A Judgment in Default (JID) is a vital element in civil litigation that Defendants must be knowledgeable about. This thorough guide seeks to offer an in-depth comprehension of JID of appearance, covering its definition, consequences, the procedure for obtaining it, and the methods for having it set aside.
What exactly is a JID of appearance?
A JID of appearance is a judgment issued against a Defendant who does not appear within the allotted time after being served with a Writ of Summons or an Originating Summons. It indicates the Defendant's failure to respond or defend themselves in court. A JID can be either a final judgment or an interlocutory judgment, depending on the type of claim pursued by the Plaintiff, which will be detailed further below.
Final Judgement in Default
A final JID entered against a Defendant becomes a conclusive judgment enforceable against them if not set aside within 30 days of being served (O42 r13 of the ROC 2012). A final JID can be issued (using Form 75) for claims involving a liquidated demand (O13 r1 ROC 2012) or for claims seeking possession of immovable property (O13 r4 ROC 2012).
Interlocutory JID
An interlocutory JID cannot be enforced until the Registrar assesses the damages and issues an allocator, which then becomes the final judgment (O37 ROC 2012). An interlocutory JID can be issued against a Defendant for claims of unliquidated damages (O13 r2 ROC 2012) and claims of detinue (movable property) (O13 r3 ROC 2012).
Hybrid Judgement in Default: Mixed Claims
If the claim against the Defendant includes a mix of claims eligible for both final and interlocutory JIDs, then both a final and interlocutory JID of appearance may be issued (O13 r5 ROC 2012).
Obtaining a Judgement in Default
To obtain a JID, the Plaintiff must present a certificate of non-appearance using Form 12 (O13 r 7 ROC 2012).
Additionally, the Plaintiff must demonstrate proper service of the writ or originating summons on the Defendant, supported by an Affidavit confirming service in Form 135 as per O62 r9 ROC 2012.
A hearing date will then be scheduled with the Registrar for the entry of the JID, and the Defendant must receive a 7-day notice of this hearing date (Rule 56 of the Legal Profession (Practice and Etiquette) Rules). This notice requirement is crucial because failure to comply may constitute misconduct by the Plaintiff’s solicitor and could potentially lead to the JID being set aside due to procedural irregularity (RHB Finance Bhd v CN Corporate Network (M) Sdn Bhd).
Setting aside a JID
Fortunately, Defendants have the option to apply for the JID to be set aside under specific conditions.
Procedure: The Defendant must file an application to set aside the JID of appearance in accordance with O42 r13 ROC 2012.
Order 42 rule 13 of the Rules of Court 2012 stipulates that:
“Save as otherwise provided in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or vary such order or judgment shall make an application to the Court and serve it on the other party who has obtained the order or judgment within thirty days after the receipt of the order or judgment on him”
The court, pursuant to Order 13 rule 8 of the Rules of Court 2012 is given discretion in the determination of a setting aside application.
Time Limit: The Defendant has 30 days from receiving the JID to apply to the court to have it set aside (O42 r13 ROC 2012). Adhering to this time limit is crucial. If the Defendant wishes to set aside a JID after the 30-day period, they must first apply for an extension of time under O3 r5 ROC 2012 before submitting the application to set aside.
Grounds for Setting Aside: The Defendant must establish valid reasons for setting aside the JID, such as procedural errors, irregularities in serving the writ or statement of claim, or the presence of a substantive defence that merits a trial in court. The court exercises its discretion in evaluating these grounds and deciding whether to grant or deny the application (O13 r8 ROC 2012).
Setting aside JID: Regular v Irregular judgements
The type of JID entered dictates the criteria for setting it aside.
If a JID was obtained regularly, meaning it adhered strictly to the ROC 2012, the Defendant must demonstrate in their affidavit supporting the application to set it aside that there is a defence on the merits (Evans v Bartlam [1937] 2 All ER 646; Dialdas & Co (Pte) Ltd v Sin Sin & Co & Ors [1996] 1 MLJ 30).
Conversely, if the JID was irregularly obtained, indicating it was acquired without compliance with procedural rules, the Defendant can set it aside as a matter of right without needing to demonstrate any merits (D&C Bank Bhd v Aspatra Corp Sdn Bhd [1996] 1 CLJ 141; Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457).
Conclusion
As evident from the above write up, a JID of appearance holds considerable implications for Defendants. Knowledge of the procedure and outcomes associated with a JID is essential for Defendants to safeguard their rights and interests. Although a JID poses a challenge, Defendants can pursue setting it aside by substantiating valid grounds and presenting a defence on merits before the court. Seeking legal counsel and adhering meticulously to the specified time constraints are crucial steps to maximize the opportunity to nullify a JID and achieve a just resolution to the underlying dispute.
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