Muhammad Rusydaan Bin Anuar v Y & S Mutiara Construction Sdn. Bhd. (CA-A72NCvC-201-08/2023)

In this case, the plaintiff filed a civil action against the defendant claiming for a breach of the Sale and Purchase Agreement dated 22nd February 2020. Plaintiff then obtained a judgment in default (hereinafter referred as “JID”) against the defendant by the failure of the defendant to enter appearance within the stipulated time. The defendant vide enclosure 13 then filed an application strike out the judgment in default entered against him pursuant to Order 13 Rule 8 of the Rules of Court 2012. 09/04/2024 13:45:59 CA-A72NCvC-201-08/2023 Kand. 28

The plaintiff is the buyer of a unit of Semi-D at No. Lot 176, PT 23325, Phase 1A (hereinafter referred as “the said property”) having his registered address at No. 9, Jalan Bukti Semantan 2, Taman Bukit Semantan, 28000 Temerloh, Pahang Darul Makmur dan /atau AU 27, Jalan 13 Perwaja Timur Taman Perwaja, 24000 Kemaman, Terengganu Daru Iman.

The defendant is a company incorporated in Malaysia under the Companies Act 1965, having its registered address at No. 5A, Lorong Putih 9, Taman Rakyat Mergong, Alor Setar, 05050 Kedah.

By the Sale and Purchase Agreement dated 22nd February 2020 entered into between the plaintiff and the defendant, the plaintiff had bought the said property from the defendant at a purchase price of RM159,940-00 and had deposited RM2,000-00 on 30th October 2019 as a booking fee.

Based on the said SPA, it was agreed that the delivery of vacant possession of the said property shall be on 27th July 2023, however the plaintiff was informed that the said property was not completed and was abandoned. The said property was also not delivered on the specified date. Thus, plaintiff proceeded this action to claim all the payments that the plaintiff had paid to the defendant for the failure of the defendant to adhere to the terms and conditions stipulated in the said SPA.

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 14) deposed by Illias bin Mustafa 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 14, para. 8).

The defendant averred in the written submission (Enclosure 19) that Writ Summons and Statement of Claim (hereinafter referred as “the said writ”) was perfectly served upon him and had agreed that the service was perfected. The defendant further averred that judgment in default cannot be entered for item 16 (f) and (h) in Enclosure 2 based on the Order 13 Rule 2 ROC 2012 that stated as follows: “2. Claim for unliquidated damages (O. 13 r. 2) Where a writ is endorsed with a claim against a defendant for unliquidated damages only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter interlocutory judgment against that defendant for damages to be assessed and costs, and proceed with the action against the other defendants, if any.”

The defendant further 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. Thus, the defendant submitted his defence by stating that the defendant was affected by coronavirus and the fact that there were entitled for 167 days delay in the delivery of vacant possession. The defendant further submitted a case law in the PERBADANAN KEMAJUAN NEGERI SELANGOR lwn. NATIONWIDE TIARA (M) SDN BHD [2023] CLJU 2042 that provided as follows:

Kelewatan yang berlaku dalam penyiapan Kerja-kerja tersebut adalah terangkum dalam suatu Akta bernama Akta Langkah-Langkah Sementara Bagi Mengurangkan Kesan Penyakit Koronavirus 2019 (COVID-19) 2020 [Akta 829], khususnya peruntukan yang berikut: Section 7. Inability to perform contractual obligation The inability of any party or parties to perform any contractual obligation arising from any of the categories of contracts specified in the Schedule to this Part due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 [Act 342 ] to control or prevent the spread of COVID-19 shall not give rise to the other party or parties exercising his or their rights under the contract. Section 35. Delivery of vacant possession and liquidated damages

Notwithstanding any agreement entered into between the purchaser and the developer, the period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of:-

the time for delivery of vacant possession of a housing accommodation; and

the liquidated damages for the failure of the developer to deliver vacant possession of a housing accommodation.

The developer may apply to the Minister for an extension of the period referred to in subsection (1).

Upon considering the application under subsection (2), the Minister may, if the Minister is satisfied that additional time is required by the developer to deliver vacant possession, by written direction grant to the developer an extension period of up to 31 December 2020 to deliver vacant possession and such extension shall have the same effect as the period excluded in subsection

(1).

Notwithstanding any agreement entered into between the purchaser and the developer, if the purchaser is unable to enter into possession of occupation of a housing accommodation from the date of service of a notice to take vacant possession from the developer during the period from 18 March 2020 to 31 August 2020 or any extension period granted under subsection (3), the purchaser shall not be deemed to have taken such vacant possession.". The Plaintiff’s arguments [10] On the other side, the plaintiff submitted that the said writ was perfectly served to the defendant by way of AR Registered Card and the judgment was regularly obtained. However, the defendant averred otherwise. To rebut this, plaintiff further asserted the judgment was regular has referred to Order 12 Rule 4 (a) of the ROC 2012 and Order 13 Rule 7 of the ROC 2012 that stated as follows: “4. Time limited for appearing (O. 12 r. 4) References in these Rules to the time limited for appearing are references-

in the case of a writ served within Peninsular Malaysia, to fourteen days after service of the writ or, where that time has been extended by or by virtue of these Rules, to that time as so extended;” and “7. Proof of service of writ (O. 13 r. 7)

A judgment shall not be entered against a defendant under this Order unless-

the plaintiff produces a certificate of non-appearance in Form 12; and

either an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant, or the plaintiff produces the writ endorsed by the defendant's solicitor with a statement that he accepts service of the writ on behalf of the defendant.

Where an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court may require to be satisfied in such manner as it thinks fit that the party is in default of appearance.” [11] Plaintiff submitted that based on the authorities laid down above, the said writ was filed on 17th August 2023 and it was delivered to the defendant as their authorised person was the one who acknowledged the service by signing it at the back of the AR Registered Card. 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. Thus, plaintiff proceeded to file the Certificate of Non-Appearance (hereinafter referred as “CNA”) on 1st October 2023 and the Judgment in Default (hereinafter referred as “JID”) on 4th October 2023 after 14 days of the non-appearance of the defendant to file the defence. Hence, the plaintiff adamantly submitted that the JID was regular & should have not be set aside. Reasons for the decision i) Whether the JID was regular; [12] 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.” [13] In this case, the plaintiff has filed the CNA on 1st October 2023 and the JID on 4th October 2023 after 14 days of the non-appearance of the defendant to file the defence. Only after 36 days the JID was entered, the defendant filed the Memorandum of Appearance (hereinafter referred as “MOA”) on 16th October 2023. I strongly agree with the contention of the plaintiff that before entering the MOA after the expiry of the 14 days, the defendant should have applied for leave. It is clearly stated under Order 12 Rule 5 of the ROC 2012 as follows: “5. Late appearance (O. 12 r. 5)

A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court.

Except as provided by paragraph (1), nothing in these Rules or any writ or order thereunder shall be construed as precluding a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time.” [13] In this case, the Defendant had straightaway filed the MOA without obtaining the leave from court. From the authority stated as above, it clearly stated the defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the court. In my opinion, the defendant had slept on his rights when he received the said writ on 20th August 2023 and did nothing. [14] He was supposed to immediately seek clarification from the Plaintiff when he received the said document denying the claim against him and file the defence within 14 days after the service the writ. But, it was otherwise. In this situation, it’s not the JID that was irregular but the MOA entered by the defendant was. Thus, after careful consideration and my thorough reading, I found nothing irregular in the JID entered. ii) Whether the Defendant had successfully stating facts showing that he had defence on merits.; [15] 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. Thus, the defendant submitted his defence by stating that the defendant was affected by coronavirus and the fact that there were entitled for 167 days delay in the delivery of vacant possession. [16] It is germane for the court to highlight the fact that although the entitlement 167 days was granted by the Temporary Measures for Reducing The Impact Of Coronavirus Disease 2019 (Covid-19) Act 2020 [Act 829], but the action by the defendant for not informing the plaintiff about the current situation that was happening at that particular time was a very clear picture to show that the defendant was not adamant to proceed with the construction . The defendant if was committed to protect the interest of the buyer should have taken a proactive action by informing the buyer about the new date for the delivery of vacant possession. [17] Furthermore, the defendant was served with termination notice dated 5th October 2022 (refer to “MRA-4”) where in the said notice, it has stated that the defendant was not keen to proceed with the construction. The construction was not progressing and abandoned. Hence, it is crystal clear here that the coronavirus defence that the defendant has been using was not the main reason but, just a mere denial against the claim. Conclusion [18] Thus, I conclude that defendant is therefore responsible for it and there were no merits in defence. For the reasons adumbrated above, this court dismissed enclosure 13 with cost RM500 to be paid to the plaintiff forthwith. DATED: 9TH APRIL 2024 (NOR IZZATI BINTI ZAKARIA) Magistrate Magistrates' Court Kuantan, Pahang Counsel: For the plaintiff – Norizawati Binti Haji Ahmad from Messrs. Ravi Moorthi, Noriza, Mala & Partners For the defendant – Mohammed Hissham Bin Ramdzan; Messrs. Abdul Malik Zamri & Co. Legislation(s) referred: I) Order 12 Rule 5 of the ROC 2012; II) Order 13 Rule 8 the ROC 2012 Case(s) referred: PERBADANAN KEMAJUAN NEGERI SELANGOR lwn. NATIONWIDE TIARA (M) SDN BHD [2023] CLJU 2042