JUDGMENTBY: PEH SWEE CHIN FCJ (DELIVERING THE GROUNDS OF JUDGMENT OF THE COURT)

PEH SWEE CHIN FCJ (DELIVERING THE GROUNDS OF JUDGMENT OF THE COURT) The two appeals above-mentioned arose out of two orders originally made in chambers in the same civil suit, ie the civil suit above-mentioned. We have earlier dismissed the appeal in Civil Appeal No 02-497-92 and at the same time, we have allowed the appeal in Civil Appeal No 02-316-93 with costs in both appeals. We indicated that we would give grounds of decision and we hereby do so.

First, we deal with Civil Appeal No 02-497-92.

In this appeal, the learned judge below upheld the order of the setting aside of a judgment in default of appearance dated 8 July 1986 obtained earlier by the plaintiff [the appellant] against the second defendant [the second respondent] who was sued as guarantor in respect of money lent by the plaintiff to the first defendant [the first respondent]. The second defendant had first applied to set aside the default judgment before the learned registrar and the learned registrar had allowed it to be set aside, and on appeal, the learned judge upheld the learned registrars order as stated above.

In the grounds of judgment of the learned judge, two main reasons were given for upholding the setting aside of the default judgment. The first reason was that the service on the second defendant by way of order for substituted service was bad in law because the order of substituted service was bad in law, and since the service effected in this manner was bad in law, the default judgment was also bad in law. It will be remembered that on this occasion what came up for decision by both the learned registrar and the learned judge was the setting aside of the default judgment, inter alia, but not the order of substituted service or service in pursuance thereof to be set aside. That this is important to bear in mind will become apparent later.

The second reason was that the default judgment was for a sum more than what was actually due, it was therefore also bad in any event.

It would be necessary to recapitulate some brief facts. On 17 October 1995, the writ of summons with a statement of claim herein was filed. On 27 November 1985, an ex parte summons in chambers was filed, asking for an order that the writ of summons, etc, be served by substituted service, etc, on the second defendant by posting a copy of each relevant document on the notice board of the High Court and on a conspicuous part of the last known premises of the second defendant at No 26, Jalan Kia Peng, Kuala Lumpur and also by inserting in one issue of a local newspaper. The supporting affidavit stated that two attempts were made to serve the writ of summons, etc, on 28 October 1985 and 29 October 1985 and on both occasions, the second defendant was not in. Then, on 1 November 1985, the plaintiffs solicitors sent the usual letter of appointment by AR registered post that the process server would call on 6 November 1985 at about 5.30pm for serving the writ of summons, etc. Again, the process server was unsuccessful, hence the process server believed that the second defendant was trying to avoid service. The order of substituted service was then made in terms on 15 January 1986 when the application came up before the learned registrar on that day in the presence of counsel for the plaintiff, Mr Tan Leh Kiah.

The judgment dated 7 August 1986 in default of appearance was then entered as set out below:

Judgment in default of appearance

No appearance having been entered by the second defendant herein, it is

this day adjudged that the second defendant do pay the plaintiff the

sum of RM28,905,648.95 together with interest thereon at the rate of

18%pa from 27 August 1985 until the date of realization and it is

lastly adjudged that the second defendant do pay the plaintiff legal

charges and costs on a solicitor and client basis.

Dated this 8 July 1986.

--Sg