| Detail | Description |
|---|---|
| Court | Federal Court (Kuala Lumpur) |
| Citation | [1997] 2 MLJ 565 |
| Parties | Appellants (Plaintiffs): Lai Yoke Ngan & Anor (Executors of the deceased’s estate) |
| Respondents (Defendants): Chin Teck Kwee & Anor (Beneficiaries/Children of the deceased and first plaintiff) | |
| Subject Matter | A family dispute over the ownership and management of the Tampin Sawmill. The appeals concerned the setting aside of a default judgment and the striking out of a writ. |
Brief Facts
The plaintiffs, executors of an estate, claimed the Tampin Sawmill was part of the deceased’s estate and was being unlawfully managed by the defendants, who were beneficiaries.
- The plaintiffs issued a writ claiming declarations, injunctions (specific relief), and damages, but did not serve a statement of claim.
- During a hearing for an interim injunction, the plaintiffs’ counsel informed the judge that the first defendant’s solicitor had advised the defendant not to defend the action.
- The judge made the interim injunction absolute and ordered the registrar to assess damages.
- The plaintiffs entered a judgment in default on 2 December 1991, granting all the relief claimed in the writ’s indorsement.
- The defendants later applied to set aside the assessment of damages order, and in a second summons, applied to strike out the writ.
- The learned High Court judge subsequently set aside the whole judgment in default and struck out the writ.
- The plaintiffs appealed both orders (First Appeal: setting aside the default judgment; Second Appeal: striking out the writ).
Decision of the Federal Court:
- First Appeal (Setting Aside Default Judgment): Dismissed (The Federal Court upheld the setting aside of the entire default judgment).
- Second Appeal (Striking Out Writ): Allowed (The Federal Court set aside the order striking out the writ, reinstating the writ and the order of injunction).
Key Reasoning:
- Default Judgment Irregularity: The default judgment was irregular for non-compliance with Order 13 rule 6(1) of the Rules of the High Court 1980 (RHC), as the plaintiffs failed to serve a statement of claim before entering judgment in default for a claim of specific relief.
- Prejudice and Curability: This procedural irregularity prejudiced the defendants and was therefore beyond curability under O 2 r 1(1) of the RHC.
- Assessment of Damages: The order to assess damages on 28 November 1991 was flawed because there was no existing judgment granting damages against the defendants at that time (the default judgment was entered on 2 December 1991).
- Estoppel: The plaintiffs were found guilty of unconscionable conduct, which had the effect of releasing the defendants from any estoppel that might have prevented them from challenging the judgment.
- Striking Out Writ: The summary power to strike out a writ under O 18 r 19 RHC should only be invoked in a plain and obvious case. This was not such a case, as there were several issues of law and fact requiring mature consideration and viva voce evidence.
Relevant Excerpts from the Court
On the Procedural Irregularity of the Default Judgment:
- “On the facts, it was clear that the judgment in default (the subject matter of the first appeal) was irregular for non-compliance with the RHC in particular O 13 r 6(1) — by failing to serve a statement of claim on the defendants.”
- “On this ground alone, the entire judgment in default ought to be set aside. There can be no dispute that the procedural irregularity in the failure to serve the statement of claim on the defendants before the judgment in default was entered, just as the order to assess damages in the absence of judgment granting damages, had prejudiced the defendants and therefore beyond curability (see p 575D–G)”
On the Requirement for Specific Relief Claims (O 13 r 6(1)):
- “The philosophy underlying O 13 r 6(1) of the RHC is that specific relief is, by its very nature, discretionary.”
- “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.”
- “To deprive a defendant of the right of appearing upon the motion for judgment and arguing that discretion ought to be exercised in a plaintiff’s favour constitutes a breach of a substantive right forming part and parcel of the doctrine of procedural fairness to which he is entitled.”
On the Flawed Order for Assessment of Damages:
- “This was a case in which the plaintiffs had absolutely no right whatsoever to obtain an order for the assessment of damages as there was no judgment for damages against the defendants on 28 November 1991.”
- “It is elementary law that there can be no assessment of damages in the absence of a judgment granting damages.”
On the Doctrine of Estoppel and Unconscionable Conduct:
- “The plaintiffs in this case were guilty of unconscionable conduct and this had the effect of releasing the defendants from any estoppel that might have held them in its grip.”
- “Therefore, the learned judge was correct in setting aside the whole of the judgment in default obtained by the plaintiffs on 2 December 1991…”
On Striking Out a Writ (O 18 r 19):
- “The unanimous view is that the summary power ought not to be invoked save in a plain and obvious case.”
- “There were several issues of law that required mature consideration. And there were several issues of fact that were capable of resolution only after taking viva voce evidence. There was therefore no justification for striking out the writ in this case…”
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
