LXEA 4121: Civil Procedure II (2013/2014)

SUMMARY JUDGMENT
(Order 14, Order 43, Order 81 & Order 89)

The Normal Course of a Civil Suit and Its Consequences

Summary Judgment and Its Nature

UNP Plywood Sdn Bhd v HSBC Bank Malaysia Bhd [2010] 5 MLJ 323 at 337, CA
Alliance Finance Bhd v Cahaya Kelang Construction Sdn Bhd [2007] 1 MLJ 294 at 299.

Importance of Summary Judgment

Summary Judgment and Striking Out

SUMMARY JUDGMENT UNDER ORDER 14

When not available

(a) O 14 r 1(2);
(b) O 43, O 81 and O 89;
(c) O 73 r 5(1); and
(d) Other grounds

Procedure for Obtaining Summary Judgment

(a) Seah F.J. in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC:

“We think it appropriate to remind ourselves once again that in every application under Order 14
the first considerations are (a) whether the case comes within the Order and (b) whether the
plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the
purposes of an application under Order 14 the preliminary requirements are:

(i) the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and
(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of
Order 14.

It is to be observed that a case is not within Order 14(a) where no statement of claim has been
served on the defendant; (b) where the indorsement on the writ includes a claim or claims outside
the scope of Order 14 as coming within Rule 1(2); (c) where the affidavit in support of the
application is defective, e.g. in omitting to state the deponent’s belief that there is no defence to
the claim or part to which the application relates; (d) where the application is made in an action
against the Government [Order 73 Rule 5(1)].

If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If
however, these considerations are satisfied, the plaintiff will have established a prima facie case
and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court
why judgment should not be given against him [See Order 14 Rules 3 and 4(1)].”

(b) Burden

Cempaka Finance Bhd v Ho Lai Ying [2006] 2 MLJ 685 at 689-690, FC

1
LXEA 4121: Civil Procedure II (2013/2014)

(c) Time

CGIR v Weng Lok Mining Ltd [1969] 2 MLJ 98; Krishnamurthy v Malayan Finance Corp [1986] 2
MLJ 134; British American etc Insurance Bhd v Pembinaan Fal Bhd [1994] 3 MLJ 267
(explanation not accepted); and MBSB v Ghazi bin Hasbollah [1994] 2 MLJ 1 (no hard and fast
rule – discretion of the court).

See also Perkapalan etc v Alpine Bulk Transport [1997] 3 MLJ 818; Interfinance Bhd v Grand
Ridge Sdn Bhd [1998] 4 CLJ Supp 485 and Pengurusan Danaharta Nasional Bhd v Miri
Salamjaya Sdn Bhd [2004] 4 MLJ 327.

(d) Notice of application in Form 57: (Order 14 r 2(1) and O 32 r 1).

(e) Service of the Notice of application: O 14 r 2(3).

(f) Affidavit requirements

Form 13

Who makes affidavit?

O 14 r 2(4) read with O 32 r 13(2)

Perbadanan Nasional Insurans Sdn Bhd v Pua Lai Ong [1996] 3 MLJ 85, CA

Non-compliance of r 2(1): see for e.g. Chai Cheon Kam v Hua Joo etc Sdn Bhd [1989] 2 MLJ
422.

Hearing of the Notice of Application

(a) Technical objections e.g. short or defective service, defective affidavit etc.

(b) D shows that there is a triable issue. D is required to show “that there is an issue or question in
dispute which ought to be tried.”

Appaduray v Ananda [1982] 1 MLJ 292

Ng Yik Seng v Perwira Habib Bank [1980] 2 MLJ 83
Voo Min En v Leong Chung Fatt [1982] 2 MLJ 9
Ngui Mui Khin v Gillespie Brothers [1980] 2 MLJ 9
Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400
Chen Heng Ping v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363 at 367
RHB Bank v Tan Swee Long Holdings Sdn Bhd [2008] 3 MLJ 130

See also Binariang etc Sdn Bhd v I & P Sdn Bhd [2000] 3 AMR 3198 (CA)
(injunctive relief possible under O 14 proceedings).

Order 14 r 4(1) – “A defendant may show cause … by affidavit or otherwise … .” If D has filed his
Defence can he raise defences over and above those alleged in his Defence?

See Lin Securities v Noone & Co Sdn Bhd [1989] 1 MLJ 321. Cf. Ribaru Bina Sdn Bhd Bakti
Kausar Development Sdn Bhd [2007] 2 MLJ 221 at 225, CA; Lim Leong Huat v Chip Hup Hup
Kee Construction Pte Ltd [2008] 2 SLR 786 and PMA Credit Opportunities Fund v Tantono Tiny
[2011] 3 SLR 1021.

Is summary judgment possible if damages have to be quantified? See Avel Consultants Sdn Bhd
v Mohd Zain [1985] 2 MLJ 209.

2
LXEA 4121: Civil Procedure II (2013/2014)

(c) D raises set-off or counterclaim

Salleh Abas LP in Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157.

(d) What order may be made if D raises a set-off or a counterclaim?

See Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ 322 (counterclaim)

(e) Special rules concerning cheques

Fielding and Platt Ltd v Najjar [1969] 2 All E.R. 150;

Marina Sports Ltd v Alliance Richfield Pte Ltd [1990] 3 MLJ 5.

(f) Order 14 r 3: “there ought for some other reason to be a trial of that claim”

Miles v Bull [1968] 3 All E.R. 632;

Concentrate Engineering Pte Ltd v UMBC Bhd [1990] 3 MLJ 1;
UMBC Bhd v Majlis Agama Islam [1999] 1 MLJ 657; and
Ng Seng Kee v Danaharta Urus Sdn Bhd [2008] MLJU 209

(g) D’s defence arouses suspicion

Lord Devlin in Fieldrank Ltd v Stein [1961] 3 All ER 681

Alliance etc v San Development Sdn Bhd [1974] 2 MLJ 94;

QBE Supreme Ins v Syarikat Chemas [1986] 1 MLJ 56;
Coronation Electronics Ltd. v Lalchand Mahtani [1987] 1 MLJ 190;

See also Law Mun & Ors v Chua Lai Seng [1984] 2 MLJ 328 (If conditional leave is given in a
hearing before a Judge in Chambers can the same judge hear the main action?).

(h) D shows triable issue or set-off which P would not necessarily anticipate.

(i) D shows no triable issue, set-off or counterclaim.

(j) The case is one of construction

(1) Documents: See Esso Standard Malaya v Southern Cross Airways [1972] 1 MLJ 168.
See also Carlsberg Bhd v Soon Heng Aw & Sons Sdn Bhd [1989] 1 MLJ 104.

(2) Statute: See Fadzil v Universiti Teknologi Malaysia [1981] 2 MLJ 196. See also Ng Chin
Swee & Ors v Koperasi Belia Bersatu Bhd [1987] 2 MLJ 510.

(k) Can the court determine questions of law?

(i) Compare European Asian Bank v Punjab & Sind Bank [1983] 2 All ER 508 (CA) with
Chong Ngam Sen v Yeoh Bah Chee [1981] 1 MLJ 161.

(ii) Goff LJ’s statement above was applied by the Supreme Court in Malayan Insurance (M)
Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183.

(l) For the present position: See Order 14A

3
LXEA 4121: Civil Procedure II (2013/2014)

Orders That the Court May Make and the Circumstances When They Would be Made

(a) Notice of application dismissed with costs – Order 14 r 3(1) and Order 14 r 7.

(b) adjournment and leave to amend or file fresh affidavit but P to pay D costs thrown away.

(c) unconditional leave to defend and costs in cause – Order 14 r 4(3).

(d) leave to defend on payment into court of whole or part of claim in x days to abide event with costs
in cause; in default, final judgment and costs – Order 14 r 4(3).

(e) judgment for P with costs execution stayed until trial of counterclaim – Order 14 rule 3(2).

(f) judgment for P with costs – Order 14 r 3(1).

Defendant to pay into court

Yorke Motors v Edwards [1982] 1 All ER 1024.

Can the Court Dismiss P’s Action?

P proceeds by way of Order 14 against D to enforce a contract. At the hearing for summary
judgment of court takes the view that there was no concluded contract. May the court dismiss P’s
suit?

See Diamond Peak Sdn Bhd v Tweedie [1980] 2 MLJ 31.

There is no power in an application for summary judgment to dismiss the action.

Setting Aside Order 14 Judgment Against a Party Who Does Not Appear at the Hearing

See O 14 r 11.

Appeals

Both P & D may appeal. Huo Heng Oil Co v Tang Tiew Yong [1987] 1 MLJ 139 (appeal is a
rehearing).

Where triable issue as a matter of fact or evidence (as opposed to law) “it is most unlikely” that an
appellate court would interfere with the discretion of the judge –

See UMBC Bhd v Pembinaan KSY Sdn Bhd [1993] 3 MLJ 45 SC.

4
LXEA 4121: Civil Procedure II (2013/2014)

SUMMARY JUDGMENT UNDER ORDER 81

When is Order 81 applicable?

See Order 81 rule 1(1):

In any action begun by writ indorsed with a claim

(a) for specific performance of an agreement (whether in writing or not) for the sale,
purchase or exchange of any property, or for the grant or assignment of a lease of any
property, with or without an alternative claim for damages; or
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such an agreement, the plaintiff
may, on the ground that the defendant has no defence to the action, apply to the Court
for judgment.

Procedure for Obtaining Summary Judgment

Differences in Procedure between Order 81 and Order 14

(a) O 81 r 1(2) (as soon as writ is served – appearance not necessary);

(b) O 81 r 2(1) (swear positively as to facts);
(c) O 81 r 2(2) (minutes of the judgment sought)

Failure to comply with r 2(2) not fatal: Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2
MLJ 268 (Lim Beng Choon J.)

SUMMARY PROCEEDINGS FOR POSSESSION OF LAND

(Order 89)

Ambit of Order 89

Status of Plaintiff

Status of Defendant

Procedure

See (i) Bahari bin Taib & Ors v PTG Selangor [1991] 1 MLJ 343.
(ii) Titular Roman Catholic Bishop of Penang v Stephen Ramachandran [1994] 3 MLJ 4.
(iII) Cheow Chew Khoon v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457.
(iv) Zaibar Auto (M) Sdn Bhd v Shell Trading Sdn Bhd [1996] 2 MLJ 221 (CA).
(v) Shaheen bte Abu Bakar v PKNS [1996] 1 MLJ 825.
(vi) Lee Beng Lai v Tetuan Tokoyaki Property Sdn Bhd [2002] 3 MLJ 287, CA.
(vii) Fullrise Resources Sdn Bhd v Ng Ah Toh [2004] MLJU 187.
(viii) Bitromax Corp Sdn Bhd v Amil bin Salleh [2005] 1 MLJ 780.
(ix) Yap Chiang v Koh Sau Choon [2008] 8 CLJ 63.
(x) Ng Chin Eng v Penghuni-Penghuni di Premis No 39 Kampung Sira [2010] 1 LNS 662.