DEFAULT JUDGMENTS: SETTING ASIDE

DEFAULT JUDGMENTS: SETTING ASIDE ISBN 983-3519-05-9 Author: Nasser Hamid Binding: Softcover/Extent: 575 pp Publication Price: MYR 200.00 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 1980... 6 Procedural Requirements - Non-Compliance Effect of... 7 Breach of Procedural Provisions by a Litigant Current Approach of the Courts... 12 Courts Discretion to Cure Irregularities... 13 Limitations of the Curative Powers of Order 2 r 1(1) of the RHC 1980... 14 Preclusion of Order 2 r 1(1) of the RHC... 23 Power of Court to Cure Irregularity or to Set Aside a Judgment or Order... 24 Default Judgments Fundamental Defects and Order 2 r 1 of the RHC 1980... 42 Rules of Court Abuse of Process... 45 CHAPTER 2 JUDGMENT & ORDERS OF COURT: SETTING ASIDE Judgment & Orders Meaning of... 47 Judgments of Court Duty to Obey... 48 Terms of Order of Court Clarification of... 49 Form of Judgment - Prescribed Form... 49 Deviation from Prescribed Form... 49 Effective Date of Judgment or Order... 50 Ante-Dating or Post-Dating Judgments or Orders... 51

Invoking Inherent Powers - Applicability of Order 92 r 4 Other Remedies Available... 51 Mistakes in Judgments or Orders... 52 Slip Rule & Power to Amend under Inherent Jurisdiction of Court... 53 Power of Court to Amend or Vary Order... 56 Judgment Amendment of Judgment Debt - Approach of Courts... 58 Liberty to Apply... 58 Notice of Discontinuance... 58 Effect of Discontinuance after Judgment... 60 Draft Judgments - Statutory Obligation to file Draft Judgment... 60 Non-Compliance with Order 42 r 8(1) of the RHC Effect of... 63 Inherent and Discretionary Jurisdiction of Superior Courts to Set Aside an Order... 63 Application to Set Aside an Interlocutory Order Test to be Applied... 65 Application to Set Aside Order of Court Delay Abuse of Process... 65 Setting Aside Discretion of Court... 66 Consent Judgment and Orders... 67 Terms of Settlement & Consent Judgment or Order... 69 Consent Orders - Setting Aside... 71 Consent Order or Judgment Application to Set Aside Delay... 72 Consent Judgment Abuse of Process... 75 Order of Sale Setting Aside Failure to Serve Notice of Adjourned Hearing... 77 Order of Sale Inordinate Delay in Applying to Set Aside - Non Compliance of Mandatory Provisions of Rules of Court... 79 Effect of Setting Aside Order of Sale... 80 Foreign Default Judgments... 82 Judgments in Foreign Currency... 82 Garnishee Order Setting Aside... 83 Setting Aside Garnishment Order made Absolute by Consent... 84 Unless Order Setting Aside... 84 Execution of an Order or Judgment Stay - Powers of Court... 91

CHAPTER 3 DEFAULT JUDGMENTS & SETTING ASIDE Judgments in Default Meaning of... 93 Entering Default Judgment... 95 Draft Judgment - Failure of Plaintiff to Submit Copy of the Draft Judgment for Approval Defendants Solicitors - Whether Ground for Setting Aside Default Judgment... 103 Default Judgment against the Government... 104 Default Judgment Duty to Obey... 105 Inherent Powers of Court to Set Aside Default Judgment... 107 Setting Aside Ex parte Order in Default... 107 Irregular Default Judgment Effect of and Power of Court to Amend... 108 Error in Default Judgment - Court s Power to Amend... 112 Application to set Aside Default Judgment Regular & Irregular Judgments... 114 Whether Default Judgment Regularly Obtained Test... 117 Non-Compliance of Procedural Requirements - Regular & Irregular Judgments... 117 Debt or Liquidated Demand Determination of Regular or Irregular Judgment... 118 Regular Judgment - Setting Aside... 118 Irregular Judgment - Setting Aside... 119 Irregular Judgment & Setting Aside... 122 Irregular Judgment Exercise of Discretion... 123 Irregular Judgments & Natural Justice... 123 Irregular Judgments Current Position... 125 Specifying the Irregularity... 125 Regular & Irregular Judgment - Delay in Applying To Set Aside Default Judgment... 125 Irregular Judgment Delay in Applying to Set Aside... 125 Determination of Irregular Judgments... 126 Uncertainty in Default Judgment Whether therefore an Irregular Judgment... 126 Irregular Judgment Non Existence of Plaintiff Company at Time of Default Judgment... 128 Two Return Dates on Summons Whether Irregular Judgment... 130 Irregular Judgment Claim for Relief not

Asked for in Writ... 131 Irregular Judgment - Default Judgment Entered for an Amount in Excess of Amount claimed in the Statement of Claim... 132 Incorrect Claim - Varying the Judgment... 135 Interest on Judgment Sums... 136 Power of Courts to Award Interest... 136 Excessive Judgment Interest... 141 Interest on Judgment Debt exceeding Statutory Rate - Independent Covenant... 142 Interest Failure to Define the Prescribed Rate of Interest - Irregular Judgment... 146 Uncertain Default Judgment - Interest Claimed Fluctuating... 151 Power to Cure an Irregular Judgment Erroneous Rate of Interest... 152 Excessive Judgment Interest Whether Court Could Amend the Interest Rate... 153 Interest on Judgment Sum - Application to Set Aside Default Judgment - Power of Court - Extent of Jurisdiction of Court to Award Interest on Judgment Sums... 155 Interest Power of Court to Vary Judgment to Comply with Order 42 r 12 of the Rules of the High Court... 159 Post-Judgment Interest Rate Whether Irregular Judgment... 160 Effect of Non Compliance with Rule 56 of the Legal Profession (Practice and Etiquette) Rules 1978... 178 The 48-hour notice under r 56 of the Legal Profession (Practice and Etiquette) Rules 1978... 180 Whether Non- Compliance with Rule 56 renders the Judgment obtained in Default of Defence an Irregular Judgment... 181 Practice & Etiquette Rules - Rule le 56 of the Sarawak Advocates (Practice and Etiquette) Rules 1988... 192 Affidavit to show Compliance with Rule 56 of the Legal Profession (Practice and Etiquette) Rules 1978... 195 Rule 56 of the Sarawak Advocates (Practice and Etiquette) Rules 1988 Waiver of Breach... 196 Form of Notice Rule 56 of the Sarawak Advocates

Ordinance (Practice and Etiquette) Rules 1988... 196 Default Judgment - Counterclaim by Defendant against Plaintiff... 199 CHAPTER 4 DEFAULT JUDGMENTS: APPLICATION TO SET ASIDE Introduction... 203 Application to set Aside Default Judgments in the Subordinate Courts Subordinate Court Rules 1980 PU (A) 328/1980... 203 Irregular Judgment Jurisdiction of Subordinate Courts... 204 Subordinate Courts - Variation of Order of Court... 206 Application to Set Aside Challenging the Jurisdiction of the Court - Jurisdiction of Civil Courts Islamic Law... 206 Application to Set Aside Default Judgment - Time for Application... 207 Application to Set Aside - Delay... 207 Affidavit in Support Failure to Give Notice to Plaintiff of its Intention to Use... 210 Default of Appearance - Absence of Defendant - Presence of Counsel... 212 Subordinate Courts - Judgment in Default Mentioning on Behalf... 214 Judgment in Default of Attendance on a Mention Date... 220 Judgment in Default of Defence... 224 APPLICATION TO SET ASIDE DEFAULT JUDGMENTS Application to Set Aside Default Judgment - Principles Applicable... 230 Application to Set Aside Promptitude - General Principles... 231 Collateral Proceedings... 231 Reliefs Sought... 231 Application to Set Aside Use of Specific Provisions... 232 Application to Set aside Default Judgment Challenge to Capacity and Locus Standi of Plaintiff... 234 Res Judicata Issue of Locus Standi... 236 Application to Set Aside Default Judgment Bankrupt Applicant... 239 Jurisdiction of Court... 240

Procedures for Setting Aside Default Judgments... 240 Erroneous Heading in Summons - Application to Set Aside Default Judgment... 241 Notice of Motion... 242 Stating Irregularities in the Summons on an Application to Set Aside a Default Judgment... 242 Affidavits... 242 Affidavits in Support Affidavit by Solicitor... 243 Application to Set Aside Waiver... 244 Affidavit in Support Waiver of Right to Objection... 245 Application to Set Aside Default Judgment Factors to be Considered... 245 Setting Aside Part of Default Judgment... 246 Power of Court to Set Aside Default Judgment... 247 Power of Court to Set Aside Default Judgment on its Own Motion... 249 Power of Court to Set Aside Default Judgment - Exercise of Discretion... 250 Application to Set Aside Default Judgment Regular & Irregular Judgments - Duty & Discretion of Court... 251 Judgment in Default of Defence for Declaratory Matters - Power of Senior Assistant Registrar... 252 Reasons for Allowing Judgment to go by Default - Exercise of Discretion... 257 Exercise of Discretion - Relevant Evidential Material... 258 Doctrine of Functus Officio & Default Judgments... 258 Default Judgment Whether Court was Functus Officio... 260 Application to Set Aside Exercise of Discretion Review by Appellate Court... 263 TIME FOR MAKING APPLICATION Order 42 r 13 of the Rules of the High Court 1980... 264 Service of Application... 265 Time to Make Application Service of Judgment on Defendant... 266 Right to have Irregular Judgment Set Aside Ex Debito Justitiae and Delay... 267 Application to set aside Default Judgment Delay Principles Applicable... 269 Application to Set Aside Default Judgment Delay... 270

Delay in Application Court to Disregard Lapse of Time... 278 Delay - Where Judgment a Nullity... 279 Application to set aside Regular Judgment... 279 Regular Judgment - Delay... 279 Reasons for Delay in Application... 280 Irregular Judgment and Delay... 281 Reasonable Time After Becoming Aware of the Irregularity... 284 Delay Taking Steps with Knowledge of Alleged Irregularity... 284 Delay Solicitor... 285 Application to Set Aside Delay Function of Appellate Court... 285 Application for Extension of Time Factors to be Considered... 286 DEFENCE ON THE MERITS Defence on the Merits... 289 Application to Set Aside Default Judgment - Defence on the Merits - Guidelines... 295 Defence on the Merits Proof of Allegations... 297 Draft Defences... 298 Affidavit of Merits... 298 Failure to File Defence Effect of... 304 Defence on the Merits - Defence of Non-Disclosure of Material Fact... 305 Defence on the Merits & Variation of Judgment in Default... 307 Failure to Supply Particulars... 307 Application to Set Aside - Mistake of Solicitors General Principles... 308 Inadvertence of Solicitor... 308 Defence on the Merits Disappearance of Solicitor... 311 CONDUCT OF DEFENDANT Application to Set Aside Default Judgment - Conduct of the Defendant... 312 Conduct of Defendant - Full, frank, candid and Honest Disclosure of all Relevant Facts... 315 Fresh Steps in the Proceedings... 317 Taking Fresh Steps Whether Inconsistent with Application to Set Aside Default Judgment... 318

Dismissal of Summons to Set Aside Default Judgment... 319 Can a Second Application be made to Set Aside a Default Judgment... 321 Stay of Execution... 325 Counterclaim... 327 Time for Application... 327 FOREIGN JUDGMENT Application to Set Aside Foreign Judgment Registered in Malaysia... 333 Service of Foreign Process by a Private Agent... 336 Application to Set Aside Foreign Judgment Registered in Malaysia Delay in Application... 339 Foreign Failure to Specify Exact Amount of Interest which had Accrued... 341 Grant of Order Setting Aside Default Judgment... 341 CHAPTER 5 JUDGMENT IN DEFAULT OF APPEARANCE: SETTING ASIDE Introduction... 343 Obtaining Judgment in Default of Appearance... 343 Judgment in Default of Appearance and Non Compliance with Rules of Court... 344 Entering Default Judgment Defendant is before the Court... 345 Application for Judgment in Default of Appearance Affidavit of Service... 346 Entering Default Judgment - Claim for Liquidated Amount... 348 Judgment in Default of Appearance Unliquidated Claim and Liquidated Claim... 349 Interlocutory or Final Judgment... 350 Interlocutory Judgment on Default of Appearance... 351 Interlocutory Judgment on Default of Appearance Application by Third Party to Set Aside Default Judgment... 352 Absence of Notice of Proceedings - Notice of the Proceedings - Section 96(1) of the Road Transport Act 1987.... 353 Judgment in Default of Appearance to Writ Other Claims... 363 Judgment in Default of Appearance Setting Aside Merits of Defendant s Case... 366

SUBORDINATE COURTS Subordinate Courts Service of Summons... 366 Appearance... 368 Service of Appearance and Service of Defence... 368 Absence of Parties... 369 Subordinate Courts Absence of Parties... 371 HIGH COURT Introduction... 372 SERVICE OF PROCESS Object of Service of Process... 372 Service of Originating Process... 372 Service of Originating Process Order 10 r 1(1) of the Rules of the High Court 1980 - Interpretation of... 376 Service of Originating Process Statutory Amendment... 379 Service of Writ... 379 Service of Process - Breach of Statutory Provision Curative Powers of Rules of Court... 380 Service of Writ Substantive as well as a Procedural Issues... 382 Service of Process Failure to Effect... 382 Service - Presumption... 384 Service of Process Absence of Defendant - Need for Strict Compliance with the Rules... 385 Service on Defendant Personally where Defendant s Solicitors on Record... 385 Service of Writ Ad Hoc Agreement... 386 Service of Writ Guarantors... 387 Service of Process Residential Address... 387 Last Known Address Meaning of... 388 Admission of Receipt of Writ... 396 Defendant Unaware of Proceedings Effect of... 397 Irregular Judgment Bad Service Challenge should be in Proper Proceedings... 397 Service of Process Contractual... 399 Service of Cause Papers Service Pursuant to Contractual Provision in Hire Purchase Agreement... 401 SUBSTITUTED SERVICE Substituted Service... 402

Substituted Service - Practice Note No 1 of 1968... 406 Substituted Service Validity of Order... 409 Irregular Substituted Service... 413 COMPANIES... 413 Service on Company Effective Date of Change of Address... 413 Service on Companies Several Offices... 414 Principal Office of the Corporation... 415 Principal Officer of the Corporation Accepting Service of Writ... 416 Service on Company Inference of Service... 418 Irregular Judgment Corporations Proof - Whether there was Due Service of Writ... 419 APPEARANCE Appearance Introduction... 420 Failure to enter Appearance... 421 Conditional & Unconditional Appearance... 422 Conditional Appearance - Meaning of... 423 Entering Conditional Appearance and Default Judgment... 423 Conditional Appearance... 424 Unconditional Appearance Challenging Jurisdiction of Court... 424 Appearance Arbitration Clause... 425 Defence on the Merits - Arbitration Clause... 425 Unconditional Appearance - Step in the Proceedings - Arbitration... 426 Irregularity Whether Court had acted Without Jurisdiction... 429 Irregular Judgment Failure to file Certificate of Non-Appearance... 432 Action for Specific Performance of Agreement for Sale and Purchase of Property Judgment in Default of Appearance Irregular Judgment... 434 Mistake of Solicitor Discretion of Court... 435 Reason for Non-Attendance of Solicitor... 436 Adjournments Principles Applicable... 438 Adjournment of Cases... 440 Effect of Non-Service of Notice of Adjourned Hearing... 443 FOREIGN JUDGMENTS... 446

Impeaching Foreign Default Judgment... 446 Summary Judgment in Default of Appearance 448 Principles on which Judgment in Default may be Set Aside under Order 14 r 11... 449 Summary Judgment in Default of Appearance Principles Applicable... 451 Setting Aside Default Judgment and Application for Summary Judgment... 452 Setting Aside Summary Judgment Granted in Default - Application under Order 14 r 11 of the RHC 1980... 452 Interest - Varying a Judgment in Default of Appearance - Curative Jurisdiction to Vary Default Judgment to Show Correct Rate of Interest After Judgment... 456 JUDGMENT IN DEFAULT OF APPEARANCE APPLICATION TO SET ASIDE Subordinate Courts & High Courts Difference in Procedure... 457 Application to Set Aside Judgment in Default of Appearance General... 458 Failure to Enter Appearance Absence of Explanation Effect of... 458 Application to set aside Reason for Absence & Defence on the merits... 458 Setting Aside Default Judgment - Absence of Defendant - Defence on the Merits... 460 Judgment in Default of Appearance - Setting Aside - Regular or Irregular Judgment... 460 Judgment in Default of Appearance to Writ - Regular Judgment Application to Set Aside... 461 Application to Set Aside Default Judgment by Insurance Company... 462 SUBORDINATE COURTS Subordinate Courts - Procedure and Practice of Applying to set aside Default Judgment... 464 Time for Application... 465 Subordinate Courts Power to Set Aside Default Judgment... 465 Application to Set Aside Judgment Formally Completed... 466 HIGH COURT - APPLICATION TO SET ASIDE JUDGMENT IN DEFAULT OF APPEARANCE Time for Application of the RHC 1980... 468 Time for Application - Application to Set Aside for

Irregularity any Proceedings To be made within a Reasonable Time... 470 Application to Set Aside Default Judgment Time Limit... 472 Delay in Making Application... 472 Defence on the Merits Introduction... 472 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... 473 Defence on the Merits - Burden on Defendant... 476 Defence on the Merits Proof of Defence on the Merits... 479 Good Defence on the Merits Reliance on Defences of Other Defendants Already Adjudicated Upon... 481 Alternative Claims Application to Set Aside Default Judgment Triable Issues... 482 Defence on the Merits Triable Issues Income Tax Act 1967... 482 Defence on the Merits Signature on Guarantee Document a Forgery... 484 Defence on the Merits - Plaintiff s claim was Premature in Law Defects in the Demand Notices... 484 Defence on the Merits Premature Action in View of Order of Sale Obtained Against Security Provided... 487 Application to Set Aside - Discretion of Court... 490 Discontinuance... 490 Mistake in relation to Notice of Discontinuance... 495 Conduct of Defendant Applicant... 496 Questions of Law Appeals against Order Setting Aside Default Judgment... 496 CHAPTER 6 JUDGMENT IN DEFAULT OF DEFENCE: SETTING ASIDE Introduction... 499 Defences Generally... 500 Judgment in Default of Pleadings - Governing Procedural Law... 500 Claim for Liquidated Damages and Unliquidated Damages... 502 Order 19 rr 5 of the RHC 1980 Default Judgment involving Immovable Property... 503

Possession- Meaning of... 504 Interpretation of Rule 7(1) of Order 19... 504 Order 19 r 7 of the RHC 1980 - Procedure for Application... 506 Order 19 Rule 7 - Failure to Obtain Leave - Effect of... 506 Order 19 r 3 of the RHC 1980 Interpretation of... 507 Claim for Unliquidated Damages... 508 Claim for Unliquidated Damages Draft Judgments... 508 Entering Judgment in Default of Defence - During Pendency of Application for Extension of Time to Serve Defence... 510 Effect of Judgment which is a Nullity - Admission in Defence - Effect of... 514 Inter Partes Default Judgment... 514 Charge Action Leave of Court to Enter Judgment in Default of Defence... 514 Setting Aside Judgment in Default of Defence... 517 Judgment in Default of Defence & Principles for Setting Aside Judgment in Default of Defence... 517 Failure to File Defence Presence of Defendant at Hearing... 518 Failure to File Defence Arbitration Clause... 519 Failure to File Defence Defendant Preserving Right to Refer Dispute to Arbitration... 520 APPLICATION TO SET ASIDE JUDGMENT IN DEFAULT OF DEFENCE Time... 521 Delay - Application to Set Aside... 521 Irregular Judgment Delay in Application Effect of... 521 Delay Solicitors... 533 Regular Judgment in Default of Defence Discretion of Court... 533 Regular Judgment - Affidavit on the Merits... 535 Defence on the Merits Questions of Law... 537 Defence on the Merits Proof of Allegations... 537 Defence on the Merits Application for Leave to Amend Defence... 537 Draft Judgment - Failure by Plaintiff s Solicitors to send Draft Judgment for Approval to Defendant s Solicitors... 539 Failure to Aver that Default Judgment was an Irregular Judgment... 542

Capacity of Defendant in Suit... 543 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... 544 Signing Judgment for Sum in Excess of Sum Due Setting Aside or Amending Order... 546 Plaintiff Guilty of Unconscionable and Improper Conduct... 549 Conversion of Suit Failure to give Specific Directions as to Pleadings - Absence of Defence - Effect of... 549 Abuse of Process - Whether Default Judgment Due to Abuse of Process... 551 Counterclaim Entitlement to Judgment Sum... 553 Counterclaim & Estoppel... 555