SS PRECAST SDN. BHD. (Co. No. 971510-K) 1. SERBA DINAMIK GROUP BHD. & 9 OTHERS

SS PRECAST SDN. BHD. (Co. No. 971510-K) 1. SERBA DINAMIK GROUP BHD. & 9 OTHERS

The court validated the hearing by Skype because counsel for the parties consented and, alternatively, the court had discretion under the Rules of Court and constitutional access-to-justice principles to order VC; unaffirmed affidavits were permitted due to PCIDR provided counsel gave undertakings to affirm and refile after PCIDR lapses; a conditional ad interim stay of execution was justified to preserve the status quo pending merits; the interim stay order did not finally dispose of rights and was not immediately appealable.

Citation
BA-22C-6-03/2020 (Mahkamah Tinggi)
Parties
Plaintiff: SS PRECAST SDN. BHD.; 1st Defendant: Serba Dinamik Group Bhd; 2nd Defendant: 2nd Defendant; 3rd Defendant: 3rd Defendant; 4th Defendant: 4th Defendant; 5th Defendant: 5th Defendant; 6th Defendant: 6th Defendant
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 April 2020
Case Number
BA-22C-6-03/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Suit (applications to Set Aside Default Judgment; Mareva/freezing Application) / Interim Applications Heard by Video Conference; Ad Interim Stay Granted; Merits to Be Determined
Outcome
Ad interim stay of execution of default judgment granted conditionally; VC hearing validated; leave granted to rely on unaffirmed affidavits with counsel undertakings; merits of set-aside applications to be determined.
Legal Topics
Video Conferencing in Court, Default Judgment, Mareva Injunction / Freezing Order, Unaffirmed Affidavits, Counsel's Undertaking, Access to Justice, Estoppel, Appealability of Interim Orders
Source Language
Malay/English
Civil Procedure Constitutional Law Company and Insolvency Law Evidence Law Video Conferencing in Court Default Judgment Mareva Injunction / Freezing Order Unaffirmed Affidavits +4 more

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Parties

SS PRECAST SDN. BHD.

Plaintiff

Serba Dinamik Group Bhd

1st Defendant

2nd Defendant

2nd Defendant

3rd Defendant

3rd Defendant

4th Defendant

4th Defendant

5th Defendant

5th Defendant

6th Defendant

6th Defendant

Procedural Posture

Civil Suit (applications to Set Aside Default Judgment; Mareva/freezing Application) / Interim Applications Heard by Video Conference; Ad Interim Stay Granted; Merits to Be Determined

Legal Issues

  1. 1 Whether hearing notices of application by Skype/VC was valid and binding on parties
  2. 2 Whether unaffirmed affidavits could be relied on during PCIDR and under what conditions
  3. 3 Whether court had power to grant an ad interim stay of execution of a default judgment pending set aside applications

Ratio Decidendi

The court validated the hearing by Skype because counsel for the parties consented and, alternatively, the court had discretion under the Rules of Court and constitutional access-to-justice principles to order VC; unaffirmed affidavits were permitted due to PCIDR provided counsel gave undertakings to affirm and refile after PCIDR lapses; a conditional ad interim stay of execution was justified to preserve the status quo pending merits; the interim stay order did not finally dispose of rights and was not immediately appealable.

Court Disposition

Ad interim stay of execution of default judgment granted conditionally; VC hearing validated; leave granted to rely on unaffirmed affidavits with counsel undertakings; merits of set-aside applications to be determined.

Orders

  • All forms of execution of the default judgment stayed pending disposal of Encs.12 and 13 provided D1–D6 deposit RM500,000 by 5.00 pm on 8.5.2020 into a stakeholder interest-bearing account in the sole name of the Plaintiff's solicitors
  • Encs.12 and 13 (applications to set aside default judgment) fixed for clarification/decision on 29.5.2020