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2025 MarsdenLR 292
HIGH COURT MALAYA KUALA LUMPUR
SIVAN PERIASAMY – Appellant
Versus
GRANT AGRI (MALAYSIA) SDN BHD & ORS – Respondent
[Civil Suit No: WA-22NCvC-447-07/2019]
Summary judgments may only be set aside on demonstrating valid grounds for delay and showing absence of prejudice to the opposing party; failure to actively manage one’s legal affairs constitutes negligence.
Headnote:(A) Rules of Court 2012 - Order 42 r 13; Order 14 r 11 - Setting aside of summary judgment - The second and third defendants sought to set aside a summary judgment obtained without their attendance or defense based on alleged neglect of their previous solicitors - The application was filed nearly five years late without valid justification for the delay - The court held that established principles permit the setting aside of irregular judgments if it does not prejudice the other party, but justified delay must be explained - The judgment was not set aside as the defendants failed to show any evidence supporting their claims or indicate that their delay did not cause prejudice. (Paras 15-43)
Facts of the case:
The plaintiff entered a Joint Venture Agreement with the first defendant, investing RM500,000.00 with an expectation of RM2,500,000.00 return by a specified date; the second and third defendants guaranteed payment but failed to act, leading to a summary judgment against them.
Findings of Court:
The application to set aside the Judgment and Order was filed with inordinate delay and lack of substantiation; service of the judgment was adequate to legally bind the defendants.
Issues: Whether the summary judgment should be set aside due to alleged negligence of solicitors and delay in filing.
Ratio Decidendi: The court emphasized the responsibility of defendants to manage their legal representation and the necessity of justifying delays; the application lacked merit and failed to establish prejudice against their inability to contest.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. existence of joint venture agreement and guarantees (Para 3 , 4 , 5 , 6 , 7 , 8) |
| 2. arguments for setting aside summary judgment (Para 15 , 16 , 17) |
| 3. court’s discretion under roc for setting aside judgments (Para 18 , 19 , 20) |
| 4. service of judgment validity and implications (Para 22 , 30 , 31 , 32) |
| 5. defendants' duty to monitor case status (Para 36 , 37 , 38 , 39) |
| 6. merits of defendants' arguments concerning payments (Para 40 , 41) |
| 7. conclusion on application dismissal with costs (Para 42) |
(Enclosure 21)
Preliminary
[1] By way of encl 21, the second and third defendants seek to set aside the Judgment and Order both dated 15 November 2019 ("Judgment and Order") which were obtained in relation to the summary judgment application filed by the plaintiff without the attendance of their previous solicitors.
[2] This application was filed by the second and third defendants almost five (5) years after the Judgment and Order were obtained.
Background Facts
[3] On 11 September 2013, the plaintiff and the first defendant entered into a Joint Venture Agreement ("JVA"). According to the JVA, the plaintiff would invest RM500,000.00 in the first defendant's business in order to facilitate the importation of cattle from Australia to Malaysia for sale to potential buyers identified by the first defendant.
[4] As a return on the plaintiff's investment, the first defendant agreed to pay the plaintiff RM2,500,000.00 by 15 October 2013.
[5] In a Guarantee Agreement dated 11 September 2013, the second and third defendants jointly and severally guaranteed to pay and indemnify the plaintiff for all losses suffered by the plaintiff, including the investment of RM500,000.00 made by the plaintiff and other expenses incurred by the plaintiff.
[6] Furthermore, the second and third defendants agreed to indemnify and guarantee the payment due to the plaintiff by the first defendant.
[7] The plaintiff paid the RM500,000.00 as per the JVA.
[8] The first defendant, however, failed to pay the agreed sum of RM2,500,000.00 by 15 October 2013.
[9] Thus, the plaintiff filed this suit, followed by a summary judgment application which was fixed for hearing on 15 November 2019.
[10] Following that, the defendants engaged solicitors to defend themselves. A Memorandum of Appearance was filed by those solicitors.
[11] Unfortunately, there was no affidavit in reply to the summary judgment application filed by their previous solicitors.
[12] Additionally, the defence was filed after the deadline to do so.
[13] Further complicating matters, the defendants and their solicitors failed to appear on the hearing date fixed for the summary judgment application.
[14] Having read the plaintiff's affidavit and submission, the High Court entered the summary judgment against all defendants.
Court's Analysis And Findings
[15] The second and third defendants argue in support of their application to set aside the Judgment and Order that they have a meritorious defence that deserves to be heard during the full trial. In order to accomplish this, they argue that the Judgment and Order must be set aside first.
[16] Moreover, the second and third defendants argue that, despite not applying within 30 days as required by the Rules of Court 2012 (" ROC "), they are entitled to set them aside ex debito justitiae because the plaintiff obtained an irregular summary judgment, which was one-sided only.
[17] Based on the examination of the second and third defendants' application, I must hold at the very outset that they filed their application not only after the 30 days period provided by the ROC , but also inordinately late.
[18] In order to begin, I will refer to general provision under O 42 r 13 of the ROC , which provides that a party seeking to set aside a judgment or order shall do so within 30 days after receipt of the said order or judgment:
"Setting aside or varying judgment and orders (O 42, r 13)
13. Save as otherwise provided in these Rules, where provisions are
