AUNG HLAING WIN v 1. ) XUANDE MINING SDN BHD 2. ) STEPHEN LIM SIN CHYE

ja-22ncvc-71-06-2024 High Court (Mahkamah Tinggi) 3 November 2025 • JA-22NCvC-71-06/2024 • 15 min read
8 cases cited (0 SG, 8 foreign)

Outcome

Oleh itu, setelah mempertimbangkan kesemua faktor yang relevan secara menyeluruh, Mahkamah ini berpuas hati bahawa permohonan Defendan-Defendan wajar ditolak.

Quoted verbatim from the judgment of High Court (Mahkamah Tinggi) (ja-22ncvc-71-06-2024). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

Prosiding sivil — Penghakiman Ingkar Pembelaan — Permohonan untuk mengetepikan — Aturan 19 Kaedah 9 Kaedah-Kaedah Mahkamah 2012 — Budi bicara Mahkamah — Faktor kumulatif — Alasan munasabah atas kelewatan — Kegagalan mematuhi arahan Mahkamah Penghakiman Ingkar Pembelaan — Defence on the merits — Triable issue — Penafian kosong (bare denials) — Kewajipan mengemukakan pembelaan bermerit — Universiti Sains Malaysia v Ku Zilati bt Ku Shaari & Ors [2023] 8 MLJ 270 — Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565 (FC) Prosiding Mahkamah — Kelewatan memfailkan permohonan — Keperluan bertindak dengan segera — Ketiadaan bona fide — Kelewatan hampir tiga bulan — Faktor menolak pelaksanaan budi bicara Prejudis kepada Plaintif — Penghakiman diperoleh secara teratur — Kepastian undang-undang — Ketidakadilan kepada pihak yang patuh kepada peraturan — Kos dan masa litigasi — Prinsip keadilan prosedural Keputusan — Permohonan Defendan-Defendan untuk mengetepikan Penghakiman Ingkar Pembelaan — Ditolak — Kos RM3,000.00 kepada Plaintif

Practice Areas

Civil Procedure Criminal Procedure

Judges (1)

Manira binti Mohd Nor Delivered

Counsel (2)

Chiong & Partners Firm Ain Nura Wanis Counsel Plaintiff

Parties (3)

XUANDE MINING Sdn Bhd Defendant Aung Hlaing Win Plaintiff Stephen Lim Sin Chye Defendant

Case Significance

Illustrates the cumulative test for setting aside a regularly obtained judgment in default of defence under Order 19 rule 9 of the Rules of Court 2012, the court refusing relief where the defendants showed no reasonable excuse for the delay, no meritorious defence beyond bare denials, and had not acted promptly.

This High Court decision concerns an application by the defendants to set aside a judgment in default of defence under Order 19 rule 9 of the Rules of Court 2012. At a case-management on a fixed date, the court had given clear and specific directions requiring the defendants to file their defence by a stated date; when they failed to do so, the plaintiff, though not obliged to, gave a seven-day notice as a cautious and fair step, but the defendants still did not file a defence, and the plaintiff regularly obtained judgment in default. The defendants filed their defence only about three months later and applied to set the judgment aside thereafter. The court restated the settled principles: where a default judgment has been regularly obtained, the burden lies on the defendant to show a defence on the merits that is not a mere bare denial, and the court's discretion under Order 19 rule 9, though wide, is not an automatic right for a defaulting party but is exercised on a cumulative assessment of the reasonableness of the explanation for the delay, the merits of the proposed defence, the promptness of the application, and any prejudice to the plaintiff. Examining these factors, the court found that the only explanation offered for the delay — the time taken to obtain the client's instructions — was unsupported by evidence and did not justify the failure to comply with the court's directions, that the proposed defence disclosed no triable issue and amounted to bare denials, that the application had not been made promptly, and that setting the judgment aside would prejudice a plaintiff who had acted in accordance with the rules and undermine the certainty and discipline of proceedings. The court accordingly dismissed the application with costs of RM3,000. The judgment illustrates the cumulative test for setting aside a regularly obtained default judgment.

What must a defendant show to set aside a regularly obtained default judgment?

The court held that where a default judgment is regularly obtained, the defendant bears the burden of showing a defence on the merits that is more than a bare denial, and the discretion under Order 19 rule 9 is exercised on a cumulative assessment of the reasonableness of the explanation for the delay, the merits of the defence, the promptness of the application and any prejudice to the plaintiff.

Why was the application to set aside refused?

Because the only explanation for the delay — time taken to obtain instructions — was unsupported and inadequate, the proposed defence disclosed no triable issue and was a bare denial, the application was not made promptly (the defence being filed about three months late), and setting the judgment aside would prejudice a plaintiff who had followed the rules; the application was dismissed with costs of RM3,000.

Cases Cited (8)

MY (8)
[1994] 1 CLJ 328 [1997] 2 MLJ 565 [1997] 3 CLJ 305 [2003] 3 CLJ 497 [2003] 3 MLJ 67 [2003] 6 CLJ 326 [2006] 1 MLJ 746 [2023] 8 MLJ 270

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (ja-22ncvc-71-06-2024)