Searching Case Laws & Precedent on Legal Query.....!
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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Default Judgment Regularity - For a default judgment obtained regularly, the defendant must demonstrate a defence on the merits to have it set aside. The court requires an affidavit showing a prima facie defence that raises triable issues and indicates a reasonable prospect of defending the claim. If such a defence is shown, the court has discretion to set aside the judgment ["
Mayland Avenue Sdn Bhd vs Putrajaya Holdings Sdn Bhd & Ors
"].Defence on Merits Requirement - Several cases emphasize that the primary consideration for setting aside a default judgment is whether the defendant has a valid defence on the merits. Courts will dismiss applications lacking such a defence, even if the judgment was regular, unless the defendant can show an arguable, triable issue with a reasonable prospect of success ["
NPG GLOBAL PTE LTD vs MALAYSIAN GERMAN RESOURCES SDN BHD - High Court Malaya Kuala Lumpur
"], ["DATO SETIA DR HAJI MOHD NAIM HAJI MOKHTAR vs WAN MUHAMMAD AZRI WAN DERIS - High Court Malaya Kuala Lumpur
"], ["NORRAIDA ABDULLAH & ANOR vs NURAIN LIAS & ANOR - High Court Sabah & Sarawak Kuching
"].Time and Procedural Considerations - While procedural delays are relevant, the predominant factor remains whether the defendant has a credible defence. Applications filed out of time may be dismissed if the defendant fails to demonstrate a defence on the merits ["
KALIDAS KOMARAWELO vs PONNUSAMY RAMASAMY - High Court Malaya Pulau Pinang
"], ["MUHAMAD ANNAS MOHAMAD ANUAR vs SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAYSIA BERHAD - High Court Malaya Kuala Lumpur
"].Case Examples - Notable cases such as Lai Yoke Ngan v. Chin Teck Kwee and Khairy Jamaluddin Abu Bakar highlight that a regular default judgment can be set aside if the defendant shows a proper defence on the merits, with the court exercising discretion based on the merits presented ["
NPG GLOBAL PTE LTD vs MALAYSIAN GERMAN RESOURCES SDN BHD - High Court Malaya Kuala Lumpur
"], ["WIRE & WIRELESS SDN BHD vs MOHD TAIB HASSAN & ORS - High Court Malaya Shah Alam
"].Summary - In Malaysian law, the key to setting aside a judgment in default of appearance is the existence of a bona fide defence on the merits. The defendant must support this with an affidavit disclosing sufficient facts to establish a triable issue. The courts prioritize the merits of the defence over procedural irregularities, exercising discretion accordingly Multiple sources.
References:-
Mayland Avenue Sdn Bhd vs Putrajaya Holdings Sdn Bhd & Ors
-NPG GLOBAL PTE LTD vs MALAYSIAN GERMAN RESOURCES SDN BHD - High Court Malaya Kuala Lumpur
-DATO SETIA DR HAJI MOHD NAIM HAJI MOKHTAR vs WAN MUHAMMAD AZRI WAN DERIS - High Court Malaya Kuala Lumpur
-KALIDAS KOMARAWELO vs PONNUSAMY RAMASAMY - High Court Malaya Pulau Pinang
-NORRAIDA ABDULLAH & ANOR vs NURAIN LIAS & ANOR - High Court Sabah & Sarawak Kuching
-WIRE & WIRELESS SDN BHD vs MOHD TAIB HASSAN & ORS - High Court Malaya Shah Alam
-MUHAMAD ANNAS MOHAMAD ANUAR vs SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAYSIA BERHAD - High Court Malaya Kuala Lumpur
In the fast-paced world of Malaysian civil litigation, missing deadlines can lead to severe consequences, such as a . Whether it's failing to enter an appearance or file a defence, plaintiffs often seek to capitalize on these lapses to secure quick wins. But what exactly is the procedure for entering judgement in in Malaysia? And more importantly, can defendants turn the tables by setting it aside?
This guide breaks down the process under the , highlights pivotal case law, and shares practical insights. Note: This is general information based on established principles and is not a substitute for professional legal advice. Consult a qualified lawyer for your specific situation.
Malaysian civil procedure distinguishes between (no entry of appearance within time) and (appearance entered but no defence filed). Both allow plaintiffs to enter judgment without trial, but the rules differ slightly.
Entering the judgment typically involves filing a praecipe (Form 92 or similar) at the court registry, supported by an affidavit verifying service and claim amount. Courts presume service proper unless rebutted.
A is regularly obtained if service of pleadings is properly executed. If uncontested, the court assesses damages if needed ( for fixed sums, for liquidated demands).
Here's a step-by-step overview:
Serve Writ and Statement of Claim: Ensure personal or substituted service per .
Service of cause papers presumed proper when received by the defendant - Burden on defendant to rebut this presumption. (Paras 32-46)
Defendant Enters Appearance: Must do so within (). If done but no defence filed within further ( r 4), proceed.
File Request for Judgment: Plaintiff files praecipe for ( r 7). For , may follow.
Assessment of Damages (if needed): If , court fixes hearing under . Evidence required.
Registry Enters Judgment: Upon satisfaction, judgment issued. Costs follow event ().
Failure in service makes it irregular, easier to set aside. In one case, proper execution led to dismissal of bid due to delay. (Paras 32, 36, 62)
Defendants aren't without recourse. Courts exercise discretion liberally to ensure justice on merits, not technicalities. But success hinges on regularity.
will only be exercised if the 1st Defendant's affidavit supporting the application to set aside the discloses facts showing a .
in filing application can result in dismissal of the application even if the judgment is found to be regular. (Paras 62-66)
Malaysian courts draw from English precedents like , adapted locally:
: First check regularity. Regular? Show merits defence. Delay a factor.
: No right to set aside ; mandatory.
: Good excuse + arguable defence (not ironclad).
: Unfettered discretion, defence via evidence.
Recent applications reinforce:
In a case, application dismissed: no irregularity, delay, weak merits. Service proper, claims of forgery unsubstantiated.
(Paras 35, 70)
Another: No leave to enter late appearance post-judgment voids applications. Limitation defence sham due to debt admission.
(Paras 44, 49)
| Factor | Impact ||--------|--------|| Regularity | Irregular: Set aside automatically. Regular: Discretionary. || Merits of Defence | Must be arguable/triable. Mere denial insufficient.
|| Delay | Explain promptly; fatal.
Paras 62, 70 || Conduct | ; no deliberate default. || Prejudice to Plaintiff | Minimal if early application. |
Courts favor merits trials: ordinarily persons should be allowed to have a judgment on merits and not on account of default. Though from Indian context, echoes Malaysian liberality.
Include costs imposition for delays.
The procedure for entering of defence in Malaysia streamlines claims but safeguards defendants via mechanisms. Core: distinguish regular/irregular, prove merits defence, minimize delay. Cases like Yap Ke Huat underscore arguable issues as pivotal.
Defendants succeeding show courts prioritize substance over form—provided clean hands and viability. For tailored strategy, engage counsel early.
This post references and select judgments . Always verify latest law.
was regularly obtained against D3, requiring a defence of merits to be set aside. ... If the default judgment which has been obtained is a regular judgment, then the defendant has to show a triable defence on merits before he is entitled to have the default judgment set aside. ... [8] .. application for leave to #HL....
[30] For the reasons above, I find that the Defendant has failed to demonstrate a defence on the merits or raise any triable issues requiring the Judgment in Default to be set aside. ... Defence On The Merit [23] The Defendant submits that the Judgment in Default should be set aside as the Defendant has a #HL_START....
A judgment in default of appearance entered by a plaintiff, or, for that matter, a counterclaiming defendant, in breach of the terms of O 13 r 6(1), may be set aside ex debito justitiae ..... ... An application by the defendant to have the default judgment set aside was dismissed at first instance. The defendant then appealed to the Supreme Court which allowed the appea....
Tun Abd Majid Tun Hamzah J: [1] The defendant vide encl 14 seeks to set aside the judgment in default of appearance ("JID") obtained by the plaintiff dated 2 October ... But where the default judgment has been obtained regularly, in order to succeed the defendant must file an affidavit of merits, ie the defendant must disclose by affidavit evidence that prima facie he has a def....
Without such leave, I find that the 1st Defendant has no locus to proceed with the application to set aside the JID of appearance pursuant to O 12 r 5 of the Rules of 2012. ... aside the judgment dated 24 February 2023 [encl 19] entered in default of appearance and defence with costs of RM2,000.00 subject to allocator. ... aside the ....
judgment set aside must demonstrate that she has defence on the merits. ... merits, the application to set aside the default judgment had to be dismissed. ... Ultimately, any finding as to the existence or otherwise of any defence on the merits will turn on the facts of each case. ... [24] In the e....
Whether The Application To Set Aside Default Judgement Was Out Of Time. i) Counsels' Contentions On Whether The Application To Set Aside Default Judgment Was Out Of Time. ... It demands a defence on the merits, indicating a reasonable prospect of defending the claim if the judgment is set aside. .......
judgment in default will only be exercised if the 1st Defendant's affidavit supporting the application to set aside the judgment in default discloses facts showing a defence on the merits. ... ) warrants the entering of default judgment, as having been regularly obtained; and a regularly obtained judgment can only be set aside at the ....
set aside the judgment in default discloses facts showing a defence on the merits. ... ) warrants the entering of default judgment, as having been regularly obtained; and a regularly obtained judgment can only be set aside at the discretion of the Court if there appears to be a defence showing merits. ... in respect ....
Therefore, to set aside a regular judgment, the Appellants must demonstrate to this Court that they have merits in their proposed defence. In my assessment, there are no merits in the proposed defence. ... the Judgment in Default of Appearance and to file a defence. ... Appellants may then apply for an extension of time to s....
8. With the aforesaid preliminary observations, the aspect to be noted is that the real issue to be decided is of the absence for the period from 8.12.2009 when defendant nos. 7. Basically, the courts are liberal in allowing the setting aside of ex parte proceedings, including of restoration of suit dismissed in default, because, ordinarily persons should be allowed to have a judgment on merits and not on account of default. (Ref: N. Balakrishnan Vs. M. Krishnamurthy, AIR 199....
7. Basically, the courts are liberal in allowing the setting aside of ex parte proceedings, including of restoration of suit dismissed in default, because, ordinarily persons should be allowed to have a judgment on merits and not on account of default.
With reference to a similar rule that the courts should be guided by the spirit and should not be bound by the letter of the Code of Civil Procedure this Court explained that the reason appeared to be that the technicalities of the Code, should not trammel litigation embarked upon by a people unused to them. In that case although a suit was ordered to be dismissed for default of appearance, an order was passed on merits. It was held by this Court that it did not matter under ....
However, in the instant case, while setting aside the ex parte judgment and decree, defendants have to be burdened with heavy cost. Courts are also otherwise liberal in setting aside ex parte judgment and decree, may be on payment of cost, because a lis should be decided on merits and not by default. Reason for the same is that the defendants immediately filed the application for setting aside ex parte judgment and decree after the same were passed, without even inspection of....
The question arose whether it was dismissed under O 9 R 8 or O 17 R 3 of the Code of Civil Procedure. It was held by this Court that it did not matter under which Order it was dismissed but that no second suit could be brought on the same cause of action without getting rid of the order dismissing the suit. With reference to a similar rule that the Courts should be guided by the spirit and should not be bound by the letter of the Code of Civil Procedure this Court explained that the reason app....
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