Wong Swee Seng v Wong Nyong Khoon (MA-22NCvC-43-11/2025)

Before the Court is the Defendant's Notice of Application dated 9.3.2026 (Enclosure 13), brought under Order 32 rule 13(2), Order 3 rule 5, Order 1A and Order 2 rules 1 and 3 of the Rules of Court 2012 ("the Rules"). The Defendant seeks an extension of time, retrospectively, to file his affidavits in reply to two substantive applications taken out by the Plaintiff - first, an application for summary judgment under Order 14 (Enclosure 9), and second, an application to strike out the Defendant's Counterclaim under Order 18 rule 19(1) (Enclosure 11).

It is common ground that the supporting affidavits of the Plaintiff in respect of both substantive applications, each affirmed by Wong Swee Seng on 26.1.2026 (Enclosures 10 and 12), were served on the Defendant's solicitors on 28.1.2026. Under Order 32 rule 13(2)(b) of the Rules, the Defendant's affidavits in reply ought to have been filed within fourteen (14) days thereafter - that is, by 11.2.2026. No affidavits in reply were filed within that period, nor at any time before the present application was made on 9.3.2026.

The present application is therefore an application for an extension of time made wholly after the expiry of the prescribed period. The Court's jurisdiction to entertain it is not in doubt: Order 3 rule 5(1) and (2) of the Rules expressly preserves the Court's power to extend time even on an application made after the period has elapsed. What is in controversy is whether, on the facts of this case, the discretion so conferred ought to be exercised in the Defendant's favour.

The application has been resisted by the Plaintiff on two principal grounds: that the explanation tendered for the failure to comply with the mandatory fourteen-day period is insufficient, and that the discretion in Order 3 rule 5 should not be exercised so as to relieve a party from the consequences of a deliberate or, at the lowest, an inexcusable disregard of a mandatory rule. The Defendant's answer, in substance, is that the delay is short, the explanation given is bona fide, the underlying applications to be answered are substantive in nature, and that any inconvenience to the Plaintiff is compensable by costs.

The application turns ultimately on a discretionary judgment, but one to be exercised by reference to settled principles. The narrow but real controversy is whether those principles, applied to the facts disclosed in the affidavits filed in Enclosures 14, 15 and 16, permit, or alternatively require the refusal of, the relief sought.

The Plaintiff sues in his capacity as sole surviving executor of the estate of the late Wong Kiow. The substantive subject matter of the action concerns, inter alia, the registration of vesting of a one-half undivided share in agricultural land held under GRN 57075, Lot 8111, Mukim Durian Tunggal, District of Alor Gajah, Melaka, and consequential reliefs arising from the testator's last will. The merits of those issues do not arise on the present application and the Court expresses no view upon them.

The procedural milestones material to the present application may be set out compendiously:

The Writ and Statement of Claim were filed on 6.11.2025 and served on the Defendant personally on 14.11.2025.

The Defendant entered appearance on 28.11.2025 and filed his Defence and Counterclaim on 22.12.2025.

The Plaintiff filed his Reply and Defence to Counterclaim on 7.1.2026.

On 26.1.2026, the Plaintiff filed the two substantive applications now in issue - the application for summary judgment under Order 14 (Enclosure 9), and the application to strike out the Counterclaim under Order 18 rule 19(1) (Enclosure 11) - each supported by an affidavit affirmed on the same day (Enclosures 10 and 12 respectively).

Enclosures 9 to 12 were served on the Defendant's solicitors on 28.1.2026.

The fourteen-day period prescribed by Order 32 rule 13(2)(b) for the filing of affidavits in reply expired on 11.2.2026. No affidavits in reply were filed by that date. No application for an extension of time was made before the period expired.

There followed the Chinese New Year period and a sequence of public holidays in Melaka observed from 17.2.2026 to 22.2.2026. A case management was conducted before the learned Senior Assistant Registrar on 23.2.2026, the next sitting day. At that case management, learned counsel for the Plaintiff drew attention to the Defendant's failure to file affidavits in reply within the prescribed period, and the Senior Assistant Registrar directed that, if the Defendant intended to file affidavits in reply, a formal application for extension of time should be made.

Enclosure 13, with its supporting affidavit affirmed by the Defendant on the same day (Enclosure 14), was filed on 9.3.2026. The Plaintiff filed an affidavit in reply on 26.3.2026 (Enclosure 15), and the Defendant filed an affidavit in further reply on 10.4.2026 (Enclosure 16).

Three points emerge from this chronology and must be kept in view. First, the mandatory period of fourteen days expired on 11.2.2026 which is six clear days before the commencement of the public holidays relied on by the Defendant. The public holidays therefore could not, of themselves, have caused the failure to file within time. Second, between the expiry of the period on 11.2.2026 and the filing of the present application on 9.3.2026, twenty-six (26) days elapsed. Third, no step at all was taken by the Defendant or his solicitors to seek an extension of time, or to indicate any intention to file affidavits in reply, until the matter was raised by the Plaintiff and the Senior Assistant Registrar at the case management on 23.2.2026.

The Defendant's explanation, as deposed in Enclosure 14 and amplified in Enclosure 16, comes to this: that the Defendant was engaged in his business affairs in the lead-up to the Chinese New Year; that the long weekend of public holidays in Melaka constrained the time within which instructions could be taken and the affidavits prepared; and that, after the case management on 23.2.2026, time was required to obtain further instructions, settle the form of the application, and prepare the supporting affidavit. C. ISSUES FOR DETERMINATION

The application gives rise to a single, but composite, question: whether the Court, in the exercise of its discretion under Order 3 rule 5 of the Rules and in light of Order 1A and Order 2 rules 1 and 3, ought to grant the Defendant an extension of time within which to file his affidavits in reply to Enclosures 9 and 11, notwithstanding that the prescribed period under Order 32 rule 13(2)(b) has long since expired.

That single question subsumes the following analytical inquiries:

First, what is the proper character of the period in Order 32 rule 13(2)(b) and the consequences, in principle, of noncompliance with it?

Second, what are the governing principles by reference to which the discretion under Order 3 rule 5 to enlarge time after expiry of the period is to be exercised?

Third, applying those principles to the facts disclosed by the affidavits, ought the discretion to be exercised in favour of the Defendant, against him, or in favour of him only on terms? D. STATUTORY AND LEGAL FRAMEWORK

Order 32 rule 13(2)(b) and the character of the period. Order 32 rule 13(2)(b) of the Rules provides that an affidavit in reply to a Notice of Application supported by affidavit shall be filed within fourteen days after service of the application and supporting affidavit. The provision is prescriptive in form. It does not, however, prescribe any sanction for non-compliance, nor does it on its face oust the general dispensing power conferred by Order 3 rule 5. The use of the word "shall" in Order 32 rule 13(2)(b) is therefore best understood as expressing a rule of practice with mandatory force, rather than as a jurisdictional bar to subsequent filing with leave.

Order 3 rule 5 and the dispensing power. Order 3 rule 5 confers on the Court a wide discretionary power to extend or abridge any period prescribed by the Rules, by any judgment, order or direction, even on an application made after the period has expired. The width of that power is well-established. As the Court of Appeal observed in Thiruchelvasegar a/l Manickavasegar v Mahadevi a/p Nadchatiram [1998] 4 MLJ 297, at p. 297 of the headnote and pp. 307-310 of the judgment, "under O 3 r 5(1) and (2) of the Rules of the High Court 1980 ..., the court has jurisdiction to extend time even if the application is made after the expiry of the period". That observation, made in respect of the materially identical provision of the Rules of the High Court 1980, applies with equal force to Order 3 rule 5 of the Rules of Court 2012.

Order 1A and Order 2 rules 1 and 3. The exercise of the dispensing power in Order 3 rule 5 must, however, be undertaken in the larger setting of Order 1A and Order 2 of the Rules. Order 1A enjoins the Court, in administering the Rules, to have regard to "the overriding interest of justice and not only to the technical non-compliance with these Rules". Order 2 rule 1 provides that non-compliance with the Rules is to be treated as an irregularity and not as nullifying the proceedings; Order 2 rule 3 directs that an application to set aside any proceeding for irregularity shall not be allowed unless made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. These provisions, taken together, mark a clear shift in the procedural philosophy away from rigid technicality and towards the disposal of disputes upon their substantive merits.

The principles governing extension of time. The principles applicable to an application for an extension of time, particularly one made after the period has expired, have been clearly stated by the appellate courts. The Court of Appeal in Thiruchelvasegaram (supra) identified the primary consideration in the following terms (at pp. 307H-I, 310): The primary consideration in exercising discretion to extend time is whether the party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances. ... prejudice itself is not a ground for the learned JC to consider when exercising his discretion to extend time. This is so as we have shown from the many authorities cited that the primary consideration is whether the party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances.

Two riders should at once be noted. First, Thiruchelvasegaram was a case concerned with disobedience of an order of Court for particulars. The language of "intention to ignore or flout the order" is to be read in that setting. Where what is in issue is non-compliance with a procedural rule of general application, rather than disobedience of a specific judicial order directed to a party, the same vocabulary applies but with corresponding adjustment in weight. Second, the dictum that "prejudice itself is not a ground" should not be taken out of its context. It means that prejudice flowing from the procedural consequences of non-compliance does not, of itself, suffice to ground an extension. It does not mean that prejudice to the opposing party, or to the just and orderly disposal of the action, is irrelevant: such prejudice plainly informs the wider equity of the case.

To similar effect is the decision of the High Court in Istana Securities Ltd v Roger Bogne [2017] MLJU 2427, where the explanation that the defendant "was busy with his businesses in various places" was held to be a "frivolous ground that should not be accepted by the court" (at [16]). The learned Judge there observed that "the time limits imposed by rules of court for the disposal of cases should not be held hostage to" the personal or commercial preoccupations of a litigant, and that "it is not enough that the defendant has merits in his defence if there is no explanation for the delay". The like point appears in B S Marketing Sdn Bhd v Tan Sin Thew & Ors [1998] MLJU 105 (High Court), where the High Court declined to entertain explanations resting on busy personal affairs and on a solicitor's inadvertence, observing that to do so would reduce the requirement of leave "to nothing but a formality".

The High Court has also emphasised that a litigant's conduct of the proceedings as a whole, and not merely the bare length of the delay, is a material consideration. Thus, in Nadarajans/o Verayan v Hong Tuan Teck (Part 1) [2008] 1 MLJ 436 (High Court), an application for extension of time made some seventeen days out of time was refused, the Court there holding that "the delay was not due to mere oversight or inadvertence" but to a "couldn't care less" attitude on the part of the applicant, and that "besides the time factor, the applicant's conduct is also a relevant factor in deciding whether or not an extension of time ought to be granted".

On the other side of the scale, the appellate courts have repeatedly cautioned against the use of procedural rules as instruments of oppression. The shift in approach effected by Order 1A is well captured by the in Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301 (Federal Court), where it was emphasised that the Rules of Court must be administered with regard to substantive justice and not merely technical compliance. That principle finds reinforcement in the Court of Appeal's earlier observation in Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Anor v Lee Boon Tin [1998] 4 MLJ 373 (Court of Appeal) (cited in Dato' Mohamad Salim Fateh Din v Nadeswaran a/l Rajah (No 2) [2012] 10 MLJ 513 (High Court)) that, while rules as to time "should be observed" and a "wholesale disregard of the rules" is an abuse, the inquiry is one of degree and judgment.

Synthesising these authorities, the Court considers the following propositions to represent the law:

The Court has jurisdiction under Order 3 rule 5 to extend time even where the prescribed period has expired and even where the application for extension is itself made out of time.

The discretion is to be exercised in accordance with settled principle, not capriciously. The starting point is the consideration identified in Thiruchelvasegaram: whether the party seeking the extension can show that the failure to comply was not the product of an intention to disregard the rule or order, and was attributable to circumstances reasonably explicable.

In considering that question, the Court will examine: the length of the delay; the explanation tendered for it; the conduct of the party seeking the indulgence both before and after the period expired; the nature of the application or order in respect of which the indulgence is sought; and the consequences, including any prejudice, of granting or refusing the application that cannot be answered in costs.

Where the delay is attributable to mere personal preoccupation or commercial convenience, the explanation is unlikely to be accepted: Istana Securities; B S Marketing. So too where the conduct of the party betrays indifference to the proceedings: Nadarajan.

Conversely, where the underlying matter to which the affidavits relate is of a substantive character - such as an application for summary judgment or to strike out a pleading - and the party seeking the extension has otherwise engaged with the proceedings, the Court will be slow to permit a default in time to operate as a determination of the merits, provided that the opposing party can be adequately protected, ordinarily by an appropriate order as to costs. This is the necessary working out, in this corner of procedure, of Order 1A.

The merits of the underlying claim or defence are not, save in exceptional cases, a free-standing ground for extending time. They may, however, inform the wider equity of the case where refusal would have the effect of foreclosing a substantive contest: see Istana Securities (supra) at [17].

The Court turns first to the length of the delay. The mandatory period of fourteen days expired on 11.2.2026. The application for extension was filed on 9.3.2026 - twenty-six days thereafter. The Plaintiff characterises this as a delay of twenty-six days. The Defendant prefers to measure the delay only to the date of the case management on 23.2.2026, that is, twelve days.

In the Court's view, the more candid measure is twenty-six days. The relevant non-compliance is the failure to file the affidavits in reply within the prescribed period. That noncompliance is not cured by the mere fact that, at a subsequent case management, the Senior Assistant Registrar directed the party in default to make formal application for relief. The case management direction did not enlarge time; it identified the procedural mechanism by which the existing default would be addressed. The relevant clock therefore ran from 11.2.2026 to 9.3.2026.

That said, a delay of twenty-six days, taken alone, is neither trivial nor inordinate. It is more substantial than the seventeen day delay refused in Nadarajan but considerably less than the four-month delay refused in Istana Securities. It is the kind of delay where the explanation given, and the conduct of the parties, become decisive.

The Defendant's explanation, as set out in paragraphs 7 & 8 of Enclosure 14 (and further articulated in Enclosure 16), rests in essence upon three elements: (a) commercial preoccupations connected with the lead-up to the Chinese New Year festival; (b) the long weekend of public holidays in Melaka from 17.2.2026 to 22.2.2026; and (c) the time required, after the case management on 23.2.2026, to take further instructions and settle the application.

Each of these warrants separate consideration.

As to (a), the Court is unable to give significant weight to the assertion of commercial preoccupation. The Defendant is represented by counsel, and the obligation to comply with the mandatory period is one which falls on the litigant and his legal representatives together. The High Court's observations in Istana Securities at [16] are directly applicable: "As for the reason that he was busy with his businesses in various places, it is entirely a personal matter and the time limits imposed by rules of court for the disposal of the cases should not be held hostage to it." Beyond the bare assertion of being "busy", the Defendant has not deposed, with any particularity, to what specific commitments precluded the taking of instructions during the relevant fourteen-day window. Importantly, the festival of the Chinese New Year fell within, not beyond, the prescribed period: it is not an external event which prevented compliance, but part of the very period in which compliance was required.

As to (b), the Court accepts that the long weekend of public holidays in Melaka from 17.2.2026 to 22.2.2026 would, on the face of it, have constrained the practical conduct of legal business in that period. But that consideration is of no assistance to the Defendant on the present facts. The fourteen-day period expired on 11.2.2026, which is six days before the public holidays began. The public holidays could not, as a matter of simple chronology, have caused or contributed to the failure to file within time. They may explain why nothing happened between 11.2.2026 and 23.2.2026, but they do not explain why nothing happened before 11.2.2026.

Further, the electronic filing system of the Courts is, by Practice Direction and by general operation, available beyond ordinary court hours. The submission that the holidays themselves prevented filing, does not survive examination.

As to (c), the time taken from the case management on 23.2.2026 to the filing of the application on 9.3.2026-a further fourteen days-is again unaccompanied by particularity.The Defendant has not, in Enclosure 14 or in Enclosure 16, identified the steps that were taken on each material date, what instructions were sought, or why those steps could not have been compressed into a shorter compass given that, as at 23.2.2026,the Defendant was already on notice of the procedural default and of the need for prompt remedy.

Taken in the round, therefore, the explanation tendered by the Defendant is weak. It does not approach the kind of "extraneous circumstances" identified in Thiruchelvasegaram as the typical justification for the exercise of the discretion. The Defendant has not deposed, for example, to ill-health, to the unavailability of counsel for unavoidable reasons, to the loss or destruction of documents, or to any other contingency outside ordinary commercial life. The explanation falls into the same broad family as those which were rejected in Istana Securities and B S Marketing.

It is,however,necessary to take into account the totality of the Defendant's conduct in the proceedings,and not merely the conduct within the fourteen-day window. The Court is unable to characterise the Defendant's conduct as approaching the "couldn't care less" indifference identified in Nadarajan.

The Defendant entered appearance promptly; filed a substantive Defence and Counterclaim within time; instructed solicitors who appear to have been on the record throughout; attended (through counsel) the case management on 23.2.2026; filed the present application within a discrete period thereafter; and has filed two affidavits in support of it (Enclosures 14 and 16). The Counterclaim, it may be added, raises matters of substance, the resolution of which on the merits is, on its face, of real consequence to the Defendant.

There is, in short, a difference of character between (a) a litigant who is absent from the proceedings, who ignores notices, and whose disregard for the rules is sustained and indifferent, and (b) a litigant who is engaged in the proceedings but who has fallen into a single, discrete default in respect of one procedural step. The Plaintiff's submission that the Defendant has been generally cavalier in his approach to the proceedings does not, in the Court's view, withstand examination of the procedural record as a whole. The matters cited - the absence of a Reply to the Defence to Counterclaim, and a non-response to a Notice to Produce - are matters that are themselves answerable in other ways within the procedural framework and do not, of themselves, demonstrate contumacy.

Of the matters going to the wider equity of the case, the nature of the underlying applications to which the affidavits in reply are to be directed is, in the judgment of the Court, of considerable significance.

Enclosure 9 is an application for summary judgment under Order 14. The legal threshold for the grant of summary judgment is well-known: the Court must be satisfied that there is no triable issue and that the defence is not bona fide. The vehicle by which a defendant ordinarily demonstrates the existence of a triable issue or the bona fides of the defence is the affidavit in reply. To refuse the Defendant the opportunity to file that affidavit would be to determine the Order 14 application on a one-sided record. That is not a course which the Court should adopt lightly, and certainly not where the underlying claim seeks substantial substantive relief, including a mandatory injunction, declaratory relief, and authority for the Senior Assistant Registrar to sign documents in lieu of the Defendant.

Enclosure 11, in turn, seeks to strike out the entirety of the Defendant's Counterclaim under Order 18 rule 19(1). The wellsettled principle, repeatedly affirmed by the appellate courts, is that the striking-out jurisdiction is to be exercised sparingly and only in plain and obvious cases. Once again, the Defendant's affidavit in reply is the principal means by which the Defendant may meet the Plaintiff's case on this application. To deny the Defendant that opportunity, where it can be afforded on terms, would be inconsistent with the cautious approach which the jurisdiction itself demands.

This is not, the Court emphasises, the same as saying that the merits of the Counterclaim or of the Defence are themselves a ground for extending time. They are not: see Istana Securities (supra) at [17] ("it is not enough that the defendant has merits in his defence if there is no explanation for the delay"). What is being said is that, where the underlying applications are of a character that has historically attracted careful and full ventilation on affidavit, the procedural default in question should not, save in clear cases, be permitted to operate as a substitute for that ventilation.

Prejudice falls to be considered on both sides.

The Plaintiff points to the delay in the disposal of the substantive applications and to his statutory duties as executor of the testator's estate including the registration of the vesting of the testator's one-half undivided share in the relevant land in favour of the beneficiaries entitled under the will. The Court accepts that these are real considerations. They are not, however, prejudice of a kind that is irretrievable. The substantive applications, once the affidavits in reply have been filed, can be set down for hearing on an expedited basis. Any incidental costs that have been incurred by reason of the Defendant's default can be compensated by an appropriate order as to costs.

Against that, the prejudice to the Defendant of refusing the application is, in practical terms, that he would be unable to place any affidavit material before the Court in opposition to either the summary judgment application or the striking-out application. That is a prejudice of a different order. It would tilt the procedural balance materially in the Plaintiff's favour on the very applications upon which substantive rights are to be determined.

The Court has not overlooked the observation in Thiruchelvasegaram that prejudice is "not a ground" for the exercise of the discretion. As earlier explained, that dictum is to be read in its context. It is directed to the proposition that the procedural consequences of non-compliance cannot, of themselves, ground an extension: in other words, a party cannot say merely "if I lose this application I will be prejudiced, and so my application for extension must be granted". That is not the position taken here. The point is rather that, where the explanation for the delay is weak but not contumacious, the Court is entitled, in working out the overriding requirement of justice under Order 1A, to consider how the procedural consequences fall as between the parties, and whether the imbalance can adequately be addressed by costs.

Order 1A of the Rules has, since its introduction, marked a deliberate movement away from the older approach under which strict compliance with procedural time limits was elevated to an end in itself. The provision is in terms which speak for themselves: in administering the Rules, the Court is to "have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules". That direction does not licence indulgence to the indolent or to the contumacious — and the appellate courts have not been slow to make that clear in cases such as Thiruchelvasegaram (supra) and Trustees of Leong San Tong Khoo Kongsi (supra). But the direction does require the Court, when faced with a discrete procedural default supported by an explanation that is weak but not malign, to ask whether the consequences of refusing relief are commensurate with the gravity of the default.

Here, the default is real. The explanation is unsatisfactory in the respects already identified. The Defendant has not commended himself to the Court's sympathy by reference to the conventional categories of "extraneous circumstances". But the default has not been compounded by any subsequent obstruction; the proceedings as a whole evidence engagement, not indifference; and the consequences of refusing relief would, in practical terms, be that two substantive applications - one for summary judgment, one for striking out - would proceed on a one-sided affidavit record.

Weighing these matters, the Court has concluded that the discretion under Order 3 rule 5, read with Order 1A, ought to be exercised in the Defendant's favour, but only upon terms which adequately reflect the gravity of the default and ensure that the Plaintiff is compensated for the inconvenience occasioned by it. The case is not one in which the application for an extension is to be allowed as a matter of course or upon the basis that the explanation given is sufficient. The application succeeds, but it does so notwithstanding the weakness of the explanation tendered, and only by reason of the wider considerations identified above.

It is right that the Court should explain why the authorities pressed on it on behalf of the Plaintiff do not, in its judgment, dictate a different result. Thiruchelvasegaram was a case of disobedience to a specific order of Court for particulars, in circumstances where the learned Judicial Commissioner was found to have failed properly to consider whether the disobedience was "intentional or contumelious". The Court of Appeal there did not establish a rigid rule that every weak explanation defeats every extension application; it identified the primary consideration and reiterated the importance of according due weight to it. Applied here, that primary consideration tells against the Defendant on the explanation, but it does not preclude consideration of the wider matters identified above.

Istana Securities and B S Marketing are decisions at first instance, the value of which lies in the High Court's reasoned rejection of explanations resting on personal busyness or solicitor inadvertence. The Court has, in this case, given proper effect to that approach in declining to accept the Defendant's commercial preoccupations as sufficient in themselves. But those decisions did not address the further question that arises here: namely, whether, the explanation having been found wanting, the discretion should nonetheless be exercised where to refuse would foreclose substantive ventilation of an Order 14 and an Order 18 rule 19 application. That question is one of judgment, not of authority.

Nadarajan is, with respect, of limited assistance to the Plaintiff. The learned Judge there found that the applicant displayed a "couldn't care less' attitude" - a finding closely tied to the particular factual record before the Court, and one which cannot fairly be made on the record in the present case for the reasons already explained at paragraphs 31 to 33 above.

Trustees of Leong San Tong Khoo Kongsi and the passage from Dato' Mohamad Salim Fateh Din relied upon by the Plaintiff are concerned with the broader vice of "wholesale disregard" of the rules and the public interest in the disposal of litigation within a reasonable time scale. Those concerns are real and are not to be diluted. They do not, however, descend into a rule that every twenty-six day delay constitutes wholesale disregard. The present case is not, on its facts, an instance of wholesale disregard.

Finally, Kiwi Office Equipment Sales and Services Sdn Bhd v Benedict Pui Jin Hung [2021] MLJU 481 (High Court), and the passage drawn from Commerceone Property Sdn Bhd v Bangsar Trade Centre Sdn Bhd [2016] MLJU 1392 therein, properly summarise the matters that a Court will consider in exercising a discretionary power. The Court has, in the analysis above, considered each of those matters - the conduct of the party, prejudice to the opposing party, and any delay - and has weighed them in coming to the conclusion which it now expresses. F. CONCLUSION The Court is satisfied that, although the explanation tendered by the Defendant for his failure to file affidavits in reply to Enclosures 9 and 11 within the period prescribed by Order 32 rule 13(2)(b) of the Rules is weak and not of the character ordinarily expected to attract the indulgence of the Court, the discretion conferred by Order 3 rule 5, read together with Order 1A and Order 2 rule 1 of the Rules, should nonetheless be exercised in favour of granting an extension of time. The principal reason is that the underlying applications are substantive in nature - one being an application for summary judgment under Order 14, the other an application to strike out a Counterclaim under Order 18 rule 19(1) - and to refuse the indulgence would, in practical effect, determine those applications upon an incomplete affidavit record in circumstances where the Defendant's conduct of the proceedings as a whole does not warrant so severe a procedural consequence.

The Court emphasises that this conclusion is reached notwithstanding, and not by reason of, the Defendant's explanation. The Defendant's evidence on affidavit as to the cause of the default is, in the respects identified, lacking in particularity. Were the underlying applications of a different character - purely interlocutory and without the capacity to determine substantive rights - the result would likely have been otherwise. The conclusion reached therefore turns on the particular combination of factors disclosed by the affidavits filed in Enclosures 14, 15 and 16, and is not to be read as a relaxation of the requirement, repeatedly emphasised by the appellate courts, that parties before the Court must observe the time limits imposed by the Rules.

Two further matters require to be addressed in the order. First, the period within which the Defendant is to file the outstanding affidavits in reply should be a short one - the inconvenience to the Plaintiff has continued for long enough. Second, the Plaintiff is entitled to the costs of and incidental to the present application, on a basis that reflects the fact that the application was necessitated by the Defendant's own default. The costs are to be paid forthwith, and are not to be ordered as costs in the cause.

For the reasons set out above, the Court makes the following orders:

The Defendant's application in Enclosure 13 is allowed, and the Defendant is granted an extension of time to file his affidavits in reply to:

the Affidavit in Support of the Plaintiff affirmed by Wong Swee Seng on 26.1.2026 in support of the Order 14 Application (Enclosure 10); and

the Affidavit in Support of the Plaintiff affirmed by Wong Swee Seng on 26.1.2026 in support of the Order 18 rule 19(1) Application (Enclosure 12). [73] The Defendant shall file and serve the said affidavits in reply within seven (7) days from the date of this order, failing which the right to file the same shall stand foreclosed without further order. [74] The Defendant shall pay to the Plaintiff the costs of and incidental to Enclosure 13 in the sum of RM 5,000.00, such costs to be paid within fourteen (14) days from the date of this order and not to be treated as costs in the cause. [75] The Senior Assistant Registrar shall fix the earliest available date for hearing of Enclosure 9 and Enclosure 11, with directions for the filing of the Plaintiff's affidavits in reply (if any) and exchange of written submissions. [76] Liberty to apply. Dated 28 May 2026 (YA Dato' Sri Raja Segaran A/L S) Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff : Encik Chew Wee Kian bersama Cik Ee Pei Ying Tetuan H S Chew & Co. Peguambela dan Peguamcara No.543-A (1ST Floor), Taman Melaka Raya, 75000 Melaka. Lawyer For Defendant : Encik Vincent Tay Soon Chuan Tetuan Gan Rao & Chuah Peguambela dan Peguamcara G-17, Jalan PM 13, Plaza Mahkota, 75000 Banda Hilir, Melaka.