APPEARANCE AND JUDGMENT IN DEFAULT

 D must enter appearance = D is submitting himself to the court’s jurisdiction [Form

11]
o Order 12 Rule 1
 Can be both solo or with solicitor
o Order 12 Rule 3
 Details on Form 11 must be correct, incorrect can strike out

Mode of entering Appearance

 D who wishes to defend on his own MUST enter appearance. Appearance shows
intention to defend and submission to the jurisdiction of the Court
o Order 76 Rule 6
o Order 12 Rule 2
o Form 11
 If memorandum set aside u have not submit yourself to jurisdiction of court. If you do
not enter appearance in sufficient time. Plaintiff can apply for judgment in default.

Time Limit for Appearance

 Plaintiff may enter JID against D. shall the D fail to enter Appearance, upon completion
 E.g.
o P serve to D a writ by way of PS on 11.9.2019 [14 days] – 25.9.2019 (complete
service happens here)
o JID can be entered starting 26.9.2019
o D must enter appearance before 25.9.2019
o If D, wish to enter appearance on 26.9.2019 – Order 12 Rule 5 with leave of
court [CAN]
o If D wish to enter appearance on 26.9.19, HOWEVER, JID has been entered.
 Must set aside JID then enter appearance.
o 1st mention date will be on 2.10.2019. You can only go to court and take your
JID on 2.10.2019. BUT D enter appearance on 27.9.2019. Would appearance
be valid?  Order 12 Rule 5, MUST have leave of court for appearance to be
 valid. Even if mention date is later, P has right to enter JID immediately after
completion of service.
o AND, D has no obligation to serve appearance to P, only to court.
o Plaintiff serve to D by way of AR card dated 11.9.2019. 14 days starts from date
D receives AR post. Wait until AR card is returned back to P.
o If an Order of Substituted Service is granted, then the date of completion of
service will vary. The date to appear shall run when final mode of service if
effected.
 Order 12 Rule 4
- 14 days after service in West Malaysia
- 14 days in East Malaysia
- 21 days for body corporate
 Order 12 Rule 5
- From Day 15, Plaintiff has right to take JID
 Order 11 Rule 4 – Leave to serve a notice of writ out of jurisdiction
 Order 10 Rule 2 – Service of writ on agent of overseas principal.
 Bintulu Adhesives v. Chuah Seah Joo Plywood
- I: whether filing the memorandum of appearance without serving the Plaintiff
within the time limit is irregular
- H:
a. There is nothing in O.12 which governs the entry of appearance to an
action that imposes an obligation on a defendant to serve a copy of the
memorandum on the Plaintiff within time limit.
b. The provision in Order 12 indicates that service of a memorandum on a
Plaintiff within the time limit is not a requirement.
c. The entry of appearance by the D was regular.
 Tatchee Machinery Agency v Posan Timber Trading Sdn Bhd
- I: Whether entrance of appearance came first or JID?
- If it is the former, then the judgment must be set aside.
- D, who should have entered appearance on or before 28 June 1983, only
entered appearance on 5th July 1983.
 - Plaintiff, on 4th July filed a draft of certificate of non-appearance. The draft was
approved by the Registrar after 4th July.
- H: The defendants had entered their appearance prior to JID as a result it was
irregular. And it was allowed to be set aside.
 Order 12 Rule 5 – D may not enter appearance after judgment has been entered
except w leave of court. If enter after time limit, no leave.

NOTE: MUST APPLY TO SET ASIDE JUDGMENT FIRST THEN ONLY CAN ENTER APPEARANCE.

 Wan Mohd Suffian v MBF Finance Berhad

- A defendant was only precluded from entering appearance after judgment had
been entered unless he had leave of court. The only effect upon a defendant
who entered appearance late was that he could not without the consent of the
court serve a defense or do anything else later.
- Therefore, the D was entitled to enter the late appearance since judgment had
not yet been taken. [IF JUDGMENT HAS BEEN ENTERED MUST SET ASIDE FIRST]
 Abdul Rahim Ponniah v Kulim Intensive
- D filed application for leave and also extension to file their appearance and
statement of defense. The court has discretion to extend the time to enter
appearance and also SOD. However, it must be exercised judicially and only in
cases where there are merits. The court will consider the following factors.
a. Whether delay caused by the D is unjustified or unreasonable
b. What are the reasons for the delay?
c. Whether defense has merits
d. Will the Plaintiff be prejudiced in any way should the application be
granted?
 Default of appearance
o Plaintiff may enter judgment against D whom fail to enter appearance
 Order 13 Rule 1 – liquidated demand
 D fail to enter appearance, P can get JID for amount not
exceeding LD.
 Lam Kong Co Ltd v. Thong Guan Co Ltd
 The Respondents in this case had brought an action for specific
performance of a contract for the sale of land against the
appellant.
 Writ was served. As the appellants did not appear to the writ,
JID was entered by the SAR.
 Appellants applied to set aside JID. Application was dismissed in
HC and the appellants appealed.
 Court held that: it seems clear that if the writ is specifically
endorsed the plaintiffs are to proceed with the action as
according to the rule. The breach and the non-compliance with
the rule is a fundamental defect. It can’t be cured as the effect
of the breach and the non-compliance was to defeat the right
of the other party to the action.
 Leong Seng Kiat v Khaw See Song
 Since the action was one with specifically endorsed writ for
specific performance therefore the plaintiff has a specific order
to comply with. The default judgment in this case was a breach
to the order and it is non-compliance in which could not be
cured.
 Rules 56 of Legal Profession
 P shall not enter judgment against D represented by a lawyer
unless been given 7 days’ notice that P intends to enter
judgment.
  E.g. Situation of Subsale. Poh wants to buy from Qasim. Qasim
has his own lawyer. Poh does too. If there is any default, Poh
want to sue Qasim for not surrendering the title. Poh has
informed lawyer that Qasim is represented. [Notice must hence
be given]
 ISSUE: If solicitor from P omitted this notice would it be an
irregular judgment? (because the rule is only LPPER not ROC +
ROC says 14 days)
 Asia Commercial Finance v. BBMB
 There were 2 grounds on which the D sought to set aside the
judgment. [1] The D contended that the P did not comply with
Rule 56. [2] It was also argued that the judgment in default had
been entered 1 day short of the 14-day period as provided in
the rule.
 HELD: [1] The LPPER 1978 only regulates the professional
practice, ethics, conduct and discipline of an advocate and
solicitor. The rules do not regulate the procedure of legal
proceedings in the High Court. The Bar Council has no power
under the legal profession act to make rules to regulate the
procedure of legal proceedings. [2] Non-compliance with the
rule (R56) does not render the JID of defense irregular. The
court shall treat the judgment irregular shall it fail to comply
with ROC. [3] Judgment entered was a regular judgment.
Because it was entered upon the expiry of 14 days.
 Wan Mohd Sofian v. MBF Finance Berhad
 Differing opinion. [Breach of LPPER r. 56 = Irregular judgment]
 The object of these rules is to ensure that advocates and
solicitors conduct their affairs in an honorable and fair manner
befitting the practice of law. Therefore, if an application to set
aside a judgment obtained in breach of any of the said rules the
 court ought to consider such a breach. Therefore, in this case
the court actually looked into this as a breach.

Setting aside judgment in Default of Appearance

 Court has absolute discretion

o Order 13 Rule 8 – D must prove that JID taken against him is IRREGULAR
o Evans v Bartlam
 HELD: I think I find myself in agreement with the reasoning given in
which in an application in chambers to set aside a default judgment is
a discretionary power to the judge. The courts however, have laid down
rules to guide them in the normal exercise of their discretion. One is
that, where the judgment was obtained regularly there must be an
affidavit of merits. Meaning that, the applicant must produce to the
court evidence that he has a prima facie defense. It was suggested that
there is another rule that the applicant must satisfy that there is a
reasonable explanation why judgment was allowed to go. If there were
a rigid rule that no one could have a default judgment set aside who
knew at the time and intended that there should be a judgment signed,
the two rules would be deprived.
o Tun Haji Abdul Rahman v Arab Malaysian Finance
 F: In this case there was an inordinate delay, on the part of the
applicant in filing the application to set aside.
 H: It is elementary that an irregular judgment is one which has been
entered in proprietary with a serious proceeding’s nullity. The general
rule is when a judgment has not been regularly obtained defendant is
entitled to have it set aside ex debito justitiae (as of right). Irrespective
of the merits or defects. However, the application should be made with
reasonable promptitude and before the pf has taken any steps to
execute the judgment.
 Defense on the merits
o Fira Development Sdn Bhd v. Goldwin Sdn Bhd
  Where an application is made for setting aside a JID, the learned judge
would have to consider the merits of the case. The court has an
absolute discretion to set aside the judgment and allow the case to be
heard on merits. As to delay in putting in application to set aside, there
is no rigid rule that the applicant must satisfy the court for a reasonable
explanation
 Regular Judgment in Default
o Syarikat Joo Seng v Habib Bank
 In this case the R should have complied with O. 19 r. 7(1) RHC of the
rules of the court by applying to the court for a leave to enter judgment
in default against the D. Therefore, the Appellants are entitled to set
aside the judgment ex dibito justitae .
 If P’s judgment is a regular judgment, then D must show some evidence in prima facie
case defense
o Taisho Marine Insurance
 Judgment is regular. Thus, applicant must show a prima facie defense.
However, in this case, applicant x show PF defense or any merits in law.
Therefore, application was dismissed.
o Dialdas v Sin Sin
 GSR, defense on merits means as explained by Lord Denning in which
it means defense which discloses an arguable and triable issue.

For unliquidated damages. MUST apply for leave first then apply for JID.
Procedure to take JID

Order 13 Rule 7

 Produce a certificate of non-appearance

 Affidavit of Service/Penyampaian – proof that service has been made to the
defendant. [Order 10] Can only be filed after service is complete.
 “Pohon kehakiman ingkar”
Setting Aside

- Order 13 Rule 8 (discretion of the court)

- Order 42 Rule 13 – Time Limit
a. Within 30 days upon receiving the judgment
- Tuan Haji Abdul Rahman
a. Court must have some guidelines to hear/ determine application of setting
aside JID.
 If the judgment is regular set aside by good defense
 Fira Development; Majlis Amanah Rakyat case
 “Good defence” – Merits of the case included in Affidavit
 What is a regular judgment?

Regular Judgment Irregular Judgment

A good valid judgment Bad invalid judgment
WRIT SERVICE PROCEDURE IN TAKING JID
- O 6 r 7(2) - AR Reg O. 10 r 1 - Liquidated damages
- O 6 r 7(2A) - PS (O 62 r 3) [O 13 rule 7]
- SS O 62 r 5 - Unliquidated
damages [O13 rule 6]
a. Application of
leave to apply
for JID
PLAINTIFF DEFENDANT
Must comply with all the requirements D will object to any of the non-compliance
HOW TO SET ASIDE
P has Prima facie + D must show good Ex debito justitiae (set aside as of right)
defense
- Taisho Marine
- Dialdas
a. Good defense is a triable and
arguable issue of law or facts
NOTE: Execution of judgment can take place within 6 years.