Nik Hashim JC:

The application in encl. 2 is an originating motion to have the arbitrator's award dated 29 January 1997 set aside. The application is made under ss. 23 and 24 of the Arbitration Act 1952 and governed by O. 69 r. 4 of the Rules of the High Court 1980 (the RHC). The originating motion is dated 11 March 1997 and supported by the applicant's affidavit. The respondent has filed an affidavit in reply affirmed by Dr. Tan Kok Peng on 9 May 1997.

Before hearing the merit of the application, the respondent raised a preliminary objection, ie, the applicant failed to comply with O. 69 r. 4(2) of the RHC in not stating the grounds of the application in general terms on the notice of motion.

Order 69 r. 4(2) of the RHC states:

In the case of every such application, the notice of motion must state the grounds of the application; and, where the motion is founded on evidence by affidavit, a copy of every affidavit intended to be used must be served with that notice. (Emphasis added).

In the body of encl. 2, the applicant merely stated:

Dan selanjutnya ambil perhatian bahawa alasan-alasan bagi permohonan ini adalah disokong di dalam affidavit Dr. Woo Kin Chong yang diikrarkan pada 10 Mac 1997.

Learned counsel for the respondent contended that the provision of O. 69 r. 4(2) is mandatory and strict compliance is called for, and in the absence of the grounds in the body of the motion, there is no valid application before the court to set aside the award. The following relevant cases were cited in support:

(i) Ooi Chew Seng v. Ultratech Sdn. Bhd. & Ors. [1997] 5 CLJ 421 ;

(ii) Syarikat M. Mohamed v. Mahindapal Singh & Ors. [1991] 2 MLJ 112

(iii) Kassim bin Sulong & Anor. v. Guthrie Estates Holdings Ltd. & Ors. [1994] 3 CLJ 186

Learned counsel for the applicant complained that the notice of preliminary objection was not given within reasonable time within 14 days period fixed under O. 32 r. 13(2)(b) of the RHC, and therefore any irregularity has thus been waived by the conduct of the respondent. He further argued that objection is highly technical in nature, and as such, compliance with O. 69 r. 4(2) need not be strictly enforced. According to him, the omission of the grounds in the motion is merely an irregularity which is curable under O. 2 r. l and urged the court to proceed hearing the case on its merits.

With regard to the objection to the notice of preliminary objection, I am satisfied that there was a sufficient prior notice of the objection through the affidavit of Dr. Tan Kok Peng filed on behalf of the respondent, and that ample time was given to the applicant before the objection was raised (see Ooi Chew Seng ). What the respondent did in this case was that he raised the preliminary objection through an affidavit and not an application to set aside for irregularity under O. 2 r. 2(l). Thus, the respondent's affidavit in reply was not caught within the scope of O. 32 r. 13(2)(b) which is only applicable to interlocutory application in chambers and not to originating motions as in the present case. (see Low Chang Hian v. Kelab Golf Di Raja Selangor [1995] 3 MLJ 1 ).

The applicant's counsel contends that the respondent is not prejudiced or embarrassed by the non-compliance and that the grounds of the application have been set out in a comprehensive manner in the supporting affidavit of Dr. Woo Kin Chong.

By analogy, the case of Syarikat M. Mohamed v. Mahindapal Singh & Ors. [1991] 2 MLJ 112 is illuminative of the requirement for the grounds in the notice of motion. In that case, the plaintiff applied by motion to commit the first and second defendants to prison for contempt of court for breach of injunction. In the statement accompanying the notice of motion the plaintiff failed to state the grounds on which an order of committal is sought as required by O. 52 r. 2(2) of the RHC. YA KC Vohrah J, in that case in the course of his judgment referred to an English case of Harmsworth v. Harmsworth [1987] 3 All