Kha Seng Group Sdn Bhd (previously known as Muda Unggul Sdn Bhd) v Lee Mun Swee @ Lee Hing Chai & Ors

Case Summary:

The plaintiff was the RP of a piece of land. The fifth, sixth, seventh and eighth defendants all occupied various portions of the land. The fifth, sixth, seventh and eighth defendants applied to set aside the judgment in default ('JID') entered against them. The fifth, sixth and seventh defendants claimed that the JID obtained was not based upon merit and therefore the JID should be set aside. The eight defendant in addition averred that the writ of summons and statement of claim was not served on him and as such the JID could be set aside as of right.

Held

1) The plaintiff's service of the writ and statement of claim upon the fifth, sixth, seventh and eighth defendants is proper and as such the JID had been regularly obtained, as no memorandum of appearance had been entered within the eight days time period.

2) None of the defendants have put forward a defence on the merits. It is not disputed that the plaintiff is the RP of the land. As such the plaintiff is entitled to obtain an indefeasible title in the land free of adverse claims pursuant to s.340 of NLC.

3) All the defendants argue that they have a defence and the defence is that they are in occupation of the land. But their defence cannot be sustained as mere occupation is not sufficient to displace the right of the plaintiff as RP to vacant possession.

4) Neither has the plaintiff given any licence, consent or permission to the defendants to occupy the land.

5) As such having regard to the matters pleaded by the defendants in their respective affidavits in support I conclude that the defendants have not put forward a defence on the merits.

Held, dismissing the applications with costs RM3,000:

(1)        The court has first to identify whether the judgment in default is a regular or irregular judgment. It is well settled that if the judgment is irregular then it ought to be set aside ex defitio justitiae. It if is regularly obtained then the principle expounded in Evans v Bartlam [1937] 2 All ER 646 as confirmed by the Federal Court in Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan