JUDGMENT

Richard Malanjum CJ (Sabah & Sarawak):

(1) Leave to appeal was given by this court on 4 November 2010 on one question, namely:

Whether an application for a declaratory judgment in default of defence pursuant to Order 19 r. 7(1) of the Rules of the High Court 1980 must be supported by evidence of the factual matrix to enable a judge to exercise his discretion in granting or refusing the declaratory relief prayed for?

(2) We heard the appeal on 19 April 2011. After hearing the submissions of learned counsel for the parties we answered the question in the positive and allowed the appeal. Accordingly we set aside the default judgment obtained in the High Court on 29 April 2010 (the impugned judgment) and which was upheld by the Court of Appeal on 6 October 2010. We also ordered that the case should go for full trial. No order as to costs was made and that the deposit paid for the appeal was ordered to be refunded to the appellant.

(3) We now give our reasons for our decision.

(4) Briefly the respondent commenced an action at the Muar High Court, Johor, against Gymtech Development Sdn Bhd as the 1st defendant and the appellant as the 2nd defendant (referred to as the app