Judgment in Default: Hearing the Case on the Merits

Typically, when entering judgment in default of appearance, judgment is allowed by the Court as a mere formality. However, there may be situations where the plaintiff will still wish for the case be heard on its merit even though the defendant is not present in court.

In the Singapore High Court decision of Singapore Telecommunications Ltd v APM Infotech Pte Ltd [2011] SGHC 147, the facts involved the Defendant from India which had been served but did not enter appearance within the Singapore jurisdiction.

The Plaintiff, instead of obtaining Judgment in Default, had argued that the Court had jurisdiction to hear the case on the merits (nowithstanding the absence of the foreign Defendant) in order to obtain Judgment. The reason for this is that Indian law required a foreign Judgment to be heard on its merits in order to be enforced in India.

The Court agreed that it had the inherent jurisdiction to do so and was referred to English authorities such as Berliner Bank AG v Karageorgis and another [1996] 1 Lloyd’s Rep 426 as applied in Habib Bank Ltd v Central Bank of Sudan (formerly known as Bank of Sudan) [2007] 1 WLR 470 and Trafigura Pte Ltd, Trafigura Beheer BV v Emirate General Petroleum Corporation [2010] EWHC 87 (Comm).

Although I am not aware of this point arising in Malaysia, this is something we can consider as well when advising on entering Judgment against a foreign Defendant and for purposes of the subsequent enforcement in that foreign country.

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