Vincent Ng J:

The applicants made an application ex parteby an originating summons dated 2 November 1999 (encl. 1) for a Trade Description Order pursuant to s. 16(1) of the Trade Descriptions Act 1972 ("the Act") in respect of the use or application of "BLANSACAR", "Five Star Device" and/or Chinese characters which'reads "WU XING SHANG JIANG", as shown in Certificate of Registration No. 91/02436 in the Schedule. On 18 November 1999, the court granted a Trade Description Order ("the said TDO") as set out in the said TDO. About a year and nine months thereafter the intervenor made an application by way of summons in chambers dated 13 August 2001 for leave to intervene and to set aside the said TDO, and on 7 February 2002 the intervenor was allowed leave to intervene. To urge me set aside the said order of 18 November 1999, the intervenor submitted three grounds, as follows:

(a) As the applicants had full knowledge of the existence and identity of the intervenor they should have not have made the application ex parte;

(b) The said TDO does not satisfy the requirement of s. 16 of the Trade Descriptions Act 1972; and,

(c) The said TDO was based on material non-disclosure of facts.

On ground (a) above, the intervenor submitted that he was not made a party to the application for the said TDO though the applicants themselves knew the existence of the intervenes, not only as a competitor in the market but also as one of their partners in business. In my view there is no requirement under s. 16 of the Act which requires the proceedings to be made inter partes.

It is now well settled that under the Act the applicants can elect to proceed ex parteor inter partesand that a court is not functus officioto review a TDO order granted ex partethough perfected (NV Sumatra Tobacco Trading Co v. PT Sampoerna JL Sdn Bhd [1997] 3 CLJ 946 at p. 955; Socoil Corporation Bhd v. Ng Foo Choong; [1981] 2 MLJ 7 at p. 9; and Muniandy Thamba Kaundan & Anor v. Development & Commercial Bank Bhd & Anor [1996] 2 CLJ 586). As the intervenor neither asserted that the alleged partnership between him and the intervenor was registered, nor exhibited any evidence of search in the Registry of Businesses, I am more inclined to accept the applicants' submission that the applicants and the intervenor were never business partners - though I am mindful that the 2nd applicant had acknowledged that he had known the intervenor since 1982 when the latter was a tour guide, and that sometime towards the end of 1993, the intervenor had rented a space at the applicants' former premises and started business selling cameras and silver costume jewellery under the names of Foto Satu and Deluxe Silver respectively, which was unrelated to and independent of the applicants' business. Notably, counsel for the applicants had also submitted that the intervenor's claim that he has rights over the "Five Stars Device" is inconsistent with his earlier withdrawal of his trade mark applications Nos. 96/10906 and 96/10907. Further, I would accept counsel's submission in reply that as the applicants have taken steps since 1997 to stop the infringing acts of the intervenor, the proceedings herein cannot be viewed as a means to eliminate competition, as alleged by the intervenor. Also, the non-explanation by the intervenor as to why he had waited 21 months before applying to set aside the TDO dated 18 November 1999 does not advance the bona fidesof his cause.

On ground (b) above, the intervenor contends that the TDO has failed to identify the infringing mark with sufficient precision and hence does not satisfy s. 16 of the Act - being that (in his words): "annexing the said mark to the said TDO without proper description does not satisfy the requirement of s. 16 of the said Act". I find that there is no ambiguity in the said TDO, as it was cleariy specified, to the extent that: "the usepr application of 'BLANSACAR' trade mark as shown in Certificate of Registration No. 91/02436 on the Schedule