……………………. [15] Plaintiff also further contends that there is no need for an acknowledgement of the receipt of the Writ and Statement of Claim by relying in the case of PT Technic (M) Sdn. Bhd. v Arcmatic Sdn. Bhd [2017] 1 LNS 1299 wherein Faizah Jamaludin J decided as follows- “There is no requirement in the ROC for the Defendant to acknowledge receipt of the Writ and Statement of Claim. Therefore, the fact that the Defendant's clerk refused to acknowledge receipt is immaterial to the validity of the service” [16] However, Defendant disputes the service by Plaintiff’s process server and relies in the case of Goh Teng Whoo & Anor v. Ample Objectives Sdn Bhd [2021] 4 CLJ 348 wherein the Federal Court held:- “For all the reasons aforementioned, our answer to the leave question is in the negative, that is to say, where service of a writ is alleged to have been effected by way of sending the same to a defendant by AR Registered post pursuant to O. May 29, 2023 6 r. 1(1) of the Rules of Court 2012, the court cannot seal a judgment in default of appearance where the affidavit of service does not exhibit the AR registered card containing an endorsement as to receipt by the defendant himself or someone authorised to accept service of the same on his behalf” [17] The facts in Goh Teng Woo’s case (supra) is not the same with the facts in our present case cause that case concerns service by way of AR Registered Post. [18] I find the facts deposed by the Plaintiff’s process server in his Affidavit of Service amounts to a good service. The facts disclose that the Plaintiff’s process server was present at the Defendant’s Company business address, handed the sealed copy of the Writ and Statement of Claim to the Defendant’s director who upon receiving the same, made the process server to wait unnecessarily at the Company’s premise and thereafter evaded acknowledging service of the same. [19] The sealed copy of the Writ and Statement of Claim that was served to the Defendant’s director was neither taken back by the process server nor returned to the Plaintiff’s process server by the said director. It remained with the Defendant’s director and as such is deemed to have been duly served on the Defendant company. [20] I find that the fact that the sealed copy of the Writ and Statement of Claim was left with the company’s director at the company’s business address although the receipt was not acknowledged by the Defendant’s director is sufficient and good service. May 29, 2023 7 [21] There is no requirement in law that the Plaintiff must produce an acknowledgement of service of the Writ and Statement of Claim on the Defendant as decided in PT Technic (M) Sdn. Bhd. (supra). [22] The Affidavit of Service also discloses that the Defendant’s director queried the process server as to why isn’t the Writ and Statement of Claim served on the Defendant’s solicitors. [23] I find there is no evidence produced by the Defendant that Plaintiff’s solicitors were notified to serve the Writ and Statement of Claim on the Defendant’s solicitors as required pursuant to Order 62 Rule 13 ROC 2012. [24] Next, I find it is rather perplexing as to how the Defendant obtained title details in this Writ action to enable them to file their Memorandum of Appearance on 7.1.2022 when at the same time they contend it was never served on them at all. The inference that can be drawn is that Defendant must have obtained these details from the Writ and Statement of Claim that was duly served by the process server on 20.12.2021 at the company’s business address by leaving it with the director. [25] I am of the considered view that the Defendant is not making a candid and honest disclosure as to service of the Writ and Statement of Claim on them. In Hong Leong Equipment Sdn. Bhd. v Manfo Development Sdn. Bhd. & anor. [1986] CLJ (Rep) 371 it was held by VC George J (as he then was):- “(d) The defendant who is seeking the indulgence of the Court should make full, frank, candid and honest May 29, 2023 8 disclosures of all the relevant facts. Failure to do so could result in the Court refusing to exercise its discretion in favour of the applicant.” [emphasis added] [26] Likewise, in Anthony Goh Khiok Loong v Chan Yam Heng & Anor [2006] 7 CLJ 309, Clement Skinner J (as he then was) had this say:- “The defendants’ further lack of candour can be seen from their assertion that the interlocutory judgment was entered against them ‘due to unforeseen circumstances’. The defendants are not being forthright with the court nor of any assistance to the court when they refuse to inform the court what those ‘unforeseen circumstances’ were. In a case such as this where the defendants are relying on the court to exercise discretion in their favour, they cannot expect a favourable exercise of discretion if they themselves are not candid with the court or are not willing to place all relevant material before the court to assist the court in the exercise of its discretion” [emphasis added] [27] Defendant did not pursue before me the issue with regards to the error in the name of the Defendant’s director in the indorsement of service. [28] For the foregoing reasons, I find the learned Sessions Judge has correctly decided that the Writ and Statement of Claim was duly served on the Defendant. May 29, 2023 9 [29] I find there is no merit in this ground of appeal. AFFIDAVIT OF SERVICE OUGHT NOT BE AFFIRMED BY A SOLICITOR [30] Plaintiff’s Affidavit of Service was affirmed by the solicitor. [31] Plaintiff submits that an Affidavit of Service being formal in nature, can be affirmed by a solicitor. In support of this contention, Plaintiff cites the case of Auto Dunia Sdn Bhd v Tiong Ngoh Hoh [2009] 10 CLJ 41 wherein Hamid Sultan Abu Backer JC (as he then was) held – “Solicitors ought not to affirm affidavits on behalf of their clients unless the affidavit is of a formal nature, such as an affidavit of service” [emphasis added] [32] Plaintiff further submits that the solicitor had affirmed the Affidavit of Service since he personally attended to the service of the Writ and Statement of Claim on the Defendant and has personal knowledge of what transpired between him and the Defendant’s director at the Defendant’s premise. In support of this, Plaintiff relies in the case of Peremesary A Ramu v. Yeo Siy Hun @ Yeo Ser Huan & Anor [2022] 1 LNS 1431 wherein Shamsulbahri Ibrahim JC (as he then was)- “In the instant case, the Defendants argued that the affidavit-in-support should not be admitted as the facts in the affidavit are contentious or disputed as well as not from the deponent’s May 29, 2023 10 personal knowledge. With respect, I find that the argument is misconceived. Looking at the content of the affidavit, it is clear that the deponent only narrated what was transpired during the trial on 26.4.2021. As the solicitor who was conducting the hearing on that date, the deponent clearly stated about the SP1’s version relating to the cause of the accident. Therefore, I am of the view that this the affidavit-in-support is not in contravention with O. 41 r. 5 of the ROC 2012 and should be allowed. Further there is no legal prohibition on the solicitor to affirm an affidavit on behalf of his client as long as the facts in the affidavit are within his knowledge. Thus, the preliminary objection by the Defendants is dismissed”. [33] On the other hand, Defendant contends that the Affidavit of Service ought not to be affirmed by solicitors in line with the established authorities holding that a solicitor ought not to affirm Affidavits in a contentious matter. [34] In support of this contention, Defendant relies in the following authorities: Million Group Credit Sdn Bhd v Lee Shoo Koon & ors 1985 CLJ (rep) 575, Seng Huat Hang Sdn Bhd v Chee Seng & Co. Sdn Bhd 1985 2 CLJ 97, Malayan Banking Bhd v Chesterfield 2001 CLJ 467, Kaplands Sdn Bhd v Lee Chin Cheng Dengkil Oil Palm Plantations Sdn Bhd [200] 4 CLJ 281, Sabah Bank Sdn Bhd v Pemborong keningau Sdn Bhd [1991] 3 CLJ 2590 wherein it was decided that the practice of solicitors filing contentious Affidavits in pending applications should be discouraged and since parties are the litigants, as such they should be giving evidence. May 29, 2023 11 [35] Defendant also submits that pursuant to Rule 28 of the Legal Profession (Practice & Etiquette Rule 1978), a solicitor ought not to affirm Affidavits in contentious matters. [36] In reply to the Auto Dunia case (supra) relied by the Plaintiff, Defendant submits that case concerns an Affidavit in Support for leave to commence judicial review. [37] I find that there is no prohibition for a solicitor to affirm an Affidavit of Service. The practice of solicitors affirming such Affidavits is not prohibited but only discouraged. [38] Furthermore, at the point of time of service of Writ and Statement of Claim on the Defendant company, the matter was not contentious. In fact, one would not be able to anticipate whether service of the Writ and Statement of Claim on the Defendant company by leaving it with the director would become contentious in the near future. It only became contentious thereafter when the Defendant made the application to set aside the Judgement in Default. [39] Whereas the case of Malayan Banking Sdn Bhd v. Charterefield Corporation Sdn Bhd [2001] 6 CLJ 407, relied on by the Defendant does not support the Defendant. In that case, the preliminary objection raised on the ground the Affidavit in Support of an application for amendment was affirmed by the solicitor was dismissed on the ground that only the solicitor who prepared the documentation pertaining to the amendment to the title in the Writ will know whether it was properly prepared or not. May 29, 2023 12 [40] Likewise, in our present case, it is the solicitor who served the Writ and Statement of Claim on the Defendant by leaving it with its director who has personal knowledge of the service. [41] As such I also find no merit in this ground of appeal. AMENDMENT TO THE JUDGEMENT IN DEFAULT [42] Lastly Defendant raises an objection as to the amendment made to the date of commencement of interest on the judgement sum. It was amended from date of filing of Writ to date of Judgement by the Court upon signing the Judgement in Default. [43] According to the Defendant, Plaintiff ought to have filed a formal application pursuant to Order 20 Rule 11 ROC 2012 and they rely in the Federal Court’s decision in Tuan Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad[1996] 1 CLJ 241 wherein it was held:- “……………………the Judge recognised that the default judgment suffered from the defect that the words “Margin”, “Prescribed Rate” and "Base Lending Rate", were nowhere defined therein, but considered that if the default judgment were read along with the loan agreement, the defects would be cured, since it was obvious that those words were defined in the loan agreement. The Judge then proceeded to dismiss the appellant’s appeal, to amend the default judgment in terms of the respondent's application, which prayed for the deletion of the words “daily May 29, 2023 13 rests basis” from the judgment, (even though this application was not before him for disposal and so neither Counsel was heard on the merits thereof) and he then proceeded to restore the default judgment, subject to these amendments. Clearly, there had been procedural impropriety in the decision making process, as neither Counsel had had the opportunity of being heard, and on this ground alone, his judgment could not stand.” [44] Whereas Plaintiff contends that this amendment was done in accordance with Order 42 Rule 12 ROC 2012 which provides as follows- “12. Interest on judgment debts (O. 42 r. 12) Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied” [45] I am of the considered view that this amendment was carried out by the Court on its own volition administratively by the Registrar when signing the Judgement in Default. It was not an exercise of judicial function. May 29, 2023 14 [46] In fact, the amendment is beneficial to the Defendant since it shortens the computation period for interest due on the judgement sum. [47] The facts in Tuan Ahmed’s case (supra) is distinguishable from the facts in our present case cause in that case, the learned judge when dealing with an appeal before him from the decision of the Registrar in dismissing an application to set aside a Judgement in Default, granted an order in terms of an application to amend the Judgement in Default that was not fixed before him and without hearing the parties on merits. [48] Whereas in our present case, the Court on its own volition amended the commencement date for the interest on the Judgement sum in accordance with Order 42 Rule 12 ROC 2012 when signing the Judgement in Default. [49] I find the learned Sessions Judge had correctly dismissed this argument raised by the Defendant. [50] I find no merit in this ground of appeal also. DEFENCE ON THE MERITS [51] Defendant has not raised any defence on the merits in their submissions. A perusal of the Defendant’s Affidavit in support of their application to set aside the Judgement in Default does not disclose any evidence of defence on the merits. May 29, 2023 15 [52] The Plaintiff’s claim against the Defendant is for balance sum RM920,000.00 due to the Plaintiff pursuant to a Settlement Agreement for RM1,250,000.00 entered between both parties and a further sum of RM3,125.00 being the Defendant’s share of stamp duty for the Agreement. [53] The Settlement Agreement was entered into by both parties pursuant to a civil suit filed by the Plaintiff against the Defendant. [54] A perusal of the Plaintiff’s Statement of Claim discloses that the Defendant had paid RM250,000.00 towards the first payment and a further sum RM80,000.00 towards the balance RM1,000,000.00 leaving a balance RM920,000.00 outstanding. [55] Surely these payments made by Defendant towards the outstanding sum will tantamount to an acknowledgement of the debt owed to the Plaintiff pursuant to the Settlement Agreement. [56] Hence it can be concluded that the Defendant has no meritorious defence against the Plaintiff’s claim. APPLICATION MADE UNDER THE WRONG PROVISION [57] Defendant made the application to set aside the Judgement in Default pursuant to Order 42 Rule 13 Rules of Court 2012. [58] Order 42 Rule 13 ROC 2012 only deals with the time period within which an application to vary or set aside a Judgement must be made. May 29, 2023 16 [59] Plaintiff’s obtained Judgement in Default of Appearance against the Defendant pursuant to Order 13 Rule 1 ROC 2012 and pursuant to Order 13 Rule 8 ROC 2012, the application to set aside ought to be made pursuant to this specific provision. [60] Order 42 Rule 13 ROC, 2012 is only the general ground rule to deal with this application by providing the time frame within which the application for setting aside must be made. [61] In Bank Bumiputra Malaysia Bhd v Aik Lee Feedmill Co Sdn Bhd & Ors [1999] 6 CLJ 1, a case involving the Defendant appealing against the Judgement in Default entered pursuant Order 14 application, Suriyadi J (as he then was) in allowing the preliminary objection raised by the Plaintiff as to the correct provision for making the application to set aside held as follows:- “Specific provisions are littered in the Rules of the High Court 1980, to deal with specific problems relating to setting aside applications e.g. the abovementioned O. r. 11 for default judgments obtained in summary judgments; O. 13 r. 8 where the order was obtained due to default of appearance to a writ; O. 32 r. 6 where an order was obtained ex parte; O. 35 r. 2(1) where there was non-attendance of one party, etc. Regarding the general ground rules to deal with these applications, O. 42 r. 13 is highly relevant” [emphasis added]