Ni-On Marketing System Sdn. Bhd. v 1. ) Nasmadi Farm Sdn. Bhd. (KA-22NCC-4-09/2021)

NASMADI FARM SDN. BHD. (Co. No.: 1247929-A/201701033758)

WAN RAZIF BIN WAN MAHADZIM (NRIC No.: 821206-14-6047) Trading under the name and style of NAS MADI LANGKAWI

NOOR AHMAD BIN ABDUL WAHAB (NRIC No.: 821014-11-5035) Trading under the name and style of NAS MADI ENTERPRISE --- DEFENDANTS GROUNDS OF JUDGMENT A. INTRODUCTION [1] This is the Court’s grounds of judgment in respect of two Notice of Applications filed by the Third Defendant, namely Enclosure 44 and Enclosure 48, both of which were dismissed by this Court. Enclosure 44 concerns the application to set aside the Order dated 2.6.2022, which was granted by this Court pursuant to the Plaintiff’s discovery application in Enclosure 26. Enclosure 48 is the Notice of Application to set aside the Judgment in Default entered against the Third Defendant. [2] The Third Defendant, being dissatisfied with the said decisions, has filed an appeal. B. BACKGROUND OF THE MAIN SUIT - ENCLOSURE 1 [3] The Plaintiff, Ni-On Marketing System Sdn. Bhd., commenced this civil suit against the Defendants for the recovery of sums allegedly owed for goods delivered and services rendered. The Plaintiff pleads that various goods were supplied to the First Defendant, with the Second and Third Defendants also involved in the transactions. The Plaintiff claims a joint and several liability. [4] In the Plaintiff’s Statement of Claim dated 15.9.2021, the Plaintiff pleads that the goods were ordered by the First Defendant, Nasmadi Farm Sdn. Bhd., and delivered accordingly. The Second and Third Defendants, who are trading under business names, are alleged to have been involved in the transactions. The Plaintiff seeks to hold all Defendants jointly and severally liable for the outstanding payments. [5] The Third Defendant, Noor Ahmad Bin Abdul Wahab, denies personal liability, arguing that any involvement was purely administrative and that he acted without any intention to be personally liable. In his Statement of Defence dated 13.11.2021, the Third Defendant essentially denies liability and contends that the goods were ordered and received by the First Defendant, and that any cheques issued under his name were merely to facilitate payment on behalf of the First Defendant without creating personal liability. [6] During case management on 30.5.2022, issues arose regarding certain cheques and transactions linked to the Third Defendant. The Third Defendant’s previous solicitors, Messrs Ummi Zakaria & Partners, suggested that the Plaintiff proceed with a discovery application under Order 24 Rule 3 Rules of Court 2012 due to issues concerning certain cheques and documents. [7] The Plaintiff then applied for discovery as in Enclosure 26, which was granted unopposed on 2.6.2022. Enclosure 26, supported by an Affidavit in Support of Enclosure 25, despite proper service of the application and supporting documents on the Third Defendant’s solicitors, no affidavit in reply was filed, and there was no attendance at the hearing on 2.6.2022. The Court thus granted the Discovery Order as in Enclosure 31, compelling the Third Defendant to disclose relevant documents. [8] The Third Defendant then failed to comply with the Discovery Order. Consequently, the Plaintiff obtained an Unless Order on 19.1.2023 as in Enclosure 37 under Order 24 Rule 16(1). The Third Defendant continued to default, resulting in the Plaintiff successfully entering Judgment in Default against him on 3.4.2023 as in Enclosure 42. C. THE APPLICATIONS: Enclosure 44 and Enclosure 48

Enclosure 44: Application to Set Aside Discovery Order [9] In this application, the Third Defendant, through new solicitors, filed Enclosure 44 seeking to set aside the Discovery Order under Order 24 Rule 17 and/or Order 92 Rule 4 Rules of Court 2012 to set aside the Discovery Order dated 2.6.2022, and for the original application in Enclosure 26 to be reheard. The Third Defendant claims non-awareness due to solicitor negligence. [10] The primary grounds of the application are that:

The Third Defendant was unaware of the discovery proceedings and the resulting order.

The Third Defendant’s previous solicitors failed to file any response or attend the hearings, and such omission was without the Third Defendant’s knowledge. [11] The Plaintiff opposes the application, submitting that all necessary cause papers were duly served, that the Third Defendant was legally represented and that the discovery process was lawfully carried out with the Court’s sanction. Hence, the Discovery Order was properly obtained. The Plaintiff also contends that any solicitor’s failure binds the client. Further, the Plaintiff also argued that the delay of nearly two years in challenging the Discovery Order is inordinate and unjustified. [12] The Plaintiff submits that the application is misconceived, citing Kenwingston Sdn Bhd v Leong Ken Seng [2021] MLJU 1500 and Westports Malaysia Sdn Bhd v Oracle Corporation Malaysia Sdn Bhd [2022] MLJU 1882, which limit the use of Order 24 Rule 17 to instances of impossibility or hardship, not solicitor default. [13] The Plaintiff further contends that the correct avenue would have been an appeal or an application under Order 32 Rule 6, not Order 24 Rule 17. [14] The affidavits of Enclosure 45 and Enclosure 46 show that the discovery sought involved specific documents, including bank statements, cheque images, and WhatsApp communications. The Third Defendant’s assertion of lack of knowledge is undermined by evidence of proper service and the failure to act until long after the orders were perfected. [15] The submissions in Enclosure 54 stress that the Third Defendant’s application is an afterthought, lacking credible reasons for delay, and misapplying legal principles. [16] Upon examining the affidavits, submissions, and correspondence, this Court finds that the Plaintiff’s position is supported by clear evidence of service and procedural compliance. The Third Defendant’s lack of diligence in supervising the defence cannot be attributed solely to his solicitors without any effort on his part to follow up or inquire. [17] Therefore, this Court finds no sufficient cause shown under Order 24 Rule 17. There is no claim of impossibility or undue hardship in complying with the Discovery Order, only dissatisfaction with its issuance. The principle in Md Amin Md Yusof v City Villa Sdn Bhd [2004] 2 CLJ 57 underscores that solicitor negligence alone does not warrant setting aside unless it results in real injustice. Here, the Court believes that no such injustice is demonstrated. [18] The application under Enclosure 44 is accordingly dismissed with costs.

Enclosure 48: Application to Set Aside Unless Order and Judgment in Default [19] The Third Defendant also seeks to set aside the Unless Order dated 19.1.2023 and the Judgment in Default dated 3.4.2023 as in Enclosure

The Third Defendant raises similar arguments, blaming solicitor inaction and asserting that he has a defence on merits. The Third Defendant submits that, among others that the Third Defendant lacked knowledge of the proceedings leading to these orders, the previous solicitors failed to act in their best interests and that the Third Defendant has a bona fide defence on merits. [20] The Plaintiff strongly contests this application, highlighting that the proper service of all relevant documents on the Third Defendant’s solicitors and the Third Defendant’s failure to comply with clear Court orders despite multiple opportunities. Hence, the Plaintiff submits that the lack of any substantive defence beyond bare denials constitutes a sufficient ground for the Court to allow the Plaintiff's claim. [21] The Plaintiff further submits that the Unless Order was triggered solely by the Third Defendant’s persistent non-compliance with the Discovery Order. The Plaintiff refers to the principles in Lim Goh Eng Holdings Sdn Bhd v Off-Shore-CPI Supply Sdn Bhd [2020] MLJU 275, which emphasise strict adherence to Unless Orders. [22] The Court is of the opinion that the Third Defendant’s reliance on solicitor negligence and ignorance fails. It has been decided by the courts that service on solicitors is proper and binding. (Asia Commercial Finance (M) Bhd v Pasadena Properties [1991] 1 MLJ 111; Pengurusan Danaharta v Yong Wan Hoi [2008] 7 MLJ 297). [23] The Court finds no credible explanation for the inordinate delay in bringing this application. No substantive defence is presented. Furthermore, the Third Defendant’s non-attendance at examination proceedings further weakens his position. [24] The Court has carefully reviewed the entire cause papers including the Writ, Statement of Claim, Defence, all affidavits filed, the Discovery Order, Unless Order, Judgment in Default, and the current applications and submissions. [25] The Court finds that the Unless Order was properly granted in accordance with Order 24 Rule 16(1), as the Third Defendant persistently failed to comply with discovery obligations. The legal effect of an Unless Order is strict and non-compliance triggers the automatic sanction. See Lim Goh Eng Holdings Sdn Bhd v Off-Shore-CPI Supply Sdn Bhd [2020] MLJU 275. [26] As such, the Court is not persuaded that the Third Defendant has demonstrated any special circumstances or injustice that would justify setting aside the Unless Order or Judgment in Default. [27] In his defence, the Third Defendant asserts that he possesses a defence lacks credibility. He admitted to the issuance of cheques but attempted to distance himself from the contractual liability without cogent documentary support. However, the Court believes that the Third Defendant’s conduct in failing to appear for examinations and in not challenging earlier orders timely also demonstrates a pattern of indifference. [28] Therefore, this application is, in the Court’s view, a clear afterthought aimed at avoiding enforcement of a valid judgment. The application in Enclosure 48 is therefore also dismissed with costs. Dated : 9th July 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA ALOR SETAR, KEDAH For The Plaintiff : Goay Jing Wen (Messrs. Khor Ong & Co.) For The Defendants : Asmaniza binti Abdullah (Messrs.Asmaniza Abdullah & Co.)