A default judgment, if regular, requires the defendant to demonstrate a prima facie defense, which was not shown in this case.

[1] The defendant vide encl 14 seeks to set aside the judgment in default of appearance ("JID") obtained by the plaintiff dated 2 October 2020 pursuant to O 13 r 8 of the Rules of 2012 ("RC 2012"). I have dismissed the said application with costs.

[2] The plaintiff is an advocate and solicitor practicing under the name and style of Messrs Ponnusamy & Co The plaintiff filed the substantive action against the defendant for failing to pay his bill of costs dated 29 December 2019 in the sum of RM107,491.00 and Good and Services Tax in the sum RM6000.00 to the Royal Malaysian Customs Department.

[3] More than a year later on 27 October 2021 the defendant applied to set aside the JID on premised on the following grounds:

(a) the JID was obtained irregularly; and

(b) the defendant has a meritorious defence.

Submissions

[4] In arguing that the JID was obtained irregularly, learned counsel for the defendant pointed out that the writ and statement of claim was not served on the defendant personally. The defendant upon checking his mailbox found the cause papers. Learned counsel referred to O 10 r 1(1) Rules of Courts 2012 ("RC 2012"). He further argued that the defendant thereafter instructed his solicitor to file appearance on 2 October 2020 for this action as well as other suits filed by the plaintiff. The statement of defence was filed on 15 October 2020. Learned counsel submitted that the plaintiff's solicitor was aware that his firm was representing the defendant and in fact a copy of the memorandum of appearance was served on the plaintiff's solicitor on 2 October 2020. Learned counsel further stated that the certificate of non-appearance was only filed on 30 October 2020.

[5] As regards delay in filing encl 14, learned counsel submitted that the parties were negotiating a settlement and due to Covid pandemic. Learned counsel further argued plaintiff's acted with malice in filing this claim against the defendant because the defendant had paid the plaintiff in one lump sum and the fee/costs was deducted from the client's account after each matter was completed. Thus, ss 124 and 126 of the Legal Profession Act 1976 have no application and that the defendant has a meritorious defence and the Court should allow the defendant to ventilate the issues in a full trial. Learned counsel referred to the following cases in support of his submissions - OCBC Bank (M) Bhd & Anor v. Livision Sdn Bhd 7 Ors, 2001 MarsdenLR 1746 ; Asia Commercial Finance (M) Bhd v. Island Rentals Sdn Bhd & Ors; 2002 MarsdenLR 1605 ; [2002] 2 AMR 2281; Ramlan bin Kamal v. Perbadanan Nasional Bhd; [2004] 1 MLJ 425; Tan Ooi Chee & Anor v. Kanching Realty Sdn Bhd; [1989] 1 MLJ 519; Hasil Bumi Perumahan Sdn Bhd & Ors v. United Malayan Baking Corp Bhd; [1994] 1 MLJ 312; [1994] 1 CLJ 328; [1994] 1 AMR 297; Witech Sdn Bhd & Ors v. BHR Group Ltd; Muniandy a/l Thamba Kaundan & Anor v. D & C Bank Bhd & Anor; [1996] 1 MLJ 374; [1996] 2 CLJ 586; [1996] 1 AMR 908; Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd; [1996] 1 MLJ 30; [1996] 1 CLJ 241; [1996] 1 AMR 215; and Dr Andre Das v. Nasharuddin bin Aidid; [2000] 3 MLJ 524; [2000] 6 CLJ 241.

[6] Learned counsel for the plaintiff argued that the writ and statement of claim was served via AR Registered post on 17 September 2020. The defendant only entered appearance on 2 October 2020 and made no effort to apply for leave in filing his memorandum of appearance. The statement of defence was filed on 15 October 2020 which was also out of time. And it took slightly more than a year for the defendant to file this application to set the JID which was obtained on 2 October 2020. The solicitors for the plaintiff was notified of the JID on 5 October 2020. Learned counsel further pointed out that