(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made; and [Emphasis added.] 18 July 2026 ------------------------------------------------------------------------------------------------------------------------------------- 6 [15] The grounds in section 5(1) of the REJA are exhaustive. They are not illustrative, nor are they merely factors to be weighed. They are the exclusive gateway through which a judgment debtor, in this case the Respondent, must pass to set aside a registration. If a judgment debtor cannot prove any of these grounds, the court has no discretion to refuse enforcement on other grounds. [16] Before the High Court, the Respondent invoked only one provision, namely section 5(1)(a)(iii) of the REJA. He claimed that he had not received notice of the Scottish Proceedings in sufficient time to enable him to defend, and hence, had not appeared. That was his sole statutory basis for the Setting-Aside Application which the learned Judicial Commissioner had allowed. [17] To succeed under section 5(1)(a)(iii) of the REJA, the Respondent would have to prove two essential elements on a balance of probabilities. First, he would have to prove that he had not received notice of the Scottish Proceedings. Secondly, the Respondent would have to prove that lack of such notice had resulted in his inability to defend those proceedings in sufficient time. [18] In our view, the Respondent had failed to prove either element, and our reasons are as follows. Whether Judicial Commissioner erred in holding that Respondent had not received notice of Scottish Proceedings in sufficient time to enable him to defend such proceedings [19] The Respondent contended that he had no knowledge of the Scottish Proceedings, and that he had never been served with the summons. Consequently, the Respondent claimed that he had been 18 July 2026 ------------------------------------------------------------------------------------------------------------------------------------- 7 denied the opportunity to be heard, in breach of the principles of natural justice. [20] The Appellant, on the other hand, contended that the learned Judicial Commissioner had fundamentally erred by failing to give proper weight to the uncontroverted documentary evidence which demonstrated that the Respondent had, in fact, been duly served with the summons. Instead, the learned Judicial Commissioner was said to have placed undue reliance on the Respondent's bare and self-serving denial of service, notwithstanding the objective evidence to the contrary. [21] In our view, the learned Judicial Commissioner had erred in holding that the Respondent had not received notice of the Scottish Proceedings. That finding was unsustainable for several reasons. [22] First, the Appellant had placed before the High Court, a Certificate of Personal Service confirming that the summons dated 1 July 2021, issued by the Court of Session, was served on the Respondent on 24 August 2021. Having been served with the summons on 24 August 2021 meant that the Respondent had 56 days to enable him to defend the Scottish Proceedings which was scheduled on 19 October 2021. The Respondent, however, had failed to attend such proceedings. [23] Secondly, the learned Judicial Commissioner had misapplied the burden of proof. The test under section 5(1)(a)(iii) of the REJA requires the registering court to be satisfied that the judgment debtor “did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) 18 July 2026 ------------------------------------------------------------------------------------------------------------------------------------- 8 receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear.” [24] In the present case, the Appellant had adduced sufficient evidence to establish that the summons was duly served on the Respondent in accordance with the law of Scotland. The burden, therefore, shifted to the Respondent to demonstrate that he had not received notice of the Scottish Proceedings. The Respondent, however, had failed to place any material before the learned Judicial Commissioner beyond his bare denial that he was unaware of the Scottish Proceedings. It was crucial to note that the Respondent had not denied that he maintained an address at Suite B-26-1 F026, Pavilion Residences Tower 2, Jalan Raja Chulan, 55100, Wilayah Persekutuan Kuala Lumpur, where the summons was served at; and had also not denied that he was acquainted with one Mr Zahari, his personal assistant on whom the summons was served. [25] We were of the view that the learned Judicial Commissioner ought to have been satisfied with the evidence before the Court that, in the absence of any corroborative material or credible explanation from the Respondent, his bare assertion of non-receipt of the summons was insufficient to satisfy the requisite burden of proof. [26] Notwithstanding the contemporaneous documentary evidence adduced by the Appellant, the learned Judicial Commissioner had, in error, discounted or overlooked such evidence without adequate justification. In fact, undue weight was placed by the Judicial Commissioner on the Respondent's unsupported assertion that he was "not aware" of the Scottish Proceedings. 18 July 2026 ------------------------------------------------------------------------------------------------------------------------------------- 9 [27] It is trite that a mere assertion in an affidavit, standing alone and contradicted by contemporaneous documentary evidence, does not suffice to discharge the burden of proof. The irresistible inference, therefore, was that service of the summons had been effected accordingly, and that notice of the Scottish Proceedings was, in fact, received by the Respondent. Consequently, the ground pursuant to section 5(1)(a)(iii) of the REJA had clearly not been made out. [28] The Respondent had also not attempted to prove that the lack of notice of the Scottish Proceedings had resulted in his inability to defend. Even if he had proved non-receipt of the summons, the Respondent would still need to show that he had a defence that he could have raised had he received such notice. Instead, the Respondent had made vague references to a "meritorious defence" concerning wrongful confiscation of property and disputed repair bills, alleging, for instance, that the Appellant had wrongfully taken possession of the Property, had failed to adequately secure it, thereby exposing it to arson and fire, and that the sums claimed for the repair works had been disputed by the Respondent. [29] The Respondent, however, provided no particulars; no explanation of how the Court of Session would have ruled differently; no witness statements or expert evidence; and not even a draft defence. Mere assertions of a defence, without more, are insufficient to satisfy the requirements of section 5(1)(a)(iii) of the REJA. In our view, the Respondent should have, at least, demonstrated a real prospect of success on the merits, which he had failed to do. [30] In her Grounds of Judgment, the learned Judicial Commissioner, however, found, that "on balance of probabilities, the JD as the 18 July 2026 ------------------------------------------------------------------------------------------------------------------------------------- 10 Defendant in the proceedings at the Court of Session, Scotland, did not receive notice of those proceedings in sufficient time to enable him to defend the proceedings and he also did not appear in Court." In our view, that finding by the learned Judicial Commissioner was not supported by the evidence. [31] Finally, we were of the view that the learned Judicial Commissioner had misdirected herself in invoking the court's inherent powers under Order 92 rule 4 of the Rules of Court 2012 (“Rules of Court”) in allowing the Setting-Aside Application "as it was obtained in the absence of the JD so as to prevent injustice." The provision reads: Order 92 – Miscellaneous Rule 4 – Inherent powers of the Court For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [32] Order 92 rule 4 of the Rules of Court preserves the court's inherent jurisdiction as a residual source of procedural power to prevent injustice and abuse of process. However, it was never intended to confer an unfettered or arbitrary discretion upon the court. If invoked indiscriminately, the provision would undermine the certainty, predictability and orderly administration of justice embodied in the Rules of Court and in legislation enacted by Parliament. The inherent jurisdiction exists to supplement, not supplant, the established procedural framework, and may only be exercised where the rules are silent or inadequate to address a particular situation. 18 July 2026 ------------------------------------------------------------------------------------------------------------------------------------- 11 [33] Accordingly, Order 92 rule 4 of the Rules of Court must be applied cautiously and sparingly, ensuring that it is not used to circumvent express statutory provisions, create substantive rights, or achieve outcomes inconsistent with the governing legal framework. This has been expounded in several cases including Tan Beng Sooi v Penolong Kanan Pendaftar Mahkamah Tinggi, Pulau Pinang [1995] 2 MLJ 421 and Permodalan MBF Sdn Bhd v Tan Sri Datuk Seri Hamzah Abu Samah & Ors [1988] 1 CLJ 31. [34] Section 5(1) of the REJA is a complete code governing the setting aside of registered foreign judgments; it specifies exactly when a registration may be set aside. To invoke inherent powers on a ground not found in section 5(1) of the REJA would be to subvert the legislative scheme. The court cannot, under the guise of preventing injustice, create new grounds for setting aside that Parliament has not provided. If the Respondent could not prove any of the statutory grounds, the learned Judicial Commissioner had no power to allow the Setting-Aside Application, however sympathetic she might have been to the Respondent's position. The invocation of inherent powers in this context was, in our view, a misdirection in law. [35] We, therefore, concluded that the learned Judicial Commissioner had erred by allowing the Setting-Aside Application. 18 July 2026 ------------------------------------------------------------------------------------------------------------------------------------- 12 Whether Judicial Commissioner erred in failing to consider absence of justification for Respondent's unexplained delay in filing the Setting-Aside Application [36] The Appellant contended that the learned Judicial Commissioner had erred in hearing the Setting-Aside Application despite it being filed well out of time. [37] The express terms of the Registration Order afforded the Respondent a clear and unambiguous period of 14 days pursuant to Order 67 rule 5(2) of the Rules of Court within which to file the Setting-Aside Application. The provision reads: Order 67 – Reciprocal enforcement of judgments Rule 5 – Order for registration …