Seterusnya dalam kes Chai Say Fah v Hartanah Aman Sdn Bhd [2015] 6 MLJ 277 Mahkamah Rayuan telah menggariskan elemen-elemen penting dalam permohonan untuk mengenepikan penghakiman ingkar: [6] The law requires that a plaintiff to be prepared to prove his case upon a balance of probabilities. Thus, it has been held by the Supreme Court in Fira Development Sdn Bhd v Goldwin Sdn Bhd [1989] 1 MLJ 40;[1989] 1 CLJ 1 SC that: Where judgment is entered on the failure of a defendant to take any of the procedural steps laid down under the Rules of the High Court 1980, the Court has an absolute discretion to set aside the judgment, if necessary, on terms and allow the case to be heard on the merits. Lord Atkin stated clearly the principles in which the Court should act in Evans v Bartlam [1937] AC 473 at 480 in these words: ... The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure. In the instant case, the learned Judge did not consider the judgment to be irregular. Mallal’s Supreme Court Practice, 2nd Ed, Vol I at p 84 explains the position where the judgment is regular thus: The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits, or for some very sufficient reason: Bank Bumiputra Malaysia Bhd v Majlis Amanah Ra’ayat [1978] 1 LNS 15; Farden v Richter [1889] 23 QBD 124. A defence on the merits means merely raising only an arguable or triable issue, e.g. contributory negligence in a running down case in White v Weston [1968] 2 QB 647. A judgment in default is not a judgment on the merits: L Oppenheim And Company v Mahomed Haneef [1922] 1 AC 482. As to delay there is no rigid rule that an applicant must satisfy Court that there is a reasonable explanation only when judgment was allowed to go by default. Obviously, the reason, if any, for allowing the judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising discretion. Clearly, the application should be made promptly and within a reasonable time. But the Court will in a fit case disregard lapse of time: Beale v Mac Gregor [1886]