PROGRAMME: DIPLOMA IN LAW 2019/2020

SUBJECT: CIVIL PROCEDURE (LLD 20903)

LECTURER: MADAM KAMALIAH BINTI SALLEH

PROJECT TITLE: CASE REVIEW

ASSIGNING DATE: 17 JUNE 2020
SUBMISSION DATE: 22 JUNE 2020

NO NAME MATRIC NUMBER

1 Che Isma Nurdinie Syukriah binti Che Ismail 048875

2 Najah Hani binti Sazili 048576
3 Nur Athirah binti Mohamad Zuki 048920
4 Siti Nuraisyah binti Mohd Kamal 048596
 LEGAL CASE REVIEW TEMPLATE
CONTENTS:

NAME OF THE CASE LEOW BOKE CHOOI v ASIA MOTOR CO LTD

THE CITATION OF THE CASE [1967] 2 MLJ 109

BACKGROUND OF THE CASE NAME OF
PLAINTIF/DEFENDENT PLAINTIFF: LEOW BOKE CHOOI
OR APPELANT &
DEFENDANT: ASIA MOTOR CO LTD
RESPONDENT

LOCATION KUALA LUMPUR

COURT LEVEL APPELLATE CIVIL JURISDICTION
GILL. J
NAME OF THE JUDGE

DATE/YEAR IT WAS MARCH 6, 1967

DECIDED

The plaintiff, respondents herein, filed an action aginst the

defendant-appellant in the Sessions Court in November 1964 for
FACTS
the recovery of a sum of $1,175.50 for goods sold and delivered
and services rendered.
* Description of plaintiff, his background & his claim.

* Description of defendant, his background & his defence.

The defendant which is the premises at T/S Soon Yew Motor
Company,10-T, Kedai hiller, Kuala Terengganu, failed to appear
in court when the action came for hearing and the judgement
made agaisnt him. So, he applied to the court for setting aside
the judgement but it was dismissed and he appealed it to the
High Court.
* Description on facts, the cause of action (eg: what went wrong?
How the disputes / issues arose?) Who is defendant & what is his
defence? The defendant (T/S Soon Yew Motor Company, 10-T, Kedai
Hilller, Kuala Terengganu) made an appeal against an order of
the President Session Court, Kuala Lumpur dated 4th November
1965, dismissing the defendant's application to set aside a
judgement which was entered against him in favour of plaintiff
(Leow boke Chooi) in the sum of $1,175.50 on 24th March 1965.
The learned president dismissed the defendant's application on
the ground that there was no merit at all in the application.
In the ground of judgement, the judge stated that the defendant in
his affidavit in support of application hade merely denied owing
any money and that neither his belated statement or defence nor
his affidavit disclosed any ground of opposing the palintiff's claim.
In this view of this appeal, the appeal should be decided, it is not
necessary to discuss on the merits of defendant's application.

* How did the matter initially refer to court? What side did the court
find to be more convincing?

* In respect of appeal case, the notes must include the procedural

history such as:

* Name of the court, decision & grounds of judgement (summary)

* Who then appealed & grounds of appeal

 Whether there was an effect of failure to post copies of summons
ISSUES on notice board of court house in Kuala Lumpur as required by
1ST ISSUE
order of court?
* What legal questions that become the
centre of court's analysis, the arguments /
contentions of the counsels? Whether the judgement obtained irregular?
2ND ISSUE

* What legal question that become the Whether the defendant application to set aside the judgement
key determining factor in the court
decision? which had been obtained against him (ex parte) can be accepted
3RD ISSUE
or not?

4TH ISSUE

Yes, there was an effect of failure to post copies of summons

on notice board of court house in Kuala Lumpur as required by
DECISIONS
1 order of court where there had been no good and sufficient
service.
* How does the court answer the legal
question - Yes? / No? In between? What
was the test used / suggested? Yes, the judgment obtained irregular because through some slip
or error in the part of the defendant, in which case the court has a
2 discretion to impose terms as a condition of granting the
defendant relief.

* Who won the case? Whether the appeal Yes, the defendant application to set aside the judgement which
was affirmed / overruled / reversed?
had been obtained against him (ex parte) can be accepted
because of he had no knowledge as to when and how the action
3 against him was filed and he was not aware of the date of trial.
He also did not owe any money to the plaintiffs and that he had
valid, firm and good grounds to oppose the plaintiffs' claim.

The appellant file an appeal against the order of the president

of Sessions Court in Kuala Lumpur dated on 4th November
1965 where the court dismissed the appeal by the defendant's
GROUNDS OF JUDGMENTS
to set aside a judgment which was entered against him in
favour of the respondents for the sum of $1,175.50 dated on
24th March 1965.
* What does the case seem to be about? The learned president of sessions court dismissed the
What argument does the court use to
justify the answer? What other cases does
defendant's application as there was no merit at all in the
the court cite? Does it follow or distinguish application. In his ground of judgment, he expressed that the
the cases & why? defendant in his affidavit in support of the application had
simply denied the debt and his statement of defense was not
late or his affidavit did not reveal the grounds for opposing the
plaintiff's claim. However, in view of the basis, the judge
thought that this appeal should be heard, and it does not
necessary to analyse the merits of the defendant's application.
The learned president had overlooked the order of substituted
service where it had not been complied by the
plaintiff/respondent as neither copy of the summons, the
statement of claim nor the order for substituted service ever
posted on the notice board of the court house in Kuala Lumpur.
The consequence of such non-compliance with the order was
that the service on the defendant is not good and not sufficient.
Therefore, the plaintiff had obtained judgment against the
 1
The other cases that the court cite were, in Anlaby and Othars
Praetorius [1888] 20 QBD 764, where it was held that when a
plaintiff has obtained judgment irregularly, the defendant is
entitled ex debito justitiae to have such judgment set aside.
Next, in the case of Craig Kanseen [1943] 1 AII ER 108, it was
held that the failure to serve the summons upon which the
order in that case was made was not a mere irregularity, but a
defect which made the order a nullity, and therefore, the order
must be set aside .
By referring to the other cases that the court cited, the appeal
was allowed by setting aside the order of the learned president
and substituting in its place an order that the ex parte judgment
against the defendant be set aside. In all the circumstances of
the case, the judge made no orders as to cost of the appeal and
imposed no condition on the defendant as a term for setting
aside the judgment. As the learned president made a note that
the summons had been served and then gave the judgment
against the defendant for the amount claimed together with
interest and costs. However, the posting at the premises as
required under the order was done, but no posting was done on
the notice board of the courthouse, Kuala Lumpur and when the
action came up for hearing, the defendant failed to appear in
court. Hence, it is the failure of the plaintiff to effect the service
of summons against the defendant/appellant.

*The note must identify the judge's logics /

reasons.
2

* If it involves panel / quorum, what is the

opinion of the court / majority opinion?
Are there any separate opinion? What 3
was the concurring opinion? What was the
dissenting opinion? What gives rise to
disagreement? Does the dissenter
interpret the facts the same way as the
majority? Does the dissenter address and
respond to the majority's reasoning?
4

ANALYSIS & CONCLUSION

* What does the case remind you? Is there any unresolved issues in Lessons that we have learned through this case is that, the
this case? What do you learn from the case?
plaintiff must completely substitute the service to posting the
copies of summons before send it to the defendant and notice
board of the court house, Kuala Lumpur. Before he could
continue the service, the order from the court must be obtained
first because he could not serve it personally to the defendant.
When the copies of summon is completely done, there will be no
effect of such non-compliance with the order and the plaintiff
could serve the summons to the defendant with good and
sufficient service. The judgement against the defendant also will
not obtain irregularly.

RATIO DECIDENDI
*the rule of law upon wich the case is founded. It is the reason for the The question of service whereby the plaintiff/respondent failed to
decision, without which the case would have been decided otherwise.
comply with the order for substituted service. As the service was
irregular/not sufficient it leads to irregular judgment. Therefore,
the judge followed the rule as laid down in the case of Anlaby &
Ors Praetorius [1888] 20 QBD 764 and the case of Craig
Kanseen [1943] 1 All ER 1, where both of the cases held that,
when the judgment was irregular the decision must be set aside.
Following to the cases stated earlier, the court allowed the
defendant's/appellant's appeal.
OBITER DICTUM (IF ANY)
* Obiter dicta (means 'things said by the way') or described as the
words delivered by or mere saying of a judge which are not essential
to his decision.

COMMENTS
NAME OF LECTURER
MADAM KAMALIAH BINTI SALLEH
COMMENTS

DATE SIGNATURE
 LEOW BOKE CHOOI v ASIA MOTOR CO LTD
CaseAnalysis | [1967] 2 MLJ 109

LEOW BOKE CHOOI v ASIA MOTOR CO LTD [1967] 2 MLJ 109

Malayan Law Journal Reports · 1 page

ACJ KL

GILL J

CIVIL APPEAL NO 1 OF 1967

6 March 1967
Case Summary

Practice and Procedure — Service — Order for substituted service of summons — Failure

to post copies of summons etc on notice board of court house in Kuala Lumpur as

required by order of court — Effect of — Whether judgment obtained irregular

Practice and Procedure — Judgment — Ex parte judgment — Setting aside

The plaintiffs, respondents herein, filed an action against the defendant-appellant in the Sessions

Court in November 1964 for the recovery of a sum of $1,175.50 for goods sold and delivered and

services rendered. As the summons could not be served on the defendant personally, the plaintiffs

obtained an order for substituted service by posting copies of the summons and the statement of

claim together with a sealed copy of the order on the notice board of the court house, Kuala

Lumpur, and on a conspicuous part of a named premises in Kuala Trengganu. The order was only

posted at the premises as required but no posting was done on the notice board of the court

house, Kuala Lumpur. When the action came for hearing the defendant failed to appear in court

and judgment was accordingly made against him for the amount claimed. His application to set
 LEOW BOKE CHOOI v ASIA MOTOR CO LTD

aside the judgment having been dismissed, the defendant appealed to the High Court.

Held: the learned president had overlooked the fact that the order of substituted service had not

beep complied with in that no copies of the summons, the statement of claim and the order were

posted on the notice board of the court house in Kuala Lumpur. The effect of such non-compliance

with the order was that there had been no good and sufficient service on the defendant, so that

the plaintiffs had obtained judgment against the defendant irregularly. The appeal should be

allowed and the order of the learned president of the Sessions Court set aside.

Cases referred to

Anlaby & Ors Praetorius [1888] 20 QBD 764

Craig Kanseen [1943] 1 All ER 108

CIVIL APPEAL

GS Nath for the appellant.

Thoo Chow Thye (Miss) for the respondents.

GILL J

This was an appeal against an order of the President, Sessions Court, Kuala Lumpur dated 4th

November, 1965 dismissing the appellant-defendant's application to set aside a judgment which

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 LEOW BOKE CHOOI v ASIA MOTOR CO LTD

was entered against him in favour of the respondents-plaintiffs in the sum of $1,175.50 on 24th

March, 1965.

The circumstances leading up to the application were as follows. The plaintiffs filed an action

against the defendant in the sessions [*110]

court on 18th November, 1964 for the recovery of a sum of $1,175.50 for goods sold and delivered

and services rendered by the plaintiffs to the defendant at the latter's request on various occasions

in July 1964. As the summons issued against the defendant could not be served on him

personally, the plaintiffs on 14th January, 1965 obtained an order for substituted service by posting

copies of the summons and the statement of claim together with a sealed copy of the order on the

notice board of the court house, Kuala Lumpur and on a conspicuous part of the premises at T/S

Soon Yew Motor Company, 10-T, Kedai Hiler, Kuala Trengganu.

The order for substituted service provided that such service shall be deemed good and sufficient

service on the defendant ten days after such last posting. The posting at the premises as required

under the order was done, but no posting was done on the notice board of the court house, Kuala

Lumpur. The action came up for hearing on 24th March, 1965 when the defendant failed to appear

in court. The learned president made a note that the summons had been served and then gave

judgment against the defendant for the amount claimed together with interest and costs.

On 17th August, 1965 the defendant made an application to have set aside the judgment which

had been obtained against him ex parte. In his affidavit in support of the application he said that

he came to know of the judgment on or about 10th August, 1965 when he was served with a

bankruptcy notice based upon it, that he had no knowledge as to when and how the action against

him was filed and he was not aware of the date of trial, that he did not owe any money to the

plaintiffs and that he had valid, firm and good grounds to oppose the plaintiffs' claim. At the hearing

of the application on 4th November, 1965, he gave evidence to say that he had written a letter to

the sessions court asking the plaintiffs to supply particulars of the claim against him and that, as

Page 3 of 5
 LEOW BOKE CHOOI v ASIA MOTOR CO LTD

he was not in a position to answer the plaint in the absence of particulars, he would ask the court

to re-open the case. An executive of the plaintiff company produced a cheque (marked R.1) which

was sent by the defendant as payment for repairs to certain cars. He also produced a statement

of account together with certain bills (marked R.2) which he said were handed to the defendant

personally.

In the event the learned president dismissed the defendant's application on the ground that there

was no merit at all in the application. In his grounds of judgment he stated that the defendant in

his affidavit in support of the application had merely denied owing any money and that neither his

belated statement of defence nor his affidavit disclosed any grounds for opposing the plaintiffs'

claim. But in view of the basis upon which I thought that this appeal should be decided, I did not

consider it necessary to go into the question as to the merits of the defendant's application.

A point which appeared to have been overlooked by the learned president was that the order of

substituted service had not been complied with in that no copies of the summons, the statement

of claim and the order were posted on the notice board of the court house in Kuala Lumpur. The

effect of such non-compliance with the order was that there had been no good and sufficient

service on the defendant, so that the plaintiffs had obtained judgment against the defendant

irregularly.

In Anlaby & Ors Praetorius [1888] 20 QBD 764 it was held that where a plaintiff has obtained

judgment irregularly, the defendant is entitled ex debito justitiae to have such judgment set aside.

Fry L.J. said in that case at page 769:–

"There is a strong distinction between setting aside a judgment for irregularity, in which case the court has no discretion to
refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some slip or error
on the part of the defendant, in which case the court has a discretion to impose terms as a condition of granting the defendant
relief."

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 LEOW BOKE CHOOI v ASIA MOTOR CO LTD

In Craig Kanseen [1943] 1 All ER 108 it was held that the failure to serve the summons upon

which the order in that case was made was not a mere irregularity, but a defect which made the

order a nullity, and therefore, the order must be set aside.

For the reasons stated I allowed the appeal, setting aside the order of the learned president and

substituting in its place an order that the ex parte judgment against the defendant be set aside. In

all the circumstances of the case I made no orders as to costs of the appeal and imposed no

condition on the defendant as a term for setting aside the judgment.

Appeal allowed.

Solicitors: Eugene Lye & Co; Allen & Gledhill.

End of Document

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