Written by Darren Lai and Kimberly Chan

Our last article discussed the general process of initiating a suit and the rules on pleadings. We also briefly mentioned Judgment in Default (“JID”).  This article explains what a JID is and how it is obtained.

What is a Judgment in Default?

As previously mentioned, under the Rules of Court 2012 (“the ROC 2012”), a Defendant shall enter appearance within fourteen (14) days from the date of service, failing which a Judgment in Default of Appearance may be entered against him/her. 

The Plaintiff may obtain a JID against the Defendant where the Court has been satisfied that a Writ of Summons has been served on the Defendant, but he/she has failed to enter appearance within the specified timeline.

It is also to be noted that a JID can be entered automatically without the need to inform the Defendant further after the expiry of the deadline. Once a JID is entered, the matter is closed and a final judgment is deemed entered, unless set aside.

Setting Aside a JID

Under Order 43 rule 13 of the ROC 2012, the Defendant has a time frame of thirty (30) days from the date of receipt of the JID to apply to the Court to set aside the JID.

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.

 

However, the setting aside is not guaranteed as the Court has the power to exercise its discretion in doing so as provided for under Order 13 rule 7 of the ROC 2012.

Setting aside judgment (O. 13, r. 8)


8. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.


The Court in the case of Ching Yik Development Sdn Bhd & Anor v Wordware Distributors (M) Sdn Bhd & Anor [2012] 10 MLJ 611 ruled that the Defendants are entitled to set aside an irregular JID as of right, but there is “a need for the Defendants to show a defence on merits before they can set aside the default judgment” in an application to set aside a regular JID.

[18]  It goes without saying that if the writ and statement of claim are properly served then the judgment is a regular judgment and there would then be a need for the Defendants to show a defence on merits before they can set aside the default judgment. Conversely if the writ and statement of claim are not properly served then the default judgment entered against the Defendants is an irregular one and the Defendants would be entitled to set it aside as of right.

What is a Regular and Irregular Judgment? 

An irregular judgment is one obtained without complying strictly with the ROC 2012 such that it renders proceedings a nullity. This was held by the Court in the case of Lee Kok Kee v Ooi Chee Wee [2020] MLJU 285.

[10]  The approach the court has to take when considering an application to set a judgment in default is well established. The court must first ascertain whether the judgment is a regular or irregular judgment. If it is an irregular judgment the court will set aside the judgment ex debitio justitiae. An irregular judgment is one that has been entered otherwise than in strict compliance with the rules of court or entered as a result of some impropriety which is so serious as to render the proceedings a nullity (Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Berhad [1994] 1 CLJ 328 and Tuan Ahmed Abdul Rahman v Arab-Malaysian Finance Berhad [1996] 1 CLJ 241). If the judgment is a regular judgment the court has a duty to determine whether the Defendant has a defence on merit.

Defence on the Merits

In the case of Yayasan Melaka v Photran Corp Sdn Bhd & Anor [2012] 7 MLJ 1, the Court explained that a ‘defence on the merits’ is where an arguable or triable issue is raised:

[30]  In the instant case the learned judge did not consider the judgment to be irregular. Mallal’s Supreme Court Practice, (2nd Ed), Vol I at p 84 explains the position where the judgment is regular thus:


The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits; or for some very sufficient reason: Bank Bumiputra Malaysia Bhd v Majlis Amanah Ra’ayat [1979] 1 MLJ 23; Farden v Richter (1889) 23 QBD 124.


A defence on the merits means merely raising only an arguable or triable issue, eg contributory negligence in a running down case in White v Weston [1968] 2 QB 647. A judgment in default is not a judgment on the merits: L Oppenheim & Co v Mahomed Haneef [1922] 1 AC 482. (Emphasis added.)

Summary

In summary, it is important to enter an appearance (if the Defendant intends to defend the case) when served with a writ within the specified deadline, failing which a JID, which is a final judgment, can be entered against a Defendant in a case. 

Once a JID is entered, it is important to take note of the 30 day time limit to set aside a JID. If the judgment was entered into properly and in compliance with the ROC 2012, the Defendant must show the Court that there is a defence on the merits. Accordingly, a draft defence ought to be included into the application for setting aside a JID. On the other hand, if the judgment entered into contravened rules in the ROC 2012 and is irregular, then the Defendant is entitled to set it aside as of right.

 

Published on 05 January 2022

 

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