Judgment

N.H. Chan, JCA

1. The plaintiff Hong Leong Finance Bhd had sued Tamparuli Granite Quarry (Sabah) Sdn Bhd and its guarantors, Sek Ann Thong and Lee Tain Tshung [T.T. Lee] for arrears of rental in a leasing agreement. The action was commenced in the High Court at Kota Kinabalu in Sabah and Sarawak.

2. The plaintiff had applied under Order 18 r 19 of the Rules of the High Court 1980 to strike out the defence of the defendants and for judgment to be entered against them. The High Court on February 16, 1987 granted the application and judgment was obtained against all the defendants for RM1,211,523.66. The defendants did not appeal against this judgment. In fact it was not until very much later and after the plaintiff had taken execution proceedings on the judgment that the third defendant Lee Tain Shung decided to apply in 1995 to set aside the judgment against him. His summons-in-chambers was dated January 16, 1995. On June 10, 1997 the Judge-in-chambers dismissed Lee's application to set aside the judgment. Lee appeals to the Court of Appeal.

   IRREGULAR (VOIDABLE) JUDGMENTS AND THOSE IRREGULAR JUDGMENTS THAT WERE IN THE OLDER DAYS DESCRIBED AS "A NULLITY" OR "VOID"

3. Before us, Mr. TG Lim for Lee (now the appellant) argues that the judgment was obtained for an amount in excess of what was due and it is therefore a nullity (or void). Counsel contends that the appellant is entitled as of right (or in Latin, ex debito justitiae) to apply to have the judgment that the plaintiff (now the respondent in this appeal) had obtained against him on February 16, 1987 set aside.

4. However, Mr. Lim was not astute enough to know that nowadays words like "nullity", "void" and "voidable" should not be used to describe judgments or orders that are made by a court of unlimited jurisdiction in the course of contentious litigation. I would like to take this opportunity to point out that-

   Isaacs v Robertson [1985] AC 97 (PC) per Lord Diplock at p 103

   Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can be set aside by an appellate court upon appeal if there is one to which an appeal lies.

   TNB v Prorak Sdn Bhd [2000] 1 AMR 1071 per Gopal Sri Ram JCA at p 1085

   It is settled law that the expressions "nullity", "void" and "voidable" are wholly inappropriate to describe an order made by a court of unlimited jurisdiction.

   It is misleading to seek to draw a distinction between orders that are "void" (in the sense that they can be ignored with impunity by those persons who are affected by such orders) and orders that are "voidable" (which may be enforced unless and until they are set aside).

5. In Isaacs v Robertson, Lord Diplock who delivered the judgment of the Board (Lord Diplock, Lord Keith of Kinkel, Lord Roskill, Lord Brightman and Lord Templeman) said, at 102, 103:

   Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are "void" in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are "voidable" and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions "void" and "voidable" respectively have been applied can be found in the opinions given by the judicial Committee of the Privy Council in the appeals Marsh v Marsh [1945] AC 271, 284 and MacFoy v United Africa Co Ltd [1962] AC 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind; what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice. The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies. [emphasis added]

6. Isaacs v Robertson was an appeal to the Judicial Committee of the Privy Council from the Court of Appeal of Saint Vincent and the Grenadines in the West Indies where, apparently, they did not have anything similar to Order 2 r 1 of our Rules of the High Court 1980 (RHC). Yet the Privy Council has held that it is misleading to seek to draw a distinction between orders that are "void" so that they can simply be ignored by those persons to whom they are addressed without there being any need for proceedings to have them set aside, and orders that are "voidable" and may be enforced unless and until they are set aside.

7. In this country we have RHC Order 2 r 1(1) which had (as the Privy Council also had) done away with the old distinction between nullities and irregularities so that a failure to comply with the requirements of the Rules of the High Court would be treated as an irregularity and would not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in the proceedings (see Order 2 r 1(1)). Order 2 r 1(1) and (2) is as follows:

   1.	(1)	Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein,
   	(2)	Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any documents, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. [emphasis added]

8. For convenience I have underlined the words in r 1(1) to show that a judgment which failed to comply with the requirements of the Rules of the High Court would be treated as an irregular judgment and it would not be nullified by it. RHC Order 2 r 1(1) sets out the provision that any

   failure to comply with [the Rules of the High Court] .... shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein

   Although a judgment obtained as a result of a failure to comply with statutory requirements is not covered by this rule.

9. The provisions in RHC Order 2 r 1 are in pari materia with the English Rules of the Supreme Court 1965 (RSC) Order 2 r 1. So that, in this country as in England the distinction between nullity and irregularity disappears (at least, in regard to "a failure to comply with the requirements of these rules"): see Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729, at 735, 736, CA where Lord Denning MR said:

   In my opinion, therefore, Blain J. was in error, and so was James J. This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at least be asserted that "it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation." (See Pontin v Wood [1962] 1 QB 594, per Holroyd Pearce LJ at 609). That could not be said in 1963: see In re Pritchard, deed [1963 ]Ch 5 02. But it can be in 1966. The rule does it. This is plainly a case where we should put the matter right under the new provisions and the leave should be treated as granted properly. I would allow the appeal accordingly.

10. In the case of Harkness v Bell's Asbestos & Engineering Ltd as the plaintiff's claim would have been barred by the Limitation Acts of 1939 and 1954, his solicitors, before issuing a writ, applied ex parte to a district registrar under s 1 of the Limitation Act 1963 for leave of the court to proceed for the purposes of the Act. On April 16, 1964 the district registrar issued an order that s 2(1) of the Act of 1939 should not afford a defence to the plaintiffs proposed claim for damages against his employers. On April 17, 1964 a writ was issued. The defendants applied to set aside the district registrar's order on the grounds

    1. that he had no jurisdiction to make it because the jurisdiction to grant such leave was vested in a judge-in-chambers by RSC, Ord. 128 r 1(1), and

    2. that any order should have been for leave to proceed for the purposes of s 1 of the Act of 1963 (and not in the form as ordered by the registrar).

    On May 10, 1966, Blain J, believing that the registrar's order was a nullity, made no order on the application. The plaintiff then applied under RSC, Ord. 2 r 1 to rectify the registrar's order by asking the Judge-in-chambers to treat the registrar's order as valid (see Ord. 2 r 1 (2) which provides that "the court may .... exercise its powers under these rules .... to make such order (if any) dealing with the proceedings generally as it thinks fit.").

    On July 11, 1966 James J dismissed the plaintiffs application. The plaintiff appealed. The Court of Appeal allowed the appeal and held that the application to the district registrar constituted "proceedings" within RSC, Ord. 2 r1(1) under which the court had the power (see Ord. 2 r 1(2)) to correct the errors made by the registrar as irregularities by making an order that treated the leave as having been granted properly (see above, ibid, per Lord Denning MR at 736).

11. However, unlike Harkness v Bell's Asbestos & Engineering Ltd (above) the plaintiff in the present case did not apply under RHC, Ord. 2 r 1 (2) to correct the judgment by asking the judge to exercise his powers under r 1 (2) to amend the judgment sum to the correct amount. In the old days before Ord. 2 r 1 (2) took its present form, it was thought that it was the duty of the creditor if he obtained a wrong judgment to have it set right and not for the debtor to do so. See per Buckley LJ in Muir v Jenks [1913] 2 KB 412, CA, at 415:

    Both the Master and the judge appear to have thought that the debtor himself ought to have taken steps to get the judgment corrected and that for default in so doing he was now precluded by delay from having the judgment set aside. In my opinion that is wrong. It is the duty of the creditor if he obtains a wrong judgment to have it set right. It is not the duty of the debtor against whom he has obtained the judgment to do so.

12. But that has all been changed by the present Ord. 2 r 1 (2) which gives the court the power to correct the judgment by amendment regardless of who makes the application. An irregular step judgment or order remains irregular until application is successfully made to the court to correct it: Metroinvest Anstalt v Commercial Union Assurance plc [1985] 1 WLR 513; [1985] 2 AII ER 318, CA. This is how it was put by Cumming-Bruce LJ, ibid ([1985] 1 WLR at 520; [1985] 2 All ER at 323):

    In my view it is plain that on the ordinary language of Ord. 2 r 1 where there is a failure to comply with the rules, what has been done or left undone remains irregular until the court takes action either to kill the particular proceeding or to cure it .... As I construe Ord. 2 r 1, from the moment a step in proceedings is tainted by irregularity through failure to comply with the rules, the irregular step or document (judgment or order) remains irregular inter partes until the matter has been brought before the court and the court has decided in which way to exercise the jurisdiction conferred by Ord. 2 r 1(2), Ord. 2 r 2 does not restrict the power of the court in the sense of restricting its jurisdiction, and does not have the effect of suspending the irregularity until the application under Ord. 2 r 2 is made. The purpose and effect of Ord. 2 r 2 is to prescribe the procedure if and when an opposite party decides to apply so that the court on recognising the irregularity, may exercise its powers under r 1(2) by taking the action of killing or curing the irregular proceeding [judgment or order].

13. A judgment or order of the court which is irregular, however, cannot be ignored with impunity by the person to whom it is addressed; it must be observed unless and until it is set aside or rectified by amendment under. Ord. 2 r 1(2). In other words, all irregular judgments or orders will still be in force until they are set aside but this will require an application to the court that made them. The application is made under the Rules of the High Court that deal expressly with proceedings to set aside judgments or orders for not complying with the requirements of the rules (RHC). Such an application can be made under Ord. 2 r 2 or it can be made under another provision of the rules (RHC) that may be applicable independently of or in conjunction with Ord. 2. But if the application to set aside the irregular judgment or order is made under Ord. 2 r 2, then Ord. 2 r 2(2) sets out the procedure for such an application. Ord. 2 r 2(2) states:

    An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion.

14. And under r 2(1) the application would not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregular judgment or order. The irregular judgment or order remains irregular inter partes until it has been brought before the court so that the court on recognising the irregularity, may exercise its powers under Ord. 2 r 1(2) by taking the action of setting aside or curing the irregular judgment or order. Once the matter has been brought before the court. Ord. 2 r 1 (2) gives the court the widest possible power in order to do justice, whether or not an application under Ord. 2 r 2 is before it.

15. It is to be noted that Ord. 2 r 1(2) provides the court with a discretion

    to set aside either wholly or in part .... any .... judgment or order (in the proceedings) or exercise its powers under these rules (RHC) to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings as it thinks fit

    This rule gives the court the widest possible power in order to do justice (Metroinvest Anstalt v Commercial Union Assurance Co plc, supra, [1985] 1 WLR at 521; [1985] 2 All ER at 324). This is what Cumming-Bruce LJ, ibid, said:

    I would say that in most case the way in which the court exercises its powers under Ord. 2 r 1(2) is likely to depend upon  whether it appears that the opposite party has suffered prejudice as a direct consequence of the particular irregularity, that is to say, the particular failure to comply with the rules. But I would construe Ord. 2 r 1(2) as being so framed as to give the court the widest possible power in order to do justice. [emphasis added]

16. And Slade LJ put it in this way, he said (ibid [1985] 1 WLR at 522, 523; [1985] 2 All ER at 325):

    Where, in the course of proceedings, the court finds that a failure of the nature referred to in Ord. 2, r 1(1) has occurred, which has not been waived by the other party either expressly or by implication, it is given by Ord. 2 r 1(2) a choice of courses to pursue at its own discretion, whether or not an application under Ord. 2 r 2 is before it. In such a situation, in the exercise of its discretion under rule 1(2), it may either adopt the more draconian course of setting aside wholly or in part the proceedings in which the failure occurred, or the relevant step taken in those proceedings or the relevant document or order, alternatively, it may 'make such order .... dealing with the proceedings generally as it thinks fit. The last mentioned words are, in my opinion, manifestly wide enough to empower it to make a dispensing order waiving the relevant irregularity, see, for example, Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874, 880F, per Stephenson LJ.

    He continued (ibid, [1985] 1 WLR at 523; [1985] 2 All ER at 325, 326):

    .... Once a party to litigation has been guilty of a failure of the nature mentioned in Ord. 2 r 1(1) which has not been waived by the other party, the court, in my opinion, has a general discretion under paragraph (2) to make such consequential orders dealing with the proceedings generally as it thinks fit, as Stephenson LJ, in the Leal case [1984] 1 WLR 874, 882D, expressly recognised.

    Furthermore, he also said (ibid, on the same page):

    Furthermore, I accept that prejudice or lack of prejudice to the other party to the litigation is clearly a highly relevant matter in considering the interests of justice, it may be the all-important one.

17. The court, when exercising its discretion to correct irregularities under Ord. 2 r 1(2), will perform its task in this way:

    In most cases the way in which the court exercises its powers under Ord. 2 r 1(2) is likely to depend upon whether it appears that the opposite 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. 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 (Metroinvest Anstalt v Commercial Union Assurance Co plc [1985] 1 WLR 513, [1985] 2 AII ER 318.CA).

    the Supreme Court Practice 1997, Vol 1, paragraph 2/1/1, Exercise of discretion to correct irregularities.

18. Even though the court has the widest possible power to do justice, not all irregularities can be cured under Ord. 2 r 1(2). There is no power to remedy irregularities of a more fundamental kind. Sometimes the irregularity is so fundamental a defect in procedure that the court is unwilling to exercise the discretion in Ord. 2 r 1(2) to disregard the irregularity. In such a case, the court will decline to exercise its power under r 1(2) to make any dispensing order waiving the irregularity.

    The power given to the court by Ord. 2 r 1 is a power to cure irregularities consisting of failures to comply with the rules. There is no power to remedy failures of a more fundamental kind. Thus the requirement that the plaintiff be in existence at the date of the commencement of the proceedings is a basic principle of law rather than a requirement of the rules. If an action is brought by a non-existent company, it must therefore be struck out: except in the case of a mere misnomer, the non-existent plaintiff cannot apply to have another person joined as a co-plaintiff (Dubai Bank Ltd v Galadari (No 4), The Times, February 23, 1990)

    [Supreme Court Practice 1997, Vol 1, para 2/1/1, Exercise of power under the rule.]

    In Bernstein v Jackson [1982] 1 WLR 1082; [1982] 2 All ER 806, the failure to renew a writ for service is an irregularity which constitutes such a fundamental defect in procedure that the court would not exercise the discretion to disregard it under Ord. 2 r 1(2), since Ord. 6 r 8 provides a compendious set of rules for the extension and renewal of writs.

19. In Lam Kong Co Ltd v Thong Guan & Co (Pte) Ltd [1985] 2 MLJ 429 the plaintiff in an action for specific performance of a contract for the sale of land had entered a default judgment against the defendant when it failed to enter an appearance. The plaintiff had acted contrary to the requirements of Ord. 13 r 12 which is for the action to be set down on a motion for judgment. The Supreme Court held that the irregular judgment constituted such a fundamental defect that it was not curable. This is what Abdul Hamid CJ (Malaya) said, at 431:

    It is to be observed that the effect of the rule [Ord. 13 r 12] was to disentitle the respondents from entering default judgment on a writ specially indorsed for specific performance. They were to proceed in the manner provided by the Rules and that was to set down the action on motion for judgment. It was only on the further step being taken that it was open for the court or judge to consider giving judgment as upon the claim the court or judge should consider the respondents to be entitled. At that point of time, therefore, judgment in default was not only given in breach of r 12 but had resulted in a failure to comply with r 11 of 0rder 27. In the circumstances, we are constrained to hold that the breach and the non-compliance were not merely irregularities but fundamental defects. The fundamental defect was not in our view curable as the effect of the breach and non-compliance was to defeat the right of the other party to the action. [emphasis added]

20. In White v Weston [1968] 2 QB 647, CA, it was held (Russell and Sachs LJJ) that a judgment should be set aside unconditionally ex debito justitiae without referring to the new rule (i.e. RSC Ord. 2 r 1(2)) because it was a plain case of the defendant being totally unaware of the proceedings at all. Both Russell and Sachs LJJ thought that one did not get much assistance from considering whether a judgment is to be described as having been obtained irregularly or whether it was a nullity. Russell LJ said, ibid, at 659 (and Sachs LJ agreed with him, ibid, 662):

    I do not my self attach importance to the question whether it is proper to label a judgment obtained in circumstances such as this as "irregular" or "a nullity". The defect is in my judgment so fundamental as to entitle the defendant as of right, ex debito justitiae, to have the judgment set aside.

21. Yet in Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 AMR 215, FC, Edgar Joseph Jr FCJ is found to be still using the outdated label "nullity" to describe an irregularity in the judgment that is so fundamental that a court will refuse to exercise its power under Ord. 2 r 1(2) to waive the irregularity. This kind of case entitles the defendant as of right, ex debito justitiae, to have the judgment set aside. This is what he said, at 225:

    It is elementary that an irregular judgment is one which has been entered otherwise than in strict compliance with the rules or some statute or is entered as a result of some impropriety which is considered to be so serious as to render the proceedings a nullity.

22. But then what he did was to copy the phrase from this passage in the Supreme Court Practice 1995, Vol 1, paragraph 2/1/1. For convenience I have underlined the relevant part.

    It reads:

    the above distinction between nullity and mere irregularity disappears (see Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729, 735, CA) at any rate in regard to 'a failure to comply with the requirements of these rules', though it may still be that there are other failures to comply with statutory requirements or other improprieties so serious as to render the proceedings in which they occur and any order made therein a nullity.

    And he then went on to hold, in giving the judgment of the court at 235, that:

    .... the default judgment was by reason of uncertainty, a nullity, and the amendment made by the judge to it by deleting the words ' on monthly rests', did not cure that defect.

23. Here again he used the word "nullity" which was inappropriate. It could be phrased in such a way as to avoid using the word "nullity" viz. that the default judgment was by reason of uncertainty serious enough to render it incurable. The court, in this kind of case, would decline to exercise its powers under Ord. 2 r 1(2) to cure the irregularity. We do not get much assistance from using the words "nullity and "void" to describe a judgment that has been obtained with a defect which is so fundamental as to entitle the defendant as of right, ex debito justitiae, to have the judgment set aside. In fact, the use of these words adds to the confusion.

24. Nowadays it is no longer appropriate to use the expressions "nullity" and "void" to describe an irregularity in a judgment or order which constitutes such a fundamental defect in procedure that the court will not exercise its discretion under Ord. 2, r 1(2) to disregard the irregularity. See Abdul Hamid CJ (Malaya) in Lam Kong Co Ltd v Thong Guan & Co (Pte) Ltd, supra, where he said, at 431,

    the breach and the non-compliance were not merely irregularities but fundamental defects. The fundamental defect was not .... curable as the effect of the breach and non-compliance was to defeat the right of the other party to the action.

25. See also Gopal Sri Ram JCA in the Federal Court case of Lai Yoke Ngan v Chin Teck Kwee [1997] 3 AMR 2458. He said at pp 2467-2468:

    It must be borne in mind that the default judgment in question is merely irregular and not a nullity. Orders and judgments made or entered by such a court, in private law litigation, in the exercise of its coercive power upon default of a party to a suit, even when made or entered in breach of a rule of court or of practice, are merely irregular. They are not nullities. And it is quite wrong to describe them as such.

    And he concluded thus, at pp 2472:

    The proposition that is to be gathered from the decision of Lam Kong is this. A judgment in default of appearance entered by a plaintiff, or, for that matter, a counterclaiming defendant, in breach of the terms of Ord. 13 r 6(1), may be set aside ex debito justitiae. And on an application of the proposition to the facts of that instant appeal, there is no doubt whatsoever that the judgment in default obtained in the present case was fundamentally flawed.

26. Before Ord. 2 took its present form, the previous rule had been Ord. 70 r 1 the terms of which had been:

    Non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or judge shall think fit. [emphasis added]

27. This is explained by Gumming Bruce LJ in Metroinvest Anstalt v Commercial Union, CA, supra. He referred to the old Ord. 70 r 1 and said [1985] 1 WLR at 518; [1985] 2 All ER at 322):

    As a matter of construction of that rule it was clear that where there had been irregularity by non-compliance with the rules, the consequence would be that by reason of the irregularity, unless the court so directed, the power of the court when an irregularity was noted was either to set the proceedings aside or to amend them or otherwise deal with them in such a manner and on such terms as the court or judge thought fit. [emphasis added]

    And he gave his conclusion, ibid, thus:

    But under the old rule there was a difficulty. What was the position if the purported proceedings had such a character that they could not be regarded as legal proceedings within the rule at all? In that case, there were no proceedings; they were a nullity. So the court had to decide, if the purported proceedings had not complied with the rule of court, whether the court could exercise its jurisdiction under 0rder 70 r 1. In those cases in which it was decided that the characteristics of the purported proceedings were such that they should be regarded as a nullity, and so void, there was nothing for the court to exercise jurisdiction upon for the purposes of Ord. 70 r 1. It is quite clear from Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729, 735 that the mischief at which the revision of the rules was aimed was to remove the distinction between irregular purported proceedings which were ab initio a nullity from irregular proceedings which were not void ab initio. The content of Ord. 2 is designed to enable the court, whenever faced with anything done or left undone in proceedings which constitutes a failure to comply with the requirements of the rules, to exercise powers conferred by the rules without having first to decide whether the Jurisdiction conferred by the rules applies at all.

28. So the position, before Ord. 2 took its present form, was this. Before, under the old Ord. 70 r 1 there were purported proceedings that were ab initio a nullity. So that there were no proceedings at all, they were a nullity and so void. There was nothing for the court to exercise jurisdiction upon for the purposes of Ord. 70 r 1. On the other hand, there were irregular proceedings that were not void ab initio, so that, if they had not complied with the rules of court, the court could exercise its jurisdiction upon them for the purposes of Ord. 70 r 1. Lord Goddard in Marsh v Marsh [1945] AC 271 (PC) explained the effect of a void judgment or order. He said, at 284:

    A considered number of cases were cited to their Lordships on the question as to what irregularities will render a judgment or order void or only voidable. Anlaby v Praetorius (1888) 20 QBD 764 and Smurfhwaite v Hannay [1889] AC 494 are leading examples of the former, while Fry v Moore (1889) 23 QBD may be said to illustrate the latter. The practical difference between the two is that if the order is void the party whom it purports to affect can ignore it and he who has obtained it will proceed thereon at his peril, while if it be voidable only the party affected must get it set aside. [emphasis added]

29. So that in the old days of Ord. 70 r 1 the court had to decide whether the jurisdiction conferred by the rules applies. In those cases where there had been improprieties so serious as to render the proceedings in which they occur, and any order made therein, a nullity, and so void, there was nothing for the court to exercise jurisdiction upon for the purposes of Ord. 70 r 1. But in the cases where the proceedings were not void ab initio and there had been irregularities by non-compliance with the rules, the court could exercise the jurisdiction conferred on it by Ord. 70 r 1 upon them.

30. Proceedings, and any judgment or order made therein, that were a "nullity" or "void" did not exist at all. They were non-existent. A judgment that was a nullity was non-existent so that it could be ignored with impunity by the person to whom the order was addressed, see per Lord Goddard in Marsh v Marsh, supra, at 284. But then as a matter of law there is no category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. It is in order to avoid such an anomaly that Ord. 2 took its present form by removing the distinction between irregular purported proceedings, judgments or orders which were ab initio a nullity from irregular proceedings which were not void ab initio.

    IRREGULAR JUDGMENTS OR ORDERS ARE ENFORCEABLE UNTIL SET ASIDE

31. Under the old Ord. 70 r 1 irregular judgments or orders that were a nullity or void could be ignored with impunity by those persons to whom the orders were addressed. See per Lord Goddard in Marsh v Marsh, supra, where he said this (at 284):

    The practical difference between the two is that if the order is void the party whom it purports to affect can ignore it .... while if it be voidable only the party affected must get it set aside.

32. But, as pointed out by Lord Diplock in Isaacs v Robertson (PC), supra, at 102,

    it is misleading to seek to draw distinctions between orders that are ' void' in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are 'voidable' and may be enforced unless and until they are set aside.

    Lord Diplock went on to show that the distinction between 'void' and 'voidable' orders is not supported by authority. He said, ibid, at 102, 103:

    Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions 'void' and 'voidable' respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v Marsh (1945] AC 271, 284 and MacFoy v United Africa Co. Ltd [1962] AC 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind.

33. Judgments and orders of the High Court are either irregular or regular. An irregular judgment or order of the High Court can be set aside by the court that made it upon application to that court. Except for default judgments or judgments that have been obtained against absent parties, a regular judgment or order of the High Court can only be set aside by an appellate court upon appeal to it if there is a court to which an appeal lies.

34. There is no known category of court orders that can be ignored on the ground that they are void without there being any requirement for proceedings to have them set aside. There is, however, a category of orders of the High Court in which a person affected by the order is entitled to apply to have it set aside ex debito justitiae (as of right) in the exercise of the inherent jurisdiction of the court that made it without his being required to have recourse to the Rules of the High Court that deal expressly with proceedings to set aside judgments or orders for irregularity of procedure. This type of orders usually refers to judgments or orders that have failed to comply with statutory requirements.

35. An irregular judgment or order of the High Court, even one where the defect is so fundamental that the court will not exercise the discretion to disregard the irregularity under Ord. 2 r 1(2) cannot be ignored with impunity by the party to whom the judgment or order is addressed. Such a judgment or order remains in force unless and until it has been set aside by the court that made the judgment or order. This is how Lord Diplock put it in Isaacs v Robertson (PC), supra, at 101, 102:

    The main attack by the defendant on the Court of Appeal's judgment was based on the contention that as a consequence of the operation of Ord. 34 r 11(1)(a) of the Rules of the West Indies Associated States Supreme Court (rev 1970) the order made by the High Court granting that interlocutory injunction on May 30, 1979 was a nullity; so disobedience to it could not constitute a contempt of court. Glasgow J accepted this contention: the Court of Appeal rejected it, in their Lordships' view correctly, upon the short and well established ground that an order made by a court of unlimited jurisdiction, such as the High Court of Saint Vincent, must be obeyed unless and until it has been set aside by the court. For this proposition Robotham JA (Acting) cited the passage in the judgment of Romer LJ in Hadkinson v Hadkinson [1952] P 285, 288: It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it .... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' (per Lord Cottenham LC in Chuck v Cremer (1846) Cooper temp Cottenham 205, 338.) Such being the nature of this obligation, two consequences will in general, follow from its breach. The first is that anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise. This, in their Lordships' view, says all that needs to be said upon this topic. It is in itself sufficient reason for dismissing this appeal.

36. The passage in the judgment of Romer LJ in Hadkinson v Hadkinson [1952] P 285, 288 which was cited with approval by Lord Diplock in Isaacs v Robertson, see above, has been endorsed by the Supreme Court in Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1991] 1 MLJ 100 (see per Hashim Yeop A Sani CJ (Malaya) at 102).

37. There is no such thing as an irregular judgment or order of the High Court that can be ignored with impunity by those persons who are affected by the judgment or order. A judgment or order of the High Court is either irregular or regular. An irregular judgment or order of such a court can be enforced unless and until it is set aside. An application has to be made to the court that made the irregular judgment or order to have such judgment or order set aside.

38. Such an application is made to the court that made it. The application is made under the Rules of the High Court that deal expressly with proceedings to set aside judgments or orders for irregularity under order 2 r 2 or under other provisions of the rules (RHC) without the need to have recourse to Ord. 2 r 2.

39. However, in a certain type of case (such as a judgment or order which did not comply with statutory requirements) an application can be made to have the irregular judgment or order set aside ex debito justitiae (as of right) under the inherent jurisdiction of the court without the applicant being required to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity. For this, see below under the heading "Applications to set aside irregular judgments or orders under the inherent jurisdiction of the court without being required to have recourse to the rules that deal expressly with proceedings to set aside judgments or orders if or irregularity" and Ord. 92 r 4.

    SETTING ASIDE IRREGULAR JUDGMENTS FOR IRREGULARITY OF PROCEDURE UNDER ORDER 2 AND SETTING ASIDE OF DEFAULT JUDGMENTS UNDER OTHER PROVISIONS OF THE RHC

    (1)  Setting aside irregular judgments for irregularity of procedure under Ord. 2

40. It must be noted that Ord. 2 deals expressly with, inter alia, irregular judgments or orders which could either be set aside or rectified under r 1(2). But, in other parts of the Rules (RHC) there are also other provisions for setting aside judgments or orders of the High Court without the need to have recourse to Ord. 2. I shall deal with this aspect in a moment (see below under the heading "(2) setting aside of default judgments under other provisions of the RHC").

41. There are two preconditions that must be fulfilled or it will be fatal to an application to have a judgment or order set aside for irregularity of procedure under Ord. 2. The grant of the application is only permissible if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity (Ord. 2 r 2(1)). I must now quote Ord. 2 r 2(1):

    An application to set aside for irregularity any proceedings, any step taken in any proceedings or any documentation, Judgment or order therein shall not be allowed unless it is made within reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. [emphasis added]

    Rule 2(1) sets out the provisions that:

    An application to set aside for irregularity .... any .... judgment or order [in the proceedings] shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

42. An application to set aside an irregular judgment under Ord. 2 r 2 would not be allowed unless it is made within a reasonable time (see Ord. 2, r 2(1)).

43. But in Muir v Jenks, supra, it was held (see the headnote at 412 and per Buckley LJ at 415) that delay on the part of the debtor to apply to set aside a judgment entered for too much would not deprive him of his right to have the judgment set aside.

44. Muir v Jenks was decided way back in 1913 long before Ord. 2 r 2(1) took its present form. It is no longer the law today because Ord. 2 r 2(1) as it is now provides that an application to set aside for irregularity any judgment or order shall not be allowed unless it is made within a reasonable time. And since August 1, 1993 (see PU(A) 192193), Ord. 42 r 13 provides that all applications to set aside or vary any order or judgment under the RHC must be made and the applications served on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.

45. In Singh v Atombrook Ltd [1989] 1 All ER 3 85, CA, a defendant who applied to set aside an irregular judgment three months after learning of the judgment was held to be too late to rely on Ord. 2 r 2(1) to have the judgment set aside as of right. But the provisions of Ord. 2 r 2(1) only apply to applications to set aside. So where judgment has been entered for too much, as in the present case, the court may amend the judgment sum under Ord. 2 r 1(2) even though it is not permitted to set aside the judgment by Ord. 2 r 2(1) because of unreasonable delay.