Nik Hashim JCA:

In this appeal, the three appellants (the defendants in the court below) appealed against the decision of the learned judge when he reversed the learned senior assistant registrar's decision and hence dismissing the appellants' application to set aside the respondent's (the plaintiff's) judgment in default (JID) of appearance entered against the appellants on 21 July 1999.

The appeal was heard and dismissed on 11 September 2003. We now give our reasons.

Factual Background

By way of a lease agreement dated 17 January 1983 (the lease agreement) the respondent as owner of the equipment therein stated leased the same to a company called Joo Fah Huat Sdn Bhd (the lessee). The appellants, directors of the lessee, entered into a guarantee and indemnity also dated 17 January 1983 (the guarantee and indemnity) in favour of the respondent as guarantors to the lessee.

On 1 August 1997, the respondent's solicitors sent their demands to the appellants as the said guarantors. A writ of summons was filed against the appellants on 29 December 1997. On 18 November 1998 an order for substituted service of the writ of summons against the appellants was granted by the court (the ss order). On 22 January 1999, upon compliance of the ss order, the respondent filed the affidavit of service and certificate of non-appearance. On 21 July 1999, a judgment in default (JID) of appearance was entered against all the three appellants. Then, by the respondent solicitors' letters dated 3 August 1999, the JID was sent to and received by the three appellants. Some two months and seven months thereafter, on 7 October 1999 in encl. 15 and on 27 March 2000 in encl. 21, the 1st and 3rd appellants followed by the 2nd appellant, filed their respective applications to set aside the JID.

The Appeal

Learned counsel for the appellants admitted at the outset that the appellants' applications to set aside the JID in encls. 15 and 21 were filed outside the time allowed. However, he contended that the appellants' case had merits which would justify setting aside the JID.

From the record, the JID was not irregular in any way. However, the appellants' applications did not comply with O. 42 r. 13 of the Rules of the High Court 1980 which requires that a party intending to set aside a judgment must make his application to the court and serve it on the party who has obtained the judgment within 30 days after the receipt of the judgment by him. In the present case, the 1st and 3rd appellants were two months outside the time allowed whereas the 2nd appellant was seven months. Further, there was no explanation whatsoever from the appellants for their delay in approaching the court and that they had not prayed for extension of time to make their applications. In these circumstances, there was clearly no need for the merits of the appellants' applications to be considered and in fact they should be dismissed in limine. (see Koperasi Belia Nasional Bhd v. Storage Enterprise (Port Kelang) Sdn Bhd[1998] 3 CLJ 335; Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd[1997] 1 CLJ 396; Abdul Latif bin Mohamed Ibrahim v. International Factors Leasing Pte Ltd[2001] 2 CLJ 140).

Nevertheless, like the learned judge in the court below, we felt disposed to consider the issues raised by the appellants in support of their applications: (i) non-service of writ (ii) time bar (iii) matter is fully settled, and (iv) failure of consideration.

(i) Non-Service Of Writ

We agreed with the learned judge that the service of the writ of summons on the appellants was pursuant to the ss order dated 18 November 1998, resort to which was due to the appellants' changes of addresses without informing the plaintiff. The 'new' addresses of the appellants where the judgment were received by them were obtained from IC searches carried out after the JID. The addresses of the appellants where a copy each of the writ of summons was sent were addresses last known and as per the guarantee. It was incumbent on the app