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2025 MarsdenLR 369
MAGISTRATE COURT KUANTAN
YEE LIU WEI – Appellant
Versus
YAP KIM HENG – Respondent
[Civil Suit No: CA-A72NCvC-225-06/2024]
A default judgment can only be set aside if it was irregularly obtained or if the defendant demonstrates a meritorious defense, and must be done within 30 days of receipt.
Headnote:(A) Rules of Court 2012 - Order 42 Rule 13 - Order 13 Rule 8 - Application to strike out judgment in default - Defendant failed to appear and defend the claim, leading to a default judgment - Court found service of process was lawful and regular - Defendant's claims of irregularity and meritless defense were dismissed. (Paras 1, 20, 26, 28, 43)
(B) Default Judgment - A judgment in default can only be set aside if it was obtained irregularly or if the defendant shows a meritorious defense - The defendant must act within 30 days of receiving the judgment to apply for setting aside. (Paras 28, 34)
Facts of the case:
The plaintiff invested RM57,910.00 in a halal restaurant project in China, which the defendant failed to execute, leading to a default judgment after the defendant did not respond to the claim.
Findings of Court:
The court found that the judgment in default was entered lawfully and that the defendant's application to strike it out was an abuse of process.
Issues: Whether the judgment in default was regular and whether the defendant had a defense with merits.
Ratio Decidendi: The court ruled that the defendant's failure to enter an appearance and the lawful service of process justified the default judgment, and the defendant's claims of merit were baseless.
Result: Application dismissed with no order for cost.
JUDGMENT
(Enclosure 21)
Introduction
[1] The defendant, vide encl 21, filed an application to strike out the judgment in default entered against him pursuant to O 42 r 13 of the Rules of 2012 (herein referred to as "the ROC 2012"). The plaintiff objected the application. After perusing the application, affidavits and written submissions by both parties, this Court dismissed the defendant's application with no order for cost. The reasons for the decision of this Court are set out as below.
Brief Facts
[2] The plaintiff is an individual having his registered address at No 11, Jalan Mawar Impian 8, Taman Mawar Impian, 28300 Triang, Pahang Darul Makmur.
[3] The defendant is an individual having his registered address at No 16, Lorong Galing 19, Jalan Haji Ahmad, 25300 Kuantan, Pahang Darul Makmur.
[4] Around 2019, the defendant requested the plaintiff to invest in the establishment of a halal restaurant in China. To implement this plan, both the defendant and the plaintiff travelled to Guangxi, China, to search for a suitable and strategic location.
[5] After identifying an appropriate location and based on trust in the defendant's capabilities, the plaintiff transferred a sum of RM57,910.00 to the defendant's personal bank account with the intention of opening the halal restaurant in China, in accordance with the plan provided by the defendant.
[6] However, despite receiving the funds from the plaintiff, the defendant failed to take any action toward executing the restaurant opening plan. The defendant gave various excuses and avoided responding to the plaintiff's inquiries regarding the progress of the halal restaurant's establishment.
[7] Due to the defendant's failure, reluctance, and negligence in opening the halal restaurant as agreed upon by both parties, the Plaintiff demanded the return of the investment sum of RM57,910.00.
[8] The service of the Writ of Summons and Statement of Claim through registered AR Card and personal delivery to the Defendant was unsuccessful. As a result, an application for substituted service was filed, and an order for substituted service was granted on 17 August 2024 (please refer to encl 8).
[9] Consequently, the Writ of Summons and Statement of Claim were served to the defendant via substituted service, where the plaintiff served the Order for Substituted Service, Writ of Summons, and Statement of Claim on the notice board of the Kuantan Magistrate's Court on 22 August 2024, advertised the Notice of Writ of Summons in the local newspaper "The Star" on 26 August 2024, and sent it via registered AR Card to the defendant on 28 August 2024.
[10] However, the defendant failed to enter an appearance in the case within 14 days from the date of final service. As a result, the service of the Writ of Summons and Statement of Claim on the defendant was deemed to be properly and duly effected on 11 September 2024.
[11] On 20 September 2024, the plaintiff filed a Certificate of Non-Appearance against the defendant (please refer to encl 12), and a Default Judgment was subsequently recorded on 25 September 2024 (please refer to encl 14).
[12] Due to the defendant's failure to comply with the judgment in default, the plaintiff obtained an Order for Garnishment to show cause on 25 October 2024.
The Defendant's Application For Striking Out (Enclosure 21)
[13] The defendant applied an application to strike out the judgment in default pursuant to O 13 r 8 the ROC 2012. The provision of O 13 r 8 the 2012 is reproduced hereunder:
"8. Setting aside judgment (O 13 r 8)
The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order."
[14] The defendant's application was supported by an affidavit (vide encl 22) deposed by Yap Kim Heng, who after verifying the facts of the defendant's application stated that he verily believed that the defendant had defence with merits ('mempunyai pembelaan yang bermerit', encl 22, para 10).
[15] Briefly, the reasons rai
