Nazrin Shahnaz Binti Peer Mohamed v Slob Sdn Bhd (BA-24C-55-12/2024)

This action originated from an Adjudication Decision dated 19.7.2024 (AD) made by the appointed adjudicator, Mr. Gan Choon Hock. The AD was in favour of the Plaintiff as the sub-contractor against the main contractor, Orangebeam Construction Sdn Bhd. Since the main contractor did not pay the adjudication amount to the Plaintiff in accordance to the AD, the Plaintiff made a written request to the Defendant, being the principal to the main contractor on 22.10.2024 for direct payment to be made pursuant to Section 30 of the Construction Industry Payment Adjudication Act 2012 (CIPAA 2012).

By way of a Letter of Award dated 28.05.2021 and the subcontract documents (collectively referred to as the contractor appointed the Plaintiff as its subcontractor to carry out-in furniture and interior design works for a project known for the LA was RM3,816,000.00.

Due to the failure of the main contractor to pay the Plaintiff the amount certified under Certificate of Payment No. 7 dated 29.09.2022 (COP No. 7) and Certificate of Payment No. 8 dated 17.05.2023 (COP No. 8), the Plaintiff issued a Payment Claim dated 13.09.2023 (Payment Claim) to the main contractor. After the issuance of the Payment Claim, the Plaintiff received payment for COP No. 7 amounting RM135,499.83 from the main contractor on 31.10.2023.

However, since there was a balance of RM740,794.41 for COP No. 8 still owing from the main contractor, the Plaintiff commence Adjudication Proceedings against the main contractor on

20.12.2023. After reviewing all adjudication papers/documents submitted by the Plaintiff and the main contractor in the Adjudication Proceedings, the Adjudicator decided, through the AD that the main contractor is required to pay the Plaintiff the following amount: No. Details Amount (RM) a. Adjudicated Sum 740,794.41 b. Interest at the rate of 5% per annum on the adjudicated sum amounting to RM740,794.41 calculates from 21.12.2023 until the date of actual realisation 21,513.48 (as at 19.7.2024) c. AIAC administrative fees) 20,320.46 d. Costs of adjudication proceedings 40,000.00 Total 822,628.35

The main contractor failed to pay the Adjudication Amount as per the AD despite demands being made and as such, the Plaintiff had exercised its right under CIPAA 2012 by making a written request dated 22.10.2024 to the Defendant being the principal to the main contractor pursuant to Section 30 of the CIPAA 2012 in order to recover the Adjudication Amount per the AD.

Although ten (10) working days from the date of delivery of the Direct Payment Notice have elapsed, the Defendant has failed, refused, and/or not responded to the Direct Payment Notice. The Defendant has also failed, refused, and/or not made any direct payment to the Plaintiff as requested in the Direct Payment Notice.

payment, the Plaintiff filed this Originating Summons to claim for the adjudication amount from the Defendant pursuant to Section 30 of the CIPAA 2012.

As the Defendant had failed to enter appearance despite acknowledging service of the sealed Originating Summons (OS) on 20.12.2024 at two (2) of its addresses, on 13.02.2025, the Plaintiff procured a Judgment in Default (JID) against the Defendant.

Subsequently, via Enclosure No. 9, the Defendant filed a Notice of Application on 29.4.2025 for an extension of time to file an application to set aside the JID, for an order to set aside the JID, for leave to file an Affidavit in Reply to the OS (Enclosure No. 1) and for an interim stay pending the disposal of the application in Enclosure No. 9.

The Plaintiff in this case had through its Affidavit of Service evidenced its service to the Defendant for both the OS and the subsequent JID. Any action to set aside the JID can be done in accordance to Order 42 Rule 13 of the Rules of Court 2012 which allows the setting aside or varying a judgment to be made within 30 days after the receipt of the order or judgment by the applicant: (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

In this case, the Defendant had quite nonchalantly filed this application without first obtaining leave from court to file out of time. As it is trite that an application to set aside a judgment if not done within the given 30 days under the Rules without proper explanation for the delay in approaching the court and there being no application for an extension of time to apply, the application to set aside will be dismissed in limine, and the court will not consider

In the case of Hong Kwi Seong v Ganad Media Sdn Bhd and another appeal [2013] 6 AMR 33; [2013] 6 MLJ 765, the Federal Court held that an application pursuant to Order 42 Rule 13 of the Rules of Court 2012 made outside the 30 days period, unless time is enlarged, such application must fail: As appeals are creatures of statute, and none were filed at any time against all of the orders issued against the appellant in this case, we shall refrain from discussing the effect of that failure except to state that no variation of a judgment regularly obtained after it has been entered or an order after it is drawn is permitted, unless it falls under the slip rule (Hock Hua Bank Bhd v. Sahari bin Murid [1980] CLJU 92; [1980] 1 LNS 92; [1981] 1 MLJ 143). What is left is the right of the appellant to set aside those orders as reflected by his applications. As mentioned earlier, the relevant provision for any setting aside application falls under O. 42 r. 13 of the RHC, and it reads: Where in these Rules provisions are made for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment must make his 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. [12] In other words a party intending to set aside an order or judgment must make his application and serve it on the party who obtained the order or judgment within 30 days after receipt of the order or judgment by him. If the application is made outside the 30 day period, unless time is enlarged, the application must fail (Development & Commercial Bank Ltd v. Dinesh Kumar Jashbhai Nagjibhai & Ors [2002] 3 CLJ 108). Whether an enlargement of time will be granted, on the premise that an application was been filed, will depend very much on the facts and circumstances of that application (VVDN Sockalingam Chettiar And Two Others v. KRPRS M Somasundaram Chettiar [1940] CLJU 114; [1940] 1 LNS 114; [1941] MLJ 103 CA). [13] It is crystal clear that no enlargement of time was ever applied for by the appellant prior to the filing of encls. 129 and 130. A brief scrutiny of the dates of all of the relevant orders, and their dates of service, shows that the appellant was out of time by at least a year. Despite knowing that encls. 129 and 130 were filed pursuant to O. 42 r. 13 RHC the appellant had disregarded the time factor prescribed to regularise the application. With no application filed to extend time pursuant to O. 3 r. RHC prior to filing of those applications (and of course no reasonable explanation was given for the said delay), encls. 129 and 130 were

Additionally, the Defendant in this case did not make any attempt to enlarge the time and the only excuse accorded for its tardiness is that the service of the JID was not received by it. The Plaintiff on the other hand had filed proof of service vide its Affidavit of Service when the OS was served and via its Affidavit in Reply to the e of the JID. In both occasions, the services were acknowledged receipt and the addresses in which the services were done were the registered address of the Defendant.

The Defendant had merely denied receipt of the services made by the Plaintiff. As b in the case of Hasil Bumi Perumahan Sdn Bhd Ors v. United Malayan Banking Corp Bhd [1994] 1 MLJ 312 it was stated that it must be established via affidavit evidence, valid grounds for setting aside a judgment, which in this case the Defendant has failed to do so.

receipt by other companies. Be that as it may, in this case, the services were acknowledged receipt with the cop of Orangebeam Construction Sdn Bhd at one address and Seri Libana Sdn Bhd at another address. These two (2) companies admittedly are the origin of the Defendant through a joint venture.

Furthermore, pursuant to Order 62 Rule 4 of Rules of Court 2012, service of cause papers on a corporation may be carried out by leaving a copy of the said document(s) at the registered office of the corporation. Brunsfield Oasis Tower 3, Level 2 and 3, Oasis Square, No. 2, Jalan PJU 1A/7A, Oasis Damansara, 47301, Petaling Jaya, Selangor, which is the same address the service of the judgment was carried out. In the case of Mayland Avenue Sdn Bhd v Putrajaya Holdings Sdn Bhd & Ors [2023] MLJU 1652, the High Court held as follows: e of a company is good service in law. That is the law, and to argue otherwise is just incorrect. There is no compelling evidence by D3 to support its position of not knowing about the suit. The registered Company Secretary, by law, would have informed D3 of the service of the said cause papers and the JID, as is required in the workings of a company. There is also persuasive evidence, as set out by the P in paragraph 4.2 of the service of the JID on D3. It cannot, in the circumstances, feigned ignorance (Emphasis Added)

Therefore, I am of the view that the services of the cause papers and the JID were carried out regularly and in the absence of time enlarged and any cogent reason, this application has to fail. As such, I dismiss this application with costs of RM5,000.00 to the Plaintiff subject to allocatur fee. DATED: 21th OCTOBER 2025 Signed (SUMATHI A/P MURUGIAH) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel: For the Plaintiff - : Kevin Richard Nathan Nazrin Shahnaz binti Peer Mohamed Ow Kai Wing Messrs. Nazmi Zaini Chambers.