AMBANK (M) BERHAD v 1. ) WRP ASIA PACIFIC SDN BHD 2. ) LEE SON HONG 3. ) WRP SPECIALTY PRODUCTS SDN BHD (PENERIMA DAN PENGURUS DILANTIK)

Case Significance

Illustrates the strict approach to setting aside a regularly entered judgment in default: without a timely application under Order 42 rule 13, an explanation for delay, and a draft defence disclosing a triable issue, the application will be dismissed in limine.

This High Court decision in the Commercial Division at Kuala Lumpur concerns an application by a corporate defendant to set aside a judgment in default of appearance in a banking suit. The plaintiff bank had entered an amended judgment in default against the third defendant, a company for which a receiver and manager had been appointed, after an earlier default judgment had been amended; both had been served on the third defendant. The third defendant did not deny — and its counsel expressly accepted at the hearing — that the judgment in default had been regularly entered, that the pleadings had been served, and that it ought to have entered its appearance within the stipulated time. That admission was decisive. Where a default judgment is regularly entered, the court's discretion to set it aside is engaged only if the applicant can show a defence on the merits raising a triable issue, and the application must be made in accordance with the mandatory time frame in Order 42 rule 13 of the Rules of Court 2012. Here the application had been filed beyond the 30-day period, with no application to abridge or extend time and no explanation offered for the delay, and no draft defence had been filed disclosing any bona fide or triable defence — the third defendant being a surety and also liable as a principal. The court held that the failure to comply with the mandatory time frame and to seek an extension was fatal, and dismissed the application in limine, ordering the third defendant to pay costs of RM5,000 to the plaintiff. Delivered by Mohd Arief Emran bin Arifin J, the judgment is a useful illustration of the strict approach to setting aside a regularly entered default judgment: without a timely application, an explanation for delay and a draft defence disclosing a triable issue, the application will fail at the threshold.