Yap Ke Huat & Ors v.

Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 175

A YAP KE HUAT & ORS

v.

PEMBANGUNAN WARISAN MURNI SEJAHTERA

SDN BHD & ANOR
B
COURT OF APPEAL, PUTRAJAYA
JAMES FOONG JCA
KN SEGARA JCA
ABU SAMAH NORDIN JCA
C [CIVIL APPEAL NO: C-02-1194-2005]
14 MARCH 2008

CIVIL PROCEDURE: Judgment - Default judgment - Setting aside -

Directors of company did not enter appearance within time stipulated -
D Whether there was service of writ and statement of claim - Whether claim
for debts and liabilities of company - Whether resignation of directors
rendered them liable - Whether judgment void for non-compliance with
O. 13 r. 6(1) Rules of the High Court 1980

CIVIL PROCEDURE: Service - Writ of summons and statement of

E
claim - Service by AR registered post - Whether prima facie proof of
service - Whether plaintiff must show proof of receipt

CIVIL PROCEDURE: Judgment - Default judgment - Default of

appearance - Whether O. 13 r. 6(1) RHC 1980 complied with -
F Whether plaintiffs entitled to enter judgment without motion for judgment
- Whether plaintiff’s claims fell within descriptions specified under rr. 1-
4 of O. 13

The plaintiffs obtained a default judgment against the defendants

G due to the non-appearance of the 2nd to 6th defendants who
were directors of the 1st defendant company. The defendants’
application to set aside the default judgment was dismissed by the
learned judge. The defendants appealed and raised the following
issues: (1) that the plaintiffs failed to prove that the writ and
H statement of claim was received by the relevant defendants; (2)
that the relevant defendants as directors were not liable for the
debts and liabilities of the 1st defendant; (3) that the relevant
defendants were not liable as they had resigned as directors; and
(4) that the plaintiffs were not entitled to enter the default
I judgment without the need for a motion to do so contrary to
O. 13 r. 6(1) of the Rules of the High Court 1980 (‘RHC’) since
the plaintiffs’ claims fell outside the descriptions specified under
rr. 1-4 of O. 13.
176 Current Law Journal [2008] 4 CLJ

Held (dismissing the appeal with costs) A

Per James Foong JCA delivering the judgment of the court:

(1) When considering an application to set aside a judgment in

default, the first task is to ascertain whether it is a regular or
irregular judgment. If it is an irregular judgment, then the B
default judgment ought to be set aside ex debitio justitae. If it
is regularly obtained, then the principle expounded in Evans v
Bartlam applies (see the Federal Court judgment in Hasil
Perumahan Sdn Bhd & Ors v. United Malayan Banking Berhad.
This requires the defendant to show that he has a defence on C
merits. Delay in making such application is a factor to be
considered by the court in deciding whether to grant or refuse
the application. The learned judge applied these principles of
law correctly when evaluating the application. However, his
ruling that the application was made out of time was wrong D
as the facts showed that the application was made well within
the 30-day period as stipulated under O. 42 r. 13 RHC.
(paras 15 & 16)

(2) There was no provision of law that the plaintiffs must also
E
prove that the person so named in the post had received the
writ of summons and statement of claim. Once the writ and
statement of claim are sent by AR registered post, it is prima
facie proof of service unless the defendant is able to rebut this.
From the facts, that presumption was not rebutted. (paras 20,
F
21 & 22)

(3) The claim against the defendants was one of conspiracy,

breach of fiduciary duty and breach of trust. Those matters
were beyond the bounds of the general protection offered to
a director of a company for debt and liability of the company. G
They were personal claims against them. The agreements
between the plaintiffs and the 1st defendant merely contained
terms of a transaction between those two parties. They did
not exempt the defendants from personal acts alleged to be
committed by them. (para 24) H

(4) As for the 4th and 6th defendants’ claim that they had
resigned as directors of the 1st defendant, the facts showed
that the claims against them were for events that had occurred
before their resignation. (para 28) I
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 177

A (5) The plaintiffs had abandoned their claims for accounts and
declaration. They had elected to limit their claim within O. 13
r. 2 RHC. That could be seen from the contents of the
default judgment for unliquidated damages to be assessed and
costs. That was well within the rules for judgment in default
B to be entered. It followed that the plaintiffs were entitled to
enter the default judgment without a motion for judgment.
(para 39)

Bahasa Malaysia Translation Of Headnotes

C
Plaintif-plaintif telah memperoleh penghakiman ingkar terhadap
defendan-defendan disebabkan oleh ketidak-hadiran defendan-
defendan kedua hingga keenam yang merupakan pengarah-
pengarah defendan pertama. Permohonan defendan-defendan untuk
mengenepikan penghakiman ingkar telah ditolak oleh yang arif
D
hakim. Defendan-defendan merayu dan membangkitkan isu-isu
berikut: (1) bahawa plaintif-plaintif gagal membuktikan bahawa writ
dan pernyataan tuntutan telah diterima oleh defendan-defendan
berkenaan; (2) bahawa defendan-defendan berkenaan selaku
pengarah-pengarah tidak bertanggungan atas hutang dan liabiliti
E
defendan pertama; (3) bahawa defendan-defendan berkenaan tidak
bertanggungan kerana mereka telah pun meletak jawatan sebagai
pengarah-pengarah; dan (4) bahawa plaintif-plaintif tidak berhak
memasukkan penghakiman ingkar kerana gagal melakukannya
melalui suatu usul mengikut kehendak A. 13 k. 6(1) Kaedah-
F
kaedah Mahkamah Tinggi 1980 (‘RHC’), memandangkan tuntutan
plaintif-plaintif tidak termasuk ke dalam pemerihalan yang
dinyatakan di bawah kk. 1-4, A. 13.

Diputuskan (menolak rayuan dengan kos)

G Oleh James Foong HMR menyampaikan penghakiman
mahkamah:

(1) Apabila menimbang sesuatu permohonan untuk mengenepikan

suatu penghakiman ingkar, tugas yang pertama adalah
H menentukan sama ada ianya satu penghakiman yang teratur
atau sebaliknya. Jika ia satu penghakiman yang tidak teratur,
maka penghakiman ingkar itu harus diketepikan ex debitio
justitae. Jika ia diperolehi secara teratur, maka prinsip seperti
yang dibentang di dalam Evans v. Bartlam terpakai (lihat
I penghakiman Mahkamah Persekutuan di dalam Hasil Perumahan
178 Current Law Journal [2008] 4 CLJ

Sdn Bhd & Ors v. United Malayan Banking Berhad). Ini A

memerlukan seseorang defendan itu membuktikan bahawa ia
mempunyai pembelaan di atas merit. Kelengahan dalam
membuat permohonan itu adalah satu faktor yang perlu
dipertimbang oleh mahkamah dalam menentukan sama ada
untuk membenar atau menolak permohonan. Yang arif hakim B
telah menggunapakai prinsip-prinsip ini dengan betul apabila
menimbang permohonan. Bagaimanapun, keputusan beliau
bahawa permohonan dibuat di luar masa adalah khilaf kerana
fakta menunjukkan bahawa permohonan jelas dibuat dalam
tempoh 30 hari seperti yang ditetapkan A. 42 k. 13 RHC. C

(2) Tiada peruntukan undang-undang bahawa plaintif-plaintif juga

perlu membuktikan bahawa orang yang dinamakan di dalam
pos telah menerima writ saman dan pernyataan tuntutan.
Sebaik writ dan pernyataan tuntutan dihantar melalui pos D
berdaftar AR, ia adalah prima facie bukti penyerahan kecuali
jika defendan dapat menyangkalnya. Berdasarkan fakta, andaian
telah tidak disangkal.

(3) Tuntutan terhadap defendan-defendan adalah kerana

E
konspirasi, kemungkiran tanggungjawab fidusiari dan pecah
amanah. Perkara-perkara ini berada diluar lingkungan
perlindungan biasa yang diberikan kepada pengarah syarikat
berkaitan hutang dan liabiliti-liabiliti syarikat. Ia adalah tuntutan
peribadi terhadap mereka. Perjanjian di antara plaintif-plaintif
F
dan defendan pertama hanya mengandungi terma-terma suatu
transaksi di antara mereka. Ia tidak mengecualikan defendan-
defendan dari perlakuan-perlakuan peribadi yang dikatakan
dilakukan oleh mereka.

(4) Mengenai dakwaan defendan-defendan kempat dan keenam G

bahawa mereka telah meletak jawatan sebagai pengarah-
pengarah defendan pertama, fakta menunjukkan bahawa
tuntutan terhadap mereka adalah berkaitan peristiwa-peristiwa
yang berlaku sebelum mereka meletak jawatan lagi.
H
(5) Plaintif-plaintif telah memansuhkan tuntutan mereka berkaitan
akaun dan deklarasi. Mereka memilih untuk menghadkan
tuntutan mereka di dalam lingkungan A.13 k. 2 RHC. Ini
dapat dilihat dari kandungan penghakiman ingkar untuk
gantirugi tak jumlah tertentu yang perlu dinilai serta kos. Maka I
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 179

A ia jelas berada dalam rangkuman kaedah-kaedah penghakiman

ingkar yang akan dimasukkan. Ianya dengan itu mengikut
bahawa plaintif-plaintif berhak untuk memasukkan penghakiman
ingkar tanpa suatu usul untuk penghakiman.

B Case(s) referred to:

Evans v. Bartlam [1937] AC 473 (refd)
Hasil Bumi Perumahan Sdn Bhd & Ors v. United Malayan Banking Berhad
[1994] 1 CLJ 329 SC (refd)
Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 3 CLJ 305 FC
(refd)
C Lam Kong Co Ltd v. Thong Guan Co Pte Ltd [1985] 1 CLJ 412; [1985]
CLJ (Rep) 181 SC (refd)
MBf Finance Bhd v. Tiong Kieng Seng [2001] 4 CLJ 38 HC (refd)
Morley London Developments Ltd v. Rightside Properties Ltd [1973] 231 EG
235 (refd)
D Pengkalen Concrete Sdn Bhd v. Chow Mooi & Anor [2003] 6 CLJ 326 HC
(refd)
Tuan Hj Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1996]
1 CLJ 241 FC (refd)

Legislation referred to:

E Rules of the High Court 1980, O. 10 r. 1, O. 13 rr. 1, 2, 3, 4, 6(1),
O. 42 r. 13

Rules of Supreme Court 1965 [UK], O. 13 r. 6(1)

For the defendants/appellants - Lai Chee Meng; M/s Bahari, Choy &
F Nongchik
For the plaintiffs/respondents - Umisalamah Abd Latiff; M/s GK Ganesan
Saiful & Rokiah

[Appeal from High Court, Temerloh; Civil Suit No: 22-45-2004 & High
Court, Kuantan; Suit No: MT(1) 22-94-2003]
G
Reported by Usha Thiagarajah

JUDGMENT
H
James Foong JCA:
Introduction

[1] This appeal concerns only one issue: whether the appellants
I are allowed to set aside a judgment in default of appearance
entered against them. The High Court has dismissed their
application to set aside, thus this appeal to us.
180 Current Law Journal [2008] 4 CLJ

Background A

[2] The background of this case is relatively straight forward.

The plaintiffs have filed this civil suit against six defendants. The
1st defendant is a company which the plaintiff claims the 2nd to
6th defendants (the appellants in this appeal) are and/or were at B
all material times directors. The causes of action in this suit as
mentioned in para. 16 of their statement of claim are:

(a) Breach of Contract;

(b) Conspiracy as between the defendants to injure the plaintiffs; C

(c) The defendants’ breach of their duties as fiduciaries to the

plaintiffs;

(d) The defendants’ breach of their duties as constructive trustees

D
to the plaintiffs; and

(e) The defendants’ fraudulent breach of trust.

[3] The reliefs sought by the plaintiffs are:

E
(1) An account be taken of all sums due from the defendants to
the plaintiffs in respect of all the causes of actions;

(1.1) That Messrs A. Pathmarajah & Co, Public Accountants,

a firm of accounts, or such other fit and proper
accountant/s be appointed to take the said accounts; F

(1.2) That in order to carry out their duties, the said

accountant be granted leave to adopt such procedures as
would amount to Investigative Accounting procedures;
G
(1.3) In furtherance of their duties, and from time to time, the
said accountants be allowed ingress and egress into such
venues or places belonging to, in the custody of or under
the control of the defendants and/or their servants and/or
agents as the accountants may find proper and expedient; H

(1.4) In the event the defendants and/or their servants and/or

agents refuse to allow access for the accounts in the
carrying out of their duties, the accountants be granted
leave to enter into;
I
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 181

A (2) An order for payment by the defendants to the plaintiffs of all

sums found to be due from the defendants to the plaintiffs on
the taking of the accounts aforesaid;

(3) A declaration that all sums of moneys in the hands of the

B defendants are the assets of the plaintiffs;

(4) General damages for:

(a) breach of contract;

C (b) fraudulent breach of trust;

(c) the defendants or each of their respective breaches of

duties as fiduciary to the plaintiffs;

(d) the defendants’ breach of their duties as constructive

D trustees to the plaintiffs;

(c) the defendants’ fraudulent breach of trust;

(5) Interest at the rate of 8% per annum for all sums awarded of
all the matters hereinabove pleaded, from the date of the
E
breach up to the date of judgment;

(6) Interest at the rate of 8% per annum for all sums awarded
from the date of judgment until full and final settlement;

F (7) Costs on a solicitor client basis by reason of the conduct of

the defendants; and

(8) Such further and other relief that this Honourable Court
deems fit and proper.
G [4] According to the affidavit of service of the plaintiffs’ process
server, he served the writ and the statement of claim on all the
defendants on 5 January 2003 by way of prepaid A.R. registered
post: on the 1st defendant at No. 32, Kampong Baru, Kuala
Krau, 28050 Temerloh, Pahang; on the 2nd, 3rd and 4th
H defendants at No 8, Jalan Besar, Kuala Krau, 28050 Temerloh,
Pahang; and on the 5th and 6th defendants at No. 32, Kampung
Baru, Kuala Krau, 28050, Temerloh, Pahang.

[5] Only the 1st defendant entered memorandum of appearance,

I but not the rest of the defendants.
182 Current Law Journal [2008] 4 CLJ

[6] The exhibits attached to the plaintiffs’ process server’s A

affidavit reveal that the A.R. registered post acknowledgment cards
for posting to the 2nd to 5th defendants were returned by the
post office showing a signature of the recipient and the name of
the 4th defendant written thereon. The A.R. registered post
acknowledgment card for service on the 6th defendant was not B
returned by the post office.

[7] When the 2nd to 6th defendant did not enter appearance
within the time stipulated under the Rules of High Court 1980
(RHC), the plaintiffs entered judgment in default against these C
defendants.

[8] This default judgment declares:

Tidak kehadiran telah dimasukkan oleh Yap Ke Huat, Ong Ah

Moy @ Ong Boon Eng, Yap Siew Kian, Yap So Sun dan Yap D
So Leong, iaitu defendan kedua, ketiga, keempat, kelima dan
keenam dalam tindakan ini, maka adalah pada hari ini
dihakimkan bahawa defendan kedua, ketiga, keempat, kelima
dan keenam hendaklah membayar kepada plaintif-plaintif ganti
rugi yang akan ditaksirkan. E

Adalah juga dihakimkan bahawa defendan kedua, ketiga,

keempat, kelima dan keenam hendaklah membayar kepada
peguamcara pihak plaintif kos yang akan ditaksirkan.
F
[9] Translated into English, briefly it means that due to the
non-appearance of the 2nd to 6th defendant, it is hereby ordered
that these defendants do pay the plaintiffs damages to be
assessed, as well as costs to be assessed.

[10] A copy of this seal order was served on the 2nd to 6th G
defendant on 31 December 2004.

[11] On 25 January 2005, the 2nd to 6th defendant applied by

way of summons-in-chambers to set aside this judgment in default.
The first ground appearing in this application is that the 4th H
defendant had received the writ and statement of claim meant for
all these defendants but did not inform the chairman of the 1st
defendant. The defendants also believed that the solicitor acting
for the 1st defendant would automatically represent them.
I
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 183

A [12] Supporting this application are two affidavits: one by the

2nd defendant and the other by the 4th defendant. The 3rd, 5th
and 6th defendants did not file any affidavit in support.

[13] The 2nd defendant affirmed in his affidavit that he did not
B receive the writ and statement of claim. It was the 4th defendant
who received them for the 2nd, 3rd, 5th and 6th defendants. For
this reason, he only informed the solicitors to represent the 1st
defendant in this action. He then proceeded to assert that he is
only a director of the 1st defendant. As such, he is not
C responsible for the debts and liabilities of the 1st defendant. He
stressed that this is disclosed in two agreements signed between
the plaintiffs and the 1st defendant. Further, he claimed that his
two sons, the 4th and 6th defendant had ceased to be directors
of the 1st defendant from 30 January 2002.
D
[14] The 4th defendant’s affidavit said that he received the writ
and statement of claim but did not inform the 2nd defendant
because he himself has ceased to be a director of the 1st
defendant. He only informed the 1st defendant and under the
impression that the 2nd defendant had engaged solicitors to
E
represent the 1st defendant, all the rest of the defendants would
similarly be represented. He only realized the consequences of
non-appearance when he received the judgment in default. He
then stressed that though he was a director of the 1st defendant,
he is not responsible for the debts and liabilities of the 1st
F
defendant. Further, he stressed that the 1st defendant is not liable
in view of the two agreements entered into between the plaintiffs
and the 1st defendant. He then said that he has in fact resigned
as a director of the 1st defendant on 30 January 2002.
G Principles To Be Applied In An Application To Set Aside
Judgment In Default

[15] It is trite that when considering an application to set aside

a judgment in default, the first task is to ascertain whether it is a
H regular or irregular judgment. If it is an irregular judgment, then
the default judgment ought to be set aside ex debitio justitae. If it
is regularly obtained, then the principle expounded in Evans v.
Bartlam [1937] AC 473 applies – see the judgment of the Federal
Court in Hasil Bumi Perumahan Sdn Bhd & 5 Ors v. United
I Malayan Banking Berhad [1994] 1 CLJ 329. This requires the
defendant to show that he has a defence on merits. Delay in
making such application is a factor to be considered by the court
184 Current Law Journal [2008] 4 CLJ

in deciding whether to grant or refuse the application – see Tuan A

Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1996]
1 CLJ 241.

[16] Having perused the grounds of judgment of the High Court,

we are of the view that the court below had applied these B
principles of law correctly when evaluating the application.
However, with regards to the ruling by the High Court that the
application was made out of time, we regret to say that this
finding is wrong in the face of these facts: Judgment in default was
served on these defendants on 31 December 2004. They filed this C
application to set aside on 12 January 2005. This was well within
the period of 30 days set out under O. 42 r. 13 RHC to make
such application. We believed that the High Court had mistakenly
considered the time to run from the date of judgment rather than
from the time when the judgment was received by these D
defendants as provided by O. 42 r. 13 RHC which says:

Where in these rules provisions are made for the setting aside
or varying of any order or judgment, a party intending to set
aside or to vary such order or judgment must make his
E
application to the court and serve it on the party who has
obtained the order or judgment within thirty days after the
receipt of the order or judgment by him (emphasis added).

Analysis
F
[17] Apart from this, we are of the view that what was decided
by the High Court is correct. We apprehend below our reasons
for coming to this conclusion. As circumstances faced by each of
these defendants is different, we shall deal with them individually
in turn. G

2nd Defendant

[18] It is the contention of the 2nd defendant that the learned

High Court judge was wrong in deciding that the judgment in
default is a regular judgment. He contented that the writ and H
statement of claim were never served on him in the sense that he
never received it. It was received by his son, the 4th defendant,
who never informed him of this.

I
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 185

A [19] According to O. 10 r. 1(1) RHC:

Subject to the provisions of any written law and these rules,

a writ must be served personally on each defendant or by
sending it by prepaid AR registered post addressed to his
B last known address and so far as is practicable, the first
attempt at service shall be made not later than one month
from the date of issue of the writ (emphasis added).

[20] In this instance, the plaintiffs had elected to serve the writ
and statement of claim on this defendant by way of sending it by
C
prepaid A.R. registered post. This defendant did not challenge that
such process was never undertaken. Once this process was carried
out, it is our view that there is no provision in law to say that
the plaintiffs must also prove that the person so named in the post
had received it. This opinion is shared by Suriyadi Halim J (as he
D
then was) when he said in Pengkalan Concrete Sdn Bhd v. Chow
Mooi & Anor [2003] 6 CLJ 326:
In fact under sub-r. 1(1) of O. 10, nothing is indicated that the
plaintiff must evidentially prove that the named person in the writ
E must be the very person who had received it ie, if it was sent by
prepaid AR registered post. I therefore was satisfied that as in this
case, if all the prerequisites were fulfilled, as the plaintiff had done
so, the recipient being “Yanti” (not the name of the defendants)
did not vitiate that service.
F [21] This sentiment seems to be repeated in another High Court
decision of MBf Finance Bhd v. Tiong Kieng Seng [2001] 4 CLJ 38.
Thus, once the writ and statement of claim are sent by AR
registered post it is prima facie proof of service unless the
defendant is able to rebut this.
G
[22] Flowing from this, we now need to examine the evidence to
ascertain whether this defendant has adduced any creditable
evidence to rebut this presumption. From the facts, all that this
defendant said in his affidavit was that he did not receive these
H documents but under the same breath, he disclosed that he had
knowledge that the writ and statement of claim were served on
the 1st defendant of which he is a director, and he even instructed
solicitors to act for the 1st defendant. From the affidavit of the
4th defendant, we got to know that upon receipt of the writ and
I statement of claim by him, he informed the 1st defendant. Though
he did not reveal who in the 1st defendant did he inform, but
186 Current Law Journal [2008] 4 CLJ

when he said that he was under the impression that the 2nd A
defendant would engage solicitors to represent all of them, it
implies that the 2nd defendant had knowledge that the writ and
statement of claim were also served on him otherwise, the 4th
defendant would not hold such view. From these facts, we are
not convinced that this defendant has rebutted the presumption B
that the writ and statement of claim were served on him.

[23] When the judgment is a regular judgment, this defendant:

must show to the court that he has a defence that has some
C
merits of which the court should try. To use common and plain
language, the applicant must show that his defence is not a sham
defence but one that is prima facie, raising serious issues as a
bona fide reasonable defence that ought to be tried because
obviously if the defence is a sham defence, there is no defence
and the application must fail – Jemuri Serjan CJ (Borneo) in Hasil D
Bumi Perumahan Sdn Bhd & 5 Ors v. United Malayan Banking Corp
Bhd (supra).

[24] This leads us to the next question: whether this 2nd

defendant has satisfied this condition. Our answer to this is in the
E
negative. The only relevant part of his affidavit associated with this
issue is where he said that as a director he is not responsible for
the debts and liabilities of the 1st defendant, and that there were
two agreements signed between the 1st defendant and the
plaintiffs. Firstly, even accepting that under the general principle of
F
company law a director is not liable for the debt and liability of
the company, the claim against him and the other defendants is
one of conspiracy, breach of fiduciary duty as well as breach of
trust. These are matters that are beyond the bounds of the
general protection offered to a director of a company for debt and
G
liability of the company which he is a director. These are personal
claims against him and he has not disclosed a defence on merit
that ought to be tried. The agreements between the plaintiffs and
the 1st defendant merely contain terms of a transaction between
these two parties. They do not exempt this defendant from
H
personal acts alleged to be committed by him.

3rd Defendant

[25] The 3rd defendant did not file an affidavit to support the
application to set aside. We guess he relied on the affidavits of I
the 2nd and 4th defendants. But as stated, once it is proved that
the writ and statement of claim were posted by prepaid A.R.
registered post to this defendant at his address then it is deemed
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 187

A that he has received it unless he can adduce credible evidence to

rebut it. Without an affidavit or an affidavit of another who
expressly declares that he is affirming it for and on his behalf,
there is no evidence from this particular defendant to show that
the writ and statement of claim were not served on him.
B
[26] When the judgment in default against him is a regular
judgment, then he has to show to the court that he has a defence
on merit. Without an affidavit or evidence derived from elsewhere
to disclose this, then his application to set aside the judgment in
C default must fail.

4th Defendant

[27] In respect of this defendant, the service of the documents

on him was good service in view of his admission that he received
D them personally. His excuse that he was under the impression that
the 2nd defendant would engage counsel to represent him and the
rest of the defendants is, in our view, not reasonable ground to
warrant a finding that the judgment in default against him is
irregular.
E
[28] When the judgment in default is a regular judgment, the next
consideration is whether this defendant is able to show that he
has a defence on merit. Based on what he has disclosed and those
by the 2nd defendant, we found none that can be sustained. His
F excuse is similar to that of the 2nd defendant that while being a
director of the 1st defendant, he should not be held responsible
for the debt and liability of the 1st defendant, what more when
he has resigned from the 1st defendant since 30 January 2002.
But the claim against him, like that of the 2nd defendant, is over
G and above the exemption of a director from liability and debts of
a company. Further, this claim against him is a personal one for
events that occurred between 1985 till 2001, well before he
relinquished his role as a director of the 1st defendant. Again, the
terms of the two agreements between the plaintiffs and the 1st
H defendant do not protect him from these claims of the plaintiffs.

5th Defendant

[29] This defendant, like the 3rd defendant, did not file an
affidavit of his own to support the application to set aside. For
I the same reasons as expressed in our decision in respect of the
3rd defendant, we find the judgment in default against him a
regular judgment. Also, as he has not shown any evidence that he
has a defence on merit, the application to set aside must fail.
188 Current Law Journal [2008] 4 CLJ

6th Defendant A

[30] In respect of this defendant, the prepaid A.R. registered post

acknowledgement card was not returned. But, following what we
have expounded earlier, this does not mean that the service of the
writ and statement of claim is deemed defective. What is B
demanded in O. 10 r. 1 RHC is that the writ (and in this case
including the statement of claim) be sent by prepaid A.R.
registered post to the defendant’s last known address. When there
is sufficient evidence of posting, as it is in this case, then under
the rules, the writ (and statement of claim) is deemed to be served C
on the defendant. There is no necessity to prove that the
acknowledgement of the A.R. registered posting has been
returned. Of course, if it is returned by the Post Office then it is
further proof that it was not only sent but also received. But for
the purpose of service, proof of sending by prepaid A.R. registered D
post is sufficient.

[31] As the judgment in default is regular, then once again the

next issue is whether this defendant has shown that he has a
defence on merit. As disclosed, he has not filed an affidavit of his
E
own nor did the 2nd and 4th defendants affirm their respective
affidavits on his behalf. Though there is reference in the 2nd
defendant affidavit that he has ceased to be a director of the 1st
defendant on 30 January 2002, but the acts complained of by the
plaintiffs are against him personally and committed before his
F
resignation as a director. As this defendant has not shown that he
has a defence on merit, the application to set aside must again fail.

Order 13 r. 6(1) RHC

[32] During the hearing of this appeal, the 2nd to 6th G

defendants’ counsel submitted that the judgment in default is void
ex debitio justitae for failing to comply with O. 13 r. 6(1) RHC. He
elaborated that since the plaintiffs’ action contains claims of a
description not mentioned in r. 1 to 4 of O. 13 r. 6(1) RHC, the
plaintiffs cannot enter judgment in default even though the H
defendants had failed to enter appearance. The plaintiffs were
required to “proceed with the action as if that defendant had
entered an appearance”. He then stressed that the plaintiffs
should not have entered default judgment against these defendants
but to set down the action on motion for judgment. He cited to I
us the Supreme Court case of Lam Kong Co Ltd v. Thong Guan
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 189

A Co (Pte) Ltd [1985] 1 CLJ 412; [1985] CLJ (Rep) 181 and the
Federal Court case of Lai Yoke Ngan & Anor v. Chin Teck Kwee
& Anor [1997] 3 CLJ 305.

[33] Order 13 r. 6(1) RHC states:

B
Where a writ is endorsed with a claim of a description not
mentioned in rr. 1 to 4, then, if any defendant fails to enter
an appearance, the plaintiff may, after the time limited for
appearing and upon filing an affidavit proving due service of
the writ on that defendant and, where the statement of claim
C
was not indorsed on or served with the writ, upon serving a
statement of claim on him, proceed with the action as if that
defendant had entered an appearance.

[34] The rational for this is explained in the judgment of Gopal

D Sri Ram in Lai Yoke Ngan & Anor v. Chin Tech Kwee & Anor
(supra):
The philosophy underlying O. 13 r. 6(1) of the RHC is that
specific relief is, by its very nature, discretionary. A defendant
E
may well decide not to defend an action in which such relief is
claimed in the honest belief that he has no defence upon question
of liability. But that does not relieve the plaintiff from delivering
his statement of claim and satisfying the court, upon a motion for
judgment, that the case is a fit one for the grant of specific relief.

F [35] As a refresher, r. 1 of O. 13 RHC refers to claim for

liquidated damages; r. 2 is claim for unliquidated damages; r. 3 is
claim for detinue; and r. 4 is claim for possession of immovable
property. A quick reference to the reliefs sought by the plaintiffs
in their statement of claim will immediately reveal that prayer 1 is
G for accounts; prayer 2 is associated with the first since it is a
request for payments of money found due in the accounts; prayer
3 for a declaration; prayer 4 for unliquidated damages for breach
of contract, breach of trust, and breach of fiduciary duty. After
these, are general claims for interest and costs. From these, it is
H certain that prayers 1 to 3 are not within r. 1 to 4 of O. 13
RHC. In fact, the Supreme Court Practice, Malaysian Edition (1996
Reprint of 1979 Edition) adopting the English White Book
declared at para 13/6/1 that if “there is endorsement on the writ
a claim for an account, injunction, specific performance, declaration
I or rectification or other remedy or relief which falls outside the
descriptions specified in rr. 1-4, the plaintiff cannot enter judgment
in default of appearance, unless he expressly and finally
abandons every such remedy or relief (emphasis added).
190 Current Law Journal [2008] 4 CLJ

[36] Arguing against this contention, the plaintiffs brought to our A

attention that they had abandoned their claims for accounts and
declaration. They had elected to limit their claim or confine it to
only that falling within O. 13 r. 2 RHC. This can be seen from
the contents of the judgment in default; it is only for unliquidated
damages to be assessed and costs. This is well within the rules B
for judgment in default to be entered without the need for motion.
The claim for accounts and declaration were dropped.

[37] Indeed, according to the English White Book of 1995 under

O. 13 r. 6(1) of the Rules of Supreme Court 1965: C

The effect of para (1) is to preclude a plaintiff from entering

judgment in default of notice of intention to defend in every
case in which the indorsement on the writ contains or includes
a claim which is not squarely within rr. 1 to 4 of this order,
D
and to require him to proceed with the action as if that
defendant had given notice of intention to defend. If,
therefore, there is indorsed on the writ a claim for account,
injunction, specific performance, declaration or rectification or
other remedy or relief which falls outside the descriptions
E
specified in rr. 1-4, the plaintiff cannot enter judgment in
default of notice of intention to defend, unless he expressly and
finally abandons every such remedy or relief. On the other hand, the
plaintiff is free to elect which relief he wants to pursue and he is
under no duty to give prior notice of his election to abandon any form
F
or relief which he originally claimed and on the effective abandonment
of every remedy or relief outside the descriptions specified in rr. 1-4
he is entitled to enter a default judgment under these rules (Morley
London Developments Ltd v. Rightside Properties Ltd [1973] 231
EG 235 CA) (emphasis added).
G
[38] So the question before us is whether the plaintiffs had
effectively, by only entering judgment in default for unliquidated
sum to be assessed and cost, abandoned their claim for relief and
remedy which do not fall within the description stipulated in r. 1
to 4 of O. 13 RHC, thereby entitling them to maintain that the H
judgment in default which they entered against these defendants
is a regular judgment, not one that is void ex debitio justitae.

[39] It is our view that by confining themselves to the claim for

unliquidated damages to be assessed and costs in the judgment in I
default, the plaintiffs had expressly elected to abandon their claim
for accounts and declaration which are not within the description
 Yap Ke Huat & Ors v. Pembangunan Warisan
[2008] 4 CLJ Murni Sejahtera Sdn Bhd & Anor 191

A of those stated in r. 1 to 4 of O. 13 RHC. Effectively, they had

plainly volunteered to relinquish these claims and this is expressly
mentioned in the judgment in default itself. This entitled them to
enter judgment in default against these defendants without the
need for a motion to do so. The English Court of Appeal decision
B of Morley London Developments Ltd v. Rightside Properties Ltd [1973]
231 EG 235 supports this when it was held that the plaintiff was
free to choose the relief he wished to pursue, the only
requirement being that at the time when the matter came to court
he must make it plain what remedy he asked for; he was under
C no duty to give prior notice to the other side of his election.

[40] For these reasons, we find this last contention of these

defendants without merit.

Conclusion
D
[41] Accordingly, we dismissed this appeal with costs. Deposit for
this appeal to the respondents towards account of taxed costs.