Faiza Tamby Chik J:

This is an appeal filed by the plaintiff against the decision of the learned judge delivered on 14 December 1999 which allowed the application of the defendant to set aside the judgment in default of appearance taken against the plaintiff on 7 July 1999. A copy of the relevant order is shown in pp. 1-3 of the Supplementary Record of Appeal. On 11 April 1999, the plaintiff had filed a summons against the defendant. The particulars of the plaintiff's claim against the defendant are as stated in the statement of claim dated on the same date. (Pages 1-10 of the Record of Appeal). The said summons was duly served on the defendant, a fact not disputed by the defendant. On 7 July 1999, the return date of the said summons, the defendant had failed to appear in court or to file and serve upon the solicitors for the plaintiff the requisite notice of appearance. As a consequence thereof, the solicitors for the plaintiff proceeded to enter judgment in default against the defendant (hereinafter referred to as "the default judgment") which judgment in default were taken in the following terms (p. 1-2 of the Second Supplementary Record of Appeal):

(i) The defendant is ordered to pay the plaintiff the sum of RM200,000 with interests thereon at the rate of 8% from 11 May 1999 till the date of full realisation thereof (hereinafter referred to as "the first limb");

(ii) The defendant is ordered to pay the plaintiff damages to be assessed; and

(iii) Interest on the sum so assessed at 8% from 11 May 1999 till date of full realisation thereof and costs to be determined.

(Items (ii) and (iii) shall hereinafter collectively be referred to as "the second limb").

The defendant had on 21 September 1999, filed a notice of application (pp. 16-19 of the Record of Appeal) seeking inter alia, to set aside the default judgment taken against them (hereinafter referred to as "the application"). The learned judge had allowed the application and ordered that the default judgment to be set aside, hence the plaintiff's present appeal before this court.

The defendant had stated essentially two grounds in support of their application, namely (p. 17-18 of the Record of Appeal):

(i) The defendant had a defence on the merit against the plaintiff's claim in that as the plaintiff had failed to disclose to the defendant (an insurer) material facts, the defendant was entitled to repudiate the relevant insurance policy; and (ii) The judgment in default taken for the sum of RM200,000 was not for a liquidated sum and therefore the said judgment in default was irregular and had to be set aside.

The defendant by the averments contained in the affidavit of Lim Joo Siew (pp. 220 -57 of the Record of Appeal) alleged that the plaintiff had failed to disclose to the defendant in relation to the insurance policy issued by the defendant in respect of the plaintiff's vehicle, the following facts. That the plaintiffs owned two other vehicles; and that the plaintiff's has had a previous claim in respect of the theft of the plaintiff's other vehicle from QBE Insurance (M) Bhd. The plaintiff by its affidavit in reply (pp. 58-87 of the Record of Appeal) averred that the abovestated facts had been made known to JL Transurance Services (hereinafter referred to as "the agent"), an authorised agent of the defendant at the time of the relevant proposal forms were completed. The said proposal forms had been completed by the agent. The fact that JL Transurance Services was the authorised agent of the defendant was not disputed. (p. 86 of the Record of Appeal). Further, by the affidavit of Goh Hua Kiew (hereinafter referred to as 'Goh'). (pp. 100-103 of the Record of Appeal) affirmed on behalf of the plaintiff, Goh who is the Business Development Manager for QBE Insurance (M) Bhd. (hereinafter referred to as "QBE"), had averred that he had referred the plaintiff's case to the agent as Goh had been unable to arrange an insurance policy for the plaintiff from QBE in view o