Hishamudin Yunus J:

This is an appeal by the defendant against the decision of the learned senior assistant registrar who had dismissed the defendant's interlocutory applicationvide encl. 18 to have the writ and statement of claim dismissed by reason of non-compliance with an order of the Court dated 3 August 2001.

The plaintiff is a bank registered in Thailand and having its business address in Bangkok. On 18 December 1999 the plaintiff commenced a writ action against the defendant claiming a sum of 448,000. On 20 March 2000 the defendant filed his statement of defence denying owing the plaintiff any money. On 18 April 2001, by way of summons in chambers, the defendant filed an application pursuant to O. 23 r. 1 of the Rules of the High Court seeking security for costs on the ground that the plaintiff is a foreign company. On 3 August 2001 the court pursuant to this application ordered the plaintiff to deposit a sum of RM30,000 into a fixed deposit account as security for costs on or before 3 September 2001. The pertinent portion of the draft order reads:

a) Plaintif yang dinamakan di atas memberi jaminan kos sebanyak RM30,000 ke dalam satu Akaun Simpanan Tetap dalam masa 30 hari dari tarikh keputusan;

b) Satu salinan Sijil Simpanan Tetap dihantar kepada Mahkamah Tinggi dan Defendan;

c) Segala prosiding tindakan ini digantung sehingga jaminan kos di bayar oleh Plaintif;

d) Tindakan ini dibatalkan dengan kos jikalau Plaintif ingkar memberi jaminan kos seperti yang diperintahkan dan dalam masa yang diperintahkan oleh Mahkamah Yang Mulia ini.

Order 23 r. 2 states:

2 Manner of giving security (O. 23 r. 2)

Where an order is made requiring any party to give security for costs, the security shall be given in such manner, at such time, and on such terms (if any), as the Court may direct.

The above order is an 'unless' order.

The money was not paid into the fixed deposit account within 30 days, that is to say, it was not paid into the fixed deposit account on or before 3 September 2001. It was paid into the fixed deposit account at Standard Chartered Bank Kuala Lumpur in the name of the plaintiff's solicitors only on 5 September 2001.

In his application vide encl. 18 to strike out the writ and statement of claim, the defendant cites:

(a) Order 18 r. 19(1)(b) and (d);

(b) Order 92 r. 4; and

(c) paragraph (d) of the court's order of 3 August 2001 as set out above, as the basis of his application.

I have allowed the defendant's appeal with costs. I have allowed the appeal on the ground that since there has been a breach of the court's order of 3 August, in particular, para. (a) of that order, prescribing:

a) Plaintif yang dinamakan di atas memberi jaminan kos sebanyak RM30,000 ke dalam satu Akaun Simpanan Tetap dalam masa 30 hari dari tarikh keputusan;

the court is under a duty to give effect to the very same order, namely, para. (d) of the order that stipulates:

d) Tindakan ini dibatalkan dengan kos jikalau Plaintif ingkar memberi jaminan kos seperti yang diperintahkan dan dalam masa yang diperintahkan oleh Mahkamah Yang Mulia ini.

In my judgment, in the light of para. (d) of the court's order of 3 August 2001, for the purpose of the present application, the defendant need not have to invoke either O. 18 r. 19 or O. 92 r. 4 of the Rules of the High Court.

In the present case, it is pertinent to note that that there has been no application for an extension of time by the plaintiff to deposit the security money outside the prescribed time in spite of the fact that it has been pointed out to the plaintiff's solicitors by the defendant's solicitors vide their letter of 6 September 2001 that the deposit was made out of time. The defendant's solicitors' letter was simply ignored by the plaintiff.

In Samuels v. Linzi Dresses Ltd [1980] 1 All ER 803 Roskill LJ said (atp. 812):

In my judgment, therefore, the law today is that a court has power to extend the time where an 'unless' order has been made but not been complied with; but that