Abdul Malik Ishak J:

Introduction

[1] The parties were magnanimous. They agreed that the decision in this case - referring to D4-22-1548-2000, would bind the case in D4-22-1549-2000.

[2] The plaintiff's claim against the defendant was for the price of petroleum products sold and delivered to the defendant upon the defendant's request. The plaintiff filed an application to enter summary judgment under O. 14 of the Rules of the High Court 1980 ("RHC") against the defendant as seen in encl. 5. On 26 July 2001, the solicitors for the defendant known as Messrs Y S Woo & Proctor failed to attend court on the hearing of the plaintiff's application for summary judgment. The learned senior assistant registrar ("SAR") allowed the plaintiff's application and entered judgment against the defendant as seen in encl. 14. The defendant then filed an application in encl. 11 pursuant to O. 14 r. 11 of the RHC in order to set aside the summary judgment entered against the defendant but it was dismissed by the learned SAR on 4 March 2002. Being aggrieved, the defendant filed an appeal to the judge in chambers in encl. 18 against the decision of the learned SAR that was handed down on 4 March 2002.

[3] I heard the arguments of the parties and, in due course, I dismissed the defendant's appeal in encl. 18 with costs. This meant that the decision of this case would bind the case in D4-22-1549-2000. That ended the matter, once and for all.

Analysis

[4] Going to the heart of the matter, it would be apparent that the defendant had failed to satisfy the criteria for an application under O. 14 r. 11 of the RHC. The defendant's reasons for an adjournment of the hearing of the plaintiff's application for summary judgment in encl. 5 were not reasonable at all. According to the defendant, the defendant's solicitor did not intentionally refuse to attend court on 27 June 2001. In fact, according to the defendant, the defendant's solicitor wrote a letter dated 20 July 2001 to the learned SAR asking for an adjournment. It was argued on behalf of the defendant that if this court was not satisfied with the explanation given by the previous solicitor for his absence during the hearing of encl. 5, then this court should not dismiss the defendant's application in encl. 11 because to do so would be considered to be too drastic. For this proposition, the defendant cited the case of Development & Commercial Bank Bhd v. Cheah Theam Swee [1989] 2 CLJ 809; [1989] 1 CLJ (Rep) 474, a decision of Zakaria Yatim J (as he then was).

[5]Order 14 r. 11 of the RHC must be referred to. That order and that rule states as follows:

Any judgment given against a party who does not appear at the hearing of an application under rule 1 or rule 5 may be set aside or varied by the court on such terms as it thinks just.

I must categorically say that this r. 11 of O. 14 of the RHC must not be used as a device for granting time and the court must always be wary and must be satisfied of the reasons for the non-attendance by the party or his solicitor. Towards this end, it is ideal to refer to "The Supreme Court Practice", 1997 edition, at p. 182 to p. 183:

... and this rule must not be used as a device for gaining time. The Court will wish to be fully satisfied as to the reason for the non-attendance at the hearing of the summons of the party against whom judgment was given under O. 14.

It is unlikely that a respondent that withdraws from a hearing following the refusal of an adjournment will subsequently be entitled to apply under this rule. In R. v. Kingston-upon-Thames Justices, ex p. Martin [1994] Imm. A.R. 172, D.C., Simon Brown L.J. refused judicial review of a denial of an adjournment by a Magistrates' Court exercising a civil jurisdiction enabling it to entertain complaints for recovery of small sums. It was suggested the relevant criteria to be used in entertaining applications for adjournments included:

- the importance of proceedings and their likely adverse consequences to th