Low Hop Bing J:

Application

This application demonstrates how important it is to have a strong foundation and knowledge in the basic rules of civil procedure in order to be placed on the right track in handling litigation for parties in court.

Before me is the summons in chambers, in encl. (16), filed by the appellants ("defendants") for an order that the defendants be given leave:

(1) to file additional affidavit out of time; and

(2) to raise new issues and adduce fresh evidence for the purpose of setting aside the summary judgment given by the learned sessions court judge Melaka under O 26A of the Subordinate Courts Rules 1980 against them on 23 July 2001 ("the summary judgment")

At the hearing of the aforesaid application, the defendants also made an oral application for leave to amend their defence.

Grounds Of Application

The defendants' ground in support of prayer 1 above is that on 7 March 2003 they retained the services of their new solicitors viz Tetuan Lawrence Teh and Co ("new solicitors") who were of the view that the defendants have a strong case to set aside the summary judgment as there were disputes of law and facts, and that the facts were prejudicial to the defendants.

Prayer 2 sought by the defendants is premised on the basis that the new solicitors believe they could raise a new issue that the respondent ("the plaintiff) has given a contract of "building credit business" to the defendants in contravention of the Banking and Financial Institutions Act 1989 (BAFIA) and hence void in law.

I am unable to identify any ground in support of the defendants' oral application for leave to amend the defence.

Facts Of The Case

The defendants' affidavit in support, apart from referring to the summary judgment in the sum of RM43,286.35 as at 30 October 1999, and costs against them, restated the above grounds of application, adding that there were triable issues on points of law.

Submission For Defendants

Mr. Lawrence Teh, learned counsel for the defendants, submitted that the triable issues on points of law were based on the illegality of contract contravening s 125 of BAFIA read with s 24 of the Contracts Act 1950 and he relied on Coramas Sdn Bhd v. Rakyat First Merchant Bankers Bhd & Anor, [1994] 1 MLJ 369 SC.

Contention For Plaintiff

Miss Sheron Lee, learned counsel for the plaintiff, argued that the defendants have failed to fulfil the requirements in Ladd v. Marshall [1954] 1 WLR 1489 CA, for the purposes of obtaining leave to adduce fresh evidence.

She added that parties are bound by their own pleadings as was held in Janagi v. Ong Boon Kiat, [1971] 2 MLJ 196.

It was stressed for the plaintiff that the defendants have departed from their defence.

Decision Of The court

Filing Affidavit Out Of Time

Order 3 r 5 of the Rules of the High 1980 (= O 3 r 5 of the Subordinate Courts Rules 1980) confers upon the court the discretion to extend or abridge any period within which a person is required or authorised by these rules or by any judgment, order or direction to do any act in any proceedings.

This discretion being a judicial discretion has to be exercised properly ie, according to established judicial principles having regard to all the facts and circumstances of each individual case, but not eg, in the same manner as day following night.

In order to enable the court to give a proper consideration, an application for extension of time must be supported by affidavit evidence: Asia Commercial Finance (M) Bhd v. Pasadena Properties Development Sdn Bhd & Ors, [1991] 1 MLJ 111 per Zakaria Yatim J (later FCJ).

The question before me is whether the defendants have affirmed sufficient affidavit evidence to support and sustain the