Plot and Parcel Group Berhad v Rahimah Binti Jaafar (BA-12A-59-12/2024)

KST LAND SDN. BHD.

PLOT AND PARCEL GROUP BERHAD

MOHD SHAHRIL BIN SABRAWI

THENG BOON CHENG @ TAN BOON CHENG

MOHD HAMIRUL AZAD BIN MOHD HANIFFA (NO. K/P: 860623-56-6335) …PERAYU-PERAYU DAN RAHIMAH BINTI JAAFAR (NO. K/P: 480525-08-5242) …RESPONDEN [Dalam Mahkamah Sesyen Di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman No. BA-A53-15-08/2022 Antara Rahimah Binti Jaafar (No. K/P: 480525-08-5242) …Plaintif

KST Land Sdn. Bhd. (No. Pendaftaran Syarikat: 201501010399)

Plot And Parcel Group Berhad (No. Pendaftaran Syarikat: 201901027047(1336374 -X)

Mohd Shahril Bin Sabrawi (No. K/P: 791220-14-5433)

Theng Boon Cheng @ Tan Boon Cheng (No. K/P: 581010-10-5753)

Mohd Hamirul Azad Bin Mohd Haniffa (No. K/P: 860623-56-6335) …Defendan-Defendan]

By way of a Notice of Appeal dated 9 December 2024, the 1st and 2nd Appellants (who were the 2nd and 5th Defendants in the Sessions Court, respectively) appealed to this Court against the decision of the learned Sessions Court Judge dated 27 November 2024, which dismissed their applications to set aside two Judgments in Default entered against them by the Respondent (the Plaintiff in the Sessions Court) on 3 November 2022 and 30 January 2023, respectively.

The appeal centres on the following three issues: • Whether the JIDs entered against the 1st and 2nd Appellants were regular or irregular; • If regular, whether the 1st and 2nd Appellants have disclosed a defence on the merits; and • Whether there was inordinate delay in applying to set aside the JIDs.

In order to provide clarity and a better understanding of the issues under consideration, it is necessary to set out the chronology of events that took place in the Sessions Court. The sequence of events was as follows:

09.08.2022 The Plaintiff (Respondent in the present appeal) filed a suit against 5 Defendants (which both Appellants were part of) at the Sessions Court.

19.08.2022 Service of the Amended Writ of Summon and Statement of Claim on the 1st Appellant was made via AR Registered Post.

07.12.2022 Service of the Amended Writ of Summons and Statement of Claim on the 2nd Appellant was effected by way of substituted service.

03.11.2022 Respondent obtained Judgement in Default of Appearance against the 1st Appellant.

30.01.2023 Respondent obtained Judgement in Default of Appearance against the 2nd Appellant.

14.03.2023 Respondent executed an ex-parte Garnishee proceeding.

30.03.2023 The Garnishee Order to Show Cause was recorded against the Appellants' accounts, and this was not challenged by the Appellants.

19.05.2023 The Garnishee Order Absolute was recorded against the Appellants, leading to sums of of RM247.28 and RM57.88 for First Appellant, and RM34,600.60 for the Second Appellant being garnished.

31.01.2024 Appellants filed the Setting Aside Application.

25.10.2024 The Sessions Court dismissed the Appellants’ application with costs of

09.12.2024 Appellants filed Notice of Appeal, leading to the present appeal.

The primary provisions of the Rules of Court 2012 that are relevant for purposes of this appeal are Order 10 rule 1(1), Order 13 rule 8, Order 42 rule 13 and Order 62 rules 4 and 5.

Order 10 rule 1(1) of the Rules of Court 2012 is the general provision that governs service of an Originating Process. It provides as follows: General provisions (O. 10, r. 1)

1.

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.

Order 62 rules 4 and 5 of the Rules of Court 2012 deal with service on corporations and substituted service respectively. The relevant provisions read as follows: Service on corporation (O 62 r 4)

4.

Where an action is against a corporation, the writ may be served—

by leaving a copy of it at the registered office (if any) of the corporation;

by sending a copy of it by registered post addressed to the corporation at the office, or, if there are more offices than one at the principal office of the corporation, whether such office is situated within Malaysia or elsewhere;

by handing a copy of it to the secretary or to any director or other officer of the corporation; or

in the case of a foreign company registered under Part XI of the Companies Act 1965 [Act 125] by handing a copy of it to, or sending the same by registered post to, a person authorized to accept service of process on behalf of the foreign company.

The rule does not restrict the operation of the provisions of any written law as to service on any particular person or authority.

Where service is effected under this rule, the person served shall be entitled on demand to inspect the original writ. Substituted service (O 62 r 5)

If, in the case of any document which in accordance with these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 133 for substituted service of that document.

An application for an order for substituted service shall be made by notice of application supported by an affidavit in Form 134 stating the facts on which the application is founded.

A substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.

Order 13 rule 8 of the Rules of Court 2012 confers the discretion on a court to set aside or vary any judgment entered in pursuance of a default of appearance under Order 13. It provides that: Setting aside judgment (O. 13, r. 8)

The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. and Order 42 rule 13 states that: Setting aside or varying judgment and orders (O. 42, r. 13)

Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.

The provisions referred to above have been considered, interpreted, and applied in numerous decisions. Several of these authorities have been relied upon by the parties in the present appeal.

The legal principles governing the service of documents and the setting aside of judgments entered in default are settled and well-established. Accordingly, it is unnecessary to restate them in detail in this judgment.

This Court has approached the present appeal by way of a re-hearing, as required under Order 55 rule 2 of the Rules of Court 2012.

In so doing, this Court has undertaken a fresh and independent evaluation of the evidence, considered the written and oral submissions of all parties, and analysed the relevant provisions of the Rules of Court 2012, alongside the applicable legal principles and judicial authorities cited.

For the purposes of this appeal, the Court has examined the following cause papers: No.

Notice of Appeal dated 9.12.2024 1

Record of Appeal Volume 2 (Part C) 2

Record of Appeal Volume 1 (Parts A and B) 3

Supplementary Record of Appeal (Grounds of Judgment) 4

Appellants' Notice of Application 5

Appellants’ Supporting Affidavit (Volume 5) 6

Supplementary Record of Appeal Volume 1 (Parts A, B and C) 7

Supplementary Record of Appeal Volume 2 (Part C) 8

Appellants’ Written Submissions & Bundle of Authorities (Volume 1) 10 & 15

Respondent’s Written Submissions & Bundle of Authorities (Volume 1) 11 & 12

Respondent’s Affidavit in Reply (Volume 5) 14

Respondent’s Reply Submissions & Authorities (Volume 1) 16 & 17

Appellants’ Reply Submissions & Authorities (Volume 1) 18 & 21

Appellants’ Reply Affidavit (Volume 5) 20

Respondent’s Further Written Submissions & Authorities (Volume 5) 22 & 23

Appellants’ Further Written Submissions & Authorities (Volume 5) 24 & 25

Respondent’s Further Reply Submissions & Authorities (Volume 5) 26 & 27

Appellants’ Further Reply Submissions (Volume 5) 28

Supplementary Record of Appeal (Sale and Purchase Agreement) 32

On the first issue of whether the judgments in default entered against the 1st and 2nd Appellants were regular or irregular, this Court considered the competing arguments concerning service of the Amended Writ and Statement of Claim. The Appellants contended that service had not been properly effected, whereas the Respondent asserted compliance with the Rules.

Upon examining the relevant cause papers, this Court is satisfied that service of the Amended Writ and Statement of Claim upon the 1st and 2nd Appellants was duly effected in accordance with Order 10 rule 1(1) and Order 62 rule 5 of the Rules of Court 2012.

Consequently, in failing to enter appearance within the prescribed time, the judgments in default entered against the 1st and 2nd Appellants on 3 November, 2022 and 30 January, 2023 respectively were regular.

While Order 13 rule 8 of the Rules of Court 2012 empowers the Court to set aside or vary a judgment entered in default of appearance, such discretion is conditioned upon the Appellants demonstrating a defence on the merits.

The Appellants have raised several issues, including: a) Whether the 2nd and 5th Defendants (1st and 2nd Appellants herein) received any monies whatsoever from the Respondent; b) Whether they sold any land to the Respondent; c) Whether the Respondent has sued the wrong parties in seeking the return of RM148,000.00 paid to KST Land Sdn Bhd and its director; d) Whether the Respondent had instructed the construction of her house at Lot 14, 15, and 16, Lorong Bidan Saunah, Kuang, via a letter dated 10.03.2020; e) Whether the 2nd and 5th Defendants committed fraud or misrepresentation; f) Whether the letter dated 10 March, 2020 superseded the earlier letter dated 2 October, 2019; g) Whether the 2nd and 5th Defendants are entitled to a counterclaim for construction works allegedly instructed by the Respondent; h) Whether the letter dated 10 March, 2020 constitutes the final agreement between the parties; and i) Whether the 2nd and 5th Defendants are entitled to damages following the Respondent’s unilateral instruction to halt construction. The Appellants contended that these issues amount to a defence on the merits.

The Respondent, in turn, vigorously disputed these contentions and argued, inter alia, that the 2nd Appellant was guilty of misrepresentation and was, at all material times, acting as an agent of KST Land Sdn Bhd, the 1st Defendant in the Sessions Court proceedings. She further alleged that the Appellants had acknowledged their obligation to refund the RM148,000 to her.

In support of her position, the Respondent relied on the following provisions of the Contracts Act 1950: section 18 (misrepresentation), section 135 (definitions of “agent” and “principal”), section 186 (liability of agent personally), and section 191 (effect of fraud or misrepresentation by agent), in addition to case law interpreting and applying these provisions.

Having considered the parties’ arguments and the Sale and Purchase Agreement adduced by the Appellants, this Court is satisfied that the Appellants have raised triable issues which amount to a defence on the merits.

Nevertheless, one final issue warrants further scrutiny.

Order 42 rule 13 of the Rules of Court 2012 requires that any application to set aside or vary a judgment must be made and served on the party who obtained the judgment within thirty (30) days from the date the applicant received the judgment.

It is clear that the Appellants failed to comply with this mandatory procedural requirement.

While this Court may, in appropriate circumstances, exercise its discretion to extend the time prescribed under Order 42 rule 13, no sufficient justification has been shown in the present case to warrant such indulgence.

It bears emphasis that the Appellants only sought to set aside the default judgments approximately sixteen (16) months after they were entered.

It is not uncommon for a judgment debtor to become active only upon commencement of execution proceedings.

In this case, although garnishee proceedings had been initiated, the Appellants took no steps. Indeed, they remained inactive for a further eight (8) months after their accounts had been garnished.

This delay is, in the Court’s view, excessive and unacceptable. To tolerate such delay would render the mandate in Order 42 rule 13 meaningless and undermine the proper administration of civil justice.

This Court also finds unconvincing the explanations tendered by the Appellants in paragraph 21 of their Affidavit-in-Reply, which read as follows:

Sebagai jawapan kepada Perenggan 22 sehingga 34 Afidavit tersebut dan saya dinasihatkan bahawa D2 dan saya tidak dapat membela kes kami mengikut aturan Mahkamah atas alasan tidak disengajakan iaitu:

D2 dan saya telah terlepas pandang dan tidak menyedari tindakan guaman ini atas faktor perniagaan kerana kami lebih fokus kepada penyelesaian projek pemajuan tanah-tanah lot yang sedang dibuka di kawasan lain;

Writ dan Tuntutan tidak dihantar secara kediri kepada saya sedangkan Plaintif memiliki nombor telefon bimbit saya untuk dihubungi dan boleh juga dihantar secara whatsapp;

Kami hanya mengetahui dan menyedari tindakan guaman ke atas kami oleh Plaintif apabila akaun kami digarnis oleh Plaintif;

Sejak dari akaun digarnis kami dalam proses melantik peguamcara dan

Saya juga terlepas pandang kerana masalah kesihatan iaitu saya mengalami rubber band stress yang menyebabkan kesakitan di kepada apabila berfikir terlalu banyak.

Equally unpersuasive were the Appellants’ arguments that:

tiada siapa yang mengalami prejudis kerana kelewatan defendan;

sebagai alternatif, jika prejudis itu telah berterusan, ia boleh dipenuhi dengan perintah yang sesuai mengenai kos; atau

membiarkan penghakiman itu berdiri akan menjadi penindasan.

In light of the foregoing, the appeal is dismissed with costs.

The Appellants are ordered to pay costs of RM8,000.00 to the Respondent. Dated: 29 July, 2025 sgd (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the 2nd and 5th Appellants : Mohd Khairul Zaman bin Ahmad Tajuddin (Messrs. Raja Ismail & Amril Ghazaly) (Other Appellants have not appealed) For the Respondent : Ahmad Hafiz bin Zubir Muhammad Amir Firdaus bin Sobri (Messrs. Hafiz Zubir & Co.)