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2025 MarsdenLR 6151
HIGH COURT MALAYA KUALA LUMPUR
YAP TECK CHOW & ANOR – Appellant
Versus
YAP TECK LOKE & ORS – Respondent
[Civil Suit No: 22NCvC-955-08-2012]
A default judgment entered for unliquidated damages is a nullity and must be set aside due to procedural irregularities.
Headnote:(A) Rules of Court 2012 - Order 1A, Order 2, Order 42 r 13, Order 92 r 4 - Default judgment - The court set aside a judgment in default for RM4 million due to procedural irregularities, emphasizing that a judgment entered for unliquidated damages is a nullity. (Paras 12, 13, 29)
(B) Tort of Conspiracy - The court highlighted that claims for unliquidated damages must be assessed and cannot be quantified in a default judgment. (Paras 14, 15)
(C) Estoppel - The court ruled that a litigant cannot approbate and reprobate in different proceedings, stressing that the plaintiffs' conduct was unconscionable. (Paras 25, 29)
Facts of the case:
The plaintiffs, cousins of the 1st defendant, obtained a judgment in default for RM4 million based on a claim of conspiracy to injure. The 1st defendant applied to set aside this judgment, claiming it was irregular.
Findings of Court:
The court found the default judgment was irregular for not complying with the Rules of Court, particularly regarding the quantification of damages.
Issues: The court addressed whether the default judgment was valid and the implications of the plaintiffs' conduct.
Ratio Decidendi: The court determined that the default judgment was a nullity as it was entered in contravention of the Rules of Court, thus justifying its setting aside.
Result: The judgment in default was set aside with no order as to costs.
Introduction
[1] The 1st defendant applied (Encl 39) pursuant to O 1A, O 2 rr 1, 3 and 5 and the inherent powers of the Court under O 92 r 4 Rules of Court 2012 (" ROC 2012") for an extension of time to apply to set aside a judgment dated 31 May 2013 entered in default ("JID") of him making an appearance (Encl 34).
[2] The JID was entered for a sum of RM4 million with interest thereon at 4% p.a. from an indeterminate date and costs on a solicitor-client basis grounded on the tort of conspiracy to injure by unlawful means.
[3] Having found that the pith and substance of the application was to set aside the JID, I had on 24 January 2025 set aside the JID with no order as to costs with the 1st defendant given 14 days to enter appearance and to file his defence within 14 days thereafter with the parties to attend before the learned Senior Assistant Registrar on 25 February 2025 to take further directions.
[4] Dissatisfied, both the 1st and 2nd plaintiffs have each appealed (Encls 66 and 67), and these are the grounds of judgment for both the appeals in short form.
Background Facts
[5] The plaintiffs and the 1st defendant are cousins, where their respective fathers are brothers.
[6] The application (Encl 39) sought that the time prescribed under O 42 r 13 ROC be extended to 30 days from the date the Court allows such an application, to set aside the JID.
[7] As will be discussed in detail below, the application (Encl 39) has a prayer for such further or other relief as deemed fit by this Honourable Court.
Pith And Substance Of Enclosure 39
[8] The plaintiffs pointed out that the 1st defendant's application was merely to extend time to challenge the JID. Thus, the 1st plaintiff asserted that the 1st defendant was not challenging that the JID was regularly obtained.
[9] However, I observed that from the affidavit (Encl 40) filed in support of Encl 39, the 1st defendant had asserted (Encl 40 para 16.4) that the plaintiffs' claim in the Writ (Encl 1) and Statement of Claim (Encl 2) is defective as it claimed for liquidated or quantified amounts for:
(a) general damages of RM1 million;
(b) aggravated damages of RM1 million;
(c) punitive damages of RM1 million;
(d) exemplary damages of RM1 million;
(e) interest on the damages at 4% p.a. from the date therein but which is not set out; and
(f) costs to be paid on a solicitor client basis,
for a claim in tort grounded on conspiracy to injure by unlawful means.
[10] With no appearance having been entered by the 1st defendant and the 3rd defendant, the plaintiffs applied (Encl 31) for judgment in default of appearance to be entered in their favour for the claims set out in their Statement of Claim (supra). This was allowed by the former learned Judge on 31 May 2013 (Encl 34). Therefore, the plaintiffs were armed with such a JID for RM4 million with interest thereon and costs on a solicitor-client basis. The 1st defendant asserts this JID is defective and oppressive (Encl 40 para 24).
[11] Thus, the pith and substance of the application (Encl 39) is to have the JID set aside.
Law On Setting Aside JID
[12] Although the plaintiffs have cited several Court of Appeal authorities, with respect, I find the following three Federal Court authorities to be instructive and binding on this Court. They are:
(i) Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad ; [1996] 1 CLJ 241; [1996] 1 AMR 215; and (ii) Maxland Sdn Bhd v. Timatch Sdn Bhd ; ; [2014] 4 AMR 645, paras 21 to 25. In fact, in Maxland Sdn Bhd, at para 25, the FC quoted with approval the following passage of the judgment of Edgar Joseph Jr FCJ, a renowned jurist, in Tuan Haji Ahmed Abdul Rahman who said:
"It is elementary that an irregular judgment is one which has been entered otherwise than in strict compliance with the rules or some statute or is entered as a result of some impropriety which is considered to be so serious as to render the proceedings a nullity. The general rule is that when it is clearly demonstrated to the
