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Scanned Judgements…!
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Scanned Judgements…!
Irregularity of Judgment - A primary argument against setting aside a default judgment is that it must have been obtained irregularly. If the judgment was obtained properly and regularly, it generally cannot be set aside solely on procedural grounds. An irregular judgment can be set aside ex debito justitiae, regardless of merits ["NORRAIDA ABDULLAH & ANOR vs NURAIN LIAS & ANOR - High Court"]. Conversely, a regularly obtained judgment requires the defendant to demonstrate a meritorious defence or other good reasons to justify setting it aside ["KUANTAN TEMBELING CONDOMINIUM MANAGEMENT CORPORATION vs SAM SIEW CHONG - Magistrate Court"] ["UWE LANGE & ANOR vs SYS HOLDING SDN BHD & ORS - High Court"].
Merits and Defence on the Merits - The court often requires the defendant to show that they have a defence on the merits to succeed in setting aside a default judgment. This is supported by the principle that a judgment in default can only be challenged if the defendant demonstrates a bona fide defence or that the judgment was irregularly obtained ["KUANTAN TEMBELING CONDOMINIUM MANAGEMENT CORPORATION vs SAM SIEW CHONG - Magistrate Court"] ["UWE LANGE & ANOR vs SYS HOLDING SDN BHD & ORS - High Court"] ["YOHANA BANUNAE vs JAYAVARTINY RAMALUE & ANOR - High Court"].
Discretion of the Court - The court has absolute discretion to set aside or not to set aside a default judgment, and will consider whether the application is made promptly and whether there is a sufficient reason, such as a defence on the merits or irregularity in obtaining the judgment ["NORRAIDA ABDULLAH & ANOR vs NURAIN LIAS & ANOR - High Court"] ["KST LAND SDN BHD & ORS vs RAHIMAH JAAFAR - High Court"].
Timing of Application - Delay in filing the application to set aside is a significant factor. Applications made after a substantial delay (e.g., 16 months or more) are often dismissed, especially if no good explanation for the delay is provided ["KST LAND SDN BHD & ORS vs RAHIMAH JAAFAR - High Court"] ["PUTRI SHAZANA MEGAT ABDUL RAHIM vs SELINA CHONG ABDULLAH - High Court"] ["UWE LANGE & ANOR vs SYS HOLDING SDN BHD & ORS - High Court"].
Procedural Requirements - Applications to set aside default judgments must comply with specific procedural rules, such as serving the application within 30 days of receiving the judgment, and must be supported by affidavits demonstrating grounds like a defence on the merits or irregularity ["KST LAND SDN BHD & ORS vs RAHIMAH JAAFAR - High Court"] ["PUTRI SHAZANA MEGAT ABDUL RAHIM vs SELINA CHONG ABDULLAH - High Court"] ["UWE LANGE & ANOR vs SYS HOLDING SDN BHD & ORS - High Court"].
Irregularly Obtained Judgments - If a default judgment was obtained irregularly, it can be set aside ex debito justitiae, without requiring the defendant to prove merits ["NORRAIDA ABDULLAH & ANOR vs NURAIN LIAS & ANOR - High Court"].
Finality and Appeal - Judgments by default are not considered final orders, and orders refusing to set aside such judgments are appealable. However, setting aside a default judgment generally restores the position to a trial on the merits ["BARON APPUHAMY v. TIVANAHAMY"].
Analysis and Conclusion:The main arguments against setting aside a default judgment focus on the need for the judgment to be irregularly obtained or for the defendant to demonstrate a valid defence on the merits. The court exercises discretion, considering factors like timeliness, procedural compliance, and whether the judgment was obtained properly. Delay and lack of evidence supporting a defence are common grounds for dismissing applications. Ultimately, a judgment obtained regularly and without irregularity is difficult to set aside unless the defendant can convincingly demonstrate a meritorious defence or procedural irregularity ["NORRAIDA ABDULLAH & ANOR vs NURAIN LIAS & ANOR - High Court"] ["KUANTAN TEMBELING CONDOMINIUM MANAGEMENT CORPORATION vs SAM SIEW CHONG - Magistrate Court"] ["UWE LANGE & ANOR vs SYS HOLDING SDN BHD & ORS - High Court"].
In the fast-paced world of Malaysian litigation, securing a judgment in default can be a significant victory for plaintiffs. However, defendants often seek to set it aside, claiming irregularities or defenses. If you're facing such an application, understanding how to robustly oppose it is crucial. This post explores arguments to oppose set aside of judgment in default, drawing from key case law and procedural rules to help you maintain your hard-won judgment.
Default judgments arise when a defendant fails to appear or defend, typically under Orders 13 and 19 of the Rules of Court 2012 (ROC 2012). Courts have discretion to set them aside under O 13 r 8 and O 19 r 9, but only on such terms as it thinks just. LINDE MALAYSIA SDN BHD vs SYUEN WHO CO2 (M) SDN BHD - 2021 MarsdenLR 3302UWE LANGE & ANOR vs SYS HOLDING SDN BHD & ORS - 2025 MarsdenLR 967 The question arises: what compelling arguments can you use to convince the court to uphold the judgment? This guide breaks it down, emphasizing regularity, lack of merits, and procedural fairness.
Note: This is general information based on precedents and not specific legal advice. Consult a qualified lawyer for your case.
A judgment in default is entered when a defendant neglects to enter an appearance (O 13) or file a defence (O 19). Setting it aside isn't automatic; applicants must show strong grounds. Courts prioritize finality in litigation unless justice demands otherwise. MURALI SELVAKUMAR vs KAMALANATAN KRISHNASAMY
For instance, in one case, the court upheld a default judgment for breach of a Sale and Purchase Agreement, finding proper service of the writ and no valid defence. The judgment in default was regular as the plaintiff properly served the writ, and the defendant failed to show a defense with merits. MURALI SELVAKUMAR vs KAMALANATAN KRISHNASAMY
Opposing set-aside requires flipping the burden: prove the judgment stands on solid ground.
Lead with this: argue the judgment was obtained regularly, fully complying with ROC 2012. Irregular judgments may be set aside ex debito justitiae, but regular ones require exceptional circumstances. ALLIANCE INVESTMENT BANK BERHAD vs TSAI CHING CHI - 2010 MarsdenLR 491
Highlight service proofs, affidavits, and court entries. In a key ruling, claims of inadequate statements of claim or excessive interest failed because the judgment was regular as it followed rules. ALLIANCE INVESTMENT BANK BERHAD vs TSAI CHING CHI - 2010 MarsdenLR 491 Similarly, an order for sale was upheld as regularly obtained in full compliance with the relevant procedural rules and was heard on its merits. STANDARD CHARTERED SAADIQ BERHAD vs ANG TECK LEONG - 2025 MarsdenLR 581
Under O 13 r 8: The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. LINDE MALAYSIA SDN BHD vs SYUEN WHO CO2 (M) SDN BHD - 2021 MarsdenLR 3302UWE LANGE & ANOR vs SYS HOLDING SDN BHD & ORS - 2025 MarsdenLR 967 Stress that mere merits challenges don't render it irregular.
From additional precedents, proper writ service defeats impropriety claims. MURALI SELVAKUMAR vs KAMALANATAN KRISHNASAMY
Applicants must prove a triable issue or bona fide defence, not just denials. A mere denial of outstanding debts without substantiating evidence or a legitimate defence does not suffice to warrant a trial. ALLIANCE INVESTMENT BANK BERHAD vs TSAI CHING CHI - 2010 MarsdenLR 491
Demand evidence; unsubstantiated claims are sham defences. Courts dismiss where the Defendant had not supplied sufficient facts to establish a genuine defence. ALLIANCE INVESTMENT BANK BERHAD vs TSAI CHING CHI - 2010 MarsdenLR 491
Contrast with cases where set-aside succeeded due to triable defences, like a liquidator showing evidence of issues. But without merits, discretion favors refusal. CENTURY DISCOVERY SDN BHD & ORS vs NBL LAND DEVELOPMENT SDN BHD A judgment in default can be set aside as of right... if it was irregularly obtained and that a judgment in default which was regularly obtained can be set aside only with merits. CENTURY DISCOVERY SDN BHD & ORS vs NBL LAND DEVELOPMENT SDN BHD
Pinpoint the applicant's fault: negligence in diarising dates, failing to appear, or attending without opposing. The applicants failed to appear at trial due to negligence in diarising the date, leading to acceptance of plaintiffs' evidence. LEMBAGA KEMAJUAN TANAH PERSEKUTUAN (FELDA) vs AWANG SOH MAMAT - 2010 MarsdenLR 3567
Even personal appearances without affidavits or opposition weaken claims. The order for sale was granted following those appearances, during which the defendant failed to file any affidavit in opposition. STANDARD CHARTERED SAADIQ BERHAD vs ANG TECK LEONG - 2025 MarsdenLR 581
Minor lapses, like affidavit service failures, are curable and don't void judgments, especially with delay. Failure to serve the affidavit was a curable irregularity and did not nullify the order; additionally, the long delay in seeking to set aside the order impacted the legal rights. MALAYAN BANKING BHD vs KOAY KANG CHUWAN & ANOR - 2010 MarsdenLR 353
Delay prejudices plaintiffs and favors finality. Contrast with non-compliance cases under O 42 r 8(1) (draft submission failures), but affirm your compliance. BSN COMMERCIAL BANK (MALAYSIA) BHD vs ZAQ CONSTRUCTION SDN BHD & ORS - 2001 MarsdenLR 784BSN COMMERCIAL BANK (MALAYSIA) BHD vs ZAQ CONSTRUCTION SDN BHD - 2001 MarsdenLR 1653
If the set-aside is on non-jurisdictional grounds, it may constitute voluntary appearance. If the defendant takes no part... and later moves to set the default judgment aside, the application to set aside may be a voluntary appearance if it is based on non-jurisdictional grounds. PT SANDIPALA ARTHAPUTRA vs MUEHLBAUER TECHNOLOGIES SDN BHD - 2021 MarsdenLR 1162
This undermines jurisdictional challenges.
Be prepared for counterarguments. Set-aside is more likely if:- Judgment is irregular (e.g., O 42 r 8(1) non-compliance). BSN COMMERCIAL BANK (MALAYSIA) BHD vs ZAQ CONSTRUCTION SDN BHD & ORS - 2001 MarsdenLR 784- Bona fide defence with evidence exists. ALLIANCE INVESTMENT BANK BERHAD vs TSAI CHING CHI - 2010 MarsdenLR 491- No delay or valid excuses. MALAYAN BANKING BHD vs KOAY KANG CHUWAN & ANOR - 2010 MarsdenLR 353
Discretion is fact-specific under O 42 r 13: The Court may, on such terms as it thinks just, set aside or vary any judgment. MURALI SELVAKUMAR vs KAMALANATAN KRISHNASAMY
Justice favors finality absent strong cause. ALLIANCE INVESTMENT BANK BERHAD vs TSAI CHING CHI - 2010 MarsdenLR 491
By mastering these arguments, you can effectively oppose set-aside applications, protecting your rights. For tailored advice, engage a Malaysian litigation specialist.
of Time to file this Setting Aside Application before praying for orders to Set Aside the Judgment in Default itself. ... aside the Judgment in Default (JID). ... A judgment in default is not a judgment on the merits: L Oppenheim & Co v. Mahomed Haneef [1922] 1 AC 482." [52] The Court has an absolute discretion to set aside or not to set #HL_....
Setting aside judgment (O 13 r 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) ROC 2012, the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. I refer to O 42 r 13 of the 2012 that is stated as follows: "13. ... The defendan....
[7] Order 13 r 8 of the Rules of 2012 confers the discretion on a Court to set aside or vary any judgment entered in pursuance of a default of appearance under O 13. ... It provides that: 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. ... [16] While O 13 r 8 of the Rules of 2012 empowers the Court to set#HL_E....
(2) If the default judgment obtained is a regular judgment, then the defendant has to show a triable defence on merits before being entitled to set aside the default judgment. ... whether or not to set aside the judgment. ... leave to file the present application out of time and to set aside the judgment-in-default (JID) dated 22 January 2022 ....
Setting aside judgment (O 13 r 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) ROC 2012, the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. I refer to O 42 r 13 of the 2012 that is stated as follows: "13. ... The defendan....
As such, the affidavit is procedurally defective, and DTs application to set aside the default judgment is unsustainable. ... TH White Ltd [2014] EW Civ 906 ( ) have been applied to applications to set aside regularly obtained default judgment. Vos MR in FXF v. ... as "D1" and "D3") seeking to set aside the default judgments that were entered against them on 23 August 2024. ... Rule 13.3(1) of the....
; and (g) Where a High Court allowed any application to set aside a judgment in default". ... judgment included (but are not limited to) the following: (1) ''It is settled law that a judgment in default can be set aside as of right ex debito justitiae, irrespective of merits, if it was irregularly obtained and that a judgment in default which was regularly obtained can be set #HL....
He prays that the jail-sentence awarded by the Courts-below be set-aside and the applicant be sentenced to the period already undergone. Shri Verma, Dy. G.A. does not oppose the prayer. ... I considered the arguments advanced by counsel for both sides and perused the record. ... ... In view of above, the jail-sentence awarded to the applicant is set-aside and he is sentenced to the period already undergone. ... JUDGMENT ... This revision petition is directed again....
Divunhamy 2 that as a judgment by default was not a final order no appeal lay from an order refusing to set aside such judgment, but it was held that an appeal would lie as the effect of a refusal to set aside such a judgment was to invest such judgment with finality. ... Here the Commissioner has set aside the judgment by default and the question for consi....
it set aside. ... [21] This pertains to the delay on the part of the 2nd Defendant in seeking to set aside the default judgment. ... Judgments in default were thereafter entered against the 2nd and 3rd Defendants. The present appeal concerns the application by the 2nd Defendant to set aside the default judgment entered against it. ... Setting aside judgment (O....
To that extent, the judgment requires to be set aside. In the light of the aforesaid finding, the Triple Talaq pronounced by the respondent/husband is not valid in accordance with law.
In view of that we hold that reopening of the case under Section 147(b) in the facts of this case was on the basis of factual information given by the internal audit party and was valid in law. The judgment under appeal is set aside to this extent.”
In view of the arguments, it is contended that impugned judgment is liable to be set aside. Due to non-examination of the I.O., the appellants got seriously prejudiced and that is fatal to the prosecution.
As jural relationship between the landlord and tenant has been admitted and the tenancy has been validly terminated by issuing notice in terms of Section 106 of the Transfer of Property Act and as the contention raised by the defendant – tenant that the Karnataka Rent Act was applicable to the case on hand because of the measurement of the shop premises has been rightly repelled, nothing more survives for consideration by the court below in this case. Therefore, if the matter is examined in the light of the rulings referred to supra, it becomes clear that the Court below has proceeded on an ....
The judgment based on presumptions needs to be set aside. 4. Mr. S.N. Kumawat, learned counsel for appellant-RPSC submits that without verification of the facts as to whether unfilled vacancies were of a period prior to amendment in the rules i.e. 10.10.2002, learned Single Judge presumed all the unfilled vacancies of a period prior to 10.10.2002 and issued directions accordingly. the other argument raised herein is that reserve list cannot be operated after expiry of its life more so in regard to few petitions which were filed subsequent to the judgment in the cases of Vij....
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