CIVIL PROCEDURE I

C7: APPEARANCE & JUDGEMENT IN DEFAULT

A. Mode of Entering Appearance

 Defendant who wishes to Defend must enter appearance
 Appearance shows intention to defend the action and show his submission to the
jurisdiction of the Court.
 Mode of entering appearance:-
 D enter appearance in person/by solicitor
 O12 R1 ROC 2012
“(1) Subject to paragraph (2) and Order 76, rule 2, a defendant to an action begun by
writ may, whether or not he is sued as a trustee or personal representative or in any
other representative capacity, enter an appearance in the action and defend the
action by a solicitor or in person.
(2) Except as expressly provided by any written law or any practice direction for the
time being issued by the Registrar, a defendant to an action which is a body
corporate may not enter an appearance in the action or defend the action otherwise
than by a solicitor.
(3) An appearance is entered by properly completing a memorandum of appearance,
as defined in rule 2, and a copy thereof, and handing them in at the Registry.
(4) If two or more defendants to an action enter an appearance by the same solicitor
and at the same time, only one memorandum of appearance needs to be completed
and delivered for those defendants.”
 Appearance by person under disability
 O76 R6(1)
“Where—
(a) in an action against a person under disability begun by originating summons,
no appearance is entered for that person; or
(b) the defendant to an action serves a defence and counterclaim on a person
under disability who is not already a party to the action and no appearance is
entered for that person,
an application for the appointment by the Court of litigation representative of that
person shall be made by the plaintiff or defendant, as the case may be, after the time
limited, as respects that person, for appearing and before proceeding further with
the action or counterclaim.”
 O76 R6(5)
“An application under paragraph (1) or (2) shall be supported by evidence proving—
(a) that the person to whom the application relates is a person under disability;
(b) that the person proposed as litigation representative is willing and a proper
person to act as such and has no interest in the proceedings adverse to that of
the person under disability;
(c) that the originating summons, defence and counterclaim or third party notice,
as the case may be, was duly served on the person under disability; and
(d) subject to paragraph (6), that notice of the application was, after the
expiration of the time limited for appearing and at least seven days before the
day fixed for hearing, so served on him.”
  O76 R6(6)
“If the Court so directs, notice of an application under paragraph (1) or (2) need not
be served on a person under disability.”
 Memorandum of Appearance(MOA)
 A request to the Registry to enter an appearance for a defendant or defendants as
specified in the memorandum
 O12 R 2(1)
“ A memorandum of appearance is a request to the Registry to enter an appearance
for a defendant or defendants as specified in the memorandum.”
 In Form 11
 O12 R 2(2)
“A memorandum of appearance shall be in Form 11 and both the memorandum of
appearance and the copy thereof required for entering an appearance shall be
signed by the solicitor by whom the defendant appears or, if the defendant appears
in person, by the defendant”
 Details to be put in the MOA
 O12 R2(3)
“A memorandum of appearance shall specify—
(a) in the case of a defendant appearing in person, the address of his place of
residence and, if his place of residence is not within the jurisdiction or if he has no
place of residence, the address of a place within the jurisdiction at or to which
documents for him may be delivered or sent; and
(b) in the case of a defendant appearing by a solicitor, the business address of his
solicitor within the jurisdiction, and where the defendant enters an appearance in
person, the address within the jurisdiction specified under subparagraph (a) shall be
his address for service, but otherwise the business address of his solicitor shall be his
address for service.”

 Effect of incorrect details

 O12 R2(4)
“If the memorandum of appearance does not specify the defendant’s address for
service or the Court is satisfied that any address specified in the memorandum of
appearance is not genuine, the Court may, on an application by the plaintiff set aside
the appearance or order the defendant to give an address or a genuine address for
service, as the case may be, and may in any case direct that the appearance shall
nevertheless have effect for the purposes of Order 10, rule 1(3) and Order 62, rule
10.”
 A copy of MOA to be submitted to Registry
 O12 R 3
“(1) On receiving the memorandum of appearance and a copy thereof, an officer of
the Registry shall in all cases affix to a copy of the memorandum of appearance an
official stamp showing the date on which he received those documents and return
that copy of the memorandum.
(2) Where the defendant enters an appearance, he shall on the date on which he
enters the appearance send a copy of the memorandum of appearance by post to
the plaintiff, if the plaintiff sues in person, but otherwise to the plaintiff’s solicitor, at
the plaintiff’s address for service.”
B. Time limit for appearance
 Time limited to appear
 O12 R4 ROC 2012
“References in these Rules to the time limited for appearing are references—
(a) in the case of a writ served, whether within the local jurisdiction of each High
Court of Malaya or outside such local jurisdiction but within the jurisdiction of
Malaya, to 14 days after service of the writ or, where that time has been extended
by or by virtue of these Rules, to that time as so extended; [Peninsular Msia: 14
days aft service unless extended] and
(b) in the case of a writ served within Sabah and Sarawak, to 14 days after service of
the writ or in the case of a defendant whose place of residence or if an incorporated
society whose registered office of business is not within the Division or Residency in
which is situated the Registry out of which the writ of summons was issued, 20 days
after the service of the writ or where that time has been extended by or by virtue of
these Rules, to that time as so extended; [Sabah&Sarawak: 14 days aft service
unless extended;Body corporate not within jurisdiction-20 days unless extended]
and
(c) in the case of a writ served out of the jurisdiction, to 14 days after service of the
writ as provided for in Order 10, rule 2 or Order 11, rule 2 or to such extended time
as the Court may otherwise allow.”[Leave to serve a notice of writ out of
jurisdiction]

 O10 R 2(2)- Service of writ on agent of overseas principal

“An order under this rule authorizing service of a writ on a defendant's agent must
limit a time within which the defendant shall enter an appearance.”

 D enter appearance after time limitation

 O12 R5
(1) A defendant may not enter an appearance after judgment has been entered
except with the leave from Court.
(2) If defendant enters appearance after time limitation for entering appearance, he
shall not entitled to serve defence unless the Court order otherwise

 Tatchee Machinery Agency v Posan Timber Trading Sdn Bhd (1989) 1 MLJ
Facts: The writ of summons with the statement of claim attached thereto was duly
served on the defendant company on 21 June 1983. They had up to 28 June 1983 to
enter an appearance. However, it was only on 5 July 1983 that the solicitors on
behalf of the defendants purported to enter an appearance.(8 days later after the
time limitation ends)
Held: The defendants had entered their appearance prior to judgment in default
having been entered. Accordingly the judgment in default filed in the court by P was
irregularly allowed to be entered. It should be set aside.

 Wan Mohd. Suffian b. Wan Md.Saad v MBF Finance Berhad (2000) 1 AMR 846
Facts: The plaintiff brought an action against the defendant and claimed for general
damages amounting to RM1m. The defendant admitted that the writ of summons
and the statement of claim was served on its firm of solicitors on 9 February 1999.
 The defendant’s memorandum of appearance was dated 19 February 1999 and filed
in court on the same day but was served on the plaintiff on 18 February 1999. On
the facts, the eight day period to enter appearance expired on 18 February 1999.
(late appearance).The plaintiff applied to set aside the memorandum of appearance
and for the judgment of RM1m to be entered as general damages which the senior
assistant registrar (‘the SAR’) allowed. The defendant appealed against the decision
of the SAR and also filed a separate application to set aside order of the SAR.
Held:
- A defendant was only precluded from entering appearance after judgment had
been entered, unless he had the leave of the court.
- The only effect upon a defendant who entered appearance late was that he
could not, without the consent of the court, serve a defence or do anything else
any later than as if he had entered appearance within time.
- Therefore, the defendant was perfectly entitled to enter the late appearance
since judgment had not as yet been taken on that date.
 Abdul Rahim Ponniah b. Abdullah v Kulim Intensive Driving Centre Sdn Bhd (2000)
4 AMR 4684
Facts: The plaintiff was a member of the defendant company. Despite numerous
request from the plaintiff, the defendant failed to furnish its loss and profit accounts
and financial statements to its Annual General Meeting. The plaintiff then filed a suit
against the defendant. The defendant again failed to file its appearance and
statement of defence. Subsequently, the plaintiff apply for an order that default
judgment be entered against the defendant. The defendant filed an application for
leave and extension of time to file their appearance, statement of defence and
affidavit in reply to the plaintiff’s application
Held: Since it was the plaintiff who offered to settle the matter immediately after he
had filed the writ and there was in fact a negotiation between the parties to that
effect, the defendant had no option but to delay the filing of their appearance and
defence. Therefore, this amounted to a reasonable excuse on the part of the
defendant for the delay.
 Appearance not to constitute as a waiver
 O12 R 9
“The appearance by a defendant in an action shall not be treated as a waiver by him of
any irregularity in the writ or service thereof or in any order giving leave to serve the
writ out of the jurisdiction or extending the validity of the writ for the purpose of service”
 Dispute to jurisdiction
 O12 R 10
“(1) A defendant who intends to dispute the jurisdiction of the Court in the proceedings
by reason of any irregularity as is mentioned in rule 9 or on any other ground shall enter
an appearance and, within the time limited for serving a defence, apply to the Court
for—
(a) an order setting aside the writ or service of the writ on him;
(b) an order declaring that the writ has not been duly served on him;
(c) the discharge of any order giving leave to serve the writ on him out of the
jurisdiction;
(d) the discharge of any order extending the validity of the writ for the purpose
of service;
 (e) the protection or release of any property of the defendant seized or
threatened with seizure in the proceedings;
(f) the discharge of any order made to prevent any dealing with any property of
the defendant;
(g) a declaration that in the circumstances of the case the Court has no
jurisdiction over the defendant in respect of the subject matter of the claim or
the relief or remedy sought in the action; or
(h) such other relief as may be appropriate.
(2) A defendant who wishes to contend that the Court should not assume jurisdiction
over the action on the ground that Malaysia is not the proper forum for the dispute shall
enter an appearance and, within the time limited for serving a defence, apply to the
Court for an order to stay the proceedings.”
 No appearance to OS
 O12 R 12
“No appearance is required for an originating summons”

C. Default of Appearance
 Plaintiff may enter judgment against Defendant whom fail to enter appearance
 Claim for liquidated demand
 O13 R1
“(1) Where a writ is endorsed with a claim against a defendant for a liquidated
demand only, then, if that defendant fails to enter an appearance, the plaintiff may,
after the time limited for appearing, enter final judgment against that defendant for
a sum not exceeding that claimed by the writ in respect of the demand and for costs,
and proceed with the action against the other defendants, if any.
(2) A claim shall not be prevented from being treated for the purposes of this rule as
a claim for a liquidated demand by reason only that part of the claim is for interest
accruing after the date of the writ at an unspecified rate, but any such interest shall
be computed from the date of the writ to the date of entering judgment at the rate
as may be specified under Order 42, rule 12.”

 Claim for unliquidated damages

 O13 R2
“Where a writ is endorsed with a claim against a defendant for unliquidated
damages only, then, if that defendant fails to enter an appearance, the plaintiff may,
after the time limited for appearing, enter interlocutory judgment against that
defendant for damages to be assessed and costs, and proceed with the action
against the other defendants, if any.”

 Claim in detinue
 O13 R 3
“Where a writ is endorsed with a claim against a defendant relating to the detention
of movable property only, then, if that defendant fails to enter an appearance, the
plaintiff may, after the time limited for appearing, at his option enter either—
(a) interlocutory judgment against the defendant for the delivery of the property or
their value to be assessed and costs; or
(b) interlocutory judgment for the value of the property to be assessed and costs,
and proceed with the action against the other defendants, if any.”
 Claim for possession of immovable property
 O13 R 4
“(1) Where a writ is endorsed with a claim against a defendant for possession of
immovable property only, then, if that defendant fails to enter an appearance the
plaintiff may, after the time limited for appearing and on producing a certificate by
his solicitor, or (if he sues in person) an affidavit, stating that he is not claiming any
relief in the action of the nature specified in Order 83, rule 1, enter judgment for
possession of the immovable property as against that defendant and costs, and
proceed with the action against the other defendants, if any.
(2) Where there is more than 1 defendant, judgment entered under this rule shall
not be enforced against any defendant unless judgment for possession of the
immovable property has been entered against all the defendants.”

 Mixed Claims
 O13 R5
“Where a writ issued against any defendant is endorsed with two or more of the
claims mentioned in the foregoing rules and no other claim, then, if that defendant
fails to enter an appearance, the plaintiff may, after the time limited for appearing,
enter against that defendant such judgment in respect of any such claim as he would
be entitled to enter under these Rules if that were the only claim endorsed on the
writ, and proceed with the action against the other defendants, if any.”
 Other claims
 O13 R6
“(1) Where a writ is endorsed with a claim of a description not mentioned in rules 1
to 4, then, if any defendant fails to enter an appearance, the plaintiff may, after the
time limited for appearing and upon filing an affidavit proving due service of the writ
on that defendant and, where the statement of claim was not endorsed on or served
with the writ, upon serving a statement of claim on him, proceed with the action as
if that defendant had entered an appearance.
(2) Where a writ issued against a defendant is endorsed as aforesaid, but by reason
of the defendant satisfying the claim or complying with the demands thereof or any
other like reason it has become unnecessary for the plaintiff to proceed with the
action, then, if the defendant fails to enter an appearance, the plaintiff may, after
the time limited for appearing, enter judgment with the leave of the Court against
that defendant for costs.”

 Lam Kong Co Ltd v Thong Guan Co Ltd (1985) 2 MLJ 429

Held: Related to a claim for specific performance. In light of O13 R 12 of the Rules of
Supreme Court 1957, it seems that if the writ is specially indorsed, as in this case,
then the Ps are to proceed with the action as if the Defendants had appeared. The
respondents in this case are therefore precluded from entering judgement against
the appellants.
 Leong Seng Kiat v Khaw See Song (1988) 2 MLJ 365
Held: In actions for specific performance, pursuant to O 1 R 6 of the RHC 1980, the
Ps are to proceed as if the D has entered appearance and are hence precluded from
obtaining a judgement in default of appearance.
 Default of defence by the D(***I think not so important,just read through)
 Claim for liquidated demand
 O 19 R 2(1)
“Where the plaintiff’s claim against a defendant is for a liquidated demand only,
then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may,
after the expiration of the period fixed under these Rules for service of the defence,
enter final judgment against that defendant for a sum not exceeding that claimed
by the writ in respect of the demand and for costs, and proceed with the action
against the other defendants, if any.”

 Claim for unliquidated damages

 O19 R 3
“Where the plaintiff’s claim against a defendant is for unliquidated damages only,
then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may,
after the expiration of the period fixed under these Rules for service of the defence,
enter interlocutory judgment against that defendant for damages to be assessed
and costs, and proceed with the action against the other defendants, if any.”

 Claim in detinue
 O19 R 4
“Where the plaintiff’s claim against a defendant relates to the detention of
movable property only, then, if that defendant fails to serve a defence on the
plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules
for service of the defence, enter either—
(a) interlocutory judgment against that defendant for the delivery of the property
or its value to be assessed and costs; or
(b) interlocutory judgment for the value of the property to be assessed and costs,
and proceed with the action against the other defendants, if any.”
 Claim for possession of immovable property
 O19 R 5
“(1) Where the plaintiff’s claim against a defendant is for possession of immovable
property only, then, if that defendant fails to serve a defence on the plaintiff, the
plaintiff may, after the expiration of the period fixed under these Rules for service
of the defence, and on producing a certificate by his solicitor, or (if he sues in
person) an affidavit, stating that he is not claiming any relief in the action of the
nature specified in Order 83, rule 1, enter judgment for possession of the
immovable property as against that defendant and for costs, and proceed with the
action against the other defendants, if any.
(2) Where there is more than one defendant, judgment entered under this rule
shall not be enforced against any defendant unless judgment for possession of the
immovable property has been entered against all the defendants.”

 Mixed claim
 O19 R6
“Where the plaintiff makes against a defendant two or more of the claims
mentioned in rules 2 to 5, and no other claim, then, if that defendant fails to serve a
defence on the plaintiff, the plaintiff may, after the expiration of the period fixed
 under these Rules for service of the defence, enter against that defendant such
judgment in respect of any such claim as he would be entitled to enter under those
rules if that were the only claim made, and proceed with the action against the
other defendants, if any.”

 Other Claims
 O19 R7
“(1) Where the plaintiff makes against a defendant or defendants a claim of a
description not mentioned in rules 2 to 5, then, if the defendant or all the
defendants (where there is more than one) fails or fail to serve a defence on the
plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules
for service of the defence, apply to the Court for judgment, and on the hearing of
the application the Court shall give such judgment as the plaintiff appears entitled
to on his statement of claim.
(2) Where the plaintiff makes a claim as is mentioned in paragraph (1) against more
than one defendant, then, if one of the defendants makes default as mentioned in
that paragraph, the plaintiff may—
(a) if his claim against the defendant in default is severable from his claim against
the other defendants, apply under that paragraph for judgment against that
defendant, and proceed with the action against the other defendants; or
(b) set down the action by notice of application for judgment against the defendant
in default at the time when the action is set down for trial, or is set down by notice
of application for judgment, against the other defendants.”
D. Procedure for entering judgment in default

 O13 R 7 (1)

(a)P to produces a certificate of non-appearance in Form 12

AND

(b)either an affidavit is filed by P or on behalf of the P proving due service of the writ on the
D, or the P produces the writ endorsed by the D’s solicitor with a statement that he accepts
service of the writ on behalf of the D.

 O10 R1 (4)

“Where a writ is duly served on a defendant otherwise than in accordance with paragraph
(2) or (3), then subject to Order 11, rule 5, unless after service the person serving it
endorses on it the following particulars, that is to say, the day of the week and date on
which it was served, where it was served, the person on whom it was served, and, where he
is not the defendant, the capacity in which he was served, the plaintiff in the action begun
by the writ is not entitled to enter final or interlocutory judgment against that defendant in
default of appearance or in default of defence, unless the Court otherwise orders.”

[The Court must be satisfied before entering judgment in default of appearance, the writ
has been duly served, time for appearance has lapsed and the indorsement of the service
on the writ has been duly completed.]
  Rules 56 of Legal Profession (Practice and Etiquette) Rules 1978 (LPPER 1978)
Plaintiff shall not enter judgment against Defendant whom represented by a solicitor, unless
been given 7 days notice that Plaintiff intends to obtain judgment.
[7 days notice must be given by P to the D’s solicitor of any intention to enter JID of
appearance]

 Asia Commercial Finance v BBMB (1988) 1 MLJ 33

Held: Non-compliance with Rule 56 of LPPER does not render the JID of defence irregular.
Under O2 R 1 of RHC 1980, only failure to comply with the RHC 1980 shall be treated as an
irregularity. JID of defence is only an irregular judgement if the P, in obtaining the judgement,
failed to comply with the RHC 1980.

 PL Construction Sdn Bhd v Abdullah bin Said (1989) 1 MLJ 60

Held: The 48 hour notice is only a practice rule as embodied in R56 of the LPPER 1978. The P
had complied with the rule and there is no need to file an affidavit to say that the rule has been
complied with. Judgement in Default(JID) obtained w/o compliance with R56 is still a valid JID
as the rules are mere rules of procedure & etiquette.

 Wan Mohd Sofian b Wan Md.Saad v MBF Finance Berhad (2000) 1 AMR 84
Held: the JID entered in breach of Rule 56 is a factor to be considered in setting aside the JID.

When does a judgement take effect?

 O 42 R 7 of ROC 2012
“(1) A judgment or order of the Court takes effect from the day of its date.
(2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made,
unless the Court orders it to be dated as of some other earlier or later day, in which case it shall be
dated as of that other day.”
 O 42 R 10(2)
“The party seeking to have such a judgment entered shall draw up the judgment and present it to
the proper officer of the Registry for entry.”
 Tatchee etc v Posan Timber (1988) 1 MLJ 388
Held:
- A distinction must be drawn btw judgements or order that are pronounced, given or made
& judgements that are entered.
- In the case of the former, the pronouncement, giving or making of the judgement/ order
has to take place bfr the judgement/order can be drawn up.
- Such judgements/orders take effect from the day of its date and shall be dated on the date
on which it is pronounced, given/made.
- In the case of the latter, the judgement to b entered has to be drawn up before it is
entered.
- Since there is no question of any pronouncement, giving or making of such judgement, and
since it comes into effect on its being entered, its date has to be the date it is entered.
E. Types of Judgement in Default
 Final JID
 Where the judgements fall within the ambit of O 13 R 1 of ROC 2012, the P may
proceed to enforce the judgement.
 Interlocutory JID
 Where the judgements fall within the ambit of O13 R2 & R3 of ROC 2012, the P
must proceed to the assessment of damages(ex: in cases involving negligence,
nuisance, breach of trust)
 Procedure
 O37 R 1
“(1) Where judgment is given for damages to be assessed and no provision is
made by the judgment as to how they are to be assessed, the damages shall,
subject to the provisions of this Order, be assessed by the Registrar, and the
party entitled to the benefit of the judgment shall, within 1 month from the
date of the judgment, apply to the Registrar for directions and the provisions
of Order 34 shall, with the necessary modifications, apply.
(2) On the hearing of the application for directions, the Registrar may, in
addition to making such orders as are necessary and appropriate under
Order 34, give directions as to the time by which a notice of appointment for
assessment of damages shall be filed and such notice upon being filed shall,
notwithstanding anything in Order 62, rule 10, be served not later than 7
days thereafter on the party against whom the judgment is given. Notice of
appointment for assessment of damages shall be in Form 62A.”
[The damages have to be assessed by the Registrar and the P must obtain
an appointment with the Registrar for the purposes of assessment of
damages. The P must then serve notice of the appointment on the D not
later than 7 days upon such notice being filed.]
F. Setting aside judgment in default of appearance
 Court has absolute discretion to set aside JID of appearance.
 O13 R8
“The Court may, on such terms as it thinks just, set aside or vary any judgment entered in
pursuance of this Order.”
 Evans v Bartlam (1937) A.C. 473 at p.480-check again
Held: Court has absolute discretion to set aside judgement, but the court must have some
guideline:
- Whether the judgement taken is regular( good,strong judgement), therefore
applicant(Defendant) must produce to the court evidence that he has a prima
facie defence
- Applicant also must take what is the reasonable grounds that this judgement
should be set aside.
  Tetuan Tan Teng Siah Realty Sdn Bhd v Island Oil Palm Plantation Sdn Bhd & Anor (1997) 4 CLJ
634
Held:
- A judgment entered in default is not a judgment decided on merits and is liable
to be set aside pursuant to O. 13 r. 8 of the Rules of the High Court 1980 ('the
RHC').
- Where the judgment is regular there must be shown a defence on the merits;
and where the judgment is irregular it can be set aside as a matter of right.
 Regular JID
 The judgement is regular where the P has complied with all procedural steps up to the stage
of the JID.
 To set aside it, the D’s affidavit must show some evidence of prima facie defence/defence
on the merits.
 Defence on the merits means that the D must show some triable/ arguable issues.

 Fira Development Sdn Bhd v Goldwin Sdn Bhd (1989) 1 MLJ 40

Held: 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
judgement and allow the case to be heard on merits as to the delay. There is no rigid rule that
the applicant must satisfy the Court for a reasonable explanation for the delay.

 Taisho Marine Insurance v Wong Poo Peng

Held: The judgement is regular judgement, therefore the Applicant must show a prima facie
defence. However, in this case, the Applicant had not shown a prima facie defence or any merit
in law, therefore, the application was dismissed.

 Dialdas & Co (Pte) Ltd v Sin Sin Co

Held: Defence on the merits does not tantamount to “ironclad” defence but merely requires
arguable and triable issues which are to be tried in a full hearing. The Court define meaning of
“Defence on the merits” means defence which disclosed an arguable and triable issue.

 Irregular JID
 This is in instances where there is some procedural irregularity by the P in obtaining the JID.
Such a JID may be set aside as of right (xex debito justitiae).
 Tetuan Tan Teng Siah Realty Sdn Bhd v Island Oil Palm Plantation Sdn Bhd & Anor
(1997) 4 CLJ 634
Held: Irregularities that render a judgment a nullity include the failure to serve the
summons, the service not provided for by law, the failure to mention the mode of service in
the application for substituted service, the plaintiff getting more than what is prayed for, the
default judgment obtained prematurely or for a sum more than that allowed by O. 42 R. 12
of the RHC, and the judgment entered without leave when leave is required.

 Tun Haji Abdul Rahman v Arab Malaysian Finance Berhad (1996) 1 CLJ 241
Facts: In this case, there was an inordinate delay on the part of the applicant in
filling the application to set aside.
Held:
- The general rule is when a judgement has not been regularly obtained, the
Defendant is entitled to have it set aside xex debito justitiae(it can be set aside as of
right) regardless of the merits or defects.
 - However, the application should be made with reasonable promptitude and bfr the
Plaintiff has taken any steps to execute the judgement.
- The court still retains a discretion to set aside an irregular judgement if no one has
suffered prejudice by reasons of delay, or where such prejudice has been sustained,
it can be met by appropriate order as to costs/where circumstances were such that
to let the judgement stand would constitute oppression.
- The Court has power to set aside JID, even when the D’s application is out of time, if
the particular circumstances of the case require the intervention of the Court.

 Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor (1997) 2 MLJ 565
Held:
- A JID of appearance entered by a P or, for that matter, a counterclaiming D, in
breach of the terms of O13 R6(1) of RHC1980(now ROC 2012) may be set aside ex
debito justitae.
- In this case, there was no doubt that the JID obtained was fundamentally flawed by
failing to serve the SOC on the Ds.
- Although a court may grant leave to enter judgement disregard of the provisions of
O13 R6(1) to prevent D from abusing the Court’s process by resorting to that rule,
there was no room to apply that principle in the present case

 Syarikat Joo Seng & Anor v Habib Bank Ltd (1986) 2 MLJ 129
Held: In this case, the Respondent should have comply with O19 R7(1) of the ROC by
applying to the court for a leave to enter JID against the Defendant. Therefore, the
appellant(Defendant) is allowed to set aside the judgement xex debito justitia.

 Judgment entered for a greater sum(one type of irregular JID)

 Defendant may apply to set aside such judgement and the Plaintiff can apply to amend the
judgement.
 Philip Securities (Pte) v Yong Tet Miaw (1988) 3 MLJ 61
Held: where a judgement has been entered in default of defence for an amount in excess of
that which is due, the court has jurisdiction to amend the judgement instead of setting it
aside.(JID of Defence)
 Cheow Chew Khoon v Abdul Johari (1995) 1 MLJ 457
Held: It is an established principle that in monetary claims, the amount for which the
judgement is entered must be limited to the amount actually due, while in non-monetary
claims, judgements should be entered for the precise relief claimed. Here, the default
judgement for damages which were more than what was due for lawful occupation was
irregular and the judgement in regard to the delivery of vacant possession was prematurely
obtained. Therefore, the judgement should be killed in its entirety and set aside ex debito
justitae.
 Development & Commercial Bank Berhad v Aspatra Corporation Sdn Bhd & Anor (1996) 1
CLJ 141
Held: The default judgement ex facie, showed such a larger sum in regard to the interest of
18% per annum from the date of judgement to the date of satisfaction, when the then
applicable O42 R 12 of the RHC 1980 only allowed for the maximum rate of 8% per annum
on a judgement. For this reason alone, the default judgement ought to be set aside ex
debito justitae.
 Judgment against Government
  O73 R7(1)
“Except with the leave of the Court, no judgment in default of appearance or of pleading
shall be entered against the Government in civil proceedings against the Government or in
third party proceedings against the Government.”

G. Procedure to set aside judgment

 Procedure for setting aside judgment
 By Notice of Application supported by affidavit
 O13 R8
“The Court may, on such terms as it thinks just, set aside or vary any judgment
entered in pursuance of this Order (JID of Appearance).”
 O42 R13
“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.”
 The affidavit must indicate whether the JID was regular/irregular.
 If the judgement is regular, the D must state reasons in the affidavit as to why the
appearance was not entered and show prima facie defence; and
 If the judgement is irregular, the D need only show in the affidavit why the judgement is
irregular and give reasons for not entering appearance.