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FEDERAL COURT KUALA LUMPUR
TUAN HAJI AHMED ABDUL RAHMAN – Appellant
Versus
ARAB-MALAYSIAN FINANCE BERHAD – Respondent
[Civil Appeal No: 02-226-94]
[1] The short point which arose for decision in this appeal concerned the validity of a judgment in default of appearance dated 8 July 1988 which had been entered in the Commercial Division of the High Court, Kuala Lumpur, ("the default judgment") against the defendant, who was the appellant herein, at the instance of the plaintiff, who was the respondent to this appeal. The default judgment was in the following terms:
Judgment in Default of Appearance.
No appearance having been entered by the defendant. IT IS THIS DAY ADJUDGED that the said defendant do pay to the plaintiff the said sum of RM4,923,242.69 at 31 March 1988 together with interest thereon at 1% above the Prescribed Rate which is the sum of the Margin (as therein defined) and the Base Lending Rate of the plaintiff on a daily rests from 1 April 1988 till the date of full realisation and costs on a solicitors and client basis to be taxed.
Dated 8 July 1988.
Sgd.
The Senior Assistant Registrar
High Court, Kuala Lumpur.
[2] The appellant then caused to be filed an application by way of summons in chambers dated 4 December 1991, to set aside the default judgment on the ground that it was not regularly obtained.
[3] It is elementary that an irregular judgment is one which has been enterd otherwise than in strict compliance with the rules or some statute or is entered as a result of some impropriety which is considered to be so serious as to render the proceedings a nullity.
[4] The general rule is that when it is clearly demonstrated to the satisfaction of the Court that a judgment has not been regularly obtained, the defendant is entitled to have it set aside ex debito justitiae, that is to say, irrespective of the merits and without terms Having said that it should be added that the application to set aside such a judgment should be made (a) with reasonable promptitude, in other words within a reasonable time and (b) before the defendant has taken any fresh step after becoming aware of the irregularity. (See O 2 r 2(i) of the Rules of the High , 1980.)
[5] The appellant's application to set aside the default judgment came on for hearing before the Senior Assistant Registrar on 3 January 1991, when the only issue argued by way of a preliminary point of law was whether the default judgment had been entered in contravention of O 83 r 4(1) of the Rules of the High , which provides, that in a charge action begun by writ, judgment in default of appearance shall not be entered except with the leave of the Court.
[6] At the conclusion of the arguments, the Senior Assistant Registrar reserved judgment and on 17 January 1992, he ruled in favour of the appellant and held that the default judgment had indeed been entered in contravention of O 83 r 4(1) the necessary leave to do so, not having been obtained, and he accordingly, set aside the same and gave unconditional leave to the appellant to defend the action.
[7] The respondent then, by notice of appeal dated and issued by the Senior Assistant Registrar on 17 January 1992, appealed to the Judge in chambers who held that the action wherein the default judgment aforesaid had been obtained was not a charge action and therefore there could be no question of a contravention of O 83 r 4(1). Although in his application to the Senior Assistant Registrar to set aside the default judgment the appellant had relied upon various other grounds to do so, the learned Judge took it upon himself to hear the application at first instance, instead of remitting the same to the Senior Assistant Registrar for hearing on the merits.
[8] We would add that before the learned Judge, Counsel for the appellant had impugned the validity of the default judgment on the ground that it was uncertain and unclear on the face of it and, in consequence, a nullity and/or an irregular judgment, but His Lordship declined to consider the contention on the ground that it had not been raised before the Senior Assistant Registrar and was therefore a
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