A judgment in default is regular if service is perfected, and claims of merits in defense must be substantiated; otherwise, they may be viewed as attempts to delay payment.

JUDGMENT

Nor Izzati Zakaria M:

(Enclosure 15)

Introduction

[1] The defendant, vide encl 15, had filed an application to strike out the judgment in default entered against the defendant pursuant to O 42 r 13 of the Rules of 2012 (herein referred to as "the ROC 2012"). The plaintiff had objected the application. After perusing the application, affidavits and written submissions by both parties, this Court had dismissed the defendant's application with costs. The reasons for the decision of this Court are set out as below.

Brief Facts

[2] The plaintiff is a private company incorporated in Malaysia having its registered address at 28, Jalan Bukit Setongkol Jaya 108, 25200 Kuantan, Pahang.

[3] The defendant is an individual having his registered address at E-02-01, Blok E, Meranti, Kuantan Tembeling Condominium, Jalan Padang Golf, 25050 Kuantan, Pahang Darul Makmur and/or No 6, Lorong Semambu Baru 76, Andorra Peak Semambu Baru, 25350 Kuantan, Pahang.

[4] The plaintiff claimed against the defendant for a sum of RM38,013.50 as the defendant had failed to pay to the plaintiff monthly management fees continuously since 1 November 2013 and reminders had been sent to the defendant (including a statement of claim) but the defendant failed to settle the outstanding payments.

[5] The plaintiff obtained a judgment in default of appearance dated 7 December 2022 against the defendant and the Court granted the judgment sum of RM1,483,255.83 to the plaintiff. However, the defendant claimed that the judgment in default was not in order and the outstanding amounts which the plaintiff had claimed against the defendant was wrongly calculated.

[6] The defendant further submitted that he had merits in his defence because there were errors in calculation of the outstanding amounts.

The Defendant's Application For Striking Out (Enclosure 15)

[7] The defendant applied an application to strike out the judgment in default pursuant to O 13 r 8 the ROC 2012. The provision of O 13 r 8 the 2012 is reproduced hereunder:

"8. Setting aside judgment (O 13 r 8)

The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order."

[8] The defendant's application was supported by an affidavit (vide encl 20) deposed by Wan Khairudin bin Wan Ab Manan who after verifying the facts of the defendant's application stated that he verily believed that the defendant had defence with merits ('terdapat pembelaan bermerit', Encl 20, para 19.5).

The Defendant's Arguments

[9] The defendant averred in the written submission (Enclosure 21) that the judgment that has been entered is as a result of some impropriety which is considered so serious as to render the proceedings a nullity. A peculiar situation which renders a judgment in default to be irregular is when it infringes the ROC 2012. The defendant averred that the judgment in default infringes the 2012 because a judgment in default of appearance is entered when the prayers involved an injunction. In view that the judgment in default was entered upon the default of appearance instead of default of defence, it is apparent that the plaintiff did not seek the leave of Court in this context.

The Plaintiff's Arguments

[10] On the other side, the plaintiff submitted that the defendant was just trying to mislead the Court whereas it was submitted by the plaintiff that the payment was the statutory liability by the defendant as proprietor of the condominium under s 77 of Strata Management Act. The plaintiff submitted that the liquidated claim amount falls under O 13 r 1 of the ROC 2012, thus the judgment in default is regular.

Reasons For The Decision

i) Whether The JID Was Regular

[11] As stated under O 13 r 8 of the ROC 2012, the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. I refer to O 42 r 13 of the 2012 that is stated as follows:

"13. Setting aside or varying judgment and orders (O 42 r 13)

Save as otherwise provided in these Rules, wh