A party seeking to set aside a judgment in default must provide an affidavit of merits that demonstrates a triable issue exists.

The Brief Facts

[1] A judgment in default was recorded against Mohd Adnan Adrian Paul Holden Abdullah, ("the respondent") who was the defendant in the Sessions Court on 10 January 2012. The respondent filed by notice, an application to set aside the said judgment in default on 24 December 2012 citing two reasons:

a. that the summons and statement of claim had never been served to the respondent/defendant; and

b. that the judgment was irregular.

[2] The Sessions Court Judge heard and dismissed the respondent's application. The respondent appealed to the High Court. The appeal was allowed with costs and the judgment in default was set aside.

[3] The appellant, who was the plaintiff in the Sessions Court and respondent in the High Court, appealed to this Court.

The Defences

[4] The respondent's defence on merits provided in the notice were as follows:

1. the respondent had not received the summons and statement of claim, thus the judgment was entered without his prior knowledge;

2. the appellant failed to comply with the proper procedures when recording the judgment.

[5] In Hasil Hasil Bumi Perumahan Sdn Bhd & Ors v. United Malayan Banking Bhd, [1994] 1 MLJ 312 , it has been held that even if the judgment is regular, it may be set aside on the ground the defendant, against whom the judgment was obtained, had a good defence or merits. The principle is that the judgment must be fair and just on the merits and not on the basis of a knockout on a technicality. Thus, if the judgment is otherwise regular, the rule is that there must be an affidavit of merits in support of the application to set aside the judgment in default (see Pengkalen Concrete Sdn Bhd v. Chow Mooi & Anor; [2003] 3 MLJ 67; [2003] 6 CLJ 326, Majlis Amanah Rakyat v. Ismail Maskor & Ors; [2006] 3 MLJ 281; [2006] 5 CLJ 230 and Lembaga Kumpulan Wang Simpanan Pekerja v. Agni Energie Sdn Bhd & Ors; [2014] 8 MLJ 565). It is necessary only to show there is at least an issue which should go on trial (see PL Construction Sdn Bhd v. Abdullah Said; [1989] 1 MLJ 60; [1988] 2 CLJ 91). The strength or weakness of the issue does not matter for it is the trial that determines whether it succeeds or not (see Hayman v. Rowlands [1957] 1 All ER 323, Buga Singh v. Koh Bon Keo ; 1966 MarsdenLR 235 . However, it does not make it unnecessary to have an affidavit of merits.

[6] The case of Perwira Affin Merchant Bank Bhd v. Dato' Soh Chee Wen , 1999 MarsdenLR 1914 was cited before this Court. There, it was held: "... the Court has to be satisfied on the affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether or not an issue is triable depends on the facts arising from each case as disclosed in the affidavit evidence before the Court. There must be sufficient facts disclosed on the affidavit evidence to show there is substance to the assertions, a final determination upon which is best made after the discovery, interrogatories, and or examination of witness as the parties think fit, in a trial ... A triable issue is an assertion that not only has been raised and is denied or disputed, but is one upon which there is some evidence that is not equivocal or lacking in precision, or is not consistent with undisputed contemporary documents or other statements by the same deponent, or is not inherently improbable in itself, to support it".

[7] For the removal of doubt, we hasten to clarify that there is a distinction between the affidavit of merits to support an application to set aside a judgment in default and an affidavit opposing an application for summary judgment. In the latter, it must demonstrate that there are triable issues, being issues whether