A defendant must file applications to set aside judgments within the statutory time limits; failure to do so, coupled with lack of merit, results in dismissal.

[1] This is the defendant's notice of application ("the application") filed under O 34 r 2(4) and/or O 92 r 4 of the Rules of 2012 ("the ROC ") for the following orders:

(a) that all execution pursuant to the Order dated 21 March 2013 be stayed pending the Court making a decision in this notice of application;

(b) that the defendant be given leave to file this notice of application out of time;

(c) that an order be issued to set aside the Order dated 21 March 2013 forthwith;

(d) costs of the application be costs in the cause; and

(e) any other relief as deemed just and appropriate by this Honourable Court.

Court's Decision Given On 23 January 2014 Regarding Enclosure 88

[2] The defendant's application is dismissed with costs of RM2,500.00 to the plaintiffs.

Grounds For Decision

(1) There Was Inordinate Delay By The Defendant In Filing This Application

[3] On 21 March 2013, this Court had granted judgment for the writ action in favour of the plaintiffs against the defendant ("the Order dated 21 March 2013").

[4] O 34 r 2(4) of the ROC provides:

"(4) Any judgment or order made under r 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just."

[5] O 34 r 2(3) referred to in the above rule provides:

"(3) The Court, having given directions under r 2(2) or r 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit."

[6] When the Court made the Order dated 21 March 2013, it was after the Court had precluded the defendant from defending the claim for non-compliance with previous case management directions [see my judgment dated 12 April 2013 in Nur Ibrahim Masilami & Anor v. Joseph Lopez, 2013 MarsdenLR 286 ("the judgment")].

[7] O 34 r 2(4) of the ROC must be read together with O 42 r 13 of the which provides:

"Setting aside or varying judgment and orders (O 42 r 13)

13. Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him."

[Emphasis Added]

[8] As provided by O 42 r 13 of the ROC , by the use of the word "shall", it is mandatory for the defendant to make this application to set aside the Order dated 21 March 2013 within 30 days after the defendant's receipt of the Order. In this case, the solicitors for the plaintiffs had served the sealed judgment, ie Order dated 21 March 2013 on the defendant's solicitors on 11 April 2013.

[9] The defendant ought to file this application not later than 11 May 2013. However, the defendant only filed this dpplication on 28 November 2013, ie five months and 17 days after the defendant's receipt of the Order dated 21 March 2013. Clearly, there is inordinate delay in filing the application after the 30 days which ended on 11 May 2013.

(2) No Reasonable Explanation Given By The Defendant For The Delay

[10] The defendant's reason for the delay in filing this application is that he had made an appeal to the Court of Appeal on 2 April 2013 against the Order dated 21 March 2013 ("the appeal"), and he was awaiting the outcome of his appeal.

[11] The Court of Appeal had on 18 October 2013 dismissed the appeal based on O 34 r 2(4) of the ROC , and stated that the defendant should go back to the High Court to make an application to set aside the Order dat