PASTPRESENTFUTURE SDN BHD (dahulunya dikenali sebagai Poly Ritz Development Sdn Bhd) v MFI MONEY SDN BHD (WA-22NCvC-34-01/2021)

Plaintiff’s affidavit in support affirmed by Wong Siew Woon (Encl. 40);

(ii) Defendant’s affidavit in reply affirmed by Mohamed Fahmi bin Mohamed Ilyas (Encl. 49); and

(iii) Plaintiff’s affidavit in reply affirmed by Wong Siew Woon (Encl. 55). [5] Upon application by the Defendant, this Court had stayed all proceeding of this Suit pending the outcome of the Defendant’s appeal against my earlier decision in dismissing its application for extension of time (Enclosure 12). Hence, the hearing of this Application was only conducted upon the decision of the Court of Appeal affirming my decision. Findings and Decision of the Court [6] Having read the affidavits and the written submissions filed by the parties and having heard the oral submissions, I decide in favour of the Plaintiff and order that a judgment in default of defence be entered against the Defendant. I furnish below my reasons and grounds thereto. [7] In crux, in view of the nature of the prayers sought, this Application is made pursuant to Order 19 Rule 7 of the ROC 2012 which states:

Default of defence: Other claims (O. 19 r. 7)

Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

Where the plaintiff makes a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may-

if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or

set down the action by notice of application for judgment against the defendant in default at the time when the action is set down for trial, or is set down by notice of application for judgment, against the other defendants.

An application under paragraph (1) shall be by notice of application. The Principles in Default of Defence [8] In exercising its duty, this Court shall consider whether this Application has fulfilled the requirements of Order 19 r. 7 of the ROC 2012. In this case, it is to be noted that the Defendant has failed to enter an appearance and defence on time and its earlier application for leave to extend the time to file its defence has been dismissed by this Court. [9] In view of that, the Plaintiff submits that this Application is made since the Defendant has defaulted in filing its defence. The Plaintiff premised that it is the Plaintiff’s right to record and obtain a judgment in default against the Defendant for such claim due to the obvious reason that, presently, there is no defence in this Suit. [10] It is also crucial to note that the Defendant had admitted that they had failed to file the Memorandum of Appearance and/or Defence within the stipulated time. However, just as in their previous submission, they rely heavily on the sole point that they have merit in their defence. [11] With respect, that approach of the Defendant is misplaced. The merit and the technicality of the defence had all been dealt with during the hearing of Enclosure 12 much earlier. This Court was not convinced by those submissions of the Defendant. Neither was the Court of Appeal. Hence, I agree with the Plaintiff that in view that there is no defence presently, a judgment in default of defence is to be rightfully and naturally granted under Order 19 r. 7 of the ROC 2012. In fact, it is mandatory for the Court to enter such judgment in default. The Plaintiff in support of its application referred to the case of Datumcorp International Sdn Bhd & Anor v Mohd Salehudin [2015] 1 LNS 1284, where Hanipah Farikullah J (as Her Ladyship then was) held that: - “… Learned Counsel for the Plaintiffs submitted that the word shall under Order 19 rule 7 of RHC 2012 provided it is mandatory that a judgment in default of defence is given upon an application made by the Plaintiffs. I agreed with the Plaintiff’s submission that whenever the word “shall” is found in the Rules of Courts, mandatory adherence is required as opposed to mere direction or discretion as the word “may” implies. [12] I am of the view that since the application for extension of time in Enclosure 12 has been dismissed, the Defendant is barred from proceeding and submitting any argument for their case. This Court agree with the Plaintiff that the word “shall” in Order 19 r. 7 signifies that this Court is duty bound to give judgment on an application made by the Plaintiff. [13] I also concur with the dictum in Hai San & Sons Sdn Bhd & Anor v Iglo (M) Sdn Bhd & Ors [2020] 1 LNS 700 where Gunalan J (as His Lordship then was) held that: “the clear and unambiguous wording of Order 19, r. 9 itself to its meaning and intent that does not leave any room for vague. It is crystal clear from the word “shall” used therein , it is mandatory for the court, as held by authorities cited by the Plaintiffs to enter judgment for the Plaintiff where the defendant fails to serve his defence within the prescribed time…” [14] As mentioned earlier, the Defendant’s approach in this Application is still regarding the substance of their Defence. The Defendant avers that the (proposed) defence has merit thus the Plaintiff’s application to obtain judgment in default of defence should be set aside. For this, they attempted to quote Tetuan Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor [1997] 4 CLJ 634, Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457, Fira Development Sdn. Bhd v Goidwin Sdn Bhd [1989] 1 MLJ 40, Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd [2008] 5 MLJ 112, and Ching Yik Development Sdn Bhd & Anor v Worldware Distributors (M) Sdn Bhd & Anor [2012] 10 MLJ 611. These cases, with respect, are not relevant to our present case. In these cases, the discussion was concerning the application to set aside a judgment in default which is not the case here. In our present case, at the time of the hearing of this Application, the Defendant’s earlier application for extension of time (Enclosure 12) was already dismissed by this Court to which the Court of Appeal has affirmed. Hence, there is no defence to this Suit. In another word, there is a default of defence. By virtue of the nature of the relief sought, judgment of default must be granted under Order 19 r. 7. I agree with the Plaintiff’s submission that without any appearance filed within time and the eventuality of the Defendant’s extension of time being dismissed, this Court is unable to look further into any of the argument put forward by the Defendant. [15] The Defendant has also cited an old English case of Gill v Woodfin

24 Ch D 707, and also Malaysian cases of Aleykutty James v Syed Putra Bir Syed Omar Shahabudin [1979] 1 MLJ 238 and Ravichanthiran Ganesan v Dato’ Mat Shah bin Safuan & Anor [2016] 1 LNS 66 to persuade this Court to disallow this Application in view of the substance of its defence. However, in all of these cases, the courts had decided to extend the time for the filing of the defences and thus no judgment in default of defence had been entered. Again, this is materially distinguishable from this Application where the application for extension of time has been dismissed and thus no defence could be deemed to be validly filed at the time of this Application. [16] Likewise, the attempt by the Defendant in quoting the Court of Appeal decision in Tirumeniyar Singara Veloo v Malaysian Motor Insurance Pool [2017] 8 CLJ 682 is misguided. Tirumeniyar is a case concerning originating summons and whether the failure of the 3rd Defendant to depose the affidavit in person. This is again materially different from our present case. [17] Indeed the present case is substantially similar to the decision of Tengku Maimun J (now CJ) in Ferco Seating Systems (M) Sdn Bhd v The Proc People Pty Ltd [2009] 6 MLJ 874. As submitted by the Defendant themselves that, in that case, Her Ladyship had held that since defendant had not failed the defence and had not asked for an extension of time, the plaintiff was entitled to enter judgment pursuant to RHC O19 r7. In our present case, the Defendant had applied for extension of time but had failed to convince this Court and the Court of Appeal to grant such extension. Thus, there is no defence to the Suit. In similar veins, the Plaintiff is entitled to enter judgment pursuant to Order 19 r. 7 of the ROC

For the fear of repeating, as elaborated earlier, the entering of such judgment in such circumstance is mandatory in view of Order 19 r. 7 of the ROC 2012. [18] In a nutshell, the Defendant has failed to provide any authorities nor to submit convincingly on the key issue here: Can the Court after dismissing an application for extension of time to file defence, later refuses to grant leave for the Plaintiff to file its judgment in default against the Defendant? The usage of the word “shall” in Order 19 r. 7 of the ROC 2012 is clearly making the granting of the judgment in default of defence a mandatory. This Court is thus duty bound to agree that judgment in default is the eventual consequences of the failure of the Defendant to file an appearance and/or defence within time and also its failure to get an extension of time to file the defence. [19] For the foregoing reasons, I therefore allow this application with costs and order that the judgment in default of defence is to be entered against the Defendant. Date: 9th September, 2024 YA Dr. John Lee Kien How @ Mohd Johan Lee Judge High Court of Malaya Kuala Lumpur For the Plaintiff Oliver Lee Phui San & Nurshafiqa Balqish Messrs. Selva Mookiah & Associates Advocates & Solicitors For the Defendant Andrew Sewell, Muhammad Farhan Bin Muhammad Shafee & Thilagan Mehanathan Messrs. Shafee & Co. Advocates & Solicitors Table of Authorities Cases Aleykutty James v Syed Putra Bir Syed Omar Shahabudin [1979] 1 MLJ 238 Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457 Ching Yik Development Sdn Bhd & Anor v Worldware Distributors (M) Sdn Bhd & Anor [2012] 10 MLJ 611 Datumcorp International Sdn Bhd & Anor v Mohd Salehudin [2015] 1 LNS 1284 Ferco Seating Systems (M) Sdn Bhd v The Proc People Pty Ltd [2009] 6 MLJ 874 Fira Development Sdn. Bhd v Goidwin Sdn Bhd [1989] 1 MLJ 40 Gill v Woodfin (1884) 24 Ch D 707 Hai San & Sons Sdn Bhd & Anor v Iglo (M) Sdn Bhd & Ors [2020] 1 LNS 700 Ravichanthiran Ganesan v Dato’ Mat Shah bin Safuan & Anor [2016] 1 LNS 66 Tetuan Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor [1997] 4 CLJ 634 Tirumeniyar Singara Veloo v Malaysian Motor Insurance Pool [2017] 8 CLJ 682 Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd [2008] 5 MLJ 112 Statute Order 19 Rule 7, Rules of Court 2012