TECHWARE ENTERPRISE SDN BHD ONG CHEE SENG

TECHWARE ENTERPRISE SDN BHD ONG CHEE SENG

The High Court set aside the JID in its entirety because the Defendant demonstrated bona fide applications and produced a plausible meritorious defence raising triable issues that were not considered in the JID—notably potential deduction of LAD under s35 COVID-19 Act 2020 and force majeure/Clause 27 issues—such that the JID was entered without adjudication on merits and would unjustly enrich the Plaintiff; the matter must proceed to full trial and the Defendant given leave to appear and defend.

Citation
PA-12ANCvC-29-06/2023 (Mahkamah Tinggi)
Parties
Appellant/defendant: TECHWARE ENTERPRISE SDN BHD; Respondent/plaintiff: ONG CHEE SENG
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 November 2023
Case Number
PA-12ANCvC-29-06/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (re Hearing Under S27 Courts of Judicature Act 1964) / High Court Appeal Heard on Re Hearing; Matter Remitted to Sessions Court for Trial
Outcome
Appeal allowed; JID set aside; matter remitted for trial
Legal Topics
Liquidated Damages (lad), Force Majeure, Default Judgment (jid), Setting Aside JID, COVID 19 Act S35 Deduction, Implied Terms, Order 13 R8 ROC Variation
Source Language
Malay/English
Contract Civil Procedure Property (sale of Housing) Liquidated Damages (lad) Force Majeure Default Judgment (jid) Setting Aside JID COVID 19 Act S35 Deduction +2 more

Case Brief

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Parties

TECHWARE ENTERPRISE SDN BHD

Appellant/defendant

ONG CHEE SENG

Respondent/plaintiff

Procedural Posture

Civil Appeal (re Hearing Under S27 Courts of Judicature Act 1964) / High Court Appeal Heard on Re Hearing; Matter Remitted to Sessions Court for Trial

Legal Issues

  1. 1 Whether the Judgment in Default (JID) was regular and enforceable
  2. 2 Whether the Appellant has a meritorious defence on the merits (calculation of LAD, Section 35 COVID-19 Act, Force Majeure/Clause 27, third party delay)

Ratio Decidendi

The High Court set aside the JID in its entirety because the Defendant demonstrated bona fide applications and produced a plausible meritorious defence raising triable issues that were not considered in the JID—notably potential deduction of LAD under s35 COVID-19 Act 2020 and force majeure/Clause 27 issues—such that the JID was entered without adjudication on merits and would unjustly enrich the Plaintiff; the matter must proceed to full trial and the Defendant given leave to appear and defend.

Court Disposition

Appeal allowed; JID set aside; matter remitted for trial

Orders

  • Appeal allowed with costs in the cause
  • Judgment in Default is set aside in its entirety