Low Hop Bing JCA:

Prelude

[1] For purposes of simplicity, the parties herein are referred to in their respective capacity in the Johor Bahru High Court.

[2] This is the plaintiff's appeal against the decision of the learned High Court judge:

(1) in setting aside the ex parte extension of the validity ("the ex parte extension") of the plaintiff's writ ("the writ"); and

(2) in striking out the writ.

Factual Background

[3] The plaintiff was a property development company; and the defendant, a licensed financial institution.

[4] On 25 March 2004, the plaintiff filed the writ against the defendant, based on the defendant's alleged breach of contract, and prayed for, inter alia, damages amounting to RM110,990,476.20; further unspecified general and exemplary damages; pre-judgment interest pursuant to s. 11 of the Civil Law Act 1956 ; and costs.

[5] As the plaintiff had not served the writ on the defendant within the six-month validity period prescribed in O. 6 r. 7(1) of the Rules of the High 1980 , the plaintiff filed an ex parte summons in chambers (encl. 5) dated 10 September 2004 to extend its validity. The learned deputy registrar granted the ex parte extension for six months, from 25 September 2004 until 24 March 2005.

[6] The ex parte extension was obtained on the basis of the plaintiff's affidavit (encl. 4) affirmed by its director and general manager, Mr. Tan Hui Boon who averred that the plaintiff has been taken over by a "new management" which has not decided on whether to continue with the writ, and needed more time to study the facts thereof before making a final decision ("the plaintiff's ground").

[7] The writ was only served on the defendant on 9 March 2005, almost a year after it was issued.

[8] The defendant then took out a summons in chambers (encl. 24) dated 29 March 2005 to set aside the ex parte extension and to strike out the writ. The defendant's application was dismissed by the learned deputy registrar. The defendant's appeal to the learned judge in chambers was allowed and the plaintiff's writ was struck out as its validity had expired.

[9] Hence, the plaintiff's appeal to this Court.

"New Management"

[10] In the instant appeal, Mr. DP Vijandran (Mr. Robert Devan and Ms. Analiza Kassim with him) contended, inter alia, that:

(1) the learned judge of the High Court erred in equating the word "management" with "board of directors" because, in company parlance, "board of directors" are not referred to as "management" and that the definition of "management" is to be found in the definition of "manager" in the Companies Act 1965; and

(2) there was indeed a change in the "management" since Mr. Tan Eng Chia, who was the executive director, and therefore "the principal Executive Officer of the company" had resigned.

[11] Mr. Lambert Rasa Ratnam, assisted by Mr. Sean Yeow, responded that the learned judge was correct in setting aside the ex parte extension, as there has been no change in the plaintiff's "management".

[12] In a speaking judgment, the learned judge had carefully considered the plaintiff's ground. Upon a proper perusal of the various affidavits filed therein, the learned judge found that:

(1) the reason given by the plaintiff was misleading and untrue; and

(2) the plaintiff had failed to make a full and frank disclosure of all material facts at the time of filing the ex parte application (encl. 5) and in obtaining the ex parte extension.

[13] Under this head, the question that arises for determination is whether the learned judge has erred in his finding that there has been no change in the plaintiff's "management", which is essentially a question of fact and not of law.

[14] In our judgment, the plaintiff's contention has to be tested against the plaintiff's statutory documents lodged with the Companies Commission of Malaysia and filed in the High Court as exhibits. It is to be noted that the affidavit in support (encl. 22) of the defendant's application (encl. 24), which was considered by the learned judge, disclos