INNA CAHAYA SDN BHD vs UNITED FUSION (SANDAKAN) SDN BHD & JACKSON CHAN JIN HAI (MJLR2009a28) Stephen Chung,SS
K22-104-2008
1
5 SABAH MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
NO: K22-104-2008
INNA CAHAYA SDN BHD – PLAINTIFF
10 AND
UNITED FUSION (SANDAKAN) SDN BHD – 1ST DEFENDANT
JACKSON CHAN JIN HAI – 2ND DEFENDANT
RULING
15
1. On 17.06.2008 the Plaintiff filed the writ of summons together with the
statement of claim against the 1st and 2nd Defendants. On 09.07.2008, the
writ was sent by AR Registered post to the 1st Defendant at its address in
Sandakan and to the 2nd Defendant at his address in Pontian, Johor. On
20 29.07.2008, the 1st and 2nd Defendants through their solicitors filed an
appearance to the writ.
2. However on 30.07.2007, the Plaintiff filed a certificate of non-appearance
and judgment in default of appearance with the High Court Registry at Kota
25 Kinabalu and judgment in default of appearance was accordingly entered
K22-104-2008
2
against the 1st and 2nd 5 Defendants in the sum of RM 280,000.00 with
interest at 8% per annum from 30.06.2005 until full settlement and costs.
3. On 22.09.2008, the Defendants filed this summons in chambers with a
supporting affidavit to set aside the judgment in default on the grounds
10 that the judgment was irregular and that the 1st and 2nd Defendants have a
good defence on the merits.
4. Order 12 Rule 4 (b) of the Rules of the High Court (RHC) provides that the
time limited for appearing in the case of a writ served within Sarawak or
15 Sabah shall be 10 days after service of the writ (including the day of
service). In the case of a defendant whose place of residence is not within
the division or residency in which is situated the High Court Registry out of
which the writ was issued, the time limited for appearance is 20 days. In
this case the writ was issued out of the Kota Kinabalu High Court Registry
20 and to be served on 1st Defendant in Sandakan and on the 2nd Defendant in
Pontian, Johor. The time limited for the 1st and 2nd Defendants to enter an
appearance to the writ was 20 days. The records showed that the 1st and
2nd Defendants entered an appearance to the writ on 29.07.2008, within
the 20 days’ time limited for entering the appearance as required by Order
25 12 Rule 4 (b)RHC.
5. Order 13 Rule 7 (I) provides that judgment shall not be entered against a
defendant under this order unless the plaintiff produces a certificate of
non-appearance and an affidavit is filed by or on behalf of the plaintiff
K22-104-2008
3
proving 5 due service of the writ. Where an application is made to for an
order affecting a party who has failed to enter an appearance the court
hearing the application may require to be satisfied in such manner as it
thinks fit that the party is in default of appearance. [Order 13 Rule 7 (2)]. In
this case as the 1st and 2nd Defendants had entered an appearance to the
10 writ on 29.07.2008, the Plaintiff could not present the certificate of nonappearance
nor the judgment in default of appearance at the Kota Kinabalu
High Court Registry on 30.07.2008. The judgment in default of appearance
entered on 30.07.208 was irregular and ought to be set aside. I also note
that there are issues of facts raised by the parties in their affidavits which
15 ought to go for trial: see Tatchee Machinery Agency v Posan Timber Trading
Sdn Bhd (1984) I LNS 167 and Yap Ke Huat Ors v Pembangunan Warisan
Murni Sejahtera Sdn Bhd (2008) 4 CLJ 175.
6. I order that the judgment in default of appearance entered on 30.07.2008
20 be set aside and the 1st and 2nd Defendant shall file their defence within 14
days from today and the Plaintiff to file a reply to the defence (if any)
within 14 days of service of the defence. Costs to be in the cause.
16.11.2009
25
(STEPHEN CHUNG)
Judicial Commissioner
High Court 4, Kota Kinabalu
1
5 SABAH MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
NO: K22-104-2008
INNA CAHAYA SDN BHD – PLAINTIFF
10 AND
UNITED FUSION (SANDAKAN) SDN BHD – 1ST DEFENDANT
JACKSON CHAN JIN HAI – 2ND DEFENDANT
RULING
15
1. On 17.06.2008 the Plaintiff filed the writ of summons together with the
statement of claim against the 1st and 2nd Defendants. On 09.07.2008, the
writ was sent by AR Registered post to the 1st Defendant at its address in
Sandakan and to the 2nd Defendant at his address in Pontian, Johor. On
20 29.07.2008, the 1st and 2nd Defendants through their solicitors filed an
appearance to the writ.
2. However on 30.07.2007, the Plaintiff filed a certificate of non-appearance
and judgment in default of appearance with the High Court Registry at Kota
25 Kinabalu and judgment in default of appearance was accordingly entered
K22-104-2008
2
against the 1st and 2nd 5 Defendants in the sum of RM 280,000.00 with
interest at 8% per annum from 30.06.2005 until full settlement and costs.
3. On 22.09.2008, the Defendants filed this summons in chambers with a
supporting affidavit to set aside the judgment in default on the grounds
10 that the judgment was irregular and that the 1st and 2nd Defendants have a
good defence on the merits.
4. Order 12 Rule 4 (b) of the Rules of the High Court (RHC) provides that the
time limited for appearing in the case of a writ served within Sarawak or
15 Sabah shall be 10 days after service of the writ (including the day of
service). In the case of a defendant whose place of residence is not within
the division or residency in which is situated the High Court Registry out of
which the writ was issued, the time limited for appearance is 20 days. In
this case the writ was issued out of the Kota Kinabalu High Court Registry
20 and to be served on 1st Defendant in Sandakan and on the 2nd Defendant in
Pontian, Johor. The time limited for the 1st and 2nd Defendants to enter an
appearance to the writ was 20 days. The records showed that the 1st and
2nd Defendants entered an appearance to the writ on 29.07.2008, within
the 20 days’ time limited for entering the appearance as required by Order
25 12 Rule 4 (b)RHC.
5. Order 13 Rule 7 (I) provides that judgment shall not be entered against a
defendant under this order unless the plaintiff produces a certificate of
non-appearance and an affidavit is filed by or on behalf of the plaintiff
K22-104-2008
3
proving 5 due service of the writ. Where an application is made to for an
order affecting a party who has failed to enter an appearance the court
hearing the application may require to be satisfied in such manner as it
thinks fit that the party is in default of appearance. [Order 13 Rule 7 (2)]. In
this case as the 1st and 2nd Defendants had entered an appearance to the
10 writ on 29.07.2008, the Plaintiff could not present the certificate of nonappearance
nor the judgment in default of appearance at the Kota Kinabalu
High Court Registry on 30.07.2008. The judgment in default of appearance
entered on 30.07.208 was irregular and ought to be set aside. I also note
that there are issues of facts raised by the parties in their affidavits which
15 ought to go for trial: see Tatchee Machinery Agency v Posan Timber Trading
Sdn Bhd (1984) I LNS 167 and Yap Ke Huat Ors v Pembangunan Warisan
Murni Sejahtera Sdn Bhd (2008) 4 CLJ 175.
6. I order that the judgment in default of appearance entered on 30.07.2008
20 be set aside and the 1st and 2nd Defendant shall file their defence within 14
days from today and the Plaintiff to file a reply to the defence (if any)
within 14 days of service of the defence. Costs to be in the cause.
16.11.2009
25
(STEPHEN CHUNG)
Judicial Commissioner
High Court 4, Kota Kinabalu
