Perintis Amanah Berhad v 1. ) Clifton Heath Fernandez (BA-12ANCvC-79-12/2024)

CLIFTON HEATH FERNANDEZ (No. K/P: 720725-14-5043)

WONG KHEE BIN (No. K/P: 720921-06-5083) ...RESPONDEN-RESPONDEN (Dalam Perkara Guaman Sivil No. Mahkamah BB-A52NCvC-38-02/2023 Dalam Mahkamah Sesyen Di Petaling Jaya Dalam Negeri Selangor Darul Ehsan, Malaysia

Clifton Heath Fernandez (No. K/P: 720725-14-5043) 17/09/2025 13:39:25

Wong Khee Bin (No. K/P: 720921-06-5083) …Plaintif-Plaintif

Asia Cornerstone Asset Management Company Limited

Perintis Amanah Berhad (No. Syarikat: 201601006823 (1177751-V)

The Rain Maker Mgmt Sdn Bhd (No. Syarikat: 201801009854 (1271868-U) …Defendan-Defendan)

This appeal arises from a not uncommon scenario in civil procedure, where a judgment in default has been entered against a defendant, who thereafter seeks to have it set aside.

The Respondents/Plaintiffs in the court below commenced an action against three defendants. The Respondents/Plaintiffs subsequently withdrew their claim against the First Defendant. Judgments in default were thereafter entered against the S/N GpPEmw1ekOYvqlf1CbluQ Second and Third Defendants. The present appeal concerns the application by the Second Defendant to set aside the default judgment entered against it. That application was dismissed by the Sessions Court with costs of RM3,000.00, giving rise to the present appeal by the Appellant (the Second Defendant in the court below). The default judgment against the Third Defendant is not in issue in this appeal.

The parties in this appeal are referred to as they were in the Sessions Court.

The issues for determination are twofold: first, whether service of the Writ of Summons on the Second Defendant was effected in accordance with the requirements of the Rules of Court 2012; and second, whether the Second Defendant has a defence on the merits to the Plaintiffs’ claim.

The Second Defendant contended that it “did not receive a copy of the Writ and Statement of Claim from the Plaintiffs” and that it “only became aware of the proceedings when a file search was conducted in respect of the Second Defendant.”

In advancing its defence on the merits contention, the Second Defendant relied on two principal grounds: first, that the S/N GpPEmw1ekOYvqlf1CbluQ Plaintiffs had failed to plead any cause of action against it; and second, that there was no contractual relationship between the Plaintiffs and the Second Defendant.

The Plaintiffs, on the other hand, submitted that the Sessions Court had correctly dismissed the Second Defendant’s application to set aside the default judgment and that the dismissal ought to be upheld, with this appeal accordingly dismissed.

The Plaintiffs denied the Second Defendant’s allegation of non-receipt of the Writ and Statement of Claim, pointing to the following:

that a Notice of Demand was served at the Appellant’s registered address on 14 December 2022 and again on 30 December 2022, both of which were acknowledged as received by the “company secretary”;

that the Writ and Statement of Claim were served on, and acknowledged by, a staff member at the Second Defendant’s registered office on 22 March 2023; and

that the judgment was served on the registered office by way of Certificate of Posting pursuant to a letter from the Plaintiffs’ solicitors dated 24 May 2023. S/N GpPEmw1ekOYvqlf1CbluQ

It was therefore the Plaintiffs’ submission that the Second Defendant had sufficient notice and knowledge of the legal proceedings against it, as evidenced by the foregoing instances of service, but nonetheless failed to take any steps in response. The Plaintiffs contended that the default judgment was properly entered pursuant to Order 13 rule 7 of the Rules of Court 2012.

As to the Second Defendant’s assertion of a defence on the merits, the Plaintiffs maintained that this claim was wholly without substance, pointing to the documentary evidence before the Court which, in their view, conclusively disproved the existence of any tenable defence.

The primary provisions of the Rules of Court 2012 that are relevant for purposes of this appeal are Order 13 rules 7 and 8 of the Rules of Court 2012 which provide as follows: Proof of service of writ (O. 13r. 7)

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. 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. 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 S/N GpPEmw1ekOYvqlf1CbluQ 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 exercising its discretion pursuant to Order 13 rule 8 of the Rules of Court 2012, this Court is guided by and bound to follow the principles as laid down in a number of authorities. The parties have made references to some of these authorities which include Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 3 AMR 2458; [1997] 3 CLJ 305; [1997] 2 MLJ 565; [1997] 1 MLRA 284 , Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 3 AMR 28; [2008] 4 CLJ 175; [2008] 5 MLJ 112; [2008] 1 MLRA 276, Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Corp Bhd [1994] 1 AMR 297; [1994] 1 CLJ 328; [1994] 1 MLJ 312; [1993] 1 MLRA 642 and Madam Lo Nyuk Yin & Anor v Master Shine Corporation Sdn Bhd & Anor [2021] AMEJ 2108; [2021] CLJU 2447; [2021] MLJU 3034; [2021] MLRHU 2863.

On the question of defence on the merits, the key cases cited by the Second Defendant include Malayan Banking Berhad v Specialty Point (M) Sdn Bhd & 3 Yang Lain [2015] AMEJ 630; [2015] 1 LNS 263; [2015] MLRHU 190: that the required demonstration of merits in the intended defence is not a high threshold; Lai Wai Keet v Blue Ocean Spartans Sdn Bhd [2020] CLJU 734; [2020] MLJU 883; [2021] 1 MLRH 223: suffice for the Appellants to show that their defence is not a sham defence but it discloses an arguable or triable issue; Tan Chiang Brother’s S/N GpPEmw1ekOYvqlf1CbluQ Marble (S) Pte Ltd v Lightweight Concrete Sdn Bhd [1997] 4 CLJ 759; [1996] MLJU 170; [1996] 3 MLRH 361: a defence on the merits means a defence which discloses an arguable and triable issue. It does not have to show that there is a real prospect of success or that it has to carry some degree of conviction; and PL Construction Sdn Bhd v Abdullah bin Said [1988] 2 CLJ 808; [1989] 1 MLJ 60; [1988] 1 MLRH 639: there is a defence on the merits or at least there is an arguable case or an issue which should go for trial.

Indeed, the legal principles governing the setting aside of judgments entered in default are settled and well-established.

This Court has undertaken an independent examination and analysis of the evidence adduced and applied the relevant law and principles to the factual matrix of this case.

On the issue of service of the Writ, Statement of Claim and the Default Judgment, this Court is satisfied that the Plaintiffs duly complied with the legal requirements governing service of the relevant cause papers. The default judgment entered against the Second Defendant was therefore one that was regular.

On the issue of a defence on the merits, while this Court recognises that the threshold to be met is a low one, it is unable to agree with the Second Defendant that this precondition has S/N GpPEmw1ekOYvqlf1CbluQ been satisfied so as to warrant the invocation of Order 13 rule 8 of the Rules of Court 2012.

In particular, the Second Defendant’s contention that there is no pleaded cause of action against it is misconceived. There is documentary evidence demonstrating privity of contract or agreement between the parties (see Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd & Ors [2014] 11 MLJ 422; [2013]

Similarly, the Second Defendant’s argument that the monies received from the Plaintiffs were transferred to the Third Defendant does not constitute a valid basis for setting aside the default judgment, absent any evidence that the said monies were in fact returned to the Plaintiffs.

Accordingly, in addition to the finding that the default judgment herein was regularly obtained, and that the Second Defendant has failed to establish any defence on the merits, there is a further ground which warrants the dismissal of the present appeal.

This pertains to the delay on the part of the Second Defendant in seeking to set aside the default judgment. While this Court accepts that it retains a measure of discretion to excuse non-compliance with Order 42 rule 13 of the Rules of Court 2012, namely, the requirement that an application to set aside be made and served on the party who obtained the order or S/N GpPEmw1ekOYvqlf1CbluQ judgment within thirty days of receipt thereof, the dilatory conduct of the Second Defendant in the present case, having delayed for a period of one year and two months before taking any steps, militates strongly against the exercise of such discretion.

For all the foregoing reasons, this Court finds no merit in the appeal. The appeal is accordingly dismissed.

Consequent thereto, the Second Defendant shall pay to the Plaintiffs costs of RM5,000.00. Dated: 25 August, 2025 sgd (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR S/N GpPEmw1ekOYvqlf1CbluQ Counsel: For the Appellant : Azad Akbar Khan (Messrs Gan, Lee & Tan) For the Respondets: Sandosh J N Anandan (Messrs Sandosh Anandan)