BINASAT SDN BHD v TM TECHNOLOGY SERVICES SDN BHD (Yang telah mengambil alih hak-hak, aset-aset dan liabiliti-liabiliti Telekom Malaysia Berhad melalui Perintah Mahkamah bertarikh 21 Februari 2023)

Case Significance

Illustrates the discretionary refusal to set aside a regularly entered default judgment: an applicant who files out of time without explanation, has not entered an appearance, and shows no meritorious defence will be refused relief, the court applying the principle that even a right exercisable ex debito justitiae may be withheld from an indolent litigant.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Hazizah Kassim, is an interlocutory appeal concerning an application to set aside a default judgment entered in the Sessions Court. The respondent, TM Technology Services Sdn Bhd — which had taken over the rights, assets and liabilities of Telekom Malaysia Berhad by a court order dated 21 February 2023 — had sued the appellant, Binasat Sdn Bhd, for damages arising from damage to fibre-optic cables caused by the appellant's earthworks, and had obtained a default judgment. The appellant applied to set that judgment aside, but its application was filed out of time and it offered no explanation for the delay. Although the appellant admitted having received the writ, it had not filed a memorandum of appearance, and it had requested particulars of the claim but taken no further step after the plaintiff provided them.

The court dismissed the appeal. It held that the default judgment had been regularly entered, the appellant having been served and having failed to enter an appearance, so that the setting-aside application fell to be assessed on ordinary principles, including whether the appellant had shown a defence on the merits and had acted with reasonable promptness. Finding that the appellant had neither explained the delay nor demonstrated a meritorious defence, and had conducted itself as an indolent litigant, the court invoked the principle — of general application — that even where a right is exercisable ex debito justitiae, a court may refuse relief to a litigant who has slept on its rights. It accordingly dismissed the second defendant's notice of appeal with costs of RM3,000, subject to allocatur. The judgment illustrates the discretionary refusal of relief to set aside a regular default judgment where the applicant is dilatory and cannot show a defence on the merits.