CHUA LAY KIM
v.
ROYAL JORDANIAN AIRLINES
High Court Malaya, Kuala LumpurYeoh Wee Siam J
[Civil Appeal No: 12ANCVC-170-11-2014] 26 June 2015
Civil Procedure: Judgment — Setting aside — Discretion of court — Interlocutory
judgment in default and final judgment set aside by Sessions Court — Plaintiff appealed against decision of Sessions Court — Whether Sessions Court correct in setting aside judgment when defendant wrongly named — Whether Sessions Court correct in setting aside judgment when Malaysia not appropriate forum — Whether defendant’s delay in filing application to set aside could be excused
The plaintiff purchased return business class tickets from the defendant in Malaysia to London via stopover at Jordan. While waiting at the defendant’s business class lounge at the Queen Alia airport in Jordan to embark the plane, the plaintiff slipped and fell due to the floor being slippery and suffered severe injury to her elbow. The plaintiff brought a claim against the defendant, alleging that the said accident was caused purely by the negligence of the defendant, its servants or agents. The plaintiff had subsequently obtained interlocutory judgment and order for damages against the defendant. The defendant later filed applications to: (i) set aside the interlocutory judgment in default (‘JID’); (ii) set aside the final judgment; and (iii) strike out the writ and statement of claim (‘SOC’). The Sessions Court granted orders to set aside the interlocutory JID of appearance and the final judgment. The plaintiff filed this appeal against the decision of the Sessions Court.
Held (dismissing the plaintiff ’s appeal):
(1) The court had absolute discretion to set aside a judgment on the application of the defendant (Tetuan Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor (refd)). The principle governing the exercise of discretion of the court was “that unless and until the court has pronounced a judgment upon merits or by consent, it is to have the power to revoke the expression of its coercive powers, where that has been obtained by a failure to follow any of the rules of procedures” (Evans v. Bartlam (refd)). (paras 15-16) (2) In the present case, the plaintiff had named/cited the defendant as “Royal Jordanian Airlines”. However, the defendant was registered as “Alia – The Royal Jordanian Airline Corporation” under the Companies Act 1965 under a foreign company registration. Section 339 of the Companies Act 1965 provided that documents (in this case, the writ and SOC) to be served on a foreign company should be sufficiently served if “addressed” to the foreign company. Here, the defendant was wrongly named. The effect of it was that
the writ and SOC were not served on the defendant. That being the case, the interlocutory JID of appearance and the final Order for JID ought to be set aside, as a matter of right. (paras 18-20)
(3) The Sessions Court judge rightly considered the issue of “forum conveniens”. While the plaintiff might argue that her claim was based on contract and the plaintiff had purchased the ticket in Malaysia and Malaysia was the appropriate forum for this case, the fact remained that the cause of action arose in Jordan, at the Queen Alia airport. The alleged accident caused by the defendant’s alleged negligence and breach of implied terms of the contract of carriage took place there and the witnesses to the accident were there, and not in Malaysia. (para 27)
(4) It was clear from ss 59 and 65 of the Subordinate Courts Act 1948 (‘SCA’) that the Sessions Court had jurisdiction to try all actions and civil suits, which were within the limits of its jurisdiction. The defendant did not contend that the Malaysian Sessions Court had no jurisdiction over the matter as there was no application filed under O 12 r 10(1) of the Rules of Court 2012 (‘ROC’) to dispute the jurisdiction of the court. However, the issue considered by the Sessions Court Judge was not one of whether the Malaysian Sessions Court had jurisdiction, but rather which was the more convenient, proper or appropriate forum to hear the matter since the cause of action arose in Jordan, and not Malaysia. That would be the subject matter of the defendant’s application, if any, to be made under O 12 r 10(2) of the ROC. (paras 29 & 31)
(5) It was sufficient for the Sessions Court judge, at that stage when deciding the interlocutory applications by the defendant, to make a finding that the defendant did have merits to its defence, and the defendant should be given an opportunity to defend the plaintiff’s action. It was not required of the judge to decide at that juncture on the strength or weakness of the defendant’s defence, and whether it could succeed. (para 33)
(6) The plaintiff’s contention that there had been inordinate delay on the part of the defendant to make the applications had been considered, and it was hard to excuse the defendant for what appeared to be its lackadaisical attitude. The defendant’s reason for delay in filing the applications was that the defendant was wrongly named so there was no requirement for the defendant to enter appearance or take any action. Clearly, the defendant was not wrong in taking this stance. In the circumstances, the Sessions Court judge was right to exercise her discretion in the defendant’s favour based on the overriding principle of justice. (para 34)
Case(s) referred to:
Evans v. Bartlam [1937] AC 473 (refd)
Tetuan Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor [1996] 3 MLRH 354 (refd)
Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad [1995] 2 MLRA 155 (refd)
Legislation referred to: Companies Act 1965, s 339
Courts of Judicature Act 1964, s 23(1)
Rules of Court 2012, O 1A, O 2 rr 2(1), (2), (3), O 12 r 10(1), (2), O 13 r 8, 42 r 13, O 92 r 4
Subordinate Courts Act 1948, ss 59, 65 Counsel:
For the plaintiff: Stanley Augustin; M/s Kumar Jaspal Quah & Aishah For the defendant: Ian Ghee; M/s Ian Ghee & Associates
JUDGMENT Yeoh Wee Siam J: Appeal
[1] Enclosure 1 is the notice of appeal (“appeal”) filed by the appellant/plaintiff (“plaintiff”) against the whole of the decision of the learned Sessions Court Judge given on 5 November 2014 which decided as follows:
(i) Granting the respondent /defendant (“defendant”) an extension of time to file the application to set aside the judgment in default (“JID”) of appearance dated 5 February 2014, and granting the Order to set aside the Interlocutory JID of Appearance dated 5 February 2014 (encl 17) [p 1 of Record Rayuan (“RR”)]; (ii) Granting the defendant an Order to set aside the final judgment
dated 29 April 2014, being a final judgment after assessment of damages (encl 15) (p 4 of RR).
Background Facts
[2] According to the plaintiff’s statement of claim (“SOC”), the plaintiff purchased return business class tickets for herself and her spouse from the defendant in Malaysia to London via stopover at Jordan.
[3] On 20 April 2013, the plaintiff and her spouse, after a stay in Jordan, checked in at the defendant’s counter at the Queen Alia airport in Jordan to board the defendant’s flight to London.
[4] While waiting at the defendant’s business class lounge at the Queen Alia airport in Jordan to embark the plane, the plaintiff slipped and fell due to the floor being slippery and suffered severe injury to her elbow.
[5] The plaintiff alleged that the said accident was caused purely by the negligence of the defendant, their servants or agents.
[6] The plaintiff pleaded that it is an implied term of the contract of carriage that the defendant would ensure the safety of all its passengers and the defendant has breached this term and failed to exercise their obligation and/ or were negligent in exercising their duty of care owed to the plaintiff under the said agreement. The plaintiff further pleaded that the said accident was caused purely by the negligence of the defendant, their servants or agents. The particulars of negligence are all set out in the plaintiff’s SOC.
Chronology Of Events
[7] The chronology of events as stated in pp 2-5 of the plaintiff’s written submissions for this appeal are as follows:
8 January 2014 Plaintiff filed writ and statement of claim
21 January 2014 Service of writ and statement of claim on defendant at 5th Floor, Menara Hap Seng, Jalan P. Ramlee, 50250 Kuala Lumpur
27 January 2014 Filing affidavit of service of writ and statement of claim affirmed by Jayakumar Narayanasamy
5 February 2014 Plaintiff filed Certificate of Non-Appearance 5 February 2014 Case Management before Tuan Zainal (MSS4).
Attended by:
Ms Harsheetal Kaur – plaintiff ’s solicitors Defendant – absent
5 February 2014 - Interlocutory judgment in default with damages to be assessed obtained by plaintiff.
- Assessment of damages to be heard on 6 March 2014. - Bundle of documents to be filed a week before the Hearing.
17 February 2014 Plaintiff served a copy of sealed Interlocutory Judgment on defendant at 5th Floor, Menara Hap Seng, Jalan P Ramlee, 50250 Kuala Lumpur.
Acknowledged by defendant using chop ROYAL JORDANIAN (993400-V), 5th Floor Menara Hap Seng, Jalan P Ramlee, 50250 Kuala Lumpur.
18 February 2014 Plaintiff informed the defendant at 5th Floor, Menara Hap Seng, Jalan P Ramlee, 50250 Kuala Lumpur of the date of assessment of damages fixed for 6 March 2014. Acknowledged by defendant using chop ROYAL JORDANIAN (993400-V), 5th Floor Menara Hap Seng, Jalan P Ramlee, 50250 Kuala Lumpur.
3 March 2014 Plaintiff filed Bundle of Documents for assessment of damages
6 March 2014 Hearing of plaintiff ’s assessment of damages before Puan Sitarun Nisa bt Abdul Aziz
Attended by:
Ms. Harsheetal Kaur – plaintiff ’s solicitors Defendant – absent
- Court instructed to file written submission on 10 April 2014.
18 March 2014 Notice of Interlocutory Judgment was sent to defendant’s Jordan addresses via registered mail and email and fax and copied to defendant’s registered address in Malaysia.
Acknowledged by defendant using chop ROYAL JORDANIAN (993400-V)
10 April 2014 Plaintiff filed written submission for assessment of damages
Case Management before Puan Sitarun Nisa bt Abdul Aziz
Attended by:
Mr N Nathan & Ms Harsheetal Kaur – plaintiff ’s solicitors
Defendant – absent
- Court informed that decision to be given on 22 April 2014.
11 April 2014 Second notice of interlocutory judgment and proceedings of assessment of damages was sent to defendant’s Jordan addresses via registered mail and email and fax and copied to defendant’s registered address in Malaysia.
Acknowledged by defendant using chop ROYAL JORDANIAN (993400-V).
21 April 2014 Defendant filed and served notice of appearance 22 April 2014 Decision after assessment of damages before Puan
Sitarun Nisa bt Abdul Aziz Attended by:
Ms Harsheetal Kaur – plaintiff ’s solicitors Mr Ian Ghee – defendant’s solicitors
The court adjourned to 29 April 2014 as decision was not ready.
29 April 2014 Final judgment after assessment of damages for the sum of:
(i) Special damages – RM64,572.90; (ii) General damages – RM35,000.00; (iii) Costs of RM7,871.00
Attended by:
Ms. Harsheetal Kaur – plaintiff ’s solicitors. Mentioned on behalf of defendant’s solicitors. 2 May 2014 Draft Order sent to defendant’s solicitors for approval. 9 May 2014 Defendant’s solicitors informed plaintiff ’s solicitors
that they are not obliged to approve the draft Order and return the same unapproved.
3 June 2014 Defendant filed three applications
(i) Application to set aside Interlocutory Judgment in default dated 5 February 2014 – encl 17
(ii) Application to set aside Final Judgment dated 29 April 2014 – encl 15
(iii) Application to strike out writ and statement of claim – encl 19
17 June 2014 Sealed final judgment dated 29 April 2014 served on defendant’s solicitors.
19 June 2014 Plaintiff filed application to amend defendant’s name – encl 28
Decision Of The Sessions Court Judge (RR Tambahan pp 18-21)
[8] The learned Sessions Court judge (“the judge”) considered the following two issues in her judgment dated 26 February 2015:
(1) whether the “default judgment” (“JID”) was a regular or an irregular judgment; and
(2) whether the proposed defence has its strength.
Regarding issue (1), the judge found that the defendant has been wrongly sued and there appears to be a wrongful citation of the defendant company. The wrong defendant had been named in the summons.
Regarding issue (2), the judge noted that the alleged incident took place at the business lounge at the Queen Alia airport in Jordan. She stated, “It would appear that the courts in Jordan would be the forum conveniens as that is the place wherein the cause of action arose and where the witnesses are”.
[9] The judge applied the overriding principle that justice is to be done and other factors should rank secondary. She allowed the JID to be set aside for two reasons:
(i) there appears to be merits in the defence;
(ii) any injustice caused to the plaintiff would only be delay in enjoying the fruits of the default judgment. Regarding this point, the judge further stated that the plaintiff herself is dissatisfied with the judge’s judgment and had appealed as regards the award. As such, the judge is of the view that the inconvenience caused to the plaintiff occasioned by the delay can be adequately compensated with costs.
[10] The judge then set aside both the interlocutory judgment and the final judgment with costs to the plaintiff. She ordered the defendant to file its defence within the 14 days period.
High Court’s Decision Regarding The Plaintiff’s Appeal
[11] On 5 June 2015, I dismissed the plaintiff’s Appeal and affirmed the decision of the Judge, and ordered costs of RM3,000.00 to be paid by the plaintiff to the defendant. I further ordered that the case be remitted to the Sessions Court, Kuala Lumpur for trial.
Grounds For High Court’s Decision
[12] Under O 13 r 8 of the Rules of Court 2012 (“ROC”), the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of the Order.
[13] Order 42 r 13 of the ROC provides as follows: “Setting aside or varying judgment and orders (O 42 r 13)
13. Save as otherwise provided in these rules, where provisions are made in these rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an 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]
[14] In this case, the defendant, inter alia, filed on 3 June 2014:
(i) the application to set aside the interlocutory JID dated 5 February 2014 (encl 17); and
(ii) the application to set aside the final judgment dated 29 April 2014 (encl 15).
[15] The court has absolute discretion to set aside a judgment on the application of the defendant (see Tetuan Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor [1996] 3 MLRH 354).
[16] The principle governing the exercise of discretion of the court is “that unless and until the court has pronounced a judgment upon merits or by consent, it is to have the power to revoke the expression of its coercive powers, where that has been obtained by a failure to follow any of the rules of procedures” (see Evans v. Bartlam [1937] AC 473, per Lord Atkin at p 480).
The Judgment Is Irregular
[17] It is well settled law that if a judgment is irregular, it will be set aside ex debitio justitiae (as a matter of right) (see Federal Court decision in Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad [1995] 2 MLRA 155). [18] In the present case, the plaintiff has named/cited the defendant as “Royal Jordanian Airlines”. However, as submitted by learned counsel for the defendant, the defendant is registered as “Alia – The Royal Jordanian Airline Corporation” under the Companies Act 1965 under a foreign company registration.
[19] Section 339 of the Companies Act 1965 provides that the document (in this case, the writ and SOC) to be served on a foreign company shall be sufficiently served if “addressed” to the foreign company.
[20] Here, the defendant was wrongly named. The effect of it is that the writ and SOC were not served on the defendant. That being the case, the interlocutory JID of appearance and the final Order for JID ought to be set aside, as a matter of right, which the judge rightly ordered.
[21] The plaintiff submitted that the defendant by their own conduct had held themselves out as “Royal Jordanian Airline” to the world at large. Hence, the citation of the defendant’s name is a mere misnomer and all cause papers have been amended which relates back to the time of filing.
[22] As can be seen from the chronology of events above, the defendant had on 17 February 2014, 18 February 2014, 18 March 2014, 11 April 2014 acknowledged receipt of the sealed interlocutory JID, the plaintiff’s letter for assessment of damages, the plaintiff’s notice of interlocutory JID, and the plaintiff’s second notice of interlocutory JID etc respectively by using the chop “ROYAL JORDANIAN”. In my opinion, the chop can either be the abbreviated name of the defendant as wrongly cited, or the abbreviated name of the defendant’s registered and correct name. However, it does not detract from the crucial fact that the defendant was wrongly named by the plaintiff in this action.
[23] It is observed that the defendant only filed the application to amend the defendant’s name (encl 28) on 19 June 2014, ie more than seven weeks after
the sealed final judgment dated 29 April 2014 was served on the defendant’s solicitors, and more than five months after the writ and SOC were filed on 8 January 2014. It was only on 21 November 2014 that a Consent Order was recorded by the court on the amendment of the defendant’s name to its registered and correct name.
[24] Thus, the judge did not err in fact or in law to hold that the judgment is irregular and ex debitio justitia, it ought to be set aside upon the application of the defendant.
[25] There is no legal requirement for the defendant to enter appearance and file the defence in accordance with the ROC at the material time since there was no service of the writ and SOC on the defendant considering that the defendant was wrongly named in the action.
[26] On this ground alone, ie that the judgment is irregular, the judgment ought to be set aside, without the court having to consider whether the defence has merits. However, since the judge considered the matter, I shall now proceed to deal with it.
The Defence Has Merits
[27] The judge rightly considered the issue of “forum conveniens” (in her own words). While the plaintiff may argue that her claim is based on contract and the plaintiff had purchased the ticket in Malaysia and Malaysia is the appropriate forum for this case, the fact remains, as pointed out by the judge, that the cause of action arose in Jordan, at the Queen Alia airport. The alleged accident caused by the defendant’s alleged negligence and breach of implied terms of the contract of carriage took place there and the witnesses to the accident are there, and not in Malaysia.
[28] Under the Subordinate Courts Act 1948 (“SCA”), there is no provision equivalent to s 23(1) of the Courts of Judicature Act 1964 which provides for the civil jurisdiction of the High Court as follows:
“23. (1) Subject to the limitations contained in art 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where:
(a) the cause of action arose;
(b) the defendant or one of several defendants resides or has his place of business;
(c) the facts on which the proceedings are based exist or are alleged to have occurred; or
(d) any land the ownership of which is disputed is situated, within the local jurisdiction of the court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.”
[29] However, based on a careful reading of ss 59 and 65 of the SCA, it is clear that the Sessions Court has jurisdiction to try all actions and civil suits which are within the limits of its jurisdiction. It is to be noted that on record, the defendant did not contend that the Malaysian Sessions Court has no jurisdiction over the matter. This is borne out by the fact that the defendant did not file any application under O 12 r 10(1) of the ROC to dispute the jurisdiction of the court.
[30] Order 12 r 10(1) of the ROC provides as follows: “Dispute as to jurisdiction (O 12 r 10)
10. (1) A defendant who intends to dispute the jurisdiction of the court in the proceedings by any irregularity as is mentioned in r 9 or on any other ground shall enter an appearance and, within the time limited for serving a defence, apply to the court for:
(a) an order setting aside the writ or service of the writ on him; (b) an order declaring that the writ has not been duly served on him; (c) …
[31] However, the issue considered by the judge is not one of whether the Malaysian Sessions Court has jurisdiction, but rather which is the more convenient, proper or appropriate forum to hear the matter since the cause of action arose in Jordan, and not Malaysia. That, to my mind, would be the subject matter of the defendant’s application, if any, to be made under O 12 r 10(2) of the ROC subsequent to the disposal of encls 15 and 17.
[32] O 12 r 10(2) of the ROC provides as follows:
“10. (2) A defendant who wishes to contend that the court should not assume jurisdiction over the action on the ground that Malaysia is not the proper forum for the dispute shall enter an appearance and, within the time limited for serving a defence, apply to court for an order to stay the proceedings.”
[33] Suffice at that stage for the judge, when deciding the interlocutory applications in encls 15 and 17 before her, to make a finding that the defendant does have merits to its defence, and the defendant should be given an opportunity to defend the plaintiff’s action. It is not required of the judge to decide at that juncture on the strength or weakness of the defendant’s defence, and whether it can succeed. That is to be left to the trial of the action.
[34] I further observe that the judge did consider the plaintiff’s contention that there has been inordinate delay on the part of the defendant to make the Applications, and she found it hard to excuse the defendant for what appears to be its lackadaisical attitude. The defendant’s reason for delay in filing encls 15 and 17 is that the defendant was wrongly named so there was no requirement for the defendant to enter appearance or take any action. Clearly, the defendant was not wrong in taking this stance. In the circumstances, I am of the view that
the judge was right to exercise her discretion in the defendant’s favour based on the overriding principle of justice. The provisions and similar principles in O 1A, O 2 r 2(1), (2) and (3), and O 92 r 4 of the ROC should also apply. Conclusion
[35] Based on the above considerations, I am satisfied that the judge had not erred in fact or in law. Therefore, there is no justification for this court to interfere with her decision, or to reverse it.