[7] Appearance and Default Judgment

CHAPTER 7
Appearance And Default Judgment

[7.01] A Judgment in Default (“JID”), whether of Appearance or Defence, is entered in

favor of the plaintiff (P) as an exercise of the court’s coercive powers when the
defendant (D) fails to enter an appearance or deliver a Defence within the prescribed
time-frames.

1. Entering an Appearance / Delivery of Defence

[7.02] Once service of the writ1 is duly effected, D must enter an appearance2 within the
prescribed time-frame.3 An appearance does not constitute a waiver in respect of the
form of the writ or the service thereof or to the jurisdiction of the court.4 If D wishes to
challenge the jurisdiction of the Court, he must take out the necessary application5 within
the time limited for serving his Defence.

[7.03] There are 2 other forms of appearance:

(i) an appearance under protest may be entered by a person who claims that he
was not a partner, at the material time, of the firm being sued6; and

(ii) appearance gratis occurs when D enters an appearance even though he was not
duly served with writ.7

[7.04] After entering an appearance, D has 14 days, from the time limited for entering
an appearance, to deliver his Defence.8 If D fails to enter an appearance or deliver his
Defence within the prescribed time-frames, P may enter a JID against him.9

1
Appearance is not required for an OS - O12 r12
2
O12. Appearance is entered by completing a Memorandum of Appearance (Form 15) and filing it at the
Registry (r1(3)) and serving a copy on P’s solicitors (r3(2)). A Memorandum of Appearance is a request to
the Registry to enter an appearance on behalf of D (r2). Appearance by a company and a person under a
disability is governed by O12 r1(2) and O76 r6.
3
O12 r4. The effect of r5, however, is that D may enter appearance at any time before judgment is entered
against him – see Lai Yoke Ngan v Chin Teck Kwee [1997] 2 MLJ 565 (FC)
4
O12 r9. This reverses the distinction in the RHC 1980 between an unconditional and conditional
appearance, which was explained by Chai J in The Avro International [1988] 1 MLJ 147 (HC): “The
effect of entering unconditional appearance is twofold: (1) it waives any irregularity of the writ or its service;
and (2) the defendant is considered to have submitted to the jurisdiction of the court”.
5
O12 r10
6
O77 r4(2)
7
O10 r 1(3). When D enters appearance gratis, he is taken to have waived personal service: Pike v Nairn
& Co Ltd [1960] 2 All ER 184.
8
O18 r 2
9
O13 and O19. A default judgment may also be entered for reasons other than a failure to enter an
appearance or to deliver a Defence – see O16 r5; O24 r16; O26 r7; O34 r2 and O35 r1.

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 [7] Appearance and Default Judgment

2. The Nature of a JID

[7.05] A JID may either be interlocutory (O13 rr 2 & 3)10 or final (O13 rr 1 and 4).11 The
difference is that in an interlocutory judgment, P will have to subsequently assess his
damages.12

[7.06] O19 r713 was considered by the Federal Court in Amalan Tepat Sdn Bhd v
Panflex Sdn Bhd .14 P issued a writ against D seeking a declaration that P had validly
terminated the agreement between them. D delivered its Defence outside the prescribed
time. This led to 2 applications being taken-out: (i) P applied for a JID of Defence whilst
(ii) D applied for an extension of time. The court dismissed D’s application and
consequently, allowed P’s application. The decision was affirmed by the Court of Appeal.
The Federal Court held that it was a rule of practice that a declaratory order would
usually not be made as part of a default judgment, unless there was an evidential basis
to do so.15 The High Court erred when it granted judgment to P upon the dismissal of D’s
application.

3. Setting-aside a JID

[7.07] As explained, a JID is an exercise of the court’s coercive powers. It is not a

judgment on the merits. The court granting such a judgment retains a right to revoke the
judgment i.e set it aside.16 This is clear from Evan v Bartlam 17, where Lord Atkin said:

“The principle obviously is that, unless and until the court has pronounced a judgment upon
the merits or by consent, it is to have the power to revoke the expression of its coercive power
where that has been obtained only by a failure to follow any of the rules of procedure.”

10
O19 rr 3 & 4
11
O19 rr 2 & 5
12
The procedure is set-out in O37
13
Note the difference with O13 r6
14
[2011] 7 CLJ 121
15
In Wallersteiner v Moir [1974] 3 All ER 217, Scarman LJ said: “When what is sought is a declaration,
there is the risk of irremediable injustice; the court has spoken and words cannot be recalled, even though
later they may be negatived: "nescit vox missa reverti" (Horace Ars Poetica I 390). The power of the court to
give declaratory relief on a default of pleading, of course, exists, but .. should be exercised only in cases in
which to deny it would be to impose injustice on the claimant.” In Patten v Burke Publishing Co [1991]
2 All ER 821, Millet J (as he then was) said: “It is not .. normal practice .. to make a declaration when giving
judgment by consent or without a trial as in the case of a judgment in default of defence .. That is a practice
of very long standing .. Even after trial it is not the normal practice of the court to make a declaration that the
defendant had been guilty of fraud or negligence. Justice can be done to the plaintiff by awarding him
damages. If he wishes to parade the basis upon which damages have been awarded to him, he has a
judgment which he can produce. The judgment will contain the findings of fraud or negligence upon the
basis of which the damages have been awarded, and that should be sufficient for the plaintiff's purpose. But
in the absence of a judgment reached after hearing evidence a declaration can be based only on unproved
allegations. The court ought not to declare as fact that which might not have proved to be such had the facts
been investigated.”
16
This simply means that D, who is faced with a JID, will have to apply to the court that granted the
judgment to set it aside – O13 r8; O19 r9. The provisions muste be read subject to the time limit prescribed
by O42 r13.
17
[1937] 2 All ER 646

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 [7] Appearance and Default Judgment

[7.08] D may set-aside the JID by showing one of the following 2 grounds i.e that:

(i) he has a defence on the merits to a regular JID or

(ii) the JID was irregular

3.1 Regular JID

[7.09] In Dialdas & Co (Pte) Ltd v Sin Sin & Co & Ors 18 Chong Yik Liong J said:

“..if the judgment is a regular judgment, then it is an almost inflexible rule that there must be an
affidavit of merits stating facts showing a defence on the merits .. and "defence on the merits"
as explained by Lord Denning, M.R. in Burns v Kondel [1971] 1 Lloyd's Rep 554, means "a
defence which discloses an arguable and triable issue".”

3.2 Irregular JID

[7.10] D, who is faced with an irregular JID, may have it set-aside ex debito justitae i.e
irrespective of merits and without terms. In Tuan Haji Ahmed Abdul Rahman v
Arab-Malaysian Finance Berhad 19 Edgar Joseph Jr FCJ said:

“It is elementary that an irregular judgment is one which has been entered otherwise than in
strict compliance with the rules or some statute or is entered as a result of some impropriety ..
The general rule is that when it is clearly demonstrated to the satisfaction of the Court that a
judgment has not been regularly obtained, the defendant is entitled to have it set aside ex
debito justitiae, that is to say, irrespective of the merits and without terms.”

3.3 Exam ples of an irregular JID

[7.11] These are some examples of an irregular JID.

(i) Defective Service

[7.12] In Kekatong Sdn Bhd v Bank Bumiputra (M) Bhd 20 D had changed its
registered address in July 1985 but P nonetheless served the Originating Summons (for
foreclosure), in February 1986, on D’s former address. P proceeded to obtain an order
for sale on 17.9.1986. D applied to set aside the order. Gopal Sri Ram JCA (as then
was) said:

“.. there was in the eyes of the law no service of the summons .. upon [D]. Since the order for
sale was obtained when there was no service of the court’s process upon [D] as required by
21
law, the order for sale was, and remains, a nullity.
18
[1984] 2 MLJ 223 (HC)
19
[1996] 1 MLJ 30 (FC)
20
See Chap 6 Part C
21
This is an unfortunate way to describe the order. The Court of Appeal refused to follow the decision of the
English Court of Appeal in Singh v Atombrook Ltd [1989] 1 All ER 385 where Kerr LJ took the view that

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 [7] Appearance and Default Judgment

[7.13] In D&C Bank Bhd v Aspatra Corp Sdn Bhd 22 P issued a writ against D on
17.10.1985 and obtained an SS order on 15.1.1986. D did not enter appearance, so P
proceeded to enter JID. On 8.11.1990, D applied to set aside the JID (“1st Application”)
and also prayed that he “be given leave to file an appearance and statement of defence
(sic) to the plaintiff’s claim herein”. The JID was set aside by the High Court on the basis
that (i) the SS order was wrongly granted and (ii) the JID was entered for a sum that was
larger than was actually due. On appeal to the Supreme Court, Peh Swee Chin FCJ
said:

“.. the learned Judge was obviously considering the validity of the order of substituted service
.. when the same order was not a subject matter of an application before the learned Judge ..
The order of substituted service .. can only be challenged as regards its validity by the only
way of having it set aside by proceedings instituted for the very purpose. It cannot be
challenged thus collaterally in any proceedings as regards its validity .. About the second
reason of the learned Judge in holding that the default judgment .. was in respect of a sum
larger than was actually due, we were in entire agreement with it. The default judgment ex
facie showed such a larger sum in regard to the interest of 18% p.a, from date of judgment to
date of satisfaction when the .. applicable O. 42 r. 12 of the Rules of the High Court 1980 ..
only allowed for the maximum rate of only 8% p.a. on a judgment. For this reason alone, the
default judgment ought to be set aside ex debito justitiae ..” (emphasis added)

D then entered conditional appearance on 25.5.1992 and applied to have the service of
the writ set aside. D said he and his family had left the country on 8.11.1984 and he has
not returned since then. There was evidence to show that D was incarcerated in Brixton
Prison, London from 8.12.1985. Peh Swee Chin FCJ, relying on Fry v Moore 23, held
that the SS order should be set aside based on the principle that “if a writ cannot be
served personally at the time when the writ is issued, there cannot be subsequently any
substituted service of the same writ.”

P however argued the doctrine of waiver arising from the 1st Application wherein D had
prayed that he “be given leave to file an appearance and statement of defence to the
plaintiff’s claim herein”. Peh Swee Chin FCJ, relying yet again on Fry v Moore , said:

“A person cannot approbate and reprobate, so that if a person becomes aware of an

irregularity of service and then subsequently takes a further step in the action which could
only be useful if the service had been good, the said irregularity is waived … [D] had asked
for leave to file an appearance and to file a statement of defence, clearly indicating that he
wanted to go into the fray in full swing and that the matter of irregular service was a matter of
24
the past; no longer an issue …”.

the failure to serve the writ in accordance with s.725(1) on the English Companies Act 1985 (which is in pari
materia with our s.350 Companies Act 1965) was a mere irregularity and curable under RSC O2 r1(1).
22
[1996] 1 CLJ 141
23
[1889] 23 QBD 395
24
There are 2 observations: (i) the point about not taking a further step in the proceedings when a party
intends to set aside any proceedings, judgments or orders on the ground of irregularity is trite. It is found in
O2 r2 and (ii) it is trite that D may waive an irregularity in service. That is the effect of entering an
unconditional appearance. It is also trite that a party may waive actual service of the writ and enter
appearance gratis.

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 [7] Appearance and Default Judgment

(ii) Irregularity in the JID

[7.14] In Tatchee Machinery Agency v Posan Timber Trading Sdn Bhd 25 the
writ was served on D on 21.6.1983. D entered appearance on 5.7.1983. However, on
4.7.1983, P’s solicitors delivered to the registry a certificate of non-appearance together
with a draft judgment in default of appearance.26 The draft was subsequently approved
and a fair copy of the judgment was filed on 14.7.1983. The SAR thereupon signed the
fair copy and back-dated it to 4.7.1984 (the date of the certificate of non-appearance).
The question was which came first, entering of the appearance or entering of the JID.
This is what VC George J (as he then was) said:

“A distinction must be drawn between judgments or orders that are pronounced, given or
made and judgments that are entered. In the case of the former the pronouncement, giving or
making of the judgment or order has to take place before the judgment or order can be drawn
up. Such judgments or orders take effect from the day of its date and shall be dated on the
date on which it is pronounced, given or made (see O 42 r 7). In the case of the latter the
judgment to be entered has to be drawn up before it is entered (O 42 r 10(2)). Since there is
no question of any pronouncement, giving or making of such a judgment and since it comes
into effect on its being entered, its date has to be the date that it is entered.

In the instant case the judgment could not have been entered prior to 14 July 1983 since it
was only on that date that the judgment to be entered was duly presented to the registry .. The
date of the judgment will be the date that the judgment was entered and cannot be backdated.
If in the meantime the defendant has entered an appearance, the default judgment sought to
be entered should be rejected .. Accordingly the judgment in default .. was irregularly allowed
to be entered. It should be and is set aside.”

(iii) Defective Writ

[7.15] In Trustee of Chettiar Temple v Kehar Singh 27 an action was brought in

the name of “Trustee of Chettiar Temple” as P. Taylor J held that the proceedings were
irregular:

“The temple is not incorporated, nor the trustees a body so constituted as to have succession
or to sue in a corporate name .. I think that the whole proceedings were defective because the
parties to the original action were not properly cited, and that it is too late to rectify the matter
28
now.”

25
[1989] 1 MLJ 388
26
By O13 r7, to enter final judgment, P had to produce to the proper officer at the registry a certificate of
non-appearance in Form 17 and an affidavit of service of the writ. By O42 r10(2), P were required to draw up
the judgment (which by O42 r5 had to conform to Form 79(a)) and this had also to be presented to the
proper officer at the registry. Thereupon (if the requisite fees had been paid) the proper officer at the registry,
by O42 r10(1), was required to enter the judgment in the book kept for that purpose, file the judgment and
release a duplicate thereof to P.
27
[1954] MLJ 18
28
In Lim Wan Hooi v Ismail Bin Hassan [1965] 2 MLJ 101 P obtained an order for substituted service
but when service was effected, the writ had expired. The High Court allowed D’s application to have the writ
set-aside. In Khooi Beng Aun v Koh Chin Lean [1994] MLJU 377 D was served with a photocopy of
the writ. Abdul Malik Ishak JC (as he then was) held that P had contravened O62 r3 and said: “.. such non-
compliance with that Order cannot be treated as a mere irregularity which can be waived but rather as a

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 [7] Appearance and Default Judgment

(iv) Unliquidated Claim

[7.16] In Badrul Zaman v Jabatan Penyiaran Radio Dan Televisyen

Malaysia & Ors 29 P sued D in defamation, claiming RM100,000,000 in general
damages. D did not deliver his Defence and P accordingly entered JID for
RM100,000.00. D argued that the JID was irregular. RK Nathan J said:

“.. the defendant argued that the words 'debt or liquidated demand' do not extend to
30
unliquidated damages even if that amount of damages is pleaded as a definite figure. I agree
.. the judgment in default of defence as entered is clearly irregular and ought to be set aside ex
debito justitiae.”

(v) Other Claims

[7.17] In Lai Yoke Ngan v Chin Teck Kwee ,31 P issued a writ against D on which
there was indorsed a claim for several declarations and injunctions. D did not enter
appearance and a JID was entered with an order that damages be assessed. Gopal Sri
Ram JCA (as he then was), in delivering the decision of the Federal Court, said:

“The philosophy underlying O 13 r 6(1) is that specific relief is, by its very nature, discretionary.
A defendant may well decide not to defend an action in which such relief is claimed in the
honest belief that he has no defence upon the question of liability. But that does not relieve the
plaintiff from delivering his statement of claim and satisfying the court .. that the case is a fit
32
one for the grant of specific relief .. When viewed in this fashion, it is not difficult to see why
O 13 r 6(1) is worded in the way in which it appears. The rule exists to preserve the discretion
of the court in actions for specific relief despite the non-appearance of a defendant. It is not a
mere technicality .. To deprive a defendant the right of appearing .. and arguing that discretion
ought not to be exercised in a plaintiff's favour is a serious matter. It constitutes the breach of
a substantive right forming part and parcel of the doctrine of procedural fairness .. The
33
proposition that is to be gathered from the decision in Lam Kong is this.

matter which prevents any further proceedings from being taken. I venture to say further that the whole
matter was bad ab initio ..”
29
[2001] 2 CLJ 623
30
In Mahindar Singh v Amanah Saham Pahang Bhd & Anor [1984] 1 CLJ 181, VC George J (as he
then was) said: “A liquidated demand is in the nature of a debt, i.e. a specific sum of money due and payable
under or by virtue of a contract. Its amount must either be already ascertained or capable of being
ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be
specified or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a
‘debt or liquidated demand’, but constitutes ‘damages’ .. The words ‘debt or liquidated demand’ do not
extend to unliquidated damages, whether in tort or in contract, even though the amount of such damages be
named at a definite figure ..”
31
[1997] 2 MLJ 565
32
The editors of the Supreme Court Practice 1979 state: “If, therefore, there is indorsed on the writ a claim
for an account, injunction specific performance, declaration or rectification … the plaintiff cannot enter
judgment in default of appearance, unless he expressly and finally abandons every such remedy or relief.”
33
Lam Kong Co Ltd v Thong Guan Co (Pte) Ltd [1985] 2 MLJ 429. P entered a JID in respect of a
claim for specific performance. Hamid Omar CJ (Malaya)(as he then was) said: “ [O13 r6] is explicit in that in
such a case [P is] to proceed with the action as though [D] had appeared .. [P] ought to have been precluded
from entering default judgment against [D].”

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 [7] Appearance and Default Judgment

A judgment in default of appearance entered by a plaintiff .. in breach of the terms of O 13 r

34
6(1), may be set aside ex debito justitiae.”

[7.18] In Maxland Sdn Bhd v Timatch Sdn Bhd 35 P issued a writ against D
claiming for damages and an injunction in respect of an alleged trespass by D. Upon D
failing to enter an appearance within the time prescribed to do so, P entered a JID. D
applied to set-aside the JID. The Federal Court applied Lai Yoke Ngan and held that the
JID was irregular as P had breached the requirements of O13 r6(1). The JID was
accordingly set-aside ex debito justitiae.

The interesting part of the judgment concerns the doctrine of election. The Court held
that if P wanted to bring his case within rr1-4, he ought to have abandoned the claim for
an injunction before the JID was entered and informed D accordingly. The Court
approved of the approach taken in Badrul Zaman v Tamil Nesan (M) Sdn Bhd &
Ors 36 where PS Gill J (as he then was) said:

“.. the plaintiff had short circuited the whole process involved in O 13 r 6 of the RHC, and
proceeded in unholy haste to enter judgment on 30 May 2001. The plaintiff did not appreciate
the fact that a notice of motion should have been filed in view of the reliefs that he had prayed
for, before a judgment is entered into. The plaintiff's counsel, Mr Manoharan, on realising his
blunder, and in order to salvage the judgment, immediately informed the court at the hearing of
the appeal, that he was abandoning the relief for injunction, and was proceeding purely on the
other reliefs. To this sudden turn of events, I have my reservations as to whether the plaintiff is
entitled, at this point of time, to make this election. I am cognisant of the fact that the plaintiff is
free to elect which relief he wants to pursue, and he is under no duty to give notice of this
election to abandon any form of relief, which he originally claimed, and on effective
abandonment of every remedy or relief outside the description in sub-r(1)–(4), he is entitled to
a judgment under these Rules .. But from my understanding and reading of this authority, the
effective abandonment of the said reliefs should be done before the said judgment is entered
into, and not after the judgment has been entered, and perfected. The conduct of the plaintiff's
counsel presently in reguesting the abandonment of the said reliefs to use a proverbial phrase,
amounts to 'closing the stable door, after the horse has bolted'. I could not at this stage allow
such an abandonment, more especially when the said judgment is now being castigated for
this very reason. Viewed dispassionately, and bearing in mind the dicta of Gopal Sri Ram JCA
in Lai Yoke Ngan, I am convinced that the judgment in default entered on 30 May 2001 is
irregular.”

34
In Syarikat Joo Seng & Anor v Habib Bank Ltd [1986] 2 MLJ 129 P sued D for deceit and
conspiracy to defraud/deceive. P, without obtaining leave, entered JID of defence against D. The Supreme
Court held that P should have complied with O19 r7(1) and applied for leave to enter judgment. The JID was
therefore irregular and D was entitled ex debito justitiae to have the JID set aside. P argued that the
irregularity could be cured by O2 r1. The Supreme Court rejected the argument on the basis that the word
“proceedings” in O2 r1 did not include an “irregular judgment in default of defence” and held that O2 r1 did
not apply to a JID obtained contrary to O19 r7(1).
35
[2014] 6 MLJ 1
36
[2001] 4 MLJ 403

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 [7] Appearance and Default Judgment

(vi) Legal Profession (Practice and Etiquette) Rules 1978

[7.19] Would non-compliance of Rule 56 of Legal Profession (Practice and Etiquette)

Rules 197837 render a JID of Defence irregular? The Court of Appeal answered the
question in Sri Minal Construction Sdn Bhd v Mobil Oil Malaysia Sdn Bhd 38
where James Foong J (as he then was) said:

“The Legal Profession (Practice and Etiquette) Rules is .. only for the purpose of regulating the
professional practice, etiquette, conduct and discipline of advocates and solicitors. It is an in
house regulation of members of the Bar. And any breach thereof, an advocate and solicitor is
liable to be disciplined under the said rules. The rules made thereunder have no force of law to
override or govern the procedure of the courts .. The courts cannot accept the demand of its
adherence over and or besides its own. To accommodate may open a floodgate where other
in-house rules, though having the effect of law governing its members in an organization, may
demand for its compliance before any order of the courts can be granted. These would pollute
the [Rules of Court] which must at all times be the only rules governing proceedings in the
[courts]. It is thus our opinion that a breach of [r 56] does not make the judgment obtained .. by
the plaintiff irregular.”

(vii) Judgment for a greater sum

[7.20] A JID entered for a sum greater that what is P is entitled to is irregular.39 That is
however not the end of the matter as it is open for P to apply to amend the JID.

[7.21] In Philip Securities (Pte) v Yong Tet Miaw 40 P entered JID of Defence for
the sum of $298,779.25. D applied to have it set-aside on the ground that the JID did not
take into account payments that D had made. Upon being alerted of that point, P applied
to amend the JID. Thean J held that judgment “could not stand and had to be set aside
or amended .. Where a judgment has been entered in default of defence for an amount
in excess of that which is due, the court has jurisdiction to amend the judgment instead
of setting it aside.41

37
“Where the name of the advocate and solicitor or his firm appears on the Court record or the fact of
representation is known to the other side, no advocate and solicitor representing the other party to the
proceedings shall enter Judgment by Default against the client of the first-named advocate and solicitor or to
take advantage of delay in pleading or filing documents in the nature of pleadings or in taking any necessary
steps or in complying with any other proceedings by such first-named advocate and solicitor, unless he shall
have given to-such first-named advocate and solicitor written notice of his intention to do so, and seven days
shall have elapsed after the delivery of such notice to the first-named advocate and solicitor.”
38
[2005] 4 CLJ 767
39
Aspatra Corp (supra)
40
[1988] 3 MLJ 61
41
O19 r9. Muir v Jenks [1913] 2 KB 412 is authority or the proposition that where a judgment was entered
in default of appearance (or default of defence) in excess of the amount that is due, the defendant is entitled
to have the judgment set aside unless the plaintiff applies to have the amount of the judgment reduced to the
correct amount. An amendment could also be made under the “slip rule” in O20 r11 on the authority of
Armitage v Parsons [1908] 2 KB 410.

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 [7] Appearance and Default Judgment

The point was explained in Cheow Chew Khoon v Abdul Johari bin Abdul
Rahman 42 where Gopal Sri Ram JCA (as he then was) said:

“Now, it is an established principle that in monetary claims, the amount for which judgment is
entered must be limited to the amount actually due .. If judgment is entered for more than is
actually due, it is liable to be set aside. If an error appears in the judgment then this may be
corrected in the following circumstance: (i) on an application duly made by the plaintiff in that
behalf; (ii) on an application made by the defendant to set aside the judgment; and (iii) ex
parte, where the defendant consents to such a course.”

This passage was explained in Lee Tain Tshung v Hong Leong Finance Bhd .43 In
this case, P, pursuant to O18 r19, struck out D’s defence and entered judgment against
him for RM1,211,523.66. D did not appeal but applied to set-aside the judgment, arguing
that it was irregular because it was for an amount in excess of what was due. NH Chan
JCA said:

“If judgment was obtained for the wrong amount, it is true the plaintiff may apply to have the
judgment amount corrected. This is because O 2 r 1(2) empowers the court 'to allow such
amendments (if any) to be made'.. But on an application made by the defendant to set aside
the judgment because it was entered for too much, the court may under O 2 r 1(2) set aside
either wholly or in part the judgment or (regardless of who had initiated the application to set
aside) exercise its powers under the RHC 'to allow such amendments (if any) to be made and
to make such order (if any) dealing with the proceedings generally as it thinks fit' ..

In the present case, unfortunately for him, [D’s] only recourse was to apply under O 2 r 2 to
have the irregular judgment set aside. He was unable to apply under any other provision of the
RHC because the judgment that had been obtained against him was not a default judgment. In
this appeal we are unanimous in our opinion that he was not entitled to have the judgment,
even though it was irregular, set aside under O 2 r 2 because we are of the view that his
summons to set this judgment aside had not been issued within a reasonable time (see O 2 r
2(1)). By allowing eight years to elapse after the irregular judgment had been obtained against
him before taking action on it has, in our judgment, precluded him from being allowed to have
the judgment set aside because of his unreasonable delay in making his application (O 2 r
2(1)) .. But now, since the matter has been brought to our attention, this court on recognizing
the irregularity of the incorrect amount on the judgment, has the power under O 2 r 1(2) to
correct the error in the judgment by amending it to the correct amount regardless of who had
initiated the application to have the judgment set aside. This we do by correcting the judgment
sum to the amount that is due.”

42
[1995] 1 MLJ 457
43
[2000] 3 MLJ 364

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 [7] Appearance and Default Judgment

4. Term inology

[7.22] In Issacs v Robertson 44 Lord Diplock said:

“Their Lordships would, however, take this opportunity to point out that in relation to orders of
a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that
are 'void' in the sense that they can be ignored with impunity by those persons to whom they
are addressed, and orders that are 'voidable' and may be enforced unless and until they are
set aside .. The contrasting legal concepts of voidness and voidability form part of the English
law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the
course of contentious litigation. Such an order is either irregular or regular. If it is irregular it
can be set aside by the court that made it upon application to that court; if it is regular it can
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only be set aside by an appellate court upon appeal if there is one to which an appeal lies.”
(Emphasis added.)

Ravindran Shanmuganathan ∗

44
[1985] AC 97
45
Our courts have adopted this reasoning. In Tenaga Nasional Bhd v Prorak Sdn Bhd [2000] 1 MLJ
479, Gopal Sri Ram JCA (as he then was) said “It is settled law that the expressions 'nullity', 'void' and
'voidable' are wholly inappropriate to describe an order made by a court of unlimited jurisdiction” and in Lee
Tain Tshung (supra) NH Chan JCA said: “nowadays words like 'nullity', 'void' and 'voidable' should not be
used to describe judgments or orders that are made by a court of unlimited jurisdiction in the course of
contentious litigation.”
∗
The views expressed herein are my own, as are all mistakes. I may be contacted as
ravi@sreeneyoung.com.

Ravindran on Civil Procedure (2018) 10