1

SOURCES, INHERENT POWER

& NON-COMPLIANCE
(LECTURE 1)
 Overview
2

 Introduction to civil procedure.

 Sources of Civil Procedure.
 Inherent powers
 Effects of Non-compliance
 Lesson Objectives
3

 To understand the purpose of learning civil

procedure.
 To understand the sources of civil procedure law in
Malaysia.
 To understand and be able to apply the knowledge
on the inherent powers of the court.
 To be able to understand the effects of non-
compliance to the Rules of Court 2012.
 Introduction to Civil Procedure
4

 A mechanism/ formal steps requires to be taken to

enforce a substantive right in a civil court.
 A procedural law that put the law into motion and
puts life into the substantive law, gives it remedy
and effectiveness.
 Enable the potential parties/parties in dispute to
fully prepare for the court proceeding, while
leaving open the option for settlement.
 Cont…
5

 In S.A Andavan v Registrar of Titles, Negeri

Sembilan & Ors (1977) 2 MLJ 220, it is states that
litigation is governed by the rules of procedure. No
one side may take due advantage over another, by
circumventing any rule and it is the duty of the
court, to ensure that the parties engage themselves
in a fair contest.
 Cont…
6

 Civil Litigation Process

-Cause of Action -limitation period
-Jurisdiction - Parties & Proceedings

-Commencement of a case in court

-Service of the originating process by the Plaintiff
-Entering of appearance by the Defendant

-Pleadings
-Service of Pleading
-Default of pleading

Interlocutory Application/ Application in Chambers

• Striking out Pleadings
• Summary Judgment
 Cont…
7

-Pre-trial stage
-Gathering of evidence
-Pre trial case management

-Trials
-Judgment
-Enforcement of Judgment

Appeal
 The sources of civil procedures
8

 Statutes:
 Courts of Judicature Act 1964
 The Subordinate Courts Act 1948
 Limitation Act 1953
 Civil Law Act 1956
 Public Authority Protection Act 1948
 Specific Relief Act 1950
 Cont…
9

 Rules
 Rules of Court 2012 (repealed the Rules of High Court
1980)
 Rules of the Court of Appeal 1994
 Rules of the Federal Court 1995
 Primary Sources
10

 Federal Constitution – jurisdiction of the court

 Statutes:

 Courts of Judicature Act 1964

 Subordinates Courts Act 1948
 Limitation Act 1953
 Civil Law Act 1956
 Rules of Court 2012
11

 Rules of Court 2012 (previously known as Rules of High

Court 1980)
 It repealed the RHC 1980 and Subordinates Court Rule 1980.
It came into force on 1 August 2012. It combines the RHC
1980 and SCR 1980 into one standard civil procedure laws
for the High Court and Subordinate Courts.
 Many of the new changes made following the Singapore Civil
Procedure Rules.
 RC2012 has maintained substantial part of the old rules, apart
from making court procedures uniformed, simplified and
standardized.
 Cont…
12

 We must bear in mind that RC 2012 is not a statute

but just a combined code for procedural matters in
court.
 For Court of Appeal and the Federal Court, the
relevant sources of procedural rules are the Rules
of the Court of Appeal 1994 and the Rules of the
Federal Court 1995 respectively.
 Secondary Sources
13

 Civil procedure laws are not exhaustive. Apart

from the abovementioned Rules, there are also
other sources of law which complement the Rules.
 Case laws or Precedents – stare decisis
 Forms
 Practice Directions/Notes (issued by the Court)-
administrative order; and
 inherent jurisdiction of the court
 Cont…
14

 BNP Paribas (fka Banque National De Paris) v

Polynesia Timber Services Pte Ltd [2002] 4SLR
933
 Singapore High Court held that the Malaysian Practice
Direction was not law but merely a direction for
administrative purposes and thus, incomplete
compliance would only amount to an irregularity not
the setting aside of service of the writ.
 A practice direction has no force of law. Thus, a
court is not bound to follow the direction.
 Cont…
15

 Section 16 of the Courts of Judicature Act 1946

provides that rules of courts may be made generally
for regulating and prescribing the procedure and
the practice to be followed, inter alia, in the High
Court, for any purpose for which rules of court may
be made under any ‘written law’..
 Subordinate Courts Rules Committee may make
rules for regulating and prescribing the procedure
and practice to be followed.
 Cont…
16

 It is important to comply and adhere to forms and

rules in the courts rule as it embodies the
experience of courts over the years in the cause of
speedy and efficient administration of justice.

 This give rise to the another source of courts’

power to administer justice known as INHERENT
POWERS.
 Secondary Sources: Inherent powers
17

 Order 92 rule 4
 “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 orders as may be necessary to prevent
injustice or to prevent an abuse of the process of
the Court.”
 Cont… (Definition)
18

 Definition
 Inherent means basic, fundamental, essential part,
intrinsic, constituent or characteristic.
 Power means the ability or capacity to perform or act
effectively.
 Cont… (Basis)
19

 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam

Perak & Ors and other appeals [2018] 1 MLJ 545 (FC)
 “…the jurisdiction to exercise these powers was derived, not from any
statute or rule of law, but from the very nature of the court as a superior
court of law, and for this reason such jurisdiction has been called
‘inherent’…..for the essential character of a superior court of law
necessarily involves that it be invested with a power to maintain its
authority and to prevent its process being obstructed and abused.
 Such a power is intrinsic in a superior court; it is its very life-blood, its
immanent attribute. Without such a power, the court would have form
but would lack substance. The jurisdiction which is inherent in a
superior court of law is that which enables it to fulfil itself as a court of
law.”
 Cont… (a residual power)
20

 R Rama Chandran v The Industrial Court of

Malaysia [1997] 1MLJ 145 at 238-239
 Federal Court was of the view that Order 92 r 4 “is a
unique rule of court for while it neither defines nor
gives jurisdiction, yet it serves as a reminder and
confirmation-lest we forget-of the common law powers
of the court, which are residuary or reserve powers and
a separate and distinct source of jurisdiction from the
statutory powers of the court”
 Cont…(when arises & purpose)
21

 Coomaraswamy J in Heng Joo See v Ho Pol Ling

stated that inherent powers is
“the reserve or fund of powers, a residual source of
powers, which the court may draw upon as
necessary whenever it is just or equitable to do so,
and in particular to ensure the observance of the
due process of law, to prevent improper vexation or
oppression, to do justice between the parties and to
secure fair trial between them”
 Cont… (Purpose)
22

 In The Emporium v V Arumugam [1933] MLJ 276

at 278, it was held that ‘every court must have
inherent jurisdiction to do justice between the
parties and apply such principles as are necessary
or desirable for attaining such object and for giving
decisions which are in conformity with the
requirements of the social conditions community
where the law is administered’.
 Cont…
23

 Cocker v Tempess
 The power is certainly a matter of most careful
discretion.
 To avoid the process from being abused and cause
injustice.
 Essentially, inherent powers are necessary for the
administration of justice. It is essential to the
existence and proper functioning of the courts.
 It is invoked in relation to the process of litigation.
 Cont… (Nature)
24

 Tan Guek Tian v Tan Kim Kiat @ Chua Kim Kiat

(Part2) [2007] 6 MLJ 260 at 274:
 Inherent power of the court is exercisable as part and parcel
of the process of the administration of justice.
 It is procedural in nature and it is applicable to both civil
and criminal.
 The key feature of this power is that, it can be exercised in
summary process, which basically means ANYTIME.
 The inherent jurisdiction of the court has been invoked in a
wide variety of circumstances and in apparently
inexhaustible ways and manners.
 Cont…(inherent jurisdiction vs statutory
jurisdiction)
25

 Inherent jurisdiction derived from its very nature as

a court of law v statutory jurisdiction of court lies
in the statute.
 Inherent jurisdiction is procedural in nature (not
substantive) and applicable in both civil and
criminal cases.
 Scope of inherent powers
26

 Inherent power of the court is exercisable in the following:-

1. To prevent abuse of the court’s process or to prevent an injustice
 Au Yong Dai Kuen @ Au Yong Wai Kuen v Majlis Bandaraya Shah Alam [2004] MLJU
147
 Court grant extension of time in the interest of justice, even though the applicants had used the wrong
mode in commencing the application for extension of time, by way of notice of originating motion
instead of by way of summons in chambers.
 DP Vijandran v Karpal Singh [1993] 3 MLJ 94
 The Plaintiff withdrew the action by filing a notice of discontinuance. The defendant by way of
summon-in-chambers applied for costs incurred in the appeal and the interlocutory application made
by him in the suit.
 The Court found nothing improper for the defendant to move the court by way of summon-in-
chambers in order to seek the determination of the court regarding his entitlement to the costs
incurred in the appeal and the interlocutory applications made by him in the suit.
 Gee Boon Kee & Ors v Tan Pok Shyong [2018] 1 CLJ 565
 The FC allowing the appeal decided that this case was an appropriate case for the court to exercise its
inherent power to order for lot 513 to be transferred to the appellants i.e. to order relief that differs
from the prior order granted namely, specific performance.
 Cont…
27

 Ezzen Heights Sdn Bhd v Ikhlas Abadi Sdn Bhd

(Soh Yuh Mian, intervener) [2011] 4 MLJ 173
 COA held that the facts and circumstances of the case
attracted the application of O92 r4 (HC has the inherent
power to make consequential orders to prevent injustice.
The defendant was granted consequential order to
remove the intervener’s private caveat, to restrain the
plaintiff and the intervener from dealing with the
defendant’s lots and for the plaintiff and the intervener to
deliver the defendant’s lots to the defendant.
 Cont…
28

2. To strike out applications, indorsement or pleading where it is

plain and obvious that it is frivolous, vexatious and an abuse of
the process of the court;
 EON Bank Bhd v Gandarama Sdn Bhd [2007] 4 MLJ 247
 Defendant applied for striking out under the inherent jurisdiction of the court.
However, on the facts of the case, the court held that O92 r4 should be invoked
instead to prevent injustice to the plaintiff, as granting the defendant’s application
would obviously cause injustice to the plaintiff who will be prevented from
enforcing the registered charge to recover loans granted to the defendant.
 Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6
MLJ 70:
 The High Court Judge struck out the plaintiff’s writ of summons and the
statement of claim as the SOC contained particulars that were intended to
embarrass the defendant and it was certainly an abuse of the court’s process.
 Cont…
29

 Novaviro Technology Sdn Bhd v QL Plantation Sdn

Bhd & Anor (Watermech Engineering Sdn Bhd, third
party) [2018] 11 MLJ 392
 High Court held that the court’s inherent power cannot be
invoked to allow 3rd party to strike out a suit or a
counterclaim. This is because there is no injustice to the 3 rd
party if 3rd party cannot strike out an action or counterclaim.
On the contrary, there will be an injustice to the plaintiff or
the defendant if the court allows a 3rd party to strike out a
suit or a counterclaim.
 Cont…
30

3. Interim measures in Arbitration

 La Kaffa International Co Ltd v Loob Holding Sdn Bhd and another appeal [2018]
MLJU 703
 COA held that, notwithstanding Arbitration Act 2005 (s8), the courts has not lost its
inherent jurisdiction to act on matters related to arbitration. The inherent jurisdiction of
court will naturally mean all the powers that are necessary to uphold, to protect and to fulfil
the judicial function of administering justice within the spirit and intent of the law as stated
in Arbitration Act 2005. Arbitration Act s 11(1) allows a party to make any form of interim
measure order.
 The court has wide powers to grant interim relief which encompasses all types of
injunctions within the jurisdiction or outside the jurisdiction. However, when it is for
matters outside the jurisdiction, it must strictly relate to the parties within the jurisdiction.
Arbitration Act s 11(3) is supportive of any order related to interim relief even if the seat is
not in Malaysia - it does not place caveat to say if the seat is outside Malaysia the order
must only be restricted to support, assist aid or facilitate the arbitration proceedings in the
seat though that must be the foremost consideration when granting an interim measure
order.
 Cont…
31

4. Where there is lacuna in the law or procedural rules and causes procedural
injustice (it does not provide adequate remedy or remedies)
 Kumagai Gumi Co. Ltd v Zenecon-Kumagai Sdn Bhd [1994] 2 MLJ 789
 The absence of a specific provision enabling the presentation of a cross-petition does not prohibit the court
from entertaining such an application. A code of civil procedure cannot foresee and provide for every
eventuality. Where it does not O92 r4 may be invoked to prevent injustice.

 Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) [2010] 2 MLJ 17
 The court may exercise its power under RHC 092 R4 where the rules do not lay down a particular form of
procedure to meet the exigencies of a case.

 Kingtime International Ltd & Anor v Petrofac E & C Sdn Bhd [ 2020] 11 MLJ 141.
 A Protective Order (or Sealing Order) may be granted pursuant to the court’s inherent jurisdiction, court’s
inherent power and/or O 92 r 4 of the RC. Such a power is necessary to ensure that confidential
information is disclosed to the court to enable the court to decide justly the case at hand and at the same
time, to preserve the confidentiality of the information in question. The implied undertaking by the first
plaintiff was not adequate in this case to protect the defendant’s legitimate interest in the confidential
information. It was just and appropriate to grant the Protective Order so as to ensure that the confidential
information was not leaked to the detriment of the defendant
 Cont…
32

 Inherent power of the court is not exercisable:-

1. Where sufficient provisions exist/ specific rule of court
effectively governs the situation;
 Mikien Sdn Bhd v Woolley Development Sdn Bhd [2008] 1 MLJ
823
 It was held that there is no jurisdiction for the High Court to grant a stay
under O92 because sec 243 of the Companies Act 1963 prevents the court
from granting a stay before the winding up order.
 The Royal Selangor Golf Club v Pentadbir Tanah Wilayah
Persekutuan Kuala Lumpur [2012] 5 MLJ 364
 The COA held that since the Land Acquisition Act 1960 provides a
specific provision in respect of appeals from the Land Reference Court,
there is no question of resorting to the inherent powers of the court.
 Cont…
33

 MBf Finance Bhd v Sri-Hartamas Development

Sdn Bhd [1992] 1 CLJ 160, where it was held that
since the liquidator and not the applicant could
apply for a stay under the Companies Act 1965
(Act 125) s 243(1) (repealed by the Companies Act
2016) s 492), it would not be proper for the court to
invoke its inherent jurisdiction to stay the winding
up.
 Cont…
34

2. In cases where an action is filed indiscriminately;

 Dato Ting Check Sii v Datuk Haji Mohamad Tufail bin Mahmud [2007] 5
MLJ 339 at 341
 The inherent jurisdiction of the court should not be exercised in this case as it is
sacrosanct in nature and it must not be seen as a cure for all maladies which the
law does not address, or able to provide the relief, Charles Forte Investment Ltd v
Amanda [1963] 1 ChD 240 referred. When a person comes before the court
seeking remedies in the nature of equitable relief, he must also be expected not to
file applications which may be seen to be frivolous, vexatious and an abuse of
process of court. The petitioner in filing the application has shown conduct
reflecting an unreasonable disposition.
 Loh Eng Leong v Lo Mun Sen & Sons Sdn Bhd [2003] 4 MLJ 284, where
the court could not exercise its inherent powers to strike out the petition
under the Companies Act 1965 s 181 (repealed by the Companies Act 2016
(Act 777) s 346) without considering the factual situation of the case.
 Cont…
35

3. In cases where it is intended to alter substantive

rights
 SBSK Plantations Sdn Bhd v Dynasty Rangers (M) Sdn
Bhd [2002] 1 MLJ 326
 The court held that where a defendant has a substantive right to
present a winding up petition against a plaintiff, neither this rule
nor the inherent jurisdiction of the court could deprive the
defendant of such right or reduce the extent of that right.
 Non-compliance with RC
36

 Justice requires that litigation is disposed of on the

merit of the case and not on the secondary merits of
adherence to provisions of the rules, unless it is
demonstrated that the non-compliance is
contumelious or has denied the other party from a
fair opportunity to defend himself.
 (Chai Say Fah v Hartawan Aman Sdn Bhd [2015]
6 MLJ 277, CA.)
 Cont…
37

 The rules have given much flexibility for the court

to exercise its inherent jurisdiction to ‘ignore’
technicalities as a ground to strike off a case.
 The RC 2012 emphasis on the flexibility of the
court to exercise the inherent power to avoid
miscarriage of justice due to technicalities or to
prevent abuse of power by certain parties.
 Order 1A
38

 In administering any of the Rules therein, the court or judge

shall have regard to the justice of the particular case or
based on merits rather than on the technical non-
compliance of the rules herein or mere irregularities.
 This Order was inserted by the amendment in 2002 and later
incorporated as part of the ROC.
 technical non-compliance means non-compliance with a
rule which is not fundamental or mandatory in nature. (Duli
Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan
Iskandar Al-Haj v Datuk Captain Hamzah bin Mohd Noor
[2009] 4 MLJ 149, FC.
 Cont…
39

 Scope of application of Order 1A ROC

 This Order must not supersede a mandatory requirement
of RC and cannot be invoked when a party intentionally
disregards compliance with RC e.g. intentionally
disregarded rules which deals with the mandatory service
of a writ or notice of appeal etc.
 When there is an issue of whether to override a
procedural non-compliance, the court has to also balance
justice as between the parties with particular regard being
given to the questions of whether any miscarriage of
justice would be occasioned.
 Cont…
40

 Cases:
 Fair Hill Property Sdn Bhd v Ngui Cheng Yew & Anor [2014] 11
MLJ 141, HC, although the applicants amended notice of hearing
failed to state the relief claimed, the court was willing to overlook
the omission under O 1A as no prejudice had been caused.
 Jagdis Singh Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 3
CLJ 47. The respondent raised a preliminary objection (PO) that
the court’s copies of the record of appeal were defective as the
notice of appeal and memorandum of appeal were unsigned.
 COA refused the PO as the respondent had suffered no prejudice.
Mere technicalities would not impede the consideration of a case
on its merits.
 Cont…
41

 Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan

Iskandar Al-Haj v Datuk Captain Hamzah bin Mohd
Noor [2009] 4 MLJ 149.
 Federal Court held that Order 1A was not applicable as the
respondents had intentionally disregarded RHC O 6 r 7(2A)
(now RC) for their own reasons. O6 r 7(2A) which deals with
the service of a writ is mandatory. Order1A cannot be invoked to
cure the failure to comply with the prerequisites of O 6 r 7(2A).
 Abd Hamid Jaafar v Shamsiah dan Keluarga Sdn Bhd
[2004] 5 CLJ 381.
 The failure to state in the affidavit that the deponent reads and
understand English was technical failure.
 Effect of non-compliance: Order 2 rule 1
42

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 non-compliance with the requirement
of these Rules, the non-compliance 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”
 Cont…
43

 The effect of this Order is that all non-compliance

to the rules will be treated as an irregularity and
thus will not nullify the proceedings, any step taken
in the proceedings or any document, judgment or
order therein. This order derived from the decision
in Re Pritchard, Pritchard v Deacon [1963] Ch
502
 Cont…
44

 O2 R1 is derived from the decision in Re

Pritchard, Pritchard v Deacon [1963] Ch 502
 The court is entitled to consider each case according to
the circumstances and make decision it seem just.
 Effects of non-compliance: Order 2 rule 3
45

 Order 2 rule 3 RC: preliminary objection for non-

compliance
 “A court or a judge shall not allow any preliminary
objection by any party to any cause or matter or
proceedings only on the ground of non-compliance
of any of the rules unless the court or judge is of the
opinion that such non-compliance has occasioned a
substantial miscarriage of justice or occasioned
prejudice that cannot be cured either by amendment
or an appropriate order for costs or both.”
 Cont…
46

 Norwest Holdings Sdn Bhd v Muhibbah Engineering [2004] 4 MLJ

481
 Suriyadi J, held that RHC O1A and O2 r3 ‘have merely placed all technical
objections at its rightful place, i.e. irrelevant if it defeats the purpose of
justice…. The administration of justice of the particular case now takes top
spot, and slavish non-compliance of procedures and rules, take a back seat’.
 Majlis Perbandaran Melaka Bandaraya Bersejarah v Yau Jiok Hua
[2006] 5 MLJ 389
 It was decided that under O2 r3, a court or judge will not allow any
preliminary objection by any party to any cause matter or proceedings only
on the ground of non-compliance with any of these Rules unless the court or
judge is of the opinion that such non-compliance has occasioned a substantial
miscarriage of justice.
 Cont…
47

 Although irregularity may be cured, the court still retain a

discretion when rectifying irregularities.
 The court has a wide discretion to determine whether non-
compliance to the Rules is pardonable or correctable/ can be
rectified without the need to strike out or set aside.
 these irregularities may be cured and may not be cured
depending on whether the omission or non-compliance is a
fundamental defect.
 The court is given a discretion to cure the irregularity by way
of amendment or by way of any other order the court thinks fit.
 Cont… (Nullities v Irregularities)

48

 Fundamentally defective vs power to cure

irregularities
 Set aside vs amendment or order as to costs
 Cont…
49

 Irregularities which may be cured:

 Failure to comply with stipulated time
 Tye Chwee Hoon v Cayman Commodities (M) Sdn Bhd
[1989] 2 MLJ 317
 Court held that failure to file conditional appearance and
defence within the stipulated time was a ‘mere technicality’
which was curable under O2 r1 RHC and O2 r5RHC (now
ROC)
 Cont…
50

 Omission to give notice of intention to proceed

 Bank Bumiputra Malaysia v Syarikat Gunong Tujuh Sdn Bhd [1990] 1 MLJ
298
 High Court held that the failure of the plaintiff to give one month’s notice of his attention
to proceed with the action (pursuant to O3 r6 RHC) was an irregularity which could be
cured because the defendant had ample notice of the application (which was served 44
days before the hearing).

 Failure to comply with statutory forms

 Uni Wall Architectural Products & Services Sdn Bhd v Global Upline (M) Sdn
Bhd [2011] 3 MLJ 481
 The error in stating in the writ the time for entering appearance is curable under O2 ROC

 Course paper were unsigned-jagdis singh banta

 Cont…
51

 Irregularities which may not be cured (nullities):

 Irregularity of a fundamental nature
 Defective affidavit
 Dynacast (S) Pte Ltd v Lim Meng Siang [1989] 3 MLJ 456
 An affidavit that does not comply with the requirements of

Rules of Supreme Court 1970 (Sing) ) O41 (now RC (Sing)

O41) is a defect of fundamental nature which cannot be
cured.
 Cont…
52

 Failure to comply with a mandatory rule

 SDB Damansara Sdn Bhd v Datuk Bandar Kuala Lumpur (No. 1)
[2011] 9 MLJ 666
 In a case where leave was a mandatory requirement, neither O1A nor
O2 r1 could cure the defect arising from non-compliance with O53
r3(1) RHC. Failure to comply with such rule could not be regarded as
a mere technical non-compliance as it went to the root of the issue, the
jurisdiction of the court.

 Lee Heng Moy v Christopher Wong Wai Yee [2011] 5 MLJ 333, where
there was a delay of 21 days in filing notice of motion after leave was
obtained for contempt proceedings. The Court of Appeal held that the
appellant was in serious breach of O 52 r 3(2) and the respondents were
prejudiced. The Court of Appeal held that this non-compliance was not
curable under the provisions of O 2 r 1.
 Cont…
53

 Lim Eng Chong v SG Sarawak Recycle Industries Sdn Bhd [2014]

10 MLJ 50. The High court held that there were no procedural
irregularities which could induce the court to invoke O 2 r 1(1) in
order to cure the same. The irregularity here actually went right into
the substance of the application itself. The application was made after
the sale had been made absolute when the law actually required it to
be made before that. The court could not overcome this substantive
defect even though its apparently unjust result to the applicant.
 Action against wrong party
 Dollar Valley (M) Sdn Bhd v Rimba Raya Sdn Bhd [2004] 4 MLJ 6
 The court held that the defect in the notice of appeal in the instant

case by bringing the wrong party to the court was not something
which could be cured under both the provisions of O1A & O2 r1
RHC
 Cont…
54

 Defective service of proceedings

 The Goldean Mariner [1990] 2 Lloyd’s Rep 215
 One of the defendants, have not been served with the actual writ,
only the acknowledgement of services.
 Held: the defective service of writ cannot be cured under Order 2 rule
1 because such omission of service was a serious one.
 Bun Fui Min v Seliang ak Tuah [2010] 9 MLJ 707
 Although the notice of appeal was filed within the prescribed 14day
time limit, the notice of appeal was only served on the plaintiff ten
days later. The appellants urged the court to invoke O1A and O2
RHC (now RC) to overlook the delay on the grounds that it did not
cause any substantial miscarriage of justice. The High Court held that
the requirement to serve the notice of appeal on the respondent
within the prescribed time is mandatory. As such the non-compliance
could not be regularised.
 Cont…
55

 No locus standi
 Ch' ng Team Soo @ Cheng Chiu Seng v Khor Hok Kee
[2012] 10 MLJ 280. The court held that the issue of locus
standi is not just a question of irregularity but it is a
substantive point of law for reason that if one had no locus
standi, his action cannot be maintained. O 2 r 2 pertaining
to the question of irregularity was held not to be applicable.