James Foong JCA:

Introduction

[1] This appeal concerns only one issue: whether the appellants are allowed to set aside a judgment in default of appearance entered against them. The High Court has dismissed their application to set aside, thus this appeal to us.

Background

[2] The background of this case is relatively straight forward. The plaintiffs have filed this civil suit against six defendants. The 1st defendant is a company which the plaintiff claims the 2nd to 6th defendants (the appellants in this appeal) are and/or were at all material times directors. The causes of action in this suit as mentioned in para. 16 of their statement of claim are:

(a) Breach of Contract;

(b) Conspiracy as between the defendants to injure the plaintiffs;

(c) The defendants' breach of their duties as fiduciaries to the plaintiffs;

(d) The defendants' breach of their duties as constructive trustees to the plaintiffs; and

(e) The defendants' fraudulent breach of trust.

[3] The reliefs sought by the plaintiffs are:

(1) An account be taken of all sums due from the defendants to the plaintiffs in respect of all the causes of actions;

(1.1) That Messrs A. Pathmarajah & Co, Public Accountants, a firm of accounts, or such other fit and proper accountant/s be appointed to take the said accounts;

(1.2) That in order to carry out their duties, the said accountant be granted leave to adopt such procedures as would amount to Investigative Accounting procedures;

(1.3) In furtherance of their duties, and from time to time, the said accountants be allowed ingress and egress into such venues or places belonging to, in the custody of or under the control of the defendants and/or their servants and/or agents as the accountants may find proper and expedient;

(1.4) In the event the defendants and/or their servants and/or agents refuse to allow access for the accounts in the carrying out of their duties, the accountants be granted leave to enter into;

(2) An order for payment by the defendants to the plaintiffs of all sums found to be due from the defendants to the plaintiffs on the taking of the accounts aforesaid;

(3) A declaration that all sums of moneys in the hands of the defendants are the assets of the plaintiffs;

(4) General damages for:

(a) breach of contract;

(b) fraudulent breach of trust;

(c) the defendants or each of their respective breaches of duties as fiduciary to the plaintiffs;

(d) the defendants' breach of their duties as constructive trustees to the plaintiffs;

(c) the defendants' fraudulent breach of trust;

(5) Interest at the rate of 8% per annum for all sums awarded of all the matters hereinabove pleaded, from the date of the breach up to the date of judgment;

(6) Interest at the rate of 8% per annum for all sums awarded from the date of judgment until full and final settlement;

(7) Costs on a solicitor client basis by reason of the conduct of the defendants; and

(8) Such further and other relief that this Honourable Court deems fit and proper.

[4] According to the affidavit of service of the plaintiffs' process server, he served the writ and the statement of claim on all the defendants on 5 January 2003 by way of prepaid A.R. registered post: on the 1st defendant at No. 32, Kampong Baru, Kuala Krau, 28050 Temerloh, Pahang; on the 2nd, 3rd and 4th defendants at No 8, Jalan Besar, Kuala Krau, 28050 Temerloh, Pahang; and on the 5th and 6th defendants at No. 32, Kampung Baru, Kuala Krau, 28050, Temerloh, Pahang.

[5] Only the 1st defendant entered memorandum of appearance, but not the rest of the defendants.

[6] The exhibits attached to the plaintiffs' process server's affidavit reveal that the A.R. registered post acknowledgment cards for posting to the 2nd to 5th defendants were returned by the post office showing a signature of the recipient and the name of the 4th defendant written thereon. The A.R. registered post acknowledgment card for service on the 6th defendant was not returned by the post office.

[7] When the 2nd to 6th def