JUDGMENTBY: GUNN CHIT TUAN J

On 23 February 1979, Shell Malaysia Trading Sdn Bhd (the plaintiff) filed a suit against one Leong Yuet Yeng the administratrix, and Lim Chin Beng and Lim Chui Pher as the co-administrators of the estate of Lim Chooi Seng, deceased (the defendants), for a sum of$ 793,116.13 being a debt incurred and owed by the said deceased. A conditional appearance was entered for the defendants on 31 May 1979, without prejudice to an application to set aside the writ.

On 17 April 1979, Skrine & Co wrote to Shearn Delamore & Co, the plaintiffs solicitors, to say that they act on behalf of the proposed administratrix and administrators of the estate of the late Lim Chooi Seng. They also informed Shearn Delamore & Co that a grant in their clients favour had not yet been extracted because of difficulties in finding sureties to give the administration bond. They pointed out that the action was premature and that their clients have been improperly sued. Further to another enquiry by Shearn Delamore & Co, Skrine & Co informed them that only a limited grant was extracted on 20 October 1977, to enable some of the assets of the estate to be dealt with, but no general grant has been extracted up to 23 April 1979. Shearn Delamore & Co replied that in their opinion the limitation applies only to the extent of the estate and not to the purpose for which these assets are to be applied. They contended that the position of the administrators of the deceaseds estate remained unchanged. Then on 14 July 1979, judgment was entered against the defendants as follows:

Judgment in default of defence

The defendants having appeared to the specially indorsed writ of

summons herein and not having delivered any defence it is this day

adjudged that the plaintiffs recover against the said defendants the

sum of Ringgit Seven hundred and ninety three thousand one hundred and

sixteen and sen thirteen only ($ 793,116.13) together with interest

thereon at the rate of 6% per annum from the date hereof to the date of

realization and Ringgit One hundred and twenty only ($ 120) costs.

Given under my hand and Seal of the Court this 14 July 1979.

sgd

Senior Assistant Registrar

High Court, Kuala Lumpur

On 26 October 1984, that is more than five years after entering the said judgment, the plaintiff applied by summons-in-chambers for the following orders:

1 The plaintiffs be given leave to amend the name of the third

co-administrator from Lim Chui Pher to Lim Chin Joo (as

administrators of the estate of Lim Chooi Seng, deceased) on the

judgment given in default of defence against the defendants dated

14 July 1979 and on all pleadings and documents filed previously.

2 That the cost of this application be costs in cause.

On 25 January 1985, the senior assistant registrar ordered that the plaintiffs application to amend the judgment given on 14 July 1979, be dismissed with costs. The plaintiff filed a notice of appeal to the judge in chambers on 28 January 1985. I heard the appeal on 13 January 1988, and dismissed the appeal with costs but allowed the plaintiffs application for further arguments in open court.

Mr Morais, counsel for the plaintiff conceded in open court that the form of the original judgment in default was against the defendants in their personal capacity. He then referred to his written submission which stated that O 15 r 6 of the Rules of the High Court (the Rules) 1980 gave the court the power to order that Lim Chui Pher (who has ceased to be an administrator as a result of an order dated 21 June 1983) ceased to be a party and to add Lim Chin Joo as a defendant since he became a co-administrator.

But then Mr Morais referred to Savena Supramaniam Pillay v Tan Kah Chiat, Administrator of Tan Kong Liang [1934] MLJ 133 in which the Court of Appeal in Singapore held that once a judgment has been p

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