Wan Adnan J:

The applicant, Tohtonku Sendirian Bhd. is the registered proprietor of the trade mark`MISTER'. By the notice of motion in Origination Motion No. 32-48-1988 the applicant had applied for an order pursuant to s. 16 of the Trade Descriptions Act 1972. The application was made and heard ex parte . The order in terms of the application was granted on 5 October 1988.

By the summons dated 7 December 1988 Superace (M) Sdn. Bhd., the intervener, had applied to the Court for the following orders:

1. Leave of this Honourable Court be granted to the intervener to intervene in this action and that the intervener be the respondent in this motion.

2. The order obtained on 5 October 1988 be set aside, rescinded or varied as this Honourable Court deems fit and proper.

3. That an injunction be granted against the applicant, its agents, servants or otherwise from harassing, interfering, obstructing or restraining the intervener and its customers from exercising its rights and freedom of trade or business.

4. The applicant pay damages to the intervener and the assessment of damages be taken from the Senior Assistant Registrar or as directed by this Honourable Court.

5. The applicant pay costs.

6. Such further or other order as this Honourable Court deems fit and proper.

(Note: Prayer (3) and (4) were withdrawn during the hearing of the application)

Counsel for the applicant raised a preliminary objection at the hearing of the application. It was contended that the intending intervener had no locus standi . They had no interest in the matter at all and should not be allowed to be heard. A mere commercial interest was not sufficient. It was contended that as the order of the Court had been perfected the Court could not review it any longer. The intervener could only proceed by way of a separate action.

1

At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application:

(a) ...

(b) order any of the following persons to be added as a party, namely,

(i) ...

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the opinion of the Court it would be just and convenient to determine as between and him and that party as well as between the parties to the cause or matter.

This rule is in para materia with O. 15 r. 6(2)(b)(ii) of the English Rules of the Supreme Court. In Sanders Lead Co. Inc. v. Entores Metal Brokers Ltd. [1984] 1 All ER 857 Kerr LJ said of the rule as follows:

In my view the rule requires some interest in the would-be intervener which is in some way directly related to the subject matter of the action. A mere commercial interest in its outcome, divorced from the subject matter of the action is not enough. It may be impossible, and would in any event be undesirable, to attempt to categorise the situations in which the interests of the would-be interveners are sufficient to satisfy the requirements of the rule. The authorities show that the existence of a cause of action between the intervener and one of the parties is not a necessary prerequisite for this purpose. But they also go no further than to show that there must be some direct interest in the subject matter, such as an alleged infringement of a patent, trade mark or copyright with which the intervener is concerned.

In Pegang Mining Co. Ltd. V. Choong Sam & Ors. [1973] 1 MLRA 567, [1973] 1 MLJ 135 the Privy Council had occasion to consider O. 16 r. 11 of the Rules of the Supreme Court 1957 which is in substantially the same terms as the present O. 15 r. 6(2)(b)(ii). Lord Diplock said:

It has been sometimes said ... that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests