Principal Asset Management Berhad v Syarmi Bin Shamsuddin (WA-22NCC-469-07/2023)

The Plaintiff seeks to enter a Judgment in Default of Defence against the Defendant.

The Plaintiff claims that the Defendant, who was a former agent, had breached the terms of his contract and committed breaches of fiduciary duties to it and committed fraud against it. The particulars of the claim appear in paragraphs 20 to 34 of the Plaintiff’s Statement of Claim.

The Defendant had entered his appearance to the suit late on 1-4-

The Plaintiff had earlier filed an application to enter a Judgment in Default of Defence on 26-2-2024.

Despite the said notice of appearance by the Defendant, the Plaintiff wishes to proceed with the application to have a Judgment in Default of Defence entered against the said Defendant. B. Decision of this Court 5. I have considered the application filed by the Plaintiff and the affidavit filed herein. I have also considered the submissions filed by the Plaintiff and the Defendant’s Counsel.

After considering the facts as pleaded and the evidence before me, I find that the Defendant should be given all opportunity to defend this claim before this Court. The claim against the Defendant is based on a claim premised on the alleged fraud and breach of contract as well as breach of fiduciary duties committed against the Defendant.

I opine that these issues are best dealt with by way of a trial and after the Defendant is given an opportunity to file his defence to the Plaintiff’s claim. The Defendant defence may be weak and that there may be an alleged admission as claimed by the Plaintiff, but these allegations should be dealt with at trial especially when I consider the claim is premised on fraud and breaches of fiduciary duties.

More so when I consider the Plaintiff’s own submissions dated 13- 10-2023 that seek a trial of the claim after the Defendant failed to enter appearance. I therefore believe that this matter should not be dealt with summarily as suggested by the Plaintiff and that all opportunity be afforded to the Defendant to defend the claim. However weak the defence may be, at this stage I do not believe that a claim premised on a claim for fraud or breaches of fiduciary duties could be dealt with summarily based on affidavits alone.

I am aware that the Defendant did not file his affidavit to the application but in view of the prayers sought and the nature of the claim, I do not believe that this case should be dealt with summarily.

There is another reason why I dismissed Enclosure 11 and allowed the Defendant the opportunity to file its defence despite it being beyond the original time frame provided under the Rules.

Order 12 rule 5 states that even if a litigant files his appearance late, this Court still has a discretion to allow the said litigant to file its defence as long as no judgment is entered against the said Defendant. I am of the opinion that the Plaintiff will not be prejudiced by the Defendant’s counsel oral request that his client be given the opportunity to file his defence to the claim and have the claim heard at trial.

After all, as suggested by counsel for the Plaintiff in the submissions dated 13-10-2023, they have also sought that the matter be fixed for a short trial on the merits of the claim. As such, I find that in view of the facts and the allegations as they appear in the Statement of Claim, I opine that the Defendant be given leave to file its defence.

Nonetheless, I find that these proceedings have been unnecessarily delayed by the Defendant’s own neglect in filing his appearance and as such, costs of these proceedings to the sum of RM 20,000.00 be paid forthwith by the Defendant to the Plaintiff’s solicitors. The Defendant be given the liberty to file his defence to the claim and further case management be fixed by this Court. Dated 6th June 2024 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya Kuala Lumpur NCC5 Parties Appearing: For the Plaintiff Daniel Tan Wee Xian [Messrs. Tommy Thomas]

For the Defendant

Yusman Mohd Badar Muhammad Nazmi Hanafi [Messrs. Yusman Azlin Anwar]