Siti Norma Yaakob JCA:

[1] We had dismissed this appeal, made no order as to costs and directed that the deposit be refunded to the appellant. We now give our reasons for having decided so.

[2] In the Court below, the respondent/plaintiff had sued the appellant/defendant to enforce a judgment obtained by the respondent in proceedings for damages for personal injuries brought by him against one Kassim bin Yunus, the driver of the motor vehicle that was involved in a collision with the respondent. At the material time the said Kassim bin Yunus had insured the motor vehicle with an insurance company known as L'Union Des Assurances De Paris, IARD, a French-based company whose business in Malaysia is conducted by the appellant.

[3] The appellant entered a conditional appearance to the respondent's writ and statement of claim and this was followed by the appellant filing an application under O 2 r 2 of the Rules of the High , 1980 (RHC) to set aside the writ and statement of claim on the grounds that the respondent had sued the wrong party as the policy was issued by the French company and not by the appellant.

[4] At the hearing of the application, the appellant raised a preliminary objection that the respondent's affidavit affirmed on 13 April 1995 cannot be relied upon by the respondent at the hearing, as the affidavit in reply did not comply with the provisions of O 32 r 13(2)(b) of the RHC.

[5] The learned trial Judge disallowed the objection and hence the present proceedings before us.

[6]Order 32 of the RHC deals generally with applications and proceedings in chambers and for the purposes of this appeal, rr 2 and 13 have been put in issue. For ease of reference we reproduce these two rules:

2

Issue of summons.

2(1) Issue of a summons by which an application in chambers is to be made takes place on its being sealed by an officer of the registry.

(2) A summons may not be amended after issue without the leave of the Court.

Notice of filing, etc of affidavit.

13(1) Any party-

(a) filing an affidavit intended to be used by him in any proceedings in Chambers; or

(b) intending to use in any such proceedings any affidavit filed by him in previous proceedings,

must give notice to every other party of the filing or, as the case may be, of his intention to do so.

(2) Save as otherwise provided in these rules-

(a) an affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application; and

(b) a party wishing to reply an affidavit served on him must file his affidavit and serve it on the other party within 14 days from the date on which the affidavit he intends to reply was served on him.

[8] In this instant appeal, the appellant had on 28 February 1995 filed the summons-in-chambers together with its supporting affidavit affirmed on 27 February 1995. At the same time, the appellant's solicitors served an unsealed copy of the application together with the supporting affidavit on the respondent and this was received by the respondent on 3 March 1995.

[9] Subsequently, the appellant served the sealed copy of the application issued under O 32 r 2(1) of the RHC together with the supporting affidavit on the respondent on 12 April 1995. This was followed on 14 April 1995 with the respondent filing his offending affidavit in reply which he had affirmed a day earlier and serving a copy of it on the appellant the same da