In our previous article in the Mind Your Legalese series, we discussed the different modes of initiating a suit, i.e. the Writ of Summons and the Originating Summons. Specifically for a legal suit commenced by a Writ of Summons, the defendant receiving a Writ of Summons must enter an appearance within the stipulated time, failing of which a judgment in default of appearance may be entered.
If a defendant who receives a Writ of Summons is desirous to defend the legal suit brought against him/her, he first must enter what is known as an ‘appearance’. This is essentially done by filing the prescribed form with the courts and serving a copy of the document on the plaintiff or the plaintiff’s solicitors.
However, as with most court processes, entry of an appearance is time sensitive. The Rules of Court 2012 prescribes that generally, a defendant is only given 14 days after the service of the Writ of Summons on the defendant to enter an appearance. If the Writ of Summons was allowed to be served outside of Malaysia, then the defendant is given 21 days after the service of the notice of Writ of Summons. It must be noted that these are general rules and there may be exceptions provided under the Rules of Court 2012 or as allowed by the courts.
What Happens if the Defendant Does Not Enter an Appearance?
If the plaintiff successfully serves the Writ of Summons on the defendant in accordance to the Rules of Court 2012 and the defendant does not enter an appearance within the stipulated time, the plaintiff may consider entering judgment in default of appearance (colloquially referred to as ‘JID of appearance’).
Simply put, a judgment in default of appearance is a judgment given to the plaintiff against the defendant. The Rules of Court 2012 provides specific rules vis-a-vis a judgment in default of appearance depending on the type of claim. In any case, the requirement for a judgment in default of appearance is that:
- the plaintiff must produce a certificate of non-appearance; and
- an affidavit must be filed proving that the Writ of Summons was duly served on the defendant(s).
Notwithstanding the above requirements, Order 13 rule 7(2) of the Rules of Court 2012 provides that the Court may direct further requirements for it to be satisfied that the defendant is indeed in default of appearance.
What happens after the plaintiff has obtained a judgment in default of appearance?
The plaintiff who obtains a judgment in default of appearance may enforce that judgment. This can be done in various ways, for example a bankruptcy or winding-up action, garnishee proceedings, writ of seizure and sale etc., all of which may possibly subjects of its own article in the future.
However, it must be noted that the Rules of Court 2012 allows for a judgment in default of appearance obtained by the plaintiff to be set aside. The discretion to set aside a judgment in default of appearance rests with the court. Order 13 rule 18 Rules of Court 2012 reads as follows:
8 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.
The Rules of Court 2012 also prescribes that an application to set aside a judgment in default of appearance has to be made to the court and served on the plaintiff within 30 days after the receipt of the judgment in default of appearance on the defendant.