The applicant Lee Meow Lim is the landlord of the whole premises known as No 278, Jalan Changkat Thambi Dollah, Off Jalan Pudu, Kuala Lumpur ('the premises'). He rented it out to Lee Meow Nyin, trading as Cheong Fatt Merchant ('the respondent'), at a monthly rental of $4,000 per month.

On 5 January 1988, the applicant filed an ex parte application under O 38 r 2 of the Rules of the Subordinate Courts 1980, for the issue of a writ of distress against the respondent for arrears of rent for January to December 1987.

On 8 January 1988, the sessions court issued a writ of distress for the recovery of the arrears of rent for the 12 months in the year 1987, amounting to $48,000.

Nabisco Brands (M) Sdn Bhd (hereinafter referred to as 'Nabisco') filed a notice of application (undated) supported by an affidavit of its credit controller, Lee Siew Beng, affirmed on 2 April 1988. Nabisco's application was for the following orders:

(1) Leave be granted to Nabisco Brands (M) Sdn Bhd to intervene in the proceedings herein pursuant to O 8 r 6 of the Rules of the Subordinate Courts 1980;

(2) The writ of distress abovestated be set aside;

(3) No moneys be paid out to the plaintiff abovenamed from proceeds realized at the auction sale carried out on 12 February 1988.

In the affidavit affirmed on 2 April 1988, Lee Siew Beng (for Nabisco) said:

(i) that the applicant, Lee Meow Lim, was the registered owner of the premises;

(ii) that he was informed by his business associates that the purported landlord and tenant of the premises were brothers, and that 'the living arrangement' between them are not on landlord-tenant basis as no rental has been paid; and

(iii) that the distress action was to prevent execution creditors from obtaining satisfaction of their judgments.

In his further affidavit affirmed on 11 April 1988, Lee Siew Beng said that Nabisco had obtained judgment against the respondent (tenant) and had initiated proceedings leading to the auction sale of the respondent's property on 12 February 1988 realizing $30,400 and that the proceeds of sale would be rateably distributed. He alleged in the affidavit that the landlord's claim for rent would have priority over other creditors. He further alleged that the landlord's distress action was to deprive Nabisco of the fruits of the litigation. In para 9 of that affidavit he alleged:

The purported landlord and tenant being brothers with the purported landlord as registered proprietor there appears to have been collusion between the landlord and tenant to deprive the company of the fruits of litigation.

Norhisham bin Abd Rahman affirmed an affidavit on 2 June 1988 in support of Nabisco's application. He said he was a clerk employed by Radhakrishnan, solicitors for Nabisco. On instruction he had conducted a search at the office of the Registrar of Business on 19 December 1987. He produced a certificate to show that the respondent, Lee Meow Nyin, was the sole proprietor of the business of Cheong Fatt Merchant having its principal place of business at the premises, and a branch No 49 Jalan Changkat Thambi Dollah, Kuala Lumpur.

The applicant, Lee Meow Lim, affirmed an affidavit on 5 May 1988 opposing Nabisco's application. In it he stated that Lee Meow Nyin, trading as Cheong Fatt Merchant, was indeed his tenant at the premises paying $4,000 monthly rent to him and was in arrears of rent. He denied the allegation that there was no landlord and tenant relationship. He said that Nabisco's application was frivolous and vexatious as Nabisco had no interest directly related to the subject matter in the proceedings, which was for arrears of rental lawfully due to him. He also said that the affidavit of Lee Siew Beng alleging that there was no landlord-tenant relationship is purely heresay evidence and the intended intervener's action should be struck off.

On 12 July 1988, the learned sessions court judge allowed Nabisco to intervene and ordered the writ of distress to be struck out. The appl