Wan Yahya J

This is an application by the third party for the following orders, inter alia, that:

(i) the third party be allowed leave to file the application out of time;

(ii) the interlocutory judgment obtained against him on 28 January 1991 be set aside and all further proceedings be stayed pending the outcome of the application; and

(iii) the third party be given seven days to file the memorandum of appearance from the date of the order.

The summons-in-chambers filed on 8 April 1991 and supported by the affidavit of the third party, amongst other things, stated that the third party notice issued pursuant to the order of court dated 13 December 1990 was served on him by substituted service by the solicitors for the defendant at his alleged premises at No 611, 33ú4 mile, Jalan Ipoh, Kuala Lumpur, at which address he was not residing at the material time.

He averred that he had moved out of the above address around February 1971 and shifted to No 49, Jalan 42, Kepong Baru, Kuala Lumpur, and then in September 1982, moved to his present premises at No 623, Jalan 48, Taman Kepong, Petaling, Kuala Lumpur.

He further averred that he had no knowledge of the third party proceedings against him until he attended the hearing of the case on 25 February 1991, and he did not evade service and as such he contended that the defendant's application for substituted service of the third party notice against him was irregular and ought to be set aside. Further, he being a layman, he was not aware of the consequences of the interlocutory judgment taken against him till he was advised by his solicitors recently.

The defendant, in his affidavit-in-reply, stated that his solicitors obtained the address at which substituted service was effected from the RIMV, and also inserted the third party notice in the Malay Mail of 9 January 1991.

It is my understanding of the law that the court may at any time set aside or vary a judgment entered under O 16 r 5(1)(b) of the Rules of High Court 1980, on such terms (if any) as it thinks just. The principles applicable are the same as in setting aside judgments under O 13 r 8.

The classical case of Evans v Bartlam 1 sets out the principles on which the court should act, which was put aptly by Lord Atkin at p 480:

The principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.

Where the judgment is regular, the discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits or for some very sufficient reason. I could do no better than to quote Raja Azlan Shah, Ag CJ (as his Majesty then was) in Bank Bumiputra Malaysia Bhd v Majlis Amanah Ra'yat 2 at p 24A :

The rule gives the court a discretion which must be exercised judiciously. It is axiomatic that if the judgment is regular, then it is an inflexible rule that there must be an affidavit of merits, that is, an affidavit stating facts showing a defence on the merits.

A defence on the merits means merely raising only an arguable or triable issue, eg contributory negligence in a running down case, see White v Weston 3 (1 Mallal's Supreme Court Practice (2nd Ed) at p 85). The case of Simpol bin Ahmad v Koh Bee Tin & Anor 4 , decided by the Brunei High Court, could be of comparative value to the case in hand. In that case, the respondent applied for an order that interlocutory judgment entered in default of appearance and final judgment obtained be set aside on the ground that the interlocutory judgment obtained was a nullity or alternatively on the ground that it was irregularly obtained. The judge held that there was good reason for setting aside the judgment in that the statement of claim was admittedly in error in its description as to how the accident occurred.

In the ins