One fine day you were walkin’ down the street, minding your own business, when suddenly, a car hits you. As you lose consciousness, you see someone get out of the car that just hit you, and walk towards you. You wake up later in a hospital, miraculously only having suffered a broken leg. You’re thankful that you’re still alive, but you’re also boiling mad inside, because who swerves onto the sidewalk and hits a pedestrian? Of course, you wanna take the careless driver’s sorry butt to court. You do all the necessary things to start a civil trial, and lo and behold, the other party doesn’t seem to be interested in defending themselves in court at all. The defendant didn’t enter an appearance, which is lawyerspeak for basically responding to a civil suit.
[READ MORE: How do you even start suing someone in Malaysia?]
[READ MORE: How do personal injury claims work in Malaysia?]
So what happens if the other party in a civil suit doesn’t enter an appearance? A defendant (your opponent) who doesn’t enter an appearance when the plaintiff (you) has initiated legal action against them is kinda like not going for your own wedding ceremony. It’s something that’s important, and you should most probably at least enter an appearance. Now, what’s entering an appearance? We’ll have to talk about that before actually going into judgments in default (which is what happens if the defendant doesn’t enter an appearance).
Appearance in legal terms doesn’t mean what you see in the mirror
The idea is that you can’t just show up in court randomly to have the court hear your case, and that includes the defendant's side. A defendant who enters an appearance basically shows that he or she intends to defend themselves and submit to the jurisdiction of the court. It’s like saying “Aight, I’ll play ball according to the standard rules”. Order 12 Rule 1 of the Rules of Court 2012 provides the modes of entering an appearance.
- The defendant can enter an appearance and defend themselves either by a lawyer or in person
- A memorandum of appearance has to be completed and a copy of it is handed to the court
- If there is more than 1 defendant and they need to enter an appearance by the same lawyer and at the same time, only one memorandum of appearance is needed
A memorandum of appearance is basically a document that you need to fill up and it is a request to the court Registry to enter an appearance for a defendant (or multiple defendants). There’s a time limit for entering an appearance for the whole of Malaysia: 14 days. The only exception is: if the plaintiff and defendant are from East Malaysia and live in different Divisions or Residencies. The time limit is then 20 days.
If a defendant is late in entering appearance, the plaintiff has the option to apply for what is called a judgment in default of appearance. Judgment in default itself will be discussed below. The defendant has to apply for leave (permission) of court to defend themselves if the plaintiff has entered a judgment in default of appearance. If the defendant enters an appearance after the time limit but before the plaintiff enters a judgment, an application for leave is not necessary.
TL;DR: Entering an appearance is a procedure that the defendant has to go through to defend his case, and there’s a time limit to do so.
What is a judgment in default of appearance?
When a defendant fails to enter an appearance within the stipulated time period after service of writ by the plaintiff, the plaintiff is entitled to obtain a judgment in default of appearance, according to Order 13 rule 1 of the Rules of Court 2012. At the risk of extreme simplification, it’s basically a no-show and the plaintiff gets the win (tentatively). Not entering an appearance is not the only time where judgments in default can be obtained, but these other circumstances aren’t super relevant to our discussion at the moment.
So when a defendant fails to enter an appearance, the plaintiff may then “apply” for a couple of types of judgment in default of appearance. The type of judgment you’d wanna go for depends on the type of claim(s) you have.
- Interlocutory judgment in default of appearance for unliquidated damages and movable property. Unliquidated damages are a sum of money that cannot be determined by simple math (for example, pain and suffering). Movable property just means any property that can be moved from one place to another (for example, mobile phones, clothes).
- Final judgment in default of appearance for a claim for liquidated damages and for-costs, and possession of immovable property. Liquidated damages are a sum of money whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (for example, A will get RM 5,000 in case B breaches the contract). For-costs are the costs of going to court and hiring a lawyer, and immovable property is property that cannot be moved, like a house.
- Final and interlocutory judgment in default of appearance for mixed claims of (1) and (2).
What’s the difference between an interlocutory judgment and a final judgment in default of appearance? The difference ultimately comes down to the types of claims. Claims in interlocutory judgments require the court to assess the money for you, and claims in final judgments don’t require the court to assess the money because most of it is clear from the start.
Judgments in Default aren’t “invincible”
So, you’ve entered a judgment in default of appearance. Don’t be resting on your laurels though, because there are ways to set aside a judgment in default. The defendant can apply to set aside this judgment within 30 days of you serving the judgment on him (Order 42 rule 13) and if he is late, he can apply for an extension of time. The court will consider whether or not to grant him this extension based on several factors such as whether there was any delay in the defendant’s application, whether there were any irregularities in obtaining the judgment in default, and the merits of the case.
If the defendant fails to adhere to the time limit and fails to request an extension, you get to keep your judgment in default.
Aside from this time limit, the rules on how to set aside a judgment in default vary when there is a regular judgment in default and an irregular judgment in default.
A regular judgment in default is obtained by the plaintiff normally without any procedural errors.
An irregular judgment in default is obtained when there are errors in procedure in obtaining said judgment, for example, defects in plaintiff’s application for default judgment, or defects in the issuance of service of writ. Before going into the differences between setting aside regular and irregular judgments in default, the general rule comes first.
So on top of the time limit rule, the methods of setting aside irregular and regular judgments are:
- To set aside a regularly obtained judgment in default (all the procedures were complied with), the defendant has prove that there are merits to his case (basically that his defence is worth hearing).
- The defendant may apply to set aside the irregular judgment ex debitio justitiae (as a matter of right). Since irregular judgment have procedural errors, the defendant can say “How could I accept this judgment when it’s obtained wrongly?”.
The court has absolute discretion (they can choose to do it whenever) to set aside or change up the judgment in default if it thinks that it is just (as in justice), as provided in Order 13 rule 8 of the Rules of Court 2012. This position has been further solidified by the case of Tuan Haji Ahmad Abdul Rahman v Arab Malaysian Finance Bhd where the Federal Court held that the court has the power to set side or vary the judgment in default if it thinks that it’s more just to do so, after considering all the factors and circumstances of the case.
Judgments in Default aren’t do or die
This isn’t the entire story on judgments in default, but it should be enough to give you an idea of what happens if you wanna sue a person and they don’t enter an appearance in court. Pretty much every step of the way involves paperwork (very common in the legal profession). For the plaintiffs out there, you don’t automatically win the case if you enter a judgment in default of appearance, and for the defendants out there, if you are served with a judgment in default, don’t panic, it might look bad but there’s still a chance to turn things around, especially if you move fast.