A party must provide sufficient grounds and evidence to set aside a Judgment in Default; mere absence is insufficient.

JUDGMENT

Akhtar Tahir J:

Introduction

[1] The Defendants in this case applied to set aside the Judgment in Default ("JID") obtained by the Plaintiff on 19 September 2014 on the Defendants non-appearance on the date fixed for case management.

[2] The Defendants applied to set aside the JID by virtue of O 42 r 13 and O 92 r 4 of the Rules of 2012 ("the Rules"). This provisions of the Rules provides as follows:

13. Setting aside or varying judgment and orders (O 42 r 13)

Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.

4. Inherent powers of the Court (O 92 r 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court .

The Brief Facts

[3] The Plaintiffs' claim against the Defendants in this case is premised on the Defendants being given a letter off Probate based on a Will dated 23 January 2015 which the Plaintiffs allege was superseded by a later Will dated 23 November 2018. The Plaintiffs now have filed this case to set aside the Letter of Probate granted to the Defendants on the basis that the earlier Will was invalidated by the new Will.

[4] The sequence of events leading to the Judgment against the Defendants showed that the Defendants had not appeared in Court on the dates the case was fixed for case management.

[5] The Defendants had failed to appear 3 times for the case management fixed by Court although the dates were informed to the Defendants beforehand. The dates the Defendants failed to appear were 13 August 2024, 9 September 2024 and finally on the 19 September 2024.

[6] The Court then used its powers under O 34 of the Rules to allow the Plaintiffs' claim as claimed in para 22 (a-g) of the Statement of Claim and awarded a cost of RM10,000.00.

[7] Order 34 of the Rules empowers the Court as follows:

1. Orders and directions for just, expeditious and economical disposal of proceedings (O 34 r 1)

(1) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court , in order that the Court may make such order or give such direction as it thinks fit so that-

(a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

(b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

(2) Where the Court makes orders or gives directions under paragraph (1), the Court may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued.

(3) Where any party fails to comply with any order made or direction given by the Court under paragraph (1), the Court may dismiss the action, strike out the defence or counterclaim or make such other order as it thinks fit.

(4) The Court may, in exercising its powers under paragraph (1), make such order as to costs as it thinks fit.

(5) Any judgment, order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just.

The grounds relied by the Defendants to set aside the JID

[8] The grounds to set aside the JID was stated in affidavit affirmed by a practicing counsel Chong Pei Yen who purportedly represented the Defendants in this case