Court DecisionMY-HC

BA-24F-217-08/2023

Elayne Chan Su Wern v Eric Tan Choon Pooh (BA-24F-217-08/2023)

High Court of Malaysia5 Aug 2024

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1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM 1 DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA 2 (BAHAGIAN KELUARGA) 3 SAMAN PEMULA NO : BA-24F-217-08/2023 4 5 Dalam Perkara Mengenai Seksyen 6 106(1)(vi) Akta Membaharui 7 Undang-Undang (Perkahwinan & 8 Perceraian) 1976 9 10 ANTARA 11 ELAYNE CHAN SU WERN 12 (NO. K/P : 820805-14-5500) ...PLAINTIF 13 DAN 14 ERIC TAN CHOON POOH 15 (NO. K/P : 800331-04-5357) ...DEFENDAN 16 17 GROUNDS OF JUDGMENT 18 19 Introduction 20 [1] This is an application in Enclosure 15 by the Defendant Husband 21 (Defendant) under Rule 102(1) Divorce and Matrimonial Proceedings 22 Rules 1980, Order 42 rule 13 and Order 92 rule 4 Rules of High Court 23 2012 to set aside the Order of this Court dated 20.11.2023 allowing leave 24 to the Plaintiff Wife (Plaintiff) to exempt the reference of matrimonial 25 difficulties of the Plaintiff and the Defendant to the Conciliatory Body. 26 27 [2] Having carefully considered the arguments advanced by learned 28 counsel for the parties and weighed the applicable legal principles, I 29 dismissed the Defendant’s application with costs. 30 S/N xFwGYvfmUE29ChIyZwrr/w [3] My reasons are as stated below. 1 2 Background Facts 3 [4] The Plaintiff and the Defendant were married on 26.9.2011 and 4 have 2 sons aged 11 and 8 years respectively. 5 6 [5] In the past year the Plaintiff began to receive continuous 7 harassment from a woman named Wee Soo Chin (WSC) who claimed 8 that she is the Defendant’s mistress. She bombarded the Plaintiff with non 9 stop telephone calls and incessant messages causing severe disturbance 10 and harassment to the Plaintiff and the children’s lifes. This woman had 11 even boldly trespassed into the matrimonial property and threatened to kill 12 the Plaintiff and her family if she was ignored or blocked on the phone or 13 social media. As a result of the continuous harassment and emotional 14 abuse the Plaintiff suffered grave emotional distress and trauma resulting 15 in her having to be hospitalized. 16 17 [6] On 2.8.2023 the Plaintiff filed an Originating Summons to apply for 18 exemption to refer the matrimonial difficulties between the parties to a 19 conciliatory body based on Section 106(1)(iv) Law Reform (Marriage and 20 Divorce) Act 1976 citing there are exceptional circumstances which make 21 reference to a conciliatory body impractical. 22 23 [7] The application was duly served on the Defendant by way of 24 substituted service. The Defendant did not respond to the application, 25 neither did he attend Court on the date fixed for hearing. The Court was 26 satisfied that the Defendant although properly served with the application 27 had not put in any appearance nor filed any affidavit in opposition had 28 allowed the said application on 20.11.2023. 29 S/N xFwGYvfmUE29ChIyZwrr/w [8] Subsequently the Plaintiff filed a divorce petition on 28.12.2023 1 under case number BA33-983-12/2023. 2 3 [9] The divorce petition cause papers were served personally on the 4 Defendant on 3.1.2024 (see Affidavit of Personal Service dated 23.1.2024 5 in Encl 8). The Defendant appointed solicitors to act for him. In the 6 Acknowledgement of Receipt in Encl 9 (Akuan Penerimaan) dated 7 15.2.2024 the Defendant in answer to Question 5 agreed for a decree to 8 dissolve the marriage and wished to defend the Divorce Petition. 9 10 [10] Pending the divorce petition, the Plaintiff as the Petitioner in the 11 divorce petition, filed a Notice of Application for Ancillary Relief on 12 20.02.2024 to pray for, inter alia, custody, care and control of the children, 13 maintenance for herself and an injunction. 14 15 [11] The cause papers were served on the Defendant and the Defendant 16 filed an Affidavit-in-Reply on 11.03.2024 to oppose the Plaintiff’s 17 application for ancillary relief in the divorce petition. 18 19 [12] Then on 16.04.2024, the Defendant filed the instant application to 20 set aside the Order of Court dated 20.11.2023 (Enclosure 13) i.e. the 21 order allowing the exemption to refer the matrimonial difficulties of the 22 parties (Exemption Order) on the basis that the Plaintiff had failed to show 23 any special circumstances to justify the application. 24 25 Contentions of the Parties 26 [13] The Defendant claims ignorance in regard to the matrimonial 27 difficulties faced by the Plaintiff. In his Affidavit in Support dated 13.5.2024 28 (Encl 16) he averred that to his knowledge their 12 year marriage was a 29 happy one with both getting along very well. The first time he became 30 S/N xFwGYvfmUE29ChIyZwrr/w aware of any problem was on 9.9.2023 when the Plaintiff packed all his 1 belongings and told him to leave their matrimonial home. She blocked his 2 phone calls and messages as well as all access to social media thereafter. 3 4 [14] The Defendant further contended there was no basis for the Plaintiff 5 to obtain an ex parte Exemption Order against him since there had never 6 been any previous attempts at reconciliation before making the present 7 application. The Defendant was of the opinion that the parties must give 8 the reconciliation body a chance to see if they can help in this regard. 9 10 [15] The Defendant contended that service of the OS on him was 11 irregular and hence the Exemption Order against him was improper and 12 should be set aside. He claimed that he had not been served with the OS 13 and did not receive the Exemption Order. 14 15 [16] The Plaintiff strongly opposed the application citing a number of 16 reasons. In reply to the above contentions the Plaintiff argued that there 17 were exemptional circumstances which rendered the reference to the 18 conciliatory body impracticable as the Plaintiff had suffered severe mental 19 health problems due to the Defendant’s adulterous relationship with the 20 other woman resulting in her hospitalization at one point thus making 21 reconciliation between the both of them highly improbable. 22 23 [17] In negating the Defendant’s assertions, the Plaintiff pointed to the 24 fact that immediate family members on their part had made a number of 25 attempts to reconcile the couple. These family members had played a 26 conciliatory role in attempting to patch up their differences by advising the 27 Defendant to salvage the marriage and stop the adulterous relationship 28 he was carrying on with the other woman. However the Defendant instead 29 S/N xFwGYvfmUE29ChIyZwrr/w of engaging with the family had resisted and argued with them. Therefore 1 it was not true that the parties had not attempted reconciliation. 2 3 [18] The Defendant was lackadaisical in showing any effort to reconcile 4 with the Plaintiff. The Plaintiff complained that the Defendant chose to turn 5 a blind eye and deaf ears to the Plaintiff’s mental health issues and 6 hardship caused by the actions of the other woman. The Defendant had 7 not been emphatic to her plight. Instead he callously brushed her 8 concerns away telling her to just ignore and block the other woman’s 9 phone number. 10 11 [19] The Plaintiff that the Defendant had not shown any sincere or 12 genuine efforts to salvage the marriage. It was bad enough that he ignored 13 her hardship and suffering. He had to rub salt into the wound by turning 14 on her and accusing her of trying to squeeze maintenance money out of 15 him. The Plaintiff contended that this proved that the Defendant’s 16 application to set aside the Exemption order was merely to delay the 17 divorce proceeding and avoid paying interim maintenance to the Plaintiff. 18 19 Decision of the Court 20 [20] It would be in order to take note that the Defendant’s application to 21 set aside the Exemption Order is based on Order 42 Rule 13, Order 92 22 Rule 4 Rules of Court 2012 and Rule 102(1) DMPR 1980. 23 24 [21] Order 42 Rule 13 ROC 2012 specifically reads as follows: 25 26 Setting aside or varying judgment and orders (O. 42, r. 13) 13. 27 Save as otherwise provided in these Rules, where provisions are made 28 in these Rules for the setting aside or varying of any order or judgment, 29 a party intending to set aside or to vary such order or judgment shall 30 make an application to the Court and serve it on the party who has 31 S/N xFwGYvfmUE29ChIyZwrr/w obtained the order or judgment within thirty days after the receipt of 1 the order or judgment by him. 2 3 [22] The Court finds from an examination of the brief timeline of the 4 events and on the specific facts and circumstances surrounding this case 5 clearly support the Plaintiff’s claim that the Defendant’s application is mala 6 fide and more than likely a clever manoeuvre to delay the divorce 7 proceedings. 8 9 [23] For ease of reference a timeline of the events is summarized below: 10 Date Events 03.01.2024 Defendant received the divorce cause papers

(ba-33-983-12/2023).

15.2.2024 Defendant filed Acknowledge of Receipt (“Akuan Penerimaan”).

20.2.2024 Plaintiff filed a Notice of Application for Interim Relief and Affidavit-inSupport in BA-33-983- 12/2023.

11.3.2024 Defendant filed Affidavit-in-Reply to oppose the Plaintiff’s application for interim relief.

29.3.2024 Plaintiff filed Affidavit-in-Reply to support the Plaintiff’s application for interim relief.

12.4.2024 Plaintiff filed Written Submission for Notice of Application for Interim Relief in BA33-983- 12/2023 16.4.2024 Defendant filed this application to set aside the 24F order. 11 [24] The timeline described in the table above clearly shows that the 12 Defendant was properly served with the Divorce Petition cause papers on 13 S/N xFwGYvfmUE29ChIyZwrr/w

3.1.2024. In the Divorce Petition the Exemption Order is attached and 1 marked as Exhibit ECSW-3. Paragraph 36 of the Divorce Petition reads 2 as follows: 3 4

Pempetisyen telah berjaya mendapatkan Perintah Pengecualian 5 rujukan ke badan pendamai daripada Mahkamah Tinggi Shah Alam. 6 (Sesalinan Perintah Mahkamah Tinggi Shah Alam bagi nombor kes BA- 7 24F-217-08/2023 dan di tandakan sebagai Exksibit “ECSW-3”). 8 9 [25] Hence the Defendant would have been aware of the Exemption 10 Order on 3.1.2024. 11 12 [26] The Defendant did not challenge nor did he dispute the said order 13 at that point in time. 14 15 [27] The Defendant also did not raise any objection soon after appointing 16 a solicitor to act on his behalf. 17 18 [28] On 15.2.2024, the Defendant through his solicitor had filed an 19 Acknowledgement of Receipt (Encl 9) and in answer to question 5 had 20 answered “Yes” to the question as to whether the Defendant agrees to a 21 decree to be given. 22 23 [29] The conduct of the Defendant left the Court with the conclusion that 24 the Defendant was not disputing the breakdown of the marriage and 25 agreed to a dissolution of the marriage. Based on the contents of the 26 Acknowledgement of Receipt the Defendant was only focused in seeking 27 redress in regard to access custody care and control of the children as 28 well as matters relating to matrimonial assets in the Divorce Petition 29 bearing in mind his financial condition. 30 31 S/N xFwGYvfmUE29ChIyZwrr/w Delay in filing the application to set aside the Exemption Order 1 [30] I find there is an inordinate delay on the part of the Defendant in 2 filing this application to set aside the Exemption Order. The application in 3 Encl 15 was filed on 16.4.2023, 3 months after the Defendant was served 4 with a copy of the divorce petition and cause papers on 3.1.2024 and 2 5 months after the Defendant appointed a solicitor to act for him on 6 15.2.2024. No explanation was given for the delay. 7 8 [31] To complicate matters further the Defendant had filed his Affidavit 9 in Reply on 11.3.2024 to reply to the Plaintiff’s application for interim relief 10 in case BA33-983-12/2023. It is worthy to note that the Defendant did not 11 at any time raise any preliminary objection to the divorce petition in his 12 Affidavit in Reply dated 11.3.2024. 13 14 [32] For reasons best known to him and unexplained to the Court this 15 application was brought about only at the stage of written submissions for 16 the Plaintiff’s application for interim relief in BA33-983-12/2023. 17 18 [33] The law is clear. An aggrieved party must act promptly and at the 19 earliest opportunity set aside any order that is not made in their favour. 20 Too long a delay would render an application devoid of merit. 21 22 [34] It is timely to quote the observation of the judges of Court of Appeal 23 in the case of Khor Cheng Wah v Sungai Way where delay was an issue: 24 25 “It is a cardinal principle of law, that when a litigant seeks the intervention 26 of the Court in a matter that affects his rights, he must do so timeously. 27 The maxim vigilantibus, non dormientibus, jura subveniunt, though 28 having its origins in the Court of Chancery, is of universal application. 29 Even in cases where a right is exercisable ex debito justitiae, a Court 30 may refuse relief to an indolent litigant. 31 S/N xFwGYvfmUE29ChIyZwrr/w In all cases in which delay in approaching the Court is in issue, the 1 burden is upon the litigant who has delayed to render a satisfactory 2 explanation for it. Whether the explanation in a given case is satisfactory 3 or reasonable depends upon the facts and circumstances of each case. 4 And in a matter which involves the exercise of discretion, it is for the 5 Judge in whom the law primarily vests the discretion.” 6 7 [35] According to Rule 102 DMPR 1980 any setting aside application 8 may be dismissed unless it is made within a reasonable time and before 9 the applicant has taken any step in the proceedings with knowledge of the 10 irregularity. 11 12 It reads as follows: 13 14 “102. Irregularities 15

Non-compliance with these Rules or any rule of practice in force shall 16 not render the proceedings void unless the Court shall so order but the 17 Court may of its own motion or on application of any party set aside any 18 proceedings wholly or in part as irregular or order amendment on such 19 terms as may be just.

Any such application may be dismissed unless made within a 21 reasonable time and before the applicant has taken any step in the 22 proceedings with knowledge of the irregularity.” 23 24 [36] As mentioned earlier the Defendant did not give any cogent reasons 25 to explain the delay in filing the application to set aside the Exemption 26 Order. The Defendant knew about the Exemption Order from as early as 27 January 2024 but chose to not to anything about it. No explanation has 28 been forthcoming as to why has changed his mind. I agree with the 29 Plaintiff that the delay has not been validly justified. 30 31 S/N xFwGYvfmUE29ChIyZwrr/w [37] It is relevant at this point in time to refer to Ng Choon Mei v Yap 1 Kean Hong [2021] MLJU 647 where in this case the learned Judge cited 2 and followed the approach of the Supreme Court in Fira Development 3 Sdn Bhd v Goldwin Sdn Bhd (supra) :- 4 5 “[16] Setting aside a judgement in default:

The Supreme Court in Fira Development Sdn Bhd v Goldwin Sdn 7 Bhd (supra), the issue on delay in setting aside, held: 8 Citing Mallal’s Supreme Court Practice, 2nd Ed, Vol 1, p.84: The 9 decision will only be exercised if the affidavit supporting the 10 application to set aside discloses facts showing defence on merits; 11 or for some very sufficient reasons: Bank Bumiputra Malaysia Bhd v 12 Majlis Amanah Rakyat [1979] 1 MLJ 23…” 13

Fira Development Sdn Bhd v Goldwin Sdn Bhd (supra) laid down the 14 following guide:

an applicant must satisfy the Court with a reasonable explanation 16 when judgement is allowed to be recorded by default;

(ii) the reasons proffered to the Court in applying to set aside must 18 constitute merits to drive the Court to exercise tis judicial 19 discretion to set aside; and 20

III

(iii) the Court will not tolerate tardiness or indolence in pursuing an 21 application in setting aside, which must be made promptly and 22 within a reasonable time.” 23 24 [38] In this case the Defendant had taken steps in the Divorce Petition 25 especially where the Affidavit in Reply had been filed on 11.3.2024 to 26 oppose the Plaintiff’s application for interim relief in BA33-983-12/2023. 27 The Defendant had done this despite knowing of the alleged irregularity 28 i.e. non-compliance of section 106 of the LRA. 29 30 [39] As it stands this Court finds that the application to set aside the 31 Exemption Order is untenable bearing in mind the Defendant had already 32 agreed to a decree to be given. He had duly signified his acceptance and 33 S/N xFwGYvfmUE29ChIyZwrr/w intention not to dispute the breakdown of the marriage between him and 1 the Plaintiff. 2 3 [40] The Defendant made the turnaround only after replying to the 4 Plaintiff’s applications for interim relief in the divorce proceeding. It is the 5 Plaintiff’s contention that in doing so the Defendant’s intention is only to 6 delay the divorce proceeding and to avoid paying the interim 7 maintenance. This view is reinforced by the contents of the Defendant’s 8 Affidavit in Reply (Encl 18) where he has averred that the Plaintiff mala 9 fide forced him to pay the spousal and children maintenance amounting 10 to RM30,000.00 per month and its arrears. 11 12 [41] Hence this Court is of the view that the Defendant’s application 13 failed all the tests as set out in Fira Development Sdn Bhd. In the upshot 14 this Court is not inclined to exercise its judicial discretion to set aside the 15 Exemption Order. In keeping with the principles of fairness and the need 16 for prompt litigation I find such a delay cannot be excused. 17 18 Whether the OS (Encl 1) was regularly served by way of substituted 19 service on the Defendant 20 [42] The Defendant has contended that he had no knowledge of the OS 21 dated 2.8.2023. My examination of the Court’s records in the CMS system 22 shows that the Plaintiff had applied for substituted service in Encl 3. The 23 application is supported by an affidavit in Encl 4 together with an affidavit 24 of non-service by the process server in Encl 5. 25 26 [43] The application for substituted service was allowed by the Court as 27 can be seen in the Order dated 12.9.2023 (see Encl 8). The Plaintiff had 28 complied with all the steps stated in the Order of Court dated 12.9.2023 29 and this can be seen in the Affidavit of Service affirmed by the process 30 S/N xFwGYvfmUE29ChIyZwrr/w server on 2.10.2023 (see Encl 9). Therefore for all intent and purpose the 1 service of the OS and all the relevant cause papers in relation to the case 2 was regular, good and effective. 3 4 [44] It is to be observed from the cause papers that the Defendant did 5 not challenge the Order of substituted service granted by the Court. Since 6 the Defendant did not challenge the substituted service order by having it 7 set aside by proceedings instituted for the very said purpose, this Court 8 shall not consider the application to set aside the Exemption Order. It is 9 trite and tested law that the substituted service cannot be challenged 10 collaterally in this instant application where the Defendant applied only to 11 set aside the Exemption Order and not the substituted service order. 12 13 [45] This Court relied on the decision of the case of Ng Han Seng & Ors 14 v Scotch Leasing Sdn Bhd (appointed receivers and managers) 15 [2003] 4 MLJ 647 where the Court of Appeal in referring to the Federal 16 Court case of Development & Commercial Bank Bhd v Aspatria Corp 17 Sdn Bhd & Anor and another appeal [1995] 3 MLJ 477 held as follows: 18 19 “The respondent had complied with the SS order and the 20 appellants could not challenge the SS order in their applications 21 for that would amount to a collateral attack on the validity of the 22 process thereto which is not permitted. The validity of the SS order 23 can only be challenged by proceedings instituted for the very 24 purpose. It cannot be challenged collaterally in other proceedings. 25 Peh Swee Chin FCJ, delivering the judgement of the then Supreme 26 Court in Development & Commercial Bank Bhd v Aspatra Corp Sdn Bhd 27 & Anor and another appeal [1995] 3 MLJ 472 at p 477 said: 28 The order of substituted service of the High Court must be obeyed 29 by everyone save in a few and rare exceptions and it can only be 30 challenged as regards its validity save in a very few rare 31 exceptions…” 32 S/N xFwGYvfmUE29ChIyZwrr/w [46] This Court again wishes to refer to the case of Ng Choon Mei 1 where in a passage in regard to the legal position of a substituted service 2 order held as follow: 3 4 “[21] THE LEGAL POSITION OF A SUBSTITUTED SERVICE ORDER 5 It is not a matter of dispute that the order of SS by this Court on 6 23.10.2019 (enclosure 20 for the DP and other cause papers) is not 7 being specifically challenged. It was argued by RH that it only shows 8 that no evidence can be adduced by PW to show he had received 9 those cause papers since the service then was via substituted service 10 where it is deemed served:

I find this argument to be a non-starter since it is trite that 12 the law considers service of the cause papers by SS to be a fair 13 and valid service for so long as it complies with the terms of the 14 order. The Court of Appeal in Ng Han Seng & Ors v Scotch Leasing Sdn 15 Bhd (appointed receivers and managers) [2003] 4 MLJ 647, held that: 16 “The Respondent had complied with the order for substituted service, 17 and the appellants could not challenge the order in their applications for 18 that would amount to a collateral attack on the validity of process which 19 is not permitted. The validity of the order for substituted service could 20 only be challenged by proceedings instituted for that very purpose,” 21 citing the Federal Court case in Development & Commercial Bank Bhd 22 v Aspatria Corp Sein Bhd & Anor and another appeal [1995] 3 MLJ at 23 477”.;

I find RH:

Had elected not to make an application to specifically challenge 26 the validity of the Order of SS in the service of PW’s DP and all 27 related cause papers on him;

(ii) Consequently, the Order for SS remains and renders the 29 service of PW’s DP and all related cause papers to be good 30 and sufficient;

III

(iii) Unless and until the Order for SS is successfully challenged, 32 the service of the documents on RH remains good and 33 cannot be argued otherwise; 34 S/N xFwGYvfmUE29ChIyZwrr/w

(iv) A perusal of RH’s SDK (enclosure 34) clearly shows that 1 there is also no specific prayer challenging the validity of the 2 Order for SS (see Yap Don Kiang & Ors v Yong Joon Nyat @ 3 Boon Joong Nyat & Ors [2006] MLJU 357, HC);

Therefore, in such circumstances, there is no mitigation in RH’s 5 default to specifically challenge the Order for SS as required in 6 Ng Han Seng & Ors, CA (supra); and 7

(vi) This makes his challenge or dispute in the validity of service 8 by SS is untenable.

(c)For SS to be effected, the terms of the order have to be complied 10 with (see Re P W Au-Yong, ex-parte M Dicum [1963] 1 MLJ 246, HC). 11 In Leow Boke Chooi v Asia Motor Co Ltd [1967] 2 MLJ 109, HC, it was 12 held that the effect of the non-compliance with the SS order (in this case, 13 no copies of the summons, statement of claim, and order were posted 14 in Court), rendered that there had been no good and sufficient service 15 on the defendant. In the present case, PW has complied with the said 16 SS order;

(d)As a consequence of not challenging the service of cause 18 papers by order of SS, service is not an issue in this Court, which 19 renders the default judgment a regular default judgment by law;

(e)Since it is a regular judgment, then as necessitated by law, an 21 affidavit on merits is required from RH; 22 23 [47] Having examined the principles propounded in the aforesaid cases 24 and applying them in the instance case this Court is satisfied and finds 25 that the service of the OS and the relevant cause papers in this case is 26 valid and effective. The Court is satisfied and makes the finding that the 27 Exemption Order is a regular judgment. What is required from the 28 Defendant now is an affidavit on merits in order for him to set aside the 29 regular judgment. 30 31 [48] At the risk of reiteration this Court is of the view that the Defendant’s 32 application lacks merit as the Defendant had in his Acknowledgment of 33 S/N xFwGYvfmUE29ChIyZwrr/w Service filed on 15.2.2024 already agreed to a decree of dissolution of the 1 marriage to be given by this Court. With that concession the Defendant 2 has shown that he has no intention to dispute the breakdown of the 3 marriage. 4 5 Whether the Plaintiff’s Affidavit in Support (Encl 2) is defective 6 [49] The Defendant has contended that the Plaintiff’s Affidavit in Support 7 dated 2.8.2023 (Encl 2) is defective and ought to be struck out. The reason 8 advanced by the Defendant is that there is a colour difference between 9 pages 1 to 6 and from pages 7 to 8. Secondly the Defendant has 10 contended that there is no seal of the Notary Public who witnessed the 11 Plaintiff’s signature in page 8. 12 13 [50] From my perusal of the affidavit in question it is undisputed that it is 14 the Plaintiff who was the person who affirmed the said affidavit. I do not 15 see any difference in the signature of the Notary Public in page 7 or page 16 8. 17 18 [51] Furthermore, I have compared the signatures found in the said 19 Affidavit and the Plaintiff’s Divorce Petition dated 20.12.2023 as exhibited 20 in the Defendant’s Affidavit in Support (see ET-1 in Encl 16) and I 21 conclude that the signatures are the same. Having found no difference 22 between the signatures found in pages 7 and 8 and bearing in mind the 23 Plaintiff had affirmed the said affidavit before the Notary Public who has 24 the authority to witness the Plaintiff’s signature I see no reason why that 25 Affidavit shall not be admitted in evidence without proof of seal or 26 signature being the seal or signature of the Notary Public. 27 28 [52] I agree with the Plaintiff’s submission that the remedy lies in 29 applying Order 41 Rule 12 which provides as follows: 30 S/N xFwGYvfmUE29ChIyZwrr/w “Affidavit taken outside Malaysia admissible without proof of seal 1 (O. 41, r. 12)

A document purporting to have affixed or impressed thereon or 3 subscribed thereto the seal or signature of a Court, Judge, notary public 4 or person having authority to administer oaths in a Commonwealth 5 country and in the case of any other country the seal or signature of a 6 consular officer of a Commonwealth country in testimony of an affidavit 7 being taken before it or him shall be admitted in evidence without proof 8 of the seal or signature being the seal or signature of that Court, Judge, 9 notary public or person.” 10 11 [53] Assuming that the Defendant is correct that the absence of seal of 12 the Notary Public renders the Affidavit irregular, the Court has the 13 corresponding powers under Order 41 Rule 4 ROC to cure that irregularity 14 with leave of the Court. Order 41 Rule 4 is reproduced below for ease of 15 reference: 16 17 “Use of defective affidavit (O. 41, r. 4)

An affidavit may, with the leave of the Court, be filed or used in 19 evidence notwithstanding any irregularity in the form thereof. 20 The objections advanced by the Defendant in regard to the affidavit in 21 Encl 2 cannot be a good reason to dismiss an application. In any event 22 this Court finds that the Affidavit in Support is valid and can be used in 23 evidence to support the Plaintiff’s OS for an application to exempt the 24 reference of marital difficulties to a conciliatory body under section 25 106(1)(vi).” 26 27 Whether there are Exceptional Circumstances which make reference to 28 a Conciliatory Body Impractical 29 [54] Having found that the Exemption Order was regularly obtained, it is 30 incumbent on the Defendant to prove he has a defence of merits. 31 32 S/N xFwGYvfmUE29ChIyZwrr/w [55] It is a requirement to refer a matrimonial difficulty to a conciliatory 1 body before a party can file a divorce petition. Section 106 makes this 2 requirement mandatory unless the Plaintiff can satisfy the provisos as 3 stated below: 4 5 “106(1) No person shall petition for divorce, except under sections 51 6 and 52 unless he or she has first referred the matrimonial difficulty to a 7 conciliatory body and that body has certified that it has failed to reconcile 8 the parties: 9 Provided that this requirement shall not apply in any case- 10

where the petitioner alleges that he or she has been deserted by 11 and does not know the whereabouts of his or her spouse;

(ii) where the respondent is residing abroad and it is unlikely that he 13 or she will enter the jurisdiction within six months next ensuing after the 14 date of the petition;

III

(iii) where the respondent has been required to appear before a 16 conciliatory body and has willfully failed to attend;

(iv) where the respondent is imprisoned for a term of five years or 18 more;

where the petitioner alleges that the respondent is suffering from 20 incurable mental illness or 21

(vi) where the court is satisfied that there are exceptional 22 circumstances which make reference to a conciliatory body 23 impractical. 24 … 25 26 [56] The Plaintiff is relying on Section 106(1)(vi) of the LRA 1976 in this 27 application. The criteria to grant the exemption is ‘where the Court is 28 satisfied that there are exceptional circumstances which make reference 29 to a conciliatory body impracticable. 30 31 [57] The Defendant has averred that the relationship between him and 32 the Plaintiff broke down only when the Plaintiff suddenly evicted the 33 S/N xFwGYvfmUE29ChIyZwrr/w Defendant from the house they lived together in Singapore on 9.9.2023. 1 Prior to this the Defendant maintained that he had no knowledge of the 2 Plaintiff’s problem with WSC. 3 4 [58] The Plaintiff vehemently denies the Defendant’s assertions and has 5 stated that at all material times the Defendant had full knowledge about 6 the Plaintiff’s unhappiness with the Defendant due to the adulterous 7 relationship between the Defendant and WSC. The Defendant also knew 8 of the severe health and emotional problems that the Plaintiff faced. 9 10 [59] The Plaintiff has provided documentary proof of her assertions. 11 There is evidence of her messages to the Defendant’s brother on 12 26.6.2023 to inform the Defendant that she did not want the Defendant to 13 stay with her in Singapore. This gave basis to her assertion that the 14 breakdown of the marriage happened earlier and not as alleged by the 15 Defendant on 9.9.2023. 16 17 [60] She has attached a copy of a Psychiatric Report dated 1.4.2024 in 18 her Affidavit in Reply (Encl 17) showing her fragile mental health. She has 19 exhibited the police reports she lodged in relation to the harassment and 20 threats she received from WSC. Her complaints are justified and must be 21 taken seriously. 22 23 [61] In my view the Plaintiff has shown there are exceptional 24 circumstances to justify an exemption from referring the matrimonial 25 difficulty to a conciliatory body. The Plaintiff is justified in her stance 26 bearing in mind the Defendant’s lackadaisical and cavalier attitude in 27 addressing the continuous harassment and verbal abuse she has been 28 subjected to and the enormous mental and emotional distress she has 29 had to endure in her daily life. The children of the marriage too are victims. 30 S/N xFwGYvfmUE29ChIyZwrr/w The trouble caused by WSC has split over and caused hardship and fear 1 to the children. They now have to go for counselling to deal with their 2 trauma and emotional issues. 3 4 [62] As mentioned earlier the Defendant has not helped the Plaintiff and 5 the children to overcome their problems. The Defendant did not do 6 anything to stop the harassment and abuse. The Defendant’s 7 uncooperative attitude in relation to the adulterous relationship made it 8 impracticable to reconcile the parties. The Defendant would not heed 9 advise from his own family members. Since he has shown no desire to 10 accept their advise, there is no reason to believe that he would accept the 11 advise of the conciliatory body. In my view to insist for the parties to attend 12 before a conciliatory body is futile. There is reason to believe that the 13 Defendant by refusing to listen to his family members has not shown any 14 honest or genuine inclination to reconcile with the Plaintiff. 15 16 [63] In view of what has transpired and the immense stress and severe 17 mental health problems endured by the Plaintiff, it is the view of this Court 18 these matters constituted ‘exceptional circumstances’ which render the 19 reference to a conciliatory body impracticable. There is merit to the 20 Plaintiff’s contention that if reference to a conciliatory body is insisted, the 21 Plaintiff’s mental health problems would deteriorate. There cannot be any 22 glimmer of a reconciliation if the Plaintiff is kept reminded by messages 23 containing screenshots of intimate text exchanges between the Defendant 24 and the other woman sent to her. It indicated that the affair is still ongoing. 25 Hence I could see no reason for this Court to insist that the parties attend 26 the sessions and only end up obtaining a certificate with a rubber stamp 27 certifying the failure of the body to effect a reconciliation. 28 29 S/N xFwGYvfmUE29ChIyZwrr/w [64] Had the Defendant shown sincere and genuine efforts such as to 1 immediately discontinue his adulterous relationship with the other woman 2 perhaps the reference to the conciliatory body would have been 3 worthwhile. The Defendant’s lack of sympathy to the Plaintiff’s mental 4 health issues coupled with his accusation that the Plaintiff is doing all this 5 to squeeze maintenance money out of him makes it impracticable to 6 continue. 7 8 [65] I am of the view that the Defendant’s actions neatly fall into the 9 category of ‘exceptional circumstances’. To my mind a referral would be 10 an exercise in futility and a failure. I am of the view that it was never the 11 intention of Parliament to cause hardship to litigants especially so in 12 divorce matters where it becomes necessary for parties to end their 13 marriage as soon as possible, so as to start their lives afresh (see C v A 14 [1998] 4 CLJ 38). 15 16 [66] It is also material to note that it is only after the Plaintiff filed her 17 notice of application for interim relief did the Defendant bring up all these 18 assertions. It goes someways to undermine his credibility. 19 20 [67] I am of the considered view that the Defendant’s belated assertions 21 to support his application does not meet the evidential threshold required 22 to set aside the giving of the Exemption Order. 23 24 [68] On the facts of this case, the Defendant had agreed to a divorce and 25 for a decree to be given by this Court as stated in his Acknowledgement 26 of Service filed on 15.2.2024. The Defendant was more concerned about 27 his financial ability, custody and maintenance of children and issues 28 relating to matrimonial properties in the divorce proceedings. Even though 29 he was aware of the Exemption Order, he did not raise any objections but 30 S/N xFwGYvfmUE29ChIyZwrr/w went on to file an Affidavit in Reply to oppose the Plaintiff’s application for 1 interim relief. Having made his intention clear, I fail to see why he wishes 2 now to renege on his earlier agreement. It would appear there is merit to 3 the Plaintiff’s argument that the Defendant had no genuine intention for 4 any reconciliation and this was merely an excuse for him to delay the 5 divorce proceedings and avoid paying maintenance should his application 6 succeed. Prolonging an unhealthy marriage is to my mind, contrary to the 7 very intention of the principles for which section 106(1) LRA 1976 was 8 legislated. 9 10 Conclusion 11 [69] In view of the above considerations, I am satisfied that the 12 Defendant has failed to show a defence on the merits. There are no 13 sufficient reasons in order for this Court to exercise its judicial discretion 14 to set aside a regularly obtained order of Court. 15 16 [70] In the circumstances the Defendant’s application in Encl 15 is 17 dismissed with costs. 18 19 Dated 12 December 2024. 20 21 22 23 (JULIE LACK) 24 Judge 25 High Court of Malaya 26 Shah Alam, Selangor Darul Ehsan 27 28 29 30 S/N xFwGYvfmUE29ChIyZwrr/w Counsel 1 For the Plaintiff : 2 Khoo Ai Theng with Jessie Teo Khor Ying 3 (MESSRS. NG, ZAINURUL, SEKE & KHOO) 4 5 For the Defendant : 6 Sui Yoke Kuen 7 (MESSRS. SRILEENA & SUI) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S/N xFwGYvfmUE29ChIyZwrr/w

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Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 5 Aug 2024
Case number: BA-24F-217-08/2023
Coram: YA Dato' Julie Lack
Practice area: This is an application in Enclosure 15 by the Defendant Husband (Defendant) under Rule 102(1) Divorce and Matrimonial Proceedings Rules 1980, Order 42 rule 13 and Order 92 rule 4 Rules of High Court 2012 to set aside the Order of this Court dated 20.11.2023 allowing leave to the Plaintiff Wife (Plaintiff) to exempt the reference of matrimonial difficulties of the Plaintiff and the Defendant to the Conciliatory Body
Version: Alasan Penghakiman 1
Published: 18 Dec 2024
Source ID: 62065cc4-e6f7-4d50-bd0a-1232670aebff

Catchwords

This is an application in Enclosure 15 by the Defendant Husband (Defendant) under Rule 102(1) Divorce and Matrimonial Proceedings Rules 1980, Order 42 rule 13 and Order 92 rule 4 Rules of High Court 2012 to set aside the Order of this Court dated 20.11.2023 allowing leave to the Plaintiff Wife (Plaintiff) to exempt the reference of matrimonial difficulties of the Plaintiff and the Defendant to the Conciliatory Body

Parties

ELAYNE CHAN SU WERN - applicant - ejudgment_parties
ERIC TAN CHOON POOH - respondent - ejudgment_parties

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Content

Catchwords

Elayne Chan Su Wern v Eric Tan Choon Pooh (BA-24F-217-08/2023)

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(ba-33-983-12/2023).

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Elayne Chan Su Wern v Eric Tan Choon Pooh (BA-24F-217-08/2023)

How this case connects

Cited by

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(ba-33-983-12/2023).

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