[2] On the strength of an affidavit of service of the writ on the two defendants by Encik Chan Kai Meng, a certificate of non-appearance in respect of each of the defendants was issued by the relevant Senior Assistant Registrar on 7 August 1984 pursuant to which judgment in default of appearance was on 7 August 1984 entered against each of the defendants. The second named defendant Chan Fan Ann who was sued as a guarantor has now challenged the alleged service of the writ on him. In an affidavit in support of his application (the instant application) to have the judgment in default set aside he denies the contention in affidavit of service of the writ on him as alleged or at all. He says that he first came to know that proceedings had been commenced against him by the plaintiffs only when a bankruptcy notice was served on him on or about 15 July 1985. He has set out in his affidavit what he contends are the circumstances in which he came to execute the alleged document of guarantee on which the plaintiff's cause of action against him is founded and says that he has been advised by his solicitors that he has a defence on the merits. I think so too in that it discloses arguable or triable issues. However on the stand taken by the second defendant, that he has a defence on the merits is not all that relevant since his contention is that the judgment against him should be set aside for irregularity. It is trite that if a judgment was obtained irregularly the defendant is entitled ex debito justitiae to have it set aside without any terms whatsoever being imposed on him.

[3] If however the judgment is regular the Court by O 13 r 8 of the Rules of the High has a discretion to set aside such a judgment. In applying to set aside a regular judgment it is an almost inflexible rule that an affidavit of merits, ie, showing a defence on the merits, must be filed in support of the applicant Farden v. Richter [1889] 23 QBD 124. I might add that the prevalent practice of disclosing a "proposed statement of defence" without such an affidavit does not necessarily meet that requirement. On exercising its discretion the Court will certainly take into consideration the explanation or the lack of an explanation as to why judgment in default was allowed to be entered Evan v. Bartlam [1937] AC 473. Further, the Court will expect the application to set aside to be filed promptly (even if the application to set aside is for irregularity, by O 2 r 2 the application should be made within a reasonable time) and if not the explanation if any for the delay would be relevant. Another rule which I would consider to be inflexible is that the defendant seeking the indulgence of the Court under this rule (and for that matter any person seeking the indulgence of the Court under any rule or circumstance) should make full, frank, candid and honest disclosures of all the relevant facts. Failure to do so could result in the Court refusing to exercise its discretion in favour of the applicant.