Kuantan Tembeling Condominium Management Corporation v Sam Siew Chong (CA-A72NCvC-233-09/2022)

The defendant, vide enclosure 15, had filed an application to strike out the judgment in default entered against the defendant pursuant to O. 42 r. 13 of the Rules of Court 2012 (herein referred to as "the ROC 2012"). The plaintiff had objected the application. After perusing the application, affidavits and written submissions by both parties, this court had dismissed the defendant’s application with costs. The reasons for the decision of this court are set out as below. 25/05/2024 23:12:32 CA-A72NCvC-233-09/2022 Kand. 36 S/N 4e3HvR8oqkyAWSgesqvPvQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

The plaintiff is a private company incorporated in Malaysia having its registered address at 28, Jalan Bukit Setongkol Jaya 108, 25200 Kuantan, Pahang.

The defendant is an individual having his registered address at E- 02-01, Blok E, Meranti, Kuantan Tembeling Condominium, Jalan Padang Golf, 25050 Kuantan, Pahang Darul Makmur and/or No. 6, Lorong Semambu Baru 76, Andorra Peak Semambu Baru, 25350 Kuantan, Pahang.

The plaintiff claimed against the defendant for a sum of RM38,013.50 as the defendant had failed to pay to the plaintiff monthly management fees continuously since 01/11/2013 and reminders had been sent to the defendant (including a statement of claim) but the defendant failed to settle the outstanding payments.

The plaintiff obtained a judgment in default of appearance dated 07/12/2022 against the defendant and the court granted the judgment sum of RM1,483,255.83 to the plaintiff. However, the defendant claimed that the judgment in default was not in order and the outstanding amounts which the plaintiff had claimed against the defendant was wrongly calculated.

The defendant further submitted that he had merits in his defence because there were errors in calculation of the outstanding amounts. S/N 4e3HvR8oqkyAWSgesqvPvQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The defendant applied an application to strike out the judgment in default pursuant to Order 13 Rule 8 the ROC 2012. The provision of Order 13 Rule 8 the ROC 2012 is reproduced hereunder: “8. Setting aside judgment (O. 13 r. 8) The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.

The defendant's application was supported by an affidavit (vide Enclosure 20) deposed by Wan Khairudin bin Wan Ab Manan who after verifying the facts of the defendant's application stated that he verily believed that the defendant had defence with merits ('terdapat pembelaan bermerit', Enclosure 20, para. 19.5).

The defendant averred in the written submission (Enclosure 21) that the judgement that has been entered is as a result of some impropriety which is considered so serious as to render the proceedings a nullity. A peculiar situation which renders a judgment in default to be irregular is when it infringes the ROC 2012. The defendant averred that the judgment in default infringes the ROC 2012 because a judgment in default of appearance is entered when the prayers involved an injunction. In view that the judgment in default was entered upon the default of appearance instead of default of defence, it is apparent that the plaintiff did not seek the leave of court in this context. S/N 4e3HvR8oqkyAWSgesqvPvQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

On the other side, the plaintiff submitted that the defendant was just trying to mislead the court whereas it was submitted by the plaintiff that the payment was the statutory liability by the defendant as proprietor of the condominium under section 77 of Strata Management Act. The plaintiff submitted that the liquidated claim amount falls under Order 13 Rule 1 of the ROC 2012, thus the judgment in default is regular.

As stated under Order 13 Rule 8 of the ROC 2012, the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. I refer to Order 42 Rule 13 of the ROC 2012 that is stated as follows: “13. Setting aside or varying judgment and orders (O. 42 r. 13) Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.” S/N 4e3HvR8oqkyAWSgesqvPvQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

In this case, the plaintiff has filed the CNA on 7th December 2022 and the JID on 7th December 2022 after the non-appearance of the defendant to file the defence. As plaintiff submitted that based on the authorities laid down above, the said writ was filed on 20th September 2022 and it was delivered to the defendant by way of substituted service on 7th December 2022.

Once the said writ was delivered to him, he must have known about the claim that was about to be taken against him but there was no defence entered. Hence, I believe that the service was perfected and the JID entered was regular. The contention of the defendant stating that he was only aware of the JID on 2nd October 2023 after the execution was never put the plaintiff at fault, because plaintiff had successfully perfected the service as per provided under the law. ii) Whether the Defendant had successfully stating facts showing that he had defence on merits.;

In determining whether the defendant had successfully stating facts that he had defence on merits, this court is of the view to go thoroughly on the facts brought forward by the defendant. The defendant argued that although the court found that the service was perfectly served, the judgment still can be set aside when merits are disclosed and when the court is satisfied that there were merits in the defence.

The defendant argued that there was a peculiar situation which renders a judgment in default to be irregular is when it infringes the ROC 2012 in this case. The defendant averred that the judgment in default infringes the ROC 2012 because a judgment in default of appearance is S/N 4e3HvR8oqkyAWSgesqvPvQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 entered when the prayers involved an injunction. However, this court disagree with the contention of the defendant, and agree with plaintiff that the payment was the statutory liability by the defendant as proprietor of the condominium under section 77 of Strata Management Act. Thus, the liquidated claim amount falls under Order 13 Rule 1 of the ROC 2012, thus the judgment in default is regular.

It is germane for the court to highlight the fact that although the defendant had advanced the contention as above as his defence, it was not in line with his action by trying to propose for settlement on 9th January 2023 and 22nd Mac 2023 within 342 days before filing the application. If the defendant if was really committed to adhere with his defence, he must not try to make any proposals to settle but he did. His action after was notified about the judgment was indeed a manifestation that he really indebted to the plaintiff and the defence that he was raising here was just a manoeuvre to delay and deny the plaintiff’s fruit of judgment.

For the reasons adumbrated above, this court dismissed enclosure 15 with cost RM1000 to be paid to the plaintiff. DATED: 24TH MAY 2024 (NOR IZZATI BINTI ZAKARIA) Magistrate Magistrates' Court Kuantan, Pahang S/N 4e3HvR8oqkyAWSgesqvPvQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Counsel: For the plaintiff - Norhuda from Messrs. Loke Chew & Zainal For the defendant – Tang Hui Jun from Messrs. Ooi, Yong, Tang & Partners Legislation(s) referred: Order 13 Rule 8 the ROC 2012 S/N 4e3HvR8oqkyAWSgesqvPvQ **Note : Serial number will be used to verify the originality of this document via eFILING portal