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Civil Procedure > Chapter 7 - Appearance & Default Judgment > Flashcards

Chapter 7 - Appearance & Default Judgment Flashcards

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1
Q

APPEARANCE & DEFAULT JUDGMENT

Overview

A

1) Entry of appearance
2) JID - general
3) JID in appearance
4) JID in defence
5) Setting-aside JID - general
6) Setting-aside regular JID
7) Setting-aside irregular JID

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2
Q

ENTRY OF APPEARANCE

Overview

A

1) The law & scope
2) When can appearance be entered
3) How can appearance be entered
4) Issues on appearance
5) Failure to enter appearance
6) Service of defence

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3
Q

ENTRY OF APPEARANCE

The law & scope

A

O.12

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4
Q

ENTRY OF APPEARANCE

When can appearance be entered

A

1) Time limit for appearing - O.12, r.4:

  • Peninsular Malaysia: within 14 days from the date of service of writ
  • Sabah & Sarawak: within 14 days from the date of service of writ, or 21 days if the address is not within the Registry
  • Out of jurisdiction: 21 days after the service of the writ;
    Agent or overseas principal: 14 days after the service of the writ.

2) Effect & scope of of r.5 - Lai Yoke Ngan v Chin Teck Kwee:

  • Although D may appear appearance within 14 days, D may also enter appearance at any time before the judgment is entered against him.
  • The effect of r.5 is that D may enter appearance at any time before judgment is entered against him.

3) Late appearance: O.12, r.5(1)
- Appearance is considered late when judgment has been entered against D & no extension of time is granted.

Wan Mohd Suffian v MBF Finance Berhad:

  • there is no provision which disallow D from entering appearance after judgment has been entered, but leave of court must be obtained.
  • D who entered appearance after the expiry of time cannot serve his defence without the leave of court.
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5
Q

ENTRY OF APPEARANCE

How can appearance be entered

A

1) When the writ is duly served:
- Individuals: O.12, r.1(3) & O.12, r.3(2)
- Body corporate:

(i) How: O.12, r.1(2)
(ii) Procedures: O.12, r.1(3) & O.12, r.3(2).

2) Other forms of appearance:
- Appearance under protest: O.77, r.4(2)
3) Appearance gratis: O.10, r.1(3)

What:

How:

Effect of appearance gratis - Pike v Nairn & Co:
D has waived personal service.

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6
Q

ENTRY OF APPEARANCE

Issues on appearance

A

1) Does not amount to waiver to irregularity of writ or service: O.12, r.9 & 10.
2) No appearance for O.S: O.12, r.13
3) Body corporate shall only enter appearance through solicitor: O.12, r.1(2)
4) No address on MOA: O.12, r.2(4)

5) Filing MOA w/o serving MOA to P - Bintulu Adhesives v Chuah Seah Joo
- there is nothing on O.12 that imposes an obligation on D to serve a copy of MOA to P;
- The provision only provides MOA shall be entered within the time limit.
- Therefore, the appearance is regular.

6) Dispute as to jurisdiction - O.12, r.10.

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7
Q

ENTRY OF APPEARANCE

Failure to enter appearance

A

O.13:

  • JID in appearance may entered against him.
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8
Q

ENTRY OF APPEARANCE

Service of defence

A

1) The law:
- O.18
2) Delivery of defence - O.18, r.2:

  • before expiry of time limit for appearing;
  • after SOC is served;
  • whichever the later.
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9
Q

JID - GENERAL

Overview

A

1) Nature of JID

2) Circumstances where JID cannot be entered for

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10
Q

JID - GENERAL

Nature & principle of JID

A

Evans v Bartlam:

  • JID is an exercise of the court’s coercive powers as opposed to judgment on merits;
  • The court granting such a judgment retains a right to revoke the judgment & set it aside.

The principle:

  • unless and until the court has pronounced a judgment upon the merits or by consent, it has the power to revoke the expression of its coercive power.
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11
Q

JID - GENERAL

Circumstances where JID cannot be entered for & its rationale

A

1) Circumstances:

  • Injunction,
  • Declaration,
  • Account,
  • Specific performance,
  • Rectification

2) Rationale - Lai Yoke Ngan v Chin Teck Kwee

  • Nature of claims such as injunction & declaration is completely discretionary;
  • Entering JID in such a case has the effect of withholding, from a defendant, without the court’s sanction, the procedural fairness.
  • Therefore, it is for the P to satisfy the court that his case is fit for the court to grant specific relief.
  • Despite non-appearance of D, the rule preserves the discretion of the court in granting specific relief.
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12
Q

JID IN APPEARANCE

Overview

A

1) The law & scope
2) Certificate of non-appearance & proof of service of writ
3) Interlocutory JID
4) Final JID
5) JID for other claims
6) Procedures to enter JID
7) Issues on JID in appearance

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13
Q

JID IN APPEARANCE

The law & scope

A

O.13

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14
Q

JID IN APPEARANCE

Certificate of non-appearance & proof of service of writ

A

O.13, r.7: JID shall not be entered unless:

  • P produces a certificate of non-appearance in Form 12;
  • Affidavit proving due service of the writ on D; or D’s solicitors with a statement that he accepts service.
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15
Q

JID IN APPEARANCE

Interlocutory JID

A

1) O.13, r.2: claim for unliquidated damages

  • Judgment of liability;
  • Assessment of damages under O.37, r.1.

i) what is unliquidated damages - Credit Corporation (M) Sdn Bhd v Bulan Sabit Sdn Bhd & Ors:
- One cannot convert an unliquidated claim to a liquidated one merely putting down some allegedly precise mathematically calculation.
2) O.13, r.3: claim for detinue

  • for the delivery of the property; or
  • for the assessment of the value of the property.
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16
Q

JID IN APPEARANCE

Final JID

A

1) O.13, r.1: claim for liquidated demand
i) What is liquidated demand - Mahindar Singh v Amanah Saham Pahang Bhd & Anor:

  • Its amount must either be already ascertained or capable of being ascertained;
  • Ascertainment of sum which requires investigation beyond mere calculation is not a liquidated demand.

2) O.13, r.4: claim for possession of immoveable property

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17
Q

JID IN APPEARANCE

JID for other claims

A

1) Effect of r.6 - Lam Kong Co Ltd v Thong Guan Co Ltd:

  • P is to proceed with the action as though D had appeared;
  • P ought to have precluded from entering a default judgment against D.

2) Rationale of r.6 - Lai Yoke Ngan v Chin Teck Kwee

  • Nature of claims under r.6 is completely discretionary;
  • Entering JID has the effect of withholding, from a defendant, without the court’s sanction, the procedural fairness.
  • Therefore, it is for the P to satisfy the court that his case is fit for the court to grant specific relief.
  • Despite non-appearance of D, r.6 preserves the discretion of the court in granting specific relief.

3) Rationale of r.6 - Lam Kong v Thong Guan:

  • 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, upon a motion for judgment, that the case is a fit one for the grant of specific relief.

4) Doctrine of election - Maxland Sdn Bhd v Timatch Sdn Bhd:

  • Court held that if P wanted to bring his case within r.1-4, he ought to have abandoned the claim for an injunction before the JID was entered and informed D accordingly.
    The Court approved the doctrine of election in Badrul Zaman.

4) Election for P - Badrul Zaman v Tamil Nesan Sdn Bhd

  • Election, to be effective, must be done before JID is entered & not after JID has been entered & perfected.
  • JID will remain irregular if election is made after JID has been entered.
18
Q

JID IN APPEARANCE

Procedures to enter JID

A

1) Documents need to be filed:

  • Certificate of non-appearance in Form 12;
  • Affidavit of service in Form 135 OR original copy of the writ with receipt endorsement by D’s solicitors.

2) Judgment & service:

  • Two copies of judgment in Form 75;
  • Service of judgment to D.

3) Duty of court: O.10, r.1(4)

Court must be satisfied that:

  • (a) the writ has been duly served;
  • (b) time for appearance has lapsed;
    (c) the indorsement & service of writ was regular.
19
Q

JID IN DEFENCE

Overview

A

1) The law & scope
2) Interlocutory JID
3) Final JID
4) JID for other claims

20
Q

JID IN DEFENCE

The law & scope

A

O.19

21
Q

JID IN DEFENCE

Interlocutory JID

A

1) O.19, r.3: claim for unliquidated damages
i) what is unliquidated damages - Credit Corporation (M) Sdn Bhd v Bulan Sabit Sdn Bhd & Ors:
- One cannot convert an unliquidated claim to a liquidated one merely putting down some allegedly precise mathematically calculation.
2) O.19, r.4: claim for detinue

22
Q

JID IN DEFENCE

Final JID

A

1) O.19, r.2: claim for liquidated demand
i) What is liquidated demand - Mahindar Singh v Amanah Saham Pahang Bhd & Anor:

  • Its amount must either be already ascertained or capable of being ascertained;
  • Ascertainment of sum which requires investigation beyond mere calculation is not a liquidated demand.

2) O.19, r.5: claim for possession of immoveable property

23
Q

JID IN DEFENCE

JID for other claims

A

1) The law:

O.19, r.7

2) Scope of O.19, r.7:

  • For other claims (e.g. injunction, declaration, etc) P may, after the expiration of service of defence, apply to court for judgment;
  • On the hearing of the application, court shall give such judgment as P appears to be entitled to in his SOC.

3) Effect of r.7 - Amalan Tepat Sdn Bhd v Panflex Sdn Bhd (FC):

  • 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.
  • Courts are very slow in granting declaratory prayer without any evidence and argument advanced.
  • Therefore, an application for a declaratory judgment in default of defence pursuant to O. 19 r. 7(1) must be supported by evidence of the factual matrix to enable a judge to exercise his discretion in granting or refusing the declaratory relief prayed for.
24
Q

SETTING-ASIDE JID

Overview

A

1) Preliminaries & pre-requisites
2) Setting-aside regular JID
3) Setting-aside irregular JID

25
Q

SETTING-ASIDE JID

Preliminaries & pre-requisites

A

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.
26
Q

SETTING-ASIDE REGULAR JID

Overview

A

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

27
Q

SETTING-ASIDE REGULAR JID

How to set-aside a regular JID

A

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.
28
Q

SETTING-ASIDE REGULAR JID

Meaning of defence on merits

A

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
29
Q

SETTING-ASIDE REGULAR JID

Procedures

A

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.

30
Q

SETTING-ASIDE IRREGULAR JID

Overview

A

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

31
Q

SETTING-ASIDE IRREGULAR JID

What is an irregular JID

A

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.
32
Q

SETTING-ASIDE IRREGULAR JID

Right to set-aside irregular JID

A

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.
33
Q

SETTING-ASIDE IRREGULAR JID

Procedures to set aside irregular JID

A

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.

34
Q

EXAMPLES OF IRREGULAR JID

Overview

A

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

35
Q

EXAMPLES OF IRREGULAR JID

Defective service of originating process

A

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.
36
Q

EXAMPLES OF IRREGULAR JID

Defective writ

A

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.
37
Q

EXAMPLES OF IRREGULAR JID

Irregular in itself

A

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.
38
Q

EXAMPLES OF IRREGULAR JID

Judgment for unliquidated claims

A

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.
39
Q

EXAMPLES OF IRREGULAR JID

JID entered for a greater sum

A

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.
40
Q

EXAMPLES OF IRREGULAR JID

Jurisdiction to amend JID entered for a greater sum

A

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.
41
Q

EXAMPLES OF IRREGULAR JID

Failure to comply with LPPER

A

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.

Civil Procedure (43 decks)

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