Mohd Saari Yusoff JCA:

The suit by the respondent ("the plaintiff") against the appellant ("the defendant") is for alleged breach of contract.

In the court below, the respondent obtained an ex parteorder for leave to serve its writ out of jurisdiction and also obtained an ex parteorder for seven renewals of the writ. The learned deputy registrar dismissed an application to set aside the orders. On appeal to the judge in chambers, the learned judge dismissed the appeal and affirmed the decision of the learned deputy registrar, hence this appeal.

In this appeal, issues raised by the appellant are as follows:

i) whether there is justification in the granting of leave to serve the writ out of jurisdiction;

ii) whether there is justification in the granting of the extensions.

On First Issue

The complaint of the appellant is that in the application for leave to serve the writ out of jurisdiction, the respondent had failed to state clearly under which paragraph of O. 11 r. 1 of the RHC 1980 the respondent was relying on. In the Supreme Court case of Sunkyong International Inc v. Malaysian Rubber Development Corporation Bhd[1992] 3 CLJ 1531; [1992] 1 CLJ (Rep) 310 Peh Swee Chin SCJ (as he then was) observed:

While it is always far better to quote section and verse or specific order or rule in any application, it is never fatal to any application to omit to do so where the applicant can bring himself within any relevant specific order or rule.

On this issue, the learned judge of the court below said:

It is true that the Plaintiff in their ex parteapplication for leave to serve out of the jurisdiction merely indicated that the application was made under O. 11 r. 1(1) and failed to state in their affidavit in support the relevant paragraphs of the said rules on which they relied. However, the contents of the affidavit together with the Statement Of Claim would in my opinion sufficiently show that the application was made under paragraph (f) or (g) of O. 11 r. 1 (1) of the Rules of High Court. In view of this I do not think that the Order for leave obtained in the present case ought to be set aside on this ground.

We agree.

Turning to another aspect of the case, the complaint of the defendant was that the plaintiff had failed to exhibit the relevant letters in support of the plaintiff's application for extensions. In this regard, it is pertinent to refer to O. 11 r. 4(1) of the RHC 1980 which reads:

4(1) An application for the grant of leave under rule 1 or 2 must be supported by an affidavit in Form 12 stating the grounds on which the application is made and that in the deponent's belief, the plaintiff has a good cause of action, and showing in what place or country the defendant is, or probably my be found.

In Seaconsar Far East Ltd. v. Bank Markazi Jomhouri Islam, Iran[1993] 4 All ER 456 at p. 463, Lord Goff observed:

... if in support of the plaintiff's ex parteapplication an affidavit is sworn in proper form deposing facts which, if proved, provide a sufficient foundation for the alleged cause of action, that should generally be enough for present purposes.

From the reading of O. 11 r. 4(1) RHC 1980 and the above passage by Lord Goff, it is observed that there is no requirement in law that the alleged letters must be exhibited. All that is needed is for the plaintiff to provide the information as is required under Form 12. In his judgment, the learned judge concludes:

I would respectfully agree with Counsel for the Plaintiffs that in the present case the Plaintiff's by the affidavit of their former Solicitor Raymond Szetu has complied with Form 12. There was, therefore, in my view, sufficient evidence for the Court to exercise its discretion under O. 11.

We agree.

On Second Issue

On this issue, the respondent referred to a series of incidents which contributed towards the delay in effecting the service of the writ on the appellant. The incidents are as set out below:

(1) Although the writ was issued on the 28th October 1989,