ZAIK BINA SDN. BHD. 1. TYZAYU SDN. BHD. 2. ZUHIRMAN BIN MD. ZAKID 3. MOHAMAD FARIZ BIN ABDULHAMID

ZAIK BINA SDN. BHD. 1. TYZAYU SDN. BHD. 2. ZUHIRMAN BIN MD. ZAKID 3. MOHAMAD FARIZ BIN ABDULHAMID

Default judgment dated 7.09.2017 was regular because substituted service was ordered and properly effected; the second and third defendants had actual knowledge on 10.02.2019 but filed their application only on 10.11.2019 without any satisfactory explanation or application for extension of time; furthermore their draft defence amounted to bare denial and did not disclose a meritorious triable issue; accordingly the application to set aside the default judgment is dismissed with costs RM4,000.

Citation
GS 22NCvC30-04/2017 (Mahkamah Tinggi)
Parties
Plaintiff: ZAIK BINA SDN. BHD.; First Defendant: TYZAYU SDN. BHD.; Second Defendant: ZUHIRMAN BIN MD. ZAKID; Third Defendant: MOHAMAD FARIZ BIN ABDUL HAMID
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 November 2020
Case Number
GS 22NCvC30-04/2017 (Mahkamah Tinggi)
Procedural Posture
Civil (contract/construction Debt) / Application to Set Aside Default Judgment (order 13 R.8) Heard and Determined
Outcome
Application to set aside default judgment dismissed in limine
Legal Topics
Setting Aside Default Judgment, Substituted Service, Limitation for Applications, Meritorious Defence, Order 42 R.13, Order 10 R.1, Order 62 R.5
Source Language
Malay/English
Civil Procedure Contract Law Construction Law Service of Process Setting Aside Default Judgment Substituted Service Limitation for Applications Meritorious Defence +3 more

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Parties

ZAIK BINA SDN. BHD.

Plaintiff

TYZAYU SDN. BHD.

First Defendant

ZUHIRMAN BIN MD. ZAKID

Second Defendant

MOHAMAD FARIZ BIN ABDUL HAMID

Third Defendant

Procedural Posture

Civil (contract/construction Debt) / Application to Set Aside Default Judgment (order 13 R.8) Heard and Determined

Legal Issues

  1. 1 Whether the default judgment dated 7.09.2017 was regular under the Rules of Court 2012
  2. 2 Whether the application by the second and third defendants to set aside the default judgment was meritorious and timely
  3. 3 Whether the second and third defendants have a bona fide defence that warrants setting aside the default judgment

Ratio Decidendi

Default judgment dated 7.09.2017 was regular because substituted service was ordered and properly effected; the second and third defendants had actual knowledge on 10.02.2019 but filed their application only on 10.11.2019 without any satisfactory explanation or application for extension of time; furthermore their draft defence amounted to bare denial and did not disclose a meritorious triable issue; accordingly the application to set aside the default judgment is dismissed with costs RM4,000.

Court Disposition

Application to set aside default judgment dismissed in limine

Orders

  • Application by Second and Third Defendants to set aside default judgment dated 7.09.2017 dismissed
  • Second and Third Defendants to pay costs of the application in the sum of RM4,000.00