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2014 MarsdenLR 921
HIGH COURT MALAYA SHAH ALAM
ZAINI CHE AWANG & ORS – Appellant
Versus
PEGAWAI PENERIMA SYARIKAT COSMOPRO & ORS – Respondent
[Civil Suit No: AT2-21-390-2009]
Procedural compliance is mandatory; failing to adhere to rules for setting aside judgments results in dismissal of applications.
Headnote:(A) Rules of Court 2012 - Orders 13, 19, and 42 - Application to set aside judgment in default - 3rd defendant claimed non-service of statement of claim and alleged defense on merits - Application deemed defective as it was not made under the correct order - Delay in filing application was not justified, violating mandatory time limits - Court emphasized strict compliance with procedural rules. (Paras 4, 6, 12, and 19)
(B) Civil Procedure - Compliance with court rules is essential for the exercise of judicial discretion - Ignoring mandatory provisions is regarded as an abuse of process and detrimental to justice. (Paras 8, 9, 12, and 18)
Facts of the case:
The 3rd defendant sought to set aside a judgment in default claiming lack of service and asserting a defense; however, the application was made outside the mandatory 30-day filing period without justification.
Findings of Court:
The court dismissed the application, reaffirming that rules must be followed and that no reasonable explanation for the delay was provided.
Issues: The main issues included whether the application for setting aside was properly made under the correct order and the justification for the delay in filing.
Ratio Decidendi: The court held that procedural rules are mandatory and must be complied with to allow for judicial discretion. Failure to follow these rules cannot be excused without valid reasons.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. application to set aside judgment based on lack of service. (Para 1 , 1) |
| 2. discussion on the consolidation of civil suits. (Para 2) |
| 3. defectiveness of the application under incorrect rules. (Para 3 , 4 , 5 , 6) |
| 4. clarification on the mandatory nature of application timelines. (Para 7 , 8) |
| 5. importance of filing extension of time applications. (Para 9 , 10 , 11) |
| 6. limits on the court’s ability to override procedural non-compliance. (Para 12) |
[1] This is an application by the 3rd defendant, Mercu Sa-laam Sdn Bhd, to set aside the judgment in default of defence obtained on 24 October 2013 under Order 13 and to dismiss the plaintiff's claim under O 19 of the Rules of 2012 [PU (A) 205/2012]("RC 2012"). The 3rd defendant alleged that they had not been served with the statement of claim and as such the default judgment obtained is irregular. They also alleged that if the default judgment is obtained regularly, then it can still be set aside since they have a defence on merits, ie they have raised an arguable or triable issue to be tried in a full trial.
Decision Of The Court
[2] It must be noted that this civil suit, No 21-390-2009 has been consolidated and will be heard together with civil suit No 22-1179-2009. In civil suit No 22-1179-2009, judgment in default of appearance had been entered against the 3rd defendant by the plaintiffs on 2 October 2009. The 3rd defendant has applied to set aside the default judgment and I have on 17 February 2014 dismissed their application with costs of RM2,000.00. The 3rd defendant has appealed against my decision and I have written my grounds of judgment on 7 April 2014 (Rayuan No B-02(IM)-526-03/TAHUN 2014).The issues or arguments raised by the 3rd defendant in their application in suit No 22-1179-2009 and those raised in suit No 21-390-2009 (present application) are similar and I will adopt my grounds of judgment in that suit (No 22-1179-2009/ Rayuan No B-02(IM)-526-03) in this present suit (No 21-390-2009).
Application Under O 13, r 1 and O 19, RC 2012 Is Defective And Abuse Of Process Of Court.
[3] The 3rd defendant filed the application to set-aside the judgment in default of defence under O 13 and O 19 RC 2012. The plaintiffs' counsel, Mr Mohaji Selamat submitted that the application is defective since the 3rd defendant should have made the application under O 42, r 13.
I agree with learned counsel for the plaintiffs.
[4]O 13, r 1 provides for the plaintiff to enter a final judgment against a defendant for a liquidated amount claimed if the defendant fails to enter an appearance within the time permitted under the rules. It has nothing to do with the setting-aside application at hand. As to O 19 r 1, it allows the Court to dismiss the plaintiff's claim after the expiration of the period fixed under the rules for service of the statement of claim but the specific order that should have been cited by the 3rd defendant's counsel would be O 42, r 13. I am bewildered that Ms Shopna Rani Malakar had not been specific in quoting the provisions under the RC 2012 by which she is making this application. One has to be specific and not generalize in stating under which Order or Rule one is making and not expect that "one size fits all" for any or every application one makes to the Court.
[5] As pointed out by Mr Mohaji Selamat, the correct Order for Ms Shopna Rani Malakar to cite or refer to in the setting-aside application would be O 42, r 13. If I may add, she can also cite or cross-refer to O 13, r 8 since it provides for the setting-aside of any judgment including that of a default judgment of defence which is the crux of her application. Since she failed to cite or refer to the correct Order or rule, I find her application to be defective.
Application Filed Out Of Time Or After The 30 Days Limitation Under O 42, r 13 RC 2012.
Order 42, r 13 states:
"Setting aside or varying judgment and orders (O 42, r 13)
Save as otherwise provided in these Rules, where provisions are made in these Rules
