Low Hop Bing KMN JC:

Application

The intervener vide Encl. 30 applies to set aside the leave and extension of time granted ex parte to the applicant on 8 September 1993, pursuant to O.53 r.1(A) of the Rules of High Court 1980. At the time of intervention, the intervener vide Encl. 20 gave notice to the Court and obtained an order enabling it to "make any application as may be necessary" in the proceedings.

The applicant vide its main application in Encl. 21 purports to challenge a development order dated 22 October 1991 (Development Order) issued by the Datuk Bandar (respondent 1) in favour of the intervener to construct a 17 storey hotel called Fairmont Hotel on Lots 812-816, Section 67, Jalan Walter Grenier, Kuala Lumpur which are adjacent to Lot 817 belonging to the applicant. The development order was issued without according a right of hearing to the adjacent landowner e.g. applicant in accordance with the then prevalent practice at Dewan Bandaraya on planning matters.

About 10 months later, on 7 August 1992, the Supreme Court delivered its decision in Datin Azizah v. Datuk Bandar [1992] 2 MLJ 393 pronouncing for the first time that the Emergency Planning (Development) Rules 1970 giving a right of hearing to an adjacent landowner continued to apply to planning decisions under the Federal Territory (Planning) Act 1982 (the Act) so that adjacent landowners were entitled to a right of hearing under the Act.

Consequently on 16 July 1993, the applicant vide Encl.2 applied for leave to issue certiorari to quash the development order, and for extension of time stating, inter alia, that the delay in applying was that it did not have any knowledge of the issuance of the development order in favour of the intervener, and basing its claim for certiorari entirely on the grounds in the Datin Azizah case, supra.

On 8 September 1993, this Court granted leave and extension of time under O.53 r.1(A) on an ex parte basis, relying on the applicant's aforesaid explanation for the delay.

The period of delay between the date of the development order and the filing of application in Encl. 2 was about 1 year 9 months. The period of delay between the purported discovery of development works in March 1993 and the commencing of application in Encl. 2 on 16 July 1993 was 4 months.

Intervener's Contention

The intervener contends that the grant of leave and extension of time ex parte was irregular and bad in law and ought to be set aside. In any event, the intervener's further submission was that the applicant has occasioned inordinate delay which bars the grant of leave and extension of time which is a discretionary relief.

Respondents' Contention

The intervener's contention is strongly supported by the respondents who submit that the applicant's application in Encl. 2 must fall on the following grounds viz:

(1) Limitation pursuant to O.53 r.1(A);

(2) Waiver by reason of the applicant's delay; and

(3) Unreasonable delay on the part of the applicant.

Applicant's Contention

It was submitted on behalf of the applicant that the applicant has satisfactorily accounted for the delay and has therefore fulfilled the requirement of O.53 r.1(A), the relevant portion of which states that "... the delay is accounted for to the satisfaction of the Court or Judge to whom the application for leave is made".

Decision of the Court

(1) Inherent Jurisdiction to Set Aside Leave

The starting point is to determine the jurisdiction of the Court to set aside leave granted ex parte. This jurisdiction is described as an inherent jurisdiction possessed by the Court to set aside ex parte orders including the grant of leave to apply for judicial review: (see Lewis, Judicial Remedies in Public Law p.243 Sweet & Maxwell 1992).

This inherent jurisdiction is further affirmed by Lord Denning MR in Becker v. Noel v. [1971] 1 WLR 803, as follows:

Where leave is given ex parte it is always within the inherent jurisdiction of the Court to revoke that leave if it feels that it ga