Ooi Chee Wee (NRIC No. 720720-07-5103) Lee Kok Kee (NRIC No. 760819-14-6027) 1. Sunray Nursery Sdn Bhd (Company No. 1163276-X) 2. Lee Kok Kee (NRIC No. 760819-14-6027) Ooi Chee Wee (NRIC No. 720720-07-5103)

Ooi Chee Wee (NRIC No. 720720-07-5103) Lee Kok Kee (NRIC No. 760819-14-6027) 1. Sunray Nursery Sdn Bhd (Company No. 1163276-X) 2. Lee Kok Kee (NRIC No. 760819-14-6027) Ooi Chee Wee (NRIC No. 720720-07-5103)

Where there is credible evidence that the named defendant did not actually receive the sealed judgment (e.g., proof of absence abroad at the time of A.R. acknowledgement), there is no 'receipt' for the purpose of O 42 r 13 and time does not run; although service of writ by A.R. post to last known address is prima facie valid, a regularly obtained default judgment may nonetheless be set aside if the defendant demonstrates a bona fide prima facie defence worthy of trial. The court applied these rules to find no actual service of the judgment for limitation purposes and to allow setting aside on the basis of a prima facie defence.

Citation
PA-12ANCVC-18-05/2019 (Mahkamah Tinggi)
Parties
Appellant / 2nd Defendant: Lee Kok Kee; Respondent / Plaintiff: Ooi Chee Wee; 1st Defendant: Sunray Nursery Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 January 2020
Case Number
PA-12ANCVC-18-05/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court / Hearing on Application to Set Aside Judgment in Default and Leave to Enter Appearance Out of Time
Outcome
Appeal allowed; judgment in default set aside
Legal Topics
Setting Aside Judgment in Default, Service by A.r. Registered Post, Regular Vs Irregular Judgment, Garnishee Proceedings, Prima Facie Defence
Source Language
Malay/English
Civil Procedure Service of Process Contract Law Enforcement of Judgments Setting Aside Judgment in Default Service by A.r. Registered Post Regular Vs Irregular Judgment Garnishee Proceedings +1 more

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Parties

Lee Kok Kee

Appellant / 2nd Defendant

Ooi Chee Wee

Respondent / Plaintiff

Sunray Nursery Sdn Bhd

1st Defendant

Procedural Posture

Civil Appeal From Sessions Court / Hearing on Application to Set Aside Judgment in Default and Leave to Enter Appearance Out of Time

Legal Issues

  1. 1 Whether the application to set aside the default judgment was filed within time or delay was excused
  2. 2 Whether the default judgment was regular or irregular having regard to service of the writ and judgment
  3. 3 Whether the appellant established a bona fide prima facie defence on the merits

Ratio Decidendi

Where there is credible evidence that the named defendant did not actually receive the sealed judgment (e.g., proof of absence abroad at the time of A.R. acknowledgement), there is no 'receipt' for the purpose of O 42 r 13 and time does not run; although service of writ by A.R. post to last known address is prima facie valid, a regularly obtained default judgment may nonetheless be set aside if the defendant demonstrates a bona fide prima facie defence worthy of trial. The court applied these rules to find no actual service of the judgment for limitation purposes and to allow setting aside on the basis of a prima facie defence.

Court Disposition

Appeal allowed; judgment in default set aside

Orders

  • Appeal allowed
  • Judgment in default entered on 12.11.2018 set aside