Toyota Capital Malaysia Sdn Bhd v Suhaimi Bin Saman @ Sulaiman (BC-A52M-24-07/2024)

he was unaware of the action against him; and

(ii) he had never received any summons, statement of claim and judgment from the plaintiff and was only aware of the same on 26 March 2025 when he was served with the bankruptcy notice. Delay [4] It was submitted by the learned counsel for the defendant that the defendant’s application was only filed on 9 July 2025 as he was only aware of the action when he received the bankruptcy notice on 26 March 2025. He contended that he had never received a copy of the default judgment nor the summons and the statement of claim. The learned counsel for the defendant cited the case of Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 MLJ 30 where Edgar Joseph Jr FCJ held: “Nevertheless, it is clear that the court still retains a discretion to set aside an irregular judgment despite long delay, provided it is satisfied that:-

No one has suffered prejudice by reason of the defendant’s delay;

Alternatively, where such prejudice has been sustained, it can be met by an appropriate order as to costs; or

To let the judgment to stand would constitute oppression (see Atwood v Chichester (1878) 3 QBD 722; Harley v Samson

30 TLR 450). We would add that under its inherent jurisdiction to prevent an abuse of its proceedings, the court has power to set aside a judgment in default, despite the defendant’s application out of time, if the particular circumstances of the case require the intervention of the court..." [5] The plaintiff’s counsel, on the other hand, contended that the defendant was eight (8) months late in filing the application to set aside the judgment in default, even though he was served with the bankruptcy notice on 26 March 2025. The defendant also had not given any explanation for the delay. The plaintiff’s counsel relied on Order 42 of the Rules of Court 2012, which provides that an application to set aside a judgment or order to be made within thirty (30) days of receipt of the judgment or order. The following authorities were cited:

Fira Development Sdn Bhd v Goldwin Sdn Bhd [1989] 1 MLJ 40

(ii) Hong Kwi Seong v Ganad Media Sdn Bhd and another appeal [2013] 6 MLJ 765

(iii) Ng Han Seng & Ors v Scotch Leasing Sdn Bhd (appointed receivers and managers) [2003] 4 MLJ 647

(iv) Kandaraju a/l Frapatan v MBF Finance Bhd [2006] 7 MLJ 91 [6] The plaintiff’s counsel further contended that the writ and statement of claim were served on the defendant according to the Hire Purchase Agreement on 21 July 2024 at the defendant’s last known address and the defendant’s address provided in the Hire Purchase Agreement dated 29 May 2023 at No. 5, Jalan UP 5/5, Ukay Perdana, Ulu Kelang, 68000 Ampang, Selangor and at No. 68, Jalan Saujana KLIA 2/2, Taman Saujana KLIA, 43900 Sepang, Selangor (refer Exhibit A-1 Affidavit in Reply). The Legal Principles [7] The principle of setting aside a judgment in default of appearance is trite and can be found in the English case of Evans v. Bartlam [1937] AC

This case has been applied in many Malaysian cases and, in particular in the Federal Court case of Hasil Bumi Perumahan Sdn Bhd & 5 Ors v. United Malayan Banking Berhad [1994] 1 CLJ 329. Essentially, in order to set aside a judgment in default, it must be determined: i) firstly, whether the judgment in default is regular and if it is not then it is liable to be set aside ex debito justitiae or as of right; ii) secondly, if the judgment in default is regular, then whether the defendant has a defence on the merits. (Also see Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565) Issues For Determination and Findings [8] The main issue to be determined is whether the judgment in default is a regular judgment. Clause 21 of the Hire Purchase Agreement provides as follows: “Any account, demand or notice required or authorised to be given by either of the parties to the other under the Act shall be given in the manner prescribed by the Act. Any other demand, notice or correspondence as well as any other originating or legal process shall be deemed to have been served on the Hirer if delivered personally or sent to the Hirer by prepaid registered post or left at the address as stated herein or at the Hirer’s last known address. If sent by post it shall be conclusively deemed to have been received by the Hirer within two

days after the date of such posting despite any evidence to the contrary.” [9] The plaintiff in this case had effected the service of the writ of summons and the statement of claim on the last known address of the defendant and the address provided in the Hire Purchase Agreement. “Last known address” means last known to the plaintiff as decided in the case of MBF Finance Bhd v. Chew Liong Gak [1993] MLJU 433. And in the case of Ramlan bin Kamal v. Perbadanan Nasional Bhd [2004] 1 MLJ 425, it was held that the phrase ‘last known address’ means the most recent known residence of the defendant and nowhere else. In ascertaining the “last known address”, the Court of Appeal in Sivamurthy s/o Muniandy & Ors v Lembaga Kumpulan Wang Simpanan Pekerja [2013] 5 MLJ 533 held that there is no legal obligation to conduct a search at the National Registration Department to ascertain the latest address of a defendant. The affidavit of service filed by the process server, Nik Fadhilah binti Nik Mohamed on 1 August 2024 also shows that the writ and the statement of claim had been served by way of prepaid registered post. [10] It is clear that the plaintiff had effected service on the defendant by registered post in compliance with Clause 21 of the Hire-Purchase Agreement, and the plaintiff had adduced slips issued by the postal authorities establishing when service was effected. [11] This Court is of the considered view that the defendant had failed to adduce credible evidence to rebut the presumptions that the writ of summons and statement of claim have been properly served on her. Hence, it is the Court’s finding that the service was good and proper, in accordance with Order 10 Rule 1(1) of the Rules of Court 2012. Therefore, this Court is of the view that the judgment in default against the defendant is a regular judgment. (See Loh Chow Sang v Loh Chow Tet [2018] MLJU 1265). [12] To this end, reference is made to the case of Maskimi Sdn Bhd v Lee Poh Heng [2000] 4 CLJ 480, where the High Court held as follows: “… In the case, service was properly and personally effected on the defendant who acknowledged receipt thereof; and his failure to enter appearance (or where the writ is not properly served, but enters an unconditional appearance in the action; the writ then shall be deemed to have been duly served on him) warrants the entering of default judgment, as having been regularly obtained; and a regularly obtained judgment can only be set aside at the discretion of the court if there appears to be a defence showing merits.” [13] It follows therefore, the next issue to be ascertained is whether the defendant has a defence on merits. A defence on merits has been described as an arguable defence or prima facie defence, which the rationale behind this principle is that a defendant should not be allowed to set aside a judgment in default if he only has a sham defence to put up. The Federal Court in Tan Chok Ching v Wong Ik Tieng & Ors [1973] 2 MLJ 25 held as follows: “…the court’s discretion must be exercised in accordance with the settled principle that if the judgment is a regular judgment, then it is an almost inflexible rule that there must be an affidavit of merits stating facts showing a substantial ground of defence. (See The Chinese Rehabilitation Loans Board v Chee Hoi Woon [1959] MLJ 152). The defendant having failed to disclose a prima facie defence on the merits, his application to set aside the judgment was therefore rightly dismissed.” [14] The defendant asserted that the judgment should be set aside as there are merits in the defence. The defendant argued that the plaintiff’s claim is unreasonable for the following reasons:

The Hire-Purchase Agreement was not stamped; and

The defendant had never received the vehicle as per the Hire-Purchase Agreement. [15] It is the plaintiff’s contention that the vehicle, Toyota Hilux D/C 2.8 Rouge AT 4x4, registration no. VKQ 3846 Engine No. 1GD5399709 Chassis No. PN1BA3CD006129620 was delivered to the defendant via Vehicle Delivery Order dated 25 May 2023. The defendant had admitted to have received the vehicle in good condition as exhibited in the Vehicle Delivery Order (Exhibit A-4 of the Affidavit in Reply). [16] It is the Court’s considered view that the defendant had not established any merits on the defence. Based on the exhibit, it is clear that the Hire-Purchase Agreement had been duly stamped. Secondly, the defendant’s contention that he had never received the vehicle is unfounded and an afterthought, without merits. The Vehicle Delivery Order had been signed by the defendant on 25 May 2023. If he had not received the vehicle, he should have lodged a police report. The defendant’s defence that being put forward is also inconsistent with the fact that he had been making monthly instalment payment to the plaintiff before the default. If the defendant had not received the vehicle, why would he be making payments to the plaintiff? Therefore, it is the Court’s finding that there are no merits in the defence. [17] Moreover, the burden of proving a defence on merits is not discharged by simply stating what is the defence. The defendant in this case did not produce any documentary evidence to support his averment that he had never received the vehicle. The defendant did not show that he has a prima facie defence or a bona fide reasonable defence. (see Ching Yik Development Sdn Bhd & Anor v Wordware Distributors (M) Sdn Bhd & Anor [2012] 6 CLJ 394, Lai Yoke Ngan & Anor and The Hongkong And

Shanghai Banking Corporation v. Ismail Bin Daud & Anor [1978] 2 MLJ ) Conclusion [18] For the reasons discussed in the foregoing, it is the Court’s finding that the defendant had not succeeded, on a balance of probabilities in establishing his case to have the judgment in default set aside. Service of the writ and the statement of claim on the defendant was regular, and the defendant has no defence on the merits. [19] The defendant’s application in Enclosure 10 was accordingly dismissed with costs of RM 2,000.00. Dated 11 November 2025. (Fadzlin Suraya binti Mohd Suah) Sessions Court Judge Ampang Sessions Court, Selangor Darul Ehsan.