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2020 MarsdenLR 3224
HIGH COURT MALAYA MUAR
SYARIKAT MUAR QUARRY SDN BHD – Appellant
Versus
TENAGA NASIONAL BERHAD – Respondent
[Civil Suit No: JB-11ANCVC-1-02/2020]
Timely application to set aside a judgment in default is crucial; failure to adhere to filing deadlines prevents relief even when service issues are present.
Headnote:(A) Companies Act 1965 – Provisions on service of process and default judgments outlined in Rules of 2012 – The Magistrate dismissed an application to set aside a judgment in default due to improper filing and service issues – Husbanding principles of timely filing and correct service on a body corporate emphasized. (Paras 17-60)
Facts of the case:
The appeal concerns the dismissal of the Defendant's application to set aside a Judgment-in-Default relating to an unpaid electricity bill allegedly due to tampering of the meter. The Defendant received the Writ of Summons on 15 July 2019, but failed to enter an appearance before the judgment was entered on 26 July 2019. (Paras 1-16)
Findings of Court:
The service of documents by registered post was deemed good service, thus the Judgment-in-Default was valid as it was entered within permissible time limits. (Paras 31-40)
Issues
: The main questions were whether the service was proper, whether the Judgment-in-Default was made in accordance with rules, and if the application to set aside was within the time limit. (Paras 28-29)
Ratio Decidendi:
The court affirmed that failure to file within the required time following service of documents could not be excused, and that the Defendant's failure in proving timely application disallowed setting aside the Judgment-in-Default. (Paras 59-60)
Result:
Appeal dismissed.
(Enclosure 64)
Introduction
[1] This is an appeal against the decision of the Learned Magistrate given on 28 January 2020, whereby the Learned Magistrate dismissed the application of the Appellant / Defendant to set aside a judgment in default entered by the Magistrates Court upon the application by the Respondent / Plaintiff.
[2] The Appellant / Defendant filed a Notice of Application vide encl 8 seeking for the following orders:
i. The Extension of Time for the filing of Appearance for the Defendant is granted.
ii. All execution proceedings based on and / or as a consequence of the Judgment-in-Default dated 26 July 2019 be stayed until the application to set aside the Judgment-in-Default is determined.
iii. the Judgment-in-Default dated 26 July 2019 be set aside.
iv. the Defendant be granted 14 days, from the date of the Order to set aside the Judgment-in-Default.
v. cost in the cause.
vi. other orders that the Court thinks fit and just.
[3] The Learned Magistrate dismissed the application on 28 January 2020. Hence this appeal.
[4] The cause papers are as follows:
a. Appeal Record (Enclosure 3)
b. Supplementary Appeal Record (Enclosure 4)
c. Supplementary Appeal Record 2 (Enclosure 5)
Background Facts.
[5] The Respondent / Plaintiff is a company incorporated pursuant to the Companies Act 1965 and has the registered address at Company Secretary's Office, 2nd Floor, Tenaga Nasional Berhad Headquarters, No 129 Jalan Bangsar, 50732 Kuala Lumpur.
[6] The Appellant / Defendant is a company incorporated pursuant to the Companies Act 1965 and whose registered address is No 46 (1st Floor) Jalan Arab, 84000 Muar and / or who business address is Suite No 25, 12-Ath Floor, Wisma Zelan, Jalan Permaisuri 2, Bandar Tun Razak, Cheras, 56000 Kuala Lumpur and / or Batu 2 ½ Jalan Air Manis, Bkt Mor, Parit Jawa, 84150 Muar, all these being the last known addresses.
[7] The Appellant / Defendant is a registered user and receives electricity supply from the Respondent through the account 0353 00618423 06 / 220802830110 for the premise at the address Batu 2 ½ Jalan Air Manis, Bkt Mor, Parit Jawa, 84150 Muar, ("the Premise"). Throughout the period, the Appellant paid the bills for the electricity supplied. On 24 November 2014, the Respondent through its agents / servants made a spot check at the Premise and found there were tampering on the electricity supply meter as follows:
i. The seal on the Test Terminal Block and the seal on the Panel Meter were tampered.
ii. Found that there is a green insulated wire used as a bypass at S1 and S2 for the Red Phase at the Test Terminal Block inside the Panel Meter.
[8] The Respondent then recorded at irregularities at the meter setup which was found during the spot check and made corrections at the Meter Examination Panel. The Respondent also made the necessary repairs on the apparatus of the meter at the Premise.
[9] Following the discovery of tampering of the electricity supply meter, the Respondent's staff lodged a police report PARIT JAWA report 3969/14 at the Sungai Mati, Ledang, Johor.
[10] As a result of the tampering of the electricity supply meter, the Appellant's meter was malfunctioning and failed to record the actual amount of electricity supplied at the material period.
[11] Hence there was a difference between the actual amount of electricity supplied by the Respondent and the amount paid by the Appellant.
[12] The Respondent then made calculations on the amount of electricity supplied based on the average of the usage of electricity for the period from 1 December 2014 and 1 April 2015 and found the total losses suffered by the Respondent for the period starting from 1 January 2013 until 25 November 2014 was RM64,812-40.
[13] The Respondent then issued a Letter of Demand for the Loss of Revenue dated 17 August 2015 to the Appellant and the Appellant failed / neglected to pay the said amount. The Respondent through its solicitors Messrs Shahrizat, Rashid & Lee issued a Letter of De
