FIRMA 8 2018/2019 SYAHNAZ&ASSOCIATES TUTO 1 CP Q1-5

QUESTION 1

As from the facts of the case given by Alan towards Steven on the said loan of RM
10,000 in a form of a “friendly loan” could have been done as to originating summons based
on O.5,r.4 ROC 2012 (b) where there is unlikelihood of any substantial dispute based on the
facts of the case given where the issues on claiming back the loan that has been given by
Alan to Steven.
Based on O.5, R 2 ROC on proceedings that is begun by writ are generally
proceedings where substantial dispute of fact is likely to arise as such that may be infer is that
on Steven has paid the amount of RM 2,000.00 to Alan prior for the writ to be handed to
Steven. As such for the Service of Writ based O.10, R.1 ROC (1), a writ shall be served as
personally towards the defendant by A.R registered post addressed to his last known address
and the first attempt must not be made later than one month from the date issue of the writ.
O.62, R3 (3) as to the personal service must be left on the copy of the document towards the
person served with him and shown the sealed copy of the writ or documents thereof.
On the issue of personal service, it must be made to be directly served to them. As
from the facts above can be related to the case of Thompson v Pheney where the Dt refused
to accept the service of the writ and threw it, from the facts above is that Steven had read it
and threw it towards the server and hence is seen as still good service as mention on the case
given for the situation as said above.
As for the condition where Steven has failed to enter appearance within the specific
period, Alan can hence enter judgement in default of appearance as stated in Order 13, R7(1)
ROC, the plaintiff may enter final judgement against the defendant for a sum not exceeding
that claimed from the writ.
It is advice on the side of Alan that he should set aside the writ that has been made by him
and make an Originating Summons towards Steven on money claim from the loan that he
made with Steven through Withdrawal and Discontinuance of the Writ as such with leave of
the court under O.21 R3(2) ROC due to the lapse of time prescribed as a JID has been served
towards Stephen under O.13 R1 for the liquidated sum that Alan is claiming for based on writ
made.

QUESTION 2
Memorandum of appearance (MOA) should be entered by the Defendant within 14
days after the writ has been served by Plaintiff. (O12 rule 4) . In this case, the Defendant did
not enter MOA within given time, so the Plaintiff has rights to enter judgement in default.
Plaintiff can obtain judgement for the respective claims. (O13 rule 5)
As for an order of unliquidated damages, it has to go through interlocutory
judgement because the amount of money cannot be determined precisely. (O13 rr 2 & 3) The
damages need to be assessed thereafter the judgement can be enforced. (O37) For instance,
the case Credit Corporation v Bulan Sabit Sdn. Bhd.
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As for an order of specific performance, few elements need to be fulfilled. They are:-

 After the time limited for entering appearance

 After filing affidavit to show prove of service of writ
 After serving statement of claim

Plaintiff can proceed to take action as if Defendant entered appearance. However,

Plaintiff cannot enforce judgment right away, he has to wait for Defendant to enter his
defence (O18 rule2). If Defendant fails, Plaintiff may apply to court for judgement in
default. (O19 rule 7)

QUESTION 3

The Defendant should fail to file a Statement of Defence after entering a Memorandum of
Appearance, a Judgment in Default may also be entered against the Defendant.
BUT when this happens, the defendant may – even if he has not applied to set aside the
default judgment – appear before the court to raise a challenge during the assessment process.
He could cross-examine the plaintiff as well as adduce any evidence to show the court why
damages should be much less than what the plaintiff is asking for.

Thus at the end of the day, though a claim has been made for millions, the plaintiff could very
well end up – notwithstanding the earlier default judgment – with a much lesser amount or
even nominal damages where the circumstances so warrant.

But a defendant can always apply to set aside the default judgment. If the application is
successful, the whole matter will go back to the stage where the proceedings commenced.
The defendant who sets aside the default judgment will be required to pay the costs of the
proceedings up to that stage. Judgement in default of appearance is judgement given to the
plaintiff without the court hearing the merits of the plaintiff’s case. The court has absolute
discretion to set aside the judgement on the application of the defendant as in Order 13, Rule
8. There is a requirement under RC 2012, Order 42 Rule 14 that a party intending to set aside
or vary the order must make his application to the court and serve it on the party who has
obtained the order or judgement within thirty days after the receipt of the order or judgement
by him.

In Sockalingam Chettiar & Ors v. Somasundaram Chettiar[1941] MLJ 103 CA, it was stated
that it was fundamental a person should have notice of the proceedings against him and even
when an order for substituted service has been made a judgement can be set aside when
merits are disclosed and when the court is satisfied that the defendant was not aware of the
proceedings and was not avoiding service which is tantamount to knowledge of the
proceedings. The application to set aside must be made in reasonable time. However, in a fit
and proper case the court will disregard the lapse of time as stated in Atwood v.
Chichester[ 1878] 2 QBD 722.
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In Public Bank Bhd v. Malamaju Enterprise Sdn Bhd & Ors [1989] 2 MLJ 112, the court set
aside a default judgement when there was evidence to show that the defendant had moved out
of the address before substituted service was effected.
In case where a default judgment is entered and application to set aside is to be made, it may
be necessary to apply for setting aside service on the ground it was irregular.
In Development & Commercial Bank Bhd v. Aspatra Corporation Sdn Bhd & Another [1995]
3 MLJ 472 appeal, the Supreme Court stated that it is an established principle that if writ
cannot be served personally at the time when it is issued, there cannot subsequently be any
substituted service of the writ. Of course, it is not in all situations that judgment in default can
be set aside. One sure situation is where the judgment is irregular. This can happen where the
summons has not been properly served. It may also be a basis for setting aside the default
judgment that final judgment has been entered for the full sum claimed where the law
requires damages to be assessed.

However, where a judgment is obtained regularly, meaning that it is obtained in accordance

with the rules and procedures, the defendant may yet be able to set it aside where he has good
reasons for not having responded and there are merits in his defence.

Of course, in the later case, if the defendant has been dilatory in making the application to set
aside the default judgment after having become aware of it, this will be a ground for the
discretion of the court to be exercised against him.

QUESTION 4

If the Df cannot be found or is evading service or it is impracticable to serve the writ to the
Df personally, Pf may proceed to apply service by way of substituted service according to
O.62, R.5.
Prime Bank Berhad may file a notice of application supported by affidavit in Form 134
stating the facts on which the application is founded. If the court is satisfied with application,
shall make an order in Form 133 for substituted service of that documents.
Before the application for SS, Practice Note 1/68 prescribes as follow:
a) Pf must at least make 2 calls or attempts to serve at the Df’s premises on 2
separate occasions (working days) at reasonable times; and
b) Before making the 2nd call/attempt, Pf must secure an appointment and at
least 2 days notice must be given. Pf may do so by sending AR Registered
letter stating the date and time that Pf would come again to serve the writ.
During the 2nd visit, Pf should ask any person present at the premises if there is another
address where the writ can be served on the Df. If so, then the Pf should proceed to serve the
writ on Df at the address.
The court may order the writ to be served:
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a. by advertisement in newspaper;
b. by sending a copy of the affidavit together with the order for SS to the last
known address of the Df by registered post or posting on the premises;
c. by posting a copy on the court’s notice board.
If the Df fail to enter appearance, the Pf may apply for judgement in default of appearance.

QUESTION 5

O.62, r.5 stated that if the Df cannot be found or is evading service or it is impracticable to
serve the writ on the defendant personally, the plaintiff may proceed to apply for service by
way of substituted service (SS). There are 2 steps to be taken before Pl can apply for an order
for SS according to Practice Note 1/68 whereby;
a) Pf must at least make 2 calls or attempts to serve at the Df’s premises on 2
separate occasions (working days) at reasonable times; and
b) Before making the 2nd call/attempt, Pf must secure an appointment and at
least 2 days notice must be given. Pf may do so by sending AR Registered
letter stating the date and time that Pf would come again to serve the writ.
The court may order the writ to be served:
a) by advertisement in newspaper;
b) by sending a copy of the affidavit together with the order for SS to the last
known address of the Df by registered post or posting on the premises;
c) by posting a copy on the court’s notice board.
In Dallas’s case, the order for SS stipulated that the writ of summons was to be served
on the Df (Dallas) by advertisement in The Star on 2 consecutive working days. To save cost,
Pl (Pandai) advertised it in the New Straits Times on Sunday and also 2 days later on
Tuesday (public holiday). Hence, Pl obtained judgment in default of appearance against Df
because Df failed to enter appearance within the time.
Pl must comply with the mode prescribed by the court when granting the order for SS.
The service of the writ is deemed as proper if Pl has complied with the requirements stated in
the court’s order, If the Df fail to enter appearance, the Pf may apply for judgement in default
of appearance. Leow Boke Chooi v Asia Motor Co. Ltd. (1967).
However, the service of the writ is deemed to be not proper because Pandai failed to
comply with the requirements stated in the court’s order which is to serve at the Df’s
premises on 2 separate occasions (working days) at reasonable times. Because of this, Df
failed to enter appearance within the time. Based on O.42, r.13, if Df wishing to set aside JID
of appearance, Df must do so within 30 days from the receipt of the judgment. Generally, the
court may set aside JID on one of these grounds:
a) the judgment obtained was irregularly i.e. rules were not followed; or
b) Df has defence on the merits that must be heard.
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The court has absolute discretion to set aside JID of appearance on application by the
Df (O.13, r.8). In Evans v Barthlam, Lord Atkins stated that “where the judgment was
obtained regularly there must be an affidavit of merits, meaning that the applicant must
produce to the court evidence that he has a prima facie defence.” To prove defence on the
merits, Df need only to show that he has an arguable defence that fits to be tried in full trial.
As for Dallas he may set aside JID of appearance because Pandai did not comply with court’s
order.