JAMES THEOPHILUS FREDERICKS (NRIC NO: 480706-05-5069) 1. ZAINUDDIN BIN BAHARUDDIN (NRIC NO: 600908-10-6497) …1st DEFENDANT 2. PELOPOR DINAMIK SDN BHD (COMPANY NO.: 314189-V) …2nd DEFENDANT

JAMES THEOPHILUS FREDERICKS (NRIC NO: 480706-05-5069) 1. ZAINUDDIN BIN BAHARUDDIN (NRIC NO: 600908-10-6497) …1st DEFENDANT 2. PELOPOR DINAMIK SDN BHD (COMPANY NO.: 314189-V) …2nd DEFENDANT

The originating summons was dismissed because the applicant failed to prove that the Judgment in Default was null and void for illegality such that the Court should invoke its inherent jurisdiction under Badiaddin; limitation is procedural and was not pleaded (constituting waiver/estoppel), the circumstances did not amount to the exceptional defiance of a substantive statutory prohibition required to set aside a regular high court judgment, and the proper remedies lay in the original suit or by appeal; accordingly the inherent jurisdiction was not exercised to disturb the JID.

Citation
WA-24NCC-99-02/2020 (Mahkamah Tinggi)
Parties
Plaintiff: James Theophilus Fredericks; 1st Defendant: Zainuddin bin Baharuddin; 2nd Defendant: Pelopor Dinamik Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
8 September 2020
Case Number
WA-24NCC-99-02/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons to Set Aside Judgment in Default Under Order 42 R 13 and Order 92 R 4 ROC / Final Decision / Judgment on Originating Summons
Outcome
Originating Summons dismissed
Legal Topics
Setting Aside Judgment in Default, Pleading Limitation, Badiaddin Principle (illegality Exception), Standing (locus Standi), Abuse of Process, Res Judicata, Costs
Source Language
Malay/English
Civil Procedure Company Law Inherent Jurisdiction Limitation Law Insolvency / Winding Up Setting Aside Judgment in Default Pleading Limitation Badiaddin Principle (illegality Exception) +4 more

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Parties

James Theophilus Fredericks

Plaintiff

Zainuddin bin Baharuddin

1st Defendant

Pelopor Dinamik Sdn Bhd

2nd Defendant

Procedural Posture

Originating Summons to Set Aside Judgment in Default Under Order 42 R 13 and Order 92 R 4 ROC / Final Decision / Judgment on Originating Summons

Legal Issues

  1. 1 Whether the Judgment in Default dated 1 Nov 2019 is null and void for illegality under the Limitation Act 1953
  2. 2 Whether applicant (James) has locus standi to apply to set aside the JID
  3. 3 Whether delay in bringing the application outside Order 42 r 13 time limit is fatal

Ratio Decidendi

The originating summons was dismissed because the applicant failed to prove that the Judgment in Default was null and void for illegality such that the Court should invoke its inherent jurisdiction under Badiaddin; limitation is procedural and was not pleaded (constituting waiver/estoppel), the circumstances did not amount to the exceptional defiance of a substantive statutory prohibition required to set aside a regular high court judgment, and the proper remedies lay in the original suit or by appeal; accordingly the inherent jurisdiction was not exercised to disturb the JID.

Court Disposition

Originating Summons dismissed

Orders

  • Enclosure (1) dismissed
  • Plaintiff James Theophilus Fredericks to pay costs of RM7,500.00 (subject to 4% allocator) to the 1st Defendant Zainuddin bin Baharuddin