Judgments in Default of Appearance: A Comprehensive Guide for Non-Appearing Defendants

Introduction

A Judgment in Default (“JID”) is a crucial aspect of civil litigation that Defendants need to be well-informed about. This comprehensive guide aims to provide a detailed understanding of JID of appearance, including its meaning, implications, the process for obtaining it, and the steps for setting it aside.

What is a Judgment in Default of Appearance?

A JID of appearance is a judgment entered against a Defendant when they fail to enter appearance within the specified time frame after being served with a Writ of Summons or an Originating Summons. It signifies the Defendant's failure to respond or defend themselves in court. A JID can be in the form of a final judgment or an interlocutory judgment, the type of JID that will be entered against a Defendant is dependent on the types of claim sought by the Plaintiff, which will be discussed in turn below. 

Final Judgment in Default

A final JID entered against a Defendant will essentially crystalize into a final judgment enforceable against said Defendant, this is if it is not set aside within 30 days of it being served on the Defendant (O42 r13 of the ROC 2012). A final JID may be entered (via Form 75) for claims of liquidated demand) (O13 r1 ROC 2012) or claims of possession of immovable property (O13 r4 ROC 2012). 

Interlocutory Judgment in Default

An interlocutory JID is unenforceable unless and until the Registrar assesses the damages and gives an allocator which is the final judgment (O37 ROC 2012). An interlocutory JID can be entered against a Defendant for claims of unliquidated damages (O13 r2 ROC 2012) and claims of detinue (movable property) (O13 r3 ROC 2012).

Hybrid Judgment in Default: Mixed Claims

If the claim against the defendant consists of a combination of claims allowed for final and interlocutory JIDs, then a final and interlocutory JID of appearance can be in place (O13 r5 ROC 2012). 

Obtaining a Judgment in Default

To obtain a JID, a certificate of non-appearance in Form 12 must be produced by the Plaintiff (O13 r 7 ROC 2012). Furthermore, Plaintiff must demonstrate that the writ or originating summons has been properly served on the Defendant (vide an Affidavit verifying service in Form 135 pursuant to O62 r9 ROC 2012). A hearing date will be fixed with the Registrar for the JID to be entered and a 7-day notice of said hearing date must be served on the Defendant (Rule 56 of the Legal Profession (Practice and Etiquette) Rules), this is important as failure to provide such notice will be a misconduct on the part of the Plaintiff’s solicitor it might even render the JID to be set aside due to irregularity (RHB Finance Bhd v CN Corporate Network (M) Sdn Bhd). 

Setting Aside a Judgment in Default of Appearance

Fortunately, Defendants may apply for the setting aside of a JID under certain circumstances. 

Procedure: The Defendant will have to make an application to set aside the JID of appearance pursuant O42 r13 ROC 2012.

Order 42 rule 13 Rules of Court 2012 provides that:

“Save as otherwise provided in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or vary such order or judgment shall make an application to the Court and serve it on the other party who has obtained the order or judgment within thirty days after the receipt of the order or judgment on him.”

The discretion of the court in the determination of a setting aside application is provided under Order 13 rule 8 Rules of Court 2012:

“The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance to this Order.”

Time Limit: The Defendant has 30 days from the receipt of the JID to apply to the court to set it aside (O42 r13 ROC 2012). It is crucial to adhere to this time limit. If the Defendant wishes to set aside a JID after the time limit of 30 days, an application of extension of time must first be made pursuant to O3 r5 ROC 2012 before an application of setting aside can be made. 

Grounds for Setting Aside: The Defendant must establish valid grounds for setting aside the JID, such as procedural errors, irregularities in serving the writ or statement of claim, or the existence of a defence on the merits which should be tried in the court. The court exercises its discretion in considering these grounds and determining whether to grant or deny the application (O13 r8 ROC 2012). 

Setting Aside: Regular and Irregular Judgment 

The nature of the JID entered determines the criteria for setting it aside. 

If a JID was obtained regularly, i.e. in strict compliance with the ROC 2012, the Defendant must in its affidavit in support of its setting aside application demonstrate a defence on the merits to set it aside (Evans v Bartlam [1937] 2 All ER 646; Dialdas & Co (Pte) Ltd v Sin Sin & Co & Ors [1996] 1 MLJ 30). 

Conversely, if the JID was obtained irregularly, i.e. meaning it was obtained without complying with procedural rules, it can set it aside as of right without the need of showing any merits (D&C Bank Bhd v Aspatra Corp Sdn Bhd [1996] 1 CLJ 141; Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457).

Conclusion

As seen above, a JID of appearance carries significant implications for Defendants. Understanding the process and consequences of a JID is crucial for Defendants to protect their rights and interests. While a JID represents a challenge, Defendants have the opportunity to seek the setting aside of the judgment by demonstrating valid grounds and presenting a defence on merits to the court. It is essential to seek legal advice and diligently adhere to the prescribed time limits to ensure the best chance of setting aside a JID and obtaining a fair resolution to the underlying dispute.