Low Hop Bing J:

Appeal

This is an appeal by the appellant ("the first defendant") against the decision of the learned sessions court judge ("the trial judge") who had on 1 October 2003 dismissed the first defendant's application dated 3 March 2003 to set aside the default judgment entered against him on 29 September 1999.

Factual Background

The first defendant had on 14 May 1997 entered into a hire-purchase agreement ("the agreement") with the plaintiff for the hire of a Proton Wira car bearing registration number NAM 4327.

Upon the first defendant's default in the payment of the instalments pursuant to the agreement, the plaintiff had filed an action in the sessions court against, inter alia, the first defendant on 12 September 1998. The first defendant's address was stated as No. 7, Taman Bukit Kelana 70400 Seremban. The plaintiff had sent the summons to the first defendant at this address by way of AR Registered post on 20 October 1998 but it was returned unclaimed. That address was given by the first defendant to the plaintiff and was expressly stated in the agreement. The same address was stated in the defendant's own letters dated 1 July 2002 to the plaintiff.

The original return date of the summons had to be postponed several times and the plaintiff's subsequent attempts to effect service of the same also proved unsuccessful. The plaintiff had on 5 February 1999 obtained an order for substituted service which was subsequently effected. The order for substituted service had stated that the return date of the summons was 29 September 1999, on which judgment in default was entered against the first defendant when he was absent.

The first defendant had thereafter telephoned the plaintiff's office and sent facsimile and letter dated 1 July 2002 to the plaintiff in order to satisfy the judgment sum pursuant to the judgment. The first defendant had not denied this in his affidavit. He also did not deny the outstanding arrears which he had to pay on the due dates pursuant to the agreement.

Delay In Filing Application

The plaintiff's learned counsel Mr Mohd Aidil bin Rusli raised the issue of the unexplained delay of three years and five months on the part of the first defendant in filing the application in the sessions court, relying on Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 CLJ 609 CA; Khor Cheng Wah v. Sungai Way Leasing Sdn. Bhd. [1997] 1 CLJ 396 CA; and Malayan Banking Bhd v. Mahmood Zuhdi Hj Mohd Nor [2001] 6 CLJ 171 HC.

Mr. S. Ravi Chandran, first defendant's learned counsel, responded that there was no issue of delay as the first defendant had filed the application as soon as he had notice of the judgment when he was informed by the plaintiff of the bankruptcy proceedings against the first defendant.

From the appeal record, I find that the first defendant had on 1 July 2002 written twice to the plaintiff's solicitors referring to the telephone conversation between him and one Raja Nazleen bt Raja Khalid of the plaintiff's solicitors asking for consideration by the plaintiff's solicitors in relation to the repayment of the judgment sum in question, for which he agreed to repay by way of a down payment of RM5,000 and then RM500 monthly.

These letters have been annexed as exhibits to the plaintiff's affidavit to which the first defendant had failed to contradict. Where, as in this case, the plaintiff makes a positive assertion upon this material issue, the first defendant's failure to contradict it is usually treated as an admission by him of the fact so asserted: Ng Hee Thoong & Anor, supra, per Gopal Sri Ram JCA.

In my judgment, the true position is that at all time before 1 July 2002, the first defendant had already received the judgment against him.

Order 29 r. 14 of the Subordinate Courts Rules 1980, where relevant, provides for the setting aside of an order or judgment as follows:

14. Setting aside judgments and orders (O. 29 r. 14)

Where in these rules provisions are made for the setting aside of a