Augustine Paul JCA:

By an order of court dated 18 March 2002 the appellant (the plaintiff in the court below) obtained leave to issue and serve a notice of writ out of jurisdiction on the first and second respondents (the defendants in the court below). This appeal concerns the validity of the said order.

The appellant is one of the beneficiaries of the estate of Chan Wing ( & the deceased & ). The second respondent is the sole surviving trustee of the estate; the first respondent having passed away on 7 May 2003. At all material times the respondents resided in Singapore. The appellant, being dissatisfied with the respondents' conduct of the affairs of the estate, filed an action in the Kuala Lumpur High Court to obtain an order for an investigative audit of the accounts of the estate. As the respondents resided out of jurisdiction the appellant obtained leave to issue and serve a notice of writ out of jurisdiction. The respondents entered conditional appearance on 26 April 2002 and applied to set aside the order obtained by the appellant. On 8 January 2003 the senior assistant registrar dismissed the application. The respondents appealed to the judge in chambers who allowed the appeal on three grounds. They are, firstly, the appellant had obtained leave to serve the notice of writ out of jurisdiction without first having obtained leave to issue the writ as required by Rules of the High Court 1980, O. 6 r. 6(1) ( & the first ground & ); secondly, as the deceased did not die domiciled in Malaysia and as about 90% of his property is situated outside Malaysia this case does not come within the scope of Rules of the High Court 1980, O. 11 r. 1(1), (d), (e) in order to qualify for the grant of leave to serve the notice of writ out of jurisdiction ( & the second ground & ); and, thirdly, the appropriate forum to try the action commenced by the appellant is the court in Singapore ( & the third ground & ). This appeal by the appellant is against the order made by the learned judge.

We gave anxious consideration to the arguments advanced by learned counsel for both parties in respect of the three grounds relied on by the learned judge in arriving at our conclusion.

(a) The First Ground

The material part of the judgment of the learned judge in respect of this ground reads as follows:

Berdasarkan kepada kes Seasiana Sdn Bhd v. Saab Scania yang telah dinyatakan di atas, Mahkamah juga memutuskan tindakan Plaintif yang telah memohon terus menurut Aturan 11 Kaedah 4 tanpa mengambil langkah seperti yang dikehendaki oleh Aturan 6 Kaedah 6 dan Arahan Amalan No 2 tahun 1982 adalah merupakan satu kesilapan yang fatal.

It is perhaps necessary to set out the relevant rules of the Rules of the High Court 1980 that deal with the obtaining of leave to issue a writ notice of which is to be served out of the jurisdiction and for service of the notice of writ in order to appreciate the arguments advanced before us.

Order 6 r. 6

(1) No writ notice of which is to be served out of the jurisdiction shall be issued without the leave of the court.

(2) A plaintiff or his solicitor must, on presenting a writ for sealing, leave with the registrar the original and a copy together with as many copies thereof as there are defendants to be served.

(3) The registrar shall assign a serial number to the writ and shall sign, seal and date the writ whereupon the writ shall be deemed to be issued.

(4) The original writ must be filed in the registry and an entry thereof made in the cause book.

Order 11 r. 1 And r. 4

1(1) Where the writ does not contain any claim for damage, loss of life or personal injury arising out of:

service of a notice of a writ out of the jurisdiction is permissible with the leave of the Court in the following cases, that is to say:

(d) if the action begun by the writ is for the administration of the estate of a person who died domiciled within the jurisdiction or if the action begun by the writ is for any relief or remedy which might be ob