Appearance and default judgment

APPEARANCE AND DEFAULT JUGMENT (ORDER 12 AND ORDER 13)
Once the writ is issued, the writ has to be served on the defendant within 6 months. The
defendant has duty to enter an appearance to the writ once it is served.
Order 12 Rule 1(3) - How does Defendant enter an appearance to the writ
a)Appearance is entered by properly completing Memorandum of Appearance in Form 11 of the
Rule and make a copy of it, handing them both to the Court Registry.
b)Memorandum of Appearance is used only if the Defendant has no solicitor, thus Defendant
must signed MOA himself.
c)If Defendant is represented by a solicitor, he will do it - Order 12 r (1), (2)
Consequences of the Defendant entering an appearance
i. He has officially communicate his intention to defend the case brought by the Plaintiff.
ii. He is submitting to the jurisdiction of the Court.
Order 12 Rule 9- entering an appearance does not constitute a waiver
The Df enters an appearance is not a waiver of any procedural irregularities. Df still have the
right to set aside the writ or OS on procedural irregularities.
If Defendant entered an appearance, can he withdraw the appearance?
Yes. But can only do so with leave of Court.
CASE: PARAM KUMARASAMY- Court has considerable dicretion to allow withdrawal but it must
be exercised with extreme caution.
Order 12 Rule 1(2)- Appearance by Corporate Bodies
If Def is a corporate body, appearance must be entered by a solicitor. If not entered by solicitor,
Pf can obtain JIDA. MOA must be filed by a solicitor.
Order 76, Rule 6- Appearance by person under disability
a)Sue by a Litigation Representation.
Pf sues person under disability - has no LR, so writ was served on him/parents but has no LR.
b) If appearance was not entered with the time limit, can Pf entered JIDA against person under
disability: NO. For a person under disability, appearance must be entered by LR. If there's none,
the Pf has to apply to Court to appoint someone to be the LR.

Order 12, Rule 4 - Time Limit for Appearance
a) Writ served within the local jurisdiction of each High Court of Malaya (Peninsular Malaysia)-
14 days after the service of writ.
b) Writ served within Sabah and Sarawak0 14 days after the service of the writ or in the case
of a defendant does not reside within the division or residency of the Court which issued
the writ, then Defendant must enter appearance wthin 20 days.
c) Writ served out of the jurisdiction, 14 days or 21 days after service of the writ.
JUDGMENT IN DEFAULT OF APPEARANCE (JIDA)
When the writ is served on the Defendant, the Defendant must enter appearance within the
time limit. If the defendant fails, Plaintiff may obtain JIDA. Judgment can be executed against
Defendant. (Importance of appearance)
When JIDA can be entered (Order 13 Rule 1 to 5)
i. Order 13, Rule 1 - Claim for liquidated sum. It must be capable of being ascertained. Where
the claim by the Plaintiff is for a liquidated sum, and Defendant fails to enter an appearance
within the time limit stipulated, then Plaintiff can enter final judgment for a sum not
exceeding that claimed by the writ in respect of the demand and for costs.
ii. Order 13, Rule 2 - Claim for Unliquidated Sum. A sum which cannot be ascertained by
precise mathematical calculation. Must be assessed first, and if the Plaintiff's claim is for
unliquidated damages and the Defendant fails to enter and appearance within the time
limit, then the Plaintiff may enter interlocutory judgment against the Defendant for
damages to be assessed and costs.
iii. Order 13, Rule 3 - Claim in Detinue. Plaintiff's claim is in relation the wrongful detention of
goods.
iv. Order 13, Rule 4 - Claim for Possession of Immovable Property. Where Plaintiff is claiming
to recover back his land or property and not claiming relief under Order 83, Rule 1.
v. Order 13, Rule 5 - Mixed claim. Mixtures of claim from Order 13, Rule 1 to Rule 4.

Instances when JIDA may not be entered (Order 13, Rule 6)
a)Other than those mentioned in Order 13 Rule 1- Rule 5.
b) Judgment in default of appearance cannot be entered in for equitable remedies: injuction,
account, specific performance, declaration, rectification.
c) If the Pf’s claim falls within the matter which the Pf cant enter JIDA, but he enter JIDA, the
judgment become irregular judgment and it can be set aside as of right with cost.
Case: Lam Kong Co Ltd
JIDA cannot be entered where the Pf's claim is of equitable remedies.
Procedure to enter JIDA
a)It is an administrative procedure
b)No need to appear before the Court/ appear before the judge to obtain order.
c)3 documents need to be filed at the Court Registry:
i. Certificate of non appearance in Form 12 - Order 13 Rule 7(1)(a)
ii. Affidavit of service which proved service of the writ on the defendant in Form 135 or
original copy of the writ endorsed by the Defendant's solicitor that he accepts service of
writ on behalf of the defendant - Order 13 Rule 7(1)(b)
iii. Two completed judgment forms duly stamped in Form 75 - Order 42 Rule 5
d)The judgment must be then be served on the Df.
Rule 56 of the Legal Profession (Practice and Etiquette Rules)
where a defendant is represented by a solicitor, No JIDA can be entered against Df unless 7 days
notice is given to the Defendant's solicitor informing him of the Pf's intention to enter JIDA.
Within 7 days, if def fails to enter appearance, Pf can obtain JIDA.
-only apply when both side are represented by solicitor.
CASE: SRI MINAL CONSTRUCTION
Non compliance with Rule 56 does not make the judgment irregular judgment. It is still a regular
judgment and therefore cannot be set aside. Rule 56 is not a rule of procedure but rules of
etiquette among lawyers conduct. Pf suffered no consequence. The lawyer may be subjected to
disciplinary proceedings.

What if the Pf’s action fall within the matter which he cannot enter JIDA?
Situation: A is suing B in the High Court, serves his writ on B a month ago, to date B hasn't
entered an appearance, A's claim is for damages and specific performance. What steps may A
take?- No because claim x fall within Order 13 Rule 1 to 5.
What Pf can do - Order 13 Rule 6
1. Plaintiff must wait for time limit for appearance to expire.
2. After the time limit for appearance has expired, he has to file an affidavit of service to
prove the writ was duly served on the defendant.
3. He must then proceed with action as if defendant has entered an appearance. The next
action would depend whtether the writ was served alone or served with SOC.
If the writ was served alone
a) Pf must file SOC and serve it to the Defendant.
b) Defendant has 14 days to file her Defence.
c) If Defendant fails to file her defence within 14 days, then Plaintiff can apply for JIDD.
d) This must be done by an application to Court.
if the writ was served with SOC
a) Df must enter an appearance within 14 days after the writ and SOC are served to him.
b) After the expiry of time limited for appearance, Df has another 14 days to file his
defence.
c) If Defendant fails to file his defence, then Plaintiff can enter JIDD against Defendant
under Order 19 Rule 7.
Judgment may be final or interlocutory (JIDA)
1)Final - where damages need not be assesed. Final judgement tells exactly what he should get.
Pf can immediately proceed to execute the judgment. (Order 13 Rule 1 and Rule 4)
2)Interlocutory - damages must be assesed. Not settle yeat, must be assesed by the Court.
(Order 13 Rule 2, 3 nd 5)
*Assessment of damages - Order 37 Rule 1

SETTING ASIDE JIDA
Order 13 Rule 8 – gives a power to the court to set aside JIDA.
CASE : 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.
CASE: EVANS V BARTLAM
The principle obviously is that the court still possesses the unfettered discretion to set it aside
any judgment entered if it thinks fit.
Time limit to set aside -Order 42 Rule 13
The Df must apply within 30 days from the date the judgment was served on the defendant.
* Not the date of the judgment*
CASE: FIRA DEVELOPMENT SDN BHD V GOLDWIN
The application should clearly be made promptly and within reasonable time. But the Court will
in a fit case disregard lapse of time.
Factors when Court decide to set aside
1) The Court will see whether judgment is regular or irregular judgment.
2) If it is an irregular judgment obtained in non-compliance with the Rules) the JIDA can be
set aside as of right with cost. E.g; enter JIDA when claim does not fall within Order 13
Rule 1 – 5.
3) If it is a regular judgment, and the Df want to set aside, the Df has to show he has
‘defence on the merit’ – The Df has to raise an arguable and triable issue. A defence has
merits if there is a prospect for you to succeed in defending the case base on the
defence raised.If the Df failed, the judgment will be left as it is.

CASE: DIALDAS & CO
If P's judgment is an irregular judgment, Df must show he has defence on the merit to set aside
JIDA.
Held: The Df must actually prove that they have a good defence on the merit and not only assert
it.
CASE: TUAN HAJI AHMED ABDUL RAHMAN V ARAB MALAYSIAN FINANCE BHD
JIDA entered into for an amount which was excessive. Applied to set aside the irregular default
judgment.
Held: It is an irregular which has been entered otherwise than in strict compliance with the rules
or is entered as a result of some impropriety which is considered to be so serious as to render
proceedings a nullity.
Procedure to set aside
Apply by way of notice of appearance supported by an affidavit – (Irregular) explain irregularities
or (regular) defendant must show that he has a defence on the merit.

Appearance and default judgment

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