Tee Ah Sing JC:

This is a summons-in-chambers by the defendant for an order to set aside the writ on the ground that the plaintiffs' cause of action is irregular ab initio and premature in that:

(1) the plaintiffs have failed and/or neglected to obtain the leave of the High Court before commencement of the action against the defendant which leave is a prerequisite to its commencement by virtue of s. 8(1) of the Bankruptcy Act 1967; and

(2) the commencement of the action without leave is an abuse of the Court process.

The said summons-in-chambers is supported by the affidavit of Paul Chin Yin Khi affirmed on 6 March 1995.

In para. 4 of the said affidavit, it is averred that on 1 March 1995, the defendant obtained the leave of the High Court at Kota Kinabalu to enter a conditional appearance to the action herein, and this application herein is made pursuant thereto to strike out the action on the following grounds:

(i) I am advised and verily believed that a receiving order was made against the defendant by the High Court at Kota Kinabatu dated 8 January 1993, and by s. 8 of the Bankruptcy Act 1967, the Official Assignee was thereby constituted as the Official Receiver of the property of the defendant.

(ii) By virtue of s. 8 of the Bankruptcy Act 1967, I am advised and verily believe that no creditor to whom the defendant is indebted shall commence any actions or other legal proceedings against the defendant in respect of such debt thereafter unless leave of the Court shall have first obtained. (iii) I am advised and verily believe that the plaintiff has failed to apply and/ or obtain leave of the Court before commencement of the action herein against the defendant, contrary to the requirement of s. 8 of the Bankruptcy Act 1967 and hence, the writ and/or the action herein is irregular ab initio and premature and ought to be struck out for the same reason.

(iv) The commencement of the action herein without leave is an abuse of the Court process.

The plaintiffs have filed a summons-in-chambers and writ of summons against the defendant.

The relevant parts of the statement of claim are as follows:

(1) The plaintiffs are a company incorporated in Malaysia under the Companies Act 1965 and have an office at No. 15 Taman Syn Fah, Batu 9 Jalan Tuaran, Menggatal, Sabah, Malaysia.

(2) The defendant is the registered owner of a parcel of land held under land title No. FR1093 situated at Kg Malawa, Menggatal in the district of Kota Kinabalu (hereinafter referred to as 'the said land').

(3) By an agreement dated 3 September 1987 (hereinafter referred to as 'the said agreement'), made between the plaintiffs and the defendant, the defendant, inter alia , agreed:

(a) to grant the plaintiffs authority to remove stones from the said land for quarrying purposes; and

(b) to accept a royalty of RM2 (Ringgit Malaysia Two) per cubic yard

of stones removed from the said land.

(4) The plaintiffs had also made an advance payment of RM60,000 to the defendant being royalty for the extraction of stones from the said land.

(5) Sometime in late 1994, the defendant, without the permission of the plaintiffs or its servants trespassed into the plaintiffs' quarry site.

(6) On 26 January 1996, the defendant without giving any notice to the plaintiffs, instructed his servants or agents to fence up the said land which put a stop to the plaintiffs' quarry operations on the said land, and thereby breached the said agreement.

(7) As a result of the defendant's unreasonable action and breach of the said agreement, the plaintiffs suffered irreparable loss and damage to its business and reputation as contracts and orders for stones could not be fulfilled by the plaintiffs on time. The plaintiffs also could not commit themselves to any new orders for stones.

(8) The plaintiffs through its solicitors, Messrs Shelley Yap Leong Tseu Chong Chia & Co., notified the defendant's solicitors, Messrs Paul Chin & Co. on 26 January 1995, concerning the defendant's unreasonable and drastic action an