QUESTION 3 CP

A Defendant entered a Memorandum of Appearance in a writ action wherein the Plaintiff

sought an order for accounts and a declaration. The Defendant however failed to file his
Defence whereupon the Plaintiff entered judgment in default of defence. Advise the
Defendant if the judgment in default is a regular judgment. (4 marks)

The Defendant should file a Statement of Defence after entering a Memorandum of Appearance,
if not a Judgment in Default may be taken against the Defendant by the plaintiff as in Order 19
Rule 7 of Rule of Court 2012.

However, when this happens, the defendant may – even if he has not applied to set aside the default
judgment – appear before the court to raise a challenge during the assessment process. He could
cross-examine the plaintiff as well as adduce any evidence to show the court why damages should
be much less than what the plaintiff is asking for.

But a defendant can always apply to set aside the default judgment. If the application is successful,
the whole matter will go back to the stage where the proceedings commenced. The defendant who
sets aside the default judgment will be required to pay the costs of the proceedings up to that stage.
Judgement in default of appearance is judgement given to the plaintiff without the court hearing
the merits of the plaintiff’s case. Under Order 13 Rule 8 of Rules of Court 2012, the court has
absolute discretion to set aside the judgement on the application of the defendant. There is a
requirement under RC 2012, Order 42 Rule 14 that a party intending to set aside or vary the order
must make his application to the court and serve it on the party who has obtained the order or
judgement within thirty days after the receipt of the order or judgement by him.

According to the case of Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor. 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.

In Sockalingam Chettiar & Ors v Somasundaram Chettiar, it was stated that it was
fundamental a person should have notice of the proceedings against him and even when an order
for substituted service has been made a judgement can be set aside when merits are disclosed and
when the court is satisfied that the defendant was not aware of the proceedings and was not
avoiding service which is tantamount to knowledge of the proceedings. The application to set aside
must be made in reasonable time. However, in a fit and proper case the court will disregard the
lapse of time as stated in Atwood v. Chichester[ 1878] 2 QBD 722.
In Development & Commercial Bank Bhd v Aspatra Corporation Sdn Bhd & Another [1995]
3 MLJ 472, the Supreme Court stated that it is an established principle that if writ cannot be served
personally at the time when it is issued, there cannot subsequently be any substituted service of
the writ. Of course, it is not in all situations that judgment in default can be set aside. One sure
situation is where the judgment is irregular. This can happen where the summons has not been
properly served. It may also be a basis for setting aside the default judgment that final judgment
has been entered for the full sum claimed where the law requires damages to be assessed.

However, where a judgment is obtained regularly, meaning that it is obtained in accordance with
the rules and procedures, the defendant may yet be able to set it aside where he has good reasons
for not having responded and there are merits in his defence.

Of course, in the later case, if the defendant has been dilatory in making the application to set aside
the default judgment after having become aware of it, this will be a ground for the discretion of
the court to be exercised against him.