APPEARANCE AND JUDGMENT IN DEFAULT
Defendant must enter into appearance to show his intention to defend and submission to the
courts jurisdiction.
Modes of entering an appearance are as contained in Form 15 or Form 16 of the RHC.
In the High Court, the Defendant may enter an appearance by completing the requisite
documents (Memorandum of Appearance) and presenting them at the registry.
The MOA is the request to the registry to enter an appearance for the Defendant specified in
the memorandum MOA must be in Form 15 and shall be signed by the solicitor
representing the Defendant or if unrepresented, the Defendant must sign it personally O.12
r 2 RHC
Form 15- unconditional appearance:
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Waiver of irregularity
Defendant does not intend to raise preliminary objections such as irregularities in the
form or service of the writ or to the jurisdiction of the court.
Form 16- Conditional Appearance:
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Appearance under protest- e.g. Setting aside the writ (O.12 r.7 RHC)
Must get leave to enter Conditional Appearance
Defendant must apply to the court for an order to set aside the writ or service of the
writ or notice or declaring that the writ or notice of the writ has not been duly served
to him or discharging any order giving leave to serve the notice on him out of
jurisdiction
Procedure:
Practice Note No.4 (1980)
i)
Ex-
Parte application
ii)
To the Registrar in Chamber
iii)
Solicitor must see the Registrar personally
iv)
Registrar straight away hear the application and make judgment provided
that the Plaintiff shows Bona Fide intention
v)
Leave must be endorsed in the Memorandum of Appearance
Order given by the Registrar must specify the time in which the application to be set
aside Registrar must fixed the date
Time limit for appearance
-
O.12 r.4 RHC
Seng Loong Trading Co v Angel etc Bhd (1987)
Local jurisdiction of the High Court of Malaya at Kuala Lumpur means the
territory of Kuala Lumpur.
O.12 r.5 (2) RHC- D not precluded from entering an appearance outside the time
limit, but where the defendant enters appearance outside the period, he must obtain
the court orders to do so.
Effect of Non Appearance
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P can obtained Judgment in Default under O.13 RHC
5 categories of claims
Liquidated damages ( O.13 r. 1)
Unliquidated damages (O.13 r.2)
Detinue (O.13 r.3)
Immovable property (O.13 r.4)
Combination of claims specified in the rules (O.13 r.5)
Judgement in Default may be in the term of
a) Final Judgement
b) Interlocutory Judgment - temporary in nature where further steps need to be taken
in order to finalise it
Equitable remedies (i.e. Specific performance, injunction, rectification, declaration,
account) will not subject to default judgment since the award for these remedies are
based on the discretion of the court and therefore incompatible with the nature of
automatic nature of default judgment. O.13 r.6
The P need not enter into JID after the expiration of the time limit for appearancemay proceed with the action as if the D has entered appearance.
Case: Leong Seng Kiat v. Khaw See Seong (1988)
In action for specific performance, the P are to proceed as if the
D has entered appearance and hence precluded from obtaining
JID
JID of Pleadings
-
Shall refer to the proceeding under O.19 r.7
Case: Syarikat Joo Seng v. Habib Bank
Matter falls within O.19 r 7 and the P did not apply for leave of
court. JID was deemed to be irregular- O.2 r. 1 does not apply
Procedure to enter JID
-
No appearance before a judge or registrar is involved merely an administrative
process
O.13 r 7 provides application to enter into JID
a) Certificate of non-appearance- Form 17
b) Affidavit verifying service- Form 137
c) 2 completed judgment forms duly stamped- Form 79
d) Original writ duly indorsed as to service O10 r 1 (4) RHC
Rule 56 of the Legal Profession (Practice and Etiquette) Rules 1978- 7 days notice to
be given to the Ds solicitor on the intention to enter JID of appearance.
Case: Asia Commercial Finance v. BBMB
D made an application to set aside JID- First ground: P did not
complied with Rule 56- Second ground: JID had been entered
one day short of the 14 days period as provided under O.16 r
2(1) RHC and 8 days required for entering the appearance did
not include the day of service
HELD: Non-compliance with Rule 56 does not render the JID
irregular-the rule does not regulate the proceeding in the High
Court- 2nd ground: 8 days include the day of service- still
within the 14 days- JID was regular
Case: PL Construction Sdn Bhd v. Abdullah bin Said
48 hour notice is only practise notice- JID not in compliance
with the Rule is still a valid judgment
Setting aside JID of Appearance
-
Court has absolute discretion to set aside JID
a) Can be set aside or varies by the court on such terms as it thinks fit
Case: Tuan Hj Ahmed Abdul Rahman v. Arab Malaysian Finance
it is clear law that the court still retains a discretion to set aside
an irregular judgment if no one has suffered prejudice by
reason of delay, or where such prejudice has been sustained, it
can be made by an appropriate order as to costs
b) Time for setting aside
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O. 43 r 13 RHC- Must be done30 days after the receipt of judgment or order
Case: Tian Yan Onn v. National Holdings
Delay of 7 months 12 days was held to have been too late-JID
not allowed to be set aside
Case: Fira Development v. Goldwin Sdn Bhd
Delay is merely one of the factors to be taken into account
c) Procedure for setting aside Summons supported by Affidavit
d) Regular Judgment
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The Plaintiff has complied with all the procedural steps
Defendants affidavit must show evidence of prima facie defence/ defence on the
merits
Case: Lai Yoke Ngan v Chin Teck Kwee
e) Irregular judgment
-
There is some irregularity in the proceeding for JID
Plaintiff is required to pay all expenses related to the application to set aside JID by
the Defendant.
Case: Taisho Marine Insurance v. Wong Poo Peng
Applicants application was dismissed as there was no prima
facie defence by merely alleging that the writ of summons was
not properly served
f) Proceeding against government
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O.73 r.7 RHC & O.43 r.6 (1) SCR- No judgment in default of appearance or of
pleading shall be entered against the government except with leave of court
g) Judgment entered for a greater sum
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Defendant may apply to set aside and the Plaintiff may apply to amend the judgment
Case: Philip Securities v. Yong Tet Miaw
JID of defence for an amount in excess of what has been dueCourt has jurisdiction to amend it rather than to set it aside.
Case: Cheow Chew Khoon v. Abdul Johari
JID for damages is more than what is due for lawful
occupation-irregular and the judgment in regard to the delivery
of vacant possession was prematurely obtained- judgment to be
set aside ex debitio justitiae
