Hock Thai Finance Corporation Bhd

- vs -

Tai

Judgment

Hasan Lah JC

1. By summons-in-chambers dated July 8, 1999 (Encl 45) the defendant is applying for a stay of execution of the judgment pending the final disposal of the defendant's appeal to the Court of Appeal. In support of that application the defendant filed two affidavits:-

   • the affidavit-in-support affirmed on July 7, 1999 by Mr. Tai Choi Yu; and

   • the affidavit-in-support affirmed by Mr. Tai Choi Yu on November 30, 1999 which was filed on December 1, 1999.

   The plaintiff filed an affidavit-in-reply affirmed by Wong Lee Chin on July 30, 1999 which was filed on July 31, 1999.

2. The application was fixed for hearing on December 1, 1999. At the outset of the hearing of the application the learned counsel for the plaintiff objected to the use of the defendant's affidavit-in-support on the ground that it was not filed within 14 days after the service of the plaintiffs affidavit-in-reply which is in contravention of Order 32 r 13(2)(b) of the Rules of the High Court 1980.

3. In response to that the learned counsel for the defendant submitted that Order 32 r 13(2)(b) has no application to the defendant's affidavit-in-support. According to the learned counsel Order 32 r 13(2)(b) is only applicable to an affidavit-in-reply to the affidavit-in-support of an application but it does not apply to a subsequent affidavit.

4. At the moment there are two lines of authorities on the interpretation of the provisions of Order 32 r 13(2)(b) of Rules of the High Court 1980.

5. In KS Child & Co v Chui Miang Chew [1995] 3 AMR 2605 Abdul Malik Ishak J. opted for the wider interpretation of Order 32 r 13(2)(b), viz that it applies to subsequent affidavits. At pp 2611 and 2612 of the report the learned Judge opined:-

   Now, reverting back to Order 32 r 13(2)(b) of the RHC which came by way of an amendment - vide PU(A) 193/93 where it imposes on a party wishing to reply to an affidavit served on him, a mandatory obligation to file his affidavit and serve it on the other party within 14 days from the date on which the affidavit he intends to reply was served on him unless provided by the rules. This onerous obligation is also placed on the applicant who files affidavit in support of his application to file and serve on the other party within 14 days from the date of the filing of the said application (see Order 32 r 13(2)(a) of the RHC). Thus, under this new Order 32 r 13(2) of the RHC a strict time table has been set by the Rules Committee and my impression of it is that it is draconian as it does not give much room space to manoeuvre for the applicant to file a further affidavit in support of his application after 14 days from the date of filing of the application. In the event the respondent files an affidavit in reply which alleges a certain fact detrimental to the applicant, the applicant must reply otherwise those facts not replied will be deemed to be accepted by the applicant (Alloy Automobile Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382; Overseas Investment Pte Ltd v Anthony William O'Brien [1988] 3 MLJ 332; and Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287) and this must surely be the dilemma which the applicant must go through. The strict requirement under this rule will simply mean that the courts are not obliged and indeed are precluded from considering any affidavits filed out of the 14-day period unless applications to file those affidavits out of time formally have been made and granted by the courts. In my judgment, the plaintiffs here have breached the strict requirements of Order 32 r 13(2)(b) of the RHC. Bereft of any formal application to file those affidavits in Encls 45, 48, 43 and 44 out of time, I have no choice but to ignore those affidavits.

6. In Majlis Daerah Dungun v TNB [1998] 1 AMR 516 Mohd Noor Hj Ahmad J was of the view that Order 32 r 13(2) applies only to an affidavit filed in support of an application in chambers and to an affidavit-in-reply to the affidavit-in-support of such application, but not a subsequent affidavit.

7. In the recent case of Natseven TV Sdn Bhd v Television N.Z. Ltd (High Court at Kuching Suit No 22-179-98-11) (unreported) Muhammad Kamil bin Awang J agreed with the said decision where the learned Judge said:-

   Applying the golden rule of construction, subrule 2 of r 13, does not apply to a subsequent affidavit as the 14 days rule expressly states that it is applicable to two types of affidavit; namely, an affidavit in support of the application, and an affidavit in reply thereto.

8. The rationale for the introduction of Order 32 r 13(2) has been clearly stated by Mahadev Shankar JCA in Pemunya Kapal MV Brihope v Emmanuel E Okwuosa [1996] 3 AMR 3917 at p 3952 that:-

   Order 32 r 13(2) of RHC was specially enacted to eradicate the rampant abuse of process by malevolent, indolent or unpaid practitioners who had devised a fail-safe method of causing unwarranted delays by filing affidavits at the last minute. The rule is mandatory.

9. It is my view that if the view that Order 32 r 13(2)(b) is only applicable to the affidavit-in-reply to the affidavit-in-support of the application is correct then Order 32 r 13(2)(b) would not serve its purpose because the parties are allowed to file the subsequent affidavits at the last minute which invariably would lead to adjournment of the hearing as the other party might want to reply to the said affidavit. It is common knowledge that in most of the applications further affidavits subsequent to affidavit filed in reply to affidavit in support of the application are being filed by the parties. If this is allowed to go on unnecessary delay in the disposal of the cases concerned would result and therefore the object of having Order 32 r 13(2)(b) has not been attained. In the circumstances I agreed with the view that Order 32 r 13(2)(b) is also applicable to subsequent affidavits.

10. For ease of reference I reproduce Order 32 r 13(2) of the Rules of the High Court 1980. It states:-

    Save as otherwise provided in these rules -
    (a)	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; and
    (b)	a party wishing to reply an affidavit served on him must file his affidavit and serve it on the other party within 14 days from the date on which the affidavit he intends to reply was served on him.

11. It is to be observed that the words used in paragraph (b) are "a party wishing to reply an affidavit served on him" and "the affidavit he intends to reply was served on him". It does not say "affidavit in support of an application" but it just state "affidavit". In my view such wordings do not support the view that Order 32 r 13(2)(b) is only applicable to affidavit in reply to the affidavit in support of the application.

12. For the aforesaid reasons I ruled that Order 32 r 13(2)(b) is applicable to the defendant's affidavit-in-support. As the said affidavit was filed in contravention of Order 32 r 13(2)(b) I further ruled that it could not be used for the purpose of the application (Encl 45).

Cases

KS Chua & Co v Chui Miang Chew [1995] 3 AMR 2605; Pemunya Kapal MV Brihope v Emmanuel E Okwuosa [1996] 3 AMR 3917; Majlis Daerah Dungun v TNB [1998] 1 AMR 516; Natseven TV Sdn Bhd v Television NZ Ltd (High Court at Kuching Suit No 22-179-98-11) (unreported)

Legislations

Rules of the High Court 1980: Ord. 32 r 13(2)(b)

Representation

Kevin Kong (Khoo & Co) for Plaintiff

Tai Choi Yu (Tai Choi Yu & Co) for Defendant

Notes:-

This decision is also reported at [2000] 1 AMR 1211