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2001 MarsdenLR 352
HIGH COURT MALAYA KUALA LUMPUR
SRI HARTAMAS CONTRACTORS SDN BHD – Appellant
Versus
SRI KELADI SDN BHD – Respondent
[Suit No: S2 (S1)-22-870-1999]
Kamalanathan Ratnam J:
The appeal
[1] The defendant applied to set aside the judgment in default of appearance obtained by the plaintiff and for leave to file the defence and also for a stay of all proceedings until the hearing of the said application. On 6 September 2000, the learned senior assistant registrar ('SAR') granted an order in terms of the defendant's application. This is the plaintiff's appeal against that said decision.
Facts And Chronology Of Events
[2] The defendant's address stated in the writ was No 5, Persiaran Lidcol, Off Jalan Yap Kwan Seng, 50450 Kuala Lumpur, which was then its registered address ('the Yap Kwan Seng address'). The writ was posted to the defendant by prepaid registered post at the defendant's subsequent registered address on 13 January 2000 and an affidavit of service was filed. The registered address of the defendant, according to a search made on 5 January 2000, was 12-1A Jalan Hilir 1, Taman Sri Angsana Hilir, Kampung Pandan, 55100 Kuala Lumpur ('the Kampung Pandan address'). The AR registered acknowledgement card was returned with a signature duly acknowledging receipt of the said writ on 17 January 2000. The plaintiff then entered judgment in default of appearance on 23 February 2000. The defendant then filed its appearance on 7 March 2000 and filed an application to set aside the in default judgment on 5 May 2000.
Preliminary Objection
[3] At the commencement of the appeal, Mr Murthi for the appellant pointed out that whilst the affidavit in support of the application to set aside the judgment (encl 7) was affirmed by one Ruth Leong, the exhibits referred to by the said Ruth Leong, namely, exhs LCL-1 to LCL-8 were referred to in the 'Sijil Perakuan Ekshibit' attached to each of the exhs LCL-1 to LCL-8, as exhibits to an affidavit affirmed by one Low Cheng Lai and not the affidavit affirmed by Ruth Leong. Mr Murthi argued that since there was no affidavit of Low Cheng Lai, the exhibits were wrongly referred to in the affidavit of Ruth Leong.
[4] Whilst this might have been a valid point to have raised, unfortunately, the plaintiff's officer had himself affirmed an affidavit in reply (encl 9) in which he had specifically referred to exhs LCL-1 to LCL-8 and replied to them. It is my judgment therefore, that the appellant has thus waived, by its conduct, the right to raise this objection.
Findings Of The Court
[5] It was the case of the defendant that the writ and statement of claim were not served upon the defendant but upon one RK Consultant Sdn Bhd. Mr Murthi, for the appellant conceded to this fact. However, in its affidavit (encl 7), the defendant admitted having received the writ and statement of claim on 28 February 2000 and that on 2 March 2000, the defendant had retained their present solicitors, who on 8 March 2000 entered appearance. A subsequent search made at the registry of companies ('the ROC') which had been exhibited, showed that the registered address had been changed to the Kampung Pandan address. The defendant has not explained how it came to be in possession of the writ and statement of claim on 2 March 2000. At least, the defendant could have obtained an affidavit from RK Consultant Sdn Bhd to state that it had wrongly received the summons. It is my judgment that since the company search from the ROC shows that the business address of the defendant was the Yap Kwan Seng address and the registered address as the Kampung Pandan address, RK Consultant Sdn Bhd must have been authorized by the defendant to receive documentation on the defendant's behalf. I am, therefore, satisfied that the writ and statement of claim were properly served on the defendant at its registered address.
On Merits
[6] The plaintiff's claim is in respect of the balance due being the cost of construction and completion of an access bridge, amounting to RM1,103,958.02. Judgment was entered for this exact sum with interest at 8% from date of judgment to realization and costs of RM225. In its affid
