1. ) LIM CHEE YANG 2. ) Tai Foo Hin 3. ) Tan Eng Hock 4. ) Kang Huat Chai 5. ) Wong Huey Wen 6. ) CAWANGAN DAP, KOTA TINGGI NG SING CHONG

1. ) LIM CHEE YANG 2. ) Tai Foo Hin 3. ) Tan Eng Hock 4. ) Kang Huat Chai 5. ) Wong Huey Wen 6. ) CAWANGAN DAP, KOTA TINGGI NG SING CHONG

Applying Order 35(2) and the authorities, the court found the absence was attributable to counsel's negligence rather than an excusable, contemporaneous incapacity; the three‑month interval between alleged COVID infection and trial undermined the excuse, plaintiffs' failure to verify hearing dates via the court e‑filing/CMS was unreasonable, and allowing the application would prejudice the defendant; accordingly the application to set aside was dismissed and the defendant's counterclaim was allowed to be assessed with costs awarded to defendant.

Citation
JH-A72NCvC-5-12/2020 (Mahkamah Majistret)
Parties
Plaintiff: LIM CHEE YANG; Plaintiff: TAI FOO HIN; Plaintiff: TAN ENG HOCK; Plaintiff: KANG HUAT CHAI; Plaintiff: WONG HUEY WEN; Plaintiff: CAWANGAN DAP KOTA TINGGI; Defendant: NG SING CHONG
Court
Magistrates' Court
Jurisdiction
Malaysia
Judgment Date
4 August 2022
Case Number
JH-A72NCvC-5-12/2020 (Mahkamah Majistret)
Procedural Posture
Civil Litigation (debt Recovery and Counterclaim) / Application Under Order 35(2) to Set Aside Judgment in Absence; Decision on Application and Counterclaim
Outcome
Application to set aside default judgment dismissed; defendant's counterclaim allowed to be assessed; costs awarded to defendant.
Legal Topics
Setting Aside Default Judgment, Costs, Failure to Attend Trial, Counterclaim, Conduct of Counsel
Source Language
Malay/English
Civil Procedure Civil Litigation Setting Aside Default Judgment Costs Failure to Attend Trial Counterclaim Conduct of Counsel

Case Brief

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Parties

LIM CHEE YANG

Plaintiff

TAI FOO HIN

Plaintiff

TAN ENG HOCK

Plaintiff

KANG HUAT CHAI

Plaintiff

WONG HUEY WEN

Plaintiff

CAWANGAN DAP KOTA TINGGI

Plaintiff

NG SING CHONG

Defendant

Procedural Posture

Civil Litigation (debt Recovery and Counterclaim) / Application Under Order 35(2) to Set Aside Judgment in Absence; Decision on Application and Counterclaim

Legal Issues

  1. 1 Whether the default judgment given in the absence of plaintiffs and their counsel should be set aside under Order 35(2) Kaedah‑Kaedah Mahkamah 2012
  2. 2 Whether the absence was deliberate or excusable (claimed COVID‑19 infection)
  3. 3 Whether the plaintiffs suffered prejudice and prospects of success at trial

Ratio Decidendi

Applying Order 35(2) and the authorities, the court found the absence was attributable to counsel's negligence rather than an excusable, contemporaneous incapacity; the three‑month interval between alleged COVID infection and trial undermined the excuse, plaintiffs' failure to verify hearing dates via the court e‑filing/CMS was unreasonable, and allowing the application would prejudice the defendant; accordingly the application to set aside was dismissed and the defendant's counterclaim was allowed to be assessed with costs awarded to defendant.

Court Disposition

Application to set aside default judgment dismissed; defendant's counterclaim allowed to be assessed; costs awarded to defendant.

Orders

  • Application under Order 35(2) dismissed
  • Defendant's counterclaim allowed and damages to be assessed