On 5 February 1988, the plaintiff had judgment entered against the defendant in the sum of $200,000 and $350 costs. On 1 March 1988, the plaintiff, on an ex parte application, obtained a garnishee order nisi against Gamuda Sdn Bhd ('the garnishee') by which all debts due or accruing due from the garnishee to the judgment debtor was attached to answer the said judgment. The garnishee order nisi also stated that the garnishee was required to attend before the senior assistant registrar on 16 March 1988 to show cause why the order nisi should not be made absolute.

The order nisi was duly served on the garnishee. The ex parte summons and the supporting affidavit by which the order nisi was sought and obtained do not appear to have been served on the garnishee. Now, although 16 March 1988 was the appointed date for cause to be shown, it would appear that the application was in fact heard and disposed of on 13 April 1988 when the plaintiff judgment creditor was represented by counsel but the garnishee was absent. The senior assistant registrar, pursuant to O 49 r 4(1) on the basis that the garnishee had not attended at the hearing, made the order absolute.

On 5 July 1988, the garnishee took out this application (encl (60) in the court file) seeking to have the garnishee order absolute of 13 April 1988 set aside. The senior assistant registrar took the view that she was functus officio vis-a-vis the order absolute and as such had no jurisdiction to entertain the application. She made no order on the application. The garnishee appealed. I heard arguments on the jurisdictional point and reserved judgment which I now deliver.

Order 49 r 3(1) provides that on the date appointed for that purpose in the garnishee order nisi, there will be a 'further consideration of the matter'. Order 49 r 4(1) also provides that the order to be made is 'on the further consideration of the matter'. 'The matter' is obviously the original application for an order under O 49 r 1 for the garnishee to pay to the judgment creditor the amount of any debt due or accruing due from the debtor to the garnishee sufficient to satisfy the judgment and the costs of the garnishee proceedings. What was heard initially as an ex parte application has to be reheard as it was on an inter partes basis. I pause to note that if that is so and I have no doubt that it is so, then it seems to me that not only must a copy of the order nisi be served on the garnishee as was done here but a copy of the application and supporting affidavits must also be served on the garnishee (which does not appear to have been done in the instant case) before there can properly be a further consideration of the matter.

Now, a strong quorum of the Singapore Court of Appeal had held in United Overseas Bank Ltd v Chung Khiaw Bank Ltd [1968] 2 MLJ 85 at p 87 that where the defendant though served fails to appear, the order made in an inter partes application is an ex parte order:

The first question for consideration is whether or not the order made on the originating summons was an ex parte order and comes within O LIII r 4(1).

The originating summons in this case was served on Tay Soo Tong by substituted service and he had made no appearance and in such a case O LI r 16 provides:

'Where any party who had been duly served fails to attend at the time appointed for the hearing, the judge may proceed ex parte, if he thinks it expedient to do so and may require such evidence of service as he thinks fit.'

It is clear then that a judge may proceed ex parte to hear an application where a party duly served fails to appear at the time appointed for the hearing.

An application so heard in the absence of a party is not an ex parte application. It is the hearing which is ex parte and an order made on such a hearing is an ex parte order within the terms of O LIII r 4(1).

This dictum was considered and applied by Edgar Joseph Jr J in UMBC Bhd v Syarikat Perumahan Lunas Sdn Bhd [1988] 1 MLJ 546 at p 547. Wh