Moo Cher Hau Ng Hui Hoon

Moo Cher Hau Ng Hui Hoon

Plaintiff failed to prove the date of receipt of the default judgment so the 30-day limitation did not bar the defendant's application; substituted service was properly ordered given the defendant no longer resided at the last known address; the defendant produced documentary evidence creating a prima facie meritorious defence (alternative payments from a law firm, deposit and real estate transaction narrative) which warrants a full trial; accordingly the court exercised its discretion to set aside the default judgment and allow the application with costs.

Citation
JA-A72NCC-685-09/2021 (Mahkamah Majistret)
Parties
Plaintiff: Moo Cher Hau; Defendant: Ng Hui Hoon
Court
Magistrates' Court
Jurisdiction
Malaysia
Judgment Date
21 June 2022
Case Number
JA-A72NCC-685-09/2021 (Mahkamah Majistret)
Procedural Posture
Civil (debt/recovery) / Interlocutory (application to Set Aside Default Judgment)
Outcome
Application allowed; default judgment set aside
Legal Topics
Setting Aside Judgment in Default, Substituted Service, Service of Process, Delay and Limitation for Interlocutory Applications, Merits Assessment of Defence
Source Language
Malay/English
Civil Procedure Contract Law Property Law Setting Aside Judgment in Default Substituted Service Service of Process Delay and Limitation for Interlocutory Applications Merits Assessment of Defence

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Parties

Moo Cher Hau

Plaintiff

Ng Hui Hoon

Defendant

Procedural Posture

Civil (debt/recovery) / Interlocutory (application to Set Aside Default Judgment)

Legal Issues

  1. 1 Whether the defendant's application was filed out of time under Order 42 r.13 Rules of Court 2012
  2. 2 Whether the default judgment was regular or irregular
  3. 3 Whether substituted service was valid in the circumstances

Ratio Decidendi

Plaintiff failed to prove the date of receipt of the default judgment so the 30-day limitation did not bar the defendant's application; substituted service was properly ordered given the defendant no longer resided at the last known address; the defendant produced documentary evidence creating a prima facie meritorious defence (alternative payments from a law firm, deposit and real estate transaction narrative) which warrants a full trial; accordingly the court exercised its discretion to set aside the default judgment and allow the application with costs.

Court Disposition

Application allowed; default judgment set aside

Orders

  • Defendant's application to set aside the default judgment is allowed
  • Costs awarded to defendant in the sum of RM1000.00