JUDGMENT

VC George J:

The writ was caused to be issued on 17 July 1986. Personal service of it was effected on the defendant at No.14, Lorong Batai Barat, Damansara Heights, Kuala Lumpur on 26 August 1986.He had 8 days inclusive of 26 August 1986 to enter an appearance.Solicitors on his behalf purported to enter an appearance only on 10 September 1986 which was one day after judgment in default of appearance had been entered.

As the claim was for a liquidated amount, the plaintiff 's solicitors having waited for a week from the 8 days given to the defendant to enter an appearance, on 9 September 1986 entered default judgment.

The claim was for the balance said to be due on an overdraft facility under account 190915 that had been granted by the plaintiff bank to the defendant inclusive of accrued interest calculated up to 1 July 1982 and for further interest on the said balance at 15.25% per annum on monthly rests from 1 July 1986 until realisation.Default judgment was entered in the terms of the claim. RM225 fixed costs was awarded.

Whether the defendant's solicitors had purported to give notice of appearance on the plaintiff's solicitors is not known.However, on 24 November 1986, which is about 21/2 months after the purported appearance, the defendant's solicitors purported to file and serve a statement of defence, on receipt of which the plaintiff's solicitors in writing informed the defendant's solicitors of the default judgment and a copy of it was served on the defendant's solicitors who were required to advise their client to pay up the judgment sum.

Certain amounts were thereafter credited to the account 190915 and on 9 June 1988 the defendant wrote a letter to the bank enclosing a cheque for RM675.09 which he wanted paid into the account to bring the balance to a nil balance.He requested the bank to close the account.The bank's books show that that cheque was paid into the account and that indeed fully settled the overdraft enjoyed under that account.

One would have thought that that would be the end of the matter.

However, on 28 May 1992 the defendant caused the summons Encl.(9) to issue which is an application to set aside the default judgment.The Senior Assistant Registrar allowed the application and what is before me is the plaintiff's appeal from the Senior Assistant Registrar's decision.

Before me Counsel for the defendant relied only on one ground which is that the amount entered on default was excessive and it was submitted that the defendant was accordingly entitled to have the default judgment set aside ex debito justitiae.

The point made and it is based on settled law, is that when the default judgment was entered on 9 September 1986 the Courts were only entitled to award interest after judgment at a maximum of 8% per annum.It was also contended that the defendant had not had notice that there would be a variation of rate of interest.

Now, the effect of O.2 r.1(1) in respect of the instant default judgment is that it is not a nullity but an irregularity.Order2 r.1(2) gives the Court the jurisdiction inter alia to set aside the irregular judgment or to amend it.

Order2 r. 1(2) however provides the application to set aside for irregularity "shall not be allowed unless it is made within a reasonable time."

In the instant case the application is made some 5 years and 8 months after default judgment had been entered and some 5 years and 6 months after the defendant's solicitors were informed of the default judgment.Clearly the application had not been made within a reasonable time.

There is a burden on the part of the applicant defendant to explain the inordinate delay if he can.He says he had not been aware of the judgment.

It has been seen that the solicitors were aware of the judgment at least by November 1986.One would assume that they would have notified him of it at or about the time they came to know of it. If they had not, one would have expected the applicant to have his application supported by an explanation from the