JUDGMENT

Lee Swee Seng JC:

Prologue

[1] This judgment deals with the question as to whether an ex parte order made by the Senior Assistant Registrar (SAR) in giving leave to the defendant to enter a conditional appearance and to within 30 days of the order to apply to set aside the writ and/or the service of it, can be extended ex parte by a subsequent application by the defendant.

[2] It is to be noted that the order made ex parte also contained an order for a stay of all proceedings against the defendant until the final disposal and determination of the defendant's application to set aside the writ and/or the service of it.

Parties

[3] The plaintiff had issued a writ and statement of claims against the defendant for the sum of RM1,500,000 being the amount on a Bank Muamalat cheque given by the defendant which was dishonoured upon presentation and due notice of dishonour had been given to the defendant. As the cheque was dishonoured in Kuala Lumpur when the plaintiff presented it for payment at its bank, HSBC in Kuala Lumpur, the plaintiff had commenced its action in the Kuala Lumpur High Court.

[4] The writ had inadvertently stated that entry of appearance was eight days when it should have been 20 days as the writ and statement of claim was served on the defendant at its registered office in Kuching, Sarawak.

[5] The defendant therefore applied ex parte for a conditional appearance to be entered and also for leave to apply to set aside the writ and/or the service of it.

Problem

[6] The SAR had by an ex parte order dated 20 November 2009 allowed the defendant leave to enter conditional appearance with respect to the writ filed and that the defendant had been given 30 days from the date of the order to file its application to set aside the writ and/or service thereof. It was further ordered that all proceedings be stayed until the final disposal and determination of the defendant's application to set aside the writ and/or the service thereof.

[7] However, the application of the defendant to set aside the writ and/or the service thereof could not be filed on time and so vide encl 8 the defendant applied ex parte for extension of time until 29 January 2010 for the said filing. The defendant further prayed for stay of all proceedings against the defendant until the final disposal and determination of the defendant's application to set aside the writ and/or the service of it. What is more unusual was that the defendant also prayed for costs of the application to be borne by the plaintiff.

[8] The SAR gave the order (encl 11) for the said extension on 15 December 2009. A stay of all proceedings against the defendant was also ordered as well as costs of the application to be borne by the plaintiff.

[9] The plaintiff being unhappy with the said decision of the SAR made ex parte had by its summons in chambers dated 25 February 2010 (encl 17) applied to set aside the said order of 15 December 2009 and for a further prayer to strike out the defendant's application filed on 29 January 2010 (encl 13) to set aside the writ and/or the service thereof. The SAR agreed with the plaintiff and allowed the plaintiff's application.

Prayer

[10] By way of encl 31, the defendant appealed to the judge in chambers against the decision of the SAR on 13 January 2011 in allowing the plaintiff's application in encl 17 inter alia to set aside the ex parte order dated 15 December 2009 wherein the SAR had inter alia allowed the defendant an extension of time until 29 January 2010 to file an application to set aside the writ and/or the service thereof.

Principle

[11] The Conditional Appearance entered by the defendant on 20 November 2009 has an endorsement that reads:

This appearance is to stand as unconditional unless the Defendant applies within 30 days to set aside the Writ and Statement of Claim and obtain an order to that effect.

[12] Indeed Practice Note No 4 of 1980 on 'Leave for Conditional Appearance ' states that the leave must specify the time within which the applic