[CSS22-81 of 2010]

1 MALAYSIA
2 IN THE HIGH COURT IN SABAH AND SARAWAK
3 AT SANDAKAN
4

5 SUIT NO. S22-81-2010

6

7 BETWEEN
8

9 TIMATCH SDN BHD ... PLAINTIFF

10 (CO. NO. 219970-K)
11 AND
12 MAXLAND SDN BHD ... DEFENDANT
13 (CO. NO. 94655-M)
14

15 GROUNDS OF DECISION
16

17 NATURE OF APPLICATION
18

19 [1] This is the Defendant’s application [Enclosure 7] under Order 13

20 rule 8, order 42 rule 13, Order 37 rule 1 and Order 92 rule 4 of the
21 Rules of the High Court 1980 (“RHC 1980”) for the following
22 orders: -
23 [i] That the certificate of Non-Appearance dated the 16th
24 February 2001 be set aside;
25

26 [ii] That the Judgment in Default of Appearance entered

27 against the Defendant on the 16th February 2011 be set
28 aside;
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1 [iii] That the Defendant be granted leave to file and serve its
2 Statement of Defence within two (2) weeks from the date that
3 the Statement of Claim is served on them;
4

5 [iv] That the hearing for the assessment of damages fixed on

6 the 12th and 13th day of April 20011 be set aside;
7

8 [v] There be a stay of all proceedings in this action pending

9 the disposal of the Defendant’s application;
10

11 [vi] That the Plaintiff do pay the Defendant the costs of and
12 occasioned by this application; and
13

14 [vii] Such other Orders or reliefs that this Honourable Court

15 may deem fit to make in the circumstances.
16

17

18 [2] [i] The Defendant’s application is premised on the ground that the
19 Judgement in default of Appearance entered on the 16th February
20 2011 is irregular and further grounds are set out in the Affidavit in
21 Support of Koo Jenn Man affirmed on the 11th March 2001 and file
22 herein.
23

24 [ii] I have read and considered Enclosure 7, all the affidavits filed
25 by the Defendant and the Plaintiff and the respective submissions
26 filed by learned counsels for the Defendant and the Plaintiff.
27

28
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1 THE DEFENDANT’S CASE

2

3 [3] [i] The Defendant’s case is that on or about the 28/2/2011, their
4 staff at their office received a letter dated 22/2/2011 from Messrs
5 Alex Pang & Co. Enclosing a copy of a Judgment in Default of
6 Appearance dated 16/2/2011 [hereinafter referred to as “Judgment
7 in Default of Appearance”] which had been entered against them
8 on 16/2/2011. The Defendant contended that the Judgment in
9 Default of Appearance is irregular on the ground that the
10 Defendant had duly entered its appearance by way of a
11 Memorandum of Appearance at the Court Registry at Sandakan
12 on 16/2/2011 within the time stipulated for entering an appearance.
13

14 [ii] The Defendant on or about 8/2/2011, receive a letter dated

15 28/1/2010 from Messrs Alex Pang & Co., enclosing a writ of
16 summons dated 30/12/2010. The Defendant’s solicitors on
17 16/2/2011 entered appearance on behalf of the Defendant at the
18 Court Registry of the High Court of Sandakan and a copy of the
19 Memorandum of Appearance was also served on the Plaintiff’s
20 solicitors by way of fax and courier service on the same date.
21

22 [iii] On the 3/3/2011, the Defendant received a Notice of Hearing

23 dated 2/3/2011 from the High court at Sandakan stating that the
24 matter had been set down for assessment of damages on the 12th
25 and 13th April, 2011.
26

27 [iv] The Defendant received the Writ of Summons on or about the

28 8/2/2011 and would therefore have 10 days to enter appearance at
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1 the Court Registry of the High Court of Sandakan and the

2 Defendant did so on the 16/2/011 at 2.32pm. As such the
3 Defendant contended that they had duly entered appearance
4 within the time stipulated for appearance.
5

6 [v] The Defendant contended that the Certificate of Non-

7 Appearance [Enclosure 5] was only issued on 16/2/2011 at
8 5.12pm thus the Judgment in Default of Appearance was only
9 given or made on 16/2/2011 at 5.15pm.
10

11 [vi] Thus the Plaintiff is in breach of Order 13 rule 7(1), Order 62

12 rule 9 of the Rules of the High Court 1980.
13

14 [vii] The Defendant further contended that the Plaintiff’s solicitors

15 ought to have given notice to the Defendant’s Solicitors prior to the
16 entering of the Judgment in Default of Appearance, in compliance
17 with Rule 56 of the Advocates [Practice and etiquette] Rules 1988.
18

19

20 The PLAINTIFF’S CASE

21

22 4. [i] The Plaintiff’s case is that they filed the Writ of Summons with a
23 general indorsement of claim against the Defendant and posted
24 the said Writ of Summons to the Defendant’s registered office on
25 29/1/2010. The Plaintiff further contended that the said Writ of
26 Summons is deemed to be served after allowing 5 days for the
27 ordinary course of post from Kota Kinabalu to Sandakan.
28
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1 [ii] The Plaintiff filed the Affidavit of Service of the said Writ of
2 Summons on the 31/1/2011. The Plaintiff further contended that
3 the time limited for the Defendant to enter his appearance was
4 deemed to have expired on 14/2/2001.The Plaintiff then couriered
5 the Certificate of Non-Appearance and draft Judgment in Default to
6 the Court.
7

8 [iii] On the 16/2/2011, the Plaintiff’s covering letter together with

9 the Certificate of Non-Appearance and the draft judgment in
10 default was received by the Court at 9.30am. At 12.06am, the
11 Court issued an official receipt to confirm that the said the
12 Certificate of Non-Appearance and the draft judgment in default
13 are accepted and entered into Court after payment of the
14 prescribed filing fees. At 5.12pm of the same day, the case slip
15 was issued to the Plaintiff to confirm receipt of the said Certificate
16 of Non-Appearance and at 5.15pm a case slip was issued to
17 confirm receipt of the said draft judgment in default.
18

19 [iv] On the 17/2/2011, the Plaintiff received the Defendant’s

20 solicitor’s letter dated 16/2/2011 purportedly entering appearance
21 on behalf of the Defendant and the Plaintiff contended that the
22 Defendant’s Memorandum of Appearance was not officially date
23 stamped by the Court and thus contravened order 12 rule 13 of the
24 Rules of the High Court 1980.
25

26 FINDINGS OF THE COURT

27

28 Whether appearance was late?

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1 [5] [i] Under Order 12 rule 4, the time limited for the Defendant to
2 enter its appearance, is 10 days after the Writ of Summons
3 [including the day of service]
4

5 [ii] Under Order 10 rule 1 of the Rules of the High Court, service of
6 the Writ of Summons may be served on the Defendant by way of
7 personal service and if the Defendant is a corporation, then proper
8 service should be pursuant to Order 62 rule 4 of the Rules of the
9 High Court. The Plaintiff can send a copy of the Writ of Summons
10 by registered post addressed to the corporation at the registered
11 office pursuant to Order 62 rule 4 (1) (b) of the Rules of the High
12 Court 1980. If the Plaintiff chose to serve the Writ of Summons by
13 post, then the Plaintiff has to show proof of posting to enable him
14 to rely on the presumption of service. See the case of MBF
15 Finance Bhd v Tiong Lieng Sheng [2001] 4CLJ 38.
16

17 [iii] Section 12 of the Interpretation Act 1967 states as follows:

18

19 “Where a written law authorises or requires a document to be

20 served by post, then, until the contrary is proved, service:
21 (a) Shall be presumed to be effected by properly
22 addressing, prepaying and posting by registered
23 post a letter containing the document; and
24

25 (b)Shall be presumed to have been effected at the

26 time when the letter would have been delivered
27 in the ordinary course of the post.”
28 [Emphasis is mine]
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1 [iv] Since the Plaintiff had sent the said Writ of Summons to the
2 Defendant by post on the 29/1/2011 and after allowing 5 days [it
3 would be reasonably to assume that it takes 2 to 5 days for a
4 document to be sent from Kota Kinabalu to Sandakan and vice
5 versa, in the ordinary course of the post] for the transmission of the
6 said Writ of Summons from Kota Kinabalu to Sandakan, the said
7 writ of Summons is deemed to be served pursuant to section 12 of
8 the Interpretation Acts 1948 and 1957. The Defendant is deemed
9 to be served, [let’s assume after 5 days], on the 2/2/2011, and the
10 time for stipulated for entering appearance would be on the
11 11/2/2011. In the present case, the Defendant entered his
12 Memorandum of Appearance on the 16/2/2011 at 2.32pm.
13

14 [v] The Defendant contended that they received the said Writ of
15 Summons on or about the 8/2/2011 but did not furnish any proof of
16 such receipt. I am in agreement with the Plaintiff’s contention that
17 the Defendant ought to have furnished the post receipt slip issued
18 by the relevant Post Office which would determine the actual date
19 when the said Writ of Summons was received by the Defendant
20 but none was produced was by the Defendant.
21

22 [vi] I find that once the said Writ of Summons is posted to the
23 Defendant’s registered address, it becomes prima facie evidence
24 that the documents were duly served after the relevant period of
25 time. The onus is on the Defendant to rebut this prima facie
26 presumption. James Foong JCA [as he then was] in the case of
27 Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera
28 Sdn Bhd & Anor [2008] 4 CLJ 175 explained this further and said:
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1 “In this instance, the Plaintiff had elected to serve the writ
2 and the statement of claim on this defendant by sending it by
3 prepaid A.R. registered post. This defendant did not
4 challenge that such process was never undertaken. Once
5 this process was carried out it was our view that there is no
6 provision in law to say that the plaintiffs must also proved
7 that the person so named in the post had received it.”
8

9 [vii] I find further support in the case of Pengkalan Concrete Sdn

10 Bhd v Chow Mooi & Anor [2003] 6 CLJ 326 where Suriyadi J [as
11 he then was] said:
12

13 “In fact under sub-r. 1(1) of O. 10, nothing is indicated that

14 the plaintiff must evidentially prove who had received it ie, if it
15 was sent by prepaid AR registered post. I therefore was
16 satisfied that as in this case, if all the prerequisites were
17 fulfilled, as the plaintiff had done so, the recipient being
18 “Yanti” (not the name of the defendants) did not vitiate that
19 service.”
20

21 [viii] In the premises I find that the Defendant was late in entering
22 appearance.
23

24 Whether the Affidavit of service was defective?

25

26 [ix] As regards the contention of the Defendant that the Plaintiff’s

27 Affidavit of Service [Enclosure 3] was defective by virtue of Order
28 13 rule 7, Order 10 rule 1(4) and Order 62 rule 9 of the Rules of
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1 the High Court 1980. Having perused the said Enclosure 3, I find
2 that it complied substantially with Order 62 rule 9 of the Rules of
3 The High Court 1980 and that Order 10 rule 1(4) of the Rules of
4 the High Court 1980, is relevant to this case, as it dealt with
5 personal service and not service by post as is the case here. In the
6 premises I find that the Plaintiff is not in breach of Order 13 rule 7,
7 of the Rules of the High Court 1980.
8

9 Whether the Plaintiff’s judgment in default of appearance was

10 regular?
11

12 [x] Having found that the Defendant was late in entering

13 appearance and that the Plaintiff’s Affidavit of service is in order, I
14 therefore find that the Plaintiff’s Judgment in Default of
15 Appearance against the Defendant was regular and in order.
16

17 Whether the Defendant’s Memorandum of Appearance was

18 effective?
19

20 [xi] I am in agreement with the Plaintiff’s contention that the

21 Defendant’s Memorandum of Appearance was defective as I find
22 that the said Memorandum of Appearance was officially stamped
23 by the Court as this is contrary to Order 12 rule 3 (1) and (2) of the
24 Rules of the High Court 1980 which states as follows:
25

26 “3(1) On receiving the requisite documents an officer of the

27 Registry must in all access affix to the copy of the

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1 memorandum of appearance an official stamp showing the

2 date on which he received those documents and enter the
3 appearance in the cause book, and
4

5 (a) ...
6 (b) If they were sent by post, send that copy by post to
7 the Plaintiff or, as the case may be, his solicitor at
8 the plaintiff’s address for service and also send by
9 post to the defendant or, as the case may be, his
10 solicitor at the defendant’s address for service a
11 notice of appearance (stamped with an official
12 stamp that date) stating that the defendant
13 specified therein entered an appearance on that
14 date”
15 [Emphasis is mine]
16

17

18 Effect of the breach of Rule 56 of the Advocates (Practice

19 and Etiquette) Rules 1988.
20

21 [xii] As regards the Defendant’s contention that the Plaintiff’s

22 solicitors ought to have to given notice to the Defendant’s
23 solicitors prior to entering the said Judgment in default of
24 Appearance in compliance with Rule 56 of the Advocates
25 (Practice and Etiquette) Rules 1988. I agree with the
26 Plaintiff’s contention that at all material times, there was no
27 solicitor on record and in failing to enter appearance before

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1 the said Judgment in default of Appearance, there was no

2 solicitors on record.
3

4 Rule 56 of the Advocates (Practice and Etiquette) Rules

5 1988 [Sabah] is equivalent of the West Malaysian Rule 56 of
6 the Legal Profession (Practice and Etiquette) Rules 1978
7 and has been held that Rule 56 is a rule regulating the
8 personal relationship in the legal profession and is not a
9 substantive rule of law to be complied with. In any event non
10 compliance with Rule 56 of the Advocates (Practice and
11 Etiquette) Rules 1988 will not invalidate the said Judgment in
12 default of Appearance. In the case of Asia Commercial
13 Finance (M) Berhad v Bank Bumiputra Malaysia Berhad
14 & Ors [1988] 1MLJ 33, Zakaria Yatim J [as he then was]
15 said:
16

17 “The question to be considered here is whether non

18 compliance with Rule 56. The Practice and Etiquette
19 Rules 1978 were made by the Bar council for the
20 purpose of “regulating the professional practice,
21 etiquette, conduct and discipline of advocates and
22 solicitors.” See section 77(1) of the Legal Profession
23 Act subsection (3) of section 77 of the Act states that
24 any advocate and solicitor who fails to comply with the
25 said rules may be liable for disciplinary proceedings
26

27 ....
28
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1 In my opinion, the Practice and Etiquette Rules 1978

2 only regulate the professional practice, etiquette,
3 conduct and discipline of advocate and solicitor. The
4 Rules do not regulate the procedure of legal
5 proceedings in the High Court. Indeed the Bar Council
6 has no power under the Legal Profession Act to make
7 rules to regulate procedure of legal proceedings.
8

9 The rules regulating and prescribing the procedure and

10 practice to be followed by the High Court are found in
11 the Rules of the High Court 1980. These rules were
12 made by the Rules Committee under the powers
13 conferred upon it by section 17 of the Courts of
14 Judicature Act 1964. Order 1 Rule 2(1) of the Rules of
15 the High Court explicitly states that “these rules shall
16 have effect in relation to all proceedings in the High
17 Court ...
18

19 It is clear therefore that non-compliance with Rule 56 of

20 the Advocates (Practice and Etiquette) Rules 1988
21 does not render the Judgment in default of defence, as
22 in the instant case, irregular.”
23

24 Bona Fide Defence on the merits

25

26 [xii] Having found that the said Judgment in Default of

27 Appearance is regular, the Defendant must prove that they
28 have a bona fide defence on merits.
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1 [xiii] The Defendant contended that it had not and was

2 obliged to show a bona fide defence to the Plaintiff’s
3 generally indorsed Writ of Summons and relied on the case
4 of Bintulu Adhesives & Chemicals Sdn Bhd v Chuah
5 Seah Joo Plywood Industry (Sarawak) Sdn Bhd [2001] 5
6 CLJ 286 where Clement Skinner J [as he then was] said :
7

8 “On the particulars of this case, it would be premature

9 to consider whether the defendant has a defence on
10 the merits because the plaintiff has not even served a
11 statement of its claim on the defendant. All the
12 defendant is supplied with at the moment is a concise
13 statement of the nature of the plaintiff’s claim, to which,
14 the rules of court do not require the defendant to plaed
15 in answer to.”
16

17 The Defendant further contended that the Plaintiff had not

18 pleaded a “full cause of action” or disclosed the “true nature”
19 of its claim against the Defendant and “it would be premature
20 to consider whether the Defendant had a defence of merits”.
21

22 [xiv] The Plaintiff’s generally indorsed Writ of Summons

23 contained the following indorsement of claim:
24

25 “The plaintiff’s claim against the defendant is for

26 damages and a restraining order together with interest
27 and costs arising out of the defendant’s wrongful action
28 in trespass intentionally or negligently injuring the raw
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1 water transmission pipeline and valve chamber along

2 Jalan Ulu Sibuga in the District of Sandakan which was
3 and is used and maintained by the plaintiff for the
4 supply of raw water to its water treatment plant.”
5

6 [xv] Order 6 rule 2(1)(a) of the Rules of the High Court 1980
7 states:
8 “2(1) Before a writ is issued it must be indorsed-
9 (a) With a statement of claim or, if the statement
10 of claim is not indorsed on the writ, with a
11 concise statement of the nature of the claim
12 made or the relief or remedy required in the
13 action begun thereby;
14

15 Further Order 18 rule 1 of the Rules of the High Court 1980

16 states:
17 “1. Unless the Court gives leave to the contrary or a
18 statement of claim is indorsed on the writ, the plaintiff
19 must serve a statement of claim on the defendant or, if
20 there are two or more defendants, on each defendant,
21 and must do so either when the writ, or notice of the
22 writ, is served on that defendant or at any time after
23 service of the writ or notice but before the expiration of
24 14 days after that defendant enters an appearance.”
25

26

27 [xvi] I find that the Plaintiff’s general indorsement of claim

28 contained a concise statement of the nature of his claim in
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1 compliance with Order 6 rule 2 (1) (a) of the Rules of the

2 High Court 1980 and that it sufficiently revealed the true
3 nature of the Plaintiff’s claim against the Defendant.
4 Pursuant to Order 18 rule 1 of the Rules of the High Court
5 1980, the Plaintiff is only required to serve a statement of
6 claim on the Defendant before the expiration of 14 days after
7 the Defendant enters an appearance.
8

9 [xvii] I find that the case of Bintulu Adhesives & Chemicals

10 Sdn Bhd v Chuah Seah Joo Plywood Industry (Sarawak)
11 Sdn Bhd supra, can be distinguished from the present case
12 as in that case, the judgment in default of defence was
13 pursuant to Order 18 rule 1 of the Rules of the High Court
14 1980 whereas in the present case, it involved a judgment in
15 default of appearance of the Rules of the High Court 1980
16 and that case related to striking out a claim lacking in
17 essential particulars and not a case of setting aside a
18 judgement in default of appearance.
19

20 Defence of limitation
21

22 [xviii] The Defendant contended that the Plaintiff’s claim is

23 statute time-barred by virtue of item no. 20 under the
24 schedule of the Sabah Limitation Ordinance [Cap. 72] which
25 is concerned with a claim for an action in “malfeasance,
26 misfeasance or nonfeasance independent of contract”. The
27 time limitation for this item is 2 years. I find that the relevant
28 item in the schedule of the Sabah Limitation Ordinance [Cap.
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1 72] which governs Plaintiff’s claim is item 38, which is

2 reproduced below:
3

4 “38. For other specific movable property or for

5 compensation for wrongfully taking or injuring taking or
6 detaining the same”
7

8 The time limitation period for this item is 3 years.

9

10 In the premises I hold that this proposed defence of the

11 Defendant must fail.
12

13

14 ORDER
15

16 [6] Based on foregoing, I dismiss the Defendant’s application herein

17 with costs.
18

19 Dated 9th day of August, 2011

20

21 ……………………………………….
22 Y. A. Tuan Lee Heng Cheong
23 Judicial Commissioner
24 Sandakan, Sabah
25

26 Plaintiffs’ Counsel : Dr David Fung

27 Of Messrs Alex Pang & Co
28 Kota Kinabalu
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1 Defendant’s Counsel : Ms Chang Oi Ming

2 Of Messrs J.Marimuttu & Partners
3 Sandakan.
4

5
6

7 Notice: This copy of the Court’s Grounds of Decision is subject to

8 formal revision.
9

10

11
12

17