JUDGMENT

Zulkefli Makinudin JCA:

Introduction

[1] This is an appeal by the first respondent against the decision of the learned judge of the High Court at Kuching in allowing the petitioner's application ("the application") filed by way of summon-in-chambers under s. 83 of the Law Reform (Marriage and Divorce) Act 1976 ("the Act") for a variation of the maintenance order made on 14 June 1989. In support of the application, the affidavit affirmed on 2 November 1998 by the petitioner stated that there had been material changes in the circumstances affecting the child of the marriage, namely Emily Jasmine Ngu Beixe, and the life of the petitioner over the past ten years. Emily was then fifteen years old and her needs have increased, and given the high cost of living today, the petitioner had requested that the maintenance be doubled from RM1,500 per month to RM3,000 per month.

Background Facts

[2] The relevant background facts of the case leading to the filing of the application are as follows:

(1) On 17 December 1987, the petitioner filed a Divorce Petition No. KG 61 of 1987 in the High Court (I) at Kuching, praying for inter alia, judicial separation, division of property and a monthly maintenance of RM1,500. A consent order was made on 14 June 1989 including a monthly maintenance of RM1,500.

(2) On 25 January 1991, the petitioner filed the present Divorce Petition No. KG 9 of 1991 in the High Court (II) at Kuching, praying for divorce and among other things, ancillary relief of a month maintenance of RM2,000 and property division. The petitioner at the same time filed a notice of application for ancillary relief. The respondents objected to the application on the primary ground that the issues on property division, custody of the child and maintenance had already been settled in the Divorce Petition No. KG 61 of 1987. The Deputy Registrar overruled the objection.

(3) On appeal to the judge in chambers, the learned judge of the High Court allowed the respondents' appeal and ordered that the petitioner's application be strike out with cost.

(4) The petitioner subsequently filed the application by way of a summons-in-chambers on 2 November 1998 to vary the terms of the consent order in Divorce Petition No. KG 61 of 1987 made on 14 June 1989 respecting maintenance.

Preliminary Objection

[3] At the outset of the hearing of the application before the learned judge of the High Court, the respondents had raised preliminary objections on the following grounds:

(1) the application is made in the wrong proceedings;

(2) the application is made by way of a wrong mode;

(3) the application for ancillary relief in the main action had been struck out by this honourable court; and/or

(4) the application is mala fide and vexatious.

Finding Of The High Court

[4] Having heard the arguments of both parties the learned judge of the High Court overruled the preliminary objections by the respondents with costs. The learned judge inter alia held that the petitioner's application by way of summons-in-chambers dated 2 November 1998 is procedurally correct and proper. The learned judge went on to state that as the respondents did not dispute the amount asked for by the petitioner, he held that the respondents were agreeable to the amount. The learned judge then made the order of maintenance which was raised to RM3,000 per month, effective from the date of the application.

Decision On Appeal

[5] We heard the appeal by the first respondent on 8 May 2007 and we unanimously allowed the appeal. We now give the reasons for our decision as follows:

[6] We are of the view the learned judge of the High Court erred in law in holding that the petitioner's application by way of summons-in-chambers dated 2 November 1998 is procedurally correct and proper when in fact it contravenes the provisions of the rules set out in the Divorce and Matrimonial Proceedings Rules 1980 ("the 1980 Rules") read in conjunction with the provision of the Act. Rule 2(1) of the 1980 Rules d