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2021 MarsdenLR 3986
HIGH COURT MALAYA KUALA LUMPUR
KENWINGSTON SDN BHD – Appellant
Versus
LEONG KEN SENG – Respondent
[Civil Appeal No: WA-12AC-16-03/2021]
Default judgments are set aside if the delay in compliance is not intentional, provided there are arguable defenses shown in the application.
Headnote:(A) Rules of Court 2012 – Orders 1A, 2, 24 – Setting aside default judgment – Appeal against decision to strike out Defence and Counterclaim – Appellant contended default judgment is not on merits – The court grants the appeal, reinstating the Defence and Counterclaim, citing sufficient reason for setting aside; Appellant's neglect deemed carelessness not contumelious. (Paras 20, 22, 36, 39)
Facts of the case: This appeal concerns the Appellant's neglect in complying with a Discovery Order, resulting in a default judgment against it for not producing documents.
Findings of Court: The court finds arguable merit in the Appellant's Defence and Counterclaim, warranting the setting aside of the default judgment.
Issues: The primary issue concerns whether the default judgment should be set aside and if the Appellant's delay constitutes excusable neglect.
Ratio Decidendi: The court reaffirms that non-compliance with a discovery order should not lead to default judgment if the delay is not intentional and the defense presents an arguable issue.
Result: Appeal allowed.
JUDGMENT
Introduction
[1] This is an appeal against the sessions court decision in dismissing an application to set aside a default judgment and reinstate the defence and counterclaim.
[2] The Appellant/Defendant is a private limited company involved in the construction business.
[3] The Respondent/Plaintiff is also a private limited company involved in the construction contracting business.
Background And Preliminary
[4] The Appellant is the main contractor to construct and complete a project described as "Cadangan Pembangunan 4 Blok Pangsapuri Servis (1502) Unit Yang Mengandungi:
(i) Blok A: 328 Unit Pangsapuri Servis 33 Tingkat;
(ii) Blok B: 338 Unit Pangsapuri Servis 34 Tingkat;
(iii) Blok C: 418 Unit Pangsapuri Servis 35 Tingkat;
(iv) Blok D: 418 Unit Pangsapuri Servis 35 Tingkat;
Di atas 1 Tingkat Ruang Perniagaan (40 Unit), Kemudahan Penduduk dan 4 Tingkat Tempat Letak Kereta Bawah Tanah (Lower Ground) Dengan Pejabat Pengurusan Di Tingkat "Lower Ground 1" Di Atas Lot 26992, Jalan 33/26, Seksyen 10 Wangsa Maju, Mukim Setapak Dalam Bandaraya Kuala Lumpur for M/S Champion Priority Sdn Bhd" ("Project").
[5] Consequently, the Respondent was appointed by the Appellant as its sub-contractor to carry out and complete the skim coat, brick plastering and door frame construction works for Blocks A and B of the Project ("Works").
[6] There were disputes and differences that arose between the parties for non payment of the Works carried out and the Respondent therefore on 12 March 2020 instituted KLHC Sessions court Suit No WA-B52C-8-03/2020 ("Suit") to claim against the Appellant. In consequence, the Appellant defended and counterclaimed against the Respondent.
[7] On 5 May 2020, the Respondent's solicitors wrote to the Appellant's solicitors to request for the discovery of the following documents for purposes of the Suit:
(i) all Payment Certificates for Sub-Contractors issued by the Appellant to the Respondent, and all supporting documents thereof. These documents were pleaded in para 5(d) of the Appellant's Defence and Counterclaim;
(ii) the floor plans for each floor of Blocks A and B of the Project; and
(iii) the main contract between the Appellant and the developer of the Project as pleaded in para 5(c) of the Defence and Counterclaim.
[8] The Respondent's solicitor's request was denied by the Appellant's solicitors.
[9] As the result, the Respondent's solicitors on 18 May 2020 issued a notice to produce the aforementioned documents but was again rejected by the Appellant's solicitors.
[10] By reason of the Appellant's refusal to provide the documents as sought, the Respondent on 27 May 2020 made an application ("Discovery Application") to the sessions court judge praying for the following:
(1) that the Defendant gives discovery by making or serving on the Plaintiff or his solicitors a list of:
(a) the documents on which the Defendant relies or will rely;
(b) the documents which could:
(i) adversely affect its cause;
(ii) adversely affect the Plaintiff's case; or
(iii) support the Plaintiff's case,
which are or have been in its possession, custody or power ("List of Documents"), and make and file an affidavit verifying such List of Documents and to serve a copy thereon on the Plaintiff and its solicitors, within 7 days of this Order;
(2) that the Defendant shall state in the affidavit referred to in (1) above whether the documents specified in Appendix A hereto is, or has at any time been, in its possession, custody or power, and if not then in its possession, custody or power when it parted with it and what has become of it;
(3) that the Defendant shall cause to be bound and paginated all documents disclosed in Schedule 1 Part 1 in the List of Documents and the documents specified in Appendix A hereto, and shall file and serve the same on the Plaintiff's solicitors within 7 days of this order;
(4) that the Defendant do, on reasonable notice, produce at Messrs Wendy and Partners, situate at A-09-01, Block A, Tropicana Avenue, Persiaran Tr
