JUDGMENT

Sulong Matjeraie JC:

At encl. 19, there is an application by way of a summons-in-chambers filed by the respondent for the order made by this court for the respondent to be wound up on 12 April 1999 be stayed until determination of the respondent's appeal against the said order. As such all further proceedings be stayed. The application is supported by an affidavit of Mr. Ng Kah Thin affirmed on 20 April 1999 ("the said affidavit") and filed herein at encl. 18.

The petitioner, through their learned counsel, Mr. Benson Ooi Jiun Dar however made preliminary objections on the following grounds:

1. The notice of appeal filed by respondent on 20 April 1999 and the summons-in-chambers dated 26 April 1999 are irregular;

2. The said affidavit is contrary to s. 243(1) of Companies Act 1965 ("of the Act");

3. The said affidavit failed to comply with O. 41 rr. 1(4) and 11 of the Rules of the High Court ("RHC");

4. The summon-in-chambers is mala fide.

Ground No 1

It is the submission of the learned counsel for the petitioner that under r. 7(1) of the Companies (Winding-Up) 1972 it says as follows:

Every application in Court, other than a petition, shall be made by motion and shall be served on the party effected thereby not less than two days before the day named in the notice of hearing of the motion.

An application for leave to serve short notice of motion shall be made ex parte.

As the word "shall" is used, counsel submitted that the use of notice of motion is compulsory and mandatory. He quoted the case of Re Sin Teck Hong Oil Mills Ltd. [1950] where Taylor, J decided that a summons-in-chambers cannot issue except in a pending cause or matter. As the winding-up order had been granted, there is therefore no pending cause, argued the learned counsel.

Further it was submitted that the Atkin's Encyclopedia of Court Forms would suggest that for stay of proceedings, a notice of motion (Form 347) is used. He then quoted the decision of Ajaib Singh, J (as he then was) in S A Andavan V. Registrar Of Titles, Negeri Sembilan & Ors. [1975] where at p. 225 his Lordship said "Litigation is governed by rule of procedure and no side may take undue advantage over another by side-stepping any rule and it is the duty of the court to ensure that the parties engage themselves in a fair contest." His Lordship observes further at p. 226 that "Parties in civil suits should observe the rules of procedure with meticulous care because a failure to do so may result in irreparable set-backs for them and it is not often that a court will take it upon itself to free the parties from difficulties of their own making and put them on their feet again."

Learned counsel for the respondent Mr. Chang Tau Sian, however said that r. 7(2) of the Companies (Winding-Up) 1972 says as follows:

Every application in Chambers shall be made by summons in Form 1, which unless otherwise ordered, shall be served on every person against whom an order is sought, and shall require that person or persons to whom the summons is addressed to attend at the time and place named in the summons; and the summons shall be served not less than two days before the day named in the summons, unless in any case it shall be otherwise ordered.

It was submitted by learned counsel for the respondent that the summons in Form 1 is therefore in order. Apart from saying that this application is an application by way of a summons-in-chambers, this court is also of the view that the decision in Re Sin Teck Hong Oil Mills Ltd. [1950] relates to an application to confirm the appointment of a liquidator. Further the authority offered was in respect of a case before the coming in force of the rules on Companies (Winding-Up) Rules 1972.

Ground No 2

It is the submission of the learned counsel for the petitioner that the affidavit in support of Mr. Ng Kah Tin at encl. 18 failed to comply with O. 41 r. 1(4) RHC in that it failed to state the place of residence of the deponent. Order 41 r. 1(4) RHC