A default judgment is irregular if entered against a party not involved in the transaction, necessitating its set aside to allow for a full trial on merits.

Awang Armadajaya Awang Mahmud JC:

Introduction

[1] This is an appeal against the decision of the Learned Sessions Court Judge is refusing to set aside a Judgment-in-default of appearance (Enclosure 1) given on 31 July 2019. The date of the Judgment in default was 5 April 2019.

[2] I wish to state clearly that these considerations is only for an appeal against the decision of the Learned Sessions Court Judge in refusing the Judgment-in-Default and should NOT be taken as being my assessment of the evidence and facts in a full trial.

The Cause Papers

[3] The cause papers in this appeal are as follows:-

(a) Writ of Summons and Statement of Claim both dated 13 March 2019 (hereinafter referred to as "Writ dan Statement of Claim");

(b) Affidavit of Service affirmed by Adrian Ng Chen Yip on 3 April 2019 (hereinafter referred to as "Affidavit of Service");

(c) Certificate of Non-Appearance dated 5 April 2019 (hereinafter referred to as "Certificate of Non-Appearance");

(d) Judgment in Default dated 5 April 2019 entered against the Defendant (hereinafter referred to as "Judgment in Default");

(e) Defendant's Sealed Notice of Application dated 13 May 2019 to set aside the Judgment in Default (hereinafter referred to as "Defendant's Application in encl 7");

(f) Defendant's Affidavit in Support affirmed by Nurul Azwa Binti Saruyani on 13 May 2019 (hereinafter referred to as "Defendant's AIS");

(g) Plaintiff's Affidavit in Reply affirmed by Mohd Faiz Bin Amran on 28 May 2019 (hereinafter referred to as "Plaintiff's AIR");

(h) Defendant's Affidavit in Reply affirmed by Nurul Azwa Binti Saruyani on 24 June 2019 (hereinafter referred to as "Defendant's AIS");

(i) Plaintiff's Written Submissions dated 10 July 2019 (hereinafter referred to as "Plaintiff's WS")

(j) Defendant's Written Submissions dated 8 July 2019 (hereinafter referred to as "Defendant's WS");

(k) Plaintiff's Written Submissions In Reply dated 17 July 2019 (hereinafter referred to as "Plaintiff's WSIR");

(l) Defendant's Written Submissions In Reply 16 July 2019 (hereinafter referred to as "Defendant's WSIR");

(m) Sealed Court Order dated 31 July 2019 dismissing the Defendant's Application in encl 7 (hereinafter referred to as "Court Order");

(n) Defendant's Sealed Notice of Appeal dated 8 August 2019 (hereinafter referred to as "Defendant's Notice of Appeal");

(o) Defendant's Record of Appeal (hereinafter referred to as "Defendant's ROA");

(p) The Learned Session Court's Judge, Tuan Mohamad Haldar bin Abdul Aziz's grounds of decision dated 15 September 2019 (hereinafter referred to as "Grounds of Decision"); and

(q) Defendant's Supplementary Record of Appeal (hereinafter referred to as "Defendant's SROA")

The Law In Respect Of Setting Aside A Default Judgment

[4] Provisions:-

a) Order 42 r 13 Rules of 2012

b) Order 19 r 9 Rules of 2012

c) Order 13 r 8 Rules of 2012

[5] When considering such application, first identify whether the judgment in default is a regular or irregular judgment. It is well settled that if the judgment is irregular it will be set aside ex debitio justitiae.

[6] Default judgment:-

Where a judgment is entered because of failure of the Defendant to take any of the procedural steps provided by the Rules:-

a) Default of appearance

b) Default of defence

[7] The Court has absolute discretion to set aside the judgment on the application of the defendant.

[Tetuan Tan Teng Siah Realty Sdn Bhd v. Island Oil Palm Plantations Sdn Bhd & Anor, 1997 MarsdenLR 1657 .]

[8] The principal governing the exercise of discretion is "that unless and until the Court has pronounced a judgment upon merits or by consent, it is to have the power to revoke the expression of its coercive powers, where that has been obtained by a failure to follow any of the rules of procedures". [Evan v. Bartlam [1937] AC 473, 480 per Lord Atkin.]

[9] Principals on the exercise of discretion:-

1

a) When it is clearly demonstrated to the satisfaction of the Court that a judgment has not been regularly obtained, the defendant is en