Hamid Sultan Abu Backer JC:

[1] This is my judgment in respect of the appellant/defendant's appeal against the decision of the learned magistrate who refused to allow the defendant's application to set aside the judgment in default of appearance on the grounds of two preliminary objections raised by the respondent.

[2] The appellant complaints that the learned magistrate did not consider the merits of the application but decided to dismiss the application on the grounds of two preliminary objections made by the respondent without prior notice to the appellant. The preliminary objections raised are as follows:

(a) the learned magistrate has "no jurisdiction/power to set aside judgment in default" in reliance of the case of Mohamad Nazri Ali v. Abdullah Sidek, [2000] 6 MLJ 355 and Chua Liong Hai & Ors v. Lian Soon Industries Sdn Bhd; [2004] 8 CLJ 117.

(b) the said application was filed "out of time" with reference to O 29 r 14 of the Subordinate Courts Rules 1980 (SCR) and Kandaraju Frapatan v. MBf Finance Bhd, [2006] 7 MLJ 91, and Anthony Goh Khiok Loong v. Chan Yam Heng & Anor; [2006] 7 CLJ 309; [2006] 6 AMR 282.

[3] Before this court, the respondent also raises two more preliminary objections namely:

(i) the record of appeal herein dated 5 March 2007 is defective for failure to comply with O 49 r 6(3)(d) of the SCR 1980 which requires "the order or draft order of the decision appealed from" to be included in the record of appeal, and relies on the case of Lim Cheng Hai & Anor v. ZKP Development Sdn. Bhd, [2002] 7 CLJ 316; [2002] MLJ 232, where it was held that the meaning that ought to be given to the words "draft order" in O 49 r 6(3)(d) of the SCR 1980 is the draft order that has been approved both by the respondent's solicitors and by the registrar. As the record of appeal in that case contained a draft order which was not approved by the registrar, the court there held that the record of appeal was defective and could not be cured, and dismissed the appeal. Similarly, the respondent says the record of appeal contains a draft Order which had not been approved by the registrar. Further, the respondent says notice of intention to raise preliminary objection to the appellant has been given but such notice is in fact unnecessary on the grounds that in Lim Cheng Hai & Anor v. ZKP Development Sdn Bhd (supra), it was said as follows: (i) such defect cannot be cured. (ii) even the lack of objection from the respondent against the defect will not make the record of appeal complete and in order. (iii) the court on its own was duty bound to ensure that the procedure and rules of court were followed by litigants

[4] Further, the respondent files a further preliminary objection stating: (i) the appellant has filed a "Supplementary Record of Appeal" on 14 May 2007. (ii) this "Supplementary Record of Appeal" is filed out of time without leave and ought to be struck out. (iii) the "Supplementary Record of Appeal" contains only an uncertified photostat copy of the draft Order. Hence, the respondent says that the "Supplementary Record of Appeal" is bad in law and should be set aside and relies on the court of Appeal decision which has been overruled by the Federal court. I do not know whether the respondent is making an attempt to mislead the court here or is, in ignorance, relying on the court of Appeal decision which has been overruled namely, Megat Najmuddin bin Dato Seri Megat Khas v. Bank Bumiputra Malaysia Bhd, [2001] 1 MLJ 442 CA and Capital Insurance Bhd v. Kassim bin Mohd Ali; [2000] 1 MLJ 193; [2000] 1 CLJ 269; [1996] 2 AMR 2006 CA.

[5] The proposed defence and counterclaim of the appellant as per affidavit reads as follows:

1.... The defendant avers that the said letter of undertaking to pay fee was only effective if the plaintiff provided consultancy advisory services on the intended arbitration with Jabatan Kerja Raya Sarawak to the defendant, and at all material times the plaintiff did not render any such service to the def