Civil Procedure

CHAPTER 1 INTRODUCTION
1. SCOPE, PURPOSE AND SOURCES
2. PRELIMINARY MATTERS

a. Court
a. Appellate Court
i. Federal Court appellate only on point of law
ii. Court of Appeal appellate facts and point of law
b. Court of Commencemnt Cum Appellate Court
i. High Court
1. First instance court unlimited jurisdiction
2. Appellate court
c. Court of Commencement
i. Session Court
1. max 250k except
a. motor vehicle accident
b. landlord and tenant
c. distress action
ii. Magistrate Court
1. Max 25k
2. Small claim 5k.

b. Litigation Process Mode of Commencing an Action

a. Originating Summon
i. No dispute of fact
1. Dispute of law only or interpretation of written instrument or statutory provision, or
required under any written law.
ii. Faster, simple, no pleadings.
iii. Can be convert into writ
iv.
b. Writ of Summon
i. Substantial Dispute of fact
1. Contract breach of duty
2. Tort fraud, personal injury, damage to property.
ii. Writ deemed issued when sighed and sealed and valid for 6 months only.
1. Can apply for extension but must prove.

c. Sources and Civil Procedure

a. 5 Statutes
i. Court of Judicature Act 1964
ii. Subordinate Courts Act 1948
iii. Limitation Act 1953
iv. Civil Law Act 1956
b. 4 Rules of Procedure
i. Old
1. Rules of the High Court 1980
2. Subordinate Courts Rules 1980
ii. New
1. Rules of Court 2012
2. Rules of Court of Appeal 1994
3. Rule of Federal Court 1995
c. Authority of Rules of Court 2012
i. S4: Subordinate Court Rules Act 1955
ii. S16 Court of judicature act 1964
1. Both provides that rule of court can be made generally for regulating and prescribing
procedure and practice to be followed in sub ct and hg ct or for any purpose which rules of
court may be made under any written law.
iii. ROC has force of statute only in matter of procedure. ROC does not confer new jurisdiction or create
or alter substantive right - R v Inland Reveneue Commissioners, Ex P Federatin of Self Employed
and Small Busineses ltd 1981 lord diplock
iv. British South Africa v Campania De Mozambique 1893 Lord Herschell rules are rules of
procedures only, and not intended to affect the rights of parties.
d. Case Law
e. Practice Notes/ Directions [ not law- but a must comply regulations]
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i. Practice guide issue by court officials (administrative) to smoothen procedures if there is a loophole
ii. Ie:- O92 R3B RHC chief judge after consulting CJ may issue practice direction as maybe
necessary for giving better effect to RHC and SCR
iii. No force of law
1. Jayasankaran v PP 1983 FC held a practice not is only a direction for administrative
purpose and cannot be a rule of law.
2. c/f Megat Najmuddin Bin Dato Ser (Dr) Megat Khas v Bank Bumiputra (M) Bhd
2002
a. Steve Shim JFC practice directions provide guidelines for more effective
implementation of rule of court. Its clarify/ highlight/ modify such rules but cannot
supersede from statutory court rules or else negation of Parliament.
b. If practice direction conflict with statutory rules, statutory prevails.
c. Once practice directions legally issued, they must be complied with.

d. Purpose of Civil Procedure

a. To ensure PT claim and Def Defence is settled orderly, just and fair manner
b. Boustead Trading (1985) SB v Arab Malaysian Merchant Bank Bhd 1995 FC Held
i. justice should be the overriding consideration. The court exists to do justice by merit of case and
justice shall be overriding consideration.
ii. Rules of court and practice is to facilitate the attainment of justice, not obstruction.
c. Dato Wong Gek Meng v Pathmanathan 1998
i. adherence to forms and rules is to ensure speedy ad efficient administration of justice.
ii. Technical objection must be viewed prima facie as non-compliance with rules and defaulter must pay
dearly for it. But on the contrary, administration of justice would be curtailed if the rules embodied in
the RHC are not followed.
iii. As a code of procedure, RHC should be strictly followed to the latter.

e. Adversarial System - Malaysia practice adversarial system.

a. It is the partys legal advisers play the leading role in pleading clients case.
b. Judge plays passive role as judges does not give directions as to how solicitors conduct their case.
c. The court role is to decide cases on merits based on evidence.

f. Technical Objections
a. Can raise technical objection if default of rule of procedure.
b. Before raising a preliminary objection, party must give prior notice of preliminary to avoid trial by ambush .
Failure would amount to waiver of party right to raise objection
i. Bukit Melita SB v Lam Geok Hee 1997 failure to give written notice of preliminary objection
1. held it is trite law must give written notice. Failure would amount to waiver of party right
to raise objection
2. affirm in case
a. Public Bank Bhd v Berjaya Housing Development SB 1985 [mohd Hishamudin
Bin Mohd Yunus JC)
b. Jasebena SB v Beh Heng Poo & Anor 1985 [Edgar Joseph Jr J)
ii. Ooi Chew Seng v Ultratech SB 1997 preliminary objection not served with seal copy of notice of
appeal in contravention of O56 R1(3) RHC (must serve as early as possible) but was served one day
before hearing by fax.
1. Held - prior notice are requirement before preliminary objection is raised. But according to
the case, The procedural requirement of serving notice at earliest possible satisfied.

c. Rationale of giving prior notice

i. Promote good etiquette amongst members of the bar
ii. Remove element of surprise
iii. Parties given equal opportunities to prepare submission
iv. Failure to do so would amount to waiver of party right to raise objection [waiver in nature of
estoppel Wong Chor San v Chop Yee Kuan 1957]

d. Bar Council Ruling 2008

i. 11.04 Notice of Preliminary Notice
1. Preliminary objection notice must be in writing
2. served not less than 4 working days before hearing/ earliest possible
3. Notice shall consist all details:
a. Nature of proposed preliminary objection
b. List of authorities rely on
c. Proposed relief by solicitor

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4. Only in exceptional circumstances can raise preliminary objection during hearing without
giving written notice.
a. However other party can request for adjournment and party raised PO cannot
object.
ii. 11.05 Exchange of Legal authorities
1. Solicitor shall by written notice exchange with other solicitors list of all authorities with
citation that they proposed to rely upon during trial.
2. Should serve at least 48 hours prior to trial or hearing.
3. It is better for both solicitors to an agreed or joint bundle of authorities.
4. But nothing can stop a solicitor to provide supplementary list of authorities (which not in
previous bundles) to present to court.
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2. PRELIMINARY MATTERS

1. Cause of Action [COA]

a. What is cause of action?
i. Lim Kean v Choon Khoon 1970 - a person who can sue and another can be sued when all material
facts established a ground to succeed.
ii. Cooke v Gill 1873 define cause of action every fact which is material to be proved to entitle
PT to succeed
1. approved in Read v Brown 1889 include ever facts necessary for PT to prove to support
his right to judgment of the Court
b. Why is important to establish COA?
i. Cause of action determines form of proceedings to be taken in court
ii. Determines the remedy granted by court.
c. When to establish?
i. Simetech(M) SB v Yeoh Cheng Liam Construction Bhd 1992 held - cause of action must arise
before a writ is issued and not allow of amendments to include new cause of action which arise
after the writ.
d. Cases
i. Taib Bin Awang v Mohd Bin Abdullah 1983 PT convicted in kadi court & appeal. He commence
an action for malicious prosecution but failed because cause of action incomplete since the
conviction was still pending appeal. It would be complete if only appeal ended in his favour and he
then sued.
ii. Lim Kim Swee v Tan Meng Seng 1960 - PT buy land from Def & promise to discharge Def debt to
C. Pt commenced proceeding for specific performance for the contract. But PT only discharge Def
debt after issuance of Writ. held no action because PT only discharge the debt so that the land
would be free for def to transfer.
iii. If repayment of debt in 10 instalment but later 2 instalment default. Shall PT wait? Provided PT
inserted a clause in case of default, the remaining instalment become immediately due if there
is no such clause, the PT will have no cause of action except for the 2 instalment.
1. Sio Koon Lin v S.B. Mehra 1981 instalment case but did not have default clause - FC
held no cause of action before due date. Must wait till each instalment date due only can
sue.
e. Breach of Statutory Duty
i. Hu Sepang v Keong On Eng 1991 held to establish civil liability for breach of statutory duty,
pt must show all 4 :-
1. The injury suffered must within ambit of statute;
2. The statutory duty imposes liability to civil action:
3. The statutory duty not fulfilled: and
4.
ii. Asia Pacific Land Bhd & 5 Ors v Datuk Bandar Kuala Lumpur 2006
1. The injury suffered must within ambit of statute;
a. Claimant must show damage suffered within the ambit of statute
i. the type of damages that legislation intended to prevent
ii. Claimant belonged to category of person that statute intended to protect:
b. not sufficient simply prove that the loss would not have occurred if def had
complied with the terms of statute. This rule is similar to rule of remoteness of
damages.
2. Breach of duty has caused his injury
a. careless performance not a cause of action for breach of statutory duty except
there is:-
b. right of action for breach of statutory duty simpliciter; or
c. common law duty of care in negligence
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Civil Procedure

2. LIMITATION [Time Barred]

Limitation start to run when there is complete cause of action. [when all material facts sufficient to establish a cause of
action]
Credit Co (M) Bhd v Fong Tak Sin 1991
i. limitation law is to prevent PT sleeping on their action; and
ii. to ensure a definite END to litigation. This follow the maxim interet reipublicae ut si finis litium
[in the interest of state there must be an end to litigation]
Statutes provide time limitation:- [6 act]
i. Limitation Act 1953
ii. Public Authorities Protection Act 1948
iii. Railway Act 1991
iv. Civil Law Act 1956
v. Sabah & Sarawak has own limitation act
1. [Sabah] Limitation Ordinace (Cap 72)
2. [Sarawak] Limitation Ordinance (Cap 49)

a. Limitation Act 1953

i. Action on Contract or Tort S6(1) LA 1953
a.) Contact 6 years from date of breach of contract
b.) Tort 6 years from date of damage occurs
1. Pirelli Cable Works v Oscar 1983 held cause of action accrued when the first crack
occurred and not when could diligently discovered.
a. Cartledge v Jopling 1963 disease which slowly damage his health after 6 years. PT
only knew of the damage after 6 Years. Time barred.
2. Credit Co (M) Bhd v Fong Tak Sin 1991 held time begins to run from date of damage
although PT ignorant of defendants identity.
ii. Action upon any judgment
a.) 12 years from date where judgment become enforceable S9(1) LA 1953
iii. Action to recover land
a.) 12 years from date where right of action accrued S9(1) LA 1953
b.) Munah v Fatimah 1968 PT action under contract of sale 19 yrs ago which she paid but not
transferred. Held since she was in occupation and had paid the price, vendor held it on bare trust basis.
c.) Peng Bee SB v Teoh Liang The & 6 Ors 2000 failed to deliver VP under SPA in 1982 & action
commenced in 1995. COA held action statutory barred. [case differ from Munah which is
voluntary not transferred ]
d.) Masri v Mesah 1971 buy in 1947, but vendor failed to transfer. 30 years lapse. FC held
1. time begins to run from date of any infringement or threat of infringement of pt rights under
SPA.
2. action to recover land include:-
a. Action for possession purchase price paid but refused to give possession.
b. Ownership BPP paid but seller did not transfer land
c. Specific Performance vendor sold land but subsequently refused to proceed.
iv. Action to Recover Rent
a.) 6 Years from arrears became due S20 LA 1953
v. Action to Recover Principal Secured by a charge or to enforce such charge
a.) 12 years from date when right to receive the money accrued S21(1) LA 1953
vi. Fraudulent breach of trust or recovery of trust property or proceed thereof in possession of trustees
a.) no limitation: S22(1) LA 1953
1. Palaniappa Chetitiar v Lakshamanan Chettiar 1983 no limitation if action by beneficiary to
recover trust property under S22(1) LA 1953.
2. Action based on breaches of trust other than (6) above: 6 years from date on which the right of
action accrued: S22(2) LA 1953
vii. Action of any claim to the estate of deceased or any share or interest therein
a.) (whether under a will or intestacy) 12 years from the date when the right to receive the share or interest
accrued S23 LA 1953
viii. Set off and counterclaim
a.) it is separate action and deemed to have commenced on same date as the action which set-off or
counterclaim pleaded. S31 LA 1953
ix. Special Limitation periods:-
a.) Recover penalty or forfeiture
1. 1year S6(4) LA 1953
b.) Set aside sale to recover money (revenue) due to govt
1. 1 year after sale S8 LA 1953

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1) Extension of Limitation period

a.) disability - S24(1) LA 1953
i. 6 years from date he ceased to be disability even limitation expired
ii. time start run/ time when ceased to be disability:-
1. Minor :-
a. ceased to be disability - reaches 18 yrs or dies, whichever come first.
2. unsound mind:-
a. He gets a certificate of sanity: ie: he becomes sane;
b. Dies; or
c. A committee has been appointed to look after his affairs
2) Fresh Accrual of Action on acknowledgement:
a. S26 LA - 3 situation for fresh accrual of action
a. Recovery of land - the person in possession acknowledges the title of the person:
i. The right is deemed to have fresh accrued on and not before the acknowledgment.
b. enforce a charge and chargee makes payment.
i. The right is deemed to have accrued on an not before the date of the last payment.
c. To recover debt or liquidated pecuniary claim, or claim to share or interest of deceased estate
i. The person acknowledges the claim or makes any payment, the right deemed to have
fresh accrued and not before the date of acknowledgement
ii. Sim Siok Eng v Kong Ming Bank Bhd 1980:- FC held
1. when payment of the interest or principal is made by debtor, the limitation period
runs from time of latest/last payment and not the date of loan.
b. S.27 LA - Acknowledgment must in writing and signed or by making part payment
b. Postponement of Limitation
a.) Fraud or Mistake: S29 LA 3 grounds [limitation begins to run when PT discovered the fraud or
mistake, as the case may be, or could with reasonable diligence have discovered it.
1. 3 Grounds
a. action is based on fraud by def or his agent; or
b. right of action is concealed by fraud; or
c. action is for relief from consequence of mistake.
2. S29 does not enable action be brought for Recovery, enforcement of charge or set aside any
transaction affecting any property:-
a. In fraud cases
i. has been purchase for valuable consideration
ii. by a person who was not a party to the fraud; and
iii. did not at the time of purchase know or have reason to believe that any fraud
had been committed; or
b. In mistake cases,
i. has purchase for valuable consideration,
ii. did not know or have reason to believe that the mistake.
c. Philips-Hinggins v Harper 1954 - Case - Pt sue for underpaid of her share of profit after
limitation had expired on ground of mistake.
i. Held mistake not apply where right of action had been concealed from pt by
mistake. It only applied if mistake had been concealed by fraud
ii. S29 does not apply to bona fide purchaser who has provided valuable
consideration and is not a party or does not know of the fraud or mistake.
d. Credit Corporation (M) Bhd v Fong Tak Sin 1991 held failure to add a party
within limitation period is not under S29
e. Standard of proof standard of proof required is lower if right of action is concealed
by fraud only unconscionable conduct suffices
i. Sivaperan v Lim Yoke Kong 1992 PT cannot trace def insurer until after
limitation due to failure of insurer to respond to motor insurance bereau circular.
Insurer raised limitation as defence.
1. Held insurer had fraudulently concealed pt right of action. This fraud
was not only a common law fraud or deceit but also an
unconscionable conduct in view of their statutory duty to satisfy any
judgment taken against the insured. [no time barred]
ii. Cave v Robinson Jarvis & Rolf 2002 - held
1. to rely on ground of concealment, it is sufficient to establish
a. intention or omission to commit an act which involved
breach of duty which will unlikely to be discovered for
some time,
b. even though def has no knowledge or intention of
concealment.
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3. Public Authorities Protection Act 1948

a. S2 PAPA must commence in 36 months/ 3 years for action against public authority in discharging its
public duty
i. Lee Hock Ning v Govt of Msia 1972 Pt did building work for govt and claimed balance sum
after 36 months.
1. FC held non payment of monies not a public duty under S2 as there was breach of
contract. Under S6 LA, action has 6 years.
ii. Phua Chin Chew v K.M. & Ors 1987 Pt resign as teacher on 1977 under mentally disability but
his disability ceased on 1982. His brother sued govt on 1983 alleged that PT resign was null and
void. But Def claim S2 PAPA.
1. Held PAPA at does not provide for cases of disability, S24 LA should read with PAPA
act. Thus, 36 months run after disability ceases.
b. Recent cases Public authorities director of lands and mines breach of statutory duty
i. Kobchai Sosothikul (wakil harta pusaka boonsom boonyanit @ Sun Yok Eng, Si Mati) v
Pengarah Tanah Dan Galian, PP 2011 PT is daughter of boonsom sue PTG of penang for
damages. Def claim S2 PAPA.
1. Held PT success prove Def negligence as fraud can be prevented if def follow mandatory
statutory procedure in NLC.
2. Date computing time limitation run when PT first suffered damage and not damages
after the end of the series of litigation.
3. and It is not merely confined to financial or economic loss as when the moment MRs
Boonsom lost her legal title due to fraudulent transfer, damage in various forms would
have set in.
4. the damages is S2(a) PAPA provided 36 months limitation period and cannot extend by
judicial discretion.

4. Railway Act 1991

a. S97 RA provide PAPA shall apply to any action against corporation or any of its officer
i. Veerasingam v KTMB 1999 & Zainab Bt Ahmad v KTMB 2000 - Pt injured in 1990 and file
action in 1992. Old Railway ordinance is 2 years limitation period.
1. held old ordinance was repealed and substitute with RA. S97 RA follow PAPA, - within
36 months.

5. Civil Law Act 1956

a. S7(5) CLA- any action for dependency claim 3 years after the death of person
i. Kuang Hip Peng v Yap Yin & Anor 1965 PT, an infant suing by next friend, claimed 3 years 4
days after the death of deceased. Held action time bared. Time cannot be extended absolutely.
1. [note: pt did not invoke S24 LA extend time limitation for disability.
b. S8(3) Estate Claim deceased defendant
i. any action in tort against estate of deceased defendant can only be maintained if [2 way] :-
1. Proceeding were pending at date of his death; or
2. Taken not later than 6 months after his personal representation took letter of
representation.
i. Lee Lee Cheng v Seow Peng Kwang 1960 accident and both died. Pt estate sue def estate after 6
months of letter of representation taken. Held S8(3) give no power to court to extend limitation of 6
months.

5. Where limitation period provided in any written law has expired

a. Can Pt extend limitation period?
1. Lim Kean v Choo Koon 1970 court very strict. Cannot extend except provided in statute.
b. Where limitation is raised as a defence, it must be specifically pleaded S4 LA; O18 R8 ROC 2012
i. Lee Lee Cheng v Seow Peng Kwang 1960 - held Def relying on defence of limitation under S8(3) Civil
Law Act, not Limitation act
a. Def must plead defence of limitation even though limitation not under LA, this is to comply O18
R 8 RHC.
ii. Tengku Ismail v Sia Cheng Soon 2006 non pleading of limitation constitute non complance of O18 R8
RHC or O14(1) SCR which expressly provides that defence of limitation has to be expressly pleaded.
c. Can D strike out P action if limitation?
i. Sakapp Commodities (M) Sdn. Bhd. v Cecil Abraham (Executor of The Estate of Loo Cheng Ghee)
1991 COA held limitation is only a defence to an action and it assumes that there is a cause of
action.
ii. Perwira Affin Bank Bhd v Ahmad Bin Abdul Rahman - follow Ronnex Properties Ltd v John Laing
Construction Ltd & Ors 1983 held that when limitation expires D can:-
a. Plead defence of limitation and apply for trial of preliminary issue; or
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b. Apply to strike out P claim as frivolous, vexatious and an abuse of process of court
c. But D cannot apply to strike out on the ground that there is no cause of action. O18 & 19 RHC.
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3) OTHER PRELIMINARY MATTERS

1. EVIDENCE
a. Solicitor before commencing action must confirm that there must be sufficient evidence to support the claim.
2. REMEDIES
a. Injunction to prevent or compel def to do something
b. Declaration or orders: declaration of status
c. Specific performance
d. Damages
e. etc
3. TERMS OF CONTRACT
a. choice of law clause- If a contract provides that foreign law is to apply in dispute.
i. Elf Petroleum v Winelf Petroleum 1986 (Msia case)
1. A clause to apply Singapore law in case of dispute. Held The dispute in settling the
payment could be adjudicated in court by applying the foreign law.
b. Arbitration clause it must be referred to arbitration to resolve the dispute. if commenced in court without
first resolve in arbitration, the other party can apply to court for the action stayed until dispute settled by
arbitration.
i. S10 Arbitration Act 2005 = power of court to grant mandatory stay of proceedings. [ previous
general discretion is no longer available]. unless ct finds that
1. Agreement is void, inoperative or incapable, of being performed; or
2. There is in fact no dispute between parties.
4. PARTIES must be determined at early stage
a. Individual, 3rd party, private company, public company, society, partnership.
5. LOCUS STANDI an interest or right in matter
a. Atip Bin Ali v Josephine Doris Nunin 1987 J sue for breach of promise to marry to CM of Malacca
and later withdraw her action. Later, Atip (MB of Alai) sue J for defamation over all UMNO members.
i. Held no locus standi. Only the person defamed Dato Seri Rahim Tamby Cik has locus standi
b. Govt of Msia v Lim Kit Siang 1988 UEM case. Injunction to stop signing agreement.
i. Supreme Court held no locus standi as no legal relationship with UEM. Mere politician,
highway user or taxpayer also no locus standi.
6. COURT OF COMMENCEMENT
a. Magistrate court, session court, court of appeal
7. MODE OF COMMENCEMENT
a. High Court Writ of Summons, Originating Summons, Petition [Originating Motion Deleted]
b. Sub Court same with high court now [Summons, Originating, Application, Petition all amended]
8. OTHER MATTERS
a. Interim relief:-
i. Mareva injunction prevent def from disposing asset before judgment
ii. Anton piller copyright cases allows pt to enter def premises legally and seize incriminating
evidence
iii. Arrest or attachment under Debtor Act 1957
iv. Pre action discovery to obtain the identity of wrongdoer;
v. Interim/ interlocutory injunction: temporary injunction to maintain status quo.
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4) Preparetion for litigation

1. Preparation of court document - 063

a. specification of document of document & copies thereof must be complied.
b. Printing, endorsement, copies & filings
c. O63r5 failure will entail summary rejection of document.
2. E Filing Order 63A
a. Signing and sealing of court document
b. Retrieve or extract
c. Effect of delay by court due to break down, allow manual filing & upon application may amend back date
to avoid limitation period.
d. Affirming of affidavit conventionally or electronically affidavit is affixed or encoded with identification
name and authentication code of:-
i. Registered user
ii. A person having authority to administered oath.
e. Singapore EFS used since 2000
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Civil Procedure

3. Future E-Litigation [from Singapore]

a. Leverage on content management system and e-form technology to law firm
b. Ct use a single access point for commencement and active management of case file.
i. Electronic court forms in pdf
ii. Management by email, sms and reminder alert
4. Court Fee
a. O91 appendix B RC 2012 provide list of charges.
5. Solicitor fees
a. Under legal profession act 1976
6. Pre Action Protocol
a. O34 R1(2) RC 2012- direction to expedite & economical disposal of proceeding take into account
whether the party to proceeding complied with any relevant pre action protocol or practice direction
being issued.
b. Purpose
i. To encourage exchange of early and full info about prospective legal claim
ii. Disclosure of full or relevant info
iii. Simplification and standardization of claim process to offer consistency and culture of
cooperation.
iv. Enable parties avoid litigation by settle out of court
c. Disadvantage
i. Front loading of cost cost at early stage is high.
ii. In complex cases, PAP is irrelevant since it needed full trial.
iii. Difficulties to individual litigants due to high cost.
iv. Satellite litigation interlocutory application as to whether party comply with PAP.
d. O2r1(2) court should disregard minor technicalities in the interest of justice.
e. No official order under the rule but only practice direction.
f. Only order in UK civil procedure rule 1998
i.
g. It will consider proportional steps taken. Or else non compliance due to insufficient information for other
party.
h. There are sanction can be applied at court discretion.
i. Suspend proceeding
ii. Order of cost

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