JUDGMENT

Mohd Azmi FCJ:

On 22 April 1996, this Court had unanimously dismissed the plaintiffs' first appeal against an order of the High Court at Seremban dated 23 October 1993, which had set aside a judgment in default of appearance obtained by them against the defendants on 2 December 1991 (FCCA 02-669-1993) but had allowed their second appeal (FCCA 02-670-1993) against another order made in the same proceedings for the striking out of their entire writ under O. 18 r. 19 RHC in addition to the setting aside of the default judgment.

The subject matter in these appeals concerned a family dispute over the ownership and management of a sawmill in Tampin, which the plaintiffs' as administrators of the estate of Chin Sam Seong @ Chan Sam Seong, claimed to be part of the deceased estate, and therefore unlawfully managed by the defendants. The plaintiffs had filed on 9 November 1991 a writ of summons against the defendants without a statement of claim, but with the prayers for declaratory reliefs, injunction and damages endorsed. Apart from the default judgment, there was also an order made to assess damages although there was no existing order granting damages to the plaintiffs.

The principle of setting aside a default judgment under O. 13 r. 8 has been well established and needs no detailed repetition. What is important to observe is that a default judgment is not a judgment on the merits. Accordingly, when such judgment is obtained irregularly, such irregularity would be a sufficient ground by itself for setting it aside. But where the default judgment has been obtained regularly, in order to succeed the defendant must file an affidavit of merits, i.e. the defendant must disclose by affidavit evidence that prima facie he has a defence on the merits. Put in another way, the affidavit must disclose that he has an arguable or triable issue on the merits. (see Evans v. Bartlam [1937] AC 478). The following judgment of Lee Hun Hoe CJ in Fira Development Sdn. Bhd. V. Goldwin Sdn. Bhd [1989] 1 CLJ 32 (Rep) at p. 41 is also instructive:

Where judgment is entered on the failure of a defendant to take any of the procedural steps laid down under the Rules of the High Court 1980, the Court has an absolute discretion to set aside the judgment, if necessary, on terms and allow the case to be heard on the merits.

Lord Atkin stated clearly the principles in which the Court should act in Evans v. Bartlam [1937] AC 473 in these words:

... The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.

In the instant case the learned Judge did not consider the judgment to be irregular. Mallal's Supreme Court Practice, 2nd Ed. Vol. 1 at p. 84 explains the position where the judgment is regular thus:

The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits; or for some very sufficient reason: Bank Bumiputra Malaysia Bhd. v. Majlis Amanah Ra'yat [1979] 1 MLJ 23; Farden v. Richter [1889] 23 QBD 124.

A defence on the merits means merely raising only an arguable or triable issue, eg. contributory negligence in a running down case in White v. Weston [1968] 2 QB 647. A judgment in default is not a judgment on the merits: L. Oppenheim & Co. v. Mahomed Haneef [1922] 1 AC 482.

Although under O. 2 r. 1(1) Rules of the High Court 1980, non-compliance with the rules of procedure is to be regarded as mere irregularity and not a nullity, the Court, like any other discretionary powers, must exercise its discretion to cure such procedural irregularity on correct principle. The proper approach that should be adopted on curability should be on the basis of the principle laid down recently by Lord Woolf MR in Nicholls v. Nicholls (The Times 21 January 1997) on the exer