Putri Shazana Binti Megat Abdul Rahim v Selina Chong Binti Abdullah (WA-22NCvC-651-09/2019)

On 23.04.2024, after considering the pleadings and respective 35 arguments of parties, I find there is no merits in enclosure 16 and dismissed it accordingly.

The plaintiff was awarded costs of RM3,000.00 payable by the defendant within thirty (30) days from the date of the order.

2 Aggrieved, the defendant appealed, and my reasons are as follows: 40 BRIEF FACTS FAMILIAL DISPUTE OVER ASSET [2] The plaintiff filed this Writ and Statement of Claim (SoC) on 03.09.2019 concerning claims and disputes about a Deed of 45 Assignment (23.09.2008) over a piece of property in the estate of Hassan Bin Ahmad (the deceased) known as Lot G1, Pertama Kompleks, Jalan Tuanku Abdul Rahman, 50100, Kuala Lumpur:

1 On 28.09.2019:

solicitors then (through a freelance dispatch) personally served the Writ and the SoC at the defendant's address at No. 47, Jalan Wangsa 9, Taman Wangsa Ukay, Bukit Antarabangsa, 68000 Ampang, Selangor Darul Ehsan.

On 28.09.2019:

An affidavit of service was filed, showing that the Writ and the SoC were served by hand to the defendant herself.

She admitted that she was the defendant and had signed the 60 acknowledgement receipt by Selina Chong on 28.09.2019 at 4.28 pm (enclosure 4: exhibit AA-1). 65

On 26.11.2019:

After a lapse of fourteen days (more in this case) as legally required from the service of the Writ and the SoC, the defendant failed to enter an appearance:

An application to enter JID (enclosure 5) against the defendant was filed and supported by an affidavit affirmed by the plaintiff on 25.11.2019 (enclosure 6).

On 30.12.2019, an affidavit of service was filed (enclosure 7), enclosed the plaintiff's solicitor's letter notifying the defendant of an 75 application to enter JID (enclosure 5) against the defendant was filed.

On 21.01.2020:

An affidavit of service was filed (enclosure 8) that showed the application to enter JID was served on the defendant via registered 80 post to her known address at No. 47, Jalan Wangsa 9, Taman Wangsa Ukay, Bukit Antarabangsa, 68000 Ampang, Selangor Darul Ehsan on 31.12.2019.

I AR akuan terima Mulya Erna with IC No 831230-13-5080 (enclosure 8: exhibit KK-1).

On 22.01.2020, a Judgment in Default (JID) was entered against the defendant (enclosure 15). APPLICATION TO SET ASIDE JID (ENCLOSURE 16) 90 2.2 On 03.11.2023:

Almost four (4) years after JID was entered, the defendant filed the present application for abridgement of time and to set aside the JID entered against her.

Her affidavit in enclosure 17 supports the application, premised 95 on the alleged foundation that she did not receive the said Writ and the SoC.

The defendant claimed that it was not adequately served, denied ever signing the acknowledgement receipt, and claimed that her signature was different and, therefore, the service was 100 defective. THE PARTIES ARGUMENTS [3] I have duly observed and considered the parties' respective submissions. In a nutshell: 105 THE DEFENDANT [4] The defendant argued to have never received any cause paper and or document in these proceedings to enable the plaintiff to record the JID. Further, she claimed that she or her solicitor knew nothing 110 about the cause papers and or the plaintiff's documents. I believe this bare assertion to be wholly convenient, untenable and unconvincing.

4.1 She went on to claim that the said JID came to her knowledge after it was served by the present solicitor for the plaintiff, Messrs 115 Johanna Solomon & Associates, on her solicitor Messrs Siddiq Azani & Co on 04.10.23 (enclosure 17: exhibit SCA-2). Only after a file search by her solicitor did she realise that JID had been entered against her. 120 4.2 The facts from the documents showed that:

She is the third lawful wife and administrator of her late husband's estate, Hassan bin Ahmad (NRIC: 360725-07- 5165/4015398: the deceased).

The allegation against her and the late husband/the deceased 125 is that they had conspired to commit fraud via a document, (23.09.2008), was prepared to seize (merampas) the right of the deceased husband's first wife name Siti Katijah Binti Shaik Said (IC No: 350103-07-51021/4015406) from the family estate. The defendant vehemently denies the 130 said allegation.

She argued that of Right of executed and is not valid legally. She claimed that:

Around December 1983, four (4) of the late Hassan bin Ahmad's 135 children, i.e. Harris bin Hassan, Budi Kartini binti Mohamed Hassan, Idah Hanum binti Hassan dan Salinan Salwa binti Hassan, met with Hassan bin Ahmad at his residence No.14 Jalan SS 14/8B, Subang Jaya, Selangor.

At that time, Hassan bin Ahmad agreed to sign (before one Leong 140 Tuck Onn) on four pieces of empty A4 paper and decided to transfer ½ share of Lot G59 Ground Floor Pertama Komplek Kuala Lumpur (denied by the defendant).

The late Hassan bin Ahmad denied signing the said document and has lodged a police report (enclosure 17: exhibit SCA-3)

The defendant is contesting the representative in this proceeding:

Since the plaintiff is neither the estate administrator of Siti Katijah bt Shaik Said nor Harris bin Hassan.

According to the defendant, Ida Hanum binti Hassan is the estate administrator of Siti Katijah bt Shaik Said.

At the same time, Mohd Amier bin Harris and Abdullah bin Zubair are the administrators of the estate of Harris bin Hassan. 155 When the JID was entered against her on 20.01.2020, the administrator for the estate of Siti Katijah bt Shaik Said was still not appointed. In the present case, the plaintiff has failed to provide the beneficiaries' consent of the late Siti Katijah bt Shaik Said. She cited in support: 160 Er Ngee (P) & Ors v Lim Choon Hiok (P) & Ors [2017] MLJU 2398 It is a trite general principle of law that a plaintiff, who is a beneficiary of an estate, has no locus standi to sue anyone to claim for an asset of an estate until the administration of the estate is completed. S. 59 of the Probate and Administration Act 1959 states that the right to commence an action for the 165 estate of a deceased is vested in the personal representative (whether by grant of probate or letters of administration). The Federal Court held it in three cases, viz Lee Ah Thaw's case, C beneficiaries of a deceased's estate have no interest in a deceased estate until the administration of the estate is completed. This general principle applies to 170 4.3 The extension of time ought to be given to her, and in support, the defendant cited:

O.3 r.5(1)(2) RC 2012: where the court may, by order, extend 175 or abridge time as it thinks it should. Citing in support: -Nadarajan s/o Verayan v Hong Tuang Teck (Part 2) [2007] 7 MLJ 640 that held: exercising its discretion under O.3 r.5(1) of the RHC, the court should take into account certain factors, such as:

the delay in making the application.

whether or not there are compelling reasons for the litigant not to have made the application within the prescribed time.

the likelihood and degree of prejudice, as well as the injustice to the opposite party should the court . 185 -Thiruchelvasegaram Manickavasegar v Mahadevi Nadchatiram [1998] 4 MLJ 297 that held: the court has jurisdiction to extend the time even if the application is made after the expiry of the period. The primary consideration in exercising 190 discretion to extend time is whether the party can dearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances. ln the present case, the Judicial Commissioner erred in exercising his discretion as he did not consider whether the failure to obey the order was intentional or contumelious .

The defendant submitted the delay is reasonable as she was only aware after receiving the letter dated 03.10.2023, and the said JID was only served on 04.10.2023; she needs time to gather the relevant documents before instructing her 200 solicitor.

The present application is not prejudicial to the plaintiff. The defendant is a victim of circumstances, and it will be prejudicial to the defendant if this application is dismissed. 205

The defendant denies ever signing nor acknowledging receipt of the writ and SOC, and her signature differs. The said dispatch could not do the service as the evidence was unclear, and service ought to be via substituted service, but it was not done. 210 The law states that the defendant herself must receive service via AR Registered: Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 MLJ 159 FC.

The 215 signature in exhibit SCA-5 (enclosure 19) and the alleged (denied) in exhibit PS-2 and PS-6 (enclosure 18).

4.4 In light of the foregoing, the defendant argued that:

The cause papers were not properly served.

The defendant's supposed signature does not belong to her.

It renders the JID entered to be irregular and could be set aside: Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 MLJ 30.

It is elementary that an irregular judgment has been entered otherwise than in strict compliance with the rules or some statute or is entered as a result of some impropriety considered so serious as to render the proceedings a nullity. The general rule is that when it is demonstrated to the court's satisfaction that a judgment has not been regularly obtained, 230 the defendant is entitled to have it set aside ex debito justitiae, that is to say, irrespective of the merits and without terms. However, the application to set aside such a judgment should be made (i) with reasonable promptitude and (ii) before the defendant has taken any fresh step after becoming aware of the irregularity.

There is merit in the defendant proposed defence (enclosure 17: exhibit SCA-4), citing: -Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997) 2 MLJ 565, held: 240 of setting aside a default judgment under O 13 r 8 has been well established and needs no detailed repetition. What is important to observe is that a default judgment is not a judgment on the merits. Accordingly, when such judgment is obtained irregularly, such irregularity would be n sufficient ground for setting it aside. But where the default 245 judgement has been obtained irregularly, to succeed, the defendant must file an affidavit of merits, i.e. the defendant must disclose by affidavit evidence that prima facie he has a defence on the merits. Put another way, the affidavit must disclose that he has an arguable or triable issue on the 250 -The Pacific Bank Berhad v Vimla Textiles & Others [2004] MLJU 197, held: "So, it can be surmised that the court always has a wide discretion to set aside or vary a judgment entered in default due to procedural non- 255 compliance with the rules unless, of course, the judgment has been entered upon the merits or by consent of the p Knowledge is an important ingredient in setting aside a judgment. Put in another way; a person should have notice of the proceedings against him so that a judgment may be set aside when merits are disclosed and when the court 260 is also satisfied that:

the defendant was not aware of the proceedings and

was not avoiding service The alleged merits of the defence and issues to be tried, as 265 stated in paragraph 28 of her affidavit in support (enclosure 17), are as follows:

Is the Declaration of Right of Assignment a valid document? 270 valid document.

(iii) Can the plaintiff represent the beneficiaries of the estate of Siti Katijah bt Shaik Said and Harris Bin Hassan? She is not the administrator.

(iv) -barred.

Whether there is an element of fraud in the Written Declaration of Right of Assignment and Deed of Assignment dated 23.09.2008.

Delay should not be grounds for dismissing an application to set 280 aside a JID unless there is no defence on the merits. The critical consideration in an application to set aside the judgment is whether there is a defence on the merits and the question of delay is a secondary matter, citing: Malayan United Bank v Mohammed Salleh bin Mohammed 285 Yusoff & Ors [1988] 3 MLJ 165, held: Delay should not be a ground for dismissing an application to set aside a judgment in default unless there is no defence on the merits. The important consideration in an application to set aside the judgment is whether there is a defence on the merits. Thequestion of delay is a secondary 290 matter.

The defendant refers to para 45 of the SoC, which claimed that the plaintiff only knows of the existence of the impugned after the 295 Management of Pertama Complex served her the said document and the plaintiff failed to produce any evidence to support it in her affidavits (enclosures 18 and 22). The present action is time-barred citing: -Tung Kean Hin & Anor (as executor for the estate of Tung 300 Leong Geok, deceased) v Yuen Heng Phong (as administrator for the estate of See Ngan Sang @ Lee Ngan Sang [2019] 2 MLJ 334 COA Section 29 of the Act further provides that if the action is based upon the fraud, the limitation period shall not begin to run until the plaintiff 305 has discovered the fraud or could, with reasonable diligence, have

The defendant denies that enclosure 16 is considered an afterthought. Due to the irregularity of the service of the cause 310 papers, the JID is rendered irregular, giving the defendant the right to set aside the judgment. It was also asserted that she had never been served with the JID by the plaintiff. Consequently, the alleged delay of three years and eleven months to set aside the JID does not arise. However, 315 irrespective of the position taken, the defendant claimed to have raised sufficient merit in her proposed defence to entitle her to canvass and ventilate her proposed defence at the substantive hearing of this action. 320 In the circumstances, the defendant prays for an Order in terms. [5] THE PLAINTIFF IN OPPOSING, ARGUED:

5.1 Enclosure 16 is an afterthought by the defendant, considering:

The defendant only responded to this JID after the plaintiff took 325 out a writ action against the defendant as the administrator of the estate of the deceased husband in Shah Alam High Court (BA-22NCVC-402-09/2023) in enclosure 22, exhibit A, and successfully served the cause papers.

It is an action to seek the return of RM810,000.00 for rentals 330 collected from the tenants of premise G1 (the said estate property at Lot G1, Pertama Kompleks) that lawfully belongs to the plaintiff.

The return of RM247,490.28 being rentals collected from the tenants of premise G58 (of the same location) that lawfully 335 belong to the plaintiff.

The return of RM290,000.00 being rentals collected from premise G59 (of the same location) that lawfully belongs to the plaintiff.

Interests at 8% of those amounts above and costs. This is 340 because she has filed a suit against the defendant, and after receiving the said writ, the defendant only filed the present application, which was made three years and ten months after the JID dated 22.01.2020.

Before this Shah Alam writ action, the defendant refused to 345 respond to the JID for three years and eleven months, though the service and the JID secured are regularly obtained in compliance with the rules.

5.2 The cause papers (the Writ and the SoC) were properly served on the 350 defendant personally at her last known address at No.47, Jalan Wangsa Ukay, Bukit Antarabangsa, 68000 Ampang, Selangor. She acknowledged receipt in detail on the cover letter dated 26.09.2019, signed it, and wrote her name, Selina Chong, dated and timed as 28.09.2019 at 4.28 PM (enclosure 8: exhibit AA-1)

In failing to enter an appearance within the required time, an application to record a JID was filed. The JID was duly recorded by the High Court on 22.1.2020 (enclosure 15).

The said JID Order was duly served on the defendant. She acknowledged receipt in detail, signed, and wrote her name, 360 Selina Chong, dated and timed as 23.06.2021 (enclosure 18: exhibit PS-2).

-time runner has filed a Statutory Declaration dated 22.11.2023 affirming the above service (enclosure18, exhibit PS-3).

The solicitor handling this matter has also filed a Statutory 365 Declaration dated 22.11.2023 affirming that she has posted the Order and the Judgment in Default to the defendant and enclosed a certificate of posting (enclosure 18: exhibit PS-4).

The argument by the defendant that she did not receive the JID Order is not tenable. There was a delay of nearly 4 years before 370 the defendant filed the present application after being served with all the cause papers to set aside the JID that was regularly obtained and cited: - Datu Mustapah Bin Datu Ismail & Ors v Muhammad Said bin Tanah [2022] MLJU 1979 held: 375 Enclosure 12 was filed rather late. It did not comply with the Rules of Court 2012, Order 42 rule 13, which provides that an application to set aside a JID must be made "within thirty days after receiving the order or 380 The indolent defendant ought not to be allowed to prejudice the plaintiff and their claim and cited: -Pook South Choong v Tai Yew On & Ors [2022] MLJU 3746, held: [50] Taking into consideration the regular JID, the inexplicable delay, and 385 the proposed defence, which was devoid of merit, I found no reason to interfere with the decision of the LSJ. -Pathmanathan a/I Subramaniam v Pacific & Orient Insurance [2023] MLJU 2539, held: 390 I further find that D did not apply to set aside the JID within the time given; instead, the setting aside application was filed two years [6] The defendant has failed to show there is merit in her proposed 395 defence:

The defendan , who handled the case of the late Hassan bin Ahmad from 2008 until 2009 and who drafted the Deed of Assignment, has affirmed that Hassan bin Ahmad and Selina Chong Abdullah did not disclose 400 documents dated 23.08.1977 and a Assignment drafting the Deed of Assignment (enclosure 18: exhibit PS-5). 405

The plaintiff submitted that the late Hasan bin Ahmad had no basis for making the said Deed of Assignment dated 23.09.2008.

Salina Salwah binti Hassan, who is one of the children of the late Stii Khatijah bt Sheikh Said and Hassan bin Ahmad, has 410 lodged a police report dated 19.05.2021 against the defendant (enclosure18: exhibit PS6). In the circumstances, the plaintiff prays that enclosure 16 is dismissed with costs. 415 THE LAW [7] In a nutshell:

7.1 It is settled law that:

A judgment in default can be set aside as of right ex debito 420 justitiae, irrespective of merits, if it was irregularly obtained.

If the default judgment obtained is a regular judgment, then the defendant has to show a triable defence on merits before being entitled to set aside the default judgment. 425 7.2 Setting aside Judgment-In-Default:

O.13 r.8 RC 2012: The Court may set aside or vary any judgment entered on such terms as it thinks just.

O.42 r.13 RC 2012: - The application to set aside must be made within thirty days of having received a sealed order of the JID: Koperasi Belia Nasional Bhd v. Storage Enterprise (Port Kelang) Sdn Bhd [1998] 3 CLJ 335, CA observed that the 30-day time 435 limit in O.42 r.13 merely sets the maximum period allowed for the defendant to set aside the JID of appearance. - There is no minimum time provided. As such, the defendant can apply to set aside the JID even if the sealed copy of the judgment was not served on the defendant. 440 - However, if the defendant had been served with the sealed copy of the judgment, then the clock started ticking. The defendant would have 30 days from the time of service of the judgment to apply to set aside the JID of appearance. - The Supreme Court in Fira Development Sdn Bhd v 445 Goldwin Sdn Bhd [1989] 1 CLJ Rep 32 observed that

When considering an application to set aside a JID, the issue of delay is only one factor to be considered. But it is not the paramount factor.

The Court must always consider the merits of the defence.

The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits or for some very sufficient reason.

A defence on the merits means raising only an arguable or triable issue. 455 - The Federal Court made it clear that the application to challenge the JID must be made timeously or with reasonable promptitude: Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396, CA; Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd 460 [1996] 1 MLJ 30, FC.

The Court of Appeal in Yap Ke Huat & Ors v. Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175, CA observed that:

When considering an application to set aside a JID, first ascertain if it is a regular or irregular judgment.

If it is an irregular judgment, the default judgment should be set aside ex debitio justitae.

If it is regularly obtained, the principle expounded in Evans v. Bartlam 470 applies (Federal Court in Hasil Bumi Perumahan Sdn Bhd & Ors v. United Malayan Banking Berhad [1994] 1 MLJ 312, FC), requires the defendant to show that he has a defence on merits.

Delays in making such an application are a factor to be considered by the court when deciding whether to grant or refuse the application. 475 In that case, the learned judge correctly applied these law principles when evaluating the application. However, his ruling that the application was made out of time was wrong as the facts showed that the application was made well within the 30 480 days stipulated under O. 42 r. 13 RHC.

7.3 Regular Judgment:

A judgment that complies with procedural rules is a regular JID. For it to be set aside, the defendant must provide evidence of 485 merit.

The Supreme Court in Hasil Bumi Perumahan Sdn Bhd Ors v. United Malayan Banking Corp Bhd (supra), observed that for a defence of merits, there must be before the Court an affidavit showing a meritorious defence to be considered: 490 Lee Hee Hong v Eon Bank Bhd [2014] AMEJ 0785; [2014] 5

MLJ 808, CA 4

The JID is considered irregular if obtained in breach of the 495 procedural rules.

Such a judgment will be set aside as a matter of right (ex debito justitiae), irrespective of the merits and without terms: OCBC Bank (M) Bhd & Anor v Division Sdn Bhd & Ors [2000] AMEJ 0314; [2001] 5 MLJ 129; [2001] 5 CLJ 433.

It should be noted, however, that such a principle has always been subject to two powers of the Court:

Firstly, the Court, under O.13 r.8, may vary a judgment in an appropriate case to correct an irregularity: Ban Hin Lee Bank Bhd 505 v Sonali Bank (1988) The Independent, November 23, CA (Eng); Bank of Credit and Commerce International (Overseas) Ltd (in liquidation) v Habib Bank Ltd [1998] 4 All ER 753. This has been applied if the irregularity was due to an error arising from an accidental slip or omission: Armitage v Parsons [1908] 2 510 KB 410, CA (Eng), and

(ii) Secondly, the Court may allow amendments to correct irregularities under O.2 r.1(3). It is also open to the defendant to apply under O.2 r.2(1) to set aside for irregularity "within a reasonable time and before the party applying has taken any fresh step after becoming aware of 515 the irregularity": Singh (Santosh Kumari) v Atombrook Ltd [1989] 1 WLR 810; [1989] 1 All ER 385, CA (Eng). In Fairchem Investments Ltd v Citibank International plc (1998) The Times, February 20, CA (Eng), the Court of Appeal held, among other things, that setting aside an irregular judgment by the 520 defendant is not a matter of right on the defendant's part:

The courts have broad discretion to consider whether or not to set aside the judgment.

In doing so, the Court is entitled to look at all circumstances, including the circumstances under which default judgment was 525 allowed to be entered, the explanation for the delay in making the application and other relevant matters, such as whether the defendant has a defence on the merits (see Tan Ewe Chong & Ors v Pribudi Sdn Bhd & Ors [1998] 5 MLJ 108; [1997] 3 CLJ Supp 372). 530 7.5 The Federal Court in Goh Teng Whoo & Ano v. Ample Objectives Sdn Bhd [2021] 4 CLJ 348, [2021] 3 MLJ 159, FC held that where service of a writ is alleged to have been effected by way of sending the same to a defendant by A.R. Registered post under O. 10 r. 1(1) 535 of the Rules of Court 2012, the court cannot enter a judgment in default of appearance where the affidavit of service does not exhibit the A.R. Registered card containing an endorsement as to receipt by the defendant himself, or someone authorised to accept service of the same on his behalf. In that case, the AR registered card signed 540 and acknowledged by the defendant's brother was considered improper service. FINDINGS [8] I find the JID is regular, and I am unpersuaded on the merits of the 545 defendant's arguments on the irregularity of the JID. I am minded that even in the case of an irregular judgment, it is still subject to the powers of the Court in (1) to make a variation in appropriate cases (O.13 r.8 RC 2012): Ban Hin Lee Bank Bhd v Sonali Bank (1988) The Independent, November 23, CA (Eng), and (2) the Court may allow amendments to 550 correct irregularities under O.2 r.1(3). In Fairchem Investments Ltd v Citibank International plc (1998) The Times, February 20, CA (Eng), the Court of Appeal observed that setting aside an irregular judgment by the defendant is not a matter of right on the defendant's part. The Courts have broad discretion to consider whether or not to set aside the judgment. 555 In doing so, the Court is entitled to look at all circumstances, including the circumstances under which default judgment was allowed to be entered: Goh Teng Whoo & Anor v. Ample Objectives Sdn Bhd (supra). The Supreme Court made it clear in Hasil Bumi Perumahan Sdn Bhd Ors v. United Malayan Banking Corp Bhd (supra) that for a defence of merits, 560 there must be before the Court an affidavit showing a meritorious defence to be considered. [9] What had been argued by the defendant to set aside the JID are:

As in cases of setting aside JID, generally, a defence of not being 565 duly served with the cause papers would be offered, which I find most unconvincing. I take cognisance that the defendant who claimed not to be served with the cause papers has, on two occasions, accepted the service of the Writ and the SoC and the Order and Judgement in Default Order. I find it all too convenient to deny the signatures were 570 not hers.

Her assertions in the affidavit supporting enclosure 17 are fundamentally bare assertions lacking in merits to sustain the application.

The defendant argued that the cause papers were not properly served 575 to her. I find that these bare arguments and denial of service have not been able to refute the issue of the service of the said cause papers. I see her affidavit in support as lacking in merits to sustain enclosure 16.

The affidavit in support must contain the merits of the proposed 580 defence. Besides raising technical issues, the defendant failed to show serious bona fide problems that amount to a reasonable defence on merits in seeking to set aside this JID. To reiterate Fairchem Investments Ltd v Citibank International plc (1998) The Times, February 20, CA (Eng), that setting aside judgment is not a 585 matter of right on the defendant's part. The courts have broad discretion to consider whether or not to set aside the judgment. In doing so, the Court is entitled to look at all circumstances, including the circumstances under which default judgment was allowed to be entered.

In default of the rules, there is no SoD for the Court to consider. The Supreme Court in Hasil Bumi Perumahan Sdn Bhd v United Malayan Banking Corporation (supra) observed that to succeed in any application to set aside under O13 r.8 RC 2012, the applicant must show that his defence is not a sham defence but one that is 595 prima facie, raising severe issues as bona fide reasonable defence that ought to be tried. To determine whether the defence has merits, the Court must form a view of the probable outcome of the case. [10] The Supreme Court, Fira Development Sdn Bhd v Goldwin Sdn 600 Bhd (supra), held that the Court must always consider the merits of the defence. The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits or for some very sufficient reason. A defence on the merits means raising only an arguable or triable issue. In enclosure 16 and its affidavit 605 in support thereof, it is my finding that it is lacking sufficient reasons to set aside the said JID. CONCLUSION [11] In light of the foregoing and on the balance of probabilities, I found 610 no merits in enclosure 16 and dismissed it with costs of RM3,000.00, payable within 30 days from the date of this order. Dated 25.06.2024. 615 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA 620 WILAYAH PERSEKUTUAN KUALA LUMPUR Counsels: 625 Johanna Solomon Messrs Johanna Solomon Counsel for the plaintiff. 630 Mohd Fadhli bin Yahya Messrs Siddiq Azani & Co. Counsel for the defendant.