Tseu Fui Loong 1. Optimax Healthcare Services Sdn Bhd 2. Tan Boon Hock

Tseu Fui Loong 1. Optimax Healthcare Services Sdn Bhd 2. Tan Boon Hock

The JID was irregular and entered prematurely because the writ was shown by the plaintiffs' own affidavit to have been delivered on 13.1.2020, making the last day for appearance 26.1.2020, but the Certificate of Non-Appearance (dated incorrectly) and JID were recorded on 21–22.1.2020 before expiry of the 14‑day period; the Certificate of Non-Appearance also contained a manifestly incorrect posting date, rendering the JID irregular and set aside as of right ex debito justitiae without regard to merits.

Citation
WA-12ANCC-67-07/2020 (Mahkamah Tinggi)
Parties
Appellant / 2nd Defendant: TSEU FUI LOONG; Respondent / Plaintiff: Optimax Healthcare Services Sdn Bhd; Respondent / Plaintiff: Tan Boon Hock
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 December 2020
Case Number
WA-12ANCC-67-07/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (rehearing) From Sessions Court / Appeal Against Dismissal of Application to Set Aside Judgment in Default of Appearance
Outcome
Appeal allowed; judgment in default of appearance and Sessions Court order dated 17.7.2020 set aside; matter remitted to Sessions Court for case management; costs awarded to appellant
Legal Topics
Service of Process, Default Judgment, Setting Aside Judgment, Rules of Court Compliance, Interpretation Act S.12, Natural Justice
Source Language
Malay/English
Civil Procedure Commercial Litigation Service of Process Default Judgment Setting Aside Judgment Rules of Court Compliance Interpretation Act S.12 Natural Justice

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Parties

TSEU FUI LOONG

Appellant / 2nd Defendant

Optimax Healthcare Services Sdn Bhd

Respondent / Plaintiff

Tan Boon Hock

Respondent / Plaintiff

Procedural Posture

Civil Appeal (rehearing) From Sessions Court / Appeal Against Dismissal of Application to Set Aside Judgment in Default of Appearance

Legal Issues

  1. 1 Whether service by prepaid A.R. registered post required proof of personal receipt or acknowledgement card
  2. 2 Whether the judgment in default was irregular because entered prematurely before expiry of time for appearance
  3. 3 Whether a defective Certificate of Non-Appearance renders a JID irregular and vulnerable to set aside as of right

Ratio Decidendi

The JID was irregular and entered prematurely because the writ was shown by the plaintiffs' own affidavit to have been delivered on 13.1.2020, making the last day for appearance 26.1.2020, but the Certificate of Non-Appearance (dated incorrectly) and JID were recorded on 21–22.1.2020 before expiry of the 14‑day period; the Certificate of Non-Appearance also contained a manifestly incorrect posting date, rendering the JID irregular and set aside as of right ex debito justitiae without regard to merits.

Court Disposition

Appeal allowed; judgment in default of appearance and Sessions Court order dated 17.7.2020 set aside; matter remitted to Sessions Court for case management; costs awarded to appellant

Orders

  • The judgment in default of appearance dated 22.1.2020 is set aside
  • The Order of the Sessions Court dated 17.7.2020 is set aside