Sulaiman Daud JC:

By an originating motion dated 8 November 2000 the plaintiff applied for a prohibitory injunction to be issued against the defendant, his agent or servants or otherwise that they or he be prohibited or be restrained from applying to the court by way of petition under s. 218 of the Companies Act 1965 for a winding-up proceedings against the plaintiff company. The matter was heard on 18 January 2001 and on 2 February 2001 I delivered my brief summary judgment where I made an order in terms of the originating motion and indicated that full written judgment would be issued on appeal. As the defendant has appealed against the said decision I now give my full written judgment.

The Preliminary Objections

At the commencement of the hearing of the originating motion, counsel for the defendant raised a preliminary objection on the process adopted by the plaintiff in filing the application. The learned counsel submitted that, as provided in O. 5 r. 5 of the Rules of the High Court 1980 ('the RHC'), proceedings may only be begun by originating motion if but only if these rules or by or under any written law the proceedings in question are required or authorised to be so begun. He further submitted that since there is no provisions under the RHC or any other written law that requires or authorises proceedings in respect of prohibitory injunction to be so begun the plaintiff has adopted the wrong procedure and that the application should be dismissed on this ground alone.

The learned counsel in support of such proposition referred to the case of Lee Phet Boon v. Hock Thai Finance Corporation Bhd[1994] 3 CLJ 466. In that case the plaintiff applied by way of originating motion to set aside two orders concerning sale of land. One of the preliminary objection raised by the defendant to the application was on the process adopted by the plaintiff in filing such application. It was submitted it should be by way of summons instead of by motion. The learned judge agreed with such submission and allowed the preliminary objections raised. In the instant application the learned counsel for the defendant also referred to the cases of Isyoda (M) Sdn Bhd v. Low Seong Tek[2000] 4 CLJ 621and Instrumech Engineering Sdn Bhd v. Sensorlink Sdn Bhd[2001] 1 CLJ 132as example of cases where application for a prohibitory injunction are made by way of originating summons. Notwithstanding the decision in Lee Phet Booncase, in my view, the mere fact that the application was begun by way of originating motion and not originating summons should only be treated as an irregularity and would not nullify the proceedings. This is clearly provided in O. 2 r. 1 of the RHC which reads as follows:

1. (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3) the court may, on the ground that there has been such a failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any steps taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealings with the proceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.

The aforesaid rules clearly