Jeffrey Tan J:

This is the defendant's appeal (encl 13) to judge-in-chambers against the decision of the learned senior assistant registrar dated 18 November 1998, giving summary judgment to the plaintiff against the defendant, in the sum of RM258,076.65 together with interest at the rate of 8% per annum from 18 November 1998 till date of satisfaction. Incidentally, the plaintiff's claim against the defendant is for the sum of RM258,076.65, it being, the balance sum due and owing, allegedly, by the defendant to the plaintiff in respect of petroleum products (products) supplied by the plaintiff to the defendant.

What is a defence on the merits? The Supreme court, in Fira Development Sdn Bhd v. Goldwin Sdn Bhd, [1989] 1 MLJ 40, per Lee Hun Hoe CJ (Borneo), imparted that "a defence on the merits means merely raising only an arguable or triable issue".

Lim Beng Choon J., in Sing Hong (Kodiang) Sdn Bhd v. Pembinaan Ng Sheng Kwee Sdn Bhd & 6 Ors, [1988] 1 CLJ 357 at 358, thus expounded a defence on the merits:-

No doubt O 13 Rule 8 of the Rules of the High 1980 gives an unfettered discretion to the court to set aside a judgment entered in default of appearance. However, the court's discretion under that rule must be exercised in accordance with the settled principle that if the judgment is a regular... then it is an inflexible rule that there must be an affidavit of merits stating facts which can satisfy the court that the Defendant has a reasonable defence on the merits (see Bank Bumiputra Bhd v. Majlis Amanah Rakyat, [1979] 1 MLJ 23 @ 240, and 'defence on merits' as explained by Sir John Megaw in Tong Lee Hua v. Yong Koh Chin; [1981] 2 MLJ 1 @ 2 mean a defence in which there appears 'to be an arguable issue' or as Lord Denning MR put it in Burns v. Kondel [1971] 1 Lloyd's Law Reports 554 @ 555, explains the phrase to mean 'a defence which discloses an arguable and triable issue.

Lord Blackburn, in John Wallingford v. Mutual Society [1880] 5 App Cas 685 at 704, thus stressed the importance of an affidavit stating facts which can satisfy the court that there is reasonable ground for the stated defence:-

I think that when the affidavits are brought forward to raise that defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear, 'I owe the man nothing'. Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for saying so. So again, if you swear that there was fraud, that will not do. It is difficult to define it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the judge that those are facts which make it reasonable that you should be allowed to raise the defence.