Professional Documents
Culture Documents
1. INTRODUCTION
Because theres a possibility of delay in civil suit and it involves a
long process, sometimes it is unfair for the P if a D does not have a
good defence.
To overcome the problem of delay, the Rules has a device of
procedure where P can get his judgment quickly without going for a
trial.
But this procedure only available if P has a clear cut claim or
unanswerable claim.
This procedure is called SUMMARY JUDGMENT.
Governed under O14 of RoC.
(ii)
(iii)
O73, r5(1)
o Where government is the D, one cannot apply for SJ against
them.
o If apply for SJ, the application will be dismissed with cost.
(iv)
4. PROCEDURE
(i)
Preliminary Requirements
o Before a P can apply for SJ, he has to satisfy some preliminary
requirements.
o There are 3 preliminary requirements: [O14,r1(1)]
1) P must have issued the writ
2) P must have served the writ
3) D must have entered an appearance
o Those matters will qualify that P can apply for SJ.
o P must apply for SJ by notice of application (Form 37)
supported by affidavit (Form 13) by setting out:
Verifying the facts on which the claim arises
The deponents belief that there is no defence to the
claim or except to quantum of damages claimed
CASE: National Company for Foreign Trade v Kayu
Raya Sdn Bhd
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Time
o Once P qualifies to apply for SJ, the P must apply
promptly/quickly.
o If P delays in applying for SJ, the delay may be a bar to his
application.
o The court in cases has device a rule where a P must apply for
SJ before D files his defence.
o Then the Court will decide whether Ps reasons are acceptable
or not.
Notice of application
o O14, r2(1) and O32, r1
o Notice of application supported by affidavit.
(iv)
Service
o There 2 things which are important: 1) Mode of service; 2)
Time limit
1) Mode of service
14 does not specify the mode of service for the mode of
application and affidavit.
Where the specific rule does not specify the mode of
service, the service will be governed by general order of
application.
O62, r6 (complies with either one):
i.
The document may be served by leaving it at Ds
proper address
ii.
By prepaid registered post to Ds proper address
(NOT AR)
iii.
Serving by ac which complies with O62,r6(3)
iv.
In such manner as agreed between the parties
v.
In such manner as the Court mat direct
2) Time Limit
O14, r2 (3):
Must be served within 14 days from the date of receipt of
the sealed copy by the P.
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(v)
If the P fails to comply with the time limit, then the service
will become as a short-service and the D is entitled to
raise it as a technical objection.
Affidavit
o Every application for SJ must be supported by affidavit.
o Affidavit is the heart/the core of every application.
o Affidavit must comply with O14,r2 (1):
Must be in Form 13 where it contains 2 requirements:
1) The affidavit must state precisely the facts of Ps
claim
2) The affidavit must contain a statement where P
believes that the D has no defence to the Ps claim.
o If these 2 requirements are not satisfied, then the affidavit
would become a defective affidavit and D can raise it as a
technical objection.
o If D raises it as a technical objection where the affidavit is
defective, the Court would have 2 possible orders:
1) The Court may dismiss the application for SJ with cost
CASE: Chai Cheo Kam v Hua Joo Development Sdn
Bhd
The manner in which an application under O14 must be
made is prescribed under r 2(1). One of the mandatory
requirements that an affidavit in an O 14 application must
satisfy is that it must verify the facts on which the claim
or part of a claim to which the application relates is
based.
By way of comparison between para 2 of the affidavit and
para 1 of Form 18 of the Rules of the High Court 1980, the
plaintiff has not sufficiently complied with Form 18 as to
the verification of facts on which the claim or part of a
claim to which the application relates is based.
The plaintiff's application for summary judgment O 14 of
the RHC was therefore deficient for want of mandatory
compliance with r 2(1)
2) The Court may adjourn the proceeding for the P to serve
a fresh affidavit which complies with O14, r2 (1)
5. HEARING OF APPLICATION
TECHNICAL OBJECTION
The 1st thing that may happen before a hearing is that the D may
raise technical objections which are:
(i) The Ps claim is excluded by 14, r1 (2)
o Where it involves liable, slander etc. or the Ps claim falls
within special procedure or Ps claim is against the
government.
(iv)
The D claims there has been a defective affidavit
1. The application does not comply with O14, r2 (1)
(v) The D claims there has been a defective Statement of Claim
2. Sometimes at O14 hearing, the D may raise an objection
that the Ps SOC is defective. Ex: it does not disclose cause
of action.
3. The Court has discretion and there are 2 options that they
Court may order:
(vi)
Except (i) and (vi), if they are raised by the D, it is merely a device
to delay some times.
In other words, the matters can be cured and it does not allow the D
to escape for SJ.
If (i) and (vi) are raised and successful, the case will go for trial and
the D will escape SJ.
TRIABLE ISSUE
If the D wants to escape SJ, he must show that there is a TRIABLE
ISSUES.
If D does so, the case will proceed for a trial.
O14, r3: Triable issues is basically issues or question in issues which
ought to be tried. It is issues which can be raised by the D and can
only be reasoned at trial.
CASE: Appaduray v Ananda
1. The case involves a boundary dispute.
2. The P alleged that the D has encroached onto his land, sued the
D and then applied for SJ.
3. The P relied on the surveyors report which shows that brick wall
has encroached into the Ps land.
4. The D questioned and disputed to the correctness and accuracy
of the surveyors report and claimed that some of the original
boundary stones have been removed and replaced with the new
ones.
O14, r4 (1)
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2. If the set off was NOT KNOWN or COULD NOT HAVE BEEN
ANTICIPATED by the P, the Court will grant unconditional
leave to defend with costs in the cause.
Because a set off is a DEFENCE. As the D has a
defence, the application for SJ should have not
proceed.
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Q: If D is unable to raise a triable issue or set off, does the court still has a
discretion to grant to D an unconditionally defence?
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CASE:
Alliance
(Malaya)
Engineering
v
San
Development Sdn Bhd
1. The app applied for the defence to be struck out on the
grounds that the defence disclosed no reasonable
defence and that the defence was frivolous and
vexatious. This application was dismissed.
2. The app then applied again for SJ against the resp but
the learned trial judge came to the conclusion that there
were triable issues so as to entitle the resp to
unconditional leave to defend and he dismissed the
application. The appellants appealed to the Federal
Court.
Held: allowing the appeal.
In this case the defence put up by the resp was a sham
defence and there was very little substance in the resps
claim to a right of set-off and counter-claim.
The learned trial judge should have granted the resp
leave to defend conditional upon their paying into court
the amount of the applicants' claim.
CASE: QBE Supreme Insurance Bhd v Syarikat
Chemas
Before the learned judge ordered D be given conditional
leave to defend, he must be satisfied that there was no real
substantial question to be tried or that there is no dispute
as to facts of law which raises a reasonable doubt that the
P is entitled to judgment.
Malaya
Southern
Cross
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In this case, the Court held that there was no triable issue
but the case was simply a case of construction of certain
documents which passed between the parties.
Per Raja Azlan Shah J.: "It is, I think, right that an order
under Order 14 should be made only if the court thinks it is
a plain case and ought not to go to trial. If one simply has a
short matter of construction with a few documents, the
court, on summary application, should decide what in its
judgment is the true construction. There should be no
reason to go formally to trial where no further facts could
emerge which would throw any light upon the letters that
have to be construed."
* A case is suitable for SJ of the case involve a short matter
of construction involving few documents
CASE: Fadzil v Universiti Teknologi Malaysia
(Construction on Statute)
1. The app was dismissed as an Assistant Lecturer by the
University.
2. The app filed a specially indorsed writ for a declaration
that the purported dismissal by the respondents
was ultra vires, illegal and void. He then applied for
summary judgment. This application was dismissed by
the High Court and he appealed to the Federal Court.
Held: applies the same principle from Esso Standard
In an Order 14 case, where it turned on the construction
of a few documents and the court was only concerned
with what was the true construction, there could be no
reason to go formally to trial where no further facts
could emerge which would throw light on the documents
that had to be construed
On the view taken by the court as to the construction of
the University and University Colleges Act, 1971 and the
Constitution of the University, the University had a
hopeless case and the application for summary
judgment should be granted, as no useful purpose could
be served by going formally to trial.
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O14, r11 states that what the D can do if SJ is entered against him in
default.
O14, r11: Any judgment given against a D who does not appear at
the hearing of an application under rule 1 or 5 may be set aside or
varied by the Court on such terms as it thinks just.
9. APPEALS
Stages of appeals
1. Senior Assistant Registrar will hear SJ application.
2. If theres appeal, the judge in chamber will hear the appeal by
way of re-hearing in which the judge will hear the whole
application again (O56)
3. If theres appeal, the COA will hear it (Sec 68 of CJA)
4. If theres appeal, the FC will hear it (Sec 96 of CJA)
Where the matter is decided on matter of facts/evidence, the higher
courts will unlikely interfere.
CASE: UMBC Bhd v Pembinaan KSY Sdn Bhd
The appellate court should not regard the appeal as
reviewing the exercise of the judge's discretion but should
approach the appeal as a rehearing.
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