Our last article discussed the general process of initiating a suit and the rules on pleadings. We also briefly mentioned Judgment in Default (“JID”). This article explains what a JID is and how it is obtained.
What is a Judgment in Default?
As previously mentioned, under the Rules of Court 2012 (“the ROC 2012”), a Defendant shall enter appearance within fourteen (14) days from the date of service, failing which a Judgment in Default of Appearance may be entered against him/her.
The Plaintiff may obtain a JID against the Defendant where the Court has been satisfied that a Writ of Summons has been served on the Defendant, but he/she has failed to enter appearance within the specified timeline.
It is also to be noted that a JID can be entered automatically without the need to inform the Defendant further after the expiry of the deadline. Once a JID is entered, the matter is closed and a final judgment is deemed entered, unless set aside.
Setting Aside a JID
Under Order 43 rule 13 of the ROC 2012, the Defendant has a time frame of thirty (30) days from the date of receipt of the JID to apply to the Court to set aside the JID.
However, the setting aside is not guaranteed as the Court has the power to exercise its discretion in doing so as provided for under Order 13 rule 7 of the ROC 2012.
The Court in the case of Ching Yik Development Sdn Bhd & Anor v Wordware Distributors (M) Sdn Bhd & Anor [2012] 10 MLJ 611 ruled that the Defendants are entitled to set aside an irregular JID as of right, but there is “a need for the Defendants to show a defence on merits before they can set aside the default judgment” in an application to set aside a regular JID.
What is a Regular and Irregular Judgment?
An irregular judgment is one obtained without complying strictly with the ROC 2012 such that it renders proceedings a nullity. This was held by the Court in the case of Lee Kok Kee v Ooi Chee Wee [2020] MLJU 285.
Defence on the Merits
In the case of Yayasan Melaka v Photran Corp Sdn Bhd & Anor [2012] 7 MLJ 1, the Court explained that a ‘defence on the merits’ is where an arguable or triable issue is raised:
Summary
In summary, it is important to enter an appearance (if the Defendant intends to defend the case) when served with a writ within the specified deadline, failing which a JID, which is a final judgment, can be entered against a Defendant in a case.
Once a JID is entered, it is important to take note of the 30 day time limit to set aside a JID. If the judgment was entered into properly and in compliance with the ROC 2012, the Defendant must show the Court that there is a defence on the merits. Accordingly, a draft defence ought to be included into the application for setting aside a JID. On the other hand, if the judgment entered into contravened rules in the ROC 2012 and is irregular, then the Defendant is entitled to set it aside as of right.
For further information, please contact:
Darren Lai, Partner, Richard Wee
dl@richardweechambers.com
