SELVAKUMARAN A/L GANASEN v 1. ) SAKTHIVEL NAGALINGAM 2. ) JOSEPH A/L SEBESTIAN 3. ) TETUAN AMRAN JOSEPH, CHAN & CO.

Case Significance

Confirms that a regular judgment in default of defence will not be set aside where the default results from an unexplained or careless failure to act — such as a clerk forgetting to file and no request for an extension of time — and that legally trained parties are held to the standards their profession implies.

This High Court decision at Klang concerns an application to set aside a judgment in default of defence, refused because of the applicants' unexplained casualness in protecting their own position. The plaintiff had obtained a judgment in default of defence against the defendants on 28 April 2024. The second and third defendants — the second an advocate and solicitor, and the third the legal firm through which he and another practised — applied to set aside that default judgment and to have their statement of defence, filed and served in August 2024, accepted by the court. Their explanation for the delay was that the relevant defendant had had to travel to Kota Kinabalu for a Court of Appeal matter, that the defence had been prepared in August 2024, and that a clerk who was instructed to file it had forgotten to do so.

The court applied the settled approach to setting aside a regular default judgment, under which the applicant must ordinarily show a defence on the merits and adequately explain the default. It was unpersuaded by the explanation offered. It observed that the failure to file a defence carried the risk of a default judgment being entered — which is exactly what occurred — and that the applicants had also failed to write to the plaintiff's solicitors or to the court to seek an extension of time. The court regarded the applicants' casual attitude (sikap sambil lewa) in defending their rights as something that could not be treated lightly, particularly as they were themselves lawyers who ought to have appreciated the consequences.

The court dismissed the second and third defendants' application to set aside the default judgment, with costs of RM3,000. The judgment illustrates that a regular default judgment will not be set aside where the applicant's default is the product of an unexplained or careless failure to act, and it holds legally trained parties to the standards their profession implies.