Judgment was given on 12 August 1955, in the High Court of Brunei Darussalam, by Kempster J in favour of the plaintiff (Decorbilt Sdn. Bhd.) for RM219,963, plus interest and costs. The costs were to be taxed if they were not agreed.

A sum of RM42,705 was paid into Court, before judgment but after conditional leave to defend was given to the defendant.

The parties did not agree as the costs. A notice of taxation was therefore issued by the plaintiff on 13 September 1995. The bill of costs was taxed on 19 October 1995 by the Senior Registrar, who allowed the sum of RM102,550.34.

The defendant filed a notice of appeal against the sum awarded by the Senior Registrar, on 7 November 1995.

Order 59 r. 34 of the Brunei High Court Rules (BHCR) provides that a party to taxation proceedings, if dissatisfied with the allowance or disallowance of an item by the Registrar on taxation, may apply to the Registrar to review his decision in respect of that item "within 14 days after that decision or such shorter period as may be fixed by the Registrar".

The defendant was already out of time by about four days when he sought a review of the taxation. He has therefore applied for an extension of time under O. 4 of the BHCR, which permits an extension of the time during which a person is required or authorised by those Rules to do any act. By O. 4 r. 2, such an extension may be given even if the application for an extension has been made after the expiration of the period.

Such a period can also be extended with the written consent of the other party. There was no such consent in this case and the application for an extension of time was opposed by the plaintiff.

In Ratnam v. Cumarasamy and Anor. [1965] 31 MLJ 228, the Privy Council considered the question of an extension of time and concluded that, to justify an extension, there must be material on which the Court could exercise its discretion to extend time. If there was not, the party in breach would have an unqualified right to an extension of time, which would defeat the propose of BHCR, which is to provide a time table for the conduct of litigation.

Although that appeal was concerned with an application for an extension of time to file a record of appeal, the findings of the Board are of general application and cover all applications for an extension of the times prescribed by the BHCR. At p. 229, Lord Guest said:

The Rules of Court must prima facie be obeyed, and in order to justify a Court in extending the time during which some step in procedure requires to be taken there must be some material upon which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time, which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. The only material before the Court of Appeal was the affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged and that his reason for this delay was that he hoped for a compromise. Their Lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material upon which they could exercise their discretion in favour of the appellant. In these circumstances their Lordships find it impossible to say that the discretion of the Court of Appeal was exercised upon any wrong principle.

I do not doubt that a discretion does exist under the BHCR to extend time, but only if there is a good reason for this. The only justification advanced by the defendant is that an application for a review was not filed within 14 days of taxation "due to inadvertance".

A similar situation arose in Tan Chai Heng v. Yeo Seng Choon [1981] 1 MLJ 271 in which it was held that an application for an extension of the time for filing a notice of appeal should not be granted since, as the Judge commented:

In my view the facts d