Zakaria Yatim J:

[1] This is an appeal by the plaintiff against the decision of the Senior Assistant Registrar given on 25 October 1987 ordering that judgment in default of defence entered against the defendant on 27 January 1987 be set aside. The plaintiff is a registered company incorporated in Malaysia and has its place of business at No 27, Jalan Ungu 7, Taman Pelangi, Johor Bahru. The defendant is a main contractor undertaking the construction of Sekolah Agama, Air Molek, Johor Bahru from the SEDC, Johor. By an oral agreement made between the plaintiff and the defendant in July 1985, the plaintiff agreed to undertake the construction of the said school from the defendant. It was agreed that the defendant would pay the plaintiff for the progressive work carried out by the plaintiff as and when the defendant was requested to pay by the plaintiff. In the statement of claim the plaintiff averred that they commenced work on 3 September 1985, but in breach of the said oral contract the defendant refused, neglected and/or wrongfully refused to pay the sum of RM176,595.12 being progressive work done and material supplied on the site. The plaintiff, had by a letter dated 13 August 1986 formally demanded for the said payment of RM176,595.12 but the defendant failed to pay the said sum or part of it. The contract between the parties was then mutually terminated.

[2] The plaintiff filed their writ on 8 October 1986 and served it on the defendant on 26 November 1986. The defendant filed his appearance on 15 December 1986. No defence was filed after appearance was entered and on 19 February 1987 the plaintiff obtained judgment in default of defence against the defendant.

[3] On 24 May 1987 the defendant filed an application to set aside the judgment in default of defence. The application was heard by the Senior Assistant Registrar who granted the application with costs.

[4] Before the plaintiff entered judgment in default of defence, the forty-eight hour notice under r 56 of the Legal Profession (Practice and Etiquette) Rules 1978, was sent to the defendant by letter dated January, 1987. The defendant contended that the judgment in default of defence was an irregular judgment because the plaintiff did not file an affidavit to say that the forty-eight hour rule had been complied with. The Senior Assistant Registrar accordingly set aside the judgment in default on this ground.

[5] In my opinion the forty-eight hour notice is only a practice rule as embodied in r 56 of the Etiquette Rules 1978. In the present case the plaintiff had complied with the rule. There is no need to file an affidavit to say that the rule had been complied with. In fact even non-compliance with the rule does not render the judgment in default irregular. The judgment would only be an irregular judgment if the plaintiff failed to comply with any of the Rules of the High 1980. In Asia Commercial Finance (M) Berhad v. Bank Bumiputra Malaysia Berhad & Ors, [1988] 1 MLJ 33, I stated in my judgment at p 34:

In my opinion, the Practice and Etiquette Rules 1978 only regulate the professional practice, etiquette, conduct and discipline of an advocate and solicitor. The Rules do not regulate the procedure of legal proceedings in the High Court... It is clear, therefore, that non-compliance with r 56... does not render the judgment in default of defence... irregular. Under O 2 r 1 of the Rules of the High shall be treated as an irregularity. In other words judgment in default of defence is only an irregular judgment if the plaintiff, in obtaining the judgment, failed to comply with the rules of the High Court.

[6] In view of the passage quoted above, it is clear that the judgment in default of defence entered against the defendant in the present case is a regular judgment.

[7] Since it is a regular judgment the next question for the Court to consider is whether there is an affidavit of merits.

[8] Curiously enough, there are two similar applications by the same defendant to