A judgment in default can only be set aside if irregularly obtained; otherwise, the defendant must demonstrate a triable defence on merits.

JUDGMENT

(Enclosure 16: Setting Aside JID)

Hayatul Akmal Abdul Aziz J:

Introduction

[1] The defendant:

[1.1] Filed encl 16 under O 3 r 5(1)(2) and O 13 Rules of 2012 (RC 2012), seeking leave to file the present application out of time and to set aside the judgment-in-default (JID) dated 22 January 2022 against her:

(1) On 23 April 2024, after considering the pleadings and respective arguments of parties, I find there is no merits in encl 16 and dismissed it accordingly.

(2) The plaintiff was awarded costs of RM3,000.00 payable by the defendant within thirty (30) days from the date of the order.

[1.2] Aggrieved, the defendant appealed, and my reasons are as follows:

Brief Facts

Familial Dispute Over Asset

[2] The plaintiff filed this Writ and Statement of Claim (SoC) on 3 September 2019 concerning claims and disputes about a Deed of Assignment (23 September 2008) over a piece of property in the estate of Hassan Bin Ahmad (the deceased) known as Lot G1, Pertama Kompleks, Jalan Tuanku Abdul Rahman, 50100, Kuala Lumpur:

Service And JID

[2.1] On 28 September 2019:

(1) The plaintiff's solicitors then (through a freelance dispatch) personally served the Writ and the SoC at the defendant's address at No 47, Jalan Wangsa 9, Taman Wangsa Ukay, Bukit Antarabangsa, 68000 Ampang, Selangor Darul Ehsan.

(2) On 28 September 2019:

(a) An affidavit of service was filed, showing that the Writ and the SoC were served by hand to the defendant herself.

(b) She admitted that she was the defendant and had signed the acknowledgement receipt by Selina Chong on 28 September 2019 at 4.28 pm (enclosure 4: exhibit AA-1).

(3) On 26 November 2019:

(a) After a lapse of fourteen days (more in this case) as legally required from the service of the Writ and the SoC, the defendant failed to enter an appearance:

(b) An application to enter JID (encl 5) against the defendant was filed and supported by an affidavit affirmed by the plaintiff on 25 November 2019 (enclosure 6).

(c) On 30 December 2019, an affidavit of service was filed (enclosure 7), enclosed the plaintiff's solicitor's letter notifying the defendant of an application to enter JID (encl 5) against the defendant was filed.

(4) On 21 January 2020:

(a) An affidavit of service was filed (encl 8) that showed the application to enter JID was served on the defendant via registered post to her known address at No 47, Jalan Wangsa 9, Taman Wangsa Ukay, Bukit Antarabangsa, 68000 Ampang, Selangor Darul Ehsan on 31 December 2019.

(b) It was sewed registered post and "AR akuan terima" by Dyg Siti Mulya Erna with IC No 831230-13-5080 (enclosure 8: exhibit KK-1).

(5) On 22 January 2020, a Judgment in Default (JID) was entered against the defendant (enclosure 15).

Application To Set Aside JID (Enclosure 16)

[2.2] On 3 November 2023:

(1) Almost four (4) years after JID was entered, the defendant filed the present application for abridgement of time and to set aside the JID entered against her.

(2) Her affidavit in encl 17 supports the application, premised on the alleged foundation that she did not receive the said Writ and the SoC.

(3) The defendant claimed that it was not adequately served, denied ever signing the acknowledgement receipt, and claimed that her signature was different and, therefore, the service was defective.

The Parties Arguments

[3] I have duly observed and considered the parties' respective submissions. In a nutshell:

The Defendant

[4] The defendant argued to have never received any cause paper and or document in these proceedings to enable the plaintiff to record the JID. Further, she claimed that she or her solicitor knew nothing about the cause papers and or the plaintiff's documents. I believe this bare assertion to be wholly convenient, untenable and unconvincing.

[4.1] She went on to claim that the said JID came to her knowledge after it was served by the present solicitor for the plaintiff, Messrs Johanna Solomon & Associates, on her solicitor Messrs Siddiq Azani & Co on 4 October 23 (enclosure 17: exhibit SCA-2). Only after