JUDGMENT

Wong Siong Tung J:

Introduction

[1] The Appellant is the 3rd Defendant in Magistrates' Court Suit No SBW-A72-19/11-2019, commenced by the Respondent, who is the Plaintiff in that suit.

[2] The suit involves three defendants, including the 3rd Defendant.

[3] To avoid confusion in this appeal, the Appellant will be referred to as the 3rd Defendant, and the Respondent as the Plaintiff.

[4] This appeal is filed by the 3rd Defendant against the Magistrate's decision on 29 July 2024, which dismissed the 3rd Defendant's application to set aside a default judgment entered by the Plaintiff against the 3rd Defendant.

[5] The 3rd Defendant's appeal is filed under O 55 r 5 of the Rules of 2012.

Brief Background

[6] In 2019, the Plaintiff commenced proceedings in the Magistrates' Court , claiming against the 1st Defendant as the principal debtor for the price of goods sold and delivered, and against the 2nd and 3rd Defendants based on a guarantee provided by them.

[7] On 12 February 2020, the Plaintiff obtained judgment against all Defendants due to their default in appearance.

[8] On 18 May 2023, the Plaintiff issued a bankruptcy notice against the 3rd Defendant, based on the judgment in default of appearance, which was served on the 3rd Defendant on 22 June 2023.

[9] On 20 July 2023, the 3rd Defendant filed an application to set aside the bankruptcy notice. However, there is no available information regarding the outcome of that application.

[10] On 14 June 2024, the 3rd Defendant filed an application to set aside the default judgment obtained by the Plaintiff, claiming that the judgment was irregular because the 3rd Defendant had not been served with the writ. The 3rd Defendant further alleged that his signature on the guarantee agreement dated 7 June 2017 was forged and that he had resigned as a Director of the 1st Defendant on 25 January 2018. This application was dismissed by the learned Magistrate on 29 July 2024.

[11] Consequently, the 3rd Defendant has filed this appeal.

[12] For his appeal, the 3rd Defendant filed a Notice of Application dated 2 October 2024 (Encl 14), seeking to introduce new evidence in the form of a Chemist Report dated 30 September 2024 (Exhibit RCS-A1 of Encl 15). The report is intended to further substantiate the 3rd Defendant's claim that the signature on the guarantee agreement was forged.

The 3rd Defendant's Application To Introduce Fresh Evidence- Under Enclosure 14

[13] To allow fresh evidence to be adduced, the 3rd Defendant must satisfy the Court that the evidence in the form of the Chemist report sought to be adduced in this appeal was not previously available despite reasonable diligence, it would likely influence the decision, and it is credible. These three requirements are cumulative.

See: Order 55 r 7, Rules of 2012; Ladd v. Marshall [1954] 3 All ER 745;Lam Soon Cannery Co v. Hooper & Co; [1965] 2 MLJ 148 (FC); and Lau Foo Sun v. Government of Malaysia; [1970] 2 MLJ 70, FC

See also: Malaysian Civil Procedure Volume I - 2024 Edition, para 55/7/1 to 55/7/3.

[14] As to the requirement on whether the Chemist Report was available to the 3rd Defendant or whether reasonable diligence would not have made it so for the hearing before the learned Magistrate, while the Chemist Report dated 30 September 2024 (RCS-A1m of Encl 15) only came into existence after the Magistrate's decision on 29 July 2024, this delay was a direct result of the 3rd Defendant's own actions or inaction.

[15] The 3rd Defendant did not assert, at any earlier stage, that the signature on the guarantee agreement was forged. Instead, the 3rd Defendant repeatedly acknowledged the judgment debt and never disputed his role as guarantor in prior affidavits or applications.

[16] The 3rd Defendant has effectively admitted, through his conduct and previous statements, that he signed the guarantee agreement. For instance:

(a) In the affidavit affirmed on 17 July 2023 in support of his application to set aside the bankruptcy notice, the 3rd Defendant