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2023 MarsdenLR 961
HIGH COURT MALAYA SHAH ALAM
HL CAPITAL VENTURE SDN BHD – Appellant
Versus
SKYFIELD DESIGN & BUILD SDN BHD – Respondent
[Civil Suit No BA-22NCVC-130-03-2021]
The court ruled that a defendant's deliberate absence at a trial, despite being duly informed, precludes setting aside a judgment for unliquidated damages.
Headnote:(A) Rules of Court 2012 - Order 14 and Order 35 - Summary judgment for liquidated damages entered on 1.7.2022; assessment of unliquidated damages allowed on 1.9.2022 for RM25,280,000 with interest and costs - Defendant's application to set aside judgment dismissed due to lack of justification for absence at trial and failure to provide reasons for delay in application. (Paras 1, 4, 12, 13)
(B) Legal Representation - Importance of legal representation and attendance at trial - The defendant was adequately informed of the trial dates and ramifications of non-attendance, rendering claims of injustice unfounded. (Paras 8, 10)
(C) Discretion of Court - The court has discretion to extend time for setting aside judgment but must consider factors such as justice, conduct of the defendant, and potential prejudice to the plaintiff. (Paras 12)
Facts of the case:
The defendant sought to set aside a judgment for unliquidated damages of RM25,280,000 assessed after trial, claiming it was unaware of trial dates. The court found the defendant had been duly informed and had chosen not to attend.
Findings of Court:
The court ruled the defendant's absence was deliberate, and the application to set aside the judgment lacked merit.
Issues: The main issues included whether the defendant was adequately informed of the trial and the justification for their absence.
Ratio Decidendi: The court determined that the defendant's absence at the trial was intentional and that the application to set aside the judgment was made without valid reasons, thus dismissing it.
Result: Application to set aside judgment dismissed with costs of RM4000 awarded to the plaintiff.
| Table of Content |
|---|
| 1. defendant seeks to set aside judgment. (Para 1) |
| 2. background of summary judgment and assessment. (Para 2 , 4 , 5) |
| 3. court's reasoning on trial notifications. (Para 3 , 7 , 8 , 9 , 12) |
| 4. defendant's appeal filed out of time. (Para 6 , 11) |
| 5. rules of court applicable to assessment. (Para 10) |
(Enclosure 51)
[1] An application is made by defendant in enclosure 51, to set aside the judgment obtained by plaintiff after assessment of unliquidated damages. Simultaneously, the defendant had also prayed for an order to extend time in order to file affidavits and documents to defend itself during retrial of the assessment of damages, if the judgment is set aside.
[2] As background, summary judgment was entered against the plaintiff for liquidated damages with interest and costs on 1.7.2022 vide enclosure 18. At that point of time, the defendant was represented by its solicitor Messrs. Kevin Wong and Partners. The date for assessment of damages was fixed with concurrence of solicitor for the defendant, who had discharged them self from further representing the defendant, simply because they were unable to obtain instruction from them before pursuing further in the matter.
[3] Decision made on 1.7.2022 reads as the following:
Application for Order 14 judgment in enclosure 18 allowed with costs of RM5000.
Date for assessment of damages fixed on 12.8.2022 in open court.
From the above, it is clear as crystal the summary judgment was ordered and for damages to be assessed. A provision is also made for the said assessment to be conducted in open court before me. In that respect, O37 rule 1 of the Rules of court 2012 (ROC) is inapplicable and it is unnecessary for parties to apply to the Registrar of court for directions.
[4] Chronologically:
- On 1.7.2022, this court had granted the plaintiff’s application for summary judgment, by which the claim for liquidated damages was allowed and date was fixed for the assessment of unliquidated damages.
- On 21.7.2022, solicitor for the defendant at the material time, Messrs. Kevin Wong & Partners had applied to withdraw itself from representing the defendant.
- On 27.7.2022, the summary judgment order was served on the defendant’s solicitor.
- On 10.8.2022, the court was informed, despite warnings given to the defendant, its solicitor did not receive any reply or instructions from them with regard to the trial on assessment of damages. Equally, there was also no progress on any notice of change of solicitor to be filed by any new solicitor. There has also been no indication if any of the defendant’s representative would attend for the trial to assess damages on 12.8.2022.
- Messrs. Kevin Wong and Partners had obtained an order for withdrawal as on 12.8.2022 and the said order was served on the defendant.
- Trial to assess unliquidated damages proceeded on 1.9.2022, and on the same date this court had allowed judgment for unliquidated damages as assessed. The judgment reads:
After having considered the evidence of PW1 and PW2 in respect of the claim for unliquidated damages as prayed for in paragraph 19 (f) and (g) of the SOC, which is unrebutted by the defendant, this court allows the claim of RM25,280,000 with interest from to date until date of realization. Interest for the amount of liquidated claim of RM1,600,000 is also at 5% from to date to date of realization. Costs of RM20,000 is also allowed.
- The date of trial was notified to the defendant by Messrs. Kevin Wong twice on 15.8.2022 and 18.8.2022. In fact, the earlier trial date on 12.8.2022 was also informed to the defendant by Messrs. Kevin Wong on 27.7.2022. Simultaneously, the defendant was also advised to appeal against the summary judgment order obtained, on or before 29.7.2022 and had urged them to appoint a new solicitor to take over conduct of the matter.
- Thus, it is glaring the defendant was repeatedly informed of the trial date of assessment of damages. It was not a case where the former solicitor for the def
