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2026 MarsdenLR 476
HIGH COURT MALAYA JOHOR BAHRU
WONG MEE LING, J
D-SAFE FORCE SDN BHD – Appellant
Versus
LAI WOON FATT & ANOR – Respondent
[Civil Appeal No: JA-12ANCVC-30-12/2023]
A judgment obtained after a full trial will not be set aside if the party's non-participation was the result of their own inaction rather than accident. Furthermore, the doctrine of res judicata and the rule of binding pleadings prevent the relitigation of decided issues and the introduction of new claims.
Headnote:(A) Rules of Court 2012 - Order 35 Rule 2 - Application to set aside judgment obtained after full trial - Discretionary power of the court - Factors for consideration include reasons for absence, whether absence was deliberate, promptness of application, and existence of a meritorious defence (Paras 16, 17, 29).
(B) Res judicata - Doctrine of finality in litigation - Parties are estopped from relitigating issues already determined by a court of competent jurisdiction - Public policy interest in preventing multiplicity of proceedings and inconsistent decisions (Paras 55, 57, 58).
(C) Pleadings - Parties are bound by their pleadings - Evidence not pleaded cannot be raised for the first time in submissions or on appeal - Absence of legal representation due to failure to appoint solicitor despite multiple adjournments constitutes lack of diligence rather than mistake or accident (Paras 33, 48, 49).
Facts of the case:
The appellant appealed against a decision dismissing an application to set aside a judgment delivered after a full trial. During the trial, the appellant was unrepresented and failed to call witnesses despite being granted multiple adjournments to appoint legal counsel. The appellant sought to set aside the judgment citing issues with previous legal representation, while the respondent contended that sufficient time had been provided and the judgment was regular.
Findings of Court:
The court found the application to set aside the judgment was meritless as the appellant’s failure to present a case was a result of their own lackadaisical conduct rather than mistake or accident. Furthermore, the court held that it was functus officio as the initial judgment had already been affirmed on appeal by a superior court. The issues raised were found to be subject to res judicata as they had been fully ventilated in earlier proceedings.
Issues: Whether the appellant showed sufficient cause to justify setting aside a judgment obtained after a full trial, and whether a meritorious defence existed.
Ratio Decidendi: A court will not set aside a judgment obtained after trial where the party's absence or failure to present a case was deliberate or resulted from their own inaction. The principle of res judicata prevents the reopening of issues already adjudicated, and parties are strictly bound by their pleadings, precluding the introduction of new points on appeal.
Result: Appeal dismissed with costs.
| Table of Content |
|---|
| 1. procedural history and factual context of the litigation. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 2. criteria for setting aside a judgment obtained after trial. (Para 15 , 16 , 17 , 18 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39) |
| 3. functus officio doctrine prevents setting aside final judgments. (Para 40 , 41 , 42) |
| 4. parties are strictly bound by their pleadings. (Para 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53) |
| 5. application of res judicata to prevent relitigation of issues. (Para 54 , 55 , 56 , 57 , 58 , 59) |
| 6. final order dismissing the appeal based on lack of merit. (Para 60 , 61 , 62 , 63 , 64 , 65) |
JUDGMENT
Introduction
[1] This is an appeal by the Appellant against the decision of the learned Sessions Court Judge ("SCJ") dated 18 December 2023 who dismissed the Appellant's application to set aside the judgment dated 29 August 2023 obtained after full trial.
[2] Having read the grounds of judgment of SCJ, Appeal Records, written submissions of both Parties and after having heard oral submissions of both Parties, I have dismissed the Appellant's appeal with costs of RM5,000.00 to be paid by the Appellant to the Respondents within fourteen (14) days of this Order.
[3] Below are my grounds of the decision.
Background
[4] The background facts in this application are gathered from the cause papers and submissions of the Parties.
[5] The Appellant engages in the provision of security and/or security services and possessed multiple branches in Malaysia.
[6] On 8 January 2020, one of the branches of the Appellant was appointed by Kensington Strata Management Sdn Bhd (the "Manager"), acting in the capacity as the Manager of Persatuan Pemilik Rumah Bina Park, to render security services with the Bina Park housing area.
[7] The Respondents commenced a civil action against the Appellant arising from alleged losses suffered following a break-in incident on 5 August 2020 at their property. The Respondents claimed an amount of RM528,124.45 from the Appellant.
[8] The matter proceeded to full trial on 26 July 2023 in the Sessions Court of Johor Bahru. The Appellant was unrepresented and did not call any witnesses.
[9] The SCJ refused the Appellant's request for adjournment and proceeded with the trial on 26 July 2023 under O 35 subrule 1(2) of Rules of Court 2012 ("ROC 2012").
[10] Judgment was delivered on 29 August 2023 in favour of the Respondents and awarded for the sum of RM393,383.45 being special damages, RM50,000.00 being general damages, RM20,000.00 being aggravated damages and costs of RM15,000.00.
[11] The Appellant subsequently filed an appeal against the said decision on 13 March 2023 (the "First Appeal") and the appeal was dismissed by the High Court No 4 of Johor Bahru on 18 March 2024.
[12] On 2 October 2023, the Appellant filed an application to set aside the said judgment pursuant to O 35 r 2 of ROC 2012, which was dismissed by SCJ on 18 December 2023.
[13] Aggrieved by the said decision, the Appellant filed an appeal to this Court.
Issues To Be Determined
[14] The primary issues before this Court are as follows:
(a) whether the Appellant had shown sufficient cause to justify setting aside the judgment obtained after full trial; and
(b) whether the Appellant had demonstrated a meritorious defence.
Court Analysis And Findings
(a) Whether The Appellant Had Shown Sufficient Cause To Justify Setting Aside The Judgment Obtained After Full Trial
[15] The application filed by the Appellant to set aside the judgment dated 18 December 2023 is pursuant to O 32 r 2 of ROC 2012.
[16] Order 35 r 2 of the ROC 2012 confers discretion upon the Court to set aside a judgment entered after trial in the absence of a party.
[17] In exercising such discretion, the Court is required to consider, inter alia:
(a) the reason for the absence;
(b) whether the absence was deliberate;
(c) the promptness of the application; and
(d) whether there exists a defence on merits.
[18] It is undisputed that the Appellant did not
