To set aside a judgment in default, the defendant must show both timely service and a substantive defense; failure to meet these requirements leads to dismissal.

JUDGMENT

(The Defendant's Application To Set Aside The Plaintiff's Judgment In Default)

Ishak Bakri SCJ:

Introduction

[1] This is an application by the defendant to set aside the judgment in default obtained by the plaintiff on 9 November 2020.

[2] Having examined the application and considered the submissions by both parties, the Court made a decision to dismiss the defendant's application with costs.

[3] Dissatisfied with the decision of the Court, the defendant filed an appeal to the High Court. Followings are grounds of decision of the Court in dismissing the defendant's application with costs.

Facts Of The Case

[4] The plaintiff commenced this suit by filing its writ and statement of claim against the defendant on 16 October 2020. The writ and statement of claim was served on the defendant through registered post on 21 October 2020. The plaintiff stated that the defendant successfully received the aforesaid cause papers at its address for service on 23 October 2020.

[5] Nonetheless, the defendant failed to enter an appearance within the time limit and judgment in default was obtained by the plaintiff on 9 November 2020.

[6] The judgment in default was served on the defendant on 23 November 2020 by way of registered post, which was received and acknowledged by the defendant on 2 December 2020.

[7] On 31 December 2020, the defendant filed its application to set aside the judgment in default. Despite the notice of application and defendant's affidavit in support being filed on 31 December 2020, the aforesaid cause papers were only served on the plaintiff on 5 January 2021.

[8] On 14 January 2021, the plaintiff appointed the current solicitors, Mah Weng Kwai & Associates, to take over conduct of these proceedings and to oppose the defendant's application to set aside the judgment in default.

[9] An accurate depiction of events can be summarised as follows:

Law On Setting Aside A Judgment In Default

[10] The law governing an application to set aside an order or a judgment is encoded in statute by way of O 13 r 8 and O 42 r 13 of the Rules of 2012 :

Setting aside judgment (O 13, r 8)

8. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.

Setting aside or varying judgment and orders (O 42, r 13)

13. Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.

[11] The locus classicus for setting aside a judgment in default regularly obtained is the seminal case of Hasil Bumi Perumahan Sdn Bhd & Ors v. United Malayan Banking Corp Bhd, [1994] 1 MLJ 312 , wherein the then Supreme Court enunciated as follows:

A scrutiny of the case of Evans v. Bartlam would show that different Law Lords used different terms but they all seem to agree that for the defendant to succeed in his application to set aside a default judgment he must show that the defence had merits that ought to be tried by the Court. In other words, in popular language, the defence was not a sham defence...

Consistent with the decision of our own courts in the past in dealing with issues such as those under O 13 r 8 and O 19 r 9 the guidelines in Evans v. Bartlam (supra) should be accepted. In our view, in order to succeed in his application under these Orders the applicant must show that he has a defence which have some merits and which the Court should try. To use common and plain language, the applicant must show that his defence is not a sham defence but one that is prima facie, raising serious issues as bona fide reasonable defence that ought to be tried because obviously if the defence is a sham defence there is no defence and the application must fail...

[12] In an application to set aside a judgment in defaul