TOP CAPITAL DEVELOPMENT SDN. BHD. 1. ) SAFEHOME ENGINEERING (M) SDN. BHD. 2. ) SAFE HOME ENGINEERING 3. ) THOO FENG KONG 4. ) THOO YEW KONG 5. ) CHOO CHUNG LOONG

TOP CAPITAL DEVELOPMENT SDN. BHD. 1. ) SAFEHOME ENGINEERING (M) SDN. BHD. 2. ) SAFE HOME ENGINEERING 3. ) THOO FENG KONG 4. ) THOO YEW KONG 5. ) CHOO CHUNG LOONG

The default judgment was regularly entered (valid personal service and admissions); Defendant 3 failed to demonstrate a bona fide prima facie defence or justify the nine‑month delay in seeking relief; Defendant 3 was privy to the contract and had admitted liabilities by signing documents (Promissory Note and Statutory Declaration); therefore the application to set aside the default judgment and to suspend its execution was dismissed with costs.

Citation
BB-A52NCvC-19-02/2022 (Mahkamah Sesyen)
Parties
Plaintiff: TOP CAPITAL DEVELOPMENT SDN. BHD.; Defendant 1: SAFEHOME ENGINEERING (M) SDN. BHD.; Defendant 2: SAFE HOME ENGINEERING; Defendant 3: THOO FENG KONG; Defendant 4: THOO YEW KONG; Defendant 5: CHOO CHUNG LOONG
Court
Sessions Court
Jurisdiction
Malaysia
Judgment Date
21 July 2023
Case Number
BB-A52NCvC-19-02/2022 (Mahkamah Sesyen)
Procedural Posture
Civil Writ of Summons (building/contract Dispute) / Interlocutory Application to Set Aside Default Judgment (decision on Lampiran 18)
Outcome
Application by Defendant 3 (Lampiran 18) dismissed; default judgment dated 24/6/2022 upheld; no stay of execution granted
Legal Topics
Setting Aside Default Judgment, Service of Process, Privity of Contract, Liquidated and Ascertained Damages, Promissory Note, Statutory Declaration, Extension of Time/force Majeure (covid 19), Stay/suspension of Execution
Source Language
Malay/English
Civil Procedure Contract Law Construction Law Company Law Setting Aside Default Judgment Service of Process Privity of Contract Liquidated and Ascertained Damages +4 more

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Parties

TOP CAPITAL DEVELOPMENT SDN. BHD.

Plaintiff

SAFEHOME ENGINEERING (M) SDN. BHD.

Defendant 1

SAFE HOME ENGINEERING

Defendant 2

THOO FENG KONG

Defendant 3

THOO YEW KONG

Defendant 4

CHOO CHUNG LOONG

Defendant 5

Procedural Posture

Civil Writ of Summons (building/contract Dispute) / Interlocutory Application to Set Aside Default Judgment (decision on Lampiran 18)

Legal Issues

  1. 1 Whether the default judgment dated 24/6/2022 was regularly obtained
  2. 2 Whether Defendant 3 filed an affidavit of merits disclosing a prima facie defence
  3. 3 Whether service of writ and statement of claim on Defendant 3 was effective

Ratio Decidendi

The default judgment was regularly entered (valid personal service and admissions); Defendant 3 failed to demonstrate a bona fide prima facie defence or justify the nine‑month delay in seeking relief; Defendant 3 was privy to the contract and had admitted liabilities by signing documents (Promissory Note and Statutory Declaration); therefore the application to set aside the default judgment and to suspend its execution was dismissed with costs.

Court Disposition

Application by Defendant 3 (Lampiran 18) dismissed; default judgment dated 24/6/2022 upheld; no stay of execution granted

Orders

  • Notis Permohonan Defendan Ke-3 (Lampiran 18) dismissed
  • Default judgment dated 24/6/2022 is maintained and execution not stayed