1. ) 1MALAYSIA Development Berhad v 1. ) Low Taek Jho (WA-22NCvC-330-05/2021)

1MALAYSIA DEVELOPMENT BERHAD (Company No.: 848230-V)

1MDB ENERGY HOLDINGS LIMITED (Company No.: LL07917)

1MDB ENERGY LIMITED (Company No.: LL08815)

1MDB ENERGY (LANGAT) LIMITED (Company No.: LL09125)

GLOBAL DIVERSIFIED INVESTMENT COMPANY LIMITED (FORMERLY KNOWN AS 1MDB GLOBAL INVESTMENTS LIMITED) (BVI Company No.: 1763997) ...PLAINTIFFS

LOW TAEK JHO (NRIC No.: 811104-07-5701)

TAN KIM LOONG (NRIC No.: 780213-14-6207)

LOW HOCK PENG (NRIC No.: 520220-71-5059) 23/10/2025 12:41:25

LOW MAY LIN (Singapore NRIC No.: S7666243F)

LOW TAEK SZEN (HKID No.: R150379(A))

GOH GAIK EWE (NRIC No.: 521118-07-5408) ...DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 278 – Notice of Application to set aside JID)

This Grounds of Judgment is prepared in respect of an appeal against the decision of this Court which dismissed the Plaintiffs’ application to set aside the Judgment in Default of Defence (“JID”) entered against the First Defendant (“D1”) and the Third Defendant (“D3”) on 3 November 2022.

The application was filed by way of Notice of Application dated 2 September 2025 (Enclosure 278). Upon hearing the parties, this Court found that there was no sufficient basis in law or on the facts to justify setting aside the JID entered against D1 and D3. Accordingly, the application was dismissed.

The Writ of Summons and Statement of Claim were filed by the Plaintiffs against D1, D2, D3 and several other Defendants. D1 and D3 failed to file their Defence within the prescribed period, and the Plaintiffs proceeded to obtain JID against them on 3 November 2022.

The Affidavit of Service supporting the service of the writ upon D1 and D3 confirmed that service was effected at their last known address obtained through a National Registration Department (“JPN”) search conducted in August 2021.

Nearly three years later, the Plaintiffs now seek to set aside the JID. The grounds relied upon are as follows:

at the time of entry of JID, the Plaintiffs did not have knowledge of evidence that later surfaced in foreign proceedings.

the fraud perpetrated by D1 and D3 was sophisticated, involving multiple entities across various jurisdictions;

certain foreign courts require a judgment on the merits from the Malaysian courts before enforcement proceedings can be undertaken against D1 and D3 abroad. C. ISSUE FOR DETERMINATION

The main issue is whether the Plaintiffs have shown sufficient grounds in law and in fact to warrant the setting aside of the JID entered against D1 and D3.

The governing principles on an application to set aside judgment were set out in Evans v Bartlam [1937] AC 473 . Evans v Bartlam AC 473 is a landmark English House of Lords case that established the principle that a court has discretion to set aside a regular judgment obtained by default. To do so, a defendant must show two things: a real defence on the merits and a satisfactory explanation for why they failed to appear and defend the action in the first place.

The Court has wide discretion to set aside a judgment, but the applicant must demonstrate:

a reasonable explanation for the default;

a bona fide defence with reasonable prospects of success; and

that no irreparable prejudice will be caused to the other party.

The Court must also uphold the principle of finality of litigation, interest reipublicae ut sit finis litium, that litigation should reach an end unless there is manifest injustice or fraud vitiating the judgment itself.

Before this Court is the Plaintiff’s application to set aside the Judgment in Default of Defence (“JID”) entered against the First Defendant (“D1”) and the Third Defendant (“D3”) on 3 November 2022.

The application was filed by way of Notice of Application dated 2.9.2025 (Enclosure 278).

The Plaintiffs contend that new evidence only became available from foreign proceedings after the JID was entered, and that in the interest of justice, the JID should be set aside so that the claims against all Defendants can be heard together on the trial dates already fixed on 6 and 7 October 2025.

Having considered the affidavits, documents, and submissions, I find the Plaintiffs’ reasons insufficient to set aside the JID entered on 3 November 2022.

The Court’s findings are based on the followings reasons.

First, in deciding whether to allow or not to allow the application to set aside a JID, the Court must firstly determine if the JID was a regular or irregular one. It is trite law that if the JID was an irregular one, it should be set aside ex debitio justitae. If it was a regular one, the Court must see whether there is a defence on merits.

As in the case of Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn. Bhd. & Anor [2008] 4 CLJ 175, James Foong JCA has mentioned on the task of having to ascertain first whether the JID is of a regular or irregular nature to grant the application to set aside ex debito justitiae.

In this case, the address for service used when the JID was obtained was a valid address confirmed through a JPN search in August 2021. The very same address is relied upon in the Affidavit of Service filed in support of this present application (Enclosure 306 dated 10 September 2025). This consistency undermines any suggestion that the JID was irregular or defective in terms of service.

Second, the delay of nearly three years in bringing this application is wholly unexplained. The Plaintiffs could have sought alternative relief based on the alleged new evidence from foreign proceedings without disturbing the JID already obtained. Such protracted delay (lasting for a long time or for longer than expected, desired, or usual) reflects a lack of diligence and undermines the bona fides of the application.

On the 30 days requirement under Order 42 rule 13 of the ROC that needs to be fulfilled, the principle was highlighted in the case of Lembaga Kumpulan Wang Simpanan Pekerja v Agni Energies Sdn Bhd & Ors [2014] 8 MLJ 565. In that case, the Court found that the application to set aside JID was filed three (3) months after the JID entered which definitely past the 30 days allowed for the making of the application under the Order 42 r 13. In that case, since there was no good reasons for not making the application within the stipulated time frame, the application was dismissed.

In Mirra Sdn Bhd v The Ayer Molek Rubber Company Bhd [2008] 2 MLJ 348, CA, it was decided that the Respondent was guilty of delay in applying to set aside the JID. The court held that when the Respondent had failed to act –

within reasonable promptitude, in other words within a reasonable time; and

before the Plaintiff had taken any fresh step after becoming aware of the irregularity, the Court should not come to his aid in setting aside the default judgment.

The application to set aside was also to be made not only promptly but must also be vigorously pursued by the applicant. When there is delay in pursuing the application, it may be dismissed. This has been decided in the case of The Ka Wah Bank Ltd v Low Chung Song [1998] 384, where the application was dismissed for being an abuse of the process of the court because of the intentional and contumelious defaults of the applicants.

In the case of Thye Ah Chai (t/a Kent Naga Enterprise) v Teraju Mercu Construction & Engineering Sdn Bhd [2014] 1 MLJ 422 (CA), the application to set aside the judgment in default was filed beyond the time prescribed by Order 42 rule 13 by a period in excess of five months. The Court of Appeal held that Order 42 rule 13 is mandatory, and an applicant filing an application beyond the prescribed time limit is obliged to provide cogent reasons for any delay.

Third, the Court believes that this application is driven by litigation strategy rather than legal necessity. The Plaintiffs wish to replace the JID with a judgment on the merits to facilitate foreign enforcement.

However, this is not a valid legal ground to reopen a final judgment. The Court cannot set aside a valid judgment merely because it no longer fits with the Plaintiffs’ strategic preferences.

Fourth, there is no allegation or proof of fraud practiced upon the Court in the procurement of the JID. The allegations of fraud by D1 and D3 pertain to the underlying cause of action, not to the integrity of the JID proceedings themselves. Absent such fraud, there is no basis to disturb the finality of the judgment.

Finally, while the trial against the remaining Defendants is scheduled to proceed on 6 and 7 October 2025, this fact does not justify disturbing the JID. The trial can and should proceed against the other Defendants who have filed their Defence. Any failure by them to prepare trial documents is a matter of case management, not a ground to set aside a final judgment against D1 and D3.

For these reasons, the Court finds that there is no sufficient basis in law or fact to set aside the JID entered against D1 and D3 on 3 November 2022.

Accordingly, the Plaintiffs’ application to set aside the JID against D1 and D3 is dismissed.

The trial against the remaining Defendants shall proceed as scheduled on 6 and 7 October 2025.

Plaintiffs’ application is dismissed with no costs. Dated : 23rd October 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiffs : Joshua Teo & Pavidren Sivananda Ratnam Messrs. Skrine Advocates & Solicitors Watching Brief Counsel on : Nina Lai Jian Xian & Behalf of BSI Bank Limited Hamsavanthani Sivalingam Messrs. Shook Lin & Bok Advocates & Solicitors