LIAW YUN FAH v POON WAI MING & Anor (Ground of Decision dated 26.07.

2021)

Parties

 Liaw Yun Fah - a Tenant - Defendant/Appellant (A)

 Poon Wau Ming (and anor) - Landlords - Plaintiffs/Respondents (R)

Facts

 R filed Writ - alleged service effected on A - R filed CONA and subsequently JIDA against A - R filed &
served Writ of Poessesion and the premises was closed and all goods detained in the premises
 A filed NOA to set aside JIDA and to be given extension of time to file appearance
 Magistrate Court dismissed - held JIDA was regular
 A filed this appeal to HC

Ground of Application (A NOA)

 JIDA did not cite relevant and correct rules of Order 13 ROC 2012
 R breach O 13 r 4 - R failed to produce cert by their Solicitor stating that the R are not claiming relief
in action of the nature specified in O 83 r 1 (Charge Action) before entering JIDA
 R breach O 13 r 5 - R claim two or more claims mentioned in foregoing rules of O 13 r 5 but have
entered JIDA for all claims indorsed on the Writ
 Breach O 13 r 6 - R claim for costs on full indemnity basis (falls under other claims) and have entered
JIDA whereas R ought to proceed w action as if A had entered appearance

Principle in Setting Aside Default Judgement

 Irregular judgement may be set aside

 Whether A have prima facie defence against R claim does not matter at this stage
 Court's have discretion to set aside default judgement because its not judgement on merits - if
obtained irregularly, Def entitled to have judgement set aside ex debito justitiae (as of rights)
 If default judgement has too many serious uncertainty renderring the judgement irregular - can be
set aside despite long delay applying to set aside - since judgement is a nullity, the delay is not fatal
 default judgment wrongly entered under roc is a substantial defect and not mere procedural defect
which may be cured by O 2 r 1

Court HELD

 R Writ & SOC have mixed claims

a. liquidated damages claim- rental arrears (O 13 r 1)
b. unliquidated claim - mesne profits or double rent ( O 13 r 2)
c. delivery of vacant possession of immovable property (O 13 r 4)
d. costs for full indemnity basis (O 13 r 6)

 R not entitled to enter JIDA not mentioned in r 1-4

 R enter JIDA for all claims including (d)
 Non-compliance w O 13 render the JIDA irregular
 R claims are mixed claim, hence if A fails to enter appearance, R may enter JIDA against A for claim
under r 1-4 if that were the only claim endorsed on the Writ (O 13 r 5 - mixed claims)
 R could only enter final judgement against A for rental arrears
 R cannot enter final judgement for double rental - R could enter interlocutory judgment for damages
to be assessed and costs.
 (even if double rental can be calculated, the status still fall under unliquidated damages)
 R must produce cert under O 13 r 4, in order to enter judgement for possession of immovable
property

A appeal allowed