Shaik Daud Ismail JCA:

This is an appeal from the decision of the Miri High Court which had on 4 November 1997, dismissed the appellant's summons in chambers to intervene in a suit filed by the respondent company Syarikat Tingan Lumber Sdn. Bhd. (STL) against a company known as New Tingan Timber Sdn. Bhd. (NTT).

The respondent had filed a suit and a statement of claim dated 28 June 1995, against NTT claiming a sum of RM721,197.60 due from NTT to STL on an account stated and contained in a confirmation request dated 23 March 1994. The amount claimed was the balance of the price of logs sold and delivered by STL to NTT and for moneys paid to NTT's creditors at the request of NTT.

When the matter came up in the Miri High Court on 3 February 1996, judgment in default of appearance was entered against NTT which was founded on the failure of NTT to appear and on the admission of the debt by NTT. Subsequently STL issued a statutory notice under s. 218(1)(a) of the Companies Act 1965 , to wind up NTT as they could not pay their debts.

The appellant herein, a minority shareholder and a director of NTT, had, on 13 March 1996 received a copy of the statutory notice. He then called for a meeting of the Board of Directors of NTT which took place on 23 March 1996. The board by a majority resolved that no action be taken by the company to set aside the default judgment or to oppose the winding up proceedings, on the ground that there is no defence to the action and that NTT was insolvent. Having lost at the board meeting by the majority decision, the appellant turned to the court by filing the application for leave to intervene under O. 15 r. 6(2) & (3) of the Rules of the High Court 1980 (RHC).

The issue before the learned Judicial Commissioner was whether the appellant was entitled to intervene. First and foremost the decision appealed against was made in the exercise of the discretion of the court which discretion is rarely interfered with on appeal, based on the principle that the court had exercised its discretion judicially. In Ratnam V. Cumarasamy & Anor.[1965] 1 MLJ 228, the Privy Council held that it will not interfere with the discretion exercised by a lower court unless it is clearly satisfied that the discretion had been exercised on a wrong principle. Similarly the Federal Court in Vasudevan v. T. Damodaran & Anor. [1981] 2 MLJ 150 , held that an exercise of discretion ought not to be interfered with unless there is satisfactory evidence that the judge was wrong because of the presumption that the judge has rightly exercised his discretion.

Next is, when should such an application be made. Although O. 15 r. 6(2) states that such an application could be made "at any stage of the proceedings" this does not mean that such an application can be made after final judgment had been entered. In Shell Malaysia Trading Sdn. Bhd. v. Leong Yuet Yeng & Ors. [1990] 3 MLJ 254, the court held that O. 15 r. 6 only applies to proceedings where the substitution of any of the parties to the cause or matter is made before final judgment. In that case the application was made after a default judgment had been finalised. See also United Asian Bank Bhd. v. Personal Representative of Roshammah (deceased) and Ors. [1994] 3 MLJ 327 . A default judgment once perfected is a final judgment. See the case of Wee Tiang Kheng & Ors. v. Ngu Nii Soon & Ors. [1989] 1 MLJ 252, which held that a default judgment which had been perfected is a final judgment and the court there refused to exercise its discretion under O. 15 r. 6(2) of the RHC to remove the first plaintiff on the ground that he had no cause of action against the second and third defendants in the writ against whom judgment in default of defence had been entered and perfected.

In the present case, STL obtained the default judgment on 3 February 1996. The appellant took out the summons in chambers on 15 November 1996, by which time the judgment had been perfected and this is not denied by t