The “freezing” and “unfreezing” of time: Court extends validity of writ in the interest of justice

08 February 2024

Introduction

In the recent case of Choong Nam Father & Sons Construction Sdn Bhd v Charern Properties Sdn Bhd [2024] 2 CLJ 246, the High Court allowed the validity of a writ to be extended even though the application was made one year and ten months after the date of issue of the writ. In this regard, Order 6 rule 7(1) of the Rules of Court 2012 (“Rules”) stipulates that a writ is valid for six months from its date of issue and Order 6 rule 7(2A)¹ of the Rules requires such an application to be made before the expiry of a writ.

Brief Facts

On 16 March 2021, the Plaintiffs filed their claim and attempted service on the Defendant which was unsuccessful.

On 1 June 2021, the Plaintiffs obtained an order for substituted service to serve the writ and statement of claim.

On 16 August 2021, the Plaintiffs entered judgment in default (“JID”) against the Defendant.

However, on 4 January 2023, the Defendant successfully set aside the JID and also the order for substituted service obtained by the Plaintiffs.

On 20 January 2023, the Plaintiffs filed an application for an extension of validity of the writ.

The Defendant, in opposing the Plaintiffs’ application, argued that the Plaintiffs’ application for extension of validity of writ was filed one year and four months after the expiry of the writ on 16 September 2021 and this delay constitutes a breach of Order 6 rule 7(2A) of the Rules.

The Plaintiffs, on the other hand, argued firstly, that the application for extension was made within the time permitted under Order 6 rule 7(2A) of the Rules as they had effectively stopped the time of writ expiry from running by obtaining JID. Secondly, the Plaintiffs also contended that the Court has the authority to extend a writ even after it had expired.

Decision

The Court allowed the Plaintiffs’ application and held as follows:-

Time of writ expiry freezes and unfreezes: Applying the decision of Ever Rich Enterprise v Ten Mei Theng [2019] 1 MLRH 194, the Court held that the validity of the writ should be viewed in intervals. The moment JID was entered, the time in respect of writ expiry freezes and the time unfreezes when the JID and substituted service order were set aside (“freeze-and-unfreeze mechanism”). As the writ was issued on 16 March 2021 and JID was obtained on 16 August 2021, applying this freeze-and-unfreeze mechanism, there was still one month remaining before the writ expired. Upon the JID and substituted service order being set aside, the Plaintiffs had one month to file their application to extend the validity of their writ which they did. Therefore, the Plaintiffs’ application was within the time frame of Order 6 rule 7(2A) of the Rules.

Court has power to extend validity of writ even after it has expired: The Court relied on Order 1A², Order 3 rule 5³, Order 92 rule 4⁴ of the Rules and the Court of Appeal case of Arab-Malaysian Credit Bhd v Tan Seang Meng [1995] 1 MLJ 525 which held that a court possesses the clear authority to extend the validity of a writ even after it has expired. The Court was of the view that justice should not be overshadowed by rigid procedural technicalities especially where the Plaintiffs cannot be faulted for the “delay” between the period when the JID was entered and the time it was set aside. In the same vein, the Court held that the recent Federal Court case of FIMBank Plc v The Owners and/or Demise Charterer Ship or Vessel now known as ‘Bao Lai’ [2023] 6 MLJ 563 (“FIMBank”) further reinforces the role of the Court’s inherent powers and the exercise of such powers is not only confined to situations where there is a gap or lacuna in the Rules.

Comments

Although not expressly stated in the judgment, it appears that the High Court accepted both arguments put forward by the Plaintiffs. It is clear from the judgment that the learned Judicial Commissioner's primary objective in allowing the application is to “prioritise the overriding interest of justice over technical non-compliance” and give both parties “the opportunity to ventilate the merits of each of their respective cases.”

While this recent High Court decision cites the case of FIMBank and relies on some parts of that Federal Court decision, the issue here is different from FIMBank. FIMBank concerns the issue of whether the Court can renew and/or extend an admiralty writ in rem beyond the five-time limit prescribed under Order 6 rule 7(2) of the Rules whereas the present issues are first, whether the writ had expired when the application for extension was made, and second, whether a Court can extend the validity of an ordinary writ when the application is made after its expiry in view of Order 6 rule 7(2A) of the Rules. To read our commentary on the case of FIMBank, click here.

Notwithstanding the distinction above, what has been applied and followed in this case from the decision of FIMBank is that while Order 6 rule 7(2) of the Rules serves as a measure against indolent litigants, a rigid interpretation could inadvertently impair the administration of justice and risks penalising diligent litigants who, despite their efforts, are unable to serve the writ due to factors beyond their control.

This reinforces the need for Courts to invoke its inherent powers where a strict interpretation of the Rules would result in injustice provided that the litigant has shown continuous proactive actions and was not indolent in pursuing its claim.

Case Note by Teng Wei Hun (Senior Associate) of the Maritime and Shipping Practice of Skrine.

¹ Order 6 rule 7(2A) of the Rules states that:-
“An application for a renewal of writ must be made before the expiry of the writ, ex parte by notice of application supported by affidavit showing that efforts have been made to serve the defendant within one month from the date of the issue of the writ and that efforts have been made subsequent thereto to effect service.”

² Order 1A of the Rules states that:-
“In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules.”

³ Order 3 rule 5 of the Rules states that:-

(1)	The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules or by any judgment, order or direction, to do any act in any proceedings.
(2)	The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
(3)	The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent in writing without an order of the Court being made for that purpose.

⁴ Order 92 rule 4 of the Rules states that:-
“For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”

This alert contains general information only. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such. For further information, kindly contact skrine@skrine.com.

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The “freezing” and “unfreezing” of time: Court extends validity of writ in the interest of justice