Judgment in Default of Appearance in Malaysia (setting aside)

Judgment in Default of Appearance in Malaysia

(i) A Judgment in Default of Appearance in Malaysia or commonly referred to as enghakiman Ingkar Kehadiran in Bahasa Malaysia is a judgment entered against the defendant after it was proved to the satisfaction of the Court that the Writ of Summons was served on the defendant but the defendant have failed to appear or file a notice of his appearance in Court within the permitted time.

(ii) Assuming that someone had served you with a Judgment in Default of Appearance, the next step for you to do now is to set aside the judgment in default of appearance but the question would be how is it possible for you to do so and what is the laws governing in setting aside judgment in default of appearance in Malaysia.

The applicable laws to set aside judgment in default of appearance in Malaysia

(iii) Order 42 rule 13 Rules of Court 2012 (ROC 2012) provides the defendant with 30 days after the service of the judgment in default of appearance on him to make an application to Court to set it aside and it reads as follows:-

“save as otherwise provided in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or vary such order or judgment shall make an application to the Court and serve it on the other party who has obtained the order or judgment within thirty days after the receipt of the order or judgment on him”

(iv) Order 13 rule 8 ROC 2012 provides the Court with the discretionary power to set aside or vary the Judgment and it reads as follows:-

“The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance to this Order.”

(v) In the Federal Court’s decision in Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 3 CLJ Mohd Azmi FCJ have held as follows:-

“The principle of setting aside a default judgment under O.13 r.8 has been well established and needs no detailed repetition. What is important to observe is that a default judgment is not a judgment on the merits. Accordingly, when such judgment is obtained irregularly, such irregularity would be sufficient ground by itself for setting it aside. But where the default judgment has been obtained regularly, in order to succeed the defendant must file an affidavit of merits, i.e. the defendant must disclose by affidavit evidence that prima facie he has a defence of merits. Put in another way, the affidavit must disclose that he has an arguable or triable issue on the merits. (see Evans v. Bartlam [1937] AC 478).”

(vi) The High Court in the case of Tetuan Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor [1997] 4 CLJ 634 define what defence as merits means as follows:-

“A defence has merits if there is reasonable prospect of success on the grounds stated and evidence placed before the court.”

(vii) Briefly what the above legislations and cases says is this:

(a) Application to set aside the judgment in default of appearance shall be made within 30 Days after the receipt of the judgment in default of appearance;

(b) the Court has the discretion to set aside the judgment in default;

(c) the Federal Court said a judgment in default if it is irregular it can be set aside as of right but if the judgment in default is regular a defence of merit will have to be shown to the Court;

(d) a defence has merits if there is a prospect for you to succeed in defending the case base on the defence raised.

Irregular judgment in default of appearance and regular judgment in default of appearance

(viii) To enter a judgment in default of appearance against a defendant will requires the compliance of certain requirements prescribed by the ROC by the plaintif and if the judgment in default of appearance was entered without complying with these rules then the judgment in default of appearance is known as an irregular judgment in default of appearance and an irregular judgment in default of appearance can be set aside as of right i.e. without the need to show the defence of merits.

(ix) On the contrary a regular judgment in default of appearance is a judgment recorded in compliance with the ROC and to set aside a regular judgment in default of appearance you will have to show the Court that you have a defence of merits.

Defence of Merits

(x) A simple illustration of a successful defence of merit is when the defendant raised the allegation that there is no privity of contract i.e. there is no contractual relations between him and the plaintiff when the Plaintiff sued him based on a contract. This can be observed in Tan Teck Hua v. Lim Seng Choo [2012] 1 LNS 717  where the High Court have held as follows:-

“Without making any judgment on the merits of the plaintiff’s claim, in my opinion, the defendant had at the very least raised a prima facie defence, i.e. whether there was a privity of contract between him and the plaintiff.

Conclusion

(xi) It is important to note that time is of the essence when it comes to setting aside judgment in default of appearance in Malaysia because the ROC only provides the defendant only with 30 days after the service of the judgment in default of appearance on him to make the application to set it aside.

(xii) Failure make the application to set aside the judgment in default of appearance shall necessitates a preliminary application to Court for abridgment of time explaining the delay which translates to another hurdle for the defendant to cross in order to successfully set aside the judgment in default of appearance.