MOTOR INSURERS’ BEREAU OF WEST MALAYSIA v 1. ) THINESH A/L MAILAN 2. ) DEVAKI A/P GANASON

Case Significance

A motor-accident appeal on setting aside a regular judgment in default after assessment, affirming the refusal and clarifying the regular/irregular distinction under the MIB scheme.

This High Court decision concerns an appeal against a Sessions Court order that had refused to set aside a judgment in default and a subsequent judgment after assessment of damages, in a claim arising from a road traffic accident. The claim was pursued against the Motor Insurers' Bureau of West Malaysia under the MIB scheme, the arrangement by which victims of motor accidents may recover where the responsible party is uninsured or untraced. The accident occurred on 14 January 2019, when the first plaintiff, riding a motorcycle, was involved in a collision with a motorcar driven by the first defendant.

The appeal turned on a cluster of civil-procedure principles governing default judgments. The Bureau argued that the default judgment was liable to be set aside, engaging the distinction between a regular judgment in default — one properly entered, which the court will set aside only on proof of a meritorious defence — and an irregular judgment, which may be set aside as of right. The Court also considered whether a regular default judgment could be set aside after assessment of damages had already taken place, the requirements of natural justice, whether the court was functus officio, the Bureau's position under the MIB scheme and questions of privity, and whether the delay and conduct of the applicant told against relief.

Applying these principles, the Court found no basis to disturb the Sessions Court's refusal. It affirmed the order of the Sessions Court dated 4 January 2024 and dismissed the appeal with costs of RM7,000, subject to allocatur; the consequential prayers for extension of time and a stay of execution accordingly did not arise. The judgment is a useful illustration of how the courts distinguish regular from irregular default judgments and of the limited scope to set aside a regular default judgment once damages have been assessed.