In the recent case of Choong Nam Father & Sons Construction Sdn Bhd v Charern Properties Sdn Bhd
 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.
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.
The Court allowed the Plaintiffs’ application and held as follows:-
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.