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"[11] The above dictum establishes firmly the conclusive nature and extent of a certificate of indebtedness. A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claim.•••[13] The certificate of indebtedness, exh … Continue reading Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685 FC →

“... Thus, in Fira Development Sdn Bhd v Goldwin Sdn Bhd, Lee Hun Hoe CJ (Borneo) (as he then was) held that a defence on the merits meant merely raising only an arguable or triable issue, not unlike any O 14 cases and that a judgment in default was not a judgment on the merits. … Continue reading Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Corp Bhd [1994] 1 MLJ 312 SC →

“[36] In the present case, the approach taken by both courts below was that posting of the writ by AR registered post was conclusive proof of service, thus leaving no room for the appellants to discharge their burden of proving that they did not receive the writ, in rebuttal of the presumption under s. 12 … Continue reading Goh Teng Whoo & Anor v. Ample Objectives Sdn Bhd [2021] 4 CLJ 348 FC →

"[6] … The said judge should, when considering such application, first identify whether the judgment in default is a regular or irregular judgment. It is well settled that if the judgment is irregular then the respondent is entitled to have the judgment set aside ex debitio justitiae. If it is regularly obtained, then the principle … Continue reading Mirra Sdn Bhd v The Ayer Molek Rubber Company Bhd [2008]3 CLJ 273 →

“[26] In the instant case the postal service was challenged. The defendant had then made an investigation with Pos Malaysia and their website had revealed that the plaintiff's letter had yet to be delivered to the defendant. Surely the defendant had proven non-delivery to her as required by s 12. The letter containing the JID … Continue reading Lau Pick Huong v Soh Huang Siah [2015] 7 MLJ 325 MT →

“The principle of setting aside a default judgment under O 13 r 8 has been well established and needs no detailed repetition. What is important to observe is that a default judgment is not a judgment on the merits. Accordingly, when such judgment is obtained irregularly, such irregularity would be a sufficient ground by itself … Continue reading Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565 MP →

… we also remind ourselves that where there is a conflict of evidence on affidavits, it would not be proper for us to believe one side and disbelieve the other. Such conflict should be resolved at the trial as it is not our function to try to resolve conflicts of evidence on affidavits at this … Continue reading Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Corp Bhd [1994] 1 MLJ 312 SC →

A defence on the merits means merely raising only an arguable or triable issue, eg contributory negligence in a running down case in White ~ Weston [1968] 2 QB 647. A judgment in default is not a judgment on the merits: L Oppenheim & Co v Mahomed Haneef [1922] 1 AC 482 Lai Yoke Ngan … Continue reading Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565 FC →

[32] Thus, if there is evidence that the defendant has not been served with the document, the presumption is rebutted and the court will make a finding that there has been no service of the document in an application for setting aside. It is anathema to the concept of justice and fair play that a defendant who has … Continue reading Goh Teng Whoo & Anor v. Ample Objectives Sdn Bhd [2021] 4 CLJ 348 FC →