Complete

LXEA 4121: Civil Procedure II (2016/2017)
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
*This Course Outline is based on the original version prepared by Dato (Dr) P Balan for use at the
Faculty of Law, University of Malaya.
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(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
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
Who makes affidavit?
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.
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(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.
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(l) For the present position: See Order 14A and cases such as Petroliam Nasional Berhad vs
Kerajaan Negeri Terengganu [2003] 4 CLJ 337 and [2004] 1 MLJ 8Lim Hooi Teik v Lee Lai Cheng
[2016] 3 CLJ 529.
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.
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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.)
See also See: Alloy Automoti Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382;
MMI Industries Sdn Bhd v Let Sin Industries Sdn Bhd [2010] 5 MLJ 71;
Lee Teng Siong v Lee Kheng Lian & Ors [2006] 5 MLJ 609; and
Hew Hooi Chun v KL Teksi Radio Bhd [2011] 3 MLJ 754;
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.
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THIRD PARTY PROCEEDINGS

(Order 16)
When Available
(a) Claims to contribution: O 16 r. 1(1)(a)
(i) one of several trustees sued in breach of trust

(ii) joint tortfeasors
(iii) insurer who has issued a policy covering the same assured and the same peril as
another insurer.
Zulkifle bin Sabarudin v Fauziah Bte Arshad [2005] 5 MLJ 229
(b) Indemnity: O 16 r 1(1)(a)
(a) surety and principal debtor

(b) insured and insurer
Sze Hai Tong Bank Ltd. v Rambler Cycle Co. Ltd. [1959] MLJ PC 200
(c) “Claims against such a person any relief or remedy relating to or connected with the original
subject-matter of the action and substantially the same as some relief or remedy claimed by the
plaintiff.” O 16 r 1(1)(b).
P is injured by a falling roof in D’s house. The roof was repaired the previous day by T, a
contractor. P is now suing D.
(d) “Requires that any question or issue relating to or connected with the original subject-matter of
the action should be determined not only as between the plaintiff and the defendant but also as
between either or both of them and a person not already a party to the action.” O 16 r 1(1)(c).
A’s car was stolen by B. B sold the car to C. C sold the same car to D. The car is in D’s
possession. A is now suing D for its return.
Third Party Notice
(a) D must first enter appearance (r 1(1)).

(b) Issue a third party notice and serve it on third party. Third party must enter appearance.
(c) Leave is required to issue third party notice in certain circumstances.
(i) action begun otherwise than by writ (r 1(2)).

(ii) D has served his defence (r 1(2)).
(iii) third party notice is sought to serve on the government (O 73 r 8).
Leave to Issue Third Party Notice: (r 2)
(a) By ex parte notice of application in Form 20

(b) Affidavit must satisfy O 16 r 2(2)
(c) Power to grant leave discretionary
Summons for Third Party Directions: (r 4)
(a) D must apply for directions within 7 days after third party has entered appearance. Application
must be served on TP, P and co-defendants, if any.
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(b) Setting aside Third Party Notice. The third party may, if no application for directions has been
served on him more than 7 days after entering appearance, apply to set aside the third party
notice. He does so by notice of application to be served on all parties in the action.
(c) Dismissing Defendant’s Application for Third Party Directions: The application may be dismissed
if the action does not fall within r 1(1)(a) – (c) or if the plaintiff or the third party can show special
circumstances why the directions should not be given.
(d) Directions to be given: The Court has wide power in deciding what directions to give. They
include the power to:
(i) order judgment to the defendant against the third party if the liability of the third
party to the defendant who issued the third party notice is established at the
hearing (r 4(3)(a);
(ii) order any claim question or issue to be tried as the Court may direct (r 4(3)(b));
(iii) give the third party leave to defend alone or jointly with any defendant and
appear at the trial (r 4(4)) – see Kayla Beverly Hills (M) Sdn Bhd & Anor v
Quantum Far East Ltd & Ors (Uma Devi d/o Balakrishnan, third party) [2003] 6
MLJ 703;
(iv) determine the extent to which the third party is to be bound by any judgment; or
(v) dismiss the application for directions (r 4(3)(c)).
(e) Dismissal of the application for directions has the result of terminating the third party proceedings.
(f) Effect of directions: Pacific etc Sdn Bhd v Senanti Motors Sdn Bhd [1992] 2 MLJ 364.
Plaintiff and Third Party
(a) If the plaintiff wishes to obtain judgment against the third party, he must apply under O 15 r 6 to
add the latter as defendant: see Fullji Realty Sdn Bhd v Lim Yong Meng [2007] 3 MLJ 39
(b) If the third party wishes to counterclaim against the plaintiff he must himself apply to be so added.
A third party who has been given leave to defend the action pursuant to O16 r 4(4) may, at the
trial, cross-examine the plaintiffs and seek discovery against and interrogate the plaintiffs: see
Kayla Beverly Hills (supra).
Failure to Enter Appearance or Serve Defence
(a) If TP does not enter appearance or having been ordered to serve a defence, fails to do so, see
consequences under O 16 r 5(1)(a).
(b) TP deemed to admit claim and should be bound by any judgment in the action, including a
consent judgment.
Limitation against Third Party
(a) When a third party claim is for an indemnity or contribution, see Mat Abu bin Man v Medical
Superintendent, General Hospital, Taiping, Perak & Ors [1989] 1 MLJ 226.
(b) Where the claim by the defendant against the third party is not one for an indemnity or
contribution but for a breach of contract, see Tan Chong & Sons Co Sdn Bhd v Arumugam s/o
Packrisamy & Anor [1992] 3 CLJ 1477.
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INTERPLEADER PROCEEDINGS
(Order 17)
Applicable Law and Procedural Rule
See Para 5 of the Schedule to the Courts of Judicature Act 1964 and Order 17.
When Available
Where D is sued by P claiming property held by D in which D has no interest but which is also
claimed by a third party, D may take out and serve a summons on both claimants for an order
that the issue as to ownership be decided between them.
See for e.g., Overseas Investments Pte Ltd v O’Brien & Anor [1988] 3 M.L.J. 332 (interpleader by
sheriff).
Types of Interpleader Proceedings
(a) Stakeholder’s Interpleader.
Where D is sued by P claiming property held by D in which D has no interest but which is also
claimed by a third party, D may take out and serve a summons on both claimants for an order
that the issue as to ownership be decided between them.
Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd & Ors [2009] 7 MLJ 124;
Tan Kau Tiah v Tetuan Teh Kim Teh, Salina & Co & Anor [2010] 3 MLJ 569 CA; and
Lee Heng Moy (f) v John Hancock Life Insurance (M) Bhd & Anor [2010] 1 MLJ 624, CA
(b) Sheriff’s Interpleader.
Hup Cheong Motor Co v Saong Jonathan & Anor [1992] 2 MLJ 33; and
Overseas Investments Pte Ltd v Anthony William O’Brien & Anor [1988] 3 MLJ 332.
Procedure
(a) Must be by originating summons unless in a pending action, in which case it shall be made by a
notice of application in Form 27 or 28, whichever is appropriate.
(b) The originating summons or notice of application must be served personally at least 7 days
before the return day.
(c) As to the mode of service, see r 4(3) and (4).
(d) The originating summons (except that of a sheriff) must be supported by evidence that the
applicant:
(i) claims no interest in the subject-matter in dispute other than for charges or costs;
(ii) does not collude with any of the claimants to that subject-matter; and
(iii) is willing to pay or transfer that subject-matter into Court or to dispose of it as the Court
may direct.
Hearing of the Originating Summons or Notice of Application
See O 17 r 5.
(i) One claimant does not appear – barred from prosecuting claim.
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(ii) Parties appear

(1) Summary disposal, or
(2) Trial
Court’s Power to Grant Relief
See Tan Kau Tiah @ Tan Ching Hai v Tetuan Teh Kim Teh, Salina & Co (a firm) & Anor supra.
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OFFER TO SETTLE
(Order 22B)
History and Nature
Rationale and Objective
Procedure
(a) Either party may make offer in Form 34: (r 1)
(b) At any time before the Court disposes of the matter: (r 2)
Time for Acceptance and Withdrawal
See r 3 and Form 35
Deemed an Offer of Compromise Made Without Prejudice Save as to Costs: (r 4)
Offer Not to be Disclosed
See r 5
Manner of Acceptance
See r 6
Party Under Disability
See r 7
Failure to Comply with an Accepted Offer to Settle
See the option available to the other party under r 8.
Costs: (r 9)
Joint and Several Liability and Offer to Contribute: (rr 10 and 11)
Counterclaim and Third Party Claims: (r 12)
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INTERIM PAYMENT
(Order 22A)
Applicable Law and Procedural Rules
See s 25A CJA 1964 and O 22A
Rationale and Purpose
Jamil bin Harun v Yang Kamsiah [1984] 1 MLJ 217;

David Chelliah v Monorail [2005] 1 CLJ 589;
Mediahouse v Koh Kim Suan [1998] 1 LNS 451;
Bunga Raya Auto Credit Sdn Bhd v Atlas Housing Sdn Bhd & Ors [2008] 4 MLJ 289; and
American International Assurance Co Ltd v Wong Cheng Yaw [2009] 3 SLR 1117
Application: When and How?
Order 22A rule 2 –
(1) The plaintiff may, at any time after the writ has been served on a defendant and the time
limited for him to acknowledge service has expired, apply to the Court for an order requiring
the defendant to make an interim payment.
(2) An application under this rule shall be made by notice of application in Form 33 but may be
included in an application for summary judgment under Order 14.
(3) An application under this rule shall be supported by an affidavit which shall-
(a) verify the amount of the damages, debt or other sum to which the application relates
and the grounds of the application;
(b) exhibit any documentary evidence relied on by the plaintiff in support of the
application; and
(c) if the plaintiff's claim is made under Part III of the Civil Law Act 1956, contain the full
particulars of the person for whom and on whose behalf the action is being brought and
of the nature of the claim in respect of which damages are sought to be recovered.
(4) The notice of application and a copy of the affidavit in support and any documents exhibited
thereto shall be served on the defendant against whom the order is sought not less than 14 clear
days before the return day.
“Test” for Making an Order for Interim Payment
See O 22A r 3(1).
Grounds for Contesting Application
 Technical objection under r 3(2)(a)-(c); or

 On the merits by showing there is a serious doubt as to whether the plaintiff will recover anything;
or
 On quantum – i.e., that as a result of taking into account contributory negligence, set-off or
counterclaim, there isn’t much left for the plaintiff.
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Injunctions
1. Classification
(a) prohibitory – see s. 52 SRA 1950 and illustrations thereto.
(b) mandatory – see s. 53 SRA 1950 and illustrations thereto.
See Gibb & Co v Malaysia Building Society [1982] 1 MLJ 271 and Victory Enterprise v
Chin Wei Yoon [2005] 2 MLJ 743
(c) perpetual (order made after hearing both sides, in the normal course, to bind the parties
finally).
(d) interlocutory, interim or temporary (until full hearing – see Form 58).
See also Bank Islam Malaysia Bhd v Tinta Press [1986] 1 MLJ 256.
(e) Ex parte.
(f) Quia timet (P’s right is threatened but not yet infringed).
(g) Special forms e.g. Mareva and Anton Piller.
2. Injunction against the government: See s.29(2), Government Proceedings Act 1956 and
s.54 SRA 1950
Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12

Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 3 MLJ
325 CA
Superintendent of Lands and Surveys, Kuching Division & Ors v Kuching Waterfront
Development Sdn Bhd [2009] 5 MLJ 607
Tidalmarine Engineering Sdn Bhd v Kerajaan Malaysia (Jabatan Kerja Raya Malaysia
Cawangan Terengganu) [2011] 2 MLJ 400 HC
3. Interlocutory injunction
(a) Procedure
(i) case not urgent – O. 29 r. 1(3)

(ii) case urgent – O. 29 r. 1(2-3)
(iii) contents of affidavit – O. 29 r. 1(2A)
(iv) matters to be considered by the court
See American Cynamid v Ethicon [1975] A.C. 396

Sunrise v First Profile [1997] 1 CLJ 529
Keet Gerald Francis v Mohd Noor & Ors [1995] 1 CLJ 293
Tan See Siong & Anor v Herman Ando [2011] 3 MLJ 429
Mohamed Zainuddin v Yap Chee Seng [1978] 1 MLJ 40

Lim Hean Pin v Thean Seng Co Sdn Bhd [1992] 2 MLJ 10
Goh Joon Hui v MACPA [1997] 2 MLJ
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(b) Application must be prompt
Delay “may be calculated to throw considerable doubt upon the reality of his alleged
injury”. Lord Chelmsford LC in Ware v Regent’s Canal Co [1858] 3 De G & J 212, 44 ER
1250.
Evercrisp Snack Products v Sweeties Food Industries [1980] 2 MLJ 297;

Haji Wan Habib v Datuk Patinggi Haji Abdul Taib Mahmud [1986] 2 MLJ 198.
(c) Form of order – Form 53,
(d) Duration – see O. 29 r. 1(2B)
See RIH Services etc v Tanjung Tuan Hotel Sdn Bhd [2002] 3 MLJ 1
(e) Undertaking as to damages.
Elias bin Mooin v Dato Zainal Abidin [1997] 3 CLJ 455

Keet Gerald Francis v Modh Noor & Ors [1995] 1 CLJ 293
(f) Failure to comply.
(g) Grounds for discharge.
(h) Defamation actions – see Woodward v Hutchins [1977] 2 All E.R. 751.
(i) Preservation of property – Niino & Co Ltd v Kow Lup Kai [1992] 1 MLJ 463.
(j) Ex-parte application not possible if the effect is to stop the holding or progress of a
meeting of a body corporate, a society, an association, a union, an organisation, a club or
a body of persons – see O. 29 r. 2(2c).
See Datuk Kayveas v PV Das [1997] 3 MLJ 671
(k) Dissolution of an interlocutory injunction – main action not affected by res judicata on
issue estoppel: Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors
[1993] 3 MLJ 352.
(k) Suppression of material facts discretion of the court (see e.g. Noor Jahan v Md Yusoff
[1994] 1 M.L.J. 156.
Note: O. 29 r. 1 was amended in 2000
(a) in paragraph (2B), by substituting for the words “two weeks” the words “21 days”; and
(b) by inserting after paragraph (2B) the following paragraph
“(2BA) The ex parte interim injunction must be served on the relevant party within one
week of the date of the order granting the interim injunction, and the Court when granting
the injunction must forthwith fix a date for inter partes hearing to be held before the expiry
of the 21 days.”
4. Ad Interim Injunction
An ad interim injunction may be granted pursuant to an earlier successful ex parte application

which is now pending hearing on an inter partes basis.
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It is invoked when
(i) there has been an ex parte order granting an interlocutory injunction. (Under Order
29 rule 1(2B), an injunction obtained on an ex parte application shall automatically
lapse at the end of 21 days from the date on which it was granted); AND
(ii) The hearing of the application inter partes to set aside or to extend the injunction is
beyond the 21-day period.
See Jakob Renner (an infant suing by his father and next friend, Gilbert Renner) v Scott King
Chairman of the Board of Directors of International School KL [2000] 3 CLJ 569
RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel [2002] 3 CLJ 83
Sam Peng Thong & Ors v. Tetap Meriah Sdn Bhd [2002] 1 CLJ 105
Cheah Cheng Lan v. Heng Yea Lee [2001] 1 CLJ 727
5. Erinford Injunction
Erinford Properties Ltd v Chechire County Council [1974] 2 All ER 448

Cheah Theam Swee v OUB Ltd [1989] 1 CLJ 157
Cocoa Processors v UMBC [1989] 1 CLJ 183
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THE MAREVA INJUNCTION
1. Nature, origin and development
See Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093 and

Third Chandris Shipping Corporation & Ors v Unimarine S.A. [1979] 2 All E.R. 972
Abdoolcader F.J. in S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ
62
“The order known as a Mareva injunction – so named after the case of Mareva Compania
Naviera SA v International Bulkcarriers SA decided in June, 1975 and the second case in
which the English Court of Appeal granted this form of relief – is a species of interlocutory
injunction which restraints a defendant by himself or by his agents or servants or
otherwise from removing from the jurisdiction or disposing of or dealing with those of his
assets that will or may be necessary to meet a plaintiff’s pending claim.”
2. Jurisdiction to grant a Mareva injunction in Malaysia
In Zainal Abidin v Century Hotel Sdn Bhd [1982] 1 MLJ 260 the Federal Court held that paragraph
6 of the Schedule to the Courts of Judicature Act gave the High Court jurisdiction to grant a
Mareva injunction.
3. Procedure for application
(a) ex parte summons; affidavit must satisfy O. 29 r. 2A:
Motor Sports etc Ltd v Delcont (M) Sdn Bhd [1996] 2 MLJ 605
(b) requirements
(i) “good arguable case” (See the Rasu Maritima S.A. v Perusahaan etc Negara
[1978] 1 Q.B. 644)
(ii) Third Chandris case: Lord Denning M.R. set out certain guidelines - First, he laid
emphasis upon a full and frank disclosure by the plaintiff of all matters within his
knowledge which are material for the judge to know. Secondly, he said that the
plaintiff must set out the grounds of his claim with particularity and the amount
thereof, and fairly state the points made against it by the defendant. Thirdly, the
plaintiff should give some grounds for believing that the defendant has assets
within the jurisdiction, and fourthly, some grounds for believing that there is a risk
of those assets being removed from the jurisdiction before the judgment or award
is satisfied.
(iii) Duty to make full and frank disclosure: Creative Furnishing Sdn Bhd v Wong Koi
[1989] 2 M.L.J. 153.
(iv) See also Bank Bumiputra v Lorrain Osman & Ors [1985] 2 M.L.J. 236; S & F
International Limited v Trans-Con Engineering Sdn Bhd supra; Ace King Pte v
Circus Americano Ltd [1985] 2 M.L.J. 75; Creative Furnishing Sdn Bhd v Wong
Koi supra; Ang Chee Huat v Engelbach T. Joseph [1995] 2 MLJ 83; Tsoi Ping
Kwan v Loh Lai Ngoh [1997] 3 MLJ 165; Biasamas Sdn Bhd v Kan Yan
Heng [1998] 4 MLJ 1.
(v) Discovery in aid: court has a discretionary power.
15
See cases in The Supreme Court Practice (White Book)
4. There must be a real risk that the Defendants will or may remove their assets from the jurisdiction
or dispose of them within the jurisdiction so as to render them unavailable or untraceable.
See Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd [1984] 2 M.L.J. 143; Regent
Decorators (M) Sdn Bhd v Michael Chee [1984] 2 M.L.J. 78; Bank Bumiputra v Lorrain Osman,
supra, SF International Ltd v Trans-Con Engineering, supra and Ace King Ltd v Circus
Americano, supra.
5. Order must make provisions for living expenses and payment of ordinary debts.
6. Plaintiff obtains no priority
The Cretan Harmony [1978] 1 Lloyd’s Rep. 425; Iraqi Ministry v Arcepey [1980] 1 All E.R.
480; Ace King v Circus Americano Ltd. supra
7. Protection of rights of third parties
Galaxia Maritime v Mineralimporriexport [1982] 1 All E.R. 796; Bank Bumiputra Bhd v
Lorrain Osman & Ors supra; Ace King v Circus Americano Ltd, supra.
8. Foreign Assets: Derby v Weldon (No. 2) [1989] 1 All ER 1002; Republic of Haiti v Duvalier
[1989] 1 All ER 456; Rossell NV v Oriental Commercial & Shipping Ltd [1990] 3 All E.R. 545 (CA)
(unusual measure; should rarely be granted); Crédit Suisse Fides Trust SA v Cuoghi [1997] 3 All
ER 724 and Metrowangsa Assets Management Sdn Bhd v Ahmad B Hj Hassan [2005] 1 MLJ 654
9. Dissolution or Discharge of a Mareva injunction
16
THE “ANTON PILLER” INJUNCTION
1. Nature of the “Anton Piller” Injunction
See Anton Piller K.G v Manufacturing Processes Ltd [1976] 1 All ER 779; Lian Keow Sdn Bhd v
C. Paramjothy & Anor [1982] 1 M.L.J. 217; and Arthur Anderson & Co v Interfood Sdn Bhd [2005]
6 MLJ 239
Yusof Abdul Rashid J in the Lian Keow Sdn Bhd case
“Thus, in most exceptional circumstances, the court has jurisdiction to order a defendant
to permit the plaintiffs’ representatives to enter the defendant’s premises to inspect and
remove vital material which the defendant might destroy or dispose of so as to defeat the
ends of justice before an inter partes application for an injunction could be made.”
See also Television Broadcasis Ltd v Mandarin Video Holdings Bhd [1983] 2 M.L.J. 346; Penerbit
Fajar Bakti Sdn Bhd v Cahaya Surya Buku & Alat Tulis [1989] 1 M.L.J. 386; Computerland Corp v
Yew Seng Computers [1991] 3 MLJ 201; Columbia Pictures v Robinson [1986] 3 All ER 338.
2. Procedure for Application
3. Conditions for Making of the Order
Ormrod LJ in the Anton Piller case: “The proposed order is at the extremity of this court’s powers.
Such orders, therefore, will rarely be made, and only when there is no alter native way of
ensuring that justice is done to the applicant.
There are three essential pre-conditions for the making of such an order in my judgment. First,
there must be an extremely strong prima facie case. Secondly, the damage, potential or actual,
must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants
have in their possession incriminating documents or things, and that there is a real possibility that
they may destroy such material before any application inter partes can be made.”
4. The court has a discretion to grant an Anton Piller order to enable the preservation of a document
which did not itself form the subject matter of the action, where the documents was the best
possible evidence (per Lord Denning) or essential evidence to put forward his claim (Donaldson
LJ).
See Yousif v Salama [1980] 3 All ER 405

Lian Keow Sdn Bhd v C. Paranjothy [1982] 1 MLJ 217
5. Enforcing an Anton Piller Order
See the Anton Piller case at p 167 (Ormrod LJ) and the Lian Keow Sdn Bhd case at p
218-219 (Yusof Abdul Rashid J))
See also Arjunan & Ors v Kesatuan etc Ladang & Ors [1993] 1 MLJ 326.
Entry need not be immediate; permissible after a reasonable time for D to obtain
legal advice -
Bhimji v Chatwani [1991] 1 All ER 705
6. Privilege against Self-Incrimination
(i) Rank Film Distributors Ltd & Ors v Video Information Centre & Ors [1981] 2 All ER 76
(ii) [English] Supreme Court Act 1981, s. 72
17
(iii) Section 132 Evidence Act 1960
(iv) Television Broadcasts & Ors v Mandarin Video Holdings Sdn Bhd, supra.
(v) P M K Rajah v Worldwide Commodities Sdn Bhd & Ors [1985] 1 MLJ 86; Arjunan & Ors
v Kesatuan etc Ladang & Ors [1993] 1 MLJ 326; and Meridian Asset Management Sdn
Bhd v Ong Kheng Hoe & Ors [2008] 3 MLJ 184, CA
7. Setting Aside an Anton Piller Order
See Supreme Court Practice (The White Book)

Solid Gold etc v Chan Wee Ho [2002] 3 MLJ 310
8. After Judgment
May be made in aid of execution.
18
DISMISSAL FOR WANT OF PROSECUTION
1. Under the Rules e.g. see O. 19 r. 1 and O. 25 r. 1(4).
1A. See O. 3 r. 6.
2. Under the inherent jurisdiction of the Court
See Birkett v James [1977] 2 All E.R. 801 (H.L.);

Toh Hock Thye & Ors v Toh Chwee How [1982] 1 MLJ 152, Salleh Abas F.J. (as he was then):
“[W]e propose for the purpose of this appeal to state the principle which would guide us in
deciding this appeal and be thus – that the plaintiff’s action is liable to be dismissed for want of
prosecution what the court is satisfied that (1) the plaintiff’s default has been intentional and
............................ or (2) the plaintiff or his lawyer is guilty of such inordinate and inexcusable
delay ............. the defendant has been prejudiced by it.”
See (i) Contumelious conduct e.g. disobedience of a peremptory order or abuse of

process of the court - Wallersteiner v Moir [1974] 3 All E.R. 217
Bar to fresh action
(ii) Prolonged and inordinate delay - prejudice

Hongkong Bank v Raja Letchumi [1996] 2 MLJ 34 (CA) (suit filed in 1982, order
for early trial in July 1982, directions for trial in November 1982, but for ten years
P took no positive steps to fix suit for hearing).
Vasudevan v Damodaran [1981] 2 MLJ 150
Confidence Concrete Sdn Bhd v Shimizu-Peremba Sdn Bhd [1994] 1 MLJ 465
UMBC Bhd v Palm & Vegetable Oils (M) Sdn Bhd & Ors [1994] 3 MLJ 73
(delay caused by “earnest desire” of both parties to reach a settlement: no
prejudice).
Datuk Samy Velu v Karpal Singh [1989] 3 MLJ 493 (“(I)t is clear that prejudice is
not limited to matters affecting proof such as the disappearance of a witness or
documentary evidence. A professional (like the defendant, who is a lawyer) may
be prejudiced by having an action hanging over his head indefinitely”).
(iii) Position where limitation period has not expired (see Bailey v Bailey [1983] 3 All
E.R. 495 (C.A.)
(a) intentional or contumelious conduct – limitation irrelevant – new action

abuse of process
(b) non-contumelious – as P could bring a new action is it proper to dismiss?

(See Bailey supra, and Lord Diplock in Birkett, supra (p. 808)) “a
conclusive reason for not dismissing.”
Wong Sin Meng v Wong Sam Moi & Anor [1991] 2 MLJ 277
Te Cheng Hoi v Peh Im Kweng [1994] 2 MLJ 547
Genesis v Mobikom Sdn Bhd [2003] 4 MLJ 263
(iv) Filing afresh
(a) contumelious conduct
(b) non-contumelious conduct; Palaniappan v Ramanathan [1972] 1 MLJ

227
19
TRIAL
1. Mode (O 33)
Three modes r. 1
2. Preliminary points rr 2 and 5

Usually questions of law that may conclude the suit.
3. Absence of parties (O 35 r 1)
(a) Both parties absent

(b) D absent. See Hup San Timber Trading v Tan Ah Lan [1979] 1 MLJ 238
(c) P absent
(i) D has no counterclaim
(ii) D has a counterclaim
(d) Dismissal for non-appearance not res judicata – New India Assurance v Karam Singh
[1972] 2 MLJ 26 (F.C.)
See Tee Ha Leong v Messrs Low & Lim [2005] 4 MLJ 426
 After the plaintiff's counsel's oral application for postponement was refused, this court ordered the
plaintiff's counsel to commence presentation of the plaintiffs case. Mr Rajadevan informed this
court that since the plaintiff himself is the only witness, he could not proceed, Accordingly, I
dismissed the plaintiff's case with cost.
 By the manner and approach adopted in this application, the plaintiff is treating the order of the
court handed down on 21 September 2004 as a striking out order. This is not a correct reflection.
To reiterate, this case was not struck out on 21 September 2004; it was dismissed.
 Having considered the above authorities, which are all made- by courts of concurrent jurisdiction,
I am of the view that there is a distinction between striking out and dismissing a case. If the case
if struck out then O 35 r 2(1) of the RHC can be utilised to apply for reinstatement. But when the
case is dismissed, as in this instance case, then the avenue open to the aggrieved party is to
appeal. This is based on the rational that the case was already heard on merits.
 Even if I have erred on this of law and that the plaintiff has locus to apply to reinstate this action I
am of the opinion that this application should fail for reason that the plaintiff has, to quote the
words of Peh Swee Chin J in Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan 'either
intentional or contumacious' absent himself during the hearing date despite being informed that
his case would be heard and his application for adjournment disallowed well in advance before
the date of hearing. And his attendance could have been maintained for reasons expressed
earlier such as making alternative arrangement to accompany his son for enrolment into a
university overseas.
4. Adjournment (O 35 r 3)
Good reasons essential

Go Pak Hoong Tractor v Syarikat Pasir Perdana [1982] 1 MLJ 77
Lee Ah Tee v Ong Tiow Pheng & Ors [1984] 1 MLJ 107
Judge should not make an order “as would defeat the rights of a party and destroy them
altogether unless he is satisfied that [the absent party] has been guilty of such conduct that
justice can only be properly done to the other party by coming to the conclusion”: Atkin L.J. in
Maxwell v Keun [1928] 1 K.B. 645. An appeal court will be slow to interfere with the judges
discretion. Examples of interference are: Dick v Piller [1943] 1 K.B. 497; Hup San etc Bhd v Tan
Ah Lan [1979] 1 MLJ 238.
20
Appellate court would not interfere “unless it can be demonstrated to a conviction that the refusal
resulted in the deprivation of essential justice” to a party: MGG Pillai v Tan Sri Dato Vincent Tan
Chee Yioun [1995] 2 MLJ 493.
5. Course of trial
(a) Right to begin

Judge has discretion (r. 4(1));
Normally P will begin (r. 4(2)) but where the burden of proof of all issues on D, D is
entitled to begin.
Chong Chee Yun v Germilla Sdn Bhd [2001] 5 MLJ 264

Lo Khi On etc v Tanjung Aru Hotel Sdn Bhd [1994] 3 MLJ 766
Kulandi v Subramaniam [1983] 1 C.L.J. 302
Muthurasu Pillai v Pakir Mohamed (1929) 7 FMSLR 70
(b) Order of speeches

(i) Situation where P begins and D elects to adduce evidence.
(ii) Situation where P begins and D does not elect to adduce evidence
(iii) r. 4(7)
5A. Evidence
(a) Attendance of witnesses: O. 38 r. 14 - 23

(b) Evidence by deposition: O. 39
(c) Affidavits: O. 41. See also new O. 35A.
(d) Application of Hollington v Hewthorn in Malaysia – see [2001] 2 MLJ 1iii
5B. Agreed bundle
Henry Trading Co Ltd v Harun [1966] 2 M.L.J. 281.

Yap Choo v Tahir b. Yasin [1970] 2 M.L.J. 138; Goh Yu Tian v Tan Song Gou & Ors [1981] 2
M.L.J. 317 [Affirmed [1983] 1 M.L.J 60 (C.A.)]; Chong Khee Sang v Phang Ah Chee [1984] 1
M.L.J. 377; Practice Note 2 of 1977; Borneo Housing Mortgage Finance Bhd v P.R. of the Estate
of Lee Lun Wah & Anor [1994] 1 M.L.J. 209.
6. Submission of no case to answer
(a) May be made by D either if no case has been established in law or the evidence led is
unsatisfactory or unrealiable (Yuill v Yuill [1945] P. 15).
(b) Judge should generally refuse to rule on such a submission unless D. makes it clear that
he does not intend to call evidence (Laurie v Raglan Co. [1942] 1 K.B. 152 (C.A.).
(c) Judge is not bound so to refuse and if does not put D to his election whether to call
evidence or not, D retains his right to call it if his submission fails (Young v Rank [1950] 2
K.B. 510; Storey v Storey [1961] P. 63 C.A.).
(d) For the reasons behind these rules see Alexander v Rayson [1936] 1 K.B. 169.
(e) See also (i) U.N. Pandey v Hotel Marco Polo [1980] 1 MLJ 4
(ii) Tan Song Gou v Goh Ya Tian [1983] 1 MLJ 60
(iii) Ng Neoh Ha & Ors v Maniam & Ors [1994] 1 MLJ 434 (Made by
two out of six defendants. Is cross-examination calling of
evidence?).
21
7. Judgment and Orders: O. 42
(a) See generally O. 42.
(b) Pronounced but not yet perfected may be recalled and further arguments heard: Tan Ah
Yeo v Seow Teck Ming [1989] 2 MLJ 3.
(c) Consent judgments and orders; setting aside such judgments or orders.
Lau Ming Hing Richard v Bank Pembangunan Malaysia Bhd [1994] 2 MLJ 323 (same
principles as though the judgment was a contract or compromise of which rescission is
sought). Lian Mong Yee v Abdul Rashid [2001] 4 MLJ 38 (void contract because of
illegal consideration).
See also Khaw Poh Chhuan v Ng Gaik Peng [1996] 1 MLJ 761 and Gai Hin Refrigeration
Sdn Bhd v Kamanis Holdings Sdn Bhd [2005] 1 MLJ 293
(a) See Chief Registrar’s Circular No 4 of 2010.
8. Interest (O 42 r 12, CLA s. 11)
New Zealand Insurance Co Ltd v Ong Choon Lin [1992] 1 MLJ 185 (court has a discretion under
s. 11 CLA 1956 to award pre-judgment interest).
22
COSTS
1. Meaning
(a) Remuneration which a party pays to his own solicitor.
(b) The sum which one litigant pays to another litigant to compensate the latter for the
expense which he has incurred in the litigation.
2. An order for costs is essential
See Order 59 rule 3(1) and the exception under Order 59 rule 11.
3. Discretion of the court
(a) Court’s power to award costs is discretionary (See Order 59 rule 2(2)).
(b) As between litigants the general principle is “costs follow the event” i.e. the loser pays the
winner’s costs and is left to bear his own costs (See Order 59 rule 3(2)).
(c) The general rule sometimes gives way in particular circumstances. For example, the
court may award the winner only a proportion of his costs or his costs from or up to a
specified stage of the proceedings. Sometimes the court may make no order as to costs,
in which case each party will be left to bear his own. Sometimes the winner may have to
pay the loser’s costs of certain matters.
(d) Exceptions to the rule that costs follow the event:
(i) Claim under an illegal contract
Cheng Mun Siah v Tan Nam Su [1980] 2 MLJ 269.
(ii) Misconduct or neglect
See Chen Chow Lek v Tan Yew Lai [1983] 1 MLJ 170 (F.C.)
(iii) Successful on a point not raised below
Anna Jong Yu Hiong v Government of Sarawak [1972] 2 MLJ 244 (F.C.)
(iv) Relevant authorities not cited
Re Syed Alsagoff, Decd. (1961) 27 MLJ 150
In this appeal case it was discovered that the appellant had not referred two “very
relevant” cases to the learned judge. Although the appeal was allowed no order
as to costs was made for both the appeal and trial stages.
(v) For cases (“a very unusual thing”) where the successful party was asked to pay
the loser’s costs see Chen Chow Lek v Tan Yew Lai [1983] 1 MLJ 170 (FC);
Petroliam Nasional Bhd & Anor v Cheah Kam Chiew [1987] 1 MLJ 25.
(vi) Other exceptions, see for example Order 59 rules 4, 5. 8 and 10.
23
4. Costs against advocate and solicitor personally or a non-party
See Order 59 rule 6 and Karpal Singh v Atip bin Ali [1987] 1 MLJ 291.
See also Karting Club of Singapore v David Mak [1992] 2 SLR 483 and Takako Sakao (f) v Ng
Pek Yuen (f) & Anor (No 3) [2010] 2 MLJ 141 FC.
5. Stage of proceedings at which costs are to be dealt with
See Order 59 rule 7
6. Quantum of Costs
See Order 59 rule 16 on the basis of assessment
 Standard basis;
 Indemnity basis;
 Solicitor and client basis; and
 Trustee basis
7. Several Parties
(a) General principles.
(b) Bullock and Sanderson Orders
Assume P is a passenger in a vehicle driven by D which collides with a vehicle driven by

E. P sues D and E. D and E blame each other for the collision. At the trial D is held to be
solely liable. (See Muniandy v Tan Lian Hock (1963) 29 MLJ 230).
The Court may make a Bullock order in the following terms:
(i) Judgment for P against D with costs

(ii) Claim against E dismissed; P to pay E’s costs
(iii) D to pay P costs so paid by P to E
In some circumstances D (the unsuccessful defendant) will be ordered to pay E’s (the successful
defendant’s) costs to him directly. Thus if P is insolvent a Bullock order will not assist E to
recover his costs. In such a case a Sanderson order in the following terms will be useful:
(a) Judgment for P against D with costs

(b) Claim against E dismissed; D to pay E’s costs
See the following cases:
Bullock v London General Omnibus [1907] 1 K.B. 264

Sanderson v Biyth Theatre [1903] 2 K.B. 533
For an example of a Bullock order see Federal Flour Mills Ltd. v “Ta Tung” [1971] 2 MLJ 201 Per
Abdul Hamid J as he was then)
“In this case, I am quite satisfied that in view of the circumstances of this particular case,
the plaintiffs were quite justified in bringing in the second defendants as co-defendents.
Nevertheless, what the court has to consider is this. If costs of the second defendants
are ordered to be paid direct by the first defendants, it might amount to completely
depriving the second defendants of their costs. The only asset of the first defendants
24
prior to instituting the action was the ship which was arrested by the plaintiffs. It was later
released on a bank guarantee to the extent of $190,000 which sum in actual fact
represented the only sum available to satisfy the claim including interest and costs. The
plaintiffs’ claim excluding interest at 6% and costs amounts to $169,291.34. The amount
guaranteed is therefore quite insufficient to cover even the plaintiffs’ claim.
In view of these circumstances, I am of the opinion that the proper order as to costs of
the second defendants is to order the plaintiffs to pay the second defendants’ costs. The
costs of the second defendants paid by the plaintiffs shall be included in the costs to be
paid by this first defendants to the plaintiffs.”
8. Costs of interlocutory proceedings
There are many ways in which a court may deal with costs of the many interlocutory stages of
action. See Order 59 rules 20 and 21 and Order 59 rule 1(3).
(a) Reserved costs
Question of the incidence and amount of costs is postponed to the end of the trial.
(b) Costs in cause: Plaintiff’s costs in the cause, Plaintiff’s costs in any event, Plaintiff’s costs
Lord Denning M.R. in J.T. Stratford & Son Ltd. v Lindley No. 2 [1969] 1 W.L.R. 1547
described these orders:
“There is no definition in any law book of the words `costs in the cause.’ But
every pupil on his first day in chambers is told what it means. `Costs in the
cause’ means that the costs of those interlocutory proceedings are to be
awarded according to the final award of costs in the action. If the plaintiff wins
and gets an order for his costs, he gets those interlocutory costs as part of his
costs of the action against the defendant. Vice-versa, if the defendant wins and
gets an order for his costs, he gets those interlocutory costs as part of his costs
of the action against the plaintiff ... `Plaintiff’s costs in the cause’ means that if the
plaintiff wins, he gets the costs of the interlocutory proceedings: but, if he loses,
he does not have to pay the other side’s costs of them. `Plaintiff’s costs in any
event’ means that, no matter who wins or loses, when the case is decided, or
settled, the plaintiff is to have the costs of those interlocutory proceedings.
`Plaintiff’s costs’ means that the plaintiff is to have the costs of the interlocutory
proceedings without waiting for a decision.”
(c) Defendants costs in the cause, defendants costs in any event, defendants costs
These have corresponding meanings to (b).
(d) Costs thrown away
The order “costs thrown away” is often made on a successful application to set aside a
judgment obtained in default of appearance or defence, and indicates that the defendant
must pay all the plaintiff’s costs which have been reasonably incurred ... If, however, the
judgment set aside was obtained irregularly, so that the defendant was entitled to have it
set aside, he will be awarded the “costs thrown away.”
(e) Costs of the day
Costs awarded against a party who makes a successful application for the postponement
of a hearing.
25
9. Security for costs (Order 23)
Kasturi Palm Products v Palmex Industries Sdn Bhd [1986] 2 MLJ 310
Faridah Begum v Dato’ Michael Chong [1995] 2 MLJ 404
Badrul Zaman bin PS Md Zakariah v Mohd Aris bin Chonin [2006] MLJU 340
Order 23 rule 1:
(a) P ordinarily resident out of the jurisdiction

(b) P nominal plaintiff and there is reason to believe that he will be unable to pay
(c) P’s address not stated or is incorrectly stated (unless mis-statement innocently made)
(d) P changed address during proceedings to evade consequences of litigation.
Companies Act 1965 – Section 351:
(a) P a registered company

(b) credible testimony that there is reason to believe that the company will be unable to pay.
KD Resources Sdn Bhd v Ng Boon Jieh & Sow Realty [2003] 1 AMR 588
Exercise of the discretion
(a) Is P’s claim bona fide? Has he reasonably good prospects of success?
(b) Is there an admission by D?
(c) Is the application oppressive e.g. to stifle a genuine claim?
(d) Has P’s want of means been brought about by D?
(e) Stage of the proceedings at which application is made (should be made as early as
possible) (see A Co v K Ltd [1987] 3 All ER 377).
See also Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074; Skrine & Co. v MBF
Capital Bhd & Anor [1998] 3 MLJ 649
26
ENFORCEMENT OF JUDGMENTS
1. Time limit
(a) See s. 6(3) Limitation Act 1953; (Sabah) Limitation Ordinance (Cap. 72) – see Part V of
the Schedule; (Sarawak) Limitation Ordinance (Cap. 49) – see Part V of the Schedule.
Daud v Ibrahim (1961) 27 MLJ 43
(b) Execution after 6 years but before 12 years

Leave necessary in the case of writs of execution.
See O. 46 r. 2(1)(a) and Tio Chee Hing v Chung Khiaw Bank [1981] 1 MLJ 227; Affin
Bank v Wan Abdul Rahman [2003] 2 MLJ 509
2. Generally no execution against the Government
See s. 33(4) Government Proceedings Act 1956

See also s. 35 of the same Act (see under garnishment below)
See Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321
3. Discovery in aid of execution
See O. 48 and s. 4 Debtors Act 1957
4. Enforcement of money judgments under R.H.C. 1980
By (a) writ of seizure and sale

(b) garnishee proceedings
(c) charging order
(d) appointment of receiver
(e) where O. 45 r. 5 applies, an order of committal
5. Seizure and Sale
(a) Applicable both in respect of movables and immovables
(b) See form 88
(c) Procedure for application and issue – O. 46 r. 1-6

(i) where leave is required
(ii) where leave is not required/or if required already obtained
(d) Seizure of movables subject to s. 3 Debtors Act 1957
(e) Execution by Sheriff
For appointment, powers and duties of Sheriff see

(i) Section 12 C.J.A. 1964
(ii) O. 46 r. 14-26
(f) Immovable property
(i) Procedure – O. 47 r. 6 and 7

(ii) Prohibitory order: issue, registration, service and duration of validity
(6 months – subject to renewal)
(See section 334 N.L.C. – “an order made pursuant to an order of court”)
Ban Hin Lee etc Bhd v Utama etc Bhd [1991] 2 MLJ 327
27
(iii) Sale of land – r. 7

Summons for direction
6. Garnishee Proceedings (O. 49)
(a) Recovery by creditor of money “due or accruing due” to a judgment debtor in the hands
of a third party (garnishee). See Kedah Kelang Papan v Hansol [1988] 1 MLJ 434 and
Capital Insurance Bhd v Cheong Heng Loong Goldsmith (KL) Sdn Bhd [2005] 6 MLJ 593
(b) garnishee must be within jurisdiction – r. 1(1)
(c) First stage: application for order to show cause – r. 1(2)
(i) See form 98/affidavit form 99

(ii) Procedure for application – r. 2
(iii) Order will specify time and place for further consideration
(iv) Service of the order – r. 3(1)
(v) Effect of the order – r. 3(2)
(d) Further consideration
(i) Garnishee does not attend or does not dispute the debt due – order absolute (r.
4(1))
See Form 100
(ii) Garnishee disputes liability
(a) summary disposal;
Sykt Long Lian Trading v Roxy Malaysia [1978] 1 MLJ 221
(b) trial of issue
(e) Garnishee cannot set-off debt owing to him by garnisher (judgment creditor). (Sampson v
Seaton Railway Co (1875) LR 10 QB 28). Garnishee can avail himself of a set-off against
judgment debtor (see Saw Swan Kee v Sim Lim Finance [1985] 1 MLJ 221).
See also Malaysian International Trading Corporation Sdn Bhd v RHB Bank Bhd [2016] 2
CLJ 717.
(f) Claims of third persons

See r. 6
See also Abdul Samad v Public Bank [1985] 1 MLJ 150
(See also Behn Meyer etc v Agropharm etc [1988] 2 MLJ 636 (intervener cannot set
aside an order absolute (George J)).
(g) Money payable by the Government to another

Under s. 35, Government Proceedings Act can be attached only with the consent of the
Minister of Finance in the case of the Federal Government or the Chief Minister in the
case of a State Government.
(h) Statutes forbidding attachment of debts
(i) Section 19 of the Pensions Act 1980, except for the purpose of satisfying (i) a
debt due to the Government or (ii) an order of Court for the maintenance of the
pensioner’s wife or former wife or minor child.
(ii) Section 142(1)(1) of the Merchant Shipping Ordinance 1952, as regards wages
due or accruing to a seaman or apprentice to the sea service.
28
(iii) Section 11 of the Workmen’s Compensation Act 1952 provides that save as
provided by the Act, no lump sum or half-monthly payment payable under the Act
shall in any way be capable of being assigned or charged or liable to attachment
or pass to any person other than the workman by operation of law nor shall any
claim be set off against the same.
(iv) Section 35(1) of the Bank Simpanan Nasional Act 1974 whereby no deposit in
the Bank and no interest on any deposit shall be attached, sequestered or levied
upon for or in respect of any debt or claim whatsoever, but upon notice of a claim
under a judgment of any court, the Bank may in its discretion retain in the
account of a sum sufficient to answer the claim and to pay the amount into Court
on its order, but the Court can only make the order if it is satisfied that the
judgment-debtor has an account with the bank for his own sole benefit.
(v) S. 51 Employees Provident Fund Act 1991.
7. Charging Orders (O. 50)
(a) Applies only to securities; see definition in r. 2(3)
(b) First stage: show cause order

(i) Procedure – r. 3
(ii) Show cause order will specify time and place of further consideration
(iii) Service – r. 4
(iv) Effect of show cause order – r. 5
(c) Further consideration – r. 6

Order absolute
(d) Sale of securities charged
8. Equitable execution (O. 51)
(a) Execution by appointment of a receiver

(b) On appointment of receivers
(c) When applicable
(d) Factors that will be taken into consideration
(e) Procedure O. 30 r. 1 – either summons or motion either ex parte or inter partes
(f) Security normally required (O. 30 r. 2)
9. Judgment Debtor Summons (s. 4 Debtors Act 1957)
(a) Court may summon and examine judgment debtor – s. 4(1)

(b) Orders the court may make – s. 4(6)
(c) Enforcement of the court’s order – s. 4(7)
10. Writ of possession (O. 45 r. 3)
(a) Enforcement of a judgment or order for the giving of possession of immovable property
See Leong Ah Weng v Neoh Thean Soo [1983] 2 MLJ 119
(b) See Form 90
(c) Procedure
(d) See also s. 17 Control of Rent Act 1966
29
11. Writ of Delivery (O. 45 r. 4)
(a) When applicable
(b) See Form 89
(c) Procedure
12. Enforcement of Foreign Judgments
(a) Recognition and enforcement at Common Law
(b) Reciprocal Enforcement of Judgment Act, 1958
(c) See O. 67; United Overseas Bank Ltd v Wong Hai Ong [1999] 1 MLJ 474
See “The Recognition & The Enforcement of Foreign Judgments” by L. Marasinghe

[1985] JMCL 197-223 and Ritz Carlton Casino Ltd v Datuk Seri Osu Haji Sukam [2005] 6
MLJ 760
13. Execution in the Subordinate Courts
See S.C.R. O. 30 - 34
14. Bankruptcy Proceedings
15. Winding up of Companies
Part X of the Companies Act, 1965, particularly

ss. 219, 222, 223, 224
30
APPEALS
1. Appeals are creatures of statute
Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549, FC
Mejat Najmuddin v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385, FC
2. Appeals from the subordinate courts
(a) See ss. 27 & 28 C.J.A. 1964.
(1) Appealable as of right only if amount in dispute is RM10,000 or more; or

(2) <RM10,000 in not appealable UNLESS
(i) the matter involves a question of law [s 28(1)];

(ii) written law otherwise provides [s 28(1)]; or
(iii) decision relating to maintenance of wives or children [s 28(2)]
Kannaya & Anor v Teh Swee Eng [1994] 1 MLJ 508 (no question of law involved: appeal
dismissed)
Austral Amalgamated Tin Bhd and another appeal v Abdul Wahab bin Kopen & Ors and
another appeal [2004] 2 CLJ 316 (amount was less than RM10,000 but CA says
appealable to HC because decision of Labour Officer under s 77 of the Employment Act
can be appealed with no restriction on monetary limit)
Mohamad Safuan v Mohd Ridhuan [1994] 2 MLJ 187 (must identify the Q of law in the
Notice of Appeal)
Ravintharan a/l Perumal v Kuppusamy a/l Aiyasamy [2005] 4 MLJ 280.
(b) Commencement of the appeal – see O. 49 r. 1 S.C.R. 1980. See Lee Lan v Lim Yoon
Loy & Ors [1991] 3 MLJ 419 (SC). Meaning of decision – see Seabance lwn
Dynabuilders Sdn Bhd [2002] 5 MLJ 152.
(c) Appeal documents and procedure – see O. 49 S.C.R. 1980; O. 55 R.H.C. 1980
Extension of time: Beauford etc v Gopala Krishnan [2002] 4 AMR 4462.
(d) Cross appeal
(e) Further appeal – ss. 67(1) and 68(1) C.J.A. 1964. See the decisions of the Federal Court
in Abdul Ghaffar bin Md Amin v Ibrahim bin Yusoff & Anor [2008] 3 MLJ 771; Sia Cheng
Soon & Anor v Tengku Ismail bin Tengku Ibrahim [2008] 3 MLJ 753 and Anantha
Kiruisan & Anor v Teoh Chu Thong [2008] 4 MLJ 672.
3. Appeals from the Registrar of the High Court
(a) To judge in Chambers – O. 56 r. 1. See also s. 3 CJA 1964 and Teoh Poh Keong etc v
Shinhan Engineering [2001] 2 MLJ 50; Sitrac supra; Syarikat Tingan supra.
(b) Commencement of the appeal

Form 114
Time limits
(c) Further appeal – ss. 67(1) and 68(1) CJA 1964
31
4. Appeals to the High Court from statutory bodies and tribunals
Subject to the procedure specified in the relevant statute the appeal must be brought in
accordance with O. 55 r. 13. See Syarikat Maltaco Sdn. Bhd. v Eow Teh Yu & Ors [1985] 2 MLJ
19.
5. Appeals from the High Court
See section 68 of the CJA
(a) Non-Appealable:
(i) Consent Judgment or Order: S 68(1)(b). What you do is go by OS to set aside

the judgment: Khaw Poh Chhuan v Ng Gaik Peng.
(ii) Written law (says judgment of HC shall be final): s 68(1)(d). S 33A(7) IRA
declares decision of HC as final and conclusive.
(b) With Leave of the Court of Appeal
(i) Amount or value of subject matter is less than RM250,000; s 68(1)(a). See
Malayan Banking Bhd v Basarudin Ahmad Khan [2004] 4 CLJ 596; Amer
Mohideen Dawood v Sneh Bhar [1996] 2 MLJ; Monohary Teresa v Tan Ah Lek
[1995] 3 MLJ 365; and Yai Yen Hon v Teng Ah Kok etc [1997] 1 MLJ 136
(ii) Costs (involving exercise of discretion). S 68 (1)(c).
(iii) Against an interpleader summons in a summary way. S 68(3).
(c) As of Right
(i) amount or value of subject matter > RM250,000; s 68(1)(a)
(ii) Costs (with no discretion involved) S 68 (1)(c).
(iii) a judgment given after trial of interpleader S 68(3).
(d) Procedure for obtaining leave: see RCA 1994 r. 16 (within the time limited for appeal) and
r. 27 (by motion). Court may enlarge time.
(e) Commencement (entry) of appeal by filing Form 1 in the relevant High Court within one
month: r. 5, r. 17. Serve on respondent within the time limited for appeal: r. 6. Both entry
& service must be within time limited for appeal: Soh Keng Hian v A.I.A Co Ltd [1996] 1
MLJ 191.
(f) Time limit for appeal is one month (see r. 12); extension of time.
(g) Record of appeal: duty to serve; time limit. see r. 18.
See Soon Huat Construction Sdn Bhd v Kiong Siang Construction Sdn Bhd [1999] 4 MLJ
(solicitor’s mistake).
6. Appeal does not operate as a stay of execution
See ss. 73 and 102 of the C.J.A. 1964: See also rule 13 of the Rules of the Court of Appeal 1994
and R 52 of the Rules of the Federal Court 1995.
32
Main case: Kosma Palm Oil v Koperasi Serbausaha [2004] 1 MLJ 257 (FC).
7. Hearing of appeals before Court of Appeal (s. 69 CJA)
(a) By way of re-hearing; has all the powers of High Court.
(b) Discretionary power to receive further evidence.
(c) When evidence may be given without leave (s. 69(2)).
(d) When evidence may be given only with leave (s. 69(3)).
See Ladd v Marshall [1954] 3 All ER 745. Ladd’s case applied in Kok Fook Sang v Juta
(M) Sdn Bhd & Ors [1996] 2 MLJ 666
See also Teo Hock Guan & Anor v Johore Builders [1996] 2 MLJ 596.
(e) Power to order new trial (s. 71(1)).
(f) When new trial shall not be granted (s. 71(2)).
(g) Immaterial errors (s. 72).
(h) Raising a point not raised before trial judge.
Haji Ali bin Haji Othman v Telekom Malaysia [2003] 3 MLJ 29
(i) Interference with findings of fact and findings of credibility by trial judge.
Eng Thye Plantations v Lim Heng Hock [2001] 4 MLJ 26 (failure to consider relevant
evidence)
China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517 (FC)
Anvest Corp Sdn Bhd v Wong Siew Choong Sdn Bhd [1998] 2 MLJ 31
Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1
Misdirection of trial judge on evidence: Oh Beng Hai v Dickson Wong (M) Sdn Bhd [2001]
2 MLJ 315
8. The Federal Court
(a) Appeal to the FC is NOT as of right but by an admission procedure – called an

application for leave. To obtain leave you must bring your case within S 96(a) or (b). But
see Datuk Bandar KL v KLGCC Bhd [2005] 1 MLJ 65.
Kredin v OCBC purpose of leave requirement is not to overburden the apex court.
Two requirements under s. 96(a)
(i) matter must have originated in the HC:
AND
(ii) matter involves (1) a question of general principle decided for the first time Dato’
Seri Anwar Ibrahim v Dato’ Seri Dr Mahathir [2001] 2 MLJ 65 or (2) a question of
importance upon which further argument and a decision of the FC would be to
public advantage. Datuk Syed Kechik v Board of Trustees of Sabah Foundation
33
[1999] 1 MLJ 257; Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor
[2005] 2 CLJ 713
See also Foo Fio Na v Dr Soo Fook Mun [2002] 2 CLJ 11

Lam Kong v Thong Guan [2000] 3 CLJ 769
Megat Najmuddin v Bank Bumiputra [2002] 1 MLJ 385
Requirement under s. 96(b)
Any decision as to the effect of any provision of the Constitution including the validity of
any written law relating to such provision
(b) Leave to Appeal
See s. 97 of the CJA and take note of the time limit for appeal, extension of time and
powers regarding execution.
(c) Incidental directions and interim orders (s. 80)
(d) Orders; costs (s. 99)
(e) New evidence; new points
(f) Interference with findings of credibility and findings of facts
(g) New trial
(i) Power to order (s. 100(1))

(ii) When shall not be granted (s. 100(2))
(iii) Immaterial errors (s. 100(3))
(g) Appeal not to operate as a stay of execution (s. 102). See also s. 97 above.
9. Meaning of “decision” under s. 3 of the CJA
See: Seabance, supra; Sitrac Corp v Lim Siew Eng [2002] 3 AMR 3748; Samsuddin b. Ismail v
Yeoh Onn Theam [2003] 6 MLJ 596; Shorga v Amanah Raya Bhd [2004] 1 MLJ 143; Syarikat
Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd [2003] 3 AMR 13 (CA); and Lam Kong v
Thong Guan [2000] 3 CLJ 769.
34

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LXEA 4121: Civil Procedure II (2016/2017)

The Normal Course of a Civil Suit and Its Consequences

Summary Judgment and Its Nature

Importance of Summary Judgment

Summary Judgment and Striking Out

SUMMARY JUDGMENT UNDER ORDER 14

When not available

Procedure for Obtaining Summary Judgment

(i) the defendant must have entered an appearance;

(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

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

Who makes affidavit?

Hearing of the Notice of Application

Appaduray v Ananda [1982] 1 MLJ 292

(c) D raises set-off or counterclaim

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

(e) Special rules concerning cheques

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

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

(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;

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

(j) The case is one of construction

(k) Can the court determine questions of law?

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

(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?

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.

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

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);

SUMMARY PROCEEDINGS FOR POSSESSION OF LAND

THIRD PARTY PROCEEDINGS

(a) Claims to contribution: O 16 r. 1(1)(a)

(i) one of several trustees sued in breach of trust

Zulkifle bin Sabarudin v Fauziah Bte Arshad [2005] 5 MLJ 229

(b) Indemnity: O 16 r 1(1)(a)

(a) surety and principal debtor

Third Party Notice

(a) D must first enter appearance (r 1(1)).

(i) action begun otherwise than by writ (r 1(2)).

Leave to Issue Third Party Notice: (r 2)

(a) By ex parte notice of application in Form 20

Summons for Third Party Directions: (r 4)

Plaintiff and Third Party

Failure to Enter Appearance or Serve Defence

Limitation against Third Party