Gopal Sri Ram JCA:

[1] This is an appeal against the decision of Azmel J, delivered in the High Court at Penang, refusing an application by the appellant (the fourth defendant in the Court below) to set aside a default judgment entered against him. For convenience, I shall refer to the parties according to the title assigned to them in the Court below.

[2] This appeal was heard and dismissed on 20 November 1995. The reasons now follow.

Facts And Chronology

[3] The plaintiff (the respondent before this Court), as its name suggests, carries on the business of leasing movables. On 28 September 1983, it agreed to lease certain equipment to the first defendant (a limited company). The agreement was in writing. The other defendants guaranteed the due performance of the terms of the leasing agreement.

[4] The first defendant did not meet its obligations under the leasing agreement. So, the plaintiff took out a writ on 2 October 1985, claiming the sums due to it and other ancillary relief. Its statement of claim contained the following endorsement:

12. Wherefore the plaintiff claims against the defendants for:

(a) the said sum of RM82,954.68;

(b) interest thereon at the rate of 2% per month on a daily basis from the 1 October 1985 until realisation;

(c) other monies, sums, costs and expenses incurred by the plaintiff;

(d) costs; and

(e) such further and/or other relief as this honourable Court may deem fit and proper.

[5] The writ was served on M/s Goh Bean Sim & Partners, Advocates & Solicitors, who had been nominated by the defendants to represent them in the suit. An appearance was entered to the writ. However no defence was delivered within the time limited by the rules.

[6] On 17 October 1986, that is to say, almost one year after the issue of the writ, the plaintiff's solicitors wrote to the defendants' solicitors giving them notice that unless the defence was delivered within 48 hours therefrom, judgment in default of defence would be entered. Nothing further appears to have transpired until 30 April 1987, when the plaintiff's solicitors filed a certificate stating that the defendants had defaulted in delivering their defence. Then, on 9 March 1988, the plaintiff entered judgment in default of defence. This judgment gave to the plaintiff the relief it had claimed in prayers (a), (b), (c) and (d) of para 12 of its statement of claim.

[7] The next event took place on 10 March 1994. On that day, the plaintiff took out a summons to amend the default judgment entered on 9 March 1988. The amendment had the effect of deleting the award of interest as claimed in prayer (b) of the statement of claim, and substituting therefor interest at the rate of 8% per annum from the date of judgment until the date of realisation.

[8] The plaintiff served this summons on the fourth defendant. This obviously had the effect of waking him from the deep slumber into which he had fallen for the best part of the preceding six years. He made a search of the Court docket and found that judgment in default of defence had been entered against him. He then instructed his present solicitors who took out a summons on 5 April 1994, to set aside the judgment.

[9] The fourth defendant's summons came up for disposal before Azmel J on 11 May 1994. Although the fourth defendant raised several matters in the affidavits he delivered, arguments before the learned Judge were confined to only two issues. The first of these was the interest point. The second was the delay in making the application to discharge the ex parte judgment. The notes recorded by the learned Judge bear this out.

[10] The learned Judge, after hearing submissions, reserved his decision until 12 July 1994, when he, in the exercise of his discretion, dismissed the fourth defendant's summons.

The Appeal

[11] When he opened his arguments on the appeal, Encik Van Buerle attempted to argue matters which had been obviously abandoned before the learned Judge. He was not permitted to adopt this course. It would have been