1. ) PLOT AND PARCEL GROUP BERHAD 2. ) MOHD HAMIRUL AZAD BIN MOHD HANIFFA v RAHIMAH BINTI JAAFAR

Case Significance

Illustrates that a regular judgment in default will be set aside only where the applicant discloses a defence on the merits, and that delay and bare explanations about service will not suffice.

This High Court decision, sitting in its appellate jurisdiction, concerns an appeal against a Sessions Court's refusal to set aside two judgments in default. The first and second appellants — a company and an individual who had been the second and fifth defendants below — appealed against the Sessions Court's dismissal of their applications to set aside judgments in default entered against them by the respondent, the plaintiff below, on two separate dates. The appeal turned on three issues: whether the judgments in default were regular or irregular; if regular, whether the appellants had disclosed a defence on the merits; and whether there had been inordinate delay in applying to set them aside. On the first issue, a regular judgment in default may be set aside only in the exercise of the court's discretion, and the applicant must show a defence on the merits, whereas an irregular judgment may be set aside as of right. The court found the judgments to be regular. On the merits, it regarded the appellants' proffered explanations — including complaints about the mode of service and an assertion that they learnt of the suit only when their accounts were garnished, together with an account of health difficulties — as insufficient to disclose a genuine defence, and it was equally unpersuaded by their arguments that no one was prejudiced by the delay, that any prejudice could be met by costs, or that letting the judgments stand would be oppressive. Finding no basis to disturb the Sessions Court's exercise of discretion, the court dismissed the appeal and ordered the appellants to pay costs of RM8,000.00 to the respondent. The judgment illustrates that a regular judgment in default will not be set aside without a defence on the merits, and that unexplained delay weighs against a late setting-aside application.