Firdaus Wong Wai Hung v Che Ibrahim Mohamed (DA-23CY-2-05/2025)

This is the Defendant's application pursuant to Order 35 rule 2 of the Rules of Court 2012 seeking an order to set aside the judgment dated 7.1.2026 obtained by the Plaintiff after a full trial conducted in the absence of the Defendant.

Having considered the affidavits filed by the parties, the submissions of learned counsel and the applicable legal principles, I am not persuaded that this is an appropriate case for the exercise of the Court's discretion in favour of the Defendant. The application is therefore dismissed with costs. Brief Facts

The Plaintiff commenced the present action by way of a writ action arising from an allegedly defamatory publication made by the Defendant.

The writ and amended statement of claim were served at the Defendant's residential address. It is not disputed that the documents were received at the Defendant's residence by his son, one Amir Hafizi. The Defendant did not enter appearance and did not file a defence.

The Plaintiff's evidence is that a letter dated 21.11.2025 informing the Defendant of the trial date was sent by both courier and ordinary post. According to the Plaintiff, the courier records show that the document was delivered on 26.11.2025 and received by a recipient identifying himself as Che Ibrahim Mohamed who verified of the last six digits of his identity card.

The trial proceeded in the Defendant's absence and judgment was ultimately entered in favour of the Plaintiff on 7.1.2026. The present application was subsequently filed on 23.2.2026. The Defendant's Case

The Defendant contends that he was unaware of the proceedings as he was admitted to Hospital Universiti Sains Malaysia from 31.5.2025 until 4.6.2025 when the writ and amended statement of claim were delivered to his son. The Defendant contends that his son subsequently forgot to pass the documents to him.

The Defendant further contends that he only became aware of the existence of the judgment on 12.1.2026 after seeing a report on Facebook. The Defendant further disputes having received the notice of trial and maintains that he possesses a bona fide defence to the Plaintiff's claim. The Plaintiff's Case

The Plaintiff contends that service of the writ and amended statement of claim was properly effected and further relies upon the courier records and related evidence showing that the notice informing the Defendant of the trial date was delivered on 26.11.2025 and was personally received by the Defendant. The Plaintiff therefore submits that the Defendant had actual notice of the proceedings but consciously chose not to participate in them.

The Plaintiff further contends that the Defendant has failed to provide a satisfactory explanation for his absence at trial, has failed to explain the delay in filing the present application and has failed to demonstrate any compelling reason justifying the setting aside of a judgment obtained after a full trial. The Law

The first issue is whether service of the writ and amended statement of claim was validly effected. If service is valid, the Court must then consider the principles governing the setting aside of a judgment obtained after trial as articulated by the Court of Appeal in Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610.

In Kerajaan Malaysia v Abu Sahid bin Mohamed [2024] MLJU 1479, the High Court recognised that service effected upon an employee at the defendant's address constitutes valid service and that a defendant cannot subsequently avoid the consequences of such service merely by asserting that the documents never reached him.

The applicable principles governing the setting aside of a judgment obtained after trial are found in FELDA v Awang Soh (supra) whicg adopts the principles in Shocked & Anor v Goldschmidt & Ors [1998] 1 All ER 372, the Court stated:

The Court further observed: "Although the defendants had taken prompt and immediate action to set aside the default judgment, this paled in significance when considered in the light of the very weak excuse given for the defendants' absence in court coupled with no real prospect of success in their defence. Further, it is public policy that there should be finality in an action rather than having to engage the court to conduct two trials instead of one." Issues for Determination

The issues for determination are:

The Defendant contends that he was unaware of the action because he was admitted to Hospital Universiti Sains Malaysia when the writ and amended statement of claim were delivered to his son, Amir Hafizi.

However, the evidence before the Court shows that the writ and amended statement of claim were delivered at the Defendant's residential address and received by one Amir Hafizi, the Defendant's son.

Defendant does not dispute the address at which service was effected. Neither does he dispute that Amir Hafizi is his son who resided at the same address. In this regard, the law does not require proof that the documents actually came into the personal possession of the Defendant. What is required is proof that service was effected in accordance with the Rules of Court.

I agree with the reasoning in Kerajaan Malaysia v Abu Sahid bin Mohamed (supra). The risk that documents received by a family member may subsequently be misplaced, forgotten or ignored is a matter that falls within the Defendant's own sphere of responsibility and cannot ordinarily be imposed on the opposing party who has properly effected service.

I therefore find that service of the writ and amended statement of claim was validly effected. Whether the Defendant has provided a satisfactory explanation for his absence at trial

The Plaintiff has exhibited evidence showing that the notice dated 21.11.2025 informing the Defendant of the trial fixed on 7.12.2025 was delivered through courier service and that the recipient identified himself as Che Ibrahim Mohamed and verified the last six digits of his identity card before accepting delivery.

The courier records contain specific identifying particulars (the Defendant's IC number) which lend credibility to the Plaintiff's account. The Defendant has not produced any evidence capable of undermining the reliability of those records. Neither has he offered any plausible explanation as to how those identifying particulars could have been supplied if the delivery had not in fact been made to him. As such, I find that the Defendant's response is a bare denial and that the Plaintiff's version more probable. I therefore find, on a balance of probabilities, that the Defendant had actual notice of the trial date.

Applying the principles enunciated in FELDA v Awang Soh (supra), the explanation for the Defendant's absence is the predominant consideration. Having found that the Defendant had actual notice of the trial date, I am unable to conclude that his absence was due to accident or mistake.

As the Defendant received the notice informing him of the trial date, I do not accept the Defendant's contention that he was unaware of the trial date. The explanation advanced by the Defendant is therefore unsatisfactory and does not justify his absence at the trial.

Having perused the evidence in totality, particularly the evidence regarding the service of the letter of demand, the service of the writ and Statement of claim, and the service of the Notice of trial, I conclude that this is not a case of a defendant being unaware of the action and trial date. This is a clear case of a litigant who knew about the proceedings against him, but chose to ignore the proceedings, which in my view is a complete disregard to the court process. Whether the delay in filing the application has been satisfactorily explained

The Plaintiff obtained the judgment on 7.1.2026 after a trial which the Defendant did not participate in. According to the Defendant, he became aware of the judgment on 12.1.2026. Despite having acquired such knowledge, the present application was only filed on 23.2.2026, 29 days exceeding the 14-day period specified in O.35 r 2(2) of the Rules of Courts.

Defendant attempts to explain the delay by stating that he required medical treatment and time to consult solicitors before taking the necessary steps to challenge the judgment.

Apart from the averment above, Defendant has not provided a meaningful chronology accounting for the period between 12.1.2026 and 23.2.2026. There is no evidence explaining what steps were taken during that period, when legal advice was sought, when instructions were given to solicitors or why was the application not filed earlier.

A litigant who genuinely wishes to challenge a judgment would ordinarily be expected to act with a sense of urgency upon discovering its existence. This is particularly so where the judgment was obtained after a full trial and where the applicant contends that he had been unaware of the proceedings leading up to the judgment.

However, I find it peculiar that the Defendant remained inactive for a substantial period after allegedly becoming aware of the judgment. The delay is therefore not merely a matter of elapsed time; it reflects a continued lack of diligence on the part of the Defendant in attending to the proceedings.

Delay in bringing an application to set aside a judgment is a relevant consideration in determining whether the Court ought to exercise its discretion in favour of the applicant. The reason is obvious. A party who genuinely believes that a judgment has been entered against him unfairly would ordinarily take immediate steps to seek redress.

Even accepting the Defendant's version at its highest, his conduct after 12.1.2026 is inconsistent with that of a litigant who was genuinely anxious to have the judgment set aside at the earliest opportunity.

Viewed in its totality, I find that the delay has not been satisfactorily explained. This is a factor which weighs against the exercise of the Court's discretion in favour of the Defendant. I therefore find that the delay has not been satisfactorily explained. Whether the Defendant has demonstrated a defence with sufficient merit to justify setting aside the judgment

The Defendant contends that he possesses a bona fide defence founded on fair comment, public interest and absence of malice. In this regard, it cannot be said that the proposed defence is entirely frivolous or devoid of merit. However, that is does not mean that the Defendant is automatically entitled to set aside the judgment.

As emphasised by the Court of Appeal in FELDA v Awang Soh (supra), the Court is not concerned solely with whether an arguable defence exists in cases where a judgment has been obtained after a full trial. The explanation for the applicant's absence remains the predominant consideration.

In the present case, I have found that service was validly effected, and that the Defendant had actual notice of the trial date. I also found that his explanation for failing to attend the trial is unsatisfactory and that the delay in filing the present application has not been satisfactorily explained.

In those circumstances, the existence of an arguable defence is insufficient to justify setting aside a judgment obtained after a full trial.

Accordingly, whilst I accept that the Defendant has identified issues which could have been ventilated at trial, I do not find that this factor justifies the exercise of the Court's discretion in his favour. Whether the interests of justice favour setting aside the judgment

The Defendant was not denied an opportunity to be heard. The evidence demonstrates that opportunities were available to him throughout the proceedings.

However, the Defendant is the author of his own misfortune when he failed to enter appearance and to file a defence. To make matters worse for him, he failed to attend the trial. Even after allegedly becoming aware of the judgment, he failed to act with any degree of urgency.

The Defendant's conduct reveals a persistent and lackadaisical attitude towards these proceedings. The Court cannot overlook the Defendant's attitude towards the litigation process. Court proceedings are not matters that can be treated casually or ignored at one's convenience. Such conduct reflects a lackadaisical attitude not only towards the Plaintiff's claim but also towards the authority of the Court and the judicial process itself.

Respect for the administration of justice requires parties to engage with court proceedings in a timely and responsible manner. The Defendant's persistent inaction demonstrates a disregard for that obligation.

This Court must emphasise that a litigant who repeatedly ignores court processes, court timelines and a duly fixed trial date cannot subsequently complain that he was denied an opportunity to be heard. This is not a case where the Defendant was shut out from the courtroom. It is a case where the Defendant, whether through deliberate inaction or sheer indifference, failed to avail himself of opportunities that remained available throughout the proceedings.

The Court cannot permit its discretionary jurisdiction to be invoked as a remedy for a litigant's sustained indifference towards court proceedings.

For the reasons stated above, the Defendant's application is dismissed with costs of RM8,000.00. This Grounds of Judgment is dated 24.6.2026. SHAMSUL BAHRIN BIN ABDUL MANAF Pesuruhjaya Kehakiman Mahkamah Tinggi (3) Kota Bharu Kelantan PIHAK-PIHAK: Peguam bagi pihak Tetuan Syahidah Sharul & Marsyara Plaintiff: No.12F, Aras 2, Persiaran Greentown 1, Pusat Perdagangan Greentown, 30450 Ipoh, Perak Darul Ridzuan. Peguam bagi pihak Tetuan Shaharuddin Hidayu & Marwaliz Defendan: No. 5578-E, Lot 347, Tingkat Satu, Wisma SHM, Seksyen 23, Taman Desa Telipot, 15150 Kota Bharu, Kelantan.