Back
2021 MarsdenLR 1215
HIGH COURT MALAYA SHAH ALAM
CHIA WAI CHEONG – Appellant
Versus
KOH MING KWANG (ENCL 1) – Respondent
[Civil Appeal No: BA-11A-6-02/2020]
A default judgment can be set aside if obtained irregularly, with required proof of service lacking, reinforcing the necessity of procedural correctness in tort claims.
Headnote:(A) Rules of Court 2012 – Order 55 rules 2 and 4(1) – Appeal against judgment in default of appearance – The Default Judgment was set aside due to irregular service of the writ. Service by registered post without proof of receipt is deemed insufficient. Courts uphold established principles on setting aside judgments obtained irregularly as seen in Goh Teng Whoo & Anor v. Ample Objectives Sdn Bhd. (Paras 26, 32, 34)
(B) Irregular judgment in tort – A default judgment for specified damages in tort must be assessed for the quantum – Default judgment on liability is appropriate, with damages assessed separately. Courts support individual assessment for tort claims as per established authorities including Mahindar Singh v. Amanah Saham Pahang Berhad. (Paras 34-37)
Facts of the case: Dispute between neighbours over a boundary wall resulted in multiple legal actions; Plaintiff claimed damages based on steel protrusion from the Defendant’s wall. The Defendant counterclaimed for trespass and nuisance. Both parties filed defenses concerning the irregularities in service and procedural concerns.
Findings of Court: The judgment in default was dismissed after establishing lack of proper service by the Plaintiff and the necessity for trial to examine defenses raised by the Defendant concerning the nature of claims and counterclaims.
Issues: Determining proper service of the writ, the irregularity of the default judgment issued, and if the Defendant possessed a bona fide defense.
Ratio Decidendi: A default judgment cannot be upheld due to improper service as per Federal Court rulings; procedural integrity in tort claims demands assessment rather than fixed judgments on damages.
Result: The appeal is allowed, judgment vacated, case remitted for trial.
JUDGMENT
(Enclosure 1)
Introduction
[1] It is rather rare for next-door neighbours to embark on multiple litigation proceedings over the fencing wall along the common boundary of their adjoining lands.
[2] The Respondent/Plaintiff and the Appellant/Defendant have been and still are, next-door neighbours at all material times.
[3] The Defendant constructed a wall along the boundary between the Defendant's house and the Plaintiff's house.
[4] The Plaintiff has complained that the wall was higher than 5 feet permitted by the local authority and was not built with holes: para 2 of Plaintiff's Statement of Claim.
[5] The Plaintiff alleged that when the Defendant was constructing the renovation works including the boundary wall, the workers trespassed into the Plaintiff's land and some concrete was left on the floor within the Plaintiff's land area: paras 5, 6, 8 of Plaintiff's Statement of Claim.
[6] The Plaintiff alleged that the Defendant left the wall in "very dangerous condition ie with steel bars protruding like nails which injured the Plaintiff': para 3 of Plaintiff's Statement of Claim.
[7] According to the Plaintiff, the pillars at the rear of wall and protruding steel bars of the wall encroach onto the Plaintiff's land area: paras 7 and 9 Statement of Claim.
[8] On or about 26 January 2018 the Plaintiff filed Magistrate Court Suit No BA- A77-26-01/2018 ("Previous Suit No 26") in the small claims Court against the Defendant, claiming for alleged damages in connection with the fencing wall: para 1 of the Defendant's Defence and Counterclaim.
[9] The Defendant filed his Defence and Counterclaim in the Previous Suit No 26.
[10] The Plaintiff's Previous Suit No 26 was struck out by the Court: para 1 of the Defendant's Defence and Counterclaim.
[11] Subsequently, the Plaintiff on or about 19 July 2019 filed the second suit via Magistrate Court Suit No BA-A72-103-07/2018 ("the 2nd Suit No 103") against the Defendant.
[12] In the Statement of Claim in the 2nd Suit No 103, the Plaintiff claims for (a) Damages of RM100,000.00 (or such amount as the Court may award), costs, general and special damages, exemplary damages, and other ancillary reliefs.
[13] The Plaintiff asserted that the Writ and Statement of Claim were served on the Defendant by registered post and on 23 August 2019 the Plaintiff obtained judgment in default of appearance against the Defendant.
[14] On 24 September 2019 the Defendant filed his application to set aside the default judgment, contending that the Writ was not received by the Defendant and alternatively that the Defendant has bona fide defence and counterclaim on merits.
[15] In the 2nd Suit No 103 the Defendant also filed his Defence and Counterclaim dated 6 September 2019: pages 18 - 19 of Appeal Records.
[16] In the Defence and Counterclaim in the 2nd Suit No 103, the Defendant pleaded inter alia that:
(1) The Plaintiff's Suit No 26 was struck out by the Court: para 1;
(2) In early 2017, there was a chain-link-fencing erected by the Plaintiff which encroached into the Defendant's land but the Plaintiff refused to shift it despite having been notified by the Defendant: para 2;
(3) On 21 March 2017 the Defendant lodged a police report to avoid quarrel when the Defendant's contractor had to carry out the works: para 3;
(4) Being unhappy with it, the Plaintiff filed a small claims action in the Previous Suit No 26 against the Plaintiff and the Previous Suit No 26 against the Plaintiff and the Previous Suit No 26 was struck out by the Court: para 4;
(5) The boundary fencing wall was constructed by the Defendant according to approved plan attached as "C" to the Defence & Counterclaim;
(6) The Defendant denies encroachment or protrusion of steel bars, and avers that the concrete fencing wall was painted properly but the Plaintiff's vacant land area was not properly maintained, with broken vases and broken pipes [photographs attached as "D"]: para 6;
(7) The Defendant alleges that the Plaintiff likes to hang around the
