Abdul Aziz Mohamad J:

The primary question that arises on this appeal is whether the judgment in default of defence entered by the plaintiffs on 28 September 2000 against the first, second and third defendants ("the defendants") was regular or irregular.

The defendants had not served their defence within the period prescribed by O. 18 r. 2(1), but, by consent of the plaintiffs, the period had been extended to 5 September 2000, as allowed by O. 3 r. 5(3). Next day, 6 September, the plaintiffs intimated to the defendants that they would be entering judgment since the defendants had not served their defence. The defendants' request for another three weeks' extension of time made on the same day was turned down the next day, 7 September.

The defendants did not file or serve their defence - and to date they have not done so - but on 13 September the defendants filed their summons for extension of time. The plaintiffs had not yet entered judgment. They did so only on 28 September, about two weeks after the summons for extension of time was filed and during the pendency of that application. It was done under O. 19 r. 2(1).

The application for extension of time must have been made