1. ) MOHD FARIS BIN ISMAIL (berniaga di atas nama dan gaya Greenjingga Enterprise (no pendaftaran perniagaan-201203241671 (JM0635883-P) v FUJI XEROX ASIA PACIFIC PTE LTD (JA-12ANCC-3-03/2021)

MOHD FARIS BIN ISMAIL (berniaga di atas nama dan gaya Greenjingga Enterprise (No Pendaftaran Perniagaan: 201203241671(JM0635883-P)]

AZAHARUDDIN BIN ALAODIN ...APPELLANTS AND FUJI XEROX ASIA PACIFIC PTE LTD ...RESPONDENT (No. Syarikat: 199202000004 (993478-A) [DALAM PERKARA MAHKAMAH SESYEN DI JOHOR BAHRU JOHOR DARUL TA’ZIM, MALAYSIA GUAMAN SIVIL NO: JA-A52NCC-187-08/2020 ANTARA FUJI XEROX ASIA PACIFIC PTE LTD ...PLAINTIFF (No. Syarikat: 199202000004 (993478-A)

MOHD FARIS BIN ISMAIL (berniaga di atas nama dan gaya Greenjingga Enterprise (No Pendaftaran Perniagaan: 201203241671(JM0635883-P)]

2.

AZAHARUDDIN BIN ALAODIN ...DEFENDANTS] 18/04/2022 21:42:31 Kand. 22 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 2 GROUNDS OF JUDGMENT Introduction [1] This was an appeal (“this Appeal”) against the decision of the learned Sessions Court Judge (“SCJ”) on 18 April 2021 in dismissing the Appellants’ application to set aside the judgment in default entered against them. For ease of reference the Appellants and Respondent will be referred to respectively as the Defendants and Plaintiff. The factual background [2] The First Defendant, who traded as and was the sole proprietor of Greenjingga Enterprise, entered into the following four agreements with the Plaintiff (“the Agreements”) for certain equipment and software (“the Equipment”): a) Rental agreement dated 12 September 2017 (“First Agreement”); b) Service Agreement dated 12 September 2017 (“Second Agreement”); c) Rental Agreement dated 7 November 2017 (“Third Agreement”); and d) Service Agreement dated 7 November 2017 (“Fourth Agreement”). [3] The Second Defendant, via a Continuing Guarantee and Indemnity agreement dated 28 August 2017, had guaranteed payment of all sum of monies and liabilities owed by the First Defendant in accordance with the First and Second Agreements, whilst the Second and Third 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 3 Defendants, via a Continuing Guarantee and Indemnity agreement dated 7 November 2017, had guaranteed payment of all sum of monies and liabilities owed by the First Defendant, in accordance with the Third and Fourth Agreements. [4] The First Defendant defaulted in rental payments, and the Plaintiff issued reminders that the Agreements would be terminated. No payment was forthcoming and as a result thereof, the Plaintiff issued notices and letters of demand, which the First Defendant had failed to comply with. The Plaintiff filed a claim against the Defendants on 10 August 2020 and since the Defendants had not entered an appearance, the Plaintiff filed its application for judgment in default (“JID”) on 9 September 2020. [5] The Plaintiff subsequently obtained JID against the Defendants. The Defendants’ application to set aside the JID was dismissed by the learned SCJ. As a result thereof, the Defendants filed an appeal to this Court, which was dismissed for the following reasons. Contentions, evaluation, and findings [6] The approach when considering an application set aside a judgment in default is, that the Court must first ascertain if the judgment in default was a regular or irregular one. If the judgment in default was an irregular one, it should be set aside ex debitio justitae. [7] However, if the judgment in default was regularly obtained, the Court then has to determine whether there was a defence on merits. In doing so, the delay in making the application to set aside is a factor to be 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 4 considered by the Court in deciding whether to grant or refuse the application. [8] This is trite law as was succinctly put by the Court of Appeal in Yap Ke Huat & Ors v. Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175. Whether the JID was regular [9] In the present case, in determining whether the JID was regular, this Court had to consider whether the writ of summons and statement of claim (“the Cause Papers”) were properly served on the Defendants. The Plaintiff claimed that the Cause Papers had been served by way of registered post on 18 August 2020 and were deemed served on 25 August 2020. It was not disputed that the addresses used by the Plaintiff as stipulated in the Agreements and the Continuing Guarantee and Indemnity agreements, were in fact the last known addresses of the Defendants, and service was effected in accordance with Clause 9 of the First and Third Agreements, and Clause 11 of the Second and Fourth Agreements, which read as follows: Clause 9 Both parties may effect service of any document (including legal) requiring personal service on the other party by leaving it at, or by sending it by registered post, to the other party’s last known address and shall be deemed served. Nothing herein shall affect either party’s right to serve legal process by any other manner permitted by law. Any notice so given shall be deemed to have been served Seven (7) days after the notice has been posted. 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 5 Clause11: Both parties may effect service of any document (including legal) requiring personal service on the other party by leaving it at, or by sending it by registered post, to the other party’s last known address and shall be deemed served. Nothing herein shall affect either party’s right to serve legal process by any other manner permitted by law. Any notice so given shall be deemed to have been served Seven (7) days after the notice has been posted. [Emphasis added] [10] The Defendants, in relying on Goh Teng Whoo v Ample Objectives [2021] MLJU 300 and Order 10 rule 1 of the Rules of Court 2012 (“Rules of Court”), claimed that the Cause Papers were not served personally and that they were received by one ‘Adip Nabiha’ unknown to the Defendants. Order 10 rule1 of the Rules of Court reads: Order 10 – Service of originating process: General provisions Rule 1 - General provisions

Subject to the provisions of any written law and these Rules, a writ shall be served personally on each defendant or sent to each defendant by prepaid A.R. registered post addressed to his last known address or by means of electronic communication in accordance with any practice direction issued for that purpose and in so far as is practicable, the first attempt at service must be made not later than one month from the date of issue of the writ. … [11] At the outset, I would like to state that I am mindful of the case of Goh Teng Whoo v Ample Objectives, where it was held by the Federal Court 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 6 that proof of posting only creates a presumption of service by virtue of section 12 of the Interpretation Acts 1948 and 1967, which reads: Section 12 – Service by post Where a written law authorises or requires a document to be served by post, then, until the contrary is proved, service-

shall be presumed to be effected by properly addressing, prepaying and posting by registered post a letter containing the document; and

shall be presumed to have been effected at the time when the letter would have been delivered in the ordinary course of the post. [12] In my view, the case of Goh Teng Whoo v Ample Objectives did not apply to the present case, as the latter dealt with service that was contractual, which attracted Order 10 rule 3(1) of the Rules of Court, which reads: Order 10 – Service of originating process: General provisions Rule 3 – Service of writ in pursuance of contract

Where-

a contract contains a term to the effect that the Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Court has jurisdiction to hear and determine any such action; and

the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner or at such place (whether within or out of the jurisdiction) as may be so specified, 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 7 then, if an action in respect of the contract is begun in the Court and the writ by which it is begun is served in accordance with the contract, the writ shall, subject to paragraph (2), be deemed to have been duly served on the defendant.

A notice of a writ which is served out of the jurisdiction in accordance with a contract shall not be deemed to have been duly served on the defendant in accordance with paragraph (1) unless leave to serve such notice out of the jurisdiction has been granted under Order 11, rule 1 or 2. [Emphasis added] [13] To support the contention that Order 10 rule 3 applied to the exclusion of Order 10 rule 1 of the Rules of Court, since the agreement between the parties had stipulated the type of service to be effected, the Court’s attention was drawn to a plethora of cases including Amanah Merchant Bank v Lim Tow Choon, TA Securities Bhd v Ng Yen Ling [2000] 3 MLJ 743, AMFinance Berhad (Pengganti Hakmilik Arab-Malaysia Finance Berhad) v Atlantic Ruby Sdn Bhd (454078-V) And Others [2005] MLJU 350, CIMB Bank Bhd v Comsa Layer Farms Sdn Bhd [2011] 2 MLJ 118. [14] In the present case, the Cause Papers had been served by way of registered post. As such, the Defendants’ contention that they had not received the Cause Papers as they had moved to new addresses cannot now be relied on as it would have been the Defendants’ obligation to inform the Plaintiff of the change in addresses. As that was not done, the Plaintiff’s service of the Cause Papers in accordance with the Agreements, was proper. There was, therefore, no obligation on the Plaintiff to establish that the recipient of the Cause Papers was 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 8 one of the Defendants. As such, the Defendants’ averment that the Cause Papers were received by an individual named “Adip Nabiha” was immaterial. Whether there was a defence on merits [15] Since the JID was regular, the subsequent issue that arose was whether there was a defence on merits. [16] In Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Bhd [1994] 1 CLJ 328, the meaning of defence on merits was expounded by the former Supreme Court, through Haji Mohd Jemuri bin Serjan CJ (Borneo), in the following passage: To use common and plain language, the applicant must show that his defence is not a sham defence but one that is prima facie, raising serious issues as bona fide reasonable defence that ought to be tried because obviously if the defence is a sham defence there is no defence and the application must fail. It can hardly be emphasised that in order for the Court to arrive at a decision that the defence has merits it must perforce make a reasoned assessment of the justice of the case by forming a professional view of the probable outcome of the case, but this is stating the obvious. It involves a mental process that goes through the mind of a Judge when making a decision in any case, weighing the evidence of a litigant against that of another on the facts alleged by a party against those of the other before finally coming to a decision. [Emphasis added] [17] The Defendants’ defence pivoted on their dissatisfaction over the length of time taken by the Plaintiff to service and repair the Equipment, as expressed in the First Defendant’s email dated 9 August 2018. 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 9 [18] In my view, although such dissatisfaction was expressed, in a further email dated 29 March 2019, the First Defendant had clearly admitted their debt to the Plaintiff, and had even presented a payment schedule for the outstanding rental payments owing to the Plaintiff. [19] This email, in my view, was clearly an admission of the payments due to the Plaintiff, and as such, is relevant and admissible by virtue of section 21 of the Evidence Act 1950 ("the Evidence Act"), which reads: Section 21 – Proof of admissions against persons making them and by or on their behalf Admissions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest except in the following cases: [20] Since the admission made by the First Defendant was made in March 2019, after the First Defendant had expressed its dissatisfaction over the service of the Equipment, the email containing the admission had prevailed. Furthermore, there were no conditions attached to such admission. In fact, the Plaintiff’s contention was fortified by the First Defendant’s attempt to settle the outstanding amount by proposing instalment payments and proceeding to make part payment. The irresistible conclusion, therefore, was that the First Defendant’s denial of the debt owing was an afterthought. [21] As such, there was no basis for any purported defence put forward by the Defendants. 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 10 Conclusion [22] In the upshot, therefore, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, including the written and oral submissions of both parties, and the grounds of judgment of the learned SCJ, this Appeal was dismissed with costs. Dated: 18 April 2022 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Appellants/ Defendants – Hari Prassaad Rao; Messrs Chandra Segaran For the Respondent/ Plaintiff – Danielle Devina; Messrs Skrine 18 April 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 11 Cases referred to: ➢ Amanah Merchant Bank v Lim Tow Choon [2000] 3 MLJ 743 ➢ AMFinance Berhad (Pengganti Hakmilik Arab-Malaysia Finance Berhad) v Atlantic Ruby Sdn Bhd (454078-V) And Others [2005] MLJU 350 ➢ CIMB Bank Bhd v Comsa Layer Farms Sdn Bhd [2011] 2 MLJ 118 ➢ Goh Teng Whoo v Ample Objectives [2021] MLJU 300 ➢ Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Bhd [1994] 1 CLJ 328 ➢ TA Securities Bhd v Ng Yen Ling [2000] 3 MLJ 743 ➢ Yap Ke Huat & Ors v. Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175 Legislation referred to: ➢ Evidence Act 1950 – section 21 ➢ Interpretation Acts 1948 and 1967 – section 12 ➢ Rules of Court 2012 – Order 10 rules 1 and 3