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2025 MarsdenLR 74
HIGH COURT MALAYA KUALA LUMPUR
AMBANK (M) BERHAD – Appellant
Versus
WRP ASIA PACIFIC SDN BHD & ORS – Respondent
[Civil Suit No: WA-22NCC-219-04/2024]
A defendant seeking to set aside a judgment in default must apply within 30 days and provide a satisfactory explanation for any delay; failure to do so results in automatic dismissal.
Headnote:(A) Rules of Court 2012 - Order 42 Rule 13 - Application to set aside Judgment in Default - Defendant failed to file application within 30 days as required, resulting in dismissal of application - Requirement for explanation of delay mandatory; failure to provide led to dismissal (Paras 4-6).
(B) Burden of proof - Defendant must show credible defence to set aside Judgment in Default - Failure to file draft defence signifies lack of real defence (Paras 21-22).
(C) Liability of surety - A surety is liable for debts unless successfully challenged; internal management disputes do not affect this liability (Paras 27-30).
Facts of the case:
The 3rd Defendant missed the stipulated 30-day period to set aside an Amended Judgment in Default, served in June and December 2024, claiming management instability due to Receivers and Managers.
Findings of Court:
The original and amended Judgments were validly entered and served; application to set aside was dismissed with costs due to failure to comply with procedural rules.
Issues: The main issues included whether the 3rd Defendant acted within the required timeframe to set aside Judgment in Default and whether it demonstrated a viable defence.
Ratio Decidendi: The court affirmed the principle that non-compliance with the mandatory 30-day application period without justifiable grounds leads to dismissal, and the defendant's failure to establish a credible defence negated the grounds for setting aside the judgment.
Result: Application dismissed; costs awarded to the Plaintiff.
| Table of Content |
|---|
| 1. application for judgment in default (Para 1 , 2 , 8) |
| 2. mandatory time frame for setting aside judgment (Para 4 , 5 , 6 , 10) |
| 3. defendant must show a valid defense (Para 19 , 20 , 22 , 23) |
| 4. assessment of defense merits (Para 25 , 26 , 29) |
| 5. internal disputes do not affect third parties (Para 30) |
(Enclosure 69)
A. Introduction
[1] The 3rd Defendant, WRSP, seeks to set aside the Amended Judgment in Default entered against it on 28 October 2024. There was an earlier Judgment in Default entered against the 3rd Defendant on 17-5- 2024. But as seen in the court docket this Judgment in Default was amended by the Plaintiff. Both Judgment in Default were served on the 3rd Defendant on 7 June 2024 and 9 December 2024 respectively.
[2] The 3rd Defendant does not deny that the said Judgment in Default was regularly entered. This was admitted by Counsel for the Defendant during the hearing of this application. The 3rd Defendant's Counsel accepts that the pleadings were served on his client and that his client should have entered its appearance within the stipulated time. Therefore, the 3rd Defendant has no complaints as to the regularity of the said Judgment in Default entered against the said Defendant
[3] This court after considering the facts and issues raised by the litigants, find that this is not suitable case for the Judgment in Default of appearance to be set aside.
B. Reasoning Of This court
(i) Delay In The Application - Not Within 30 Days And No Abridgment Of Time
[4] It is trite law that if a Defendant seeks to set aside a regularly entered Judgment in Default, it must file such an application within the stipulated time frame provided under O 42 r 13 of the Rules of court 2012. The application must be brought within 30 days and if it does not do so, it must first obtain leave to abridge time and explain why the said application was not made within the said 30 days from service of the said Judgment in Default.
[5] This time frame is mandatory, and any delay must be accompanied with an application to abridge time and with a reasonable explanation for the said delay.
[6] I refer to the decision of the court of Appeal in Ng Han Seng & OR's v. Scotch Leasing Sdn Bhd ; ; where Nik Hashim JCA explained that this is mandatory and failure to take such steps may be fatal to an application to set aside the judgment in default:
"From the record, the JID was not irregular in any way. However, the appellants' applications did not comply with O 42 r 13 of the Rules of the High court 1980 which requires that a party intending to set aside a judgment must make his application to the court and serve it on the party who has obtained the judgment within 30 days after the receipt of the judgment by him. In the present case, the 1st and 3rd appellants were two months outside the time allowed whereas the 2nd appellant was seven months. Further, there was no explanation whatsoever from the appellants for their delay in approaching the court and that they had not prayed for extension of time to make their applications. In these circumstances, there was clearly no need for the merits of the appellants' applications to be considered and in fact they should be dismissed in limine. (see Koperasi Belia Nasional Bhd v. Storage Enterprise (Port Kelang) Sdn Bhd ; ; [1998] 3 CLJ 335; [1998] 3 AMR 2465; Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 2 MLRA 91; [1996] 1 MLJ 223; [1997] 1 CLJ 396; [1996] 1 AMR 846; Abdul Latif Mohamed Ibrahim v. International Factors Leasing Pte Ltd [2001] 1 MLRA 60; [2001] 2 MLJ 369; [2001] 2 CLJ 140; [2001] 1 AMR 1341)."
[7] This was also explained by Mohd Nazlan J in Juliafitriani Baharuddin & Anor v. Rosdoni Rashid ; [2021] 12 MLJ 259 where he held:
"[20] Although not submitted by parties, I should also state that case law authorities have held that where there is delay on the part of a defendant, to act with reasonable promptitude to apply to set aside a default jud
