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Defendant must enter into appearance to show his intention to defend and submission to the
courts jurisdiction.
Modes of entering an appearance are as contained in Form 15 or Form 16 of the RHC.
In the High Court, the Defendant may enter an appearance by completing the requisite
documents (Memorandum of Appearance) and presenting them at the registry.
The MOA is the request to the registry to enter an appearance for the Defendant specified in
the memorandum MOA must be in Form 15 and shall be signed by the solicitor
representing the Defendant or if unrepresented, the Defendant must sign it personally O.12
r 2 RHC
Form 15- unconditional appearance:
-
Waiver of irregularity
Defendant does not intend to raise preliminary objections such as irregularities in the
form or service of the writ or to the jurisdiction of the court.
Appearance under protest- e.g. Setting aside the writ (O.12 r.7 RHC)
Defendant must apply to the court for an order to set aside the writ or service of the
writ or notice or declaring that the writ or notice of the writ has not been duly served
to him or discharging any order giving leave to serve the notice on him out of
jurisdiction
Procedure:
Ex-
Parte application
ii)
iii)
iv)
Registrar straight away hear the application and make judgment provided
that the Plaintiff shows Bona Fide intention
v)
Order given by the Registrar must specify the time in which the application to be set
aside Registrar must fixed the date
Local jurisdiction of the High Court of Malaya at Kuala Lumpur means the
territory of Kuala Lumpur.
O.12 r.5 (2) RHC- D not precluded from entering an appearance outside the time
limit, but where the defendant enters appearance outside the period, he must obtain
the court orders to do so.
5 categories of claims
The P need not enter into JID after the expiration of the time limit for appearancemay proceed with the action as if the D has entered appearance.
JID of Pleadings
-
Matter falls within O.19 r 7 and the P did not apply for leave of
court. JID was deemed to be irregular- O.2 r. 1 does not apply
Rule 56 of the Legal Profession (Practice and Etiquette) Rules 1978- 7 days notice to
be given to the Ds solicitor on the intention to enter JID of appearance.
it is clear law that the court still retains a discretion to set aside
an irregular judgment if no one has suffered prejudice by
reason of delay, or where such prejudice has been sustained, it
can be made by an appropriate order as to costs
d) Regular Judgment
-
Defendants affidavit must show evidence of prima facie defence/ defence on the
merits
e) Irregular judgment
-
Plaintiff is required to pay all expenses related to the application to set aside JID by
the Defendant.
O.73 r.7 RHC & O.43 r.6 (1) SCR- No judgment in default of appearance or of
pleading shall be entered against the government except with leave of court
Defendant may apply to set aside and the Plaintiff may apply to amend the judgment
JID of defence for an amount in excess of what has been dueCourt has jurisdiction to amend it rather than to set it aside.