KERAJAAN MALAYSIA v ASENIA DEVELOPMENT SDN BHD (NO. SYARIKAT: 179837-T)
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In LAI CHENG OOI (F) (THE EXECUTRIX OF THE ESTATE OF LEE TAIN TSHUNG @ LEE THIEN CHIUNG, DECEASED) V LIM SAN PEEN (LIQUIDATOR FOR NASLEI ENTERPRISE SDN BHD) & ANOR AND OTHER APPEALS [2017] 6 MLJ 218, held: (1) Any ex parte order was liable to be set aside by the party which had been served with such an order or by any party which was affected by such order. The court was not functus officio as the right of the party affected to be heard remained subsisting. Separate proceedings to impeach the ex parte order were not mandatory. Orders obtained in breach of the rules of natural justice could be set aside in the same proceedings or in collateral proceedings ex debito justitiae (see para 12). (2)…. (3) It did not matter whether the same or different judge set aside the ex parte order as either judge would have the jurisdiction to set aside the ex parte orders. As the orders were entered in the absence of parties who ought to have been heard, it would come under the exception to the general rule as to functus officio (see para 15). In a summary of the reasons, it can be concluded that: (i) It is time-barred under Section 6 (3) of the Limitation Act 1963 (ii) An Application for an extension of time cannot be granted after the 12-year period has expired. (iii) The Second Order, which is a subset extension of the First Order, is also null and void; and (iv) Section 33 of the Limitatation Act 1963 does not apply in this case.
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