Chapter 7 - Appearance & Default Judgment Flashcards

Question

SETTING-ASIDE JID Preliminaries & pre-requisites

Answer 1

1) Discretion of court: O.13, r.8 & O.19, r.9 - Evans v Bartlam: since JID is not a judgment on merits, court retains right & discretion to revoke it & set it aside. 2) D must act promptly: - O.42, r.13: Application must be made promptly & served within 30 days from the receipt of the judgment. - O.3, r.5: Extension of time may be applied by D, but it is at the discretion of the court. i) Tian Yan Onn etc. v National Holdings Ltd: - The application to set aside a default judgment must be made promptly although no time limit has been fixed. - What is reasonable time depends on the circumstances of each case. - Any delay must be accompanied with good & satisfactory explanations. - OTF, the court refused to set aside the default judgement where the D’s application was made 7 months and 12 days after the judgement was obtained. The D in this case had waited too long, and the delay was unreasonable and inexcusable ii) Cheung Kong Plantations Sdn Bhd v Malayan United Finance Bhd: - Tindakan dalam kes di sini sudah melangkaui tempoh 12 tahun sehingga tarikh rayuan didengar. - Dalam keadaan sedemikian, membatalkan permohonan ini dengan kebebasan memfail semula seperti yang diperintah dalam kes Sambu (M) Sdn. Bhd. V. Stone World Sdn. Bhd. & Anor. [1997] 1 CLJ 775 adalah tidak munasabah. - Ianya akan hanya melengahkan penyelesaian tindakan ini. - Therefore, appeal dismissed & default judgment is allowed.

Answer 2

1) How to set aside a regular JID 2) Meaning of defence on merits 3) Procedures

Answer 3

B. Dialdas & Co Ltd v Sin Sin & Co Ltd: - if the judgment is a regular judgment, a Defendant must affirm an affidavit of merits stating facts showing a defence on the merits; - therefore, regular JID can be set-aside by showing defence on merits.

Answer 4

1) Burns v Kondel: - A defence which discloses an arguable and triable issue. - Ref. to in B. Dialdas & Co. Ltd v Sin Sin & Co. Ltd. 2) Seng Huat Hang Sdn Bhd v. Chee Seng & Co Sdn Bhd - For the purpose of showing defence on merits, the applicant needs only disclose an arguable or triable issue; or - in other words, an arguable case which ought to go for trial. 3) Multico (M) Sdn Bhd v Leong Kwok Hing (HC, 2020): - ref. to Burns v Kondel & Seng Huat Hang; - A defence on merits has also been described as an arguable defence or a prima facie defence. - A defendant will not be allowed to set aside a judgment in default if he only has a sham defence

Answer 5

Regular JIDA: 1) File Notice of Appearance + Application in Form 57 & affirm affidavit disclosing defence on merits; 2) Within 30 days of receipt of judgment; 3) If late, apply for extension of time under O.3, r.5. Regular JIDD: 1) File NoA in Form 57 + affidavit disclosing defence on merit; 2) Within 30 days of receipt of judgment; 3) If late, apply for extension of time under O.3, r.5.

Answer 6

1) What is an irregular JID 2) Right to set-aside irregular JID 3) Procedures to set aside irregular JID 4) Examples of irregular JID

Answer 7

1) Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Berhad: - 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. 2) Lam Kong v Thong Guan: - A judgment in default of appearance entered is in breach of the terms of O. 13 r. 6(1); - It may be set aside ex debito justitae. 2) Recent - Fredolin Penggo v Mohd Rizal Abdullah (HC, 2020): - The default judgment is irregular when it was obtained not in compliance with the rules of court or a statute; or - is entered as a result of some impropriety which is considered to be so serious as to render the proceedings a nullity.

Answer 8

1) Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Berhad: - 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; - i.e. irregular JID is entitled to be set aside irrespective of the merits and without terms. 2) Fredolin Penggo v Mohd Rizal Abdullah (HC, 2020): - if the default judgment was obtained irregularly, the Defendant then is entitled ex debito justitiae (as of right) to have it set aside; - i.e. setting-aside without any terms whatsoever being imposed on him. - H/ever, the right to set aside is subject to the discretionary power of the court to vary the default judgment under O.13, r.8 or O.19, r.9; or - To order amendments under O.2, r.1 for curing any irregularity when non-compliance with the rules are of a minor technical nature which do not in any way prejudice the defendant or render the default judgment a nullity.

Answer 9

Irregular JIDA: 1) File Notice of Appearance + Application in Form 57 & affirm affidavit disclosing irregularities; 2) Within 30 days of receipt of judgment; 3) If late, apply for extension of time under O.3, r.5. Irregular JIDD: 1) File NoA in Form 57 + affidavit disclosing irregularities; 2) Within 30 days of receipt of judgment; 3) If late, apply for extension of time under O.3, r.5.

Answer 10

1) Defective service of originating process 2) Defective writ 3) Irregular in itself 4) JID entered for unliquidated claims 5) JID entered for greater sum 6) Failure to comply with LPPER

Answer 11

1) What is a defective service - Kekatong Sdn Bhd v Bank Bumiputra: - Defective service of originating process renders a service inexistent in law. - Since the order for sale was obtained when there was no service of the court’s process upon D as required by law, the OFS is a nullity. - Therefore, it is entitled to be set aside. - OTF, the writ is served at D's former address which is held to be defective. 2) Setting-aside SS order - D&C Bank v Aspatra Corp: - In an application to set-aside JID, the validity of an order of SS cannot be challenged collaterally. - It can only be challenged by proceedings instituted for the very purpose & not on application to set aside JID.

Answer 12

1) Writ brought for wrong capacity: Trustee of Chettiar Temple v Kehar Singh: - the whole proceedings & the wit were defective because the parties to the original action were not properly cited in the writ. 2) Other examples: - expired writ; - writ w/o either general endorsement or statement of claim.

Answer 13

1) Backdated JID - Tatchee Machinery Agency v Posan Timber: - JID cannot be entered pre-maturely and cannot be backdated. - By allowing the JID to be entered and backdated, JID becomes irregular and liable to be set aside. 2) JID entered for other claims - O.13, r.6 - Lai Yoke Ngan v Chin Teck Kwee: - Entering JID for other claims constitutes the breach of a substantive right forming part and parcel of the doctrine of procedural fairness; - A JID entered by P is in breach of the terms of O.13, r.6(1) & irregular in itself, rendering it liable to be set aside ex debito justitae.

Answer 14

1) Meaning of unliquidated claims - Mahindar Singh v Amanah Saham Pahang Bhd & Anor: - ascertainment of sum that requires investigation beyond mere calculation is not a ‘debt or liquidated demand’, but constitutes ‘unliquidated damages’. 2) JID with quantified unliquidated claims is irregular - Badrul Zaman v Jabatan Penyiaran Radio & Televisyen Malaysia: - when unliquidated claim is pleaded as a definite figure & judgment is entered on the figure, the judgment in default of defence as entered is clearly irregular and ought to be set aside ex debito justitiae. - when P claims for unliquidated damages, the JID entered is interlocutory & only for liability; - the damages need to be subsequently assessed by virtue of O.13, r.2 & O.19, r.3.

Answer 15

1) Whether JID for a greater sum is irregular - D&C Bank v Aspatra Corporation: - A JID entered for a sum greater that what is P is entitled to is irregular. - However, it is open for P to apply to amend the JID. 2) When can JID be amended - Cheow Choo Koon v Abdul Johari bin Abdul Rahman: JID may be amended in the following circumstances: - (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.

Answer 16

1) Phillip Securities (Pte) v Yong Tet Miaw: - Judgment entered for excess sum could not stand and had to be set aside or amended; - Where a JID is entered for an amount in excess of that which is due, the court has jurisdiction to amend the judgment instead of setting it aside, by virtue of O.19, r.9. 2) Armitage v Parsons: - An amendment of JID could also be made under the “slip rule” in O.20, r.11. 3) Lee Tain Tshung v Hong Leong Finance Bhd (CA, 2000): - Court 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 is done by correcting the judgment sum to the amount that is due. 4) Ching Yik Development Sdn Bhd v Wordware Distributors (M) Sdn Bhd & Anor (HC, 2012): - On the authority of the CA case of Lee Tain Tshung v Hong Leong Finance, a court may vary a default judgment to reflect the correct amount instead of setting it aside. 5) Recent example - Fredolin Penggo v Mohd Rizal Abdullah (HC, 2020): - if the default judgment was obtained irregularly, the Defendant then is entitled ex debito justitiae (as of right) to have it set aside; - i.e. setting-aside without any terms whatsoever being imposed on him. - H/ever, the right to set aside is subject to the discretionary power of the court to vary the default judgment under O.13, r.8 or O.19, r.9; or - To order amendments under O.2, r.1 for curing any irregularity when non-compliance with the rules are of a minor technical nature which do not in any way prejudice the defendant or render the default judgment a nullity.

Answer 17

Sri Minal Construction Sdn Bhd v Mobil Oil Sdn Bhd: - rules made in LPPER have no force of law to override or govern the procedure of courts; - the breach of r.56 does not make the judgment obtained irregular.