", but as can be observed a pleading will not be struck out under this rule "unless it is not only demurrable but something worse than demurrable", that is, such that