Judgment In Default of Appearance - Malaysia

In 2014, when tennis ace Roger Federer pulled out of the World Finals, millions of tennis enthusiasts dubbed the act as a “disgrace”. Now what does Kumar, someone who has not attended Court after being required to, have in common with Roger Federer here?

If you guessed that both of them have, in a sense, forfeited… You’re correct.

Obviously, Kumar is not going to have millions calling him a disgrace. Instead, his failure to attend court would result in a Judgment in Default of Appearance being entered against him.

What is a Judgment in Default of Appearance?

A Judgment in Default of Appearance (JID), known as Penghakiman Ingkar Kehadiran in Bahasa Malaysia is a judgment entered against the Defendant after the Court is satisfied that a Writ of Summons or an Originating Summons has been duly served onto the Defendant but the Defendant has failed to physically appear or file a notice of his appearance in Court within a specified time period.

It is important to keep in mind that a JID is binding against a Defendant, and such judgments can be executed against them.

How is a Judgment in Default of Appearance entered?

A legal action in the civil courts are initiated via a Writ of Summons or an Originating Summons. Upon the issuance of the sealed Writ by the Court, the Plaintiff is to serve the sealed Writ to the Defendant within 6 months after the writ is issued by the Court.

After being served with the Writ, the defendant has a duty to enter an appearance. This can be done by completing a Memorandum of Appearance and handing it to the Court Registry. This would mean that the Defendant has entered appearance and is going to defend himself.

However, if the Defendant has not entered an appearance within the time limit which is within 14 days after the service of writ. This is when the Plaintiff is entitled to obtain a Judgement in Default of Appearance. The Plaintiff would file an Affidavit of Service which states that the Writ has been served onto the Defendant either by personal service or AR Registered Post and upon satisfying the Court that the service is done regularly according to the Rules of Court (ROC), the Plaintiff will get a JID.

After obtaining the JID, the JID is to be served on the Defendant.

Setting aside a Judgment in Default of Appearance

When can you apply to set aside a Default Judgement of Appearance?

One has to be quick when wanting to set aside a JID as the ROC only provides the Defendant 30 days after the service of the JID on him to make the application to set it aside.

Order 42 rule 13 ROC 2012: 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.

Court’s discretionary power

In general, setting aside a JID is up to the court. Whether it is based on the Defendant’s merits, or due to a procedural error on part of the Plaintiff, the judge is required to exercise his judicial discretion.

Order 13 rule 8 ROC 2012: The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance to this Order.

Setting aside a Judgement in Default based on procedural errors

In setting aside a JID, there is a chance of arguing that the Writ and Statement of Claim was not properly served onto the defendant.

This could happen in situations where the Writ and SOC were served to the defendant’s previous address. As a consequence, this would render the Judgment entered irregular and the defendant would have a valid ground to set aside the JID.

With regard to irregular judgements, the Federal Court in the case of Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 MLJ 30 stated that:

“It is elementary that 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 which is considered to be so serious as to render the proceedings a nullity. The general rule is that 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 justicia, that is to say, irrespective of the merits and without terms.”

Setting aside a Judgement in Default based on merits

In the case of Hasil Bumi Perumahan Sdn Bhd v United Malayan Banking Bhd [1994] 1 MLJ 312, a writ of summons and statement of claim was served on the defendant’s solicitors. After failure to file a defence, the plaintiff’s solicitor served, on the defendant’s solicitors a customary 48 hours’ notice, requiring the defence to be filed. Later, when the defence was filed and served, the default judgment had already been given.

Here, the Supreme Court held that in order for the defendant to succeed in his application to set aside a JID, the applicant must show that he has a defence which has some merits and which the Court should try.

In another case called, Seng Huat Hang Sdn Bhd v. Chee Seng & Co Sdn Bhd [1985] 2 CLJ 97, Edgar Joseph Jr emphasized on the importance of presenting the merits of a defence when wanting to set aside a JIDA.

“What I consider however to be crucial in application of this sort is whether there was evidence before the Court disclosing a prima facie defence to the plaintiff’s claim for possession or, in other words, a defence on the merits”. This is why the applicant only needs to disclose an arguable or triable issue based on its merits