PERINTIS AMANAH BERHAD v 1. ) CLIFTON HEATH FERNANDEZ 2. ) WONG KHEE BIN

Case Significance

Illustrates the importance of acting promptly to set aside a judgment in default: although the court retains a discretion to excuse non-compliance with the thirty-day requirement of Order 42 rule 13 of the Rules of Court 2012, a lengthy and unexplained delay will weigh heavily against the applicant.

This High Court decision at Shah Alam is an appeal from the Sessions Court concerning an application to set aside a judgment in default. The plaintiffs had commenced an action in the Sessions Court against three defendants, later withdrawing their claim against the first defendant, and judgments in default had been entered against the second and third defendants. The appellant, a trustee company sued as the second defendant, applied to set aside the default judgment entered against it; the Sessions Court dismissed that application with costs, and the present appeal followed. The default judgment against the third defendant was not in issue. The court addressed the requirements governing an application to set aside a default judgment, including Order 42 rule 13 of the Rules of Court 2012, which requires such an application to be made and served on the party who obtained the judgment within thirty days of receipt of the judgment. While the court accepted that it retained a measure of discretion to excuse non-compliance with that time limit, it regarded the appellant's conduct as a powerful factor against the exercise of that discretion: the appellant had delayed for a period of one year and two months before taking any step to set aside the judgment. Such dilatory conduct militated strongly against relief, and the court found nothing to justify overlooking so substantial a delay. Concluding that there was no merit in the appeal, the court dismissed it and ordered the appellant to pay the plaintiffs costs of RM5,000. The judgment illustrates the importance of acting promptly when seeking to set aside a judgment in default, and confirms that although the court has a discretion to excuse non-compliance with the thirty-day requirement of Order 42 rule 13, a lengthy and unexplained delay will weigh heavily against a party seeking to invoke it.