Abdul Malik Ishak J:

Introduction

By way of encl. 27, the plaintiff applied for leave to enter summary judgment against the defendant pursuant to O. 14 of the Rules of the High Court 1980 ("RHC")for the sum of RM1,125,385 together with interest at the rate of 8% per annum from 7 November 1997 until the date of full settlement and costs of the application in encl. 27 and the present suit to be assessed. On 4 April 2000, the learned senior assistant registrar ("SAR") refused to accede to the plaintiff's application in encl. 27 and instead she ordered the defendant to be given conditional leave to defend by depositing a sum of RM1,125,385 into court within one month from 4 April 2000, failing which, a summary judgment will be entered against the defendant.

The plaintiff was unhappy with the decision of the SAR and naturally it filed a notice of appeal to the judge in chambers as seen in encl. 46. The defendant too was aggrieved by the decision of the SAR and it expeditiously filed a notice of appeal to the judge in chambers as reflected in encl. 44. It would be apparent that the decision of the SAR that was handed down on 4 April 2000 was double edged: it refused the plaintiff's application for summary judgment against the defendant under O. 14 of the RHCand at the same time it granted the defendant the right to enter conditional leave to defend subject to the depositing of a sum of RM1,125,385 into court within one month from 4 April 2000, and if the defendant failed to do so, summary judgment will be entered against the defendant.

This judgment would consider both encls. 46 and 44 simultaneously.

The Undisputed Background Facts

Prior to the filing of encl. 27, the plaintiff had by way of a summons-inchambers dated 9 January 1999 filed an application in encl. 8 (the first application) for summary judgment against the defendant pursuant to O. 14 of the RHC.Enclosure 8 was supported by an affidavit of Chow Tuck Choon that was affirmed on 6 January 1999 as seen in encl. 7. The defendant challenged encl. 8 and through Dato' Pang Wee Pat affirmed an affidavit in reply on 21 January 1999 as seen in encl. 14.

The SAR heard encl. 8 - the first application, and reserved her decision on 26 February 1999 whereupon she dismissed encl. 8 with costs. The sealed copy of the order of the SAR dated 26 February 1999 had since been extracted and it can be seen in encl. 28. The plaintiff appealed against the decision of the SAR that was handed down on 26 February 1999 in relation to encl. 8 and that appeal was by way of a notice of appeal to the judge in chambers dated 27 February 1999 as seen in encl. 20. James Foong J heard that appeal in encl. 20 on 19 April 1999 and his Lordship having reserved his decision until 22 April 1999 forthwith dismissed the plaintiff's appeal with costs and the sealed order as extracted can be seen in encl 29.

Somehow, the plaintiff held onto the notions that both the learned SAR in the person of Madam Hajjah Wan Azizon binti Ahmad and the learned judge in the person of James Foong J did not dismiss encl. 8 on its merits and so the plaintiff had the audacity to, once again, file a similar application in encl. 27 (the second application). It would be germane to mention en passantthat the second application in encl. 27 was supported by an affidavit of Chow Tuck Choon that was affirmed on 3 May 1999 as seen in encl. 26 and the tenor of that affidavit was identical in its intent and purport with that of encl. 7 - the affidavit in support of encl. 8.

Was It Right To Order Conditional Leave To Defend?

It was argued, quite rightly, on behalf of the defendant that the SAR's decision in granting conditional leave to defend subject to the depositing of a sum of RM1,125,385 into court as alluded to earlier was wrong. What the SAR should have done was to dismiss the plaintiff's application in encl. 27 for summary judgment against the defendant and forthwith gave the defendant an unconditional leave to defend without the