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JUDGMENT
[Encl 18 ]
[1] This enclosure was the application by the Defendant for the Judgement in Default that was entered against them on 27 March 2017 ("JID") is set aside, and the Defendant was given time to file their Statement of Defence.
[2] I have heard the oral submissions by both parties and dismissed the application.
[3] Aggrieved, this appeal lies.
The Background Facts
[4] The claim by the Plaintiff against the Defendant arose from 2 projects; Project Bukit Raja and Project Farmosa. The facts as follows:
i. Bukit Raja
- For the Bukit Raja Project, the Defendant was appointed by the Plaintiff to build 3 tube wells in Bukit Raja Klang for the contract amount of RM160,000 and not inclusive the GST.
- The project was for period between 30 July 2015-30 August 2015 and the delay in completing the project within this period, the Plaintiff is entitled to claim damages on RM500 daily basis
-The Bukit Raja project involves 2 contracts. The first is in relation to the above which was stipulated under Letter of Award dated 30 July 2015;
- After the 1st contract that was entered into, the Defendant through their Site Engineer cum the project manager, En C S Lee ("C S Lee") had requested the Plaintiff to supply labour to the site, to buy the materials, to engage the backhoe as well as the transportation for the 1st and 2nd tube wells. These requests were considered as 2nd Contract to the Plaintiff.
-C S Lee had confirmed with the Plaintiff, the value involved for the 2nd contract was RM10,346.63 through his signature and the Defendant's stamping on the site record.
- On the last date of the 1st Contract, only 1st tube well was constructed. However, the Defendant was allowed to continue the work subject to the imposition of RM500 as liquidated damages counted daily.
- Although there was agreement by the Defendant through C S Lee for the continuation of the drilling work, but the project yet completed;
- On 1 October 2015, in mitigating its losses, the agreement between them was terminated.
- Due to the delay as well as the 2nd contract entered into, the Plaintiff was claiming against the Defendant RM15,500 as liquidated damages plus the RM10,346.63 being the cost for the 2nd contract.
ii. Farmosa
- For the Farmosa Project, the Plaintiff was instead appointed by the Defendant for drilling for 100m depth for Alluvium or 100m depth for Rock Formation tube well of finishing 6" diameter lined with uPVC pipe class 'D' casing and slotted screens including flushing, cleaning and well-head.
- A certificate of hand over was signed by both parties on 19 September 2015 which contains the information pertaining to the completion of the job by the Plaintiff on 17 September 2015; the said job had passed the testing and commissioning and the Defendant had checked on the work undertaken by the Plaintiff
- In lieu to that, the Plaintiff had issued an invoice claiming RM25,000 and it was received by the Defendant on 23 September 2015. As at 25 October 2016, the Defendant had paid the Plaintiff on certain sum and leaving the remaining RM21,530 being the subject matter of the claim.
[5] The Writ and Statement of Claim containing all the above pleaded fact by the Plaintiff was served to the Defendant on 13 January 2017 personally and an affidavit of service was thereafter filed. Due to the non-appearance by the Defendant, the Plaintiff had filed a certificate confirming that and followed by the JID.
The Application
[6] In supporting the application in encl 18, the Defendant had listed down the following reasons to support the view that they had merits to be considered by this Court:
i. The Defendant was only aware of the JID when applying for the facility with the bank and he was informed that his name was blacklisted by CTOS;
ii. For Bukit Raja Project: the demobilization of the items in this site was due to the stealing of part of the items that was belong to the Defendant and this was informed to the Plaintiff;
iii. The Plaintiff had failed in making t
