For more information call us on +852 2179 7888

Malaysia Dispute Resolution

Default judgment—overview

Produced in partnership with Donovan & Ho

When default judgment will be ordered

The underlying purpose of default judgment is to compel due compliance by the parties to the proceedings with the Rules of
Court or the orders of court, failing which the defaulting party will have to bear certain legal sanctions such as claim being struck
out and dismissed or a default judgment entered against him or her.

A default judgment is not a judgment on merits. It is a result of a failure to follow any of the rules of procedure or orders of the
court. Accordingly, while a default judgment is not appealable, the court has power to set it aside or to vary it. Nonetheless, a
default judgment, unless set aside, is as enforceable as any other judgment on merits.
References:
Order 13, rule 8 of the Rules of Court 2012 (P.U.(A) 205/2012)
Generally, there are four types of default:

• failure to enter appearance

References:
Rules of Court 2012 (P.U.(A) 205/2012), O 13

• failure to file and serve a required pleading within the prescribed time
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19

• failure to appear at trial and

References:
Rules of Court 2012 (P.U.(A) 205/2012), O 35, r 1(2)

• failure to comply with orders of the court

References:
Malaysia Travel Bureau Sdn Bhd v Melia Majlis [2008] 8 MLJ 290
Paul Chew Sooi Him v Yeh Brothers Woodworks (M) Sdn Bhd [1994] MLJU 157

Procedure for default judgment

Judgment in default of appearance

A judgment in default of appearance may be obtained either by filing a notice of application, supported by an affidavit or by
request (where leave of court is not required).

The Rules of Court 2012 (P.U.(A) 205/2012) provides five types of claims where a judgment in default of appearance can be
entered without the leave of court:

• claim for liquidated demand

References:
Rules of Court 2012 (P.U.(A) 205/2012), O 35, r 1

• claim for unliquidated damages

References:
Rules of Court 2012 (P.U.(A) 205/2012), O 35, r 2

• claim in detinue
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 35, r 3

• claim for possession of immovable property and

 References:
Rules of Court 2012 (P.U.(A) 205/2012), O 35, r 4

• mixed claims consisting of one or more of the above types of claims only
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 35, r 5

In all other types of claim, the plaintiff cannot enter a default judgment against the defendant for failure to enter an appearance,
but must proceed with the action as if the defendant had entered an appearance.

Judgment in default of pleadings

A judgment in default of pleadings may be obtained either by filing a notice of application, supported by an affidavit or by request
(where leave of court is not required):

• default in service of statement of claim ie the defendant may apply to the court for an order to dismiss the action and
the court may by order dismiss the action or make such other order on such terms as it thinks just
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19, r 1

• default of defence ie claim for liquidated demand where the plaintiff may enter final judgment against the defendant for
a sum not exceeding that claimed by the writ and for costs
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19, r 2

• default of defence: claim for unliquidated damages where the plaintiff may enter interlocutory judgment against the
defendant for damages to be assessed and costs
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19, r 3

• default of defence ie claim in detinue where the plaintiff may enter interlocutory judgment against the defendant for
either:
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19, r 4

• the delivery of the property and costs or

• for the value of the property to be assessed and costs

• default of defence: claim for possession of immovable property where the plaintiff may enter judgment for possession
of immovable property and for costs, provided the plaintiff produces a certificate by his or her solicitor or an affidavit (if
he or she sues in person) that he or she is not claiming any relief in the action of the nature specified in Rules of Court
2012 (P.U.(A) 205/2012), O 83, r 1
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19, r 5

• default of defence: mixed claims where the plaintiff may enter judgment against the defendant in respect of any such
claim as he would be entitled to enter if that were the only claim made
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19, r 6

• default of defence ie other claims where there is a claim of a description not mentioned above and there is a default of
defence, the plaintiff may apply to court for judgment and on the hearing of the application the court shall give such
judgment as the plaintiff appears entitled to on his or her statement of claim
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 19, r 7

Judgment in default for non-compliance with other orders of court

As regards to default judgment entered for non-compliance with other orders of the court, there is actually no express provision
in the Rules of Court 2012 (P.U.(A) 205/2012). Therefore, the court must generally make a further, separate order authorising a
default judgment to be entered for non-compliance with the terms of conditions of the original or subsequent order. This order is
generally known as an ‘unless order’. It is the court’s power to make an order authorising a party to enter a default judgment
against the defaulting party conditionally upon failure or disobedience to comply with the terms or conditions specified in the
order. Where a party fails to comply with an ‘unless order’, default judgment should not be entered against that party unless the
default has been intention and contumelious.
References:
Re Jokai Tea Holdings [1993] 1 All ER 630
Setting aside judgment in default
A defendant against whom a default judgment has been entered, may apply to court to set aside the judgment without the need
to obtain leave. The application must be made within the prescribed time. In the case of an irregular default judgment, it can be
set aside ex debito justitiae (as of right). The defendant does not need to show a defence on merits. On the other hand, where
the judgment is regular, the court will only exercise its discretion to set aside the default judgment if the defendant can show
though affidavit evidence that there are merits to his or her defence.
References:
Rules of Court 2012 (P.U.(A) 205/2012), O 42, r 13
Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 MLJ 30
Yap Ke Huat v Pembangunan Warisan Murni Sejahtera Sdn Bhd [2008] 5 MLJ 112
Taisho Marine & Fire Insurance Co v Wong Poo Peng [1976] 1 MLJ 78
Tan Teng Siah Realty Sdn BHd v Island Oil Palm Plantations Sdn Bhd [1996] MLJU 602
Overviews

Maintained

Found in:
Malaysia Dispute Resolution

To view the full document, sign-in or register for a free trial.

Sign-inFree trial

About LexisNexis Terms & Conditions Privacy & Cookies Policy

Copyright © 2018 LexisNexis. All rights reserved.