NH Chan JCA:

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.

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

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 Court. A draft order is not an Order of the Court.

An Order of the Court must necessarily be an Order duly drawn up, produced, passed and sealed as required by O. 42 r. 10(5) of the RHC 1980, for the purpose of O. 42 r. 13.

Eventually the hearing of the matter came up before Low Hop Bing J who heard it de novo. He dismissed the application by the defendant to set aside the judgment of Siti Norma Yaacob J. Hence this appeal by the defendant.

The appellant's case is that Richard Talalla J had already adjudicated on the point concerning O. 42 r. 13 and therefore it is res judicata. Counsel for the appellant argued that Low Hop Bing J should not have heard the matter de novo and dismissed the appellant's application.

Nothing could be clearer than that Richard Talalla J made no adjudication on the point that the application to set aside Siti Norma Yaacob J's judgment was served out of time. All that Richard Talalla J found was that the judgment of Siti Norma Yaakob J that was served on the defendant has to be a sealed copy. In fact, it was a sealed copy of the judgment that the defendant received from the plaintiff on 3 February 1994. The judge did not make any adjudication on the point under O. 42 r. 13 which was that the defendant's application to set aside the judgment was served on the plaintiff more than thirty days after the defendant had received the sealed judgment of Siti Norma Yaakob J.

When the judge in the earlier proceedings made no adjudication, the plea of res judicata must fail; see Tong Lee Hua v. Lee Yoke San [1981] 1 MLJ 54, PC.

The sealed ex parte judgment of Siti Norma Yaacob J was served on the defendant on 3 February 1994. Order 42 r. 13 requires that the defendant's application to set aside that judgment must be filed and served on the plaintiff within thirty days of the receipt of the sealed judgment. The application of the defendant to the court to have the judgment set aside was served on the plaintiff on 28 March 1994 which was more than thirty days from 3 February 1994, ie, the date of the receipt of the sealed judgment of Siti Norma Yaakob J. Low Hop Bing J was right in holding that the defendant's application did not comply with O. 42 r. 13. It was served on the plaintiff outside the time allowed to make and serve the application.

We were unanimous in dismissing the appeal with costs.

Abu Mansor Ali JCA:

The appellant/defendant appeals against our decision given on 24 September 1997 dismissing its appeal against the decision of the learned trial judge in the court below given on 12 September 1995 dismissing its application to set aside an ex parte order dated 6 December 1993 striking out the appellant's statement of defence and thereafter granting the respondent/plaintiff the declaration as prayed in its originating summo