MALAYSIA

IN THE HIGH COURT IN SABAH & SARAWAK AT KUCHING

SUIT NO. 22-63-98-III(I)

BETWEEN

J U D GM E N T

Introduction

The matter herein concerns two applications by Dong Ah Construction Industrial Company Ltd ("the Defendant"), one to set aside the default judgment entered against them and the other to set aside the garnishee order. I heard both applications together.

Brief facts

Cedar Trading Sdn Bhd ("the Plaintiff") leased heavy equipment and supplied manpower to the Defendant and this resulted in the Plaintiff [2] 7 March 1998 issuing a statement of account to the Defendant for RM768,024.05 which the Defendant refused to pay. The Plaintiff then on 14 April 1998 served on the Defendant a writ claiming for the said sum, pre-judgment and after judgment interest at 8% per annum from 30 October 1997 to date of payment and costs. Before the writ was served the Defendant paid the Plaintiff a sum of RM 101,642.22 on 9 April 1998. Judgment in default of appearance was entered on 14 May 1998 but only for the said sum of RM768,024.05 without the interest. On 5 June 1998 the Plaintiff took out an ex parte summons in chambers seeking an order that, inter alia, Standard Chartered Bank ("the Garnishee") satisfy the judgment sum and interest of RM28,160 (calculated at 8% p.a. on the judgment sum from 30 October 1997 to 15 May 1998) and further interest at RM5,120.16 per month from 15 May 1998 until final payment). An order in term was granted on 12 June 1998. On 20 June 1998 a garnishee order to show cause was issued against the Garnishee and this resulted in the senior assistant registrar on 3 July ordering the Garnishee to satisfy the judgment in the several sums mentioned despite the objection of the Garnishee. A notice of appeal to Judge in chambers was then filed on 9 July by the Garnishee against the said order of the senior assistant registrar but the appeal was withdrawn, the Garnishee not wishing any more part in the proceedings after having paid over the sum of RM801,304.21 to the Plaintiff. On 18 July the Defendant filed the present applications to set aside the judgment in default of appearance and set aside the various orders made on June 12, June 20 and July 3 in the garnishee proceedings. [3]

At the hearing of the two applications Mr. Lim Heng Choo, learned counsel for Plaintiff, raised two preliminary objections. The first is that the application to set aside the default judgment is out of time and the second is that the application to set aside the garnishee order is not provided under Order 49 of the Rules of High COURT 1980. Mr. Ivan Ong, learned counsel for the Defendant, had his objections as well which is regarding the use of the two affidavits of Lee Yoke Ming dated 3 October 1998 that were filed on behalf of the Plaintiff on the ground that Lee Yoke Ming is not a director of the Plaintiff company.

Whether application to set aside the default judgment was out of time?

Mr. Lim argued that under Order 42 r 13 of the RHC 1980 provides that an application to set aside a default judgment must be made within 30 days of the receipt of the judgment. The said provision (which was added in 1993) reads:

Where in these Rules provisions are made for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment must make his application to the COURT and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.

It was contended that judgment in default was served on the Defendant on June 19 and the 30-day period expired on July 18. Even though the summons in chambers to set aside the judgment in default was taken out on July 18 it was not served on the Plaintiff until July 29 which, argued Mr. Lim, was out of time. Mr. Ong did not advert to that argu