NH Chan JCA:

[1] On 6 December 1993, Siti Norma Yaakob J (as she was then) made an order in chambers ex parte striking out the defence of the defendant (appellant) and gave judgment for the plaintiff on its statement of claim. Counsel for the defendant did not appear before the judge on that day because, according to him, his clerk had omitted to record the date in his diary.

[2] On 3 February 1994 the plaintiff (the respondent in this appeal) served a sealed copy of the judgment on the defendant.

[3] On 2 March 1994, the defendant filed an application to have the ex parte judgment of Siti Norma Yaakob J set aside, but the application was only served on the plaintiff on 28 March 1994. Order 42 r 13 of the Rules of the High Court states that the defendant, and I quote, "must make his 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." Richard Talalla J however rejected the objection of the plaintiff taken under O 42 r 13 and adjourned the hearing of the summons in chambers to set aside the judgment. This is what he said:

The Order to be served must be an Order of the Cour