Chengaljati Sdn Bhd v 1. Turnpike Synergy Sdn Bhd (DA-22NCVC-19-03/2019)

MOHAMMAD AZLAN BIN ABDULLAH DEFENDAN JUDGMENT 2 [1] Before me is an application filed by the plaintiff herein, Chengaljati Sdn Bhd, to seek leave to enter a judgment in default against the 1st, 2nd, 3rd and 5th defendants herein. The application, which is in Encl 12, is supported by the affidavit of Ir Shaari bin Hassan, which is in Encl 13, affirmed on17.42019. [2] The background fact that as pleaded by the plaintiff is this. The plaintiff has taken out a writ and statement of claim (“SOC”) against seeking inter alia for a declaration against the 1st and 5th defendants for an alleged wrongful termination of a construction contract. The contract, known as “Projek Pengswastaan Lebuhraya Bertingkat Sungai Besi – Ulu Kelang Package SUKE-CA1- Construction and Completion of Mainline and Other Associated Works From CH.0 To Ch 2400” was awarded to the plaintiff for the sum of RM417,888,888.00 (“the said project”). [3] The Letter of Acceptance made between the plaintiff and the 1st defendant and dated 24.2.2017 in effect had appointed the plaintiff as the main contractor for the said project. The 2nd defendant is the concessionaire of the concession known as Projek Penswastaan Lebuhraya Bertingkat Sungai Besi-Ulu Kelang. The 3rd defendant is the superintending officer to the 1st defendant in respect of the said project. The 5th defendant was also purportedly the superintending officer of the 1st defendant. [4] It is the plaintiff’s case that the said project, which was in the midst of construction was wrongfully terminated by the 1st defendant at 3 the instance of the 4th defendant, who was the consultant of the said project, on 21.8.2018. [5] The termination of the said project was according to the plaintiff, premised on the purported allegation that the plaintiff had stopped works at the site for 30 consecutive days. The allegation was vehemently denied by the plaintiff. [6] It is also the plaintiff’s pleaded case that the termination letter was signed by the 5th defendant purportedly as the superintending officer of the said project. The plaintiff’s position is that the 5th defendant was never an authorised superintending officer within the meaning of cl 4.1(b) of the conditions of contract since the 5th defendant was never named therein. [7] The plaintiff therefore sought inter alia for the reliefs as for follows:

A declaration that the said project was wrongfully terminated by the 1st and 5th defendants;

A further declaration that the performance bond in respect of the said project for the sum of RM20,894,444.40 be returned to the plaintiff;

The 1st and 2nd defendants jointly and severally pay to the plaintiff the outstanding sum of RM30,372,800 still owed to the plaintiff in relation to the said project; and 4

The 1st and 2nd defendants do pay the plaintiff the sum of RM7,606,774.74 being the return of the retention sum still owed to the plaintiff. The Application for the Judgment in Default [8] At the outset, let me make it very clear that the first two prayers sought by the plaintiff in this application are in the form of declaratory reliefs. Under O 13 r 6(1) of the Rules of Court 2012 (“ROC”), the plaintiff would be precluded from entering judgment in default of appearance against the defendant and would be, notwithstanding the non-appearance (assuming for one moment there is no such appearance). The plaintiff is required to proceed with the action as if the defendants had entered an appearance; see Taman Pangkor Sdn Bhd v Doric Development Sdn Bhd [1987] CLJ Rep 1008. [9] In the circumstances, if at all, this court will only consider the claims made in respect of the liquidated sum in respect of the outstanding sum and the return of the retention sum within the meaning of O 13 r 1 of the ROC. In Mahindar Singh v Amanah Saham Pahang Bhd & Anor [1984] 2 CLJ Rep 205, it was held that a liquidated demand is in the nature of a debt, i.e. a specific sum of money due and payable under or by virtue of a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. 5 [10] The application herein does not involve the 4th defendant. The 4th defendant had entered the Memorandum of Appearance (“MOA”) within the time stipulated. [11] The brief facts that lead to the application in Encl 12 are these. The writ and SOC were served on the 1st, 2nd, 3rd, and 5th defendants (collectively referred to as “the respective defendants”) on 27.3.2019. According to the 1st, 2nd, 3rd and 5th defendants, they had entered appearance on 12.4.2019 which within the 14-day period provided for under O 12 r 4 of the ROC. The plaintiff however contended that they were only served with the MOA of the respective defendants on 17.4.2019. [12] But there is a slight problem with this contention. When the respective defendants had filed in the MOA on 12.4.2019 in Encl 6, the fees paid to the court’s registry were short of RM60.00. This prompted the Deputy Registrar to issue a Notis Pemberitahuan Fi Pemfailan Yang Tidak Mencukupi dated 14.4.2019 (the “said Notice”). The said Notice, which is in Encl 11 reads inter alia as follows: Dengan hormatnya dimaklumkan bahawa pembayaran fi tersebut di atas yang telah dibuat oleh pihak Tuan/Puan pada 12 April 2019 melalui resit nombor DA1319016893 adalah tidak mencukupi.

Oleh itu, berdasarkan Aturan 92 Kaedah 2A, Kaedah-Kaedah Mahkamah 2012, mohon puhak Tuan/Puan membuat bayaran tambahan sebagai yang ditetapkan di 6 atas dalam tempoh tujuh (7) hari dari tarikh Notis ini diberikan. Sekiranya gagal, dokumen tersebut tidak akan diluluskan. [13] The respective defendants, realising the said omission, had then made the payment of RM60.00 on 24.4.2019 as can be seen in Encl 14 which is beyond the 7-day period stipulated in the said Notice. Technically, the Deputy Registrar should not have approved the MOA. In the circumstances, the MOA of the respective defendants are not before the Court. [14] The proper procedure, in my opinion, would for the respective defendants to make an application under O 63A r 9 of the ROC for the MOA be amended to reflect such earlier date and time, and that earlier date and time shall be deemed for all purposes to be the date and time on and at which the MOA was filed. Unfortunately there was no such application and in my opinion the MOA stands unfiled and I so hold. [15] In the absence of such an order by the Deputy Registrar to regularise the MOA and treat it as if it was filed on 12.4.2019, the only avenue open to the respective defendants was to file an application for an extension of time to enter the MOA. [16] O 12 r 5(2) of the ROC provides as follows: Except as provided by paragraph (1), nothing in these Rules or any writ or order thereunder shall be construed as precluding a defendant from entering an appearance in an 7 action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time. My understanding of the rule is that, once the time limit has expired, a defendant may not enter appearance without the leave of the Court which can only be obtained by a proper application for the extension of time under O 3 r 5 of the ROC. If any authority is needed for the aforesaid proposition, it can be seen in the case of Abdul Rahim Ponniah bin Abdullah v Kulim Intensive Driving Centre Sdn Bhd [2000] 6 MLJ 584. In that case, the plaintiff was a member of the defendant company. Despite numerous requests from the plaintiff, the defendant failed to furnish its loss and profit accounts and financial statements to its AGM. The plaintiff then filed a suit against the defendant. The defendant failed to file its appearance and statement of defence. Subsequently, the plaintiff applied for an order that default judgment be entered against the defendant. The defendant filed an application for leave and extension of time to file their appearance, statement of defence and affidavit in reply to the plaintiff's application. Alauddin J (as the former PCA then was) made the following observation: From the above it would appear that the defendant had failed to follow the procedure as provided for by the RHC. It follows therefore that it is precluded from filing its appearance and statement of defence, except, with leave of court. 8 [17] In the instant case, there was no application made under O 63A r 9 of the ROC. Neither was there any application to extend the time to file the MOA in order to regularise the matter under O 3 r 5. [18] There is, therefore, no MOA before the Court. I am constrained therefore to allow the judgment in default for the liquidated sum specified against the 1st and 2nd defendants as follows:

The 1st and 2nd defendants jointly and severally pay to the plaintiff the outstanding sum of RM30,372,800 owed to the plaintiff in relation to the said project; and

The 1st and 2nd defendants do pay the plaintiff the sum of RM7,606,774.74 being the return of the retention sum still owed to the plaintiff. In view of O 13 r 6(1) of the ROC, there shall no order on the unliquidated claims against the respective defendants including the general damages sought in respect of the alleged tort of conspiracy and unjust enrichment. [19] I am granting liberty to apply and costs fixed at RM3,000 subject to allocatur. 9 Tarikh: 21 Julai 2019. (DATO’ WAN AHMAD FARID BIN WAN SALLEH) Pesuruhjaya Kehakiman Mahkamah Tinggi Kota Bharu.