Lampiran
Lampiran – 16 hanya difailkan oleh Defendan Pertama pada 29/9/2021 iaitu selepas lebih kurang dua puluh enam (26) bulan atau bersamaan dengan dua (2) tahun dua (2) bulan lamanya daripada tarikh Penghakiman Ingkar Kehadiran bertarikh 10/7/2019 tersebut (Lampiran – 15) diserahkan kepada Defendan Pertama di dalam kes ini iaitu pada tarikh 24/7/2019. Sila rujuk kes Khor Cheng Wah lwn Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396. (22) Begitu juga, menurut Aturan 42 Kaedah 13 Kaedah-Kaedah Mahkamah 2012, jika sekiranya Defendan Pertama ingin mengenepikan sesuatu Penghakiman Ingkar tersebut, Defendan Pertama seharusnya atau sepatutnya memfailkan Notis Permohonan untuk mengenepikan penghakiman ingkar tersebut di dalam tempoh masa (30) hari setelah atau selepas beliau menerima atau dianggap telah menerima Penghakiman Ingkar tersebut iaitu pada 24/7/2019. Page 7 of 20 (23) Dalam erti kata yang lain, tarikh terakhir untuk Defendan memfailkan notis permohonan untuk mengenepikan Penghakiman Ingkar Kehadiran tersebut adalah selewat-lewatnya pada ataupun sebelum daripada tarikh 23/8/2019 sebagaimana yang terkandung ataupun yang telah diperuntukkan dengan jelas, terang dan nyata di bawah Aturan 42 Kaedah 13 Kaedah-Kaedah Mahkamah 2012. (24) Walau bagaimanapun, Defendan Pertama telah gagal untuk memfailkan notis permohonan di dalam tempoh masa (30) hari tersebut. Sebaliknya, Defendan Pertama hanya memfailkan Notis Permohonan di bawah Lampiran – 16 ini selepas lebih kurang hampir dua (2) tahun dan dua (2) bulan lamanya daripada tarikh Penghakiman Ingkar Kehadiran bertarikh 10/7/2019 tersebut diserahkan kepada Defendan di dalam kes ini iaitu pada tarikh 24/7/2019 berkenaan. (25) Oleh itu, adalah jelas dan nyata di sini bahawa Defendan Pertama telah tidak mematuhi dan melanggari serta mengingkari peruntukkan berkaitan dengan had masa yang telah dinyatakan dengan jelas dan terang di dalam Kaedah-Kaedah Mahkamah 2012 ini. Alasan yang diberikan oleh Defendan Pertama bahawa mereka sedang di dalam proses perbincangan untuk cuba menyelesakan kes ini dengan Plaintif berkenaan dengan cara pengiraan dan cara bayaran yang dikenakan oleh Plaintif melalui Penyata Akaun Plaintif dan juga Defendan Pertama hanya mendapat tahu tentang tindakan guaman ini semasa di dalam tempoh Perintah Kawalan Pergerakan (“MCO”) dan tidak dapat berjumpa dan berbincang dengan peguamnya adalah merupakan suatu alasan atau dakwaan yang tidak berasas, alasan yang kosong dan alasan yang tidak bermerit sama sekali serta tanpa disokong oleh sebarang bukti-bukti dokumentasi semasa (“contemporaneous documentation”). Dalam lain perkataan, Mahkamah tidak boleh dengan sewenang-wenangnya membenarkan sahaja Notis Permohonan Defendan di bawah Lampiran – 16 ini. Sila rujuk kes Thye Ah Chai lwn Teraju Mercu Construction & Engineering Sdn Bhd [2013] MLRAU 363 dan kes Ong Guan Teck & Ors lwn Hijas [1981] 1 MLRH 237.” Page 8 of 20 [4] The respondent’s in their submission stated as below: “Basis for the Appellant’s setting aside application 8. Basis for the Appellant’s application is premised on the events transpired after the JID was obtained when rightfully the setting aside application is not the right forum to raise the said issues as the setting aside application should be premised on facts and events before the Judgment in Default was entered. The arguments should be based on whether the Judgment in Default obtained is regular or irregular. An unreasonable delay of 26 months in filing the setting aside application 9. Order 42 Rule 13 clearly states that the application shall be made within 30 days after the receipt of the order or judgment, yet the Appellant had sat on their rights. 10. The cause papers and the judgment were served on the Appellant, and it is an undisputed fact that the service against the Appellant was a proper service. 11. The Appellant’s argument on knowledge of the new director on the judgment should not be taken into consideration as the company is a separate entity on its own. It is the newly appointed director or shareholder’s duty to conduct a proper due diligence before taking over a company to obtain sufficient information on the company’s asset and liabilities especially after being informed of a legal suit. The directors cannot now dispute the Judgment obtained after sitting on their rights for months. Page 9 of 20 The Appellant is unsure of the amount claimed by the Respondent 17. The Appellant is clearly aware that the Appellant is out of time to apply for setting aside, the Appellant is trying to get their second bite of the cherry by litigating this matter under the allegation that the Appellant is unsure of the amount claimed by the Respondent. 18. A large part of the Appellant’s allegation here is based on the statements of account issued by the Respondent to the Appellant while trying to resolve this matter amicably after the Respondent had entered a Judgment in Default against the Appellant and the 2nd Defendant. 19. The difference in the amount in the Statement of Claim is due to the interest computation method which has been explained to the Appellant. Respondent had claimed for the right and accurate amount in the Writ Summons and Statement of Claim. 24. The moneylending agreement does not provide for early settlement hence the presumption is for the borrower to pay principal and interest till the end of the tenure. Therefore, the agreement nor the Act had provided for the interest computation method.” [5] The Rules of Court 2012 states: “Setting aside judgment (O 13 r 8) 8. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.” [6] In CHEUNG KONG PLANTATIONS SDN BHD v MALAYAN UNITED FINANCE BHD [2000] 3 MLJ 265 Court of Appeal, the facts of the case briefly were as follows: Page 10 of 20 “The respondent obtained a judgment in default against the appellant on 13 November 1986. The appellant entered appearance on 25 November 1986. However, the summons to set aside the default judgment was not taken out until 23 September 1991. The High Court judge declined to set aside the judgment in default on two grounds: (i) the delay of five years in the making of the application; and (ii) there were no issues that merited a trial. The appellant appealed. It was submitted that the judgment in default was a nullity and thus the appellant was entitled to have it set aside ex debito justitiae. His Lordship Gopal Sri Ram JCA (as he then was) pellucidly held as follows: “Accordingly, the case turns upon whether the learned judge exercised the discretion vested in him correctly in refusing to set aside the judgment in default. We have said on numerous occasions that in an appeal against the exercise of discretion by a judge in the court below this court has the initial function of review only. We have no original discretion. It is only when an appellant can satisfy the appellate court that the trial judge had taken into account irrelevant considerations, or omitted relevant considerations or had otherwise misdirected himself on the law that an appellate court is entitled to exercise a discretion of its own.” [7] The Malaysian Civil Procedure (White Book) 2018 edition states: “Regular judgment in default—In the event the defendant desires to defend the action notwithstanding the entry of a regular default judgment by the court, he may apply under this rule to set Page 11 of 20 aside the judgment. An application is to be made by notice of application supported by an affidavit. The affidavit in support must contain the merits of the proposed defence and any excuse to be relied on for allowing judgment to be entered: see Bank Bumiputra Malaysia Bhd v Majlis Amanah Rakyat [1979] 1 MLJ 23; see also Logan Ravishankar & Ors v MY IT Asia Sdn Bhd [2015] AMEJ 1078; [2015] 1 LNS 580. It should be noted that the court will generally only exercise its discretion to set aside the judgment in default if the affidavit in support discloses a defence on the merits: see Bank Bumiputra Malaysia Bhd v Majilis Amanah Rakyat [1979] 1 MLJ 23, FC; Farden v Anor v Richter (1889) 23 QBD 124, CA (Eng); C Paul D’Cruz v Chow Tai Yow & Sons Sdn Bhd [1999] 1 AMR 329; [1999] 1 MLJ 51; [1998] 4 CLJ Supp 389, HC. A “defence on the merits” means a defence which discloses an arguable and triable issue: see PL Construction Sdn Bhd v Abdullah Said [1989] 1 MLJ 60; [1988] 2 CLJ 808; [1988] 2 CLJ (Rep) 91. It has been held that in exercising its discretion the court must form a provisional view as to the probable outcome of the action and that it is not sufficient for the defendant to merely show a prima facie or an “arguable” defence; the defence must have “a real prospect of success”: see Hasil Bumi Perumahan Sdn Bhd & 5 Ors v United Malayan Banking Corp Bhd [1994] 1 AMR 297; [1994] 1 MLJ 312, SC; Yayasan Melaka v Photran Corp Sdn Bhd & Anor [2012] 7 MLJ 1; Cheah Shu Boon v American Home Assurance Co [2001] 2 CLJ 277; Alpine Bulk Transport Co Inc v The Saudi Eagle [1986] 2 Lloyd’s Rep 221. In Logan Ravishankar & Ors v MY IT Asia Sdn Bhd [2015] AMEJ 1078; [2015] 1 LNS 580, the High Court held that the threshold required to set aside a judgment in default “is not equal but lower than that required to defend a summary judgment application although both share the synonymous expression ‘triable’ to surmount their respective thresholds”. Page 12 of 20 Delay in making an application—Pursuant to Order 42 r 13, any application to set aside or vary any order or judgment must be made within 30 days of the service of the order or judgment: see AmFinance Bhd v Pembinaan Sistem Laju Sdn Bhd [2007] 5 MLJ 323. Accordingly a defendant who wishes to set aside a judgment in default entered against him must file his application to set aside the judgment within 30 days from the date the judgment was served on him. Order 2 r 2(1) further provides that an application to set aside for irregularity should be made promptly and within a reasonable time. It follows therefore that any application to set aside a judgment in default (whether regular or irregular) must be made promptly and in any event within 30 days from the date of service of the judgment (see Public Finance Bhd v Lee Bee Rubber Factory Sdn Bhd & Ors [1994] 1 MLJ 495, where the defendant was found to be guilty of laches). It is submitted however that the court in a fit case could disregard lapse of time and extend time under Order 3 r 5: see Malayan Banking Bhd v Mahmood Zuhdi Hj Mohd Nor [2001] 6 MLJ 209; see also Beale v Macgregor (1886) 2 TLR 311; Vann v Awford (1986) LS Gaz 1725; (1986) The Times, April 23, CA (Eng). Apart from Order 3 r 5 there is an inherent power in the court to prevent an abuse of its proceedings and a judgment, although the application is out of time, will be set aside if circumstances require it (see Beale v Macgregor (1886) 2 TLR 311, where a judgment was set aside by the English Court of Appeal on the ground of oppression; see also Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 AMR 215; [1996] 1 MLJ 30; [1996] 1 CLJ 241, FC; Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374; [1996] 1 AMR 908; ICI Agrochemicals (M) Sdn Bhd v Yap Teck Seng Sdn Bhd & Ors [1998] 3 CLJ 855; OCBC Bank (M) Bhd & Anor v Livision Sdn Bhd & Ors [2000] AMEJ 0314; [2001] 5 MLJ 129; [2001] 5 CLJ 433). However, if delay is coupled with prejudice occasioned to the plaintiff or to a bona fide assignee Page 13 of 20 of the judgment debt, the court may refuse to set aside the judgment: see Harley v Samson (1914) 30 TLR 450. The courts have in the past exercised their discretion to set aside an irregular judgment despite a long delay. Generally this discretion will only be exercised where the court is satisfied that (i) no one has suffered prejudice as a result of the delay; (ii) alternatively, where such prejudice has been suffered, the party may be sufficiently compensated by an order of costs being made in his favour; or (iii) to let the judgment stand would constitute oppression. In Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396, CA, the Court of Appeal held that the burden is on the defendant to render a satisfactory explanation for the delay. Whether or not such explanation is satisfactory or reasonable is for the judge to decide based on the facts and circumstances of each case. A defendant in seeking a default judgment to be set aside must make full and frank disclosure of all material facts to the court. Failure to do so may result in the court refusing to exercise its discretion to set aside the judgment on the ground that the defendant’s conduct is not bona fide: see Public Finance Bhd v Lee Bee Rubber Factory Sdn Bhd & Ors [1994] 1 MLJ 495; [1994] 2 CLJ 646; Maharin Nisha bte Hassan Mohamed v Panir Selvam a/l Chellamuthu [2005] 6 MLJ 572.” [8] The Rules of Court 2012 further states: “Setting aside or varying judgment and orders (O 42 r 13) 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 serve it on the Page 14 of 20 party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.” [9] The Malaysian Civil Procedure (White Book) 2018 edition further states: “Scope of rule—Every order or judgment is enforceable unless and until it is set aside (Lee Tain Tshung v Hong Leong Finance Bhd [2000] 3 AMR 2707; [2000] 3 MLJ 364, CA). This rule also applies in respect of applications to set aside an order for sale obtained under the National Land Code 1965 (Act 56) (Oriental Bank Bhd v Mohinder Pal Kaur a/p Tirlok Singh [1996] 1 MLJ 788, HC). Similarly, the principle in this rule has been held to extend to applications to set aside the registration of a judgment pursuant to Order 65 r 2 (Saeed U Khan v Lee Kok Hooi [2000] AMEJ 0026; [2001] 5 MLJ 416; [2000] 7 CLJ 454, HC). It has been held that Order 42 r 13 may be relied upon by a plaintiff to apply to set aside a judgment which the plaintiff himself has obtained, pursuant to the inherent jurisdiction of the court under Order 92 r 4: MacQuarie (Malaysia) Sdn Bhd v HSBC Bank Malaysia Bhd & Anor [2007] 7 MLJ 139, CA. Although r 13 does not make any provision for extension of time, for the purposes of abridgment of time an interested party may apply for an extension of time to make an application to set aside pursuant to Order 3 r 5 (Malayan Banking Bhd v Mahmood Zuhdi Hj Mohd Nor [2001] 6 MLJ 209, HC). Further, under the court’s inherent jurisdiction to prevent abuse of its proceedings, the court has power to set aside an irregular judgment, despite being out of time (Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 AMR 215; [1996] 1 MLJ 30; [1996] 1 CLJ 241, FC). Page 15 of 20 After the receipt of the order or judgment—Under r 13, time begins to run from the time when the sealed order or judgment is received by the defendant and not from the date of judgment (Koperasi Belia Nasional Bhd v Storage Enterprise (Port Kelang) Sdn Bhd [1998] 3 AMR 2465; [1998] 3 MLJ 209, CA; cf Yap Ke Huat & 4 Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 3 AMR 28; [2008] 5 MLJ 112 at [16]; [2008] 4 CLJ 175, CA). Based on the wording “receipt” in Order 42 r 13 there must be actual service of a copy of the sealed order or judgment upon the defendants before the 30 day period starts to run (CIMB Bank Bhd v Comsa Layer Farms Sdn Bhd & Anor [2011] 1 AMR 142; [2011] 2 MLJ 118, HC). If a plaintiff intends to use the rule in Order 42 r 13 to shut out a defendant, the plaintiff must serve the sealed order or judgment on the defendant, otherwise the rule would not operate against the defendant. There is no justification to read “within 30 days after the receipt of the judgment or order by him” in r 13 as meaning 30 days after the defendant became aware of the judgment: Development & Commercial Bank Ltd v Dinesh Kumar a/l Jashbhai Nagjibhai & Ors [2002] 2 AMR 1724; [2002] 7 MLJ 430; [2002] 3 CLJ 108, HC, approved by the Federal Court in Hong Kwi Seong v Ganad Media Sdn Bhd and another appeal [2013] 6 AMR 331; [2013] 6 MLJ 765, FC. See e.g. OCBC Bank (M) Bhd & Anor v Livision Sdn Bhd & Ors [2000] AMEJ 0314; [2001] 5 MLJ 129; [2001] 5 CLJ 433 (Order 42 r 13 was held not to apply as the judgment in default of appearance was never served on the fourth defendant); Lau Pick Huong v Soh Huang Siah [2014] AMEJ 0630; [2015] 7 MLJ 325; [2014] 8 CLJ 488 (judgment in default held not to have been received by defendant where purported service by way of prepaid registered post not proven). Page 16 of 20 Delay in applying—Where a defendant’s application to set aside a judgment is not made within the 30 day period prescribed by r 13, and there is no explanation for the delay in approaching the court and there is no application for an extension of time to apply, the application to set aside will be dismissed in limine, and the court will not consider the merits of the applicant’s application: Ng Han Seng & Ors v Scotch Leasing Sdn Bhd [2003] 4 MLJ 647, CA; applied in Anthony Goh Khiok Loong (suing by his father and next friend, Goh Kok Hua) v Chan Yam Heng & Anor [2006] 6 AMR 282; [2007] 1 MLJ 140, HC; and BSN Commercial Bank (Malaysia) Bhd v Mesra Venture Sdn Bhd [2007] 8 MLJ 427, HC. The foregoing statement of principle was referred to with approval by the Court of Appeal in Adnan bin Ishak & 19 Ors v APT Associates Sdn Bhd [2015] 2 AMR 238, CA. See also Hong Kwi Seong v Ganad Media Sdn Bhd and another appeal [2013] 6 AMR 331; [2013] 6 MLJ 765, FC, where the Federal Court held that a party intending to set aside an order or judgment must make his application and serve it on the party who obtained the order or judgment within 30 days after receipt of the order or judgment by him. If the application is made outside the 30-day period, unless time is enlarged, the application must fail. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it. Whether the explanation in a given case is satisfactory depends upon the facts and circumstances of each case. In a matter which involves the exercise of discretion, it is for the judge, in whom the law primarily vests the discretion: Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 AMR 846; [1996] 1 MLJ 223, CA. The foregoing statement of principle was referred to with approval by the Court of Appeal in Adnan bin Ishak & 19 Ors v APT Associates Sdn Bhd [2015] 2 AMR 238, CA. Page 17 of 20 Delay on the part of the litigant’s former solicitors was held not to be a reasonable explanation: Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 AMR 846; [1996] 1 MLJ 223, CA. See also Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2010] 1 AMR 285; [2009] 4 MLJ 610, CA. Where a defendant failed to act with reasonable promptitude to apply to set aside a default judgment within the stipulated 30-day period and the plaintiff had taken a fresh step in filing a petition to wind up the defendant, the defendant’s application to set aside the default judgment was dismissed: Mirra Sdn Bhd v The Ayer Molek Rubber Co Bhd [2008] 3 AMR 381; [2008] 2 MLJ 348, CA. See also Koperasi Belia Nasional Bhd v Storage Enterprise (Port Kelang) Sdn Bhd [1998] 3 AMR 2465; [1998] 3 MLJ 209, CA (application made more than 30 days later); Kandaraju a/l Frapatan v MBf Finance Bhd [2006] 7 MLJ 91, HC (delay of more than six years); Maharin Nisha bte Hassan Mohamed v Panir Selvam a/l Chellamuthu & Anor [2005] 6 MLJ 572, HC (no explanation for delay of three to five years in applying to set aside); The Ka Wah Bank Ltd v Low Chung Song & Ors [1998] 6 MLJ 384, HC (delay in excess of eight years without any explanation); Thye Ah Chai (t/a Kent Naga Enterprise) v Teraju Mercu Construction & Engineering Sdn Bhd [2014] 1 MLJ 422, CA (delay of more than five months, “frivolous” reasons given for delay); CIMB Bank Bhd (previously known as “Bumiputra-Commerce Bank Bhd”) v Eng Sim Leong @ Ng Leong Hin [2015] 1 AMR 351; [2014] 1 LNS 1009, HC (delay of more than three years without explanation). See also the case of Heng Wah Trading Co v Glamor Shoes Industries [2017] 1 LNS 362, HC. Page 18 of 20 See however Malayan Flour Mills Bhd v Teh Wee Kok [2005] 7 MLJ 247, HC, where the court allowed an application for extension of time to make a setting-aside application despite the absence of explanation of delay in filing the application for extension of time, on the basis that voluminous exhibits had to be filed in the respondent’s application to set aside, and no injustice or prejudice had been caused to the plaintiff. The court also observed obiter that the court should be more lenient in setting aside applications where the order had been obtained ex parte. Irregular judgments—It should be noted that this rule was not considered in the decisions of the Federal Court which appear to suggest that delay is not fatal in cases where the judgment obtained is irregular so as to amount to a nullity: Muniandy a/l Thamba Kaundan & Anor v Development & Commercial Bank Bhd & Anor [1996] 1 AMR 908; [1996] 1 MLJ 374, SC; Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 AMR 215; [1996] 1 MLJ 30; [1996] 1 CLJ 241, FC. See also, for example, Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd [2006] 6 AMR 105; [2006] 5 MLJ 21, FC (application to set aside order for sale made some five years later; lapse of time not a bar to an application to set aside an order for sale that was so fundamentally flawed); Yayasan Melaka v Photran Corp Sdn Bhd & Anor [2012] 7 MLJ 1, HC (delay of more than seven years in applying to set aside default judgment irregularly obtained not fatal). In Teoh Ah Mooi @ Chow Kui Eng Mooi v Causeway Bay Plantations Sdn Bhd [2014] 1 MLJ 263, CA, the Court of Appeal, following Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 AMR 909; [1998] 1 MLJ 393, FC, and Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37, FC, held that where an order of court is a nullity, an application to set aside can be made at any time. (Judgment in default obtained in June 1999 against Page 19 of 20 undischarged bankrupt. Application to set aside made more than 12 years later in January 2012. Judgment in default set aside as being a nullity.)” [10] Ergo based on what has been adumbrated above, the appeal was dismissed with costs of RM5,000.00 plus allocatur fees as there was no merits in the application to set aside the judgment in default obtained by the respondent as the appellant failed to satisfy the court that the trial judge had taken into account irrelevant considerations or omitted relevant considerations or had otherwise misdirected himself on the law. Only then is an appellate court entitled to exercise a discretion of its own. In this case the appellant filed the application to set aside the judgment in default after twenty six (26) months which was an inordinate delay on its part. Furthermore, there wasn’t any satisfactory explanation for the delay in doing so neither was there any defence on the merits. [11] Ergo cadit quaestio. Dated: 5th April, 2023 -Signed- ………………………….. (ASLAM B ZAINUDDIN) Judge High Court in Malaya Johor Bahru Note: This judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any. Page 20 of 20 COUNSEL Counsel for the Appellant: C. Sankaran (Maithily a/p Manoher with him) Messrs. C Sankaran Advocates & Solicitors 43-02 Susur Larkin Perdana Jln. Persiaran Larkin Perdana, Larkin Perdana 80350 Johor Bahru Counsel for the Respondent: Shaline a/p Rajan Messrs. Law Chambers of Vinsa & Ian Advocates & Solicitors Unit 6.14 & 6.15 Level 6, Plaza DNP No. 59 Jln Dato’ Syed Abdullah Tahir 80250 Johor Bahru