A judgment cannot be impeached unless sufficient new evidence of fraud is presented, and repeated attempts to relitigate settled matters are barred by res judicata.

[1] This appeal raised an interesting question as to whether a defendant who had failed to set aside a default judgment may later apply to impeach the said judgment on ground that it was obtained through fraud or conspiracy when the alleged fraud and conspiracy was all before the filing of the suit that led to the default judgment. It was also argued that the plaintiff in the initial suit had no cause of action against the defendant with respect to suing for liquidated damages for failure to transfer to him a piece of land bought apparently from the defendant's predecessors in title and that the default judgment was a nullity.

[2] The challenge to impeach the default judgment was made after an execution by way of a prohibitory order and sale of three pieces of the defendant's land and after a consent order had been entered into with respect to a committal action brought by the plaintiff in the initial suit in the Sessions Court against the directors of the defendant there. Upon the recording of the consent order the committal action against the directors of the defendant was, with leave of the Court, withdrawn.

Proceedings In The Sessions Court

[3] The current dispute over a piece of land had begun in the Sessions Court in Johor Bahru in Suit No B52-NCVC-07-02-2014 ("the Sessions Court Suit") wherein the plaintiff there was one Raja Qahaarruddin Raja Abdul Aziz ("Raja Qahaar") against Pembangunan Tanah Dan Perumahan Sdn Bhd ("PTDP") for a declaration that Raja Qahaar is the lawful owner of the land in question or alternatively for damages to the tune of RM844,000.00 being the purchase price and other ancillary charges incurred for the purchase of the land.

[4] The land in question had already been transferred by PTDP to another purchaser.

[5] The Writ of Summons and Statement of Claim were served at the registered office of the PTDP on 25 February 2014 and the Affidavit of Service was duly filed. See Record of Appeal RR(C)(2C) pp 475-487 and the SSM search on the registered office of PTDP at p 438.

[6] As no appearance was entered by PTDP, a default judgment was entered on 16 March 2014 against PTDP. See p 29 of Volume 2A of the Record of Appeal. The default judgment was served on PTDP on 24 April 2014. See Record of Appeal RR(C)(2C) pp 508-509.

[7] PTDP only entered appearance out of time on 12 May 2014 and it was only on 18 March 2015 that PTDP applied to set aside the default judgment. Before the hearing on 13 May 2015 the then solicitors for PTDP applied for an order to discharge themselves as the solicitors for PTDP and the discharge order was given on 27 April 2015.

[8] When the application came up for hearing on 13 May 2015, the Sessions Court dismissed the said application to set aside the default judgment.

[9] There was no appeal against the said decision of the Sessions Court. With no payment forthcoming from PTDP, Raja Qahaar set about trying to realise the fruits of his judgment. He proceeded with a prohibitory order and sale by public auction of six lots of land belonging to PTDP and these were auctioned on 28 March 2016 and 24 June 2016. Only three bidders finally successfully paid the bid price on 17 October 2016 for three lots and the bid price paid was enough to settle the judgment sum outstanding with a balance left for PTDP.

[10] There was a further obstacle placed in the way of Raja Qahaar when PTDP refused to deliver up the three titles to the lots auctioned and it was only after a contempt application had been filed and leave obtained to proceed with conte