GROUNDS OF DECISION

1. At the onset of the hearing of the 2nd defendant's application to set aside the judgment in default, Mr. Lai Chee Hua, counsel for the plaintiff raised a preliminary objection that the 2nd defendant had taken 6 ½ years after the judgment was made against him to make this application and there was no explanation given for the delay. [2]

2. Judgment in default against the 2nd defendant was made on 28.1.1991 and served on the defendant through the solicitors, Messrs Wan Ullok Jugah Chin & Company on 18.4.1991. The service was good and proper. See TECK GUAN TRADING SDN BHD. v. HYDROTEK ENGINEERING(S) SDN. BHD. & ORS. (1996) 4 MLJ 331 .

3. Now the 2nd defendant made an application to set aside the judgment some 6 ½ years later. The defendant had not complied with O. 42 r. 3 Rules of the High Court, 1980 and there was no explanation for the long delay. There was no application for extension of time made.

4. In KHOR CHENG WAH v. SUNGAI WAY LEASING SDN BHD. (1996) 1 MLJ 223 , the Court of Appeal held that it is a cardinal principle of law, when a litigant seeks the intervention of court in a matter that affects his rights, he must do so timeously. The maxim, vigilantibus, non dormientibus, jura subveniunt, though having its origin in the Court of Chancery, is of universal application. Even in cases where a right is exercisable ex debito justitiae, a court may refuse relief to indolent litigant. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it. Whether the explanation in a given case is satisfactory depends on the facts and circumstances of each case. In a matter which involves the exercise of discretion, it is the Judge in whom the law primarily vests the discretion. See also PUBLIC FINANCE BHD v LEE BEE RUBBER FACTORY SDN BHD & ORS (1994) 1 MLJ 495 Edgar Joseph J., SCJ, held that some 2 years after judgment in default had been entered before making the application, the invariable conclusion of the court was that the 2nd and 3rd defendants were guilty of laches, their conduct was not bona fide and was lacking in candor. [3]

5. In the instant case, the 2nd defendant was guilty of laches, and there is no explanation for the long delay of 6 years after the judgment in default had been entered against the 2nd defendant. There is nothing for me upon which to exercise my discretion. I would, in the circumstances, dismiss the application with costs to the plaintiff.