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Halsbury's Laws of Malaysia - Civil Procedure/190 - Civil Procedure/(1) Introduction/(8) Non-compliance with

the Rules of Court


(8) NON-COMPLIANCE WITH THE RULES OF COURT
[190.1-050]
Effect of non-compliance with the rules
Where, in beginning or purporting to begin any proceedings
1
or at any stage of or in connection with any
proceedings, there has, by reason of anything done or left undone, been a failure to comply with the
requirements of the Rules of the High Court, whether in respect of time, place, manner, form or content or in
any other respect, the failure must be treated as an irregularity
2
and will not nullify the proceedings
3
, any
step taken, or any document, judgment
4
or order in the proceedings
5
.
This is one of the most beneficent rules although the High Court has in many reported decisions, limited its
application. This rule should now be viewed in light of the recent dicta of the Federal Court
6
and the
amendments to the Rules of the High Court and the Rules of the Court of Appeal which provide that in
administering any of the rules, the court or a judge must have regard to the justice of the particular case and
not only to the technical non-compliance of any of the rules
7
, and also that a court or judge may not allow
any preliminary objection by any party to any cause or matter or proceedings only on the ground of non
compliance with any of the rules, unless the court or judge is of the opinion that such non-compliance has
occasioned a substantial miscariage of justice
8
.
Order 2 has been expressed in the widest possible terms in order to cover every kind of non-compliance with
the rules, and in both the positive and negative forms, so as to ensure that every non-compliance must be
treated only as an irregularity and will not nullify the proceedings. Under the original English rule which the
present rule replaced, a distinction had been drawn between a non-compliance which rendered proceedings
a nullity, in which case the court had no discretion but to set the proceedings aside, and a non-compliance
which merely rendered the proceedings irregular, in which case the court had a discretion to amend the
defective proceedings as it thought fit. The modern rule has abolished the distinction between irregularity and
nullity; thus every omission or mistake in practice or procedure is to be regarded as an irregularity which the
court can and should rectify provided this can be done without injustice
9
Irregularities which may be cured
include a failure to file a conditional appearance within the stipulated time
10
, a defective service of
proceedings or a total failure of service (where the defendant is aware of the existence of the proceedings)
11
,
the acceptance of the filing of a petition before an affidavit has been sworn
12
, the acceptance of an
application of a longer period rather than a shorter period of return where a writ that is intended to be served
both within and outside the local jurisdiction of the court has been indorsed with the shorter period
13
, the
non-compliance with the provision that an affidavit may only contain facts within the personal knowledge of
the deponent of an affidavit
14
and an omission to state in the affidavit in support of an application for leave to
serve a third party notice out of jurisdiction that the respondent had a good cause of action
15
. An irregularity
in the proceedings remains irregular until an application is successfully made in court to cure it
16
. An affidavit
which does not comply with the requirements of the rules
17
is a defect of a fundamental nature which cannot
be cured
18
. Further instances of irregularities which cannot be cured include a failure to renew a writ for
service
19
, a default judgment wrongfully entered into under the rules
20
and notices of appeal which do not
conform with those prescribed by the rules
21
or where there is failure to comply with mandatory rules
22
.
The rule only applies to non-compliance with the Rules of the High Court, and non-compliance with a
statutory requirement may still render the proceedings a nullity
23
.
1 For this purpose 'proceedings' means any application to the court: Harkness v Bell&'s Asbestos and Engineering Ltd [1967] 2
QB 729, [1966] 3 All ER 843, CA (Eng). 'Proceedings' do not include an 'irregular judgment in default of defence' in
contravention of RHC O 19 r 7(1): Syarikat Joo Seng v Habib Bank Ltd [1986] 2 MLJ 129 at 131, SC, per Seah SCJ.
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2 There are many examples of irregularities in English cases: see Reynolds v Coleman (1887) 36 Ch D 453 at 458, CA (Eng);
Dickson v Law and Davidson [1895] 2 Ch 62 (service of writ out of the jurisdiction without proper indorsement); Leal v Dunlop
Bio-Processes International Ltd [1984] 2 All ER 207, [1984] 1 WLR 874, CA (Eng) (failure to obtain leave to serve writ out of
jurisdiction could be cured by retroactively granting leave); Foat v Basset [1888] WN 255 (imperfect memorandum of service
indorsed on writ); Fry v Moore (1889) 23 QBD 395, CA (Eng) (obtaining order for substituted service of ordinary writ for service
within the jurisdiction where the defendant was out of the jurisdiction); Steers v Rogers (1891) 7 TLR 183 (indorsement of
service on separate sheet attached to writ). See also Re Wiggeston Hospital and Stephenson (1885) 54 LJQB 248; Petty v
Daniel (1886) 34 Ch D 172; Re Evans, Evans v Noton [1893] 1 Ch 252 at 256, CA (Eng) (failure to serve copy affidavits with
notice of motion); Wilding v Bean [1891] 1 QB 100, CA (Eng); Lloyd v Great Western Dairies Co [1907] 2 KB 727, CA (Eng)
(wrongful joinder of causes of action); Taylor v Roe (1893) 62 LJ Ch 391 (notice of motion marked with name of wrong judge);
Re Martin and Varlow (1894) 43 WR 247 (petition instead of summons); Rendell v Grundy [1895] 1 QB 16, CA (Eng); Dawson
v Beeson (1882) 22 Ch D 504, CA (Eng) (service of short notice of motion without stating that leave had been given); Mason v
Grigg [1909] 2 KB 341, CA (Eng) (failure to give notice that former litigant in person had appointed a solicitor); Smythe v Wiles
[1921] 2 KB 66, CA (Eng) (process requiring leave issued without leave); Cromwell Property Investment Co Ltd v Hucks [1939]
3 All ER 257, CA (Eng) (condition precedent to issue of writ not fulfilled); MacFoy v United Africa Co Ltd [1962] AC 152, [1961]
3 All ER 1169, PC (service of statement of claim during Long Vacation); Carmel Exporters (Sales) Ltd v Sea-Land Services Inc
[1981] 1 All ER 984, [1981] 1 WLR 1068 (failure to state grounds in summons and to serve supporting affidavit). The issue of a
writ against a person who has died can be cured under this rule: Dawson (Bradford) Ltd v Dove [1971] 1 QB 330, [1971] 1 All
ER 554 (now see RHC O 15 r 6A(3)); so can service of the wrong writ on a defendant where there are several co-defendants to
be served: Golden Ocean Assurance Ltd v Martin, The Golden Mariner [1990] 2 Lloyd's Rep 215, CA (Eng). See also
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 2 All ER 318, [1985] 1 WLR 513, CA (Eng) (irregular notice of
acceptance of money paid into court). See also MTD Intraperdana Bhd (formerly known as Dewina Bhd) [2004] 1 MLJ 162 at
170-171 (obiter: not fatal if wrong form used to file application for reduction of capital; held that the correct form was by way of
ex-parte summons in chambers as opposed to filing a summons for directions under O 89 (see [190.6-063])).
3 As to when errors were ruled to constitute a nullity under the former provision see Nelson v Pastorino & Co Ltd (1883) 49 LT
564 (writ served on wrong person); Phillipson & Son v Emanuel (1887) 56 LT 858 (failure to show original when serving writ);
Anlaby v Praetorius (1888) 20 QBD 764, CA (Eng) (judgment signed before expiry of time for defending); and Craig v Kanssen
[1943] KB 256, [1943] 1 All ER 108, CA (Eng) (order made on summons not served on defendant).
4 'Judgment' in this context excludes any default judgment or one obtained contrary to RHC O 19 r 7. See Syarikat Joo Seng v
Habib Bank Ltd [1986] 2 MLJ 129, SC.
5 RHC O 2 r 1(1); cf SCR O 2 r 1(1). This rule was made primarily to negative Re Pritchard, Pritchard v Deacon [1963] Ch 502,
[1963] 1 All ER 873, CA (Eng), but more generally to prevent any mere non-compliance with the requirements of the rules being
treated as a nullity by reason of which the court regarded itself as disabled from amending or curing the alleged defect.
However, fundamental breaches of the rules can never be treated as a mere irregularity or technical non-compliance: see
Dollar Valley (M) Sdn Bhd v Rimba Raya Sdn Bhd [2004] 4 MLJ 6 (defect in notice of appeal by bringing wrong party to court
was not something which could be cured). See also the dicta in Lai Yoke Ngan v Chin Teck Kwee [1997] 2 MLJ 565, FC
(failure to serve statement of claim on defendants before default judgment was entered prejudiced the defendants and was
therefore incurable).
6 See the dicta of Mohtar Abdullah FCJ in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1
MLJ 385, FC. See also Abd Hamid Bin Jaafar (t/a Sole Proprietor as Bintang Enterprise) v Shamsiah Dan Keluarga Sdn Bhd
[2004] 5 MLJ 349 at 356 per Low Hop Bing J, where the Court noted that as there is a move towards the era of facilitating
litigation, the raising of preliminary objections on technical grounds will certainly and clearly be a thing of the past; United
Malayan Banking Corp Bhd v Ernest Cheong Yong Yin [2002] 2 MLJ 385, CA, per Ahmad Fairuz JCA (as he then was) who
opined that a preliminary objection on a mere technicality should not be allowed to obstruct the process of providing justice to
the deserving, thereby overruling the procedural technical objection; and see Dato Ting Check Sii v Datuk Haji Mohamad
Tufail bin Mahmud [2007] 5 MLJ 339 where obiter comments were made to the effect that the substantial rights of litigant should
not be defeated by procedural irregularities which are more often than not the fault of the solicitor concerned. In some cases the
court said that it may be appropriate for the solicitor to bear the costs especially where the solicitor takes unmeritous procedural
objections.
7 See RHC O 1A, RCA O 1A.
See Abd Hamid bin Jaafar (t/a Sole Proprietor as Bintang Enterprise) v Shamsiah dan Keluarga Sdn Bhd [2004] 5 MLJ 349 at
357 per Low Hop Bing J, where the court noted that, by this provision, it is clearly the intention of the Rules Committee to
provide for the smooth administration of the due process of litigation and the administration of justice by way of the substantial
merits of the case and not on procedural technical objections. The hope was also expressed that the advent of these
amendments would mark the beginning of the end of counsels' urge to raise objections merely on strictly technical grounds and
that counsels' preliminary procedural technical objections would henceforth be consigned to oblivion for good. The Court
referred to Beauford Baru Sdn Bhd v Gopala Krishnan a/l V K Gopalan [2002] 6 MLJ 134; Megnaway Enterprise Sdn Bhd v
Soon Lian Hock [2002] MLJU 433, [2003] 5 CLJ 103; Terrance Simon Marbeck v Kerajaan Malaysia [2003] MLJU 48, [2003] 6
CLJ 120 at 125. See also Dollar Valley (M) Sdn Bhd v Rimba Raya Sdn Bhd [2004] 4 MLJ 6 (cited in note 5 above). Cf Lee
Teng Siong v Lee Kheng Lian [2006] 4 AMR 217, CA, where it was held that an irregularity may be waived by the Court but a
want of jurisdiction cannot. In this case, the appellant tried to recover the balance of the purchase price under an agreement
under RHC O 81 but the substance of the claim fell squarely within the RHC O 14 jurisdiction. Thus, it could not be saved
under RHC O 1A. In Bun Fui Min v Seliang ak Tuah [2010] 9 MLJ 707, a failure to serve notice of appeal on the respondent
within the prescribed time could not be cured by this rule as it was a mandatory requirement and thus there was no appeal in
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existence. The court noted that the Federal Court has ruled that 'technical non-compliance' meant non-compliance with a rule
which was not fundamental or mandatory in nature. In this case the appellants also did not file any application for a proper
extension of time before this appeal was heard. In Amirthanayaki Kumarasamy v Lembaga Kelayakan Profesion
Undang-Undang Malaysia (Legal Profession Qualifying Board Malaysia) [2010] 1 MLJ 656, CA, the appellant had commenced
an action for judicial review against the respondent for deciding that she was not a 'qualified person' under the Legal Profession
Act 1976 but had not used Form 111A as required but instead applied by Originating Summons. The High Court held that as
the requirement under O 53 r 2 was mandatory in nature failure to comply would result in the application being struck out. On
appeal, the Court of Appeal allowed the appeal with costs subject to the case being sent back to the High Court to be heard on
its merits and held that from the grounds of judgment it was clear that the appellant's application in the present case was
dismissed solely on the grounds that the appellant had failed to commence the application by way of Form 111A as required
under O 53 r 2 and that the trial judge had not considered the merits of the application. Although the appellant had
commenced the application by way of an Originating Summons and not by way of Form 111A as required under O 53, such
procedural technical objection should not be allowed to obstruct the process of justice to the deserving. As no prejudice was
occasioned to any party in the proceedings, including the court, it was obviously unfair to the appellant who came to court to
seek justice and a fair hearing to have her application struck out at this stage without a hearing of the merits of the case. This
reasoning was in line with the provisions of O 1A which stresses that the court or judge should have regard to the justice of a
case. Further, as the appellant commenced her proceedings by way of an Originating Summons supported by affidavit
evidence, the procedures and affidavit evidence involved in an Originating Summons and an application for judicial review are
substantially the same. In Mohd Ismail bin Abd Ghani (would like to be known in the identity card as Saravanan a/l
Balakrishnan) v Ketua Pengarah Pendaftaran Negara [2012] 1 MLJ 707, it was held that certain breaches of the rules are
serious in that they may go to the very root or foundation of the legal process. If that happens, the court would be reluctant to
exercise its discretion in favour of validating that breach. In respect of an application for judicial review, compliance with the time
frame was fundamental. It goes to the starting point, that of jurisdiction to hear the application. RHC O 1A cannot be relied on to
supersede RHC O 53 r 3(6) which is a rule that is mandatory in nature. See also Uni Wall Architectural Products & Services
Sdn Bhd v Global Upline Sdn Bhd (M) Sdn Bhd [2011] 3 MLJ 481, where the incorrect number of days given in the writ was
curable under RHC O 1A.
However, see Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain
Hamzah Bin Mohd Noor [2009] 4 MLJ 149, FC, where the Federal Court clarified that RHC O 1A must not supersede a
mandatory requirement of the RHC. It cannot be invoked when a party intentionally disregards complying with the RHC. Thus in
this case, RHC O 1A did not apply as the respondents had intentionally disregarded RHC O 6 r 7(2A) for their own reasons,
which deals with the service of a writ and is mandatory. RHC O 1A cannot be invoked to cure the failure to comply with the
prerequisites of RHC O 6 r 7(2A). In Dato' Ting Check Sii v Galaxy Grip Sdn Bhd [2011] 1 MLJ 646, RHC O 1A was held not to
apply as the breach was of an 'unless order' and not of a technical requirement of the Rules.
8 See RHC O 2 r 3, RCA O 2 r 3A; Mahkota Technologies Sdn Bhd (formerly known as The General Electric Company of
Malaysia Sdn Bhd) v Kemajuan Amoy Bhd [2003] 5 MLJ 495. See also Sarawak Electricity Supply Corp v Kwan Choon Kiong
[2003] 310 MLJU 1, where failure to file the memorandum of appeal was held to occasion a substantial miscarriage of justice;
Wong Thai Kuai v Kansas Corp Sdn Bhd [2007] 4 MLJ 33, where the failure to state in the intitulement under which limb of the
Companies Act 1965 s 218 a winding-up application was being brought was struck out for non-compliance; and Multimedia
Development Corp Sdn Bhd v Pembinaan Purcon Sdn Bhd [2006] 2 MLJ 653, where a mistake in the name of a party in the
intitulement of proceedings was held to be procedural only and not of such a gravity as to warrant sanction by the court denying
the reliefs sought. Further, as the other party had taken a step in the proceedings, it was deemed to have waived the
preliminary objection based on procedural non-compliance; Public Bank Bhd v Lee Kin Mio [2006] 3 MLJ 47.
9 Re CHS [1997] 3 MLJ 152; Harkness v Bell&'s Asbestos and Engineering Ltd [1967] 2 QB 729 at 735-736, [1966] 3 All ER
843 at 845-846, CA (Eng), per Lord Denning MR; Carmel Exporters (Sales) Ltd v Sea-Land Services Inc [1981] 1 All ER 984,
[1981] 1 WLR 1068. There is no distinction between an order which is a nullity and an order which is irregular and curable in
respect of the enforcement of the orders, as orders may be enforced until they are set aside whether in proceedings instituted
for that purpose or collateral proceedings: Afad Sha Sdn Bhd v SPPIK Dagang Sdn Bhd [1997] 4 MLJ 90.
10 Tye Chwee Hoon v Cayman Commodities (M) Sdn Bhd [1989] 1 MLJ 317 (a mere technicality which was curable under
RHC O 2 r 1 and O 3 r 5).
11 Lim Yoon Loy v Lee Lan [1990] 2 MLJ 425 (notice of appeal not served on the respondents but was attached to motion (by
which the appellants had applied for a stay) which was served on respondent).
12 See Maril-Rionebel (M) Sdn Bhd v Perdana Merchant Bankers Bhd [2001] 4 MLJ 187, CA, where, in a company winding-up
case, the affidavit of truth was sworn an hour or so before the petition. The court did not apply RHC O 2 r 1(1), in this case, but
instead referred to common law principles that procedural irregularities can be overlooked in the interests of justice.
13 See Pakata Sdn Bhd v Chean Seong Fatt [2001] 6 CLJ 318 (in the absence of any prejudice to the other party).
14 Abd Hamid Bin Jaafar (t/a Sole Proprietor as Bintang Enterprise) v Shamsiah Dan Keluarga Sdn Bhd [2004] 5 MLJ 349.
15 Sunkyong International Inc v Malaysian Rubber Development Corp Bhd [1992] 2 MLJ 146, SC.
16 Metroinvest v Commercial Union Assurance Co plc [1985] 2 All ER 318, [1985] 1 WLR 513, CA (Eng).
17 Ie RHC O 41; SCR O 25.
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18 Dynacast (S) Pte Ltd v Lim Meng Siang [1989] 3 MLJ 45, [1989] SLR 840; Camera Care Ltd v Victor Hasselblad Aktieblag
[1986] 1 FTLR 348. Note however the dicta of Mohtar Abdullah FCJ in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank
Bumiputra (M) Bhd [2002] 1 MLJ 385, FC; and the amendments to RHC O 1A and RHC O 2 r 3, and RCA O 1A and RCA O 2 r
3A (see the text to notes 7 and 8 and 14 above).
19 RHC O 6 r 7; SCR O 5 r 8 (duration and renewal of writs: see [190.2-016]-[190.2-017]) provides a compendious code for the
extension and renewal of writs. The court would not allow a plaintiff to come in through the 'back door' of RHC O 2 r 1(2) where
he could have entered through the 'front door' of RHC O 6 r 7: Bernstein v Jackson [1982] 2 All ER 806, [1982] 1 WLR 1082,
CA (Eng); Leal v Dunlop Bio-Processes International Ltd [1984] 2 All ER 207, [1984] 1 WLR 874, CA (Eng); Singh v Duport
Harper Foundries Ltd [1994] 2 All ER 889, [1994] 1 WLR 769, CA (Eng).
20 Shell Malaysia Trading Sdn Bhd v Leong Yuet Yeng [1990] 3 MLJ 254. A default judgment entered into prematurely is a
fundamental defect: Tan Tin Swee v Kangar Properties Sdn Bhd [1990] 3 MLJ 167 at 168 per Vohrah J. See also Charlesworth
v Focusmulti Ltd (1993) Independent, March 15, CA (Eng); Syarikat Joo Seng v Habib Bank Ltd [1986] 2 MLJ 129, SC. See
also the dicta in Lai Yoke Ngan v Chin Teck Kwee [1997] 2 MLJ 565, FC (cited in note 5 above).
21 See Dato Wong Gek Meng v Pathmanathan a/l Mylvaganam [1998] 5 MLJ 560 where the notices of appeals filed did not
conform with RHC App A Form 114 but were in formats unknown to the law. The High Court, stating that the breach for
non-compliance with the rules was so fundamental that it went to the very root of the legal process, reminded lawyers that as a
code of procedure, the rules should be strictly followed to the letter in order to facilitate efficient administration of justice.
22 See KC Transport Sdn Bhd v Jabatan Perhutanan Sabah [2003] MLJU 662 (failure to inform Attorney-General's Chambers
under RHC O 53 r 3(3) was not curable). See also MBT (Malaysia) Sdn Bhd v Asa Wira Sdn Bhd [2004] MLJU 24, (unreported,
23 January 2004; Suit No D4-22-867-2001), where the failure to comply with O 6 r 2(1)(b) rendered the writ defective. The writ
was set aside. The court declined to cure the 'irregularity' as there was non-compliance with a mandatory provision of the rules.
All that was needed was to indorse the costs in accordance with RHC O 59 App 2 (as to costs see [190.2-001] and following).
23 It seems that the court is less inclined to cure irregularities where separate rules set out the principles governing
non-compliance and rectification of the irregularity: see RHC O 47 r 7(e); Standard Chartered Bank v Yap Sing Yoke [1989] 2
MLJ 49; Kuah Kok Kim v Chong Lee Leong Seng Co (Pte) Ltd [1991] 2 MLJ 129, [1991] SLR 122, CA (Sing); Official Receiver,
Liquidator of Jason Textile Industries Pte Ltd v QBE Insurance (International) Ltd [1989] 1 MLJ 1.
[190.1-051]
Power to rectify irregularities
Where there has been a failure to comply with the requirements of the Rules of the High Court
1
, the court
has power, on such terms as to costs or otherwise as it thinks fit, to set aside either wholly or in part the
proceedings in which the failure occurred, any step taken in them or any judgment or order in them or to
exercise its powers to allow such amendments
2
, if any, to be made or to make such order, if any, dealing
with the proceedings generally as it thinks fit
3
. The court must not, however, wholly set aside any
proceedings or the writ or other originating process by which they were begun on the ground that the
proceedings were required by any of the rules to be begun by an originating process other than the one
employed
4
.
1 Ie such a failure as is mentioned in RHC O 2 r 1(1); cf SCR O 2 r 1(1). See [190.1-050].
2 As to the court's powers of amendment see RHC O 15 r 6; SCR O 8 r 6 (misjoinder and non-joinder of parties) and RHC O 20
(especially r 8); SCR O 15 (especially r 3). As to the court's power to vary a defective default judgment see RHC O 13 r 8 and O
19 r 9: see [190.6-039], [190.6-043].
3 RHC O 2 r 1(2); SCR O 2 r 1(2). In exercising such discretion, the court will take into account whether the other party 'has
suffered prejudice as a direct consequence of the irregularity, but the rule is so framed as to give the court the widest possible
power to do justice. Hence, prejudice, or lack of prejudice, although often the all-important factor in the exercise of the
discretion, is not always the only relevant factor': Bank Bumiputra Malaysia Bhd v Syarikat Gunong Tujoh Sdn Bhd [1990] 1
MLJ 298 per Haidar J. See also Malaysia Building Society Bhd v Lesco Development Corp Sdn Bhd [1988] 3 MLJ 273 on the
exercise of the court's curative jurisdiction. It appears that the court will be more inclined to cure relatively serious breaches of
procedure provided no prejudice to the other party is caused by so doing: Maritime (Pte) Ltd v ETPM SA [1988] 2 MLJ 289,
[1988] SLR 364, CA (Sing); Carmel Exporters (Sales) Ltd v Sea-Land Services Inc [1981] 1 All ER 984, [1981] 1 WLR 1068.
Defects affecting merits or the jurisdiction of the court ought not to be cured in the exercise of the discretionary power: Lai Yoke
Ngan v Chin Teck Kwee [1997] 2 MLJ 565, FC. Failure to renew a writ can be cured under RHC O 2 r 1, although the court is
unlikely to exercise its discretion to do so: Leal v Dunlop Bio-Processes International Ltd [1984] 2 All ER 207, [1984] 1 WLR
874, CA (Eng). The same applies to failure to obtain leave to issue or serve a writ out of the jurisdiction. See also Metroinvest
Ansalt v Commercial Union Assurance Co Ltd [1985] 2 All ER 318, [1985] 1 WLR 513, CA (Eng) (irregular notice of acceptance
of money paid into court); Golden Ocean Assurance Ltd v Martin, The Golden Mariner [1990] 2 Lloyd's Rep 215, CA (Eng)
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(service of writ intended for other defendants and service of form of acknowledgement of service but no writ). See however
Kanciltek (M) Sdn Bhd v Mayban Finance Bhd [2000] 4 AMR 4960.
4 RHC O 2 r 1(3); SCR O 2 r 1(3). If proceedings are commenced by writ instead of originating summons as required by RHC O
5 r 3 (proceedings which must be begun by originating summons), they will not be wholly set aside but the court may treat the
writ as if it were an originating summons. Conversely, proceedings begun by originating summons which include an allegation
of fraud may be ordered to be continued as if begun by writ: see Re Deadman, Smith v Garland [1971] 2 All ER 101, [1971] 1
WLR 426. See also RHC O 28 r 8. RHC O 2 r 1(3) does not preclude the court from striking out or wholly setting aside
proceedings treated as an irregularity under RHC O 2 r 1(1); the court has a clear an unambiguous discretion either to convert
the originating summons into a writ action or to strike it out. In exercising such discretion the factors to be considered include
the conduct of the plaintiffs on the mode employed in instituting their action and whether any embarrassment or prejudice had
been caused to the defendant thereby: Pen Apparel Sdn Bhd v Leow Chooi Khon [1995] 4 MLJ 764.
[190.1-052]
Application to set aside proceedings for irregularity
No application to set aside for irregularity any proceedings, or any step taken in any proceedings or any
document, judgment or order in them, may be allowed unless it is made within a reasonable time
1
and before
the party applying has taken any fresh step
2
after becoming aware of the irregularity
3
. Such an application is
made by summons or motion and the grounds of the application must be stated in the summons or notice of
motion
4
.
If the defendant wishes to dispute the jurisdiction of the court in the proceedings on the ground of irregularity
in the writ or service of the writ or in any order giving leave to serve the writ out of the jurisdiction or
extending the validity of the writ for the purpose of service, he may at any time before entering an
appearance, or if he has entered a conditional appearance, within 14 days thereafter, apply to the court for
such remedy or relief as may be appropriate
5
.
1 It is too late to apply to set aside after five years, especially when the hearing date had already been fixed and several other
applications had been made before that date: E G Tan & Co (Pte) (in liquidation) v Tan Chong San [1993] 1 MLJ 256.
However, in Asia Commercial Finance (M) Bhd v Kimden Housing Development Sdn Bhd [1993] 1 MLJ 284 an application to
set aside after six years was held to be 'within a reasonable time' where the defendant's private liquidator was recently
appointed and only became aware of the irregularity after his appointment. In Pontin v Wood [1962] 1 QB 594, [1962] 1 All ER
294, CA (Eng), an application to set aside the writ in a personal injuries action after four months was held to be not within a
reasonable time. See also Malayan United Finance Bhd v Sun Chong Construction Sdn Bhd [1995] 4 MLJ 741. See further
Halim Securities Sdn Bhd v Tan Sri Dato&' Tan Kok Ping [2002] 5 MLJ 203.
2 The taking of a fresh step by a party for the purposes of this rule amounts to a waiver of the irregularity: Rein v Stein (1892)
66 LT 469 at 471 per Cave J; Boyle v Sacker (1888) 39 Ch D 249, CA (Eng); Fry v Moore (1889) 23 QBD 395, CA (Eng) (step
taken to defend the case on the merits despite knowledge of the irregularity); The Assunta [1902] P 150 (step taken to obtain
security for costs). See also Malayan United Finance Bhd v Sun Chong Construction Sdn Bhd [1995] 4 MLJ 741. See
[190.1-053].
3 RHC O 2 r 2(1); SCR O 2 r 2(1). The general rule is that when it is clearly demonstrated to the court that a judgment has not
been regularly obtained, the defendant is entitled to have it set aside ex debito justitiae, ie irrespective of the merits and without
terms. The application to set aside such a judgment should be made with reasonable promptitude and before the defendant has
taken any fresh step on becoming aware of the irregularity: Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd
[1996] 1 MLJ 30 at 36 per Edgar Joseph Jr FCJ.
4 RHC O 2 r 2(2); SCR O 2 r 2(2). See Moss v Malings (1886) 33 Ch D 603 at 604; Baillie v Goodwin & Co (1886) 33 Ch D
604 at 608; Petty v Daniel (1886) 34 Ch D 172 at 180; Re Sanders (1919) 147 LT Jo 212; Alexander Korda Film Productions
Ltd v Columbia Pictures Corp Ltd [1946] Ch 336, [1946] 2 All ER 424; Carmel Exporters (Sales) Ltd v Sea-Land Services Inc
[1981] 1 All ER 984, [1981] 1 WLR 1068. Leave to amend may be refused if the opportunity of curing the defect has passed (
Dunlop Pneumatic Tyre Co Ltd v AG für Motor und Motorfahrzeugbau vormals Cudell & Co [1902] 1 KB 342, CA (Eng))
but the absence of objections may be cured by affidavits served the day after the notice of motion ( Re Sanders (above)).
5 RHC O 12 r 7(1). Such application must be made by summons: RHC O 12 r 7(2).
[190.1-053]
Waiver of irregularity
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If a party takes any fresh step with knowledge of the irregularity, he will be held to have waived it, and may
not thereafter apply to set aside the proceedings, or any step taken, document, order or judgment in them
1
.
For this purpose a fresh step means some step which is only necessary or only useful if the objection has
been actually waived or has never been entertained
2
. The basic principle is that a party is not allowed to
treat the proceedings as validly constituted and at the same time object that they are invalid because of an
alleged irregularity
3
.
In order to entitle a party to dispute the jurisdiction of the court by reason of any irregularity in the writ or its
service or in an order giving leave to serve the writ out of the jurisdiction or extending the validity of the writ
for service or on any other ground, the defendant may at any time before entering an appearance, or if he
has entered a conditional appearance, within 14 days thereafter apply to the court for the relief or remedy
which is appropriate
4
. Having entered an appearance the applicant must take no fresh step in the
proceedings with knowledge of the irregularity complained of.
1 RHC O 2 r 2(1); SCR O 2 r 2(1). Failure to serve a writ within the prescribed time does not render it a nullity but is an
irregularity which may be waived: Sheldon v Brown Bayley&'s Steelworks Ltd and Dawnays Ltd [1953] 2 QB 393, [1953] 2 All
ER 894, CA (Eng). See also Abdul Khalid @ Khalid Jafri bin Bakar Shah v Party Islam Se Malaysia [2002] 1 MLJ 160.
2 Rein v Stein (1892) 66 LT 469 at 471, DC (Eng), per Cave J; affd [1892] 1 QB 753, CA (Eng). See also Hunt v Worsfold
[1896] 2 Ch 224.
3 Instances of waiver by taking a fresh step are E G Tan & Co (Pte) (in liquidation) v Tan Chong San [1993] 1 MLJ 256
(entering an unconditional appearance); Boyle v Sacker (1888) 39 Ch D 249, CA (Eng) (filing affidavits and appearing by
counsel to a motion); Fry v Moore (1889) 23 QBD 395, CA (Eng) (issue of summons); Taylor v Roe (1893) 62 LJ Ch 391
(answering affidavits); Rendell v Grundy [1895] 1 QB 16, CA (Eng) (accepting an adjournment in order to answer affidavits);
The Assunta [1902] P 150 (application for security for costs); Jeffries v Jeffries (1907) 51 Sol Jo 572 (answering affidavits and
appearing by counsel); Charles P Kinnell & Co Ltd v Harding, Wace & Co [1918] 1 KB 405 at 409, CA (Eng) (giving of notice of
intention to contest the proceedings); Brickfield Properties Ltd v Newton [1971] 3 All ER 328, [1971] 1 WLR 862, CA (Eng)
(service of pleading and request for further particulars). See also Re Dulles&' Settlement (No 2), Dulles v Vidler [1951] Ch 842,
[1951] 2 All ER 69, CA (Eng) (submission to the jurisdiction). See further Williams & Glyn&'s Bank plc v Astro Dinamico Cia
Naviera SA [1984] 1 All ER 760, [1984] 1 WLR 438, HL.
4 RHC O 12 r 7. See [190.1-052].
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