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1. KEJURUTERAAN WONG YUEN SDN BHD v WEE TEE TONG PALM OIL SDN BHD, [2003] MLJU 652
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 KEJURUTERAAN WONG YUEN SDN BHD v WEE TEE TONG PALM
OIL SDN BHD
CaseAnalysis
| [2003] MLJU 652

KEJURUTERAAN WONG YUEN SDN BHD v WEE TEE TONG PALM

OIL SDN BHD [2003] MLJU 652
Malayan Law Journal Unreported · 6 pages

HIGH COURT (SANDAKAN)

LINTON ALBERT, JC
CIVIL SUIT NO S.22–19–2003
17 September 2003

Case Summary

Judgment — Default of appearance — Setting aside — Whether defence devoid of

merit

Writ of summons — Service — Service on corporation — Writ sent by registered

post but undelivered — Whether judgment in default irregular — Rules of the High
Court 1980, O 62 r 4(1)(b)

Alexander Khoo (Peter Lo & Co)

Brenndon Keith Soh (Ronny Cham & Co)

GROUNDS OF DECISION

The Appellant (the Plaintiff) had obtained judgment in default of appearance against the
Respondent (the Defendant). The learned Deputy registrar dismissed the Defendant's
application to set aside the default judgment. Hence this appeal. I had on 13.08.2003
dismissed the appeal with costs and stated that I would give the grounds in the event of an
appeal. I will now give the grounds of my decision.

Learned Counsel for the Defendant, Mr. Alexander Khoo argued that the judgment in
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KEJURUTERAAN WONG YUEN SDN BHD v WEE TEE TONG PALM OIL SDN BHD

default of appearance was defective and irregular. The affidavit in support of the application
to set aside the judgment in default of appearance affirmed by one Heng Kim Chuan on
22.1.03 (Heng's affidavit) was devoted almost entirely to this ground and so were the two
subsequent affidavits filed on behalf of the Defendant.

It is not disputed that the plaintiff's writ of summons was served by registered post
addressed to the Defendant's registered [*2]
address and was never received by the Defendant as the same was returned undelivered.
For this reason, it is argued, the judgment in default of appearance is irregular. If indeed it
is irregular then that will be the end of the matter as the Defendant is entitled to have the
judgment in default of appearance set aside ex debito justitiae. Learned Council for the
Plaintiff, Mr Brenndon Keith Soh, on the other hand argued that the judgment in default of
appearance is not irregular and relied on order 62 Rule 4 (1) (b) RHC 1980 which reads as
follows:-

"(1) Where an action is against a corporation, the writ may be served:-

(b) by sending a copy of it by registered post addressed to the corporation at the office, or, if there be
more offices than one at the principal office of the corporation, whether such office be situated within
Malaysia or elsewhere;......".

[*3]

Learned Counsel for the Defendant had argued that the service of the writ should have
been by prepaid A.R. Registered post in accordance with Order 10 Rule 1(1). With respect,
I do not agree. This is because it is preceded by the words "Subject to the provision of any
written law and these rules............". As learned Counsel for the Plaintiff rightly pointed out
Order 62 rule 4 (1)(b) RHC 1980 therefore applies. The law relating to service of
documents on corporations is well settled.Several authorities were cited by Mr. Brenndon
Keith Soh. To avoid superfluity it is probably sufficient to refer to one. In Lee Boon Tatt &
Ors v Takhdir Trading Sdn Bhd [1984] 2 MLJ 341 Mohamed Dzaiddin, J (as he then was) at
page 342 stated as follows:-

"In determining whether or not in the present case the Writ had been properly served on the defendants,
the court has to consider the effect of rule 4 (1)(b). Mallal's Supreme Court Practice (2nd Edition) under
para 62/4/2 at p.849 says that sub-rule 1(a) and (b) repeat section 350 Companies Act. I agree to a
certain extent, perhaps, in so far as service at the registered [*4]
office. In my opinion, it was not the legislative intention to limit service only at the registered office. The
rule says if there be more offices than one, then service may be effected at the principal office which should
mean the principal place of business of the corporation."

The fact that, in this case, the defendant never actually received the writ is of no
consequence whatsoever (See Tan Kim Hock v Huang Tann Chong [1999] 1 MLJ 3343).

For the reasons stated above I find that the judgment in default of appearance is regular. I
next turn to the question whether there are merits in the defence which the Defendant
intends to mount in response to the Plaintiff's claim because the Defendant can only
succeed if the answer to this question is in the affirmative. (See Maskimi Sdn Bhd v Lee
Noh Heng [2000] 4 MLJ 604).

In March 1997 the Plaintiff had been engaged by the Defendant through the Defendant's
 Page 3 of 3
KEJURUTERAAN WONG YUEN SDN BHD v WEE TEE TONG PALM OIL SDN BHD

project and management consultants, Wismarin Sdn Bhd (the Consultants) to carry out and
[*5]
complete various works (the works) for the Defendant which the Plaintiff did. On 9th
November 1999 the consultants confirmed that the defect liability period for the works had
expired on 31.10.99 and that the full amount of retention totaling RM699,100.00 (the
retention sum) was then due from the Defendant to the Plaintiff. Only RM244,000 was paid
by the Defendant towards settlement of the retention sum as at 17.3.2001. Subsequently
on or about 20.7.2001 the Defendant engaged the Plaintiff to carry out and complete
additional works for a contract sum of RM24,000.00 which the Plaintiff also did. By a letter
dated 14.8.2002 the Defendant's solicitors demanded payment of the balance of the
retention sum together with the RM24,000.00 for the additional works amounting to
RM483,100.00 and when the Defendant failed to pay the Plaintiff commenced proceedings
for recovery thereof by taking out a writ on 24.4.2003 together with the statement of
Claim.

If any merit is to be found in the Defence it has to be extracted from the five short
paragraphs in Heng's affidavit relating to the Defendant's denial of the claim and the
Plaintiff's alleged [*6]
failure to carry out the works according to the specifications resulting in the alleged loss
and damage to the Defendant. The rest of the matters deposed to in all three affidavits filed
on behalf of the Defendant are devoted entirely to the question of irregularity of the
judgment in default of appearance which I have already found to be regular. In the light of
the Defendant's failure to contradict and respond to the facts deposed to in the affidavit of
Soong Weng On affirmed on 5.8.2003, it simply means that the Defendant is deemed to
have admitted the matters deposed to therein, most important of which is the fact that the
Defendant's consultants had themselves certified the Plaintiff's entitlement to the full
retention sum. (SeeNg Hee Thong v Public Bank Berhad [2002] 2 MLJ, 29). That being so,
the question of the Plaintiff not carrying out the works according to specifications does not
arise. In the circumstances, the Defence is devoid of merit I respectfully disagree with the
misconceived argument of learned Counsel for the Defendant that the merits of the Defence
ought not to be considered, because it is trite that applications to set aside judgment in
default must necessarily involve determining whether there is any merit in the defence.
[*7]

For the reasons aforesaid this appeal is dismissed with costs.

End of Document