NOR MAZLINA BINTI MAT NORWANI 1. ) JIT KAUR A/P SARMUK SINGH 2. ) MOHD TAMIMI BIN MA'AT 3. ) WONG YIK KENN 4. ) ALI BIN OTHMAN

NOR MAZLINA BINTI MAT NORWANI 1. ) JIT KAUR A/P SARMUK SINGH 2. ) MOHD TAMIMI BIN MA'AT 3. ) WONG YIK KENN 4. ) ALI BIN OTHMAN

The Court held the default judgment was irregular for defendants where the affidavit of service did not exhibit the A.R. registered card evidencing receipt and therefore service was not proven under Order 10 r1(1) Rules of Court 2012; accordingly the judgment of 31 March 2011 (entered after assessment of damages) was set aside and the appellants were found to have arguable defences on the merits; parties to bear their own costs.

Citation
BA-12A-33-08/2023 (Mahkamah Tinggi)
Parties
Appellant (third Defendant at Sessions Court): Nor Mazlina bt Mat Nor Wani; Respondent (first Respondent / Plaintiff at Sessions Court): Jit Kaur a/p Sarmuk Singh; Respondent (second Respondent / First Defendant at Sessions Court): Mohd Tamimi bin Mat; Respondent (third Respondent / Second Defendant at Sessions Court): Wong Yik Kenn; Respondent (fourth Respondent / Fourth Defendant at Sessions Court): Ali bin Othman
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 October 2024
Case Number
BA-12A-33-08/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (motor Vehicle Collision / Running Down) / Judgment on Appeal (setting Aside Default Judgment)
Outcome
Appeals allowed in part; decision of Sessions Court dismissing applications to set aside default judgment set aside; judgment dated 31 March 2011 set aside
Legal Topics
Service of Process, Default Judgment, Setting Aside Judgment, Assessment of Damages, Substituted Service, Statutory Notice Under Road Transport Act, Dependency Claim Under Civil Law Act, Limitation (s7(5) Civil Law Act)
Source Language
Malay/English
Civil Procedure Tort Motor Vehicle Law Limitation Law Service of Process Default Judgment Setting Aside Judgment Assessment of Damages +4 more

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Parties

Nor Mazlina bt Mat Nor Wani

Appellant (third Defendant at Sessions Court)

Jit Kaur a/p Sarmuk Singh

Respondent (first Respondent / Plaintiff at Sessions Court)

Mohd Tamimi bin Mat

Respondent (second Respondent / First Defendant at Sessions Court)

Wong Yik Kenn

Respondent (third Respondent / Second Defendant at Sessions Court)

Ali bin Othman

Respondent (fourth Respondent / Fourth Defendant at Sessions Court)

Procedural Posture

Civil Appeal (motor Vehicle Collision / Running Down) / Judgment on Appeal (setting Aside Default Judgment)

Legal Issues

  1. 1 Whether the Sessions Court erred in dismissing applications to set aside default judgment
  2. 2 Whether there was proper service of the Writ and Statement of Claim by A.R. registered post
  3. 3 Whether appellants have a meritorious defence on the merits including limitation under s7(5) Civil Law Act 1956

Ratio Decidendi

The Court held the default judgment was irregular for defendants where the affidavit of service did not exhibit the A.R. registered card evidencing receipt and therefore service was not proven under Order 10 r1(1) Rules of Court 2012; accordingly the judgment of 31 March 2011 (entered after assessment of damages) was set aside and the appellants were found to have arguable defences on the merits; parties to bear their own costs.

Court Disposition

Appeals allowed in part; decision of Sessions Court dismissing applications to set aside default judgment set aside; judgment dated 31 March 2011 set aside

Orders

  • Judgment of 31 March 2011 set aside
  • Each party shall bear its own costs of these appeals