Syed Dzulfakar Ali Bin Syed Mustafa v Rozita Binti Ibrahim (BA-12ANCvC-1-01/2025)

This is an appeal by the Plaintiff/Appellant (“Plaintiff”) against the decision made by the learned Second Sessions Court Judge, Puan Zuhrina binti Mohamed Nor (“Second Sessions Court Judge”), delivered on 18 December 2024 in respect of Defendant/Respondent’s (“Defendant”) application under Enclosure 72 (“Encl. 72”) to set aside the order for Substituted Service granted by her predecessor, the learned First Sessions Court Judge, Tuan Ishak bin Bakri (“First Sessions Court Judge”) on 23 February 2023.

On 8 January 2023, the Plaintiff initiated a civil suit against the Defendant for failing to pay the service fee owed to the Plaintiff for his consultancy services in assisting the Defendant with the purchase of a property in London. The Plaintiff filed a writ with the following claims and/or reliefs: a) Jumlah sebanyak £68,300.00 yang bersamaan RM363,380.52 pada tarikh pemfailan tuntutan ini; b) Faedah pada kadar 5% setahun terhadap jumlah sebanyak £68,300.00 dari tarikh matang bayaran pada 21 Oktober 2022 sehingga tarikh penghakiman; c) Faedah pada kadar 5% setahun terhadap jumlah sebanyak £68,300.00 dari tarikh penghakiman sehingga tarikh penyelesaian penuh; d) Kos; dan e) Mana-mana relif lain dan/atau perintah yang difikirkan adil dan suaimanfaat oleh Mahkamah Yang Mulia di sini.

Service of cause papers to the Defendant was completed by way of substituted service as personal service could not be affected. Subsequently on 26 April 2023, Judgement in Default of Appearance was entered against the Defendant by the learned First Sessions Court Judge.

On 16 May 2023, the Defendant filed a Notice of Application to set aside the Judgment in Default. This application was dismissed by the learned First Sessions Court Judge on 8 August 2023.

The Defendant appealed to the High Court where the High Court dismissed the appeal on 21 February 2025. Following that, the Defendant proceed to appeal to the Court of Appeal but the appeal was later withdrawn by the Defendant through a Notice of Discontinuance filed on 6 November 2024.

On 23 September 2024, the Defendant filed Encl. 72 to set aside the Substituted Service Order and the application was allowed by the learned Second Sessions Court Judge on 18 December 2024.

The learned First Sessions Court Judge, in allowing Encl. 72, not only set aside the Substituted Service Order, but as a necessary consequence, also set aside the Judgement in Default which has been entered by the Plaintiff on 26 April 2023.

The terms of the learned Second Sessions Court Judge’s order, as recorded at page 249 of the Record of Appeal, were reproduced as follows: a. Perintah Penyampaian Ganti bertarikh 23 Februari 2023 di Kandungan 10 dibatalkan; b. Selanjutnya Penghakiman Ingkar bertarikh 26 April 2023 adalah diketepikan dan/atau dibatalkan.

The chronology of events is material to show multitude of proceedings prior to this Encl. 72 and inter alia set out below: a. 6 January 2023 – the Plaintiff filed Statement of Claim (SOC) against the Defendant; b. 23 February 2023 – the learned First Sessions Court Judge granted order for Substituted Service; c. 26 April 2023 – Substituted Service was carried out, and a Judgement in Default was entered against the Defendant by the learned First Sessions Court Judge; d. 19 May 2023 – The Plaintiff applied for Garnishee Proceedings; e. 1 June 2023 – The Defendant applied for stay of execution; an ad interim stay was granted; f. 8 August 2023 – The learned First Sessions Court Judge dismissed the Defendant’s application to set aside Judgement in Default; g. 16 August 2023 – The Defendant appealed to the High Court against the dismissal; h. 4 September 2023 – An absolute order for garnishee was granted; i. 21 January 2024 – The High Court dismissed the Defendant’s appeal against the Sessions Court Judge’s decision; j. 23 January 2024 – The Defendant applied to adduce fresh evidence in High Court; k. 20 March 2024 – The Defendant filed an appeal to the Court of Appeal and changed solicitors; l. 26 March 2024 – The Plaintiff filed bankruptcy proceedings against the Defendant. An application for stay pending appeal was struck out; m. 23 September 2024 – The Defendant filed a fresh application to Sessions Court (Encl. 72) to set aside the Substituted Service Order; n. 18 December 2024 – The learned Second Sessions Court Judge allowed Encl. 72, setting aside both Substituted Service Order and Judgement in Default; and o. 30 December 2024 – The present appeal was filed.

The Plaintiff advanced three main issues for this Court’s consideration: a. Estoppel – Whether the Defendant is estopped from proceeding with her application under Encl. 72 to set aside the Substituted Service Order after having elected to pursue multiple proceedings, including appeal to High Court and subsequently to the Court of Appeal; b. Balance of Convenience – Whether, on the balance of convenience, it favours rejecting the Defendant’s belated application under Encl. 72 to set aside the Substituted Service Order, given her initiation of previous proceedings including appeal, bankruptcy stay, and garnishee challenges; c. Validity of the Substituted Service Order – Whether, once the learned First Sessions Court Judge had rightly granted the Substituted Service Order dated 23 February 2023 in the first place, the Defendant is estopped from collaterally attacking that order after pursuing numerous proceedings including the appeal process.

The Defendant raised the following issues: a. Whether the Substituted Service Order obtained by the Plaintiff on 23 February 2023 was irregular; b. Whether the Defendant is estopped from filing an application to set aside the Substituted Service Order under Encl. 72; and c. Whether the Plaintiff was prejudiced by the decision of the learned Second Sessions Court Judge to allow the setting aside of Substituted Service Order and Judgement in Default.

Having considered the submissions, I find that the Defendant had taken out earlier application to set aside the Judgement in Default before Tuan Ishak Bakri, the learned First Sessions Court Judge. That application did not succeed. To file Encl. before another judge to set aside the Substituted Service Order is, in substance, to reopen the Judgement in Default indirectly. This is impermissible, as it amounts to a collateral challenge to a judgment. The learned Second Sessions Court Judge has no jurisdiction to set aside the Judgement in Default as this issue has been decided by the learned First Sessions Court Judge and affirmed by the High Court.

I have carefully considered the record. In my view, the Affidavit in Support of the Substituted Service application disclosed reasonable efforts at personal service as required under O.10 and O.62 of the Rules of Court 2012 (“ROC”). The order for Substituted Service made by the learned First Sessions Court Judge on 23 February 2023 was properly granted.

It is significant that the Defendant did not raise the issue of the Substituted Service until after the Judgement in Default had been entered against the Defendant on 26 April 2023. This matter was not ventilated in her application to set aside the Judgement in Default, which was dismissed by the learned First Sessions Court Judge on 8 August 2023 and affirmed by the High Court on 21 February 2024.

The law is clear that res judicata and issue estoppel extend not only to issues actually argued, but also to issues which could and ought to have been raised at that time – Asia Commercial Finance (M) Bhd. v Kawal Teliti Sdn. Bhd. [1995] 3 MLJ 189.

The validity of the Substituted Service Order is a foundational matter going to the root of jurisdiction. If the Defendant believed service was defective, the Defendant ought to have raised it at the Judgement in Default setting-aside stage.

A subsisting court order must be obeyed and can only be challenged by proper proceeding instituted for that purpose, not collaterally - Development & Commercial Bank Bhd v Aspatra Corp Sdn Bhd & Anor and another appeal [1995] 3

The Defendant sought to explain her omission by alleging that her previous solicitors failed to raise the issue of irregular Substituted Service Order during the application to set aside the Judgement in Default before the learned First Sessions Court Judge.

This submission does not assist the Defendant. It is trite law that a litigant is bound by the conduct of their solicitors. Mistakes, omissions or tactical choices of counsels cannot be relied upon to circumvent the principles of res judicata and finality of litigation – Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4

Having failed to raise the issue at the proper time, the Defendant is barred from raising it later. To hold otherwise would permit parties to keep arguments in reserve, only to deploy them belatedly as collateral attacks. This is inconsistent with the principle of finality of litigation and would encourage abuse of process.

The Defendant’s subsequent application on 23 September 2024 (Encl. 72) was therefore a classic case of a collateral attack on the subsisting Substituted Service Order and on the earlier Judgement in Default proceedings.

The Defendant had already taken application to set aside the Judgement in Default before the learned First Sessions Court Judge. At that stage, she did not challenge the Substituted Service Order. She cannot now, through Encl. 72 before a different judge, attempt to revisit the very foundation of the Judgement in Default.

I agree with the Plaintiff, that the Defendant cannot approbate and reprobate. Having participated fully in earlier proceedings including appeals premised on the Substituted Service Order, she is estopped from undermining it now.

Further, the decision of the learned Second Sessions Court Judge to set aside both the Substituted Service Order and the Judgement in Default has caused real prejudice to the Plaintiff. The Plaintiff who lawfully obtained judgment was deprived of the benefit of the judgment without proper legal basis.

I therefore find the learned Second Sessions Court Judge erred in law and in fact in entertaining the Defendant’s Encl. application and in setting aside both the Substituted Service Order and the Judgement in Default.

For the reasons above, I hold that the Defendant’s application dated 23 September 2024 before the Sessions Court (Encl. 72) was barred by res judicata and issue estoppel, and amounted to a prohibited collateral attack contrary to the case of Development & Commercial Bank Bhd v Aspatra Corp Sdn Bhd & Anor and another appeal (supra).

The learned Second Sessions Court Judge’s decision in setting aside the Substituted Service Order and the Judgement in Default is set aside. The Substituted Service Order dated 23 February 2023 and Judgement in Default dated 26 April 2023 are restored.

Accordingly, I allow the appeal with costs of RM 5,000.00. Dated 26 September 2025 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Appellant : Amirfarid Nawawi & Muhammad Danish Bin Manoharan Abdullah (Messrs Manoharan Chambers (Kuala Lumpur)) For the Respondent : Hasshahari Bin Johari Mawi, Shah Nurul Afzan Binti Abdullah & Wan Nur Amirah Binti Wan Aman (Messrs Hasshahari & Partners (Shah Alam))