Malaysian Civil Court Procedure

Note 2 of 4 Notes

Universiti Kebangsaan Malaysia

Fakulti Undang-undang

Musbri Mohamed
DIL; ADIL ( ITM )
MBL ( UKM )

1
Services of OS and others

Introduction

Service is the means by which a document used by a

party in legal proceedings is brought to the notice of
the other parties to the action or other persons who may
become involved. The rules prescribe a variety of
methods the application of which depends on the nature
of the document and the circumstances.

Personal Service

The word 'personal' indicates that the document must

be brought to the attention of the person to be served
by a physical act of delivery to him personally.

2
How Personal Service Effected

Personal service of a document is effected by leaving a copy of

the document with the person to be served and, if so requested
by him at the time when it is left, showing him:

(a) in the case where the document is a writ or other originating

process, show the sealed copy;
(b) in any other case, show an office copy. O.62 r 3 (a) and (b)

3
Body Corporation

If the person is a corporation, personal service is

effected: O. 62 r. 4 and (S. 3550, 339 CA).

(a) by leaving a .copy at the registered office (if any) of

the corporation or
(b) by sending a copy by registered post addressed to the
corporation at the registered office or if the corporation
has more than one office at its principal office; or
(c) by handing a copy of the writ to the secretary , any
director or any other principal officer of the corporation.

4
Order 10 rule 1 (1) was amended by the RHC (Amendment)
Rules 1993. The effect of the amendment is that a writ may be
served on the defendant by sending it by prepaid AR registered
post addressed to his last known address.

The prepaid AR registered post also applicable to other

originating processes. 0. 10 r. 5

Service is deemed to be effected by properly addressing, pre

paying and posting by registered post a letter containing the
document. S. 12 (a) Interpretation Act.

Service by registered post is presumed to have been effected at

the time when the letter would have been delivered in the
ordinary course of post. S. 12 (b) Interpretation Act.

5
Circumstances In Which Personal Service Is Generally
Required

(a) Originating process may be served personally

(b) If a writ is amended after it has been .served the amended writ
must be served on each defendant to the action unless the court
otherwise directs.
(c) Documents which are to be served on persons who are not yet
been notified or involved in the proceedings yet.
(d) A third party notice to a party not yet party to the
proceedings.
(e) A defence and counter claim against party who is not yet a
party to the proceeding.

6
Exception to Personal Service

(a) A writ need not be served where the D or his solicitor undertakes in
writing to accept service and enter an appearance. O.62 r. 1 (3) and O.
10r.1 (2)
(b) Where the defendant's solicitor indorses on the writ a statement that
he accepts service of the writ on behalf of the D. In this case the writ is
deemed to have been duly served on the D on the date on which the
endorsement was made. 0. 10 r.1 (2)
(c) Where P has obtained an order for substituted service
(d) Where the writ is by the leave of the court issued for service outside
the jurisdiction.

7
Substituted Service

The court has the discretion to make an order in Form 135 for
substituted service if it appears that it is impracticable for any
reason to serve that document personally. 0. 62 r. 5(1)
The application for substituted service is made by way of ex
parte summons, which is supported by an affidavit in Form
136, stating the facts on which the application is based and
method of service which would bring the action to the D's
notice. O. 62 r.5(2)

Mode of Substituted Service

No restriction is placed on the mode of substituted service; the

primary consideration is how the matter can be best brought
to the personal attention of the person in question himself: Re
McLaughlin (1905) AC 343.

8
In general the order will be for service by posting a
copy of the writ
(a) on the door of the defendant's last known address;
and
(b) posting the writ on the notice board of the court
which issued the writ ;and
(c) by advertising in local newspaper in the language of
the defendant (if D is an Indian who knew Tamil and
English advertise in both newspaper. O. 62 r. 5(3)

Johannes Koplan v AW Chen

P injured in a traffic accident . D an Australian national

. P could not serve writ outside jurisdiction in the
ordinary way. P obtained substituted service wide
advertising in Australian Newspaper which was
affirmed by the court.

9
Effect of Substituted Service

The effect of substituted service carried

out in pursuant to an order of court is
equivalent for all purpose of actual
service and will be regarded as properly
served even the D is not aware of the
action against him.

Once substituted service has been

executed and no appearance is entered,
the P may obtain judgment. Subject to
the right of D to set aside the judgment
on the merits-Proof of substituted service
is by an affidavit affirming that all steps
to effect such service have been taken.

10
Service On Agent Of Principal

The P who seeks to effect service of the writ on the agent of an overseas
principal must apply ex parte and satisfy the court (by applying a leave
from Court) that:

(a) a contract has been entered into within the jurisdiction with or
through an agent who is either an individual residing or carrying on
business within the jurisdiction or a body corporate having a registered
business or office within the jurisdiction.
(b) the principal for whom the agent was acting was at the time the
contract was entered into and is at the time of the application neither such
an individual nor such a body corporate; and
(c) at the time of the application either the agent's authority has not been
determined or he is still in business relations with his principal. 0. 10 r.
2(1) (a) - (c).

11
Service Out Of Jurisdiction

Where the D is at the time of the issue of the writ, resident outside the
jurisdiction and falls under any of the circumstances set out in O 11 r. 1
service on him car only be effected outside the jurisdiction. The leave of
the court must be applied and obtained for the issue of the writ as a
precondition to service of the notice out of the jurisdiction.

Nature of Application

(1) Service out of the jurisdiction is effected by notice of a writ (not the
writ itself) in Form 11. 0.11 r.3. The notice states the details concerning
the action which has been begun against the D, inform him of the
requirements relating to the entry of appearance and warns that failure to
comply may lead to the entry of default judgement.
(2) The application must be supported by an affidavit in Form 12 stating
the grounds on which the application is made and that in the deponent's
belief the P has a good cause of action showing in what place or country
the D is or probably may be found. O, 11 r4(1).

12
(3) The court will not grant the leave unless it shall be made sufficiently to appear
to the court the case is proper one of service out of jurisdiction. O. 11 r. 4(2).
(4) The proposed form of service out of jurisdiction must be permissible under the
law of the foreign jurisdiction. 0.11 r 5 (2).
(5) The process of Substituted service outside jurisdiction may also apply. O. 11.
The must be a 'practical impossibility' of actual service. Such circumstances occur
when D could not be traced in foreign jurisdiction. Johannes Koplan v AW Chen

When service of notice is not properly effected, in the D is in Malaysia he may

enter a conditional appearance and apply to set aside the purported service of notice
on him o the ground of irregularity. But if he enters unconditional appearance, he is
deemed to have waived any irregularity in the service and is deemed to have been
duly served: O. 10 r 3.

* Conditional appearance is abolished in Singapore yet D still can proceed to set

aside the service

13
Affidavit Of Service

An affidavit of service of any documents must state by whom the document was
served, the day of the week and date on which it was served; where it was
served and how and must be in one of the Forms in Form 137.

Service Own Partner And Firm

(1) Where partners are sued in the name of the firm, a writ may be served on
any one or more of the partners or at the principal place of business of the
partnership within the jurisdiction on any person having at the time of service
the control or management of the partnership business there.
(2) If the above conditions are met, the writ will be deemed to have been
properly served on the firm whether or not any member of the firm is out cf the
jurisdiction. 0. 77 r. 3(1).
(3) in addition, a written notice in Form 192 must be given to each person on
whom a writ is served at the time of service.

14
(4) if this notice is not presented, the person will deemed to
have been served as & partner O. 77 r 3(3).
(5) If the P knew that the partnership was dissolved before
the commencement of his action, the writ must be served on
every person within the jurisdiction sought to be made liable
in the action . O. 77 r. 3 (2).

Hup Atk Tin Mining Co. v Kam Hov Trading [1969] MU

The writ was served on former partners who had not

registered their withdrawal from the partnership .The
service was held to be good because their names continued
to be on the register.

15
Service On The Government

The application of 0. 10 and O. 11 and other provisions relating to service

out of the jurisdiction are specifically excluded in proceedings against the
government O, 73 r. 3(1).

Documents are not required to be personally served on the government. The

mode of service depends on whether the proceedings concern the Federal
Government of State government.
(a) If proceedings by or against Federal government, service must be affected
on the AG or such other officer as may be designated in that behalf by the
AG in gazette. 0. 73 r. 3(2).
(b) If proceedings against a State government, service must be effected on
the State Secretary of the State. 0. 73 r. 3(2).
The document will be deemed to have been served on the day following that
day preceding the weekly holiday or on the day following that other
weekday, as the case maybe. O. 73 r. 3 (3).

16
Service Of Originating Summons, Originating
Motion And Petition

(1) AII the rules in Order 10 r. (1) to r. (4) except r.

1(4) is applicable to OS in which an appearance is
required to be entered as they apply to a writ.

(2) In respect of OS where no appearance is

required to be entered, a notice of an OM and a
Petition, only 0. 10 r. 1(1) and r 1(2) applies.

(3) Originating process may be served personally

or by sending the document by prepaid AR
registered post to the D's last known address. 0.10
r. 1 (1).

17
Entry to Writs

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.

18
Effect Of Appearance

(1) The appearance will prevent a judgment being entered against him in default of
doing so. 0. 13
(2) If the writ which was served on him is attached only with a concise statement of
claim, the appearance serves as & 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 judgment in default of appearance. 0.13
(2) The D may succeed-in a subsequent application to set aside the judgment O.13 r.
8 but he is subject to pay the costs if he was at fault.
(3) Once judgment is entered, the D may only enter an appearance with the leave of
the court. O.12 r. 5(1).
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).

19
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

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(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 0. 11 r. 4(3)

21
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. 0. 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'.
0. 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).

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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)

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Appearance By Particular Person Body Corporate

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. 0.76 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 slate 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.

24
•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.

3. A body corporate may only enter an appearance and defend the action by a
solicitor .except provided otherwise by any written law. O. 12r.1 (2)

4. The D is not entitled to take any steps in an action unless he enter

appearance.

However 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. 0. 44 r. 3 (5)

25
5. Appearance by other particular Person
(a) A person who is not a party to the action, but a counterclaim
has been served : 0.15 r. 3 (4)
(b) A person served with a third party notice: 0.16 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.
0. 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)

26
(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 until! 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 t 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 with his and the firm's liability. 0.
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).

27
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
15 to the action, O.12 r. 6(1)

The case of Yana Soon

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.

28
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. 0.12 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.

29
Maritime (Pte) Ltd v ETPM SA (1988) 2 MLJ 289

This is a Singapore 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 because leave of the court had not been obtained
as required by the rule.
Thereafter, the D 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.

30
Effect Of A Condition
Appearances

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.

31
The case of Arabia Marine Bunkers Sales Co.Ltd. & Anor (1988)
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.
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.

32
Default of Pleadings

Time For Service Of Pleadings O. 18 R. 1.2 And 31

Service of Statement of Claim [0.18 r1]

Unless a statement of claim is indorsed on the writ or the court gives
leave to the contrary, P must serve a statement of claim on D, or on
each of two or more Ds, either the writ or at any time before 14 days
after that D enters an appearance.

Service of Defence [0.18 r. 2]

Unless the court gives leave to the contrary, or a summons under 0.14
r.1 is served on D, a D who enters an appearance in, and intends to
defence the action must serve a defence on P before the expiration of
14 days after the time limited for appearing or after the statement of
claim is served on him, whichever is the later.

33
Service of reply and Defence to counterclaim [0.18 r. 3]

(1) A P on whom a D serves a defence must serve a reply on that D if it is

needed for compliance r. 8 and if no reply is served r. 14 (1) will apply
(summary judgment).
(2) If P intends to defend a counterclaim, he must serve defence to
counterclaim on D.
(3) A reply to any defence or counterclaim must be served by P before the
expiration of 14 days after the service on him of that defence or
counterclaim was served on him.

Note: Extension of time for service can be obtained by written consent of

parties or by court order - [0. 3 r. 5]

34
Failure To File And Serve Pladings

O. 19 deals with rights and liabilities of the parties for failing to file and send
the pleadings within the prescribed time.

Judgment in default
Judgment in default means a judgment given to the plaintiff without the court
hearing the merits of plaintiffs case.

(1) Default in service of statement of claim – [ O 19 r 1 ]

The plaintiff must serve a statement of claim to the defendant within 14 after
the defendant has entered appearance If he fails to do so, the defendant may
apply to the court for an order to dismiss the plaintiff's action and the court may
dismiss the action or make such order it thinks just.

Clouoh v Clouahf 1968 11 WLR 525

Here it was stated that failure to serve the statement of claim within the
prescribed time does not entitle the defendant to dismiss the plaintiff’s action
pursuant to Order 19 rule r 1.

35
(2) Default of Defence; Claim For Liquidated Demand [0.19 r.2] Where the claim
by plaintiff is for a liquidated sum and the defendant fails to serve the defence
within the stipulated time then the plaintiff can enter final judgment for a sum not
exceeding the claim and for his cost.

(3) Default of Defence : Claim for Unliquidated Damages [O.19 r. 3) Where the
claim by plaintiff is for an unliquidated sum and the defendant fails to serve the
defence within the stipulated time then the plaintiff can enter interlocutory
judgement for the damages to be assessed and costs under 0 19 r 3

(4) Default of Defence ; Claim in Detinue [0 19 r 4]

Where the plaintiff claims for the detention of any movable propertyln such cases
if the defendant fails to serve his defence the plaintiff could choose
1. to get interlocutory judgment against the defendant for the delivery of the
property or their value to be assessed and costs or
2. interlocutory judgment for the value of the property to be assessed and costs.

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(5) Default of Defence: Claim for Possession of Immoveable
Property (0.19 r. 55]
If the plaintiff claims for possession of immovable property and not
claiming any relief under O. 83 r 1 (charge actions). In such cases
when the defendant fails to serve defence within the stipulated period
the plaintiff may enter judgment for possession of the immovable
property with costs.

(6) Default of Defence To Counterclaim [O. 19 r. 8]

O 19 r 8 states that a defendant who counterclaims shall be treated as
if he were a plaintiff and above rules shall apply to him.

37
(7) Setting aside judgment of default of pleading (019 r. 9)
The court may, on such terms as it thinks just, set aside or vary any
judgment entered in pursuant of this order.
Plaintiff claims for other claims than those mentioned in a - c. e.g. he
claims for declaration or injunction. In such cases when the defendant
fails to serve defence on time, the plaintiff could apply for judgment
and on the hearing of the application the court shall give such
judgment, as the plaintiff appears to be entitled.

Haji Salleh v Federal Auto Holdings Bhd (1979) 2 MLJ

It was slated that the defence served out of time specified must be
considered by the court and the application of plaintiff to sign
judgment in default of defence will be refused if the defence disclose
reasonable reasons.

38
Procedure of Pleadings

Statement Of Claim [0. 18 R. 15]

(1) statement of claim must state specifically

the relief or remedy which the P claims but
costs need not be specifically claimed.
(2) a statement of claim must not contain any
allegation or claim in respect of a cause of
action unless that cause of action is mentioned
in the writ or arises from facts which are the
same as, or include or form part of facts giving
rise to a cause of action so mentioned but
subject to that a P may in his statement of
claim alter, modify or extend any claim made
by him in the endorsement of the writ: w/out
amending the endorsement.

39
Service of Statement of Claim [0.18 r.1]

Unless a statement of claim is indorsed on the writ or the court gives

leave to the contrary, P must serve a statement of claim on D, or on each
of two or more Ds , either the writ or at any time before 14 days after that
D enters an appearance.

Service of Defence [0.18 r. 2]

Unless the court gives leave to the contrary, or a summons under 0.14 r.1
is served on D, a D who enters an appearance in, and intends to defence
the action must serve a defence on P before the expiration of 14 days
after the time limited for appearing or after the statement of claim is
served on him, whichever is the later.

40
Defence of Tender [0.18 r. 16]

Where in any action a defence of tender before action is pleaded, the

defendant must pay into court m accordance with 0. 22 the amount alleged to
have tendered, and the tender shall not be available as a defence unless, an
until payment into court has been made.

Defence of Set - Off [0.18 r. 17]

Where a claim by a D to a sum of money (whether of an ascertained amount

or not) is relied on as a defence to the whole or part of a claim, made by P, it
may be included in the D and set off against the P's claim whether or not it is
also added as a counterclaim.

Note: If D fails to enter defence, P can apply for:

(a) judgment in default of defence or
(b) summary judgement.

41
Service of reply and Defence to counterclaim [0. 18 r. 3]

(1) A P on whom a 0 serves a defence must serve a reply on that D if it is

needed for compliance r. 8 and if no reply is served r. 14 (1) will apply
(summary judgment).
(2) If P intends to defend a counterclaim, he must serve defence to
counterclaim on D
(3) A reply to any defence or counterclaim must be served by P before the
expiration of 14 days after the service on him of that defence or counterclaim
was served on him.

Extension of time for service can be obtained by written consent of parties or

by court order -[0. 3 r. 5]

Pleadings subsequent to reply [0.18 r. 4] No pleading sub-sequent to a reply

or a defence to counterclaim shall be served except with the leave of the
court.

42
Where There Is No Reply To A Defence [0.18 r.14]

(1) If there is no reply to a defence, there is an implied joinder of issue on

that defence.
(2) subject to para (3) .
(a) there is at the close of pleadings an implied joinder of issue on the
pleadings last served and
(b) a party may in his pleading expressly joint issue on the next preceding
pleading
(3) there can be no joinder of issue, implied or express on a statement of
claim or counterclaim.
(4) a joinder of issue operates as a denial of every material allegation of
fact made in the pleading on which there is an implied or express joinder
of issue unless, if express joinder of issue, any such allegation is accepted
from the joinder and is stated to be admitted ,in which case the express
joinder of issue operates as a denial of every other such allegations.

43
The first and most important rule of all is that you should never ever make
up a defence for your client.
Don’t get carried away to let one’s enthusiasm for the job stray over the
border into the land of fabrication which is the graveyard of all
professional careers.
Yet it may not be too cynical to divide defences into two broad categories
i.e one those which are genuinely all the way to trial and second those
which are calculated to mitigate the effect of the claim.

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Close of Pleadings [0.18 r.20]

(1) The pleading deemed to be closed:

(a) at the expiration of 14 days after service of the reply or if there is a
reply but only a defence top counterclaim, after service of the defence to
counterclaim or
(b) if neither a reply nor a defence to counterclaim is served at the
expiration of 14 days after service of defence.

(2) the pleadings is an action are deemed to be closed at the time

provided by para 91) not withstanding that any request or order for
particulars has been made but has been made but has not been complied
at that time.

Filling of Pleadings [0.18 r.21] Every pleading must be filed in the

Registry of HC where the writ was issued and served within prescribed
time unless the court gives leave to the contrary.

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Striking Out Pleadings

Introduction

The court can strike out the Pleadings for certain reasons. They are
mentioned in 0. 18 r. 19.

Striking Out Pleading And Indorsement [O. 18 R. 19]

(1) The court may at any stage of the proceedings, order to be struck out
or amended any pleading or the indorsement, of any writ in the action, or
anything in any pleading or in the indorsement, the following grounds:
(a) it discloses no reasonable cause of action or defence, as the case may
be ; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice , embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court and may order the
action to be strayed or dismissed or judgment to be entered accordingly,

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(2) No evidence shall be admissible on an application under para 1 (a).
(3) This rule shall so far as applicable, apply to an originating summons and a
petition s if the summons or petition, as the case may be, were a pleading.
Explanation: Ground (a)
Parties who wish to strike off the pleading on ground (a) no need to produce
evidence. The court can decide base on the reading of the pleading.

(a)The P must show in the statement of claim all relevant facts which forms his
cause of action. If it is not mentioned, then the judge may amend the statement of
claim so as to show the cause of action or but normally the judge will strike out the
statement of claim, e. g. In a defamation sued, the P enters his statement of claim
but did mention no one saw or heard the word uttered. Here the judge can strike out
the SOC.

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(b) If the Statement of defence does not state reasonable defence the judge may
amend it or strike out the statement of defence, e ,g. P sue D for loan given to D
and D fails to repay. In his statement of defence D admits the loan taken, amount
and he admit he must pay within specified time. But he mentioned further that he
had used the money for chanty purposes. This is not a defence and the court can
strike out the SOD because no reasonable defence.
Explanation; Grounds (b) (c) (d)
The Parties who wish to strike off the pleadings on these grounds must provide
evidence. Parties also can bring this ground together if the grounds are
borderline case.

Tractor (M) Bhd v Tio Chee Hine [1975] 2 MLJ 1 PC:

"An action is said to be an abuse of the process of the court if it is brought for
example, to defeat the course of justice by delaying the execution of an earlier
judgment of court and the court will dismiss the action."
The power to dismiss an action summarily without permitting the P to proceed to
trial, however the court will exercise that power only if upon a critical
examination of the pleadings or indorsement, it is clear for the court to do so.

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Effect Of Striking Off Pleadings

If the court strike of Statement of claim then Plaintiffs claim is

dismissed If the court strike off Statement of defence than the
plaintiff will get judgment in his favor. He will succeed.

Pertamina v Kartika Ratna Thahir & Ors (MLJ)

Mr Thahir an Indonesian national, was a senior employee and

executive of the plaintiffs. He died on 23 July 1976. On that day,
there was with the Sumitomo Bank Ltd in Asian Currency Unit
(ACU) deposits DM53,972,374.12 and US$1,202,208.73 in the
name of Mr Thahir, and/or Mrs Thahir the first defendant.
On 27 July 1976 Mrs Thahir went to the bank and demanded
payment to her of sums totalling DM8,310,982.99 and
US$608,959.42. She also demanded that the balance of the said
ACU deposits be transferred to her sole name.

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That same day, Mr Ibrahim Thahir, one of the children of the deceased, directed
the bank not to pay out any moneys to Mrs Thahir until the respective beneficial
interests of Mrs Thahir and the estate of the deceased were determined. The bank
was in 3 difficult positions because of the two claims made against the bank by
different persons. The bank applied to the court for relief. Mrs Thahir was cited as
first defendant. The two sons of the deceased were made the second defendants to
represent the estate of the deceased.

In June 1977, Pertamina were added as third defendants. In October 1979,

Pertamina took out an interlocutory application for an issue to be stated and tried
between the first, second and third defendants as to which of them was entitled to
the sums of money represented by the ACU deposit accounts at the bank and for
consequential orders.

In November 1979 the first defendant took out a summons-in-chambers for an

order that the originating summons of the bank be dismissed on the grounds that it
was misconceived. She sought also that an issue be ordered between Pertamina
and herself in which Pertamina should be plaintiffs and she the defendant. The
plaintiffs claimed that Mr Thahir had unlawfully and improperly obtained money
as bribes and/or secret commissions which belonged to the plaintiffs, that he had
put these illegal gains in the bank in the joint account of himself and the first
defendant.

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The plaintiffs claimed that the first defendant was party to the wrong doings
of Mr Thahir. The first defendant denied this. She said that the fact that Mr
Thahir received income apart from his salary was not secret, but was known
both to the plaintiffs by, inter alia, their said present director, and to the
plaintiffs' principal, the State Government, who consented.

Held:-
(1) Nowhere in the defence did the first defendant take the issue or even
reserve the point that the plaintiffs statement of claim did not disclose a
reasonable cause of action in the issue.
(2) It was only in plain and obvious cases that recourse should be had to the
summary process under O 18 r 19. It could not be exercised by a minute and
protracted examination of the documents and facts of the case, in order to
see whether the plaintiff really had a cause of action.
(3) So long as the statement of claim or the particulars disclosed some cause
of action, or raised some question fit to be decided by a judge, the mere fact
that the case was weak, and not likely to succeed was no ground for striking
it out.

In this case appeal was dismissed.

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New Straits Times (M) Sdn Bhd v K.K. Niaga Sdn Bnd (1985) 1 MLJ 227

In this case the respondent had brought an action against the appellant for libel.
The R applied to strike out the defence. The learned trial judge at first
dismissed the respondent's application and allowed the appellant's application
to amend their defend but subsequently she reversed her earlier decisions and
reversed the entire statement of defence of the appellant to be struck out. The
appellant appeal.

Held: Allowing the appeal the Federal Court held:

(1) In an application to strike out pleadings under O. 18 r. 9(1) (a) no evidence
shall be admissible and the court must consider only the pleadings for the
purpose of determining whether the statement of claim disclosed no reasonable
cause of action or the statement of defence disclosed no defence.
(2) The test to be applied is whether on the face of the pleading, the court is
prepared to say that the cause of action or the defence is obviously
unsustainable.
(3)In this case the learned judge erred in law in ordering the appellants defence
to be struck out. The appellants have raised triable issue of fact and these
issues can only fairly be resolved by evidence viva voce at the trial and not
merely by affidavit evidence.

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The Distinction Between O.18 R. 19 And 0. 14
The difference between Summary judgement and striking off pleadings is that:

1. Originating process: O. 14 does not apply to actions begun by an originating

process other than by writ. O. 18 r.19 is not so limited.
2. Type of action; O. 14 is not applicable to certain types of actions, those which
normally involve complex issues of fact and law, no* to applications against the
government.
3. Time:-An application under O. 14 has to be made soon after appearance has
been entered. An application made after defence has been served may be rejected
unless the delay is explained to the satisfaction of the court. 0. 18 r. 9 may be
applied for at any stage of proceedings.
4. Form and Proof: An O.14 application must be supported by an affidavit in
Form 18, verifying the facts on which the cause to which the application relates,
is based. This is the formal affidavit which must also state that in the deponent's
belief there is no defence to the claim or no defence except as to the amount of
any damages claimed. This affidavit is unique to O. 14. It is necessary
prerequisite for the application-if there is no affidavit, or no sufficient affidavit,
the summons may be dismissed . Affidavit evidence is inadmissible in
application under 0.18 r. 19(l)(a).

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5. Grounds:-

An 0. 14 application has to be made on the ground that there is no triable

issue. An 0. 18 r,19 application may be made on an number of grounds,
both specific, such as that the defendant has no reasonable defence, and
general, such as that the proceedings are an abuse of the rules of court.
The ground or grounds must be specified in the application.

6. Service:

In an application under 0. 14, the summons, together with a copy of the

supporting affidavit and of any exhibits referred to in affidavit, must be
served on the defendant not less than four clear days before the return
day. Regarding an application under 0. 18 r. 9 the usual rules regarding
service of a summons-in-chambers will apply-it must be served on the
other party not less than two clear days before the day specified in the
summons for hearing.

Continue … Note 3 of 4 Notes

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