Berjaya Waterfront Sdn. Bhd. v Anchor Pub Sdn. Bhd. (JA-22NCvC-165-10/2022)

ANCHOR PUB SDN. BHD. (No. Syarikat: 1294175-W)

NALLATHAMBI A/L SUPPIAN (No. K/P: 640728-01-6271)

S RAMAYAH A/L N SUPPIAH (No. K/P: 681204-01-5025) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 24) [1] This is an appeal arising from the decision of this Court in dismissing the 3rd Defendant’s application in enclosure 24 to set aside the Judgment in Default of Defense (JIDD) ordered by the High Court on 11.4.2023, pursuant to O13 R8 of Rules of Court 2012. 06/02/2025 17:09:52 JA-22NCvC-165-10/2022 Kand. 49 [2] The JIDD was ordered by this Court on perusing the application filed by the Plaintiff (enclosure 8), having served on the 3rd Defendant the cause papers comprising of the Writ and the Statement of Claim, by A.R. Registered post and returned with acknowledgment of receipt on 7.11.2022 as per the affidavit of service in enclosure 15 enclosing exhibit “CZN’-1” proof of service by way of acknowledgment of receipt of A.R card. The 3rd Defendant had entered appearance in enclosure 4 dated 30.11.2022 and was in attendance physically before the Senior Assistant Registrar (SAR) of Court on 30.11.2022 itself, but had both failed to file the statement of defence by 21.11.2022 (calculated 14 days from 7.11.2022) or the next date given by SAR to be 12.12.2022. The 3rd Defendant in fact failed to appear on the subsequent next date 12.12.2022. [3] The Plaintiff, rightly so by way of enclosure 8 filed on 17.1.2023 sought for a Judgement in Default of Defence be entered against the 3rd Defendant. The said enclosure 8 similarly served on the 3rd Defendant on the address of service as per enclosure 5 at Block 2-1-03, Apartment Desa Kempas, Jalan Desa Kempas 1, Johor Bahru by way of A.R Registered post with proof of posting annexed (see: affidavit of service enclosure 15). [4] The proof of service by way of A.R. Card exhibit “P5” as acknowledgment of receipt of service of enclosure 8 was filed by the Plaintiff in the Plaintiff’s affidavit of reply enclosure 28. Enclosure 28 was filed later than the affidavit of service enclosure 15. The delay arose due to no fault of the Plaintiff as based on enclosure 28, POS Malaysia’s website was experiencing upgrading that disrupted tracking. [5] With the 3rd Defendant failing to make any attempt to show any interest to appear on the other mention dates fixed by Court after the 30.11.2022 when the 3rd Defendant first made his physical appearance before the Court, added with proof of proper service of enclosure 8 properly accounted for, the 3rd Defendant had not filed any reply to challenge enclosure 8. [6] Even if service of enclosure 8 be considered as bad service as it was served only on 14.2.2023 after the event 8.2.2023, the JIDD order was only obtained on 11.4.2023. The 3rd Defendant had failed to demonstrate any effort to challenge enclosure 8 by filing an application to set it aside, by filing it at a convenient speed. [7] As to enclosure 8, it was then fixed before the Judge and a JIDD was pronounced by the Judge on 11.4.2023 with the following order as per the reliefs sought in the Writ and Statement of Claim of the Plaintiff being payment of a sum of money and delivery of vacant possession of a premise known as D6, Fun Zon, Berjaya Waterfront Complex of No. 88 Jalan Ibrahim Sultan, Stulang Laut, Johor Bahru. [8] The JIDD was served on the 3rd Defendant via a letter dated 19.4.2023 sent to the same address as above with proof of posting dated 26.4.2023 in exhibit “P1” to enclosure 28. The application to set aside the JIDD in enclosure 24 however, was only filed by the 3rd Defendant on 20.2.2024. [9] The 3rd Defendant’s reasons to set aside the JIDD can summarily be gathered as follows: a) The order to be irregularly obtained; b) The 3rd Defendant was not notified of the hearing date of enclosure 8 being 11.4.2023; c) The said JIDD was not served on the 3rd Defendant; d) The 3rd Defendant’s defence is with merits. The law on setting aside JIDD [10] Cases challenging the JID order are plenty and inevitably would relate to the fundamental issue of service of the cause papers by the Plaintiff on the Defendant. Both parties in this present appeal, had put forward case authorities addressing this issue. This Court can do no better than refer to the case of Tuan Haji Ahmed Abdul Rahman v Arab Malaysian-Finance Berhad (1996) 1 MLJ 30 (Federal Court) where Edgar Joseph Jr FCJ held as follows: “It is elementary that an irregular judgment is one which has been entered otherwise than in strict compliance with the rules or some statute or is entered as a result of some impropriety which is considered to be so serious as to render the proceedings a nullity”. [11] Similarly, the case of Syarikat Joo Seng & Anor v. Habib Bank Ltd. (1986) 2 MLJ 129 (Supreme Court). In both these cases, the irregularity arising in these cases was said to be failure by the Respondent to obtain leave, respectively under O19 r7(1) and O83 r4(1) of the Rules of the High Court 1980 for leave of the court to enter JID, which is not the case in this present appeal. [12] This Court is of the view that service by way of A.R. Registered Post on the 3rd Defendant is regular and proper as the 3rd Defendant had appeared before the Court on the first date 30.11.2022. There was a breach by the 3rd Defendant to comply with the direction by the SAR to file the Statement of Defence by the 12.12.2022. The 3rd Defendant was also notified of the next hearing date of enclosure 8 via a letter dated 26.3.2023 by the Plaintiff’s counsel with proof of posting exhibit “CZN1” and “CZN2” of enclosure 29. The 3rd Defendant had also appeared in the bankruptcy proceeding initiated by the Plaintiff to enforce the JIDD order when the 3rd Defendant opted to contest it by filing an affidavit opposing the bankruptcy petition. [13] As to the filing of enclosure 24 to set aside the JIDD, to answer this, it is important to note that it appears that the 3rd Defendant had chosen to be selective as to when he felt necessary to appear and when it is not. This explains why he decided to appear on the first date but ignored the direction to file the Statement of Defence, then went into hibernation until finally he resurfaced at the later stage of the enforcement proceeding. [14] It must be noted that it is the Plaintiff’s interest to recover the sum due and the delivery of vacant possession of the said premise. It would not do any good by not complying with the requirement of the Rules of Court 2012 (the “Rules”) that would render the JIDD null and void. The 3rd Defendant had not challenged the suit in a regular way by filing a Statement of Defence nor a proper appearance before the Court apart from filing the memo of appearance within the prescribed rules but yet the 3rd Defendant failed to appear subsequently. [15] Therefore enclosure 24 was irregularly filed amounting to an illegality for breach of the Rules of Court, as the leave to file was sought simultaneously with the setting aside application but without any explanation as to why there was omission to file the Statement of Defence till the date enclosure 8 was filed. There was also no satisfactory explanation (if at all) for the delay of 10 months in filing enclosure 24, contrary to O42 r13 of the Rules.1 Hence to say the JIDD was irregularly obtained is incorrect as there is nothing before this Court to move this Court to revisit the pronouncement of the JIDD order. [16] In any event, the act of the 3rd Defendant by going missing from the proceeding and had failed to file the Statement of Defence, goes contrary to the 3rd Defendant’s contention that the Defendants have a meritorious defence. This Court agrees with the authorities cited by counsel for the Plaintiff as follows: “MICROSOFT CORP v. PC HOUSE (IMBI) SDN BHD [1998] 6 MLJ 402 specifically at page 85 wherein YA Steve Shim J held: “Clearly, the principles upon which a court need to apply in an application for judgment in default of defence are much the same as those relating to the setting aside of a default judgment. This was what Lord Denning MR said in Wallersteiner: … A judge in chambers has a discretion which he will exercise on the same lines as he will set aside a judgment in default. 1 “13. 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. He will require the party to show that he has a good defence on the merits. This is time-hallowed phrase going back for a hundred years: see Watt v Barnett (1878) 3 QBD 363; Farden v Richter (1889) 23 QBD 124 at 130. It has been explained by Lord Atkin as meaning that the applicant would produce to the court evidence that he has a prima facie defence (see Evans v Bartlam [1937] 2 All ER 646 at p 650). The applicant must produce evidence by affidavit showing that he has such a defence.” [17] The Plaintiff further refers to the following authorities: “HASIL BUMI PERUMAHAN SDN. BHD. & 5 ORS. v. UNITED MALAYAN BANKING BHD. [1994] 1 CLJ 328 specifically at page 94 wherein YAA Haji Mohd Jemuri bin Serjan CJ (Borneo) held: “In our view, in order to succeed in his application under these Orders the applicant must show that he has a defence which have some merits and which the Court should try. 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.” [18] By the fact that the 3rd Defendant had failed to oppose enclosure 8 despite it was served and the next date of the hearing made known, even if enclosure 8 was irregular, it had not prejudiced the 3rd Defendant as the Plaintiff had maintained the relevant order against the 3rd Defendant is for the sum of money. There was nothing before this Court to alter the pronouncement of the JIDD. For all these reasons, this Court dismissed enclosure 24, the JIDD being regular and the Defendant’s claim without merits. Signed (NURULHUDA NUR’AINI BTE MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 31.01.2025 COUNSEL For the Plaintiffs: Dhiren Norendra (Nur Qamarynna Kamarudin with him) Messrs. Norendra & Yap No. 1 Jln. Tempinis 1 Lucky Garden, Bangsar 59100 Kuala Lumpur For the 3rd Defendant: Rajagunaseelan a/l Padmanaban