DEFAULT JUDGMENTS: SETTING ASIDE

Transcription

1 DEFAULT JUDGMENTS: SETTING ASIDE ISBN Author: Nasser Hamid Binding: Softcover/Extent: 575 pp Publication Price: MYR The law is stated as of August 31, 2006 CHAPTER 1 RULES OF COURT & COMPLIANCE Rules of Court... 1 Determining Irregularities & Nullities... 3 Nullity Meaning of... 4 Effect of Non-Compliance... 4 Terminology in relation to Orders and Judgments of Court... 5 Position now under Order 2 r 1 of the RHC Procedural Requirements - Non-Compliance Effect of... 7 Breach of Procedural Provisions by a Litigant Current Approach of the Courts Courts Discretion to Cure Irregularities Limitations of the Curative Powers of Order 2 r 1(1) of the RHC Preclusion of Order 2 r 1(1) of the RHC Power of Court to Cure Irregularity or to Set Aside a Judgment or Order Default Judgments Fundamental Defects and Order 2 r 1 of the RHC Rules of Court Abuse of Process CHAPTER 2 JUDGMENT & ORDERS OF COURT: SETTING ASIDE Judgment & Orders Meaning of Judgments of Court Duty to Obey Terms of Order of Court Clarification of Form of Judgment - Prescribed Form Deviation from Prescribed Form Effective Date of Judgment or Order Ante-Dating or Post-Dating Judgments or Orders... 51

2 Invoking Inherent Powers - Applicability of Order 92 r 4 Other Remedies Available Mistakes in Judgments or Orders Slip Rule & Power to Amend under Inherent Jurisdiction of Court Power of Court to Amend or Vary Order Judgment Amendment of Judgment Debt - Approach of Courts Liberty to Apply Notice of Discontinuance Effect of Discontinuance after Judgment Draft Judgments - Statutory Obligation to file Draft Judgment Non-Compliance with Order 42 r 8(1) of the RHC Effect of Inherent and Discretionary Jurisdiction of Superior Courts to Set Aside an Order Application to Set Aside an Interlocutory Order Test to be Applied Application to Set Aside Order of Court Delay Abuse of Process Setting Aside Discretion of Court Consent Judgment and Orders Terms of Settlement & Consent Judgment or Order Consent Orders - Setting Aside Consent Order or Judgment Application to Set Aside Delay Consent Judgment Abuse of Process Order of Sale Setting Aside Failure to Serve Notice of Adjourned Hearing Order of Sale Inordinate Delay in Applying to Set Aside - Non Compliance of Mandatory Provisions of Rules of Court Effect of Setting Aside Order of Sale Foreign Default Judgments Judgments in Foreign Currency Garnishee Order Setting Aside Setting Aside Garnishment Order made Absolute by Consent Unless Order Setting Aside Execution of an Order or Judgment Stay - Powers of Court... 91

3 CHAPTER 3 DEFAULT JUDGMENTS & SETTING ASIDE Judgments in Default Meaning of Entering Default Judgment Draft Judgment - Failure of Plaintiff to Submit Copy of the Draft Judgment for Approval Defendants Solicitors - Whether Ground for Setting Aside Default Judgment Default Judgment against the Government Default Judgment Duty to Obey Inherent Powers of Court to Set Aside Default Judgment Setting Aside Ex parte Order in Default Irregular Default Judgment Effect of and Power of Court to Amend Error in Default Judgment - Court s Power to Amend Application to set Aside Default Judgment Regular & Irregular Judgments Whether Default Judgment Regularly Obtained Test Non-Compliance of Procedural Requirements - Regular & Irregular Judgments Debt or Liquidated Demand Determination of Regular or Irregular Judgment Regular Judgment - Setting Aside Irregular Judgment - Setting Aside Irregular Judgment & Setting Aside Irregular Judgment Exercise of Discretion Irregular Judgments & Natural Justice Irregular Judgments Current Position Specifying the Irregularity Regular & Irregular Judgment - Delay in Applying To Set Aside Default Judgment Irregular Judgment Delay in Applying to Set Aside Determination of Irregular Judgments Uncertainty in Default Judgment Whether therefore an Irregular Judgment Irregular Judgment Non Existence of Plaintiff Company at Time of Default Judgment Two Return Dates on Summons Whether Irregular Judgment Irregular Judgment Claim for Relief not

4 Asked for in Writ Irregular Judgment - Default Judgment Entered for an Amount in Excess of Amount claimed in the Statement of Claim Incorrect Claim - Varying the Judgment Interest on Judgment Sums Power of Courts to Award Interest Excessive Judgment Interest Interest on Judgment Debt exceeding Statutory Rate - Independent Covenant Interest Failure to Define the Prescribed Rate of Interest - Irregular Judgment Uncertain Default Judgment - Interest Claimed Fluctuating Power to Cure an Irregular Judgment Erroneous Rate of Interest Excessive Judgment Interest Whether Court Could Amend the Interest Rate Interest on Judgment Sum - Application to Set Aside Default Judgment - Power of Court - Extent of Jurisdiction of Court to Award Interest on Judgment Sums Interest Power of Court to Vary Judgment to Comply with Order 42 r 12 of the Rules of the High Court Post-Judgment Interest Rate Whether Irregular Judgment Effect of Non Compliance with Rule 56 of the Legal Profession (Practice and Etiquette) Rules The 48-hour notice under r 56 of the Legal Profession (Practice and Etiquette) Rules Whether Non- Compliance with Rule 56 renders the Judgment obtained in Default of Defence an Irregular Judgment Practice & Etiquette Rules - Rule le 56 of the Sarawak Advocates (Practice and Etiquette) Rules Affidavit to show Compliance with Rule 56 of the Legal Profession (Practice and Etiquette) Rules Rule 56 of the Sarawak Advocates (Practice and Etiquette) Rules 1988 Waiver of Breach Form of Notice Rule 56 of the Sarawak Advocates

5 Ordinance (Practice and Etiquette) Rules Default Judgment - Counterclaim by Defendant against Plaintiff CHAPTER 4 DEFAULT JUDGMENTS: APPLICATION TO SET ASIDE Introduction Application to set Aside Default Judgments in the Subordinate Courts Subordinate Court Rules 1980 PU (A) 328/ Irregular Judgment Jurisdiction of Subordinate Courts Subordinate Courts - Variation of Order of Court Application to Set Aside Challenging the Jurisdiction of the Court - Jurisdiction of Civil Courts Islamic Law Application to Set Aside Default Judgment - Time for Application Application to Set Aside - Delay Affidavit in Support Failure to Give Notice to Plaintiff of its Intention to Use Default of Appearance - Absence of Defendant - Presence of Counsel Subordinate Courts - Judgment in Default Mentioning on Behalf Judgment in Default of Attendance on a Mention Date Judgment in Default of Defence APPLICATION TO SET ASIDE DEFAULT JUDGMENTS Application to Set Aside Default Judgment - Principles Applicable Application to Set Aside Promptitude - General Principles Collateral Proceedings Reliefs Sought Application to Set Aside Use of Specific Provisions Application to Set aside Default Judgment Challenge to Capacity and Locus Standi of Plaintiff Res Judicata Issue of Locus Standi Application to Set Aside Default Judgment Bankrupt Applicant Jurisdiction of Court

6 Procedures for Setting Aside Default Judgments Erroneous Heading in Summons - Application to Set Aside Default Judgment Notice of Motion Stating Irregularities in the Summons on an Application to Set Aside a Default Judgment Affidavits Affidavits in Support Affidavit by Solicitor Application to Set Aside Waiver Affidavit in Support Waiver of Right to Objection Application to Set Aside Default Judgment Factors to be Considered Setting Aside Part of Default Judgment Power of Court to Set Aside Default Judgment Power of Court to Set Aside Default Judgment on its Own Motion Power of Court to Set Aside Default Judgment - Exercise of Discretion Application to Set Aside Default Judgment Regular & Irregular Judgments - Duty & Discretion of Court Judgment in Default of Defence for Declaratory Matters - Power of Senior Assistant Registrar Reasons for Allowing Judgment to go by Default - Exercise of Discretion Exercise of Discretion - Relevant Evidential Material Doctrine of Functus Officio & Default Judgments Default Judgment Whether Court was Functus Officio Application to Set Aside Exercise of Discretion Review by Appellate Court TIME FOR MAKING APPLICATION Order 42 r 13 of the Rules of the High Court Service of Application Time to Make Application Service of Judgment on Defendant Right to have Irregular Judgment Set Aside Ex Debito Justitiae and Delay Application to set aside Default Judgment Delay Principles Applicable Application to Set Aside Default Judgment Delay

7 Delay in Application Court to Disregard Lapse of Time Delay - Where Judgment a Nullity Application to set aside Regular Judgment Regular Judgment - Delay Reasons for Delay in Application Irregular Judgment and Delay Reasonable Time After Becoming Aware of the Irregularity Delay Taking Steps with Knowledge of Alleged Irregularity Delay Solicitor Application to Set Aside Delay Function of Appellate Court Application for Extension of Time Factors to be Considered DEFENCE ON THE MERITS Defence on the Merits Application to Set Aside Default Judgment - Defence on the Merits - Guidelines Defence on the Merits Proof of Allegations Draft Defences Affidavit of Merits Failure to File Defence Effect of Defence on the Merits - Defence of Non-Disclosure of Material Fact Defence on the Merits & Variation of Judgment in Default Failure to Supply Particulars Application to Set Aside - Mistake of Solicitors General Principles Inadvertence of Solicitor Defence on the Merits Disappearance of Solicitor CONDUCT OF DEFENDANT Application to Set Aside Default Judgment - Conduct of the Defendant Conduct of Defendant - Full, frank, candid and Honest Disclosure of all Relevant Facts Fresh Steps in the Proceedings Taking Fresh Steps Whether Inconsistent with Application to Set Aside Default Judgment

8 Dismissal of Summons to Set Aside Default Judgment Can a Second Application be made to Set Aside a Default Judgment Stay of Execution Counterclaim Time for Application FOREIGN JUDGMENT Application to Set Aside Foreign Judgment Registered in Malaysia Service of Foreign Process by a Private Agent Application to Set Aside Foreign Judgment Registered in Malaysia Delay in Application Foreign Failure to Specify Exact Amount of Interest which had Accrued Grant of Order Setting Aside Default Judgment CHAPTER 5 JUDGMENT IN DEFAULT OF APPEARANCE: SETTING ASIDE Introduction Obtaining Judgment in Default of Appearance Judgment in Default of Appearance and Non Compliance with Rules of Court Entering Default Judgment Defendant is before the Court Application for Judgment in Default of Appearance Affidavit of Service Entering Default Judgment - Claim for Liquidated Amount Judgment in Default of Appearance Unliquidated Claim and Liquidated Claim Interlocutory or Final Judgment Interlocutory Judgment on Default of Appearance Interlocutory Judgment on Default of Appearance Application by Third Party to Set Aside Default Judgment Absence of Notice of Proceedings - Notice of the Proceedings - Section 96(1) of the Road Transport Act Judgment in Default of Appearance to Writ Other Claims Judgment in Default of Appearance Setting Aside Merits of Defendant s Case

9 SUBORDINATE COURTS Subordinate Courts Service of Summons Appearance Service of Appearance and Service of Defence Absence of Parties Subordinate Courts Absence of Parties HIGH COURT Introduction SERVICE OF PROCESS Object of Service of Process Service of Originating Process Service of Originating Process Order 10 r 1(1) of the Rules of the High Court Interpretation of Service of Originating Process Statutory Amendment Service of Writ Service of Process - Breach of Statutory Provision Curative Powers of Rules of Court Service of Writ Substantive as well as a Procedural Issues Service of Process Failure to Effect Service - Presumption Service of Process Absence of Defendant - Need for Strict Compliance with the Rules Service on Defendant Personally where Defendant s Solicitors on Record Service of Writ Ad Hoc Agreement Service of Writ Guarantors Service of Process Residential Address Last Known Address Meaning of Admission of Receipt of Writ Defendant Unaware of Proceedings Effect of Irregular Judgment Bad Service Challenge should be in Proper Proceedings Service of Process Contractual Service of Cause Papers Service Pursuant to Contractual Provision in Hire Purchase Agreement SUBSTITUTED SERVICE Substituted Service

10 Substituted Service - Practice Note No 1 of Substituted Service Validity of Order Irregular Substituted Service COMPANIES Service on Company Effective Date of Change of Address Service on Companies Several Offices Principal Office of the Corporation Principal Officer of the Corporation Accepting Service of Writ Service on Company Inference of Service Irregular Judgment Corporations Proof - Whether there was Due Service of Writ APPEARANCE Appearance Introduction Failure to enter Appearance Conditional & Unconditional Appearance Conditional Appearance - Meaning of Entering Conditional Appearance and Default Judgment Conditional Appearance Unconditional Appearance Challenging Jurisdiction of Court Appearance Arbitration Clause Defence on the Merits - Arbitration Clause Unconditional Appearance - Step in the Proceedings - Arbitration Irregularity Whether Court had acted Without Jurisdiction Irregular Judgment Failure to file Certificate of Non-Appearance Action for Specific Performance of Agreement for Sale and Purchase of Property Judgment in Default of Appearance Irregular Judgment Mistake of Solicitor Discretion of Court Reason for Non-Attendance of Solicitor Adjournments Principles Applicable Adjournment of Cases Effect of Non-Service of Notice of Adjourned Hearing FOREIGN JUDGMENTS

11 Impeaching Foreign Default Judgment Summary Judgment in Default of Appearance 448 Principles on which Judgment in Default may be Set Aside under Order 14 r Summary Judgment in Default of Appearance Principles Applicable Setting Aside Default Judgment and Application for Summary Judgment Setting Aside Summary Judgment Granted in Default - Application under Order 14 r 11 of the RHC Interest - Varying a Judgment in Default of Appearance - Curative Jurisdiction to Vary Default Judgment to Show Correct Rate of Interest After Judgment JUDGMENT IN DEFAULT OF APPEARANCE APPLICATION TO SET ASIDE Subordinate Courts & High Courts Difference in Procedure Application to Set Aside Judgment in Default of Appearance General Failure to Enter Appearance Absence of Explanation Effect of Application to set aside Reason for Absence & Defence on the merits Setting Aside Default Judgment - Absence of Defendant - Defence on the Merits Judgment in Default of Appearance - Setting Aside - Regular or Irregular Judgment Judgment in Default of Appearance to Writ - Regular Judgment Application to Set Aside Application to Set Aside Default Judgment by Insurance Company SUBORDINATE COURTS Subordinate Courts - Procedure and Practice of Applying to set aside Default Judgment Time for Application Subordinate Courts Power to Set Aside Default Judgment Application to Set Aside Judgment Formally Completed HIGH COURT - APPLICATION TO SET ASIDE JUDGMENT IN DEFAULT OF APPEARANCE Time for Application of the RHC Time for Application - Application to Set Aside for

12 Irregularity any Proceedings To be made within a Reasonable Time Application to Set Aside Default Judgment Time Limit Delay in Making Application Defence on the Merits Introduction Affidavit of Merits Whether Affidavits filed by the Defendant Applicants disclosed a triable issue to Justify the Court to exercise the discretion to Set Aside the Default Judgment Defence on the Merits - Burden on Defendant Defence on the Merits Proof of Defence on the Merits Good Defence on the Merits Reliance on Defences of Other Defendants Already Adjudicated Upon Alternative Claims Application to Set Aside Default Judgment Triable Issues Defence on the Merits Triable Issues Income Tax Act Defence on the Merits Signature on Guarantee Document a Forgery Defence on the Merits - Plaintiff s claim was Premature in Law Defects in the Demand Notices Defence on the Merits Premature Action in View of Order of Sale Obtained Against Security Provided Application to Set Aside - Discretion of Court Discontinuance Mistake in relation to Notice of Discontinuance Conduct of Defendant Applicant Questions of Law Appeals against Order Setting Aside Default Judgment CHAPTER 6 JUDGMENT IN DEFAULT OF DEFENCE: SETTING ASIDE Introduction Defences Generally Judgment in Default of Pleadings - Governing Procedural Law Claim for Liquidated Damages and Unliquidated Damages Order 19 rr 5 of the RHC 1980 Default Judgment involving Immovable Property

13 Possession- Meaning of Interpretation of Rule 7(1) of Order Order 19 r 7 of the RHC Procedure for Application Order 19 Rule 7 - Failure to Obtain Leave - Effect of Order 19 r 3 of the RHC 1980 Interpretation of Claim for Unliquidated Damages Claim for Unliquidated Damages Draft Judgments Entering Judgment in Default of Defence - During Pendency of Application for Extension of Time to Serve Defence Effect of Judgment which is a Nullity - Admission in Defence - Effect of Inter Partes Default Judgment Charge Action Leave of Court to Enter Judgment in Default of Defence Setting Aside Judgment in Default of Defence Judgment in Default of Defence & Principles for Setting Aside Judgment in Default of Defence Failure to File Defence Presence of Defendant at Hearing Failure to File Defence Arbitration Clause Failure to File Defence Defendant Preserving Right to Refer Dispute to Arbitration APPLICATION TO SET ASIDE JUDGMENT IN DEFAULT OF DEFENCE Time Delay - Application to Set Aside Irregular Judgment Delay in Application Effect of Delay Solicitors Regular Judgment in Default of Defence Discretion of Court Regular Judgment - Affidavit on the Merits Defence on the Merits Questions of Law Defence on the Merits Proof of Allegations Defence on the Merits Application for Leave to Amend Defence Draft Judgment - Failure by Plaintiff s Solicitors to send Draft Judgment for Approval to Defendant s Solicitors Failure to Aver that Default Judgment was an Irregular Judgment

14 Capacity of Defendant in Suit Irregular Judgment Whether a Default Judgment entered one day short of the fourteen-day period as provided in Order 18 Rule 2(1) was an Irregular Judgment Signing Judgment for Sum in Excess of Sum Due Setting Aside or Amending Order Plaintiff Guilty of Unconscionable and Improper Conduct Conversion of Suit Failure to give Specific Directions as to Pleadings - Absence of Defence - Effect of Abuse of Process - Whether Default Judgment Due to Abuse of Process Counterclaim Entitlement to Judgment Sum Counterclaim & Estoppel