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2022 MarsdenLR 1774
HIGH COURT MALAYA SHAH ALAM
WA SKILLS TRAINING MALAYSIA SDN BHD – Appellant
Versus
NURAIN MOHD SAKIRIN & ANOR – Respondent
[Civil Suit No: BA-22NCVC-432-10/2020]
The court confirmed the regularity of judgments in default where proper service procedures are adhered to, and emphasized the necessity of timely applications to set aside such judgments.
Headnote:(A) Rules of Court 2012 – Order 19 r 9 – Application to set aside judgment in default – Regularity of judgment determined by proper service of writ and statement of claim – Defendants' application dismissed for inordinate delay in filing; no defense on merits substantiated – Principles of res judicata not applicable as previous actions were withdrawn before adjudication – Costs awarded to the plaintiff. (Paras 16, 18, 36, 53)
(B) Service of Process – Requirements for personal service were met; electronic service was invalid for documents requiring personal delivery. (Paras 30, 34)
(C) Delay in Application – Defendants failed to provide satisfactory explanation for the delay in filing the application to set aside the judgment. (Paras 37, 40, 41)
Facts of the case: The plaintiff, a private limited company, initiated proceedings against the 1st and 2nd defendants, who were former directors and employees, concerning prior misconduct and misappropriation. Application to set aside the entered JID of Defense was submitted nearly a year post-judgment. (Paras 8, 15, 29)
Findings of Court: The judgment in default of defense was deemed regular due to valid service, and the court found no reasonable excuse for the defendants' significant delay in filing their application. (Paras 36, 53)
Issues: Main issues included the regularity of the judgment in default, appropriateness of service method, and whether the defendants had a viable defense. (Paras 18, 34, 43)
Ratio Decidendi: The court held that the judgment was regularly obtained as service adhered to set procedural orders, and established that a lack of timely action by the defendants indicated indolence. (Paras 41, 53)
Result: Application by the defendants dismissed with costs.
JUDGMENT
Introduction
[1] Enclosure 36 is the Defendants' Notice of Application dated 9 March 2022 to set aside the Judgments in Default of Defence dated 1 April 2021 and 30 April 2021 entered against the 1st Defendant and the 2nd Defendant respectively.
[2] On 21 July 2022 this Court dismissed the application with costs. The reasons now follow.
Background Facts
[3] The plaintiff is a private limited company incorporated in Malaysia under the Companies Act 1965. It is involved in the business of inter alia providing personnel, corporate and industrial training activities, coaching, training and development and certification services predominantly in the construction business. At all material times the training services provided by the Plaintiff were conducted by WA Skills Training Pty Ltd (WAST), an Australian company having its business address at 12, Halifax Drive, Bunbury WA 6230 Australia.
[4] The incorporation of the Plaintiff was mainly as a mechanism to facilitate payments made by local customers for the training services conducted by WAST. A major part of the expenses incurred by the Plaintiff is funded by WAST.
[5] Pursuant to this arrangement, payments for the training/projects conducted in Malaysia were made to the Plaintiff but WAST would be entitled to a substantial portion of the payments that were received by the Plaintiff.
[6] The 1st Defendant is a Malaysian citizen and was a director and employee of the Plaintiff at the material time. She resigned as director on 2 July 2018. The 1st Defendant was the sole authorised signatory of the Plaintiff's Hong Leong Bank Account in Malaysia.
[7] The 2nd Defendant is an Australian citizen and was an employee of WAST. In Malaysia he oversaw the Plaintiff's business and operations on behalf of WAST. He resigned on 1 July 2018. He is the husband of the 1st Defendant.
[8] The Plaintiff had prior to this suit filed a suit against the 1st and 2nd Defendants and another director on 4 March 2019 at the Shah Alam High Court Suit No BA-22NCVC-106-03/2019 allegedly due to their misconduct and misappropriation of the Plaintiff's funds. That suit was subsequently withdrawn.
[9] The Plaintiff then filed Originating Summons No BA-24NCC-161-11/2019 for leave to initiate a derivative action against the 1st Defendant. This too was subsequently withdrawn.
[10] The Writ and Statement of Claim in the instant case were served on both the Defendants by substituted service. The Order for substituted service was obtained on 17 December 2021.
[11] The Affidavit of Service was affirmed by the process server on 6 January 2021.
[12] Apart from serving the Writ and SOC by substituted service the Plaintiff also obtained an order for Service out of Jurisdiction dated 25 January 2021 granting leave to serve the Notice of Writ together with the Writ and SOC on the Defendants at the last known address of the 2nd Defendant at 17, Carlton Place, Swan View, WA 6056 Australia or elsewhere as the Defendants may be found.
[13] The Affidavit of Service affirmed by the process server is dated 3 March 2021.
[14] The Defendants did not enter appearance and therefore the Plaintiff filed its application for leave to enter judgment in default of Defence against both Defendants. JID of Defence was entered against the 1st Defendant on 1 April 2021 while JID of Defence was entered against the 2nd Defendant on 30 April 2021.
[15] Almost a year later, on 9 March 2022 the 1st and 2nd Defendants (the Defendants) filed this Notice of Application to set aside the JID of Defence taken against them.
The Law
[16] The law on setting aside a judgment in default of defence is set out in O 19 r 9 of the Rules of ( ROC ) 2012. It provides as follows:
"9 Setting aside judgment (O 19 r 9)
The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.
[17] The principles of setting aside JID is well established. In the case of Yap Ke Huat & Ors v. Pembangunan Warisan Murni Sejahtera Sdn Bhd, t
