Loi Leong Ching v 1. ) Ng Wee Heng (CA-A72NCC-415-09/2023)

The second defendant, vide enclosure 20, had filed an application to strike out the judgment in default entered against him pursuant to O. 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 second defendant’s application with costs. The reasons for the decision of this court are set out as below.

The plaintiff is an individual having his registered address at No. 7, Lorong Galing 51, Off Jalan Ahmad, 25300 Kuantan, Pahang Darul Makmur.

The first defendant is an individual having his registered address at B-238, Tingkat Atas, Jalan Air Putih, 25300 Kuantan, Pahang Darul Makmur. The second defendant is an individual having his registered address at No. 204, Jalan Semantan 2, Taman Sri Semantan, 28000, Temerloh, Pahang Darul Makmur.

The plaintiff claimed against the defendants for a sum of RM90,735- 31 as the defendants had failed to pay to the plaintiff and reminders (notice of demand dated 24.08.2023) had been sent to the defendants (including a statement of claim) but the defendants failed to settle the outstanding payments. On 27.08.2024, the first defendant had made a payment amounting RM500-00 to the plaintiff.

The plaintiff obtained a judgment in default of appearance dated 28.11.2023 against the defendants and the court granted the judgment sum of RM90,235-31 to the plaintiff. However, the defendants claimed that the judgment in default was not in order and the second defendant contended that the failure of the first defendant to pay the outstanding amount was out of his knowledge.

The second defendant further submitted that he had merits in his defence because the failure of the first defendant to pay the outstanding amount was out of his knowledge.

The second defendant had 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 second defendant's application was supported by an affidavit (vide Enclosure 21) deposed by Zakaria bin Wok, who after verifying the facts of the second defendant's application stated that he verily believed that the defendant had defence with merits ('terdapat pembelaan prima facie', Enclosure 21, para. 7).

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.”

In this case, the plaintiff had filed the Certificate of Non Appearance on 28.11.2023 and the Judgment In Default on 28.11.2023 after the non-appearance of the second defendant to file the defence. As I perused the documents, the said writ was filed on 21.09.2023 and it was delivered to the second defendant by way of substituted service on 2.11.2023.

As stated by the plaintiff in the written submission, it is an undisputed fact that the last known address of the second defendant is at No. 204, Jalan Semantan 2, Taman Sri Semantan, 28000 Temerloh. The second defendant had not shown any evidence of making any notification as to the change of his address to the plaintiff neither to his own partner. The last known address of the second defendant is as per copy of search from Suruhanjaya Syarikat Malaysia (refer to exhibit ZBW-1, Encl. 21).

It is under the law, that as the writ could not be affected by way of personal service, the plaintiff thus proceeded with an application for substituted service pursuant to Order 62 Rule 5 Rules of Court 2012 and had obtained an order on 25.10.2023 and proceeded with the service of the cause papers accordingly. Once the said writ was delivered to him by way of substituted service, 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. 5 ii) Whether the Defendant had successfully stating facts showing that he had defence on merits.;

In determining whether the second 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 second defendant. The second defendant had 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 second defendant had argued that he is no longer a partner of the said firm thus he is not liable for any act done during the partnership as. He further contended that he had no knowledge of the transaction between the plaintiff and the first defendant had accrued.

However, I have a different view on that. I strongly agree with the submission of the plaintiff that the ignorance of the second plaintiff regarding the transaction between the plaintiff and the first defendant is “ignorantia juris non excusat”. It must be reminded that the transaction was done during the second defendant was a partner in that company.

It is trite law which had been expounded in a plethora of cases such as in the Court of Appeal case of TOH FONG CHENG & ORS V. PANG CHOON KIAT & ORS AND ANOTHER APPEAL [2020] CLJU 2123 that stated as follows: “[102] A breach of contractual obligations by the partnership firm of Messrs FL Foo & Co is a breach by all the partners of the Legal Firm even though only one partner in the late Madam FL Foo appeared to have taken charge of the matter and that the other partners were not aware of the transaction until after the event.

There is thus a clear breach of contractual obligation of the Legal Firm in the breach of the implied term of the undertaking and this being a transaction in the ordinary course of business of the Legal Firm, all the partners are liable. The other partners cannot exempt themselves from liability on ground that the stakeholder sum was channeled by the late partner for her own personal project. This is further discussed below.”

It is germane for the court to highlight the fact that although the act was done by one partner of the said firm, but that act alone binds the other partner and all partners of the said firm. I refer to Section 8 of the Partnership Act 1961 that states as follow: 8 Partners bound by acts on behalf of firm “An act or instrument relating to the business of the firm and done or executed in the firm-name, or in any other manner showing an intention to bind the firm, by any person thereto authorized, whether a partner or not, is binding on the firm and all the partners.”

Thus, I conclude that the defence that the second defendant was raising here was just a manoeuvre to delay & to deny the plaintiff’s fruit of judgment.

For the reasons adumbrated above, this court had dismissed enclosure 20 with cost RM1000 to be paid to the plaintiff forthwith. DATED: 3rd SEPTEMBER 2024 (NOR IZZATI BINTI ZAKARIA) Magistrate Magistrates' Court Kuantan, Pahang Counsel: For the plaintiff - R Sarengapani A/L Rajoo from Messrs RS Pani & Associates For the defendant – Rozilan Bin Abdul Rahman from Messrs. Rozilan & Aribah Ahmad Legislation(s) referred: SECTION 8 OF THE PARTNERSHIP ACT 196; ORDER 42 RULE 13 OF THE RULES OF COURT 2012; and ORDER 13 RULE 8 OF THE RULES OF COURT 2012 Case(s) referred: TOH FONG CHENG & ORS V. PANG CHOON KIAT & ORS AND ANOTHER APPEAL [2020] CLJU 2123