Heo Joon Siong 1. ) Yap Kong Yeaw 2. ) Dato Sri Ngu Tieng Ung

Heo Joon Siong 1. ) Yap Kong Yeaw 2. ) Dato Sri Ngu Tieng Ung

Although the default judgment was irregular due to failure to exhibit the AR card, ex debito justitiae does not automatically entitle the Second Defendant to relief; his stated defences lack merit and he failed to provide cogent reasons for delay under Order 42 r13, therefore the application to set aside the default judgment is dismissed and costs awarded to the Plaintiff.

Citation
BA-22NCC-151-12/2022 (Mahkamah Tinggi)
Parties
Plaintiff: HEO JOON SIONG; First Defendant: YAP KONG YEW; Second Defendant: DATO' SRI NGU TIENG UNG
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 September 2023
Case Number
BA-22NCC-151-12/2022 (Mahkamah Tinggi)
Procedural Posture
Civil: Recovery of Loan and Application to Set Aside Default Judgment / High Court Judgment on Application to Set Aside Default Judgment (enclosure 13)
Outcome
Application in Enclosure 13 to set aside default judgment dismissed; costs RM5,000 awarded to Plaintiff; application in Enclosure 17 dismissed with no order as to costs.
Legal Topics
Default Judgment, Setting Aside Judgment, Service of Originating Process, Ex Debito Justitiae Rule, Order 42 Rule 13 Compliance
Source Language
Malay/English
Civil Procedure Contract Guarantee Service of Process Default Judgment Setting Aside Judgment Service of Originating Process Ex Debito Justitiae Rule +1 more

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Parties

HEO JOON SIONG

Plaintiff

YAP KONG YEW

First Defendant

DATO' SRI NGU TIENG UNG

Second Defendant

Procedural Posture

Civil: Recovery of Loan and Application to Set Aside Default Judgment / High Court Judgment on Application to Set Aside Default Judgment (enclosure 13)

Legal Issues

  1. 1 Whether the default judgment of 15 March 2023 was irregular or regular
  2. 2 Whether the ex debito justitiae rule obliges setting aside an irregular judgment
  3. 3 Whether the Second Defendant has a defence on the merits

Ratio Decidendi

Although the default judgment was irregular due to failure to exhibit the AR card, ex debito justitiae does not automatically entitle the Second Defendant to relief; his stated defences lack merit and he failed to provide cogent reasons for delay under Order 42 r13, therefore the application to set aside the default judgment is dismissed and costs awarded to the Plaintiff.

Court Disposition

Application in Enclosure 13 to set aside default judgment dismissed; costs RM5,000 awarded to Plaintiff; application in Enclosure 17 dismissed with no order as to costs.

Orders

  • Enclosure 13 dismissed
  • Costs awarded to Plaintiff RM5,000