DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO: W-03(IM)-153-10/2012

ANTARA

1. ADNAN BIN ISHAK

2. MOHD AMIN BIN ISHAK
3. ARIFFIN BIN HAJI ISHAK
4. MASLIAN BINTI ISHAK
5. MAHYUN BINTI ISHAK
6. MASTURA BINTI ISHAK
7. SITI ROGAYAH BINTI HAJI SHAK
8. ISMAIL BIN ISHAK
9. AINUN BINTI MOHD JAMIL
10. ROHANI BINTI HASHIM
11. AWALLUDIN BIN ABDUL HALIM
12. ZAINAB BINTI ULONG
13. MAHANOM BINTI ABD KARIM
14. IBRAHIM BIN ABDULLAH
15. KHAIRUDDIN BIN ABD HALIM
16. SITI AISHAH BINTI HAJI DOLLAH
17. ZAINUDDIN BIN ABD KARIM
18. KALSOM BINTI YAHYA
19. MAIMON BINTI ABD KARIM
20. JUHARI BIN YAHYA … PERAYU-PERAYU

DAN

APT ASSOCIATES SDN BHD … RESPONDEN

(Dalam perkara mengenai Notis Rayuan (Lampiran 45) bertarikh

10 hari bulan Mei, 2012 di dalam Writ Saman No.: S7-22-909-2008
Mahkamah Tinggi di Kuala Lumpur di dalam Wilayah Persekutuan
Malaysia
 Antarta

APT Associates Sdn Bhd … Plaintif

Dan

1. Adnan Bin Ishak

2. Moihd Amin Bin Ishak
3. Ariffin Bin Haji Ishak
4. Maslian Binti Ishak
5. Mahyun Binti Ishak
6. Mastura Binti Ishak
7. Siti Rogayah Binti Haji Ishak
8. Ismail Bin Ishak
9. Ainun Binti Mohd Jamil
10. Rohani Binti Hashim
11. Awaluddin Bin Abdul Halim
12. Zainab Binti Ulong
13. Mahanom Binti Abd Karim
14. Ibrahim Bin Abdullah
15. Khairuddin Bin Abd Halim
16. Siti Aishah Binti Haji Dollah
17. Zainuddin Bin Abd Karim
18. Kalsom Binti Yahya
19. Maimon Binti Abd Karim
20. Juhari Bin Yahya … Defendan-Defendan)

CORAM:

AZAHAR MOHAMED, JCA

MOHAMAD ARIFF MOHD YUSOF, JCA
HAMID SULTAN ABU BACKER, JCA

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 GROUNDS OF JUDGMENT

[1] This appeal was brought by three out of the twenty parties who were
made defendants in the High Court, namely the 13th, 14th and 19th
appellants in the intitulement (Mahanom binti Abd Karim, Ibrahim bin
Abdullah, Maimon binti Abd Karim). For ease of comprehension, we will
refer to the appellants in this appeal as “13th, 14th and 19th defendants”
and the respondent as “plaintiff” respectively.

[2] The writ and statement of claim was filed by the plaintiff on
15.8.2008. Judgment in default of appearance was entered against the
13th defendant on 3.2.2009, while judgments in default of defence were
entered against the 14th and 19th defendants on 30.3.2010 respectively.
These defendants applied to set aside the judgments in default before the
senior assistant registrar who allowed the applications on 11.6.2012 (Encl.
55 (13th defendant), Encl. 56 (14 th defendant), Encl. 57 (19th defendant)).
The applications by way of summons in chambers were all dated
15.9.2011.

[3] Being dissatisfied with the decisions of the senior assistant

registrar, the plaintiff appealed to the judge-in-chambers (Encl. 71, 72, 73)
on 18.6.2012.

[4] The High Court judge allowed the appeal on 21.9.2012 and set
aside each of the decisions of the senior assistant registrar. The three
defendants appealed against the decision of the judge before this Court.
We dismissed the appeal on 17.2.2014. However, we made no order on
costs.

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[5] We were of the unanimous opinion that the learned High Court judge
had not erred in her ladyship’s exercise of discretion in allowing the appeal
of the present plaintiff, the principal ground being the inordinate delay on
the part of the 13th,14th and 19th defendants in applying to set aside the
respective judgments in default. As regards the 13th defendant, the delay
was nearly 3 years, while the period of delay in relation to the 14th and 19th
defendants was more than a year.

[6] The learned High Court judge held:

“9.1 In respect of D13, the Judgment in Default of Appearance had

been served on D13 through his solicitors on 17.3.2009 who acknowledged
receipt of the same…D13 filed the application to set aside the Judgment in
Default of Appearance on 19.1.2012, which is well beyond the 30 days
required under O. 42 r. 13 of the Rules of the High Court 1980 (“the RHC”)
to set aside a default judgment.

9.2 Further, there was no explanation proffered by D13 for the delay
of about 3 years in filing the said application; neither is there any application
for extension of time to make the said application. In the circumstances
there is clearly no need for the Court to consider the merits of D13’s
application and D13’s application (Encl. 55) ought to be dismissed in limine
(See Ng Han Seng & Ors v Scotch Leasing Sdn Bhd [2003] 4 CLJ 533
(CA)…Koperasi Belia Nasional Bhd v Storage Enterprise (Port Kelang) Sdn
Bhd [1998] 3 CLJ 335…

9.3 In respect of D14 and D19, the Judgment in Default of Defence

obtained on 30.3.2010 was served on D14 and D19 through their solicitors
on 9.4.2010, receipt of the same was acknowledged on even date…

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 9.4 I adopt what I had stated in paras 9.1 - 9.2 above mutatis
mutandis and likewise the applications of D14 and D19 (Encls. 56 and 57
respectively) ought to be dismissed in limine.”

[7] As evident from the quoted passage, the High Court judge applied
the principle of law that delay is a factor to consider, and the applicant is
required to offer some reasonable explanation for the delay. On the facts
of this case, however, there was no explanation given for the inordinate
delay, nor was there any application made for extension of time. In these
circumstances, her ladyship was of the opinion that the applications
should be dismissed in limine, without the need to consider the merits of
the applications.

[8] Nevertheless, even though her ladyship adopted the position that
the appeal on account of no reasons for the inordinate delay being
provided by the applicants and therefore liable to be dismissed in limine,
her ladyship proceeded to consider the grounds raised by the applicants
individually.

[9] One common thread appeared in the grounds and this was the
submission that there existed elements of cheating and/or
misrepresentation by the plaintif/respondent in the sale and purchase
transaction relating to land that was the subject matter of the dispute
between the parties: “…wujudnya unsur-unsur Penipuan dan/ atau
misrepresentasi oleh plaintiff…di dalam transaksi Perjanjian Jual Beli
hartanah tersebut…” Further, these applicants were portrayed as senior
citizens of advanced years who lacked the physical and financial capacity
to defend themselves against the claim of the plaintiff.

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[10] In addressing the application by the 13th defendant, it was argued
before the High Court judge that it was only recently that she obtained the
financial means and the opportunity to obtain legal advice: “…hanya baru-
baru ini setelah mendapati bantuan kewangan serta berpeluang
mendapatkan khidmat nasihat perundangan berniat untuk membela diri
terhadap tuntutan yang dikemukakan oleh plaintiff…”

[11] Turning to the grounds raised by the 14th and 19th defendants, the
High Court was informed that both were deceased and the action had
been filed after their demise. In the case of the 14th defendant, he had
died 7 years before the date the action was filed, and as for the 19th
defendant, 1 year from that date. The evidence disclosed their estate was
represented by named beneficiaries – Nosri bin Ibrahim, the 14th
defendant’s son and Mariah binti Abdul Moin, the 19th defendant’s
daughter.

[12] The learned High Court judge found the defendants had legal
representation at the material times, and further, counsel for the 14th and
19th defendants had proceeded before the High Court on the basis they
had the authority to act for the two deceased defendants, stating:

“I find the manner the Counsel for D14 and D19 conducted the matter
before the Court showed they proceeded on the score they had the
authority to act and therefore the Judgment in Default of Defence obtained
against D14 and D19 whilst they were deceased does not vitiate the said
Default Judgments…” (para [8], p. 6 of the Judgment).

[13] The facts also disclosed that both the 14th and 19th defendants had
entered their respective appearances and, through their solicitors, had
applied to strike out the writ and statement of claim, but the application
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was dismissed on 18.6.2008. Thereafter, no defence was filed by the 14th
defendant, but a defence was filed by the 19th defendant on 25.3.2009.
However, the 19th defendant’s defence was struck out by the Court on
13.10.2009 upon application by the plaintiff. When the draft judgments in
default were subsequently served on their solicitors, Messrs. Norfairozali
& Co., no action was taken by them, and this inaction continued even after
the sealed copies of the default judgments were served on the same
solicitors. The sealed copies were served on 9.4.2010.

[14] As for the 13th defendant, the sealed copy of the judgment in default
of appearance was served on the same solicitors on 17.3.2009.

[15] The High Court judge also noted that thereafter the Court heard the
assessment of damages and the order of assessment was made against
all three defendants on 21.10.2010. All cause papers were duly served on
the solicitors and they attended the assessment proceedings.

[16] In these circumstances and on these facts, the High Court judge
stated:

“15.2…the discretion exercisable by the Court depends on the facts and

circumstances of each case. D13 has cited physical, financial incapacity
and the lack of legal advice as a ground to support her application. I agreed
with the learned Counsel for the Plaintiff this concern is certainly not true as
it has been shown that D13 was represented by the firm of M/s Norfairozali
& Co. since 2009.

15.3 As for D14 and D19, the evidence showed the firm of M/s
Norfairozali & Co. represented D14 and D19 since 2008 and had taken
active steps in the proceedings…The Court found it difficult to stomach the

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 nonchalant and flippant attitude of the Counsel for D13, D14 and D19 from
the said firm of M/s Norfairozali & Co. in brushing aside the whole matter
as “itu kesilapan teknikal” when cornered why he has not taken the
necessary action of protecting the interest of his clients by setting aside the
Default Judgment when the opportunities arose then. In my judgment the
conduct of the solicitors is indeed inexcusable and is a clear abuse of the
process of Court bearing in mind the circumstances giving rise to the
applications. The Court has to strike the balance as justice is not only for
the defaulting defendant but it is for the plaintiff as well and as there were
no reasonable grounds proffered, the applications ought to be dismissed
(at p. 13 of the Judgment).”

[17] In the submissions before us, counsel for the three

appellants/defendants revisited the grounds of old age and senility,
financial incapacity and lack of legal advice coupled with the ground of
cheating and misrepresentation by the respondent. The subject matter
was the sale of a piece of property identified as GM 1784, Lot 275, Mukim
dan Bandar Kuala Lumpur. The defendants had been pressured into
signing the Sale and Purchase Agreements without fully appreciating their
effect. The plaintiff had allegedly failed to settle even the 10% of the
purchase price in full. We were implored to consider the merits of the case
and to exercise our discretion in accordance with O.1A of the current
Rules of Court 2012 (“In administering these Rules, the Court or a Judge
shall have regard to the overriding interest of justice and not only to the
technical non-compliance with these Rules”) and O. 92 r. 4 (on the
inherent jurisdiction of the Court to have regard to justice and abuse of
process of the Court).

[18] In relation to the 14th and 19th defendants, counsel argued the
default judgments were irregular since these defendants had died even

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before the action was filed, and no application was made by the plaintiff
for a substitution order under O. 15 r. 6A of the Rules of Court 2012. A
short point was made in counsel’s written submission as follows: “Perayu-
Perayu selanjutnya berhujah bahawa adalah mustahil bagi individu yang
telah meninggal dunia untuk membela diri terhadap tuntutan yang
difailkan oleh plaintif.” We were referred to the Federal Court decision in
Tuan Haji Ahmed Abdul Rahman v Arab Malaysian Finance Berhad
[1996] 1 CLJ 241 and the headnote reading:

“Delay alone would not necessarily be fatal to the appellant’s case. It is

clear that the court still retains discretion to set aside an irregular judgment
if no one has suffered prejudice by reason of the delay, or where such
prejudice has been sustained, it can be met by an appropriate order as to
costs, or when the circumstances were such that to let the judgment stand
would constitute oppression. Indeed, under its inherent jurisdiction to
prevent an abuse of tis proceedings, the court has power to set aside a
judgment in default, even when the defendant’s application is out of time, if
the particular circumstances of the case require intervention of the court
(the headnote corresponds with page 253 of the reported judgment).”

[19] In his summary of the submissions, counsel for the defendants

urged us to consider the merits of the appeal and the justice of the case,
and for the appeal to be allowed since to allow the High Court decision to
stand would be to lead to oppression and injustice. We quote some
pertinent parts of the summary below:

“Perayu-perayu berhujah bahawa Rayuan Perayu-Perayu ini sewajarnya

dan/atau dibenarkan oleh Mahkamah Yang Mulia ini kerana Perayu-Perayu
mempunyai pembelaan bermerit yang perlu dibicarakan oleh Mahkamah,
di mana pembelaan yang dikemukakan oleh Perayu-Perayu bukanlah
sesuatu yang palsu tetapi ialah “prima facie” yang membangkitkan isu-isu

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serius sebagai “bona fide” pembelaan yang munasabah yang harus
dibicarakan oleh Mahkamah.
Perayu-Perayu sesungguhnya berhujah dan menegaskan bahawa pada
setiap masa yang material, tuntutan yang difailkan oleh Plaintif/Responden
tidak boleh diputuskan melalui Penghakiman Ingkar di mana Perbicaraan
dan/ atau kehadiran saksi-saksi amat diperlukan bagi membuktikan
tuntutan Plaintif/Responden.
Perayu-Perayu selanjutnya turut berhujah bahawa selain daripada
pembelaan yang dibangkitkan Perayu-Perayu, Plaintif /Perayu juga perlu
membuktikan kepada Mahkamah setiap tuntutan/ atau dakwaan terhadap
Defendan-Defendan serta wujudnya Perjanjian Jual Beli yang sah antara
Plaintif/Responden dengan Perayu-Perayu.
Perayu-Perayu turut berhujah bahawa sekiranya Penghakiman Ingkar
tersebut dikekalkan, maka ianya akan menjurus kepada suatu bentuk
penindasan/ketidakadilan kepada Perayu-Perayu.
Perayu-Perayu seterusnya turut berhujah bahawa hak/atau kepentingan
Perayu-Perayu khususnya waris-waris kadim dan/atau Pentadbir Harta
Perayu-Perayu bagi Defendan ke-14/Perayu 14 dan Defendan ke-
19/Perayu ke-19 akan diprejudiskan sekiranya Rayuan Perayu-Perayu
tidak dibenarkan memandangkan waris-waris kadim dan/atau Pentadbir
harta Defendan ke-14/Perayu ke-14 dan Defendan ke-19/Perayu ke-19
telah mengalami kerugian dan/atau kerosakan yang teruk akibat tindakan
Plaintif/Responden memfailkan tuntutan terhadap pihak yang salah.
Perayu-Perayu turut berhujah bahawa sekiranya Rayuan Perayu-Perayu
dibenarkan, hak dan/atau kepentingan Plaintif/Responden tidak terjejas
dan/atau tidak memberi kesan yang prejudis memandangkan
Plaintif/Responden masih mempunyai peluang untuk membuktikan
Tuntutan Plaintif/Responden.
Perayu-Perayu sesungguhnya berhujah bahawa Rayuan Perayu-Perayu
perlu dibenarkan oleh Mahkamah Yang Mulia ini bagi memberi keadilan
kepada pihak-pihak yang berkenaan khasnya Perayu-Perayu sendiri…”

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As can be appreciated from the submission, counsel purported to
challenge the very validity of the Sale and Purchase Agreements signed
by the defendants in the attempt to raise reasonable merits of the case.

[20] We considered these submissions in detail, but ultimately the issue

was one of whether the High Court judge had exercised her ladyship’s
discretion properly in the circumstances of the case. Delay and tardiness
in litigation have to be viewed seriously, and we were of the opinion that
her ladyship was correct to balance the interests of the defendants against
the interest of the plaintiff. This was a case where at the material times
the defendants were represented by solicitors, who even participated in
the assessment of damages proceedings. The solicitors applied to strike
out the writ and statement of claim for the 14th and 19th defendants but the
applications were dismissed. Even though they were served with the
default judgments, they did not act in a timely fashion. Even accepting that
the default judgments against the 14th and 19th defendants were irregular,
inordinate delay without reasonable justification could still in law be a
factor for the Court not to exercise its discretion in favour of the applicant.

[21] The governing principles are stated with clarity by the Court of
Appeal in Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ
223, where the Court stated:

“It is a cardinal principle of law, that when a litigant seeks the intervention
of the Court in a matter that affects his rights, he must do so timeously. The
maxim vigilantibus, non dormientibus, jura subveniunt, though having its
origins in the Court of Chancery, is of universal application. Even in cases
where a right is exercisable ex debito justitiae, a Court may refuse relief to
an indolent litigant.

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 In all cases in which delay in approaching the Court is in issue, the burden
is upon the litigant who has delayed to render a satisfactory explanation for
it. Whether the explanation in a given case is satisfactory or reasonable
depends upon the facts and circumstances of each case. And in a matter
which involves the exercise of discretion, it is for the judge in whom the law
primarily vests the discretion.
The point that is presently under consideration has been authoritatively
stated in Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd
[1996] 1 MLJ 30. It is a decision of the Federal Court and therefore quite
plainly binds this court. There, Edgar Joseph Jr. FCJ, said..:
The general rule is that when it is clearly demonstrated to the satisfaction
of the court that a judgment has not been regularly obtained, the defendant
is entitled to have it set aside ex debito justitiae, that is to say, irrespective
of the merits and without terms. Having said that it should be added that the
application to set aside such a judgment should be made: (a) with
reasonable promptitude, in other words within a reasonable time; and (b)
before the defendant has taken any fresh step after becoming aware of the
irregularity…”
(per Gopal Sri Ram JCA (as his lordship then was) at p. 229 of the Report)

[22] The applicable principles are also stated with lucidity in Malaysian
Civil Procedure 2013, and we quote:

“Delay in applying – Where a defendant’s application to set aside is not

made within the 30 day period prescribed by r. 13, and there is no
explanation for the delay in approaching the Court and there is no
application for an extension of time to apply, the application to set aside will
be dismissed in limine, and the Court will not consider the merits of the
applicant’s application: Ng Han Seng & Ors v Scotch Leasing Sdn Bhd
[2003] 4 MLJ 647, CA; applied in Anthony Goh Khiok Loong (suing by his
father and next friend, Goh Kok Hua) v Chan Yam Heng & Anor [2006] 6
AMR 282..and BSN Commercial Bank (Malaysia) Bhd v Mesra Venture Sdn
Bhd [2007] 8 MLJ 427…

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 In all cases in which delay in approaching the Court is in issue, the burden
is upon the litigant who has delayed to render a satisfactory explanation for
it. Whether the explanation in a given case is satisfactory depends upon the
facts and circumstances of each case. In a matter which involves the
exercise of discretion, it is for the judge in whom the law primarily vests the
discretion: Koh Cheng Wah v Sungai Way Leasing Sdn Bhd…” (para
42/13/5)

[23] In the total circumstances of the appeal, and after duly considering
the detailed submissions of the appellants and the respondent as
evaluated against the governing principles of law on delay in the context
of default judgments, we were of the unanimous view that the High Court
judge was correct in the exercise of her ladyship’s discretion to allow the
respondent’s appeal. We therefore dismissed the appeal before us, but in
the circumstances of this case we found it fair not to make any order on
costs. The litigants should not be penalised further on account partly of
the tardiness of their solicitor. The deposit was ordered to be refunded to
the appellants.

Sgd.
(MOHAMAD ARIFF MD YUSOF)
Judge
Court of Appeal
Malaysia
Dated: 14th January 2015

Counsels/Solicitors

For the appellants: Haji Baharuddin Ali

(Norzawani Othman with him)
Messrs Norfairozali & Co
10-1, Blok E, Wisma RKT
Jalan Raja Abdullah
50300 Kuala Lumpur

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For the respondent: Francis Goh
Messrs Francis Goh & Co
Room 1208, 12th Floor
Kompleks Selangor
Jalan Sultan
50000 Kuala Lumpur

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