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2024 MarsdenLR 667
HIGH COURT MALAYA KUALA LUMPUR
ASMAHAIDA ASHAARI – Appellant
Versus
MALAYSIA BUILDING SOCIETY BERHAD – Respondent
[Civil Appeal No: WA-12AM-9-12/2022]
A Judgment in Default of Appearance is valid if proper service is established, and failure to provide evidence of a meritorious defence results in dismissal of the appeal.
Headnote:(A) Bankruptcy Act – Section 2 – Judgment in Default of Appearance – The Appellant defaulted on loan payments leading to a Judgment in Default of Appearance (JID) entered against her. The Appellant's application to set aside the JID was dismissed due to inordinate delay in filing and failure to prove service irregularities. (Paras 1, 10, 12, 24)
(B) Service of Process – The Appellant contended that she was not served with the Writ and Statement of Claim, but the court found that service was valid as per the Facility Agreement. (Paras 13, 15)
(C) Meritorious Defence – The Appellant failed to provide evidence of a meritorious defence against the Respondent's claims, leading to the conclusion that the appeal lacked merit. (Paras 18, 25)
Facts of the case: The Appellant took a personal loan and defaulted on payments, leading to a JID. She claimed she was unaware of the JID until a bankruptcy notice was issued. (Paras 2, 4)
Findings of Court: The court found the JID was regularly obtained and the Appellant's claims of irregular service were unsubstantiated. (Paras 24, 26)
Issues: The main issues were the validity of service of the Writ and SOC and whether the Appellant had a meritorious defence. (Paras 12, 18)
Ratio Decidendi: The court ruled that the Appellant's failure to notify of address changes and lack of evidence for her claims rendered her appeal unmeritorious. (Paras 15, 25)
Result: Appeal dismissed with costs.
JUDGMENT
Introduction
[1] Judgment in default of appearance ("JID") was entered against the Appellant on 22 May 2017 before the learned Sessions Court Judge ("HMS"). The Defendant filed an application to set aside the JID on 11 September 2022, some 5 years later. This application was dismissed by the learned HMS. The Appellant now appeals against that decision. I dismissed that appeal on the grounds as stated below.
Grounds Of This Appeal
[2] The Appellant took a personal loan of RM140,000.00 from the Respondent on 24 October 2013. The Appellant defaulted his monthly November 2016, January 2017, March 2017 and April 2017 instalments. Following that, the Respondent filed an action against the Appellant on 26 April 2017. According to the Respondent, the Writ and Statement of Claim (SOC) were served on the Appellant vide registered post, a delivery mode pursuant to cl 14 of the facility agreement dated 24 October 2013. Due to the Respondent's failure to enter her appearance within the timeline, the Respondent obtained JID of appearance on 22 May 2017.
[3] Subsequent to the JID, the Respondent proceeded with a bankruptcy notice ("BN") against the Appellant.
[4] The Appellant pleaded in her affidavit that she was terminated from her post as an Assistant Manager at Sun Life Insurance when her employer found out about the BN filed against her. This took place in April 2018. When the Appellant did her CTOS search, only then she came to know that the BN was filed against her by the Respondent due to her non-payment of her loan. Upon some verification conducted by the Appellant with the Respondent, the Respondent's representatives admitted certain mistakes in the record of payments that led to five of her payments not being recorded.
[5] Following discussions between the Appellant and the Respondent, and as the Creditor's Petition had not yet been filed, the BN was withdrawn by the Respondent on 8 May 2018 and the solicitor's fees charged against the Appellant had been returned to the Appellant.
[6] The Appellant contended that despite the Appellant having raised to the Respondent on the need for the Respondent to update the Appellant's payment record, the Respondent continued to fail to do so. That coupled with the Appellant continue to feel unrecovered after being discharged as an employee of Sun Life due to the Respondent's BN, the Appellant filed a suit against the Respondent at the Sessions Court in January 2022. However, the Appellant's writ was struck out by the Sessions Court on 30 August 2022 in view of the existing proceeding here.
Finding
Failure To Explain Delay In Filing The Setting Aside Application
[7] Bankruptcy is a form of execution against an individual who owes a financial obligation to a successful party that has obtained an order or judgment. It is trite law that the BN issued can only be applied by the Respondent after an order is in effect. That order in question here is the JID.
[8] The Appellant argued that she was not served with the Writ and the SOC, and that when the JID was entered on 22 May 2017, the Appellant does not know about it. Thus, she argued that the JID was entered irregularly. The Appellant alleged that she only knew about the BN when she was discharged form her post when her employee Sun Life Insurance discovered there was an impending BN against her.
[9] Supposed this Court accepts the Appellant's contention that she only came to know about the JID dated 22 May 2017 when she knew about the BN in April 2018. Meaning, by the time she was aware of the existence of the BN in April 2018 she must have been fully aware that the BN was consequent to the JID. The question that the Appellant needed to explain was why did she only filed to set aside the JID at the Court below in December 2022 - some 4 years 10 months after she was aware of the JID?
[10] The Appellant failed to explain this inordinate delay. There was no such explanation offered by the Appellant at the Court below or before me at thi
