JUDGMENT

Azhar Mohamed J:

[1] This was an appeal by the defendant in encl. 42 against the decision of the learned deputy registrar dismissing the defendant's application in encl. 24 to set side the ex parte order dated 10 September 2004. In order to understand this appeal, here are the factual backgrounds in outline as well as the sequence of events leading to it.

[2] The plaintiff was a property development company. The defendant was a licensed financial institution. On 25 March 2004 the plaintiff filed a writ of summons and statement of claim herein against the defendants. It appears that the plaintiff's cause of action was based on the defendant's alleged breach of contract arising from the non-disbursement of a banking facilities and/or the purported sale of the facilities to Danaharta Urus Sdn. Bhd. In this action the plaintiff prayed, inter alia, for the following orders:

a) Damages for breach of contract for the amount of RM110,990,476.20;

b) General damages against the defendant for negligence;

c) Exemplary damages;

d) Pre-judgment interest pursuant to s. 11, Civil Law Act 1956 as this Honourable Court deems fit and just;

[3] The law says that the writ of summons may not be served more than six calendar months after 25 March 2004 unless renewed by order of court. That was why on 10 September 2004, before the expiry of the writ of summons for service, the plaintiff filed an ex parte summons in chamber (encl. 5) to extend its validity. On the same date, the learned deputy registrar granted the following orders:

1. that the writ of summons and statement of claim both dated 25 March 2004, which will expire on 24 September 2004, be extended for a period for six (6) months from 25 September 2004 to 24 March 2005;

2. that the costs of this application be costs in the cause; and

3. any other or further relief which this Honourable Court deems fit and just.

[4] The important point to note here is that the ex parte order was obtained by the plaintiff based on the grounds as set out in the plaintiff's affidavit (encl. 4) affirmed by a director of the plaintiff. The significance of this point will appear at a later stage. To appreciate it, I reproduce the grounds as follows;

a) the plaintiff has been taken over by a new management and the new management has not decided if they wish to continue with this action; and

b) the new management the plaintiff needs more time to study the facts of this case before they make any final decision.

[5] The writ of summons and the statement of claim were only served on the defendant on 9 March 2005; almost a year after the writ of summons was issued. What follows thereafter was that the defendant took out a summons in chambers (encl. 24) dated 29 March 2005 to set aside the order renewing the writ of summons and also to set aside service of the writ. The learned deputy registrar heard it. He refused it. The defendant being dissatisfied with that decision appealed to this court.

[6] Now, as I have shown earlier, the whole thrust of the plaintiff's case for the extension of the validity of the writ of summons was that the plaintiff was under a new management and needed more time to decide whether or not to proceed with this action against the defendant. As I perused the various affidavits filed herein I found that the reason given by the plaintiff was misleading and untrue. The affidavit in support (encl. 22) of the defendant's application (encl. 24) disclosed that a search with the Companies Commission of Malaysia on the plaintiff company showed that there had been no change in the management of the plaintiff as alleged by the plaintiff in its affidavit (encl. 4). The defendant further averred that the directors of the plaintiff at that material time were appointed in 1990 and 1998, long before the commencement of this action on 25 March 2004 and there had been no change since then. Learned counsel for the defendant had argued, and I agreed with him, that the plaintiff had failed to make a full an