JUDGMENT

Choong Yeow Choy J:

Introduction

[1] This appeal arises from a not uncommon scenario in civil procedure, where a judgment in default has been entered against a defendant, who thereafter seeks to have it set aside.

[2] The Respondents/Plaintiffs in the court below commenced an action against three defendants. The Respondents/Plaintiffs subsequently withdrew their claim against the 1st Defendant. Judgments in default were thereafter entered against the 2nd and 3rd Defendants. The present appeal concerns the application by the 2nd Defendant to set aside the default judgment entered against it. That application was dismissed by the Sessions court with costs of RM3,000.00, giving rise to the present appeal by the appellant (the 2nd Defendant in the court below). The default judgment against the 3rd Defendant is not in issue in this appeal.

[3] The parties in this appeal are referred to as they were in the Sessions court.

The Issues

[4] The issues for determination are twofold: first, whether service of the Writ of Summons on the 2nd Defendant was effected in accordance with the requirements of the Rules of 2012; and second, whether the second defendant has a defence on the merits to the plaintiffs' claim.

The Case For The 2nd Defendant

[5] The 2nd Defendant contended that it "did not receive a copy of the Writ and Statement of Claim from the plaintiffs" and that it "only became aware of the proceedings when a file search was conducted in respect of the 2nd Defendant."

[6] In advancing its defence on the merits contention, the 2nd Defendant relied on two principal grounds: first, that the plaintiffs had failed to plead any cause of action against it; and second, that there was no contractual relationship between the plaintiffs and the 2nd Defendant.

The Plaintiffs' Contentions

[7] The Plaintiffs, on the other hand, submitted that the Sessions court had correctly dismissed the second defendant's application to set aside the default judgment and that the dismissal ought to be upheld, with this appeal accordingly dismissed.

[8] The Plaintiffs denied the second defendant's allegation of non-receipt of the Writ and Statement of Claim, pointing to the following:

(1) that a Notice of Demand was served at the appellant's registered address on 14 December 2022 and again on 30 December 2022, both of which were acknowledged as received by the "company secretary";

(2) that the Writ and Statement of Claim were served on, and acknowledged by, a staff member at the 2nd Defendant's registered office on 22 March 2023; and

(3) that the judgment was served on the registered office by way of Certificate of Posting pursuant to a letter from the plaintiffs' solicitors dated 24 May 2023.

[9] It was therefore the plaintiffs' submission that the 2nd Defendant had sufficient notice and knowledge of the legal proceedings against it, as evidenced by the foregoing instances of service, but nonetheless failed to take any steps in response. The Plaintiffs contended that the default judgment was properly entered pursuant to O 13 r 7 of the Rules of 2012.

[10] As to the 2nd Defendant's assertion of a defence on the merits, the plaintiffs maintained that this claim was wholly without substance, pointing to the documentary evidence before the court which, in their view, conclusively disproved the existence of any tenable defence.

The Applicable Law And Principles

[11] The primary provisions of the Rules of 2012 that are relevant for purposes of this appeal are O 13 rr 7 and 8 of the Rules of 2012 which provide as follows:

Proof of service of writ (O 13 r 7)

7. (1) A judgment shall not be entered against a defendant under this Order unless:

(a) the plaintiff produces a certificate of non-appearance in Form 12; and

(b) either an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant, or the plaintiff produces the writ endorsed by the defendant's solicitor with a statement that he accepts service of the writ on behalf of the defendant.