DONG MOON SOO v 1. ) SNC PROCESS SERVICES SDN BHD 2. ) CHO SEUNG JIN

Case Significance

Confirms that a regular judgment will not be set aside ex debito justitiae where substituted service was properly ordered on reasonable diligence and the defence is unsubstantiated, and that a two-year delay far beyond Order 42 rule 13 defeats a setting-aside application.

This High Court decision from the Commercial Division in Kuala Lumpur concerns an application by the second defendant to set aside three earlier orders made in an oppression action brought under section 346 of the Companies Act 2016 — an order for substituted service of the originating summons, the judgment subsequently obtained, and the order for substituted service of that judgment — together with consequential relief permitting the second defendant to oppose and defend the claim. The plaintiff and the second defendant were both Korean citizens, and communications between their respective solicitors had broken down before the proceedings were commenced. Attempts at personal service having been made, the plaintiff had obtained an order permitting substituted service. The Court dismissed the setting-aside application. It held, first, that the order for substituted service of the originating summons had been properly granted, noting that the courts adopt a pragmatic approach to the applicable practice note, which is not law but an administrative direction that need only be substantially complied with, and that the plaintiff had exercised all reasonable diligence. Second, it held that the judgment obtained was regular and should not be set aside ex debito justitiae, and that the purported defence amounted to no more than bare allegations unsupported by evidence. Third, and decisively, it found that the judgment had been deemed served on 26 April 2022 following substituted service, whereas the setting-aside application was not filed until 14 May 2024 — an inordinate delay of some two years, well outside the 30-day period contemplated by Order 42 rule 13 of the Rules of Court 2012, and unexplained by any satisfactory reason. Characterising the second defendant as an indolent litigant, the Court dismissed the application with costs. The judgment is a useful illustration of the standards for substituted service and the consequences of delay in seeking to set aside a regular judgment.