ENTRY OF APPEARANCE TO WRIT

APPEARANCE BY PARTICULAR PERSON BODY CORPORATE INTRODUCTION O. 12 r. 1 states when the defendant is served with the writ, he may unless he is a person under disability or a body corporate, enter an appearance and defend the action in person or by his solicitor. Once the writ has been served on the defendant and he is made aware that an action has been filed in court against him, he has to decide whether to defend the case or let it go in default. But if he wishes to contend that the claim against him cannot be maintain he may enter an appearance . An appearance simply means that the defendant indicates by notice to the court and the plaintiff that he wishes to defend the action. By doing so he is submitting to the jurisdiction of the court and any decision made he is bound to accept subject to appeal. EFFECT OF APPEARANCE (1) The appearance will prevent a judgement being entered against him in default of doing so. O. 13 (2) If the writ which was served on him is attached only with a concise statement of claim, the appearance serves as a notice to P that he requires a full statement of claim. EFFECT OF NON APPEARANCE (1) If the D fails to enter an appearance within the time limited for appearing, the P may be able to obtain judgement in default of appearance. O.13 (2) The D may succeed in a subsequent application to set aside the judgement O.13 r. 8 but he is subject to pay the costs if he was at fault. (3) Once judgement is entered, the D may only enter an appearance with the leave of the court. O.12 r. 5(1) (4) The D is not precluded from entering an appearance even after the prescribed period , but he is not entitle to serve a defense or do any other thing later than if he had appeared within that time, unless the court other wise orders. O. 12 r. 5 (2) TIME LIMIT FOR APPEARANCE The time limit for entering an appearance are as follows: (1) Peninsular Malaysia : O. 12 r. 4 (a) (a) 8 Days - if the writ for served within a local jurisdiction of the HC e.g. KL to KL or Pg to Pg. (b) 12 Days - if the writ is served outside local jurisdiction e.g. KL to Penang (2) East Malaysia : O. 12 r. 4 (b) (a) 10 Days if writ is served within the same Residency/Division (b) 20 Days if writ served on D not within the same Residency/Division from the place where the writ was issued. If the time limit specified in O. 12 r. 4 above expires, D can still enter appearance but with leave of court : O. 12 r.5 (3) Where a notice of the writ has been served out of the jurisdiction the period is limited to that indicated in the order of court authorizing such service. : O. 12 r. 4(c), O. 10 r. 2 (2) and O. 11 r. 4(3) MANNER OF ENTERING APPEARANCE & MEMORANDUM OF APPEARANCE In the HC process, the defendant may enter an appearance by completing the requisite documents (Form 15), and presenting them at, or sending them to, the registry. These documents consist of a memorandum of appearance and a copy. O. 12 r. 1 (3) The Memorandum of Appearance is defined as a request to the registry to enter an appearance for the defendant or defendants specified in the memorandum. O. 12 r. 2 (1) If there are 2 or more defendants, and they enter an appearance by the same solicitor, at the same time, only one set of the requisite documents need to be completed and delivered for those defendants. O. 12 r. 1 (4) The memorandum of appearance must be in Form 15 and both it and the copy must be signed by the solicitor who represents the defendant or, if the defendant appears in person, by the defendant himself. O. 12 r.2 (2). The document must specify: (a) if defendant appearing in person, the address of his residence and if his residence is not within the jurisdiction or if he has no residence, the address of a place within jurisdiction at or to which documents for him may be delivered or sent : O. 12 r. 2 (3) (a) and (b) if defendant appearing by a solicitor a business address of his solicitor within the jurisdiction. O. 12 r. 2 (3) (b) If the court satisfied that the address in the memorandum of appearance is not genuine it may on application by P , set aside the appearance. O.12 r. 2 (4) 1. Once P serves a writ on the D, the D must enter appearance and defend the action in person or by solicitor. O. 12 r. 1(1) 2. If the D is a person under disability, he must act by a guardian ad litem. The guardian ad litem can only act through a solicitor. O.76 r.2 (2). A person under disability means a person who is an infant or a patient. A patient means a mentally disordered person within the meaning of the Mental Disorders Ord 1952. O. 76 r. 1
* When an infant enters appearance through guardian ad litem, and he becomes of age at any stage of the proceeding, he must file a notice of his coming of age and state in that notice that he adopts the appearance entered on his behalf. He can continues with the same solicitor or choose a different one in which he must serve a notice of change of solicitor to P. * if after a proceeding have begun, the defendant becomes patient ( unsound mind), an application must be made to the court for the appointment of guardian ad litem.

CONDITIONAL AND UNCONDITIONAL APPEARANCE If the defendant does not intend to raise preliminary objections such as irregularity in the form or service of the writ or to the jurisdiction of the court, he will enter an unconditional appearance. The effect of this is to waive irregularities and to submit to the jurisdiction of the court. Where the defendant does intend to raise such an objection, he may , with the leave of the court, enter a conditional appearance in Form 16 to the action. O.12 r. 6(1) USA v Yang Soon ee [1950] MLJ 102
The term conditional appearance means an appearance in qualified terms , reserving to the appearing defendant the right to apply to the court to set aside the writ , or service thereof , for an alleged informality or irregularity which renders either the writ or service invalid.

3. A body corporate may only enter an appearance and defend the action by a solicitor ,except provided otherwise by any written law. O. 12 r.1 (2) 4. The D is not entitled to take any steps in an action unless he enter appearance. H/ever in the following 3 situation he need not have to enter appearance: (a) an appearance is need not be entered where the claim is for a debt or liquidated demand only, and the D pays the amount due and costs within the time limited for appearing. O.6 r.2 (1) (b) (b) where judgement is entered in default of appearance, the court may set aside in which case the action proceeds. O.13 r. 8 (c) a person who is served with notice, apply to the court to discharge, vary or add to the judgement w/out entering an appearance. O. 44 r. 3 (5) 5. Appearance by other particular Person: (a) A person who is not a party to the action, but a counterclaim has been served : O. 15 r. 3 (4) (b) A person served with a third party notice: O. 16 r 3 (3) (c) A defendant who is subsequently added to the action: O. 16 r. 8(3) 6. Appearance by Partnership Firm. (a) Where a proceeding is brought against a firm or partnership. Since a partnership is not a separate legal entity, it cannot appear in its name. Appearance is entered by the partners individually. O. 77 r. 4 (1) (b) If the writ is served on a person as having the control or management of the partnership business , that person may not enter an appearance unless he is a partner. O. 77 r. 4(5) (c) Appearance by the firm is constituted if one partner, who describes himself as a partner , enters an appearance. Robinson v Ward & Son (1892). (d) If a person who is served as a partner, denies that he is a partner or liable as a partner at the material time, he may enter an appearance under protest by stating his denial in the memorandum of appearance Such appearance nevertheless constitutes an appearance for the firm untill it is set aside. O. 77 r. 4 (2) (e) After the appearance under protest is entered , the P either apply to set aside on the bases that the person serve as a partner or liable as such at that material time, or leave it to the court to dealt it at the subsequent proceedings. O. 77 r. 4(3)(a) (f) The D at a proper time serve a defence on the P denying his own liability as a partner, or the liability of the firm or both his and the firm`s liability. O. 77 r. 4 (3)(b) (g) Where P or D make such application, the court has discretion to order that the issue of the defendant or his firm`s liability be tried in such a manner and at such a time as the court directs. O. 77 r. 4(4).

PROCEDURE The application to enter a conditional appearance is made by summon ex parte. O. 12 r. 7(2) The defendant may mount a challenge either before entering an appearance or , if he has entered a conditional appearance, within 14 days of doing so, by applying to the court for an order to set aside the writ or service of the writ, or the notice of the writ. O.12 r. 7(1) Tye Chwee Hoon v Cayman Commodities (M) Sdn. Bhd. & Anor 1989)2 MLJ317.
A Defendant who enters a conditional appearance is not obliged to file a defence while there is a pending application to strike out the plaintiffs writ or statement of claim :

Maritime (Pte) Ltd. v ETPM SA [1988] 2 MLJ 289

This is a Spore case which provides a useful example of the procedure on this issue. This an action by the P against the D for a debt. Service of the writ was effected on the agents of the D under O. 10 r. 2. The D entered a conditional appearance on the basis that the service was irregular becox leave of the court had not been obtained as required by the rule. Thereafter, the Ds applied for an order to set aside the writ and its service. Two days later the Ps filed an application asking, inter alia, for an order that the Ps service of the writ on the Ds be deemed good service. The HC upheld the assistance registrars decision to cure the irregularity under O. 2 r. 1. (The failure to obtained leave) by validating the service of the writ and thereby deeming it as good service.

Effect of a conditional appearance No further action on the case be taken by the P until the decision of the court, unless the D fails to apply within specified time, in which the conditional appearance stands as unconditional . If the court dismisses the applications to set aside the writ or its service, the application proceeds as if the D has entered an unconditional appearance. The AVRO International AVRO International (Owners) v Arabian Marine Bunkers Sales Co. Ltd. & Anor [1988]1 MLJ.
The effect of entering an unconditional appearance was two fold: (a) it waived any irregularity of the writ of it`s service. (b) The D was considered to have submitted to the jurisdiction of the court. A D who wishes to set aside the writ or its service for non-compliance of the rules of procedures or who wishes to challenge the jurisdiction of the court had to therefore enter a conditional appearance. In this case the appellants` unconditional appearance was fatal to their right to object to the jurisdiction.