LIAU TAI WAI DAVID [PASPORT SINGAPURA NO. K0933505K] [PASPORT SINGAPURA (LAMA) E4443774L OUN SHAN SHAN (NRIC NO: 840119-01-5122)

LIAU TAI WAI DAVID [PASPORT SINGAPURA NO. K0933505K] [PASPORT SINGAPURA (LAMA) E4443774L OUN SHAN SHAN (NRIC NO: 840119-01-5122)

The Magistrate erred by rejecting the solicitor-affirmed affidavit where the affidavit contained non-contentious facts within the solicitor's knowledge and was authorised; however the original default judgment was regular, the defendant did not disclose a prima facie meritorious defence, and the application to set aside was filed well beyond the mandatory 30-day period without satisfactory explanation; accordingly the Magistrate's order setting aside the default judgment was overturned and the appeal allowed.

Citation
JA-11BNCC-1-03/2019 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Liau Tai Wai David; Respondent/defendant: Oun Shan Shan
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 July 2019
Case Number
JA-11BNCC-1-03/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Magistrate Decision / High Court Judgment on Appeal
Outcome
Appeal allowed; Magistrate's order setting aside the Judgment in Default of Appearance overturned and default judgment reinstated
Legal Topics
Setting Aside Judgment in Default, Solicitor Affirmed Affidavits, Delay and Extension of Time, Friendly Loan
Source Language
Malay/English
Civil Procedure Contract Law Legal Ethics Bankruptcy Law Setting Aside Judgment in Default Solicitor Affirmed Affidavits Delay and Extension of Time Friendly Loan

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Parties

Liau Tai Wai David

Appellant/plaintiff

Oun Shan Shan

Respondent/defendant

Procedural Posture

Civil Appeal From Magistrate Decision / High Court Judgment on Appeal

Legal Issues

  1. 1 Whether a solicitor may affirm an affidavit in opposition to an application to set aside a default judgment
  2. 2 Whether the defendant disclosed a prima facie defence on the merits sufficient to set aside a regular default judgment
  3. 3 Whether the defendant satisfactorily explained the delay in applying to set aside the default judgment beyond the 30-day limit

Ratio Decidendi

The Magistrate erred by rejecting the solicitor-affirmed affidavit where the affidavit contained non-contentious facts within the solicitor's knowledge and was authorised; however the original default judgment was regular, the defendant did not disclose a prima facie meritorious defence, and the application to set aside was filed well beyond the mandatory 30-day period without satisfactory explanation; accordingly the Magistrate's order setting aside the default judgment was overturned and the appeal allowed.

Court Disposition

Appeal allowed; Magistrate's order setting aside the Judgment in Default of Appearance overturned and default judgment reinstated

Orders

  • Appeal allowed
  • Order setting aside the Judgment in Default of Appearance (Enclosure 10) set aside and default judgment reinstated