A judgment in default can be set aside if the defendant demonstrates the merit of a bona fide defense, raising arguable issues for trial, despite delays in application for setting aside.

[1] This appeal arose from the claim for damages for the injuries sustained by the Appellant/Plaintiff as a consequence of a road accident, against the Respondent/Defendant wherein a default judgment of appearance dated 26 August 2010 and a judgment on damages dated 24 November 2010 had been entered in favour of the Appellant/Plaintiff. However, upon an application by the Respondent to set aside the judgment on damages, the learned Sessions Judge had set aside the default judgment. Hence, Appellant appealed.

The Issues On Appeal

[2] Appellant had raised 3 issues in this Appeal. Firstly, Respondent's Application was to set aside the Judgment on damages dated 24 November 2010 whereas Respondent should have applied to set aside the Default Judgment dated 26 August 2010 which if Respondent were to succeed, it would have automatically rendered the subsequent Judgment dated 24 November 2010 ineffective. The second issue is on the service of the summons on the Respondent who contended that he did not receive it; the Appellant had shown that service was duly carried out and the AR Registered Card was returned duly acknowledged receipt with the signature of one Khoo Phaik Wah whom the Respondent had not denied or alleged in his affidavit that he did not know who Khoo Phaik Wah was. Respondent, in short, did not challenge the signatory. Service must thus be accepted as proper. Thirdly, Appellant contended that there was inordinate delay in the filing of the Application to set aside the Judgment although the Appellant had all along kept the insurance company of the Respondent's vehicle informed of all the proceedings and dates, which they had not challenged. The Application to set aside only came about when the Order of the assessment of damages had been served.

Respondent's Preliminary Objection And Additional Issue

[3] Respondent in the oral submission in reply to the additional oral submission to emphasize on points raised by the Appellant in the Written Submission had canvassed a preliminary objection of non-compliance with O 49 r 3A Subordinate Courts Rules (SCR) 1980. In addition, Respondent also raised the issue that Respondent had annexed in the affidavit in support of the Application to set aside the judgment a Proposed Statement of Defence (Additional Appeal Record p 7 - 9) which showed , as he contended, that there is merit in the Defence.

I shall therefore determine on these issues raised and submitted by both parties.

Findings

[4] I consider the preliminary objection by the Respondent under O 49 r 3A SCR as the 1^st issue.

[5] The complaint by the Respondent is that Appellant had failed to include the summons and pleadings of the Appellant / Plaintiff in the Appeal Record thereby contravenes O 49 r 3A SCR which is a mandatory provision. Hence, it is argued that this Appeal cannot be maintained. Appellant conversely submitted that no notice has been given of this preliminary objection. Learned counsel for the Appellant submitted that solicitors for the Respondent had earlier written to indicate that certain affidavits were not included in the Appeal Record which needed to be included but had never mentioned about the pleadings. He submitted that learned counsel for the Respondent must be taken to have agreed not be object to the non-inclusion of the pleadings in the Appeal Record. Indirectly he is submitting that estoppel should apply.

[6]Order 49 r 3A SCR is a mandatory provision that all relevant documents including the pleadings of the case, notes of evidence, grounds of judgment, decision, notice of appeal and all documentary exhibits and relevant documents are specifically provided that they must be included in the Appeal R