Firm 3:

Adilah Azizan & Co.

ADILAH BINTI AZIZAN
NURUL AZHARIAH BINTI DESA
NUR SYAHIRA BINTI MOHAMAD
SHAKHRATUL ASYRAN BINTI IDRIS
MUHD MUQRI BIN MOHD KHAIRI
MOHAMMAD MUZAMMIL BIN MOHAMMAD HAIRIRI

(i) effect of judgment in

default
Order 13 Rule 1 of Rules of Court
2012(ROC)
- if the writ has been served on the
defendant and he fails to enter any
appearance within stipulated period,
the plaintiff may enter judgment
against him
- this judgment is known as
Judgment in Default (JID)

 JID of appearance cannot be entered

in all cases. Equitable remedies such
as specific performance are omitted
from the scope of the procedure of
judgment in default.
This is because the award of such
remedies is dependent on the
discretion of the court, and therefore
incompatible with the automatic
nature of the default judgment.
Plaintiff may not enter JID of
appearance where the endorsement
on the writ includes such a claim.

 Order 13 Rule 6 ROC

Instead the plaintiff may, after the time
limited for appearing, upon filing an affidavit
proving due service of the writ on the
defendant concerned, and upon serving the
statement of claim proceed with the action
as if the defendant had entered an
appearance.
the effect of this rule is that the plaintiff
goes to next step of the proceeding which is
to require a defence pleading to be filed and
served. If the defendant does not take this
step, the plaintiff may obtain JID of defence.

LEONG SENG KIAT v KHAW SEE SONG [1988] 2

MLJ 365

In this case, the plaintiff-appellant alleged that he

had agreed to buy land from the defendants and
had paid the deposit for the land on the signing of
the agreement. He further alleged that the
defendants had failed to complete the sale. The
appellant applied for an order of specific
performance and obtained judgment in default.
Subsequently, the intervener-respondent applied
for leave to intervene on the ground that the
defendants had earlier sold the land to one Yew
Ah Pee and subsequently Yew Ah Pee sold the
land to him and his daughter.

 This was about one year before the

defendants purportedly sold the land
to the plaintiff-appellant. The learned
judge of the High Court granted leave
to the intervener to intervene and
further ordered that the judgment in
default of appearance be set aside
and that the names of the defendants
be reinstated as the registered
proprietors of the land. He also
ordered that the intervener be added
as a defendant in the action. The
appellant appealed.

- since the action was one with specially

indorsed writ for specific performance of
an agreement for sale and purchase of
property, it should, under Order 13 rule 12
of the Rules of the Supreme Court 1957,
proceed as if the defendants had appeared.
The default judgment in this case was in
breach of Order 13 rule 12 and also in breach
of and in non-compliance with Order 14A rule
1(1) and Order 27 rule 11. The breach and
non-compliance were fundamental
defects which were not curable as the
effect was to defeat the right of other
parties to the action.

(ii)Whether he can successfully

set aside the judgment?
Since O.13 r6 ROC omitted for the specific
performance in the judgment in default as
applying in the case of LEONG SENG KIAT v
KHAW SEE SONG. It was held that the
breach and non-compliance were
fundamental defects which were not curable
as the effect was to defeat the right of other
parties to the action. Here, the judgment in
default cannot for the specific performance.
Therefore, Elton can successfully set aside
the judgment.

iii)Procedure for setting aside

the JID
Order 13 r 8 provides that the court may set aside or
vary the judgement entered in pursuance of this order
as it thinks fit.
In the case of Evans v Bartlam(1937) held that the
court has power to revoke the expression of its coercive
power where that has been obtained by a failure to
follow any of the rules of procedure.
Order 42 rule 13 states that a party intending to set
aside or to vary such order or judgement shall make an
application to the court and serve it on the party who
has obtained the order or judgement within 30 days
after the receipt of the order or judgment by him.

 In the case of Tuan Haji Ahmed Abdul

Rahman V Arab Malayian held that the
application to set aside an irregular
judgement should be made within a
reasonable promptitude.
the procedure to set aside JID : By way of notice of application supported by
an affidavit
The affidavit must indicate whether the
judgement in default was regular or irregular.

 If the judgement is irregular, the

affidavit need not disclose the merits
but it should state the nature of the
irregularity and the circumstances
under which the default arose. A
judgement is irregular if it does not
comply with the rules, as when it is
entered too soon or for the wrong
amount.

 Applying to this situation, Alfred must make an

application to the court and serve it on the party who
has obtained the order or judgement, Elton within 30
days after the receipt of the order or judgment by him.
Alfred need to give the notice of application to the
court and supported with the afidavit by showing that
the JID served on him due to the failure of his
appearance was irregular which is not comply with the
said rules provided.
This is because JID cannot be entered in the cases which
involve the claiming of specific performance which is
ommitted from the scope of the procedure of the
judgement in default under order 13 r 6.

Question
b) Consider the situation if
Alfred claim is regards to
damages for conversion of
goods.

Law
O.13 r(2 ) of the Rules of Court 2012
stated that where a writ is endorsed
with a claim against a defendant for
unliquidated damages only, then, if
that defendant fails to enter an
appearance, the plaintiff may, after
the time limited for appearing, enter
interlocutory judgment against that
defendant for damages to be
assessed and costs, and proceed

 It can be final or interlocutory or

partially final and interlocutory. A
judgment is interlocutory when
further steps are to be taken to
finalise it. The effect of this rule is
that such a judgment is interlocutory
only as to the amount and is final as
to the right of the plaintiff to recover
damages together with such costs
which he would be entitled when the

 Therefore, in the case of a claim for

unliquidated damages, the plaintiff
may, after the time limited for
appearing, enter interlocutory
judgment against the defendant for
damages to be assessed and costs.

Application.
Based on O.13 r(2), the plaintiff can
apply for judgment in default when
the suit is regarding a claim for an
unliquidated demand. Different from
specific performance, the damages
for conversion of goods is an
unliquidated damages where clearly
falls under O.13 r(2) thus Alfred will
be able to apply for judgment in
default when Elton had failed or

 As this is regarding unliquidated

damages, Albert will enter
interlocutory judgment against the
Elton for the damages of the
conversion goods to be assessed and
costs.

Procedure to Enter Judgment in

Default of Appearance.
Albert does not need to appear
before Judge or Registrar during the
application.
Albert also need to follow proper
procedures in applying the judgment
in default of appearance:
1. Original writ duly indorsed as to
service as mention under Order 10
R.1(4)
2. Affidavit verifying service (Form

3. Two completed judgment forms duly

stamped and the form must be in Form 75.
4. Albert also must produce certificate of Non
Appearance in Form 12 with Affidavit of
due service.
5. 7 days advance notice to the defendant
(Legal Profession Rules) which specifically
under Rule 56.
6. If the court satisfied, Albert will enter the
judgment in default of appearance.