D-Safe Force Sdn Bhd v Lai Woon Fatt (JA-12ANCvC-30-12/2023)

LAI WOON FATT (NRIC No. 810605-05-5333)

WONG SIN YEEN (NRIC No.810125-05-5174) … RESPONDENTS [IN THE SESSIONS COURT OF JOHOR BAHRU IN THE STATE OF JOHOR BAHRU DARUL TAKZIM, MALAYSIA CIVIL CASE NO. JA-B52NCVC-133-12/2020]

LAI WOON FATT (NRIC No. 810605-05-5333)

WONG SIN YEEN (NRIC No.810125-05-5174) … PLAINTIFFS D-SAFE FORCE SDN. BHD. (Company No. :200901038422/881554-A) … DEFENDANT MUHAMAD YUSAIMI BIN ABDUL HAMID (NRIC No. 920520-02-6383) …THIRD PARTY KENSINGTON STRATA MANAGEMENT SDN. BHD. (COMPANY No: 848181-D) …THIRD PARTY 27/03/2026 21:28:41 JA-12ANCvC-30-12/2023 Kand. 27 S/N fFod9TFqIUzT1usPigMaw GROUNDS OF JUDGMENT

This is an appeal by the Appellant against the decision of the learned Sessions Court Judge (“SCJ”) dated 18.12.2023 who dismissed the Appellant’s application to set aside the judgment dated 29.08.2023 obtained after full trial.

Having read the grounds of judgment of SCJ, Appeal Records, written submissions of both Parties and after having heard oral submissions of both Parties, I have dismissed the Appellant’s appeal with costs of RM5,000.00 to be paid by the Appellant to the Respondents within fourteen (14) days of this Order.

Below are my grounds of the decision.

The background facts in this application are gathered from the cause papers and submissions of the Parties.

The Appellant engages in the provision of security and/or security services and possessed multiple branches in Malaysia.

On 08.01.2020, one of the branches of the Appellant was appointed by Kensington Strata Management Sdn. Bhd. (the “Manager”), acting in the capacity as the Manager of Persatuan Pemilik Rumah Bina Park, to render security services with the Bina Park housing area. S/N fFod9TFqIUzT1usPigMaw

The Respondents commenced a civil action against the Appellant arising from alleged losses suffered following a break-in incident on 05.08.2020 at their property. The Respondents claimed an amount of RM528,124.45 from the Appellant.

The matter proceeded to full trial on 26.07.2023 in the Sessions Court of Johor Bahru. The Appellant was unrepresented and did not call any witnesses.

The SCJ refused the Appellant’s request for adjournment and proceeded with the trial on 26.07.2023 under Order 35 subrule 1(2) of Rules of Court 2012 (“ROC 2012”).

Judgment was delivered on 29.08.2023 in favour of the Respondents and awarded for the sum of RM393,383.45 being special damages, RM50,000.00 being general damages, RM20,000.00 being aggravated damages and costs of RM15,000.00.

The Appellant subsequently filed an appeal against the said decision on 13.03.2023 (the “First Appeal”) and the appeal was dismissed by the High Court No.4 of Johor Bahru on 18.03.2024.

On 02.10.2023, the Appellant filed an application to set aside the said judgment pursuant to Order 35 Rule 2 of ROC 2012, which was dismissed by SCJ on 18.12.2023.

Aggrieved by the said decision, the Appellant filed an appeal to this Court. S/N fFod9TFqIUzT1usPigMaw

ISSUES TO BE DETERMINED The primary issues before this Court are as follows:

whether the Appellant had shown sufficient cause to justify setting aside the judgment obtained after full trial; and

whether the Appellant had demonstrated a meritorious defence. COURT ANALYSIS AND FINDINGS

whether the Appellant had shown sufficient cause to justify setting aside the judgment obtained after full trial

The application filed by the Appellant to set aside the judgement dated 18.12.2023 is pursuant to Order 32 rule 2 of ROC 2012.

Order 35 Rule 2 of the ROC 2012 confers discretion upon the Court to set aside a judgment entered after trial in the absence of a party.

In exercising such discretion, the Court is required to consider, inter alia—

the reason for the absence;

whether the absence was deliberate;

the promptness of the application; and

whether there exists a defence on merits.

It is undisputed that the Appellant did not call any witnesses at trial on 26.07.2023 and was unrepresented at the material time.

The Appellant contends that such absence was due to issues with its previous solicitors and was not deliberate. The Appellant submits S/N fFod9TFqIUzT1usPigMaw that they were aware their previous solicitor had ceased to act for them due to the non-payment of the legal fees.

The Appellant had attempted to contact their insurance company and they received confirmation regarding the outstanding legal fees amounting to RM54,180.00 only in January 2023.

Subsequent thereto, the Appellant attempted to make monthly instalment payment to their previous solicitor and they managed to settle all the outstanding fees on 14.06.2023.

Despite the full payment of the legal fees, the previous solicitor did not attend/was not present in Court on 26.07.2023. The Appellant representative requested another date to appoint a new solicitor. The request was rejected by SCJ and the trial proceeded on 26.07.2023.

The Respondents, however, submit that the Appellant had been afforded ample time and multiple adjournments to appoint solicitors but failed to do so. The Appellant was given four (4) times adjournment and more than a year to appoint a new solicitor when their previous solicitor discharged from representing them via Court Order dated 13.07.2022.

During the trial, only one representative of the Appellant was present, none of the Appellant’s witness was present and no witness statements were filed by the Appellant. The SCJ did not allow the representative of the Appellant to speak as the said representative failed to produce any document to prove he is authorised to S/N fFod9TFqIUzT1usPigMaw represent the Appellant. The said representative was sitting at the public gallery throughout the proceedings.

The trial proceeded on 23.07.2023 where the Respondents have called four (4) witnesses to testify and the Respondents closed their case on the same day. The SCJ has directed the Parties to file written submissions on or before 07.08.2023.

The proceedings against the Third Party was struck out by the SCJ on the same day as the Appellant failed to proceed and prove their case against the Third Party. No appeal was filed against that decision.

Despite direction given by the SCJ, the Appellant did not file any written submissions. On 29.08.2023, the SCJ allowed part of the Respondents’ claim.

On 26.09.2023, the Appellant via their new solicitor filed an application to set aside the judgment dated 29.08.2023.

In the instant case, I find the Appellant has failed to satisfy the requirements under Order 35 rule 2 of ROC 2012 where the representative of the Appellant was present on 23.07.2023 and the absence of their solicitor was not due to mistake or accident or unfit to attend Court. Instead, the said solicitor has been discharged on 13.07.2022. The Appellant was aware at all material times that their solicitor has been discharged since August 2022.

The e-Review minutes dated 04.07.2022 recorded that the previous solicitor from Messr. TJ Goh & Co. informed the Court that they have S/N fFod9TFqIUzT1usPigMaw notified the Appellant on their application to discharge from acting for the Appellant and they have been informed by the representative of the Appellant on that morning that the Appellant will appoint a new solicitor.

The Appellant has acknowleged receipt letters from the Respondents’ solicitor informing them the date of the hearings (see pages 348 to 359 of Appeal Records in Part C) and the particulars have been summarised in paragraph 20 of the Respondent’s written submission in Enclosure 10. Further, one of the representatives of the Appellant, Ms. Nisha has contacted the Respondents’ solicitor on 02.12.2022 to find out the latest development of the case and she informed that the Appellant has not appoint any new solicitor (see page 93, paragraph 13(c) of Appeal Records in Part C).

Further, the representative of the Appellant took part in the proceedings after their previous solicitor had been discharged. The representative has given multiple excuses and undertakings to the Court that they will appoint a new solicitor. Even at the date of the hearing on 23.07.2023, the Appellant failed to appoint any new solicitor.

The Appellant has failed to appoint new solicitors despite numerous postponements has been granted by the SCJ. They knew their previous solicitor has been discharged way back in August 2022 and yet they expected their previous solicitor would appear and defending them on 23.07.2023. This lackadiasical attitude of the Appellant has resulted in the judgment recorded against them. The Appellant have no one but themselves to blame for not taking action to appoint a new solicitor. The problems with their previous solicitor S/N fFod9TFqIUzT1usPigMaw regarding the payment of the legal fees is their interenal problem that they should have resolved prior to the date of the trial and cannot attribute any fault on the Respondents.

The Appellant claimed their previous solicitor agreed to appear on 23.07.2023 to defend them. If it is true, that was an arrangement between the Appellant and their previous solicitor and nothing to do with the Respondents. The Appellant may take action against their previous solicitors by filing a complaint to the Bar Council or initiate legal action against their previous solicitor for giving them misrepresentation and false hope. It is clear once the solicitor is discharged, they should not be acting in the same case thereafter.

In this regard, I refer to the case of Abdul Rafar Bin Maimunni & Anor v HM Latiff KM Haneefa [2008] 1 LNS 157 which adopted the principles in the case of Shocked and another v Goldschmidt and others [1998] 1 All ER 372 where Leggatt L J decided that— “On an application to set aside a judgment given after a trial, in the absence of the applicant, different considerations applied than on an application to set aside a default judgment. In particular, the predominant consideration for the court was not whether there was a defence on the merits but the reason why the applicant had absented himself, and if the absence was deliberate and not due to accident or mistake, the court would be unlikely to allow a rehearing. Other relevant considerations included the prospects of success of the applicant in a retrial, the delay in applying to set aside, the conduct of the applicant, whether the successful party would be prejudiced by the judgment being set aside and the public interest in there being an end to litigation.". [Emphasis added] S/N fFod9TFqIUzT1usPigMaw

It is crystal clear that the representative of the Appellant has attended the hearing on 23.07.2023 without legal representation after numerous postponements has been granted by the SCJ. Despite knowing 23.07.2023 is the date fixed for trial, the Appellant did not prepare any witness statement or call any of their witness to attend the Court. Technically, there is no absence of the Appellant on the date of trial. Hence, applying the authorities stated above, the judgement obtained on 29.08.2023 is regular and cannot be set aside.

The case Demang (M) Sdn. Bhd. v Greenlinx Sdn. Bhd. [2012] 5 MLJ 687 referred by the Appellant can be distinguished from the present case where in that case, the appellant did not know the previous solicitor would apply for discharge. However, in the instant case, the Appellant admitted that they knew the previous solicitor discharged themselves sometime in August 2022.

As stated in paragraph 36 above, the Appellant was not absent on the date of the trial on 23.07.2023 and the absence of their solicitor was not due to mistake or accident. It is solely due to the lackadiasical attitude of the Appellant who did not appoint a new solicitor prior to the hearing date. Their misforturne is of their own manufacture.

Therefore, based on the authorities above, there is no justification for me to set aside the judgment made by the SCJ.

Further, I am of the considered view that Order 35 rule 2 ROC 2012 does not apply based on the facts of this case. The judgment made S/N fFod9TFqIUzT1usPigMaw by the SCJ is a final judgement after having heard the evidence of the witnesses and considering all the exhibits presented in Court on 23.07.2023, despite the non-participation of the Appellant. The decision of the SCJ was subsequently affirmed by High Court Judge at High Court No. 4 at Johor Bahru (the “said High Court Judge”) on 18.03.2024. Hence, this Court becomes functus officio and is not authorised to set aside the final judgment.

In the present case, the Appellant has not filed any appeal to the Court of Appeal against the decision made by said High Court Judge. It renders the decision made by the said High Court Judge as a final judgmeent and binding on the parties.

In this regard, I refer to the case of Kirba Daisy a/p John Das v Mahinder Singh a/l Bachittar Singh [2012] 5 MLJ 712 where the Court of Appeal decided that— “(2) The chronology of events, leading right up to the scheduling of the date of the full hearing on 30 March 2009, clearly showed that all reasonable attempts had been made for the defendant and/or his solicitors to be informed of the respective case management dates in order for him to participate at every stage of the case management, but he had clearly shown no interest in the matter, until he received a sealed copy of the final judgment. If he could have received a copy of the final judgment there is no reason why he could not have received all other communication with regard to the case management dates from his solicitors and/or the solicitors for the plaintiff (see para 14).

O 35 r 2(1) of the RHC was not applicable to the factual matrix of this case as the HCJ was functus officio upon pronouncement of the final judgment on 31 July 2009. A HCJ cannot set aside the final judgment. The S/N fFod9TFqIUzT1usPigMaw only remedy is by way of an appeal against the findings in the judgment to an appellate court (see para 15)”. [Emphasis added]

Applying the principles enunciated in the above authorites, I rule that the SCJ has considered the circumstances surrounding the absence, prior adjournments, and conduct of the Appellant before dismissing the application. The Appellant has failed to show just cause to justify the intervention of this Court to allow their appeal.

Whether the Appellant had demonstrated a meritorious defence

Although I have decided that the Appellant has failed to show sufficient cause to justify setting aside the judgment obtained after full trial, however for the sake of completeness, I would address the issues raised by the Appellant.

The Appellant asserts that they have merits in their defence. According to the insurance policy the Appellant is liable for RM50,000.00 only for any burglary incident. The Appellant also contends that the receipts produced by the Respondents were issued in year 2022 and 2023, after the break-in incident, and thus it could not be proven that loss was suffered at that material time.

The Respondents contended that the issue of the insurance policy was never raised in their Defence and that parties are bound by their pleadings. The Respondents have cited the case of Shuhada bt. Aloang Shukor v Khairul Anwar bin Shaharuddin [2021] 8 MLJ 315 to support their contentions. S/N fFod9TFqIUzT1usPigMaw

The Respondents also submitted that the receipts issued on 2022 and 2023 which were after August 2020, were tendered as exhibits during the trial and the said exhibits were properly admitted. Thus, the Appellant is prevented from raising new issues via this Application. They have cited the case of Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh Bin Mamat & Ors. [2009] 4 MLJ 610 to support their arguments.

Upon perusing the Defence filed by the Appellant (pages 132 to 142 of Appeal Record in Part C), there is nothing mentioned about the limitation claim set by the insurer is RM50,000.00 only. It is trite that Parties are bound by their own pleadings. The Appellant is now estopped from raising it for the first time in their submissions.

I agree with the contentions of the Respondents that Parties are bound by their pleadings. In any event this fact was pleaded, the contract entered was between the insurance company and the Appellant. Thus, the said contract is not binding on the Respondents and the said clause cannot used as a shield against the Respondents.

With regards to the receipts produced by the Respondents even though they were dated after the break-in incident, I agree with the contentions of the Respondents that the receipts were properly admitted during the trial.

Further, the SCJ has evaluated the evidence and exhibits presented during the trial on 23.07.2023 and has awarded a sum lesser than the amount claimed by the Respondents, Therefore, I rule that the S/N fFod9TFqIUzT1usPigMaw SCJ has considered all the relevant facts and evidence in making her decision.

I refer to the case of Namachivayam Selvaraja v Narayanasamy a/l Krishnan [2022] MLJU 227 which strike the similarity of the present case were the High Court held that— “[38] in any event, it is clear that the Plaintiff had led evidence on its claim at the trial that was conducted. As held in the decided cases referred to above, where a Defendant chooses to be absent, the Court must then hear testimony from witnesses. That is exactly what the learned SCJ did in this matter. The case of Guindarajoo Vegadason v Satgunasingam Balasingam [2010] 1 MLRH 350 and others are instructive as they have held that the onus is on the defendant to refute and that unless the evidence is inherently implausible, the Court will have to accept such evidence presented as true since no evidence to the contrary has been adduced. [39] So there we have it. I believe it is too late in the day for the Defendant to raise issues in this appeal on matters such as the exhibits tendered or the truthfulness of the Plaintiffs witnesses etc. in my considered view, the Defendant is the author of his own misfortune. He had the opportunity to participate in the trial but refused to. He alsodidn’t avail himself of the opportunity to file written submissions. The Session Court Judge was therefore in my opinion clearly correct in proceeding with the trial as he did and to render judgment thereafter. [40] In any event, as highlighted earlier, the issue of the merits can still be ventilated by the Defendant in the appeal against the judgment itself.”. [Emphasis added] S/N fFod9TFqIUzT1usPigMaw

As stated above, the Appellant is the author of their own misfortune due to their lackadiasical attitude and failure to take immediate action to appoint a new solicitor to defend them on 23.07.2023.

The issues raised by the Appellant in this Application should be ventilated during their First Appeal filed on 13.03.2023 in High Court No. 4. I believe those issues have been ventilated and considered by the said High Court Judge on 18.03.2024 before dismissing the First Appeal. I have perused the Records of Appeal filed in the High Court No.4, I find the issues raised in this Appeal is the same issues the Appellant has raised during the First Appeal and those issues were dismissed by the said High Court Judge. If these issues are allowed to be ventilated again via this Appeal, the Appellant would be given a second chance to argue it and that would prejudice the Respondents. It would create a mockery if two (2) High Courts are giving inconsistent decisions on the same issues.

The Appellant had previously raised the same issues against the Respondents which had been subsequently dismissed by the High Court on 18.03.2024 and the Appellant raising the same issues against the Respondents again now violates the principle of res judicata.

Subsection 25(2) of Court of Judicature Act 1964 [Act 91] provides that— “Powers of the High Court

Without prejudice to the generality of subsection (1), the High Court shall have the additional powers set out in the Schedule: S/N fFod9TFqIUzT1usPigMaw Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same. Res judicata

Power to dismiss or stay proceedings where the matter in question is res judicata between the parties, or where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to be continued.”. [Emphasis added]

I refer to the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn. Bhd, [1995] 3 MLJ 189 where it was decided that— “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.”. [Emphasis added]

I also refer to the case of Cheah Boon Hoe v Lee Choon Hei [2022] 4 MLJ 94 where the Court of Appeal held as follows: S/N fFod9TFqIUzT1usPigMaw “…for the doctrine of res judicata to apply, the same issue must have been raised and decided in an earlier proceeding or action in which the parties are represented. And for that reason, it is not open for the same issue to be litigated afresh between the same parties. This doctrine is based on the public policy that there must be finality and conclusiveness in judicial decisions and the right of the individual from being vexed by multiplicity of suits at the instance of an opponent.”. [Emphasis added]

Applying the principles above, I rule that the Appellant’s conduct in raising the same issues against the Respondents constitutes a violation of the principle of res judicata, wherein the same issues have been raised and adjudicated in a prior proceeding before High Court No.4. The Appellants did not come with clean hands and treated the Respondents fairly. It would be against the rule of equity should this appeal be granted.

With regard to other issues raised by the Appellant that the appeal is the continuation of proceedings by way of rehearing, I disagree with the submissions made by the Appellant on the ground that this is the Appeal against the decision of SCJ for dismissing their application to set aside the judgment dated 18.12.2023 and not appeal against the decision made on 29.08.2023.

This issue should have been ventilated during the First Appeal when they appealed against the whole decision of the SCJ. I rule the issue raised in this Appeal is irrelevant and should be dismissed. S/N fFod9TFqIUzT1usPigMaw

In the interest of justice, the Appellant argued that the Court should allow their appeal. I am not able to agree with the Appellant’s argument. I must ensure the justice is done for both Parties and not only to the Appellant.

As stated above, the judgment of the SCJ made on 29.8.2023 is a regular judgment and the Appellant should blame themselves for not taking any action to appoint new solicitors which has resulted in them being liable to pay damages to the Respondents

After considering the Record of Appeal, written submissions of both Parties, and the applicable law, I find as follows:

the SCJ had considered the relevant factors under Order 35 Rule 2 of ROC 2012 before dismissing the Application;

the Appellant had been afforded sufficient opportunity to appoint new solicitors to represent them prior to trial;

the Appellant failed to demonstrate sufficient cause warranting the setting aside of the judgment; and

there is no basis for appellate interference with the exercise of discretion by the SCJ.

In the premises, the appeal is dismissed with costs. The decision of the SCJ dated 18.12.2023 is affirmed. Bertarikh 25 March 2026. S/N fFod9TFqIUzT1usPigMaw Signed by: Sgd. ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Appellant : Ms. Mailthily a/p Mancher Messrs C. Sankaran & Co, Counsel/Solicitor For the Respondents: Ms. Gun Huei Shin and Ms.Tay Sin Yi Messrs Gun Chambers S/N fFod9TFqIUzT1usPigMaw