Failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC. 50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless.

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 43 – 2008 (W)

ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
LAWAN DATUK CAPTAIN HAMZAH BIN MOHD NOOR ... RESPONDEN

DIDENGAR BERSAMA

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 42 – 2008 (W)

ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
ANDRE RAVINDRAN S. ARUL ... RESPONDEN

CORAM: ZAKI TUN AZMI, CJ ARIFIN ZAKARIA, CJM AUGUSTINE PAUL, FCJ

INTRODUCTION
JUDGMENT OF ZAKI TUN AZMI, CJ
1. These appeals concern the interpretation and application of Order 6 Rule 7(2) and 7(2A) of the Rules of the High Court 1980 (“RHC”). Related to that is the manner in which Order 1A RHC is to be applied.
2. The two appeals before us relating to the said issues are Rayuan Sivil No. 02 – 42 – 2008 (W) (hereinafter referred to as Appeal A) and Rayuan Sivil No. 02 – 43 – 2008 (W) (hereinafter referred to as Appeal B). The parties rely on submissions and bundle of authorities submitted in regard to Appeal A. The issues in both appeals arose because both writs from which the appeals originated were extended even though no attempts were made to serve either of them on the Appellant. The validity and effect of these renewals are what is ought to be impugned.
3. The following question was therefore posed to us:
“Whether the requirement of showing such efforts that have been made to effect service of a writ under Order 6 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
4. During the course of the hearing, we allowed a consequential question to be posed and it is as follows:

FACTS
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
5. The facts are as follows:
6. The Respondent filed a writ of summons at the Singapore High Court (“the Singapore writ / action”) on 29.09.2000. Simultaneously with that, on the same date, the Respondent also filed another writ containing almost identical pleadings and cause of action at the High Court at Shah Alam (“the Shah Alam writ / action”). A third writ was filed not much later i.e. on 13.07.2001 at the High Court in Kuala Lumpur (“the Kuala Lumpur writ / action”), again, containing similar pleadings and cause of action. The Singapore writ was served on the Appellant on 22.02.2001. On the other hand, the Shah Alam and the Kuala Lumpur writs were kept away from the knowledge of the Appellant. The Appellant was totally unaware of these two other actions.
7. The Singapore action proceeded with the hearing before the High Court Judge who referred it to his Senior Assistant Registrar for case management. It was only before the Senior Assistant Registrar that the Respondent, in answer to a query raised by the Senior Assistant Registrar, disclosed that the Respondent had filed two other actions in Malaysia. The Singapore Senior Assistant Registrar directed the Respondent to withdraw the Singapore writ and to serve the Shah Alam writ within six weeks of that direction which was made on 15.05.2001.

8. The Respondent had, of course without the knowledge of the Appellant, sought and obtained orders from the Senior Assistant Registrar of the High Court at Shah Alam to renew the validity of the writs of summons before their expiry. The Senior Assistant Registrar of the High Court at Shah Alam granted a renewal of the Shah Alam writ pursuant to the application filed on 20.03.2001. Subsequently, pursuant to another application filed on 04.09.2001, a second extension was granted on 06.12.2001. In other words, two extensions were obtained ex parte.
9. In the meanwhile, the Respondent appealed to the Judge in Chambers (in Singapore) against the Senior Assistant Registrar’s orders and subsequently to the Singapore Court of Appeal. The Singapore High Court as well as the Singapore Court of Appeal dismissed the appeal and the stay order by the Singapore Senior Assistant Registrar was affirmed. The decision of the Singapore Court of Appeal was made on 19.02.2002. It must be noted that by the time this order was made, about 16 months had lapsed from the filing of the Shah Alam action.
10. The Shah Alam writ was only served on the Appellant’s solicitors on 27.03.2002, although the solicitors had undertaken to accept service of the writ immediately after the Singapore Court of Appeal had ordered service of the writ on the Appellant on 15.05.2001. According to the Appellant’s solicitors, the Respondent’s solicitors had informed them that they did not have instructions to serve the Shah Alam writ. The Respondent’s Singapore solicitors had also replied that there was no necessity to

serve the Malaysian writ on the Appellant as yet. This was notwithstanding the Appellant’s Singapore solicitors having given notice that failure to serve the Malaysian High Court writ would prejudice the Appellant.
11. As regards the writ in the High Court at Kuala Lumpur, it was filed on 13.07.2001. Naturally, the writ expired on 12.02.2002. Two applications to extend the writ were made on 24.1.2002 and 26.6.2002. The orders for extension were made on 26.3.2002 and 26.7.2002 respectively. It must be noted that the first extension was only applied for after the expiry of the Kuala Lumpur writ.
12. I cite these facts in some detail to show the machiavellian attitude of the Respondent. For the purpose of this case, what is important is that the Shah Alam and the Kuala Lumpur writs had been renewed ex parte without any attempt having been made to serve them on the Appellant. This is not in dispute. In fact, the affidavit in support of the applications for renewals had clearly stated that the writs of summons were not served pending the outcome of the Singapore action. The Respondent referred to these writs as “protective writs” in order to avoid the limitation period from setting in.
13. I will now consider the two questions posed.

QUESTION NO.1:
“Whether the requirement of showing such efforts that
have been made to effect service of a writ under Order 6 5 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
ORDER 6 RULE 7 (1), (2) AND (2A) RHC

14. Now, let us look at the law on the effect of not complying with the requirements of O. 6 r. 7 (1), (2) and (2A) RHC. These rules read as follows:
Order 6: Writs of Summons: General Provisions Rule 7: Duration and renewal of writ (O. 6 r. 7)
(1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 6 months, beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.
(2) Subject to paragraph (2A), where efforts to serve a writ on a defendant have been unsuccessful, the Court may by order extend the validity of the writ twice (in Sabah and Sarawak thrice and in admiralty actions 5 times) , not exceeding 6 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order.

(2A) An application for renewal must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service.
(Emphasis mine)
15. Thereafter, r. 7 (2) RHC confers a discretionary power on the Court to extend the validity of the writ and such discretion is to be exercised subject to r. 7 (2A) RHC. There are three prerequisites under r. 7 (2A) RHC which an applicant for renewal of a writ must prove. They are that it must:
a) be made before the expiry of the writ; b) be made ex parte by summons; c) be supported by an affidavit identifying two salient
points which are: I. that efforts have been made to serve the
defendant within one month of the date of the
issue of the writ; and II. such efforts have been made subsequent
thereto to effect service.
A writ issued in the first instance is valid for only six months.
16. wording of O. 6 r. 7 (2) and r. 7 (2A) RHC do not detract from the Court in exercising its inherent jurisdiction to grant an extension of
time if there is a good reason for non-service as the rules are to be

The majority judgment of the Court of Appeal held that the
interpreted to ensure justice. The majority ruled that the words “must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service” in r. 7 (2A) were surplusage. In so doing, it relied on the decision of Megaw J in Heaven v. Road and Rail Wagon Ltd [1965] 2 All ER 409. In that case, Megaw J dealt with the pre 1964 Rules of the Supreme Court (“RSC”) O. 8 r. 1 and the post 1964 RSC O. 6 r.8 (2) of England. The earlier RSC contained the words “if satisfied that reasonable effort has been made to serve such defendant, or for other good reasons”. In the new RSC, the underlined words were removed from the provision. Megaw J read back into the new RSC O. 6 r. 8 (2) the words “or for other good reasons”. He said:
“I think that the omission was probably because the words omitted added nothing and subtracted nothing. They were surplusage.”
17. The learned Court of Appeal Judges in the majority judgment said:
“To allude to the words of Megaw J, the words, “if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons before an application of extension is filed”, are a surplusage. By that same token and reasoning, the need to show efforts having been made to serve the

writ on the Defendant (the Appellant here) in O. 6 r. 7 (2A) when read together with O. 1A of the RHC, must be surplusage.”
18. They concluded that filing the two writs (the Shah Alam writ and the Kuala Lumpur writ) as “protective writs” is a good reason for extension of the writ even though there were no attempts of serving the writs.
19. I do not agree with such a conclusion. The writ could have been served and a stay sought pending disposal of the Singapore writ. But, that is only one of the reasons why I do not agree with the conclusion of the majority judgment at the Court of Appeal.
20. I would rather follow the conclusions of the English Court of Appeal in Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 at 391 as well as in Vinos v. Marks & Spencer plc [2001] 3 All ER 784.
21. In Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387, Lord Goddard held that the issue of a writ becomes a nullity by reason of non-service within the prescribed time. At page 389 F, he said:
“If the writ had ceased to be in force, the position is the same as if it had never been issued.”
22. I therefore agree with the views of Skinner J in Mayban Finance Bhd v. Umas Sdn Bhd [2002] 4 MLJ 276 (see page 287-288) in following Battersby & Ors v Anglo-American Oil Co Ltd & Ors [1945] 1 KB 23 at page 32, where he cited what Lord Goddard had to say on the matter of the renewal of a writ :
“We conclude by saying that, even when an application for renewal of a writ is made within twelve months of the date of issue, the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a Plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on an application which is necessarily made ex parte. In every case, care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any case, it should only be granted where the court is satisfied that good reasons appear to excuse the delay in service, as indeed, is laid down in the order.”
Note that these views were based on the provisions existing then.
23. In the subsequent decision of the Court of Appeal in Vinos v. Marks & Spencer plc [2001] 3 All ER 784, May LJ, in discussing the new Civil Procedure Rules (“CPR”) r. 7.51 and r. 7.6(3)2 (a two member panel, the other being Peter Gibson LJ) said:
“The meaning of r. 7.6 (3) is plain. The Court has power to extend the time for serving the claim form after the period for its service has run out only if the
1 Rule 7.5 provides that subject to exception, a claim form must be served within 4 months after the date of issue.
2 Rule7.6: Extension of time for serving a claim form – r.7.6 (3) “If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the Court may make such an order only if – (a) the Court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in neither case, the claimant has acted promptly in making the application”. stipulated conditions are fulfilled. That means that the Court does not have power to do so otherwise. The discretionary power in the rules to extend time periods – r. 3.1(2)(a)3 – does not apply because of the introductory words. The general words of r. 3.104 cannot extend to enable the Court to do what r. 7.6 (3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time.
... Interpretation to achieve the overriding objective does not enable the Court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr. Vinos’ case is a deserving case, the rules must be interpreted to accommodate his particular case. ... Rule 3.105 concerns correcting errors which parties have made, but it does not by itself contribute to the interpretation of other explicit rules. If you then look up from the wording of the rules and at a broader horizon, 3 Rule 3.1: The Court’s General Powers Of Management – r.3.1 (2) “Except where these Rules provide otherwise, the Court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);”4 Ibid, para. 37 5 Ibid, para. 37

one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. ...
If you do, it is my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits.”

24. Peter GibsonLJ had this to say:
“The construction of the CPR, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the CPR, unlike their predecessors, spell out in Pt 1 the overriding objective of the new procedural code. The Court must seek to give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use on r 1.1 (2)6 of the word “seek” acknowledges that the Court can only do what is possible. The language of rule to be interpreted may be so clear and jussive that the Court may not be able to give effect to what it may otherwise consider to be the just way of dealing with the case, though in that context
6 Rule 1.1: The overriding objective - r. 1.1 (2) “Dealing with a case justly includes, so far as is practicable –(a) ensuring that the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate –(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party;(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

it should not be forgotten that the principal mischiefs which the CPR were intended to counter were excessive costs and delays justice to the Defendant and to the interests of other litigants may require that a claimant who ignores time limits prescribed by the rules forfeits the right to have his claim tried.”
25. Both judges in Vinos v. Marks & Spencer plc held that unless the condition set out in r. 7.6(3) had been complied with, the Court has no discretion to extend the validity of the claim. Rule 7.6 (3) of the English CPR uses the words “only if”, whilst our O.6 r.7 (2) and (2A) uses the word “must”.
26. Historically, the relevant provisions of our Rules of the High Court and the English Rules of the Supreme Court were identical. Let us examine them.
27. In order to understand the rationale behind the wording of O. 6 r. 7(2) and (2A), it will be useful to look at the same rule prior to the amendment introduced in 2000. It was O.8 r.1 of the then Rules of the Supreme Court 1957. This rule is the predecessor of the present O. 6 r. 7 and it expressly provides for certain prerequisites to be satisfied before a writ can be renewed. It is that the Court must be “satisfied that reasonable efforts had been made to serve such dependant, or for other good reasons”.
28. In 1980, the Rules of the Supreme Court was renamed as the Rules of the High Court 1980 and O. 8 r.1 was numbered as O. 6 r. 7(2). This rule did not state the prerequisites that must be satisfied before a writ could be renewed. This O. 6 r. 7(2) would appear to give a totally wide discretion to the Court in the renewal of a writ.
29. These two provisions were correspondingly identical to the English 1957 RSC and the 1964 RSC. It is in respect of these two provisions that Megaw J held in Heaven v. Road and Rail Wagon Ltd that the words “for good reasons” must be read back into the 1964 RSC although those words had been omitted. This is a sensible interpretation as the Court cannot be obliged to renew a writ automatically without any good reason. As was said by Lord Goddard, care should be taken to ensure that the renewal will not prejudice any right of defence that may be available to the defendant. Clearly, the withholding of proceedings while some other case is being tried or to await the result of a future development cannot constitute a good reason.
30. Our Rules Committee took into consideration the abuse of filing a writ by a Plaintiff and not doing anything about it. Hence, a new and improved O. 6 r. 7 was introduced. This is consistent with the new CPR in England.
31. In my opinion the object of the new O.6 r. 7 was to make it really tight as to when a writ can be renewed. The word “must” appearing in O.6 r.7 (2A) is not usually used in Malaysian legislations. Normally the word used is “shall”. So in this case, when the word “must” is used, the intention is to fully ensure that it is complied with and no discretion is to be given as far as the compliance with the prerequisites is concerned. “Must” is a very strong word; in my opinion it is stronger than the word “shall”.
32. In Ting Hwa Yiew v. Ace Commercial Enterprise Sdn Bhd [1996] 2 MLJ, Abdul Kadir Sulaiman J (as he then was) considered the word “must” in the context of O.32 r.13 (2) which states inter alia:
“(2) Save as otherwise provided in these rules –
An affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application...”.
33. In his judgment he stated:
“O. 32 r.13 (2) (a) use an imperative word “must”. In its ordinary meaning it is a word of absolute obligation. Therefore for the failure of the Plaintiff to have the affidavit in support served upon the Defendant within the time limit allowed by the rule, I would agree with the submission of the learned counsel for the Defendant that it renders the said affidavit inadmissible. O.2 r.1 of the RHC would not be of any help to the Plaintiff as no reason was put forward by the Plaintiff for the delay in the service of the said affidavit.”

34. (See also Shell Chemicals UK Ltd & Another v. Vinamul Ltd (formerly Vinyl Products Ltd) The Times 7 March 1991, 135 SJ 412 (Transcript Association) and Mayhew v. The Keepers and Governors of the Possessions Revenues and Goods of the Free Grammar School of John Lyon [1991] 2 EGLR 89. Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 was followed by Chan Min Tat FJ in Llyod Triestino Societa v. Chocolate Products (M) Sdn Bhd [1978] 2 MLJ 27.)
35. Even if the word “must” is to be construed as having the same effect as “shall”, nevertheless it still make compliance with the prerequisites mandatory.
36. The words “Subject to paragraph (2A)” in the impugned O. 6 r. 7(2) further strengthens the argument that before the Court could exercise its discretion to renew a writ, paragraph (2A) must be satisfied. It must be further noted that in paragraph (2A) the applicant must show inter alia, that efforts had been made to serve the defendant within one month of the date of the issue of the writ. This all the more supports the argument that the applicant must use all due diligence to effect service at the earliest possible time.
37. The argument by the claimant in Vinos v. Marks & Spencer plc was that the Court had power to grant an extension of time to serve the writ under CPR 3.10(a). CPR 3.10 (a) reads as follows:

Rule 3.10: General power of the court to rectify matters where there has been an error of procedure-
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.”
38. error of procedure, such as failure to comply with the rules, the Court could make an order to remedy the error. It was contended that CPR 3.10 contained a general power to rectify matters where there had been an error of procedure. CPR 3.10 (a) seems to be similar to our O.1A RHC, which will be discussed later.
39. I strongly believe that O.6 r.7 (2A) RHC was introduced to prevent abuse by plaintiffs in filing writs and sleeping on them without making efforts to serve them. This practice of inactivity is something which Courts loathe. It is against the administration of justice. It creates a backlog and results in a false number of pending cases. In my opinion, Courts should take serious a view of such cases. If not, they will continue to remain in the list of outstanding cases. As such, O.6 r. 7 (2A) RHC must be strictly enforced as required by the rule.
40. When Plaintiffs apply to extend the validity of writs, Courts
should examine closely the affidavits filed in support of
applications for extensions. Before granting an extension, Courts

CPR 3.10(a) which provides that where there had been an
must be satisfied that serious efforts had been made to serve. A simple and plain statement that efforts had been made to serve cannot be a sufficient ground. The affidavits must provide detailed facts as to when, where and how attempts to serve were made. Otherwise O.6 r.7 (2A) RHC will become a dead letter. The object of the rule will be defeated.
41. By serving the writ at the earliest possible time, the defendant would be given the earliest possible notice and opportunity to prepare his defence. It would be to his disadvantage if there is delay. Such delay may result in evidence in his favour getting misplaced or destroyed. Witnesses become difficult to trace and memories will lapse.
42. Having said that, I am fully aware of Defendants who avoid service. There must be evidence to support this claim. If serious efforts are made, I am sure Defendants are traceable. In appropriate cases, substituted service may be ordered if they are not traceable.
43. Accordingly, I have no hesitation in answering the first question posed in the positive, that is to say, the requirements of O. 6 r. 7 (2A) are mandatory prerequisites. This means that the applications for extension of time for service of the writs made by the Respondents are defective as they do not show compliance with the RHC.

QUESTION NO. 2:
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
44. Now to O. 1A RHC. This Order relates to the administering of Rules of the High Court 1980. In order to invoke O. 1A RHC, parties must apply the object of the Rules first. O. 1A RHC reads as follows:
Order 1A: Court or Judge shall have regard to justice
In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.
That order came into force on 17th May 2002 vide P.U.(A)
45. 197/2002, well after the first renewal of both the Shah Alam and Kuala Lumpur writs.
46. The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O. 1A RHC is for the Court or Judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. O.1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O.1A RHC does not apply as the Respondents had intentionally disregarded O.6 r. 7 (2A) RHC for their own reasons.
47. It is now necessary to determine the meaning of the phrase “... technical non-compliance ... “ in Order 1A RHC as it will assist in identifying the breaches contemplated by the rule. Useful guidance is provided by the meaning of the phrase “technical defect” considered in Gangadhar Dandawate v Premechand Kashyap7 where AH Khan J said at p 184,
“It is not always easy to define what the expression ‘technical defect’ means. A technical defect in law is one which may come within the four corners of it, but it does not affect the merits of the case. It is a mistake which does not go to the core of the matter. Their Lordships of the Supreme Court in Pratap Singh v Shrikrishna Gupta, AIR 1956 SC 140 (C), have observed:
“that the tendency of the Courts towards technicality is to be deprecated, that it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter, and, exercising a nice discrimination, sort out one class from the other along
7 AIR 1958 MP 182

broad based, common sense lines. This principle was enunciated by Viscound Maugham in Punjab Co- operative Bank Ltd., Amritsar v Income-tax Officer, Lahore, AIR 1940 PC 230 (D).”
48. In the context of the Rules of the High Court 1980 the phrase “... technical non-compliance...” is thus a reference to non- compliance with a rule which is not fundamental or mandatory in nature.
49. The Malaysian Court Practice 2007 Desk Edition lists at page 9, a failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC.
50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. For example, can failure to enter appearance or file defence within the specified period be considered as an irregularity? Of course it cannot be. A party who is late in filing the relevant papers must obtain an order from the Court to extend the time, if such extension is required and is permitted by the Rules. Therefore, the answer to question two is in the negative.

51. On the issue of conditional appearance, I am satisfied that the Appellant has not submitted himself to the jurisdiction of the court or waived his right to conditional appearance merely because he had filed the application to strike out the writ and had applied to have his case transferred to the High Court at Johor Bharu. This the Appellant did in accordance with the terms allowed by the Court when he sought and obtained the order to enter conditional appearance. I need not say more on this issue.
52. These appeals are thus allowed with costs. Deposit to be refunded to the appellant.
53. My learned brothers Arifin Zakaria, CJM and Augustine Paul, FCJ have seen this judgment in draft. I have incorporated their comments for which I am grateful. They have expressed their concurrences to the final draft.
Dated : 18 June 2009

ZAKI TUN AZMI
Chief Justice Malaysia