Steve Shim J:

By a summons-in-chambers dated 14 January 1998, the plaintiff has applied for judgment in default of defence to be entered against the defendant pursuant to O. 19 r. 7 Rules of the High Court 1980. It is supported by the affidavit of Tan Huey Sze, the corporate attorney of the plaintiff affirmed on 13 January 1998. The application is resisted by the defendant who files an affidavit affirmed by its counsel Mr. Pertaf Singh on 21 January 1998. Order 19 r. 7 RHC stipulates:

Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the court for judgement and on hearing the application the court shall give such judgement as the plaintiff appears entitled to on his statement of claim.

Although it has been held that the use of the pre-emptory word "shall" in the above rule indicates that the court is bound to give judgment on an application under this rule, the court may in its discretion extend the time within which a defence may be filed and served provided no injustice is caused by so doing. The court will not enter a judgment which it would afterwards set aside on proper grounds being shown. A judge will exercise his discretion on the same lines as he will in setting aside a judgment in default: see Malaysian Court Practice High Court (Vol. I) at p. 537; Wallersteiner v. Moir [1974] 3 All

ER 217 CA at p. 232. Furthermore, a court will not grant judgment under this rule except where a statement of claim has been served before hand. When obtaining judgment in default under this rule, the facts stated in the statement of claim are to be taken as admitted and no evidence or affidavit in support thereof will be required: see Malaysian Court Practice High Court (Vol. I) at p 537; Young v. Thomas [1892] 2 Ch 135 at pp. 135 & 136.

Clearly the principles upon which a court need to apply in an application for judgment in default of defence are much the same as those relating to the setting aside of a default judgement. This was what Lord Denning MR said in Wallersteiner:

... A judge in chambers has a discretion which he will exercise on the same lines as he will set aside a judgement in default. He will require the party to show that he has a good defence on the merits. This is a time-hallowed phrase going back for a hundred years: see Watt v. Barnett; Farden v. Richter. It has been explained by Lord Atkin as meaning that the applicant would produce to the court evidence that he has a prima facie case.

The applicant must produce evidence by affidavit showing he has such a defence.

Bearing those principles in mind, what then is the position in the instant case? At the outset, it is, I think, appropriate for the purposes of this application, to state briefly the undisputed facts. The plaintiff is a company incorporated in the USA and that it has ownership of the copyright subsisting in, inter alia, the following computer programmes:

Microsoft Windows, Microsoft Office 97, Microsoft Publisher 97 and Microsoft Word. It has ownership of the copyright of the said computer programmes in Malaysia by virtue of the provisions of the Berne Convention for the Protection of Literary and Artistic Works, 1986, which is given effect in Malaysia through the Copyright (Application to Other Countries) Regulations, 1990. And by virtue of the said Copyright (AOC) Regulations, the Copyright Act, 1987, is made applicable to the plaintiff's computer programmes. The said computer programmes are works eligible to copyright protection as "literary works" within the provisions of s. 3 of the Copyright Act: see Creative Purpose Sdn Bhd & Anor v. Integrated Trans Corn Sdn Bhd & Ors [1997] 2 MLJ 429 at p. 430.

The crux of the plaintiff's