Ultimate Note of Civil Procedure 2

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 Contents

Chapter Topic Page

1 Part 1 – Summary Judgement (Order 14) 1 – 22

Part 2 – Summary Judgement (Order 81) 23 – 27
Part 3 – Summary Judgement (Order 89) 28 – 33
2 Third Party Proceedings 34 – 41
3 Interpleader Proceedings 42 – 46
4 Part 1 – Injunction 47 – 63
Part 2 – Mareva Injunction 64 – 75
5 Trial 76 – 96
6 Costs 97 – 111
7 Enforcement of Judgement (Money Judgement) 112 – 122
8 Enforcement of Judgement (Non-Money Judgement) 123 – 129

The note that you are using now is the result of the collective hard work done by all the students mentioned in the
cover. The lecture notes contributors had to listen back to Dr Sujata’s lecture recordings to type out these notes. All
these notes had to be checked and edited by the editors to avoid any wrong or incomplete information. So, if you are
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 Chapter 1 (Part 1) - Summary Judgment Under Order 14

1) The Normal Course of a Civil Suit and Its Consequences

1. PF would file for the issuance of writ and SOC, which are then served on DF.
2. DF would have to enter an appearance, and DF would then usually file a defence.
3. PF may file a reply, and the pleading will close thereafter.
4. After the close of pleadings, there might be interlocutory applications e.g. amendment of pleadings or
application for injunctions. There would also be case management for the parties to prepare for trial.
5. After case management, the trial will take place e.g. calling of evidence and adducing of evidence.
6. At the end of trial, the court will give judgment.
7. Sometimes, after the judgment is given, if any party is not satisfied with the judgment, he may appeal.

Consequence => This whole process, however, may take a long time. This leads to the problematic
consequence — if a PF has a clear-cut case against a DF i.e. PF has a case against DF and DF does not
have an arguable defence to PF’s claim, then it would be unfair for PF to go through the entire process of
civil trial.

There are 4 aspects of SJ in this chapter:

1. Nature and importance
2. When is SJ not available?
3. Procedure
4. Hearing

2) Summary Judgment and Its Nature

● To overcome this problem/delay, the Rules of Court have devised a procedure/mechanism where a PF
can obtain judgment against a DF without having to go for trial, and this procedure is called summary
judgment (‘SJ’).
● The underlying policy of SJ is to prevent delay to PF in cases where DF has no defence to PF’s case.
● Definition of SJ :
SJ is a procedure where a PF can apply for judgment against a DF without having to prove his case
at a trial. It allows a PF to obtain judgment against DF at a very early stage of civil proceedings.

2.1) Governing Rule of SJ

● The main rule that governs SJ is O.14.
● O14r1(1)
: Where … a statement of claim has been served on a defendant and that defendant has entered an
appearance in the action, the plaintiff may, on the ground that the defendant has no defence to
a claim included in the writ… apply to the Court for judgment against that defendant.
.
- SJ should only be applicable when Df has entered appearance.
- SJ should only be applied for when a PF has a clear-cut case (aka the Df has no defence) 1
against DF. If DF has some arguable defence, PF should not apply for SJ and the matter
should go for trial.
- The application for SJ is only applicable to actions begun by writ – because only in actions
commenced by writ will there be a trial (cf there will be no trial for actions begun my
originating summons). Most of the time, SJ is applied by a PF (who initiates an action), but DF
may also apply for SJ when he has a counterclaim against PF.

1
but sometimes, even if the Df has defence but the defence is bullshit, you can struck out the defence under O18,
then apply for SJ again.
1 | Page
 [UNP Plywood v HSBC Bank Malaysia]
Held : Summary judgment procedure is a procedural device available for prompt and expeditious
disposition of an action by a PF or a counterclaim by a DF, without a trial when there is no
dispute as to the fact and law.

[Alliance Finance v Cahaya Kelang Construction]

Held : SJ prevents a PF clearly entitled to the money from being delayed his judgment where there
is no fairly arguable defence to the claim. The HC noted that SJ should only be applied when
there is no reasonable doubt that PF is entitled to judgment. Such procedure is not
intended to shut out a DF, and should be exercised only in very clear cases.

3) Instances where SJ is not available

Generally, if a PF has a clear-cut case, and if he feels that DF has no defence, he is entitled to apply for SJ.
However, there are some instances where SJ is not available, even if the P has a clear-cut case:

(a) O14 r.1(2)

O.14 r.1(2) lists out 7 instances:
1. In cases involving libel.
2. In cases involving slander.
3. In cases involving false imprisonment.
4. In cases involving malicious prosecution.
5. In cases involving breach of promise of marriage.
6. In cases involving seduction.
7. In cases where there is an allegation of fraud.

- Thus, if PF’s claim involves any of these 7 matters, PF cannot apply for SJ. If PF still apply for
SJ, PF’s application will be dismissed with cost.
- Rationale: SJ is not available for these 7 instances because of historical reason — ours Rules of
Courts were inherited from England, and in England (those days under their old ROC), for these
7 instances, DF had the choice to elect for a jury trial. Since such choice was available, there
cannot be a SJ, and there must be a trial.

(b) O.43, O.81 and O.89: Specific Claims

- SJ is not available if PF’s case falls under these provisions. These provisions deal with certain
type of claims:
1. O.43 (application for account),
2. O.81 (application for specific performance in relation to land) and
3. O.89 (application for recovery of possession of land).

- Rationale: These provisions have their own procedure for SJ which are provided in that rule
itself. Thus, if a claim falls under these provisions, a PF must apply for SJ under these provisions
and not under O.14. In other words, O.14 is an order for SJ generally, but if there is a specific
rule providing for SJ procedure for a particular claim, that rule applies.

(c) O.73 r.5(1): Claim against Government

A PF cannot apply for SJ against the government (both Federal and State government). If a PF does
so, the application will be dismissed with cost. However, the government can apply for SJ if it is a
PF.

(d) Other grounds:

1. SJ will not be available where DF can raise a triable issue.
2. SJ will not be available where DF can raise a technical objection i.e. a non-compliance with
procedure in the Rules.
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4) Procedure for Obtaining Summary Judgment
The procedure for obtaining SJ will be divided into 3 stages:

4.1) Preliminary requirements

● An application for SJ is applied for by way of a notice of application (Form 57) supported by an
affidavit (Form 30).
● More importantly, before a PF can apply for SJ, he has to first satisfy 2 preliminary
requirements:
1. DF must have entered an appearance to PF’s claim
2. The writ and SOC must have been served on DF.

[National Company for Foreign Trade v Kayu Raya Sdn Bhd]

Held: Once these 2 requirements are satisfied, then PF will be eligible to apply for SJ.

● Once Pf is eligible for SJ, the Pf must do so ASAP.

4.1.1) Burden
[Cempaka Finance Bhd v Ho Lai Ying]
Held : PF does not need to prove his case in an application for SJ. Instead, he only needs to
satisfy the conditions:
1. DF has entered appearance,
2. SOC has been served on DF,
3. affidavit in support complies with O.14 r.2.
Once these conditions are fulfilled, then the burden shifts to DF to raise triable issues.

4.2) Time for P to apply for SJ

● Once PF is eligible to apply for SJ, he must apply for SJ as soon as possible. If a PF delays in
applying for SJ after he becomes eligible, his delay may be a bar to his application for SJ.
● The courts have devised a rule that application for SJ should be applied for before DF files his
defence.
- If PF files his application after DF has filed his defence, then PF is deemed to have delayed in
his application.
- Consequence: If there is a delay, PF has to give reasons as to why he delayed in his
application. It is up to the court to decide whether to accept his reasons or not.

[Krishnamurthy v Malayan Finance Corp]

Fact : PF has delayed in his application because DF had already served its defence.
Held : Hence, it is for PF to give sufficient explanation for his delay, and if the reasons for
his delay are unacceptable, PF may not be allowed to proceed with his SJ application.

Example of situations:
[CGIR v Weng Lok Mining]
Fact : PF applied for SJ against DF for a claim of income tax and penalty due and payable
by DF under the Income Tax Ordinance. However, the application was made 3
months after DF filed his defence – a clear-cut delay. PF explained that the
Department of Inland Revenue is a very large department, heavily loaded with work
and shorthanded, and the situation was aggravated by the intervening Puasa hours,
court vacation and festivities, namely Hari Raya Puasa, Christmas and the New Year
holidays.
Held : The court accepted the reason, and held that the delay of 3 months in the
circumstances of the case is not inordinate and does not warrant a dismissal of the
application.

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 [British American etc Insurance Bhd v Pembinaan Fal Bhd]
Fact : PF explained that the reason of their delay in application for SJ was due to a change
of solicitor.
Held :but the court did not accept the explanation.

p/s:
- [MBSB v Ghazi bin Hasbollah]
Held : there is no hard and fast rule that PF’s delay for a certain period is fatal to its
application for SJ. Whether a delay is to be regarded as fatal must depend on the
circumstances of each case, and it is absolutely up to the court’s discretion as to
whether the reasons of the delay are acceptable or not.

- [Perkapalan etc v Alpine Bulk Transport]

Held : There is nothing in the ROC that provides for such a requirement requiring the P to
file the SJ before the D files his defence, this is a rule laid down by the Court.

4.3) Service of the notice of application & affidavit : O.14 r.2(3)

● As mentioned, to get a SJ, the P can file a notice of application (Form 7) and supported by
affidavit (form 13)
● This section will explain the requirements and rules of notice of application and affidavit.

a) Notice of application
Mode of service a notice of application (O.62 r.6)
● The mode of service will be governed by O.62 r.6.
- Although O.14 is the governing rule for SJ, it does not prescribe a mode of service
for the application of SJ. O.14 is silent on the mode of service.
- So, where the specific rule is silent on the mode of service, the rule of general
application should be referred to.
- In ROC, there is a general rule on how documents should be served i.e. O.62 r.6
(rule of general application which prescribes a mode of service where a specific rule
does not prescribe the mode).
● Under O.62 r.6, there are 5 ways in which a document can be served:
i. By leaving the document at DF’s proper address2
ii. By sending the document by way of pre- paid registered post to DF’s proper
address (note: it is not A.R. Registered Post)
iii. By fax (and this will be governed with O.62 r.6(3)- only if you are applying with
solicitor)
iv. In any manner agreed by the parties (usually by contract)
v. In such manner as the court may direct

b) Affidavit requirements
● Affidavit is the heart and core of a SJ application. It is the main thing the court will look at in
deciding whether or not a PF is entitled to SJ. PF can only raise arguments which is stated in
the affidavit. Thus, an affidavit must comply with the procedural requirements, which is
found in O.14 r.2(1).
● There are two requirements under O.14 r.2(1):
1. Affidavit must comply with Form 13.
2. The affidavit must state/contain 2 matters:
2
Cn u serve a doc on the def’s address on the wife? Cn . This falls under this. If it says serve on the shop, on the
shop staff, it may be unclear whether it is the D's proper address
4 | Page
 i. The affidavit must verify PF’s claim
- It must clearly state what is the nature of PF’s claim against DF, must
explain fully what give rise to PF’s claim to DF, what happen, what PF is
claiming from DF etc.
- To do such verification, the rule of thumb is to draft affidavit in the way that
it states the same thing as the SOC.3
ii. The affidavit must contain a statement that, in the deponant’s belief, DF does not
have a defence to PF’s claim.
- A ‘deponant’ is the person who is making/signing the affidavit. An example
of such statement is ‘I verily believe that DF has no defence to this action’.
- A “deponent” can be the plaintiff or other person signing the affidavit.4

● Failure to comply with O.14 r.2(1) – there are 2 possible consequences:

i. Application may be dismissed with cost
[Chai Cheon Kam v Hua Joo]
Held : the requirement under 014 r2(1) is mandatory, and any incompliance will
render the application fail.

ii. The court may adjourn the O.14 hearing (SJ hearing) to allow PF to amend and
file a fresh affidavit which complies with the rules.
- Today, this is the most likely consequence, as the court regard technical
incompliance as fatal only when it results in a miscarriage of justice.

4.3.1) Time of service

O.14 r.2(3) : The notice of application and a copy of the affidavit must be served to DF
within 14 days from the receipt of the sealed copy of the application from
the court.
(When an application is filed to court, the Registrar will put a court’s seal on
the copy of the application, which will then be returned to the applicant. Such
a copy is called a ‘sealed copy’.)

● The time limit for serving notice of application and affidavit is governed by O14 r2(3) which
are 14 days after the receipt of the sealed copy of the application from the court.
● The purpose if serving these is to inform DF that PF is making an application for SJ.

5) Hearing
● Once P applied for SJ, that application will now come up for hearing at court
● Who hears SJ application?
o Previously all SJ (interlocutory application) were heard by Senior Assistant Registrar (SAR) or
Deputy Assistant Registrar
o Today summary judgement applications are heard by judge (mostly) in chambers (not in open
court, which is usually for trial). It is done in chambers because it is an interlocutory application
o The reason for this is to save time. If SAR heard it, if either party is unsatisfied, they will appeal to
the judge and judge will hear it.
● This heading will talk about possible matters that may occur at a hearing for SJ? And how will the court
deal with it if these things happen?
● What are the possible things that may occur in SJ hearing?

3
ie "I verily believe the D has no defence to this claim"
4
Who should be the deponent of the affidavit (making and signing the affidavit)? In most cases, it will be PF himself.
However, the deponent of O.14 affidavit does not need to be PF himself. Some other person may affirm the affidavit
on behalf of PF. This is because of the wordings in O.14 r.2(2) – “may contain statements of information and belief” –
these words point to the fact that O.14 affidavit does not have to be the deponent’s personal information (cf O.81 –
must contain personal statement).
5 | Page
 (a) Technical objections
(b) D shows that there is a triable issue
(c) D raises set-off or counterclaim
(d) D’s defence arouses suspicion

5.1) Technical objections

● D may raise technical objection to contest to the P’s application for SJ. (E.g. short or defective
service, defective affidavit etc.)
● There are 5 types of technical objections that may be raised:

No. Technical Elaboration Possible Outcome if raised

Error
1 P’s claim is O 14 r 1(2) lists out all those matters ● The application for SJ will be
excluded where P cannot apply for SJ:
under - libel
O 14 r 1(2)5 - slander
- malicious prosecution
- false imprisonment
- seduction
- breach of promise of marriage
- allegation of fraud
2 Defective ● The service of the SJ There are 2 possible outcomes:
service application is defective because i.
P did not comply with ROC in
serving the NOA and affidavit
on D.
● Service has 2 aspects: mode and
time limit
- D would normally raise:
wrong mode, i.e: not served
in accordance with O 62 r 6
(e.g. instead of registered ii.
post, P used ordinary post)
3 Defective Will be raised where P’s affidavit in There are 2 possible outcomes:
affidavit support does not comply with the i.
two requirements under O 14 r
2(1):8
- Follows Form 13
- Expressly states that in the
deponent's belief there is no
defence to that claim or no ii.
dismissed under O14 r7(1).
● This means that P has lost & P
has to pay cost for this SJ
application
Application for SJ may be
dismissed with cost. (However
this is improbable today)
- The Court usually does not
uphold technical objection
unless it occasions a
miscarriage of justice /
cause prejudice under
O1A6 & O2.7
Court may adjourn the hearing
to allow P to serve the NOA
and affidavit again to comply
with the ROC (more likely the
outcome)
Court may dismiss SJ
application with cost.
[Chai Cheon Kam]
Held: The requirements for
affidavit under O 14 r 2(1) are
mandatory.
Court may adjourn SJ hearing

5
O14r1(2): Subject to paragraph (3), this rule applies to every action begun by writ other than-
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of
promise of marriage; or
(b) a claim by the plaintiff based on an allegation of fraud.
6
O1A: Court or judge shall have regard to justice
7
O2: Effect of non-compliance
8
(1) An application under rule 1 must be supported by an affidavit in Form 13 verifying the facts on which the claim,
or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no
defence to that claim or part or no defence except as to the amount of damages claimed.
6 | Page
 defence to the damages
claimed.
4 Defective ● SOC filed by P is defective
Statement of ● D may raise such objection
Claim where P’s SOC is defective
because it does not disclose a
complete cause of action (COA)
- If no complete COA
disclosed in SOC, it can be
struck off
● Because COA is incomplete, the
SJ should also fail
5 Delay ● This may happen when P applies
for SJ after D has filed his
defence.
● However, Affidavit only assume
legal effect when it is sealed
[Perbadanan Nasional
Insurans Sdn Bhd v Pua Lai
Ong] [1996] 3 MLJ 85.
Facts: The P served his affidavit
in reply against the Defendant 2
days later than the 14 days limit
as prescribed by O 32 r 13 (2)(b).
Issue: Whether the time start to ● In practice, it is usually unlikely
run from the day it receives the
unsealed copy of affidavit or
sealed copy?
Held: The affidavit had no legal
effect until it is sealed. Thus, the
neither party has the obligation
to reply if it is unsealed.
to allow P to amend and file a
fresh affidavit to cure the
defect. (if the court not
following Chai Cheon Kam)
2 likely outcomes:
i. Court may dismiss SJ
application with cost
ii. Court may adjourn SJ hearing
to allow P to amend SOC to
cure the defect
P/s: Technical objection usually
will not be upheld unless it
occasions miscarriage of justice
● If P filed SJ application after D
filed his defence, there is the rule
that P has delayed his application
and this delay must be explained
by P and it is up to the court to
decide whether P’s reason is
acceptable.
- Court may require P to give
reason as to why he delayed
- If reasons are unacceptable,
court may dismiss SJ
application
court will dismiss SJ application
on ground of delay, unless the
delay is inordinate (e.g. SJ
application put in 6 months after
defence has been filed)
- If SJ application was put in 2
weeks, 1 month, 6 weeks
after the defence, court will
still allow the SJ application

● However, raising a technical objection in most cases is only to buy time / a delay tactic by D
- In most cases, technical objection will not allow D to escape SJ; he will still have to face the SJ,
it will only buy him some time.
- The only technical objection that is most likely to succeed is the first one (exclusion under O14
r1(2)) – this will allow D to escape SJ, the matter has to face the trial
- In other cases, the court will merely adjourn the hearing – the hearing for SJ will come up again
after P has cured the defect

5.2) D shows that there is a triable issue

● If D truly wants to escape SJ / defeat the SJ application, D has to raise a triable issue
● This is provided in O 14 r 3: 9

9
(1) Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant
satisfies the Court that there is an issue or question in dispute which ought to be tried, the Court may give such
judgment for the plaintiff against that defendant.
7 | Page
 Unless on the hearing of an application under rule 1 either the Court dismisses the application or
the defendant satisfies the Court that there is an issue or question in dispute which ought to be
tried, the Court may give such judgment for the plaintiff against that defendant.

Triable issue : an issue or question in dispute which ought to be tried (an issue that can only be
resolved at a trial)
● Cases explaining what amounts to a triable issue:

[Appaduray v Ananda]10
Fact : Case involving boundary dispute whereby P alleged D had encroached on P’s land. P sued
D and applied for SJ. One of the things P relied on was a surveyor’s report which confirmed
D had encroached on P’s land. D disputed the surveyor’s report. D said that the report was
wrong as it did not take into account certain matters concerning some boundary stones
Issue : Has D raised a triable issue and thus the matter has to go for trial
Held : There was a triable issue. The surveyor needs to be called, cross-examined and another
surveyor report needs to be obtained.
: Hence, there must be a trial for this action. P’s SJ application was dismissed, D escaped SJ
and the matter now has to go for trial

Other examples of how court decide what’s “triable issue”: (R = Respondent, A = Appellant)

[Ng Yik Seng v Perwira Habib Bank]11

Fact : The respondents granted overdraft to a company (the appellants were directors of the
company, stood as guarantors in their personal capacity). The overdraft was then not
repaid, so the respondent applied for SJ against the appellants. The appellants argued that
they did not sign the documents. There were great variations in the signatures on the
documents and in the specimens they provided.
Held : Genuineness of the appellants signature is a triable issue. So the appellants were granted
unconditional leave to defend.

● If the issue raised, even if existed, is not legal, then it is not a triable issue:
[Voo Min En v Leong Chung Fatt]12
Fact : The As applied for SJ but R alleged there was an oral agreement with the A to
renew lease. But the law shows that oral agreements to renew an existing lease are
inadmissible. Thus, the said oral agreement, if existed cannot be effective as it is
against the renewal clause in the written agreement. Therefore, the oral agreement
was valueless b/c not in writing nor registered.
Held : A triable issue must be an arguable issue. Where the issue raised is irrelevant,
ineffective or unarguable, SJ should be granted.
: In this case, the existence of an oral agreement (to renew the lease of the ground
floor of the demised premises) is really not an arguable issue as even if it existed, it is
neither effective nor admissible. Therefore, it does not constitute a triable issue. The
As are therefore entitled to the SJ.

[Ngui Mui Khin v Gillespie Brothers]13

Fact : The Aps gave a guarantee to the Rps with respect to certain transactions whereby
the Rps obtained judgment in the Singapore High Court against the Aps and sued the
Aps on the guarantee. The Aps in their defence contended that they were not liable
10
[1982] 1 MLJ 292
11
[1980] 2 MLJ 83
12
[1982] 2 MLJ 9
13
[1980] 2 MLJ 9
8 | Page
 on the guarantee because the transactions were in essence moneylending
transactions.
Held : The appellants' statement of defence did not disclose any serious defence requiring
trial as the confirming houses are a recognised institution in the promotion and
participation of export trade could not be held to be moneylending transactions.
: Hence, no triable issue and the Rps were granted with SJ under O14.

● Not so important but may be useful info:

In a hearing, if the D’s assertion of the “triable issue” is inconsistent with the evidence or fact, the
Court must reject his assertion and held the issue as “not triable”. Also, if the D wants to show that
there’s triable issue, the D can’t simply deny P’s assertion but the D must prove it14
● If D successfully raised a triable issue, what order will a court make at the SJ hearing? It depends the
knowledge of the P about the triable issue, there are 2 scenarios:
Scenario What order the court will make
P knew / could SJ application will be dismissed with cost (P is penalized as to cost – having
have reasonably known about the triable issue, P should not have applied for SJ)
anticipated the
triable issue
P did not know ● Court may order unconditional leave to defend with costs in the cause.
about the triable ● Meaning of the order:
issue / could not ▪ Unconditional leave to defend (1st part of the order):
have reasonably D is allowed to defend himself without any condition at a trial (D has
anticipated the the leave to defend himself unconditionally because D has shown a
triable issue triable issue)

▪ Costs in the cause (2nd part of the order):

- At the end of the SJ application, neither party is required to pay
cost. The payment of cost for SJ hearing is postponed to the end
of the trial, i.e. whoever loses the trial will have to pay for the
14
[Bank Negara Malaysia v Mohd Ismail]
Fact : This case concerns a scholarship agreement where the P sue the D, a student. The issue was
whether the student has raised any defence of triable issues.
Held : Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one
party, and denied or disputed by the other in an affidavit.
: Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with
undisputed contemporary documents or other statements by the same deponent, or is inherently
improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the
issue not triable. Unless this principle is adhered to, a judge is in no position to exercise his discretion
judicially in an O 14 application.

[Chen Heng Ping v Intradagang Merchant Bankers (M) Bhd]

Held : When an application is made for summary judgment under O 14 supported by an affidavit which
goes to show that there is no defence, the defendants must show cause why leave to defend must be
given.
: This means that the defendants must provide answers on oath which constitute evidence that they
have a defence which is fit to be tried. Denials in a defence do not constitute evidence. They are
challenges to the other side to show proof.
: In the present case the guarantors do not appear to have appreciated this. Their affidavits merely
relied on the defence they pleaded, which consists of bare denials and points of law which they could
not sustain.

[RHB Bank v Tan Swee Long Holdings Sdn Bhd]

Held : The defendants should be allowed to defend where the court is satisfied from the issue raised and
whether in the circumstances of the case there ought to be a trial. It is not enough for the defendant to
merely deny the amount owed but the defendant must plead any salient and relevant facts which
negative the existence of the debt or which show that the claim is not maintainable on other grounds.

9 | Page
 cost of SJ hearing.
- This means the SJ application failed BUT nobody needs to pay
the cost yet (here P is not penalized because he did not know
about the triable issue)

5.2.1) Whether triable issues raised by D are restricted to the issues stated in Statement of Defence
● At the time of SJ hearing, D has already filed his statement of defence. Thus, the question is, is D
restricted to only raising the issues raised in SOD or D Can raise issues which are over and
above those stated in the defence?
● The position for this has been changing:
Year Court Position Case
1989 High D can raise as [Lin Securities v Noon Sdn Bhd]15
Court O14 says “… H : D is not restricted to the issues and matters
otherwise..” that he raised in his defence. D can raise any
matter over and above those which are stated in
his defence.
: One of the reasons the Court arrived at this
decision was because of O 14 r 4(1) states that:
▪ In raising a triable issue, D can raise it “by
affidavit or otherwise”
▪ The word “otherwise” is deemed to be
quite wide. The order says nothing about D
being restricted to his SOD
2007 Court of D cannot raise [Ribaru Bina Sdn Bhd v Bakti Kausar Development
Appeal something that Sdn Bhd]16
he didn’t plead. Fact : This case concerns a building contract where
To allow it the D raised the defence of “no privity of
would be contract” which was not pleaded in the Ds’
procedurally defence nor was it raised in the affidavits filed
unfair. on their behalf.
Held : On a summons for judgment, a triable issue
must be raised by a D either by an affidavit filed
in opposition to the summons or in a statement
of defence.
: To raise triable issues by way of submission on
a point not raised in a defence or an affidavit
would not meet the requirements of procedural
fairness which is the essence of any litigation.

15
[1989] 1 MLJ 321.
16
[2007] 2 MLJ 221 at 225
10 | Page
 ● Compare Singapore position:
[Lim Leong Huat v Chip Hup Hup Kee Construction Pte Ltd]: 17 D can’t raise
[PMA Credit Opportunities Fund v Tantono Tiny]: 18 D can raise

5.2.2) Is SJ possible if damages have to be quantified (but no triable issue on liability)?

● In most cases, P will be asking D for damages. So, to obtain damages from D, there are 2 aspects
to prove:
i. liability (D is liable to pay)
ii. quantum (how much of damages is to be paid - amount)
● Sometimes at a SJ hearing, in raising a triable issue, D cannot raise triable issue as to liability
when D is clearly liable but what if D can raise triable issue as to quantum. (there are some
triable issues as to how much he has to pay.)
● If this happens, the P can get SJ as long as the D can’t raise triable issue as to its liability. The
court doesn’t care about issues as to quantum as it can be resolved later by the registrar.

[Avel Consultants Sdn Bhd v Mohd Zain]19

Fact: This case concerns breach of trust. It was very clear that D was liable for BOT, so no
defence for liability but D could raise issue on quantum of damages .
Q : should SJ be refused and should the matter proceed to trial?
H : Yes. In a SJ hearing, the court is only concerned with liability. If a D cannot raise any
triable issue as to liability, SJ will be granted against D. The question on the quantum of
damages can be resolved by a registrar in a separate hearing.

[Datuk Mohd Ali bin Hj Abdul Majid v Public Bank Berhad]20

Held : If D cannot raise triable issue as to liability, but can raise triable issue on quantum –
SJ should be entered because in SJ hearing, court is concerned with liability of D
only. If D has no triable issue as to liability (D is clearly liable), SJ will be entered
against D

*also take note of an Order in ROC about assessment of damages by Registrar

5.3) D raises set-off or counterclaim

● At SJ hearing, D may raise a set-off or a counterclaim. Can a set-off or a counterclaim defeat an
application for SJ?
● What is a set-off and a counterclaim?
o Both set-off and counterclaim are called cross-claims21 but there are different consequences.
17
[2008] 2 SLR 786
Held: A D is not allowed to raise a substantive allegation that was not pleaded in his defence. The pleadings
governed the issues between the parties throughout the action and they applied to all interlocutory
proceedings.
: Further, to allow a D to rely on an allegation that was not pleaded would undermine the ROC provision
that a P might apply for summary judgment only after the defence had been served: The purpose of the
amendment was so that a P would know the specific defence before applying for SJ. So, to allow a D to
raise a substantive allegation in his affidavit which was not pleaded in his defence would undermine the
purpose of the amendment.

18
[2011] 3 SLR 1021.
Held : The D is not bound by the four corners of his pleading.
:A defendant is bound by the four corners of his pleadings ONLY at the trial of the action, but not in a
SJ proceedings.
(The same judge, which heard the Lim Leong Huat’s case, suggested that his decision would have
been different if his attention had been drawn to the other High Court cases.)
19
[1985] 1 MLJ 157 (FC)
20
[2014] 6 CLJ 269 (FC)
21
you claim against me and I claim against you, our claims are crossing
11 | Page
 o Significant differences between the 2 were and their effects explained in [Permodalan
Plantations Sdn Bhd v Rachuta Sdn Bhd]22

[Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd]

Held : Difference
- Set-off is a cross-claim that is closely connected or arises from the same
claim/transaction as the P’s claim. A set-off is a valid defence to the P’s
action.
- A counterclaim is a cross-claim which is not closely connected to the P’s
claim and in fact it arises from a separate and independent
transaction/claim. A counterclaim is not a defence to the P’s action.
: Their effects
Types of cross Effect
claim
Set off If a valid set-off is raised by D, 2 possible outcomes:
i. If P knew about the set-off (or could have reasonably
anticipated the set-off), application for SJ will be
dismissed with cost.
- Having known about the set-off (which is a defence),
P should not have applied for SJ)

ii. If P did not know about the set-off or could not have
reasonably anticipated the set-off, the court will grant
unconditional leave to defend with costs in the cause.
- Because D has been able to raise a valid defence (set-
off) .
- Since P did not know about it, P will not be asked to
pay cost although SJ application is dismissed.

22
[1985] 1 MLJ 157
12 | Page
 Counterclaim If D raises a counterclaim (which is not a defence, unlike a set-
off) at SJ hearing:
▪ Whether P knew or did not know about the counterclaim is
irrelevant (because a counterclaim is not a defence).
▪ If D only raises a counterclaim and no other triable issue – SJ
will be granted to P, but with a stay of execution until the
counterclaim is disposed of under O14 r3(2).23
- i.e. P cannot execute his SJ against D until CC has been
resolved by court.
- P just does not get his money immediately, the
counterclaim has to be disposed of by the court first.

Can be supported with the case of [Ronald Quay Sdn Bhd v

Maheswary Sdn Bhd] 24

23
O14 r3(2): The Court may stay the execution of any judgment given against a defendant until after the trial of any
counterclaim made or raised by the defendant in the action.
24
[Ronald Quay Sdn Bhd v Maheswary Sdn Bhd] [1987] 1 MLJ 322 (counterclaim)
Fact: P claims sum from D as payment for services rendered. D admitted P rendered the services, but denied being
indebted. D also made a counterclaim for damages, alleging P breached its contractual obligations.
Held : Where there was a plausible counterclaim upon the hearing of an Order 14 application, even if judgment was
given for the plaintiff on his claim, there should be stay of execution pending the trial of the counterclaim.
13 | Page
 ● In Malaysia, our legal position on set-off and counterclaim is governed by Permodalan Plantation.
- In Singapore, they have a different approach in dealing with set-off and CC (mainly CC) their
framework is found in Kim Seng Orchid Pte Ltd v Lim Kah Hin [2017] SGHC 425
- See also J Pinsler, “A New Framework for Counterclaims in Summary Judgment Cases” at
https://lawgazette.com.sg/feature/new-framework-counterclaims-summary-judgment-cases/ 26

● Likewise, if the D makes an counterclaim, he can also apply for SJ under O14 r5 if the plaintiff has
no defence. All the rules governing SJ will apply analogously.

O14 r5 : Application for summary judgment on counterclaim

25
Fact: This case concerning a ;ease dispute. P sought to recover the subleased premises and claim damages for D’s
wrongful occupation. D denied wrongful occupation and counterclaimed for continued occupation of the premises (in
fact, D need not have raised CC at all – this could be just a matter of whether there was a triable issue raise by D at the
SJ hearing)
Held : D’s CC was rejected for lacking a reasonable possibility of success at trial (failed at the first step)

Chan Seng Onn J formulated a four-step approach:

1. consider whether the counterclaim is plausible in the sense that it has a reasonable possibility for success at the trial.
- If it is implausible, the plaintiff would be entitled to summary judgment and the Court would not stay execution of
the judgment until the trial of the counterclaim.
- If the counterclaim is plausible, the Court would take the second step.
2. to consider whether the CC constitutes a legal or equitable set-off.
- If the CC is a set-off, the defendant would be entitled to unconditional leave to defend the claim on the basis that
the defendant has shown a real defence.
- If the CC does not amount to a defence of set-off, the Court would then take the third and fourth steps - Court will
consider:
▪ whether the CC is sufficiently connected to the claim, and
▪ hether it would be just to stay the execution of the judgment until the trial of the CC 
3. Illustration for third and fourth steps
▪ The connection test would not be satisfied if the CC “arises out of quite a separate and distinct transaction or it is
wholly foreign to the claim”
▪ If the CC is not sufficiently connected to the claim, the Court “should generally grant SJ of the whole claim,
without a stay pending the determination of the unconnected counterclaim” (stop at the third step, no need to
proceed to the fourth step)
▪ If there is a sufficient connection between the CC and the claim, the Court would determine whether there is a
basis for staying the execution of the SJ (in respect of the entire claim or part of it) until the trial of the CC.
▪ However, where the amount of the SJ exceeds the amount of the CC, a stay would not be appropriate in respect
of the sum above the amount of the CC. Here the excess amount would be immediately payable by the
defendant.
▪ The question of whether or not a stay of the whole or a part of the judgment should be granted is ultimately a
matter for the Court’s discretion, to be exercised according to established principles including “the degree of
connection between the claim and counterclaim, the strength and quantum of the counterclaim and the ability of
the plaintiff to satisfy any judgment on the counterclaim”.

26
Impact of Kim Seng:

“Kim Seng is particularly significant for clarifying the approach of the Court towards counterclaims in summary
judgment proceedings, which had previously been plagued by unnecessary confusion and conceptual
uncertainty. This unhappy state of affairs had stemmed from the judgment of Bingham LJ in United Overseas
Ltd v Peter Robinson (trading as Top Shop), in which the learned Judge introduced a four-fold classification of
outcomes where the applicant for summary judgment is faced with a counterclaim.

First, where the defendant is able to show an arguable set-off, he would obtain unconditional leave to defend.

Secondly, where the defendant could set up “a bona fide counterclaim arising out of the same subject-matter
as the action and connected with the grounds of defence”, he would also be entitled to unconditional leave to
defend.

14 | Page
 (1) When a defendant to an action begun by writ has served a counterclaim on the plaintiff, the
defendant may, on the ground that the plaintiff has no defence to the counterclaim, apply for SJ.
(2) Rule 2,3, 4 would apply analogously.
(3) This rule doesn’t apply to counterclaim specified in rule 1(2)

5.4) D’s defence arouses suspicion

● When a DF is raising a triable issue at a SJ hearing, there are 3 possibilities.
No Scenario Consequence
1 The court may be It depends on the knowledge of the P.
convinced that the triable - If the P knew about the triable issue, the court will
issue raised by the DF is a dismiss the SJ application.
genuine triable issue - If P did not know/could not have anticipated, the Df will
have unconditional leave to defend.
2 The court may find that The court will grant SJ to the PF with costs.
the triable issue raised by
the DF is a sham, i.e.
triable issue not genuine.
3 The court is unsure ● This is when we say the DF’s defence has aroused the
whether the triable issue court’s suspicion, ie the court is suspicious as to whether
is genuine or the triable the triable issue is a real, genuine triable issue or a sham.
issue is a sham ● In this case, the court will give a specific order “conditional
leave to defend with payment into court of the whole or
part of the PF’s claim in x number of days, in default,
judgment to the PF with costs”

5.4.1) Meaning of “conditional leave to defend….. in default, judgment to the PF with costs”
● This means that the DF is allowed to defend himself but with the condition of paying a security
to court.
● The amount of security is either the whole or a part of the PF’s claim which id up to the court’s
discretion.
● The payment has to be made in “x number of days” which is also up to the court’s discretion.

Thirdly, where the defendant is unable to mount a defence to the claim but puts forward “a plausible
counterclaim” for an amount not less than the claim, judgment is to be given against him subject to a stay of
execution.

Fourthly, in the absence of any connection between the counterclaim and claim, no stay would be granted
against the execution of summary judgment.”

Problem with Bingham LJ’s classification:

1. The second category seems to be an elaboration of the first category concerning CCs which constitute set-
offs. The error of the second category was remedied by Chan J in Kim Seng. The learned Judge stated that if
the counterclaim does not amount to a defence of set-off, the Court would take the step of determining
whether there is a sufficient connection between the counterclaim and claim for the purpose for staying the
execution of the summary judgment until the trial of the counterclaim.
2. The use of the phrases “bona fide counterclaim” and “plausible counterclaim” in Bingham LJ’s 2nd and 3rd
classification. This begs the questions of whether good faith is the paramount consideration for the 2nd class
and a reasonably arguable case is the paramount consideration for the 3rd class. Shouldn’t it be a condition
for any counterclaim to be reasonably arguable before the Court even considers what the outcome of the
proceedings should be? In Kim Seng, Chan J quite correctly regarded the plausibility of the counterclaim to be
the very first consideration to be taken into account by the Court.
3. The requirement for a connection between the counterclaim and claim (for stay of execution of the judgment
pending the trial of the counterclaim) is not mentioned in Bingham LJ’s 3rd class of counterclaims. This
requirement of a sufficient connection is specifically addressed and emphasised by Chan J in the third and
fourth steps of the learned Judge’s new approach in Kim Seng.
15 | Page
 ● If the DF defaults in paying the payment into the court within the described number of days, PF
will get SJ with costs.
● If the DF pays, then proceeds to trial, but if the triable issue turns out to be a sham, then the DF
loses and the DF has to pay the costs.

[Fieldrank Ltd v. Stein] [1961] 3 All ER 683

Held : The judge should exercise its discretion to impose the condition of payment into
court against the DF when there is a reasonable doubt as to the DF’s good faith in
raising his defence.

[Coronation Electronics Ltd. v Lalchand Mahtani [1987] 1 MLJ 190

Held : the DF's defence that he doesn't have sufficient financial resources to fulfil the order
of conditional leave is shadowy and suspicious because the totality of the affidavit
evidence of the PF strongly suggests that the DF was fully aware of what was going
on between the PF and Tharoomals (a company) and indeed had participated in all the
relevant facets of the deal.

Other cases (merely illustrate why the Court doubted the DF’s defence with no importance
principles)27

5.5) Court’s power to dismiss an SJ application/ Stay of execution

● As discussed above, in some situations, the Court may dismiss an SJ application.
● This power is given under O14 r7:
(1) If the plaintiff made an SJ application and
- the application is not within the Order (doesn’t comply with the rules etc), or
- the plaintiff knew that the defendant relied on a contention which would entitle him to
unconditional leave to defend
the Court may dismiss the application with costs and may require the plaintiff to pay the costs.
(2) the Court also has the power to dismiss an SJ application made for counterclaim under r5.

● Also, if there is a counterclaim, the Court can grant SJ to plaintiff but stay its execution:

27
[Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd.] [1974] 2 MLJ 94
Held : There was considerable suspicion as to its bona fide as there was clearly very little substance in the
DF' claim to a right of set-off and counterclaim in respect of the alleged damages for the delay in the
completion of the works.

[QBE Supreme Insurance v Syarikat Chemas Pemborong Sdn Bhd] [1986] 1 MLJ 56
Held : the 2nd DF was given leave to defend on condition that he deposits the sum claimed within a month
into the court on reason that the learned judge doubted the bona fide of his defence, i.e. did in fact
sign the indemnity in his personal capacity.

[Law Mun v Chua Lai Seng [1984] 2 MLJ 328]

Held : The contention that a judge who gives leave to defend upon terms should not hear the case at the
trial is not supported by any authority. The contention is also not calculated to facilitate the efficient
disposal of cases but rather to delay the business of courts even further.

16 | Page
 O14 r3(2) : The Court may stay the execution of any judgment given against a defendant until
after the trial of any counterclaim made or raised by the defendant in the action.

5.6) “There ought for some other reason to be a trial of that claim” under Order 14 rule 3(1)28
● Under O14 r3(1), there are 3 situations which the Court may not give SJ, which is when:
i. the Court dismisses the SJ application, or
ii. there is an issue or question in dispute which ought to be tried or
iii. that there ought for some other reason to be a trial,
● So, as mentioned earlier, the P would generally get awarded for the SJ if the Df can’t raise a triable
issue, a set off or a valid technical objection etc.
● However, under O.14 r.3(1), the court has the discretion to disallow a SJ to a PF even if the DF is
unable to raise a triable issue/set off/valid technical objection.
● This is because of the words “there ought for some other reason to be a trial of that claim” under
O14 r3(1). These words give the court the discretion to disallow a SJ.
● Usually, the “some other reason” would be the interest of justice.

[Miles v Bull] [1969] 1 QB 258 (The leading English case on this issue.)
Facts : Case concerning the sale of a house. This house belonged to Mr A (registered owner of the
house). Mr A sold the house to Mr B. At all times, the house was occupied by Mrs A’s wife
(Mrs A), and Mrs A was separated from Mr A. Mrs A claimed that she didn’t know that the
house was sold. After the conclusion of the sale, Mr B asked Mrs A to move out from the
house as he is the owner of the house. Mrs A refused to leave the house. Mr B sued Mrs A for
possession of the house. He applied for SJ against Mrs A. At the SJ application, Mrs A was
unable to raise any triable issue as a defence because all she kept saying was the sale of the
house was a sham. This whole transaction was to evict her from the house. Whatever she
could say did not amount to triable issues.
Held : Even though Mrs A failed to raise a triable issue, she nevertheless satisfied the court that
there were circumstances which ought to be investigated. So, there were some “other
reasons for there to be a trial” and the reason was just.
: The whole case was concerning the sale of a house, all the facts concerning the sale of
house were controlled by Mr A. Mrs A had no idea about the sale of the house. Since she had
no knowledge of the facts, she was unable to raise any triable issue. Therefore, she should be
given an unconditional leave to defend the action with costs so as to allow her to ask for
discovery and cross-examine the witnesses. 29

● In reality, this discretion is barely exercised, the court must satisfy that there is some other reason.

[Concentrate Engineering Pte Ltd v UMBC Bhd [1990] 3 MLJ 1]

28
O. 14, r. 3(1):Unless
- the Court dismisses the SJ application, or
- there is an issue or question in dispute which ought to be tried or
- that there ought for some other reason to be a trial,
the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just
having regard to the nature of the remedy or relief claimed.
29
Quote mentioned by Megary J: “if a DF cannot point to a specific issue which ought to be tried, but nevertheless satisfies the
court that there are circumstances which ought to be investigated, then I think those concluding words (ought to be some other
reason) are invoked.”

17 | Page
 Facts : The PFs sued the DFs (bank) for honouring its cheques which were stolen and the
signatures were forged. The PFs applied for SJ. The DFs resisted PFs’ application on the
ground that police investigations were still going on.
Held: Unconditional leave to defend with costs in the cause was granted to the DFs as the
circumstances called for further investigations. The circumstances and audacity with which
the fraud was carried out and the absence of an explanation by the directors of the PFs
constitute 'some other reason' for a trial under O.14 r.3(1).
: Whatever the outcome of the main action, greater injustice would be done to the DFs if they
were not given leave to defend. If judgment is entered against them, there is a real likelihood
of the PFs terminating their overdraft facility with the DFs and withdrawing their fixed
deposit so that even if the DFs were able to prove fraud on the part of the PFs at some future
time, they might not be able to recover their loss.

[UMBC Bhd v Majlis Agama Islam [1999] 1 MLJ 657]

Facts : The PFs deposited RM1 million to the DFs bank. Later, when the PFs demanded for the
refund of the RM1 million., the DFs failed to comply. PFs then applied for SJ which was
granted by the trial judge since the DFs could not raise any defence. So, the DFs appeal
against the decision, contending that the fixed deposit receipts (which is the primary
evidence) were used as exhibits in another criminal case which concerned the PFs’ former
president’s charge for criminal breach of trust in respect of RM1 million deposited by the PFs
at the DFs’ branch.
Held : There are “circumstances which constitute 'some other reason to be a trial' in this case. This
is because the receipts concerned may have some bearing on the case. So, in the interests of
justice, the DFs should be given every opportunity to examine fully the record of the
criminal proceedings which inevitably may provide them some materials for their defence.
DFs were granted unconditional leave to defend.

[Danaharta Urus Sdn Bhd v. Safri Nawawi . (2010) 1 LNS 1173]

Facts : Initially, there were 2 parties 30 entered into a loan agreement where the DFs were
guarantors. Later, the PFs statutorily acquired this loan and became the creditor. Upon the
borrower’s failure to repay the loan, thee PFs sued the Dfs to claim the money. The PFs
claimed that the amount due was RM 34 million++ and applied for SJ which was granted by
the trail court. So, the DFs appealed inter alia on the basis that the statement of accounts
(which was used to prove the amount due) provided by the plaintiff were inadequate because
they did not show how the amount was reached.
Held : In this case, a brief statement of account is not enough to explain this sum as a complete and
detailed account is needed to prove how the amount of RM 34 million++ was arrived at.
Therefore, a full trial is needed to ascertain this amount. In that regard, this falls under the
ambit of 'there was some other reason to be a trial of the claim' and hence the DFs should be
granted leave to defend under O 14 r 3.

[Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd [1998] 6 MLJ 38]
Facts : PF applied for SJ against the DF for infringement of the PF’s copyright in respect of artistic
and literary works under the Copyright Act . The DF contended that there were “triable
issues” that could not be dismissed summarily by questioning the PF’s ownership of the
copyright in the label and the eligibility of the label for copyright protection.

30
Bank Bumiputra Malaysia Bhd ('BBMB') and Safire Pharmaceuticals (M) Sdn Bhd ('the borrower')
18 | Page
 Held : O.14 r.3(1) provides that SJ is to be refused when there is “an issue or question in dispute
which ought to be tried or that there ought for some other reason to be a trial of that claim.”
In the present case, there were “triable issues” because PFs’s contention that the artistic and
literary works concerned are original are mere assertions unsupported by evidence. Hence,
this is a trial issue which if SJ was granted, the PFs’ evidences would not be assessed when
they should have been tried by interrogatories, discovery and cross-examination.

5.7) Construction or interpretation of documents

● If a case involves the interpretation or the construction of a document, is such a case suitable for SJ
under O.14? Yes, as long as it is a short matter of construction involving a few statutory
provisions where there are no further facts that could emerge to show what the true
construction is.

[Esso Standard Malayan Berhad v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168]
Facts : This case involved interpreting the content of 3 letters. The trial court interpreted the 3
letters and found there was indeed a contract.
Held : An order under Order 14 should be made only if the court thinks it is a plain case and ought
not to go to trial. If one simply has a short matter of construction with a few documents,
the court on summary application should decide what in its judgment the true
construction is. There should be no reason to go formally to trial where no further facts
could emerge which would throw any light upon the letters that have to be construed.

[Carlsberg Brewery Malaysia Bhd v Soon Heng Aw &. Sons Sdn Bhd [1989] 1 MLJ 104]
Facts : This case concerned question of interpretation of the instrument of guarantee.
Held : This was a case where the document of guarantee was the foundation of the claim by the PF
and the rights and liabilities of the parties depend upon the true construction of the guarantee.
However, the court proceeded to grant SJ based on the construction of the terms of the
document.

5.7.1) Construction or interpretation of a statute

● SJ can also be used for cases which involves a short matter of construction involving a few
statutory provisions.

[Fadzil bin Mohamed Noor v Universiti Teknologi Malaysia [1981] 2 MLJ 196]
Facts : Appellant (lecturer) was terminated from Universiti Teknologi Malaysia by
University Council. The appellant filed a specially indorsed writ for a declaration that
the purported dismissal by the respondents was ultra vires, illegal and void. He then
applied for SJ.
Held : In an Order 14 case on construction of a few documents, the court was only
concerned with what was the true construction. There was no need for trial when there
were no further facts that could emerge which would throw light on the documents
that had to be construed.
: In light of the construction of the Universities and University Colleges Act, 1971
and the Constitution of the University, the University had a hopeless case and the
application for SJ should be granted, as no useful purpose could be served by going
formally to trial as no further facts would emerge that would shed light on the true
construction of the legislation and document.

19 | Page
 [Ng Chin Swee v Koperasi Belia Bersatu Bhd [1987] 2 MLJ 510]
Facts : PF deposited money with DF. Subsequently, PF filed an action against DF when
they did not receive their money as promised by DF. The DF‘s defence was a bare
denial coupled with a plea in the Bar. The Senior Assistant Registrar found in favour
of the PF. DF appealed.
Held : Appeal dismissed with costs. There is nothing in the Essential (Protection of
Depositors) Order 1986 or in the Regulations which precludes third parties from filing
claims against DF. The action was properly filed. On the material before him, the
Registrar very properly gave judgment against DF. In the absence of an appeal, merits
and special reasons, no stay of execution could be ordered.
5.8) Can the court determine questions of law? Yes
[European Asian Bank A.G. v. Punjab and Sind Bank [1983] 1 Lloyd's Rep. 611]
Held :Even if the case involves a difficult question of law, it is not a bar from applying for SJ. If the
case goes on to trial, the same arguments will be “rehearsed” again at trial, which offends the very
purpose of O14 – to speedily dispose of a clear-cut case.

[Malayan Insurance (M) Sdn. Bhd. v Asia Hotel Sdn. Bhd. (1987) 2 MLJ 183]
Held : If the issue raised is solely a question of law but the facts are clear and undisputed, the court
should exercise its duty under Order 14 (grant SJ) and decide on the question of law. This is so
even if the issue of law raised is a difficult one. If the court after considering the argument is
satisfied that it is really unarguable, then the court should grant summary judgment.

[Chong Ngam Sen v Yeoh Bah Chee [1981] 1 MLJ 161]

Fact : The respondent had brought an action for possession of premises let to the respondent. The
respondent relied on an implied term for renewal of the tenancy. Hence, the question is whether
such implied term existed based on the wordings of the contract. The trial judge without deciding
this matter gave summary judgment for the respondent. The appellant appealed.
Held : In this case, the issue whether the phrase relied on was an implied term is a question of law.
Since there was a question of law and it was not determined, the SJ couldn’t be given and leave to
defend should be given to the defendant.

O.14A (present position)

● O.14A deals with the disposal of case on point of law
● O.14A provides a summary procedure for cases on points of law or construction of
documents.
● This order allows the court to determine a case summarily if the case involves only the point
of law or the interpretation of a document.
● In other words, if the PF’s claim primarily deals with the construction of document or
interpretation of statute, can apply for SJ under O. 14A
o With the existence of O.14A, it is possible for the PF to apply for SJ under O.14A and not
O.14 if it involves only the construction of a document or interpretation of statute.

5.9) Can the PF apply for SJ if the PF is claiming for injunctive relief? Can
20 | Page
 ● If a PF is claiming for injunction (one of the remedies), can he apply for SJ? In other words, is SJ
available where the PF is applying for an injunction?
● In order for a PF to apply for an injunction, one of the requirements is that there must be a serious
question to be tried.
● However, one of the requirement for applying for SJ is there is no triable issue. So, there is a
contradiction here.
● However, case law has held that the PF can still apply for SJ so long as the 4 requirements are
fulfilled:

[Binariang Communications Sdn Bhd v I & P Inderawasih Jaya Sdn Bhd]31

Held : There is no restriction preventing a PF from obtaining an injunction in SJ as long as the
conditions are fulfilled.
i. DF must have entered an appearance.
ii. The SOC must have been served on the DF.
iii. the PF must have applied for SJ by summons in chambers (replaced with notice of
application after ROC 2012 came into force) supported by affidavit.
iv. the application for SJ must be heard before a judge (at the time of the Binariang case,
most cases were heard before Senior Assistant Registrar or the Deputy Registrar).

[Microsoft Corporation v Yong Wai Hong [2008] 6 CLJ 223]

Held : there was nothing in O.29 of the Rules of the High Court 1980 which prohibited the grant of
a final injunction on a summons for judgment.
6) Various orders that a court may make at a SJ application
There are 7 possible orders a court may make at SJ application
No Order Elaboration
1 Dismiss the notice of There are 7 possible scenarios where the court may make this order :
application/ SJ with costs i. Where the PF’s claim is excluded under O.14 r.1(2)
ii. Where there is a triable issue which is known to the PF or
could have been anticipated by the PF
iii. Where the DF raises a set off that is known to the PF or could
have been reasonably anticipated by the PF
iv. If the DF raises a technical objection saying that the affidavit
is defective
v. Defective service (very rare, minor technical objection)
vi. Defective SOC
vii. Delay (PF had delayed in applying for SJ and the delay cannot
be explained to the satisfaction of the court)
viii. Preliminary requirements not satisfied (could be)

2 Adjournment with leave This happens in 2 situations:

to amend or file a fresh i. Where the affidavit is defective [does not comply with O.14
r.2(1)]
ii. Where the SOC is defective

3 Unconditional leave to This happens in 3 situations:

defend with costs in the i. DF raises a triable issue which was not known to the PF or

31
[2000] 3 AMR 3198 (CA)
21 | Page
 cause [O14r4(3)] could not have been anticipated by the PF
ii. D raises a set off which was not known to the PF or could not
have been anticipated by the PF
iii. Court exercises its discretion under O.14 r.3 and says that
there ought to be some other reason to be a trial of the claim

4 Grant SJ to PF but with Where D raises a valid counterclaim

the stay of execution until
disposal of counterclaim
[O.14 r.3(2)]
5 Grant SJ to PF with costs This happens in 4 situations:
[O.14 r.3(1)] i. DF is unable to raise any triable issue
ii. DF is unable to raise any set off
iii. DF is unable to raise any technical objection
iv. There are no circumstances for the court to exercise its
discretion under O.14 r.3

6 Defendant to pay into This happens when the Court granted conditional leave to defend to
court the defendant:

[Yorke Motors v Edwards]32

Held
: If conditional leave to defend is granted then the DF has to pay into
court the whole or part of the claim. The court can’t impose payment
for conditional leave to defend which the DF would never be able to
pay, since that would be tantamount to giving judgment for the PF
notwithstanding the court’s opinion that there was an issue or
question in dispute which ought to be tried.
: If the DF seeks to avoid or limit the payment, the onus is on him to
make full and frank disclosure. He cannot rely on the ground that he
is on legal aid. He cannot just complain that the financial condition is
difficult to fulfil. He must provide evidence that it is impossible for
him to fulfil.
: If the court imposes a condition that the defendant is incapable of
complying, it would amount to an improper exercise of discretion.
The court should then substitute or withdraw the condition.

7 Setting aside SJ against D ● If the DF or his lawyer does not attend a SJ hearing, usually the
who does not appear at a court will enter SJ against the DF.
SJ hearing ● If a DF fails to attend a SJ hearing, the court can give SJ in
favour of PF.
● If a SJ is entered against a DF who failed to attend a hearing, can
that judgment be set aside? Yes

O.14 r.11 : the judgment entered against the DF can be set aside if
it thinks fit.
32
[1982] 1 All ER 1024
22 | Page
 ● However, DF must produce very good reasons as to why he did
not attend the hearing

6.1) Can the court dismiss P’s action? NO

● In an O.14 hearing sometimes, the court finds that the SOC is defective, usually it's because the
SOC does not disclose the cause of action. In this situation, the court doesn’t have the power to
dismiss the P’s main action/entire action.

[Diamond Peak Sdn Bhd v. D.R. Tweedie (1982) 1 MLJ 97]

Held : At a SJ hearing, the court can only dismiss the SJ application and not the main
action. This is because at a SJ hearing, the only question which is being decided is
whether or not the PF is entitled to SJ. It is not the function of the court to dismiss the
PF’s entire action.

7) Appeals
● Once, the Court decided whether to award SJ to the plaintiff or not. The party which isn’t happy with the
decision can always appeal against the decision.
● If the SJ application was heard by the Senior Assistant Registrar or the Deputy Registrar, the party can
appeal to the Judge in Chambers (aka High Court, without having to ask for leave of court). This is
governed by O.56.
● If the party is not satisfied with the High Court’s decision, he can again appeal to the Court of Appeal.
This is governed by Section 68(1) of the Court of Judicature Act 1964. Leave of court may be
required depending on Section 68.
● Again, from the COA, there will be a final right of appeal to the Federal court, governed by Section 96
of the Court of Judicature Act 1964 and leave of court must be obtained.

[Huo Heng Oil Co v Tang Tiew Yong 1 MLJ 139]

Held : Both PF and DF have a right to appeal to the judge in chambers from any judgment or order
made by the Registrar.

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

Held : When the triable issue is 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.
: The approach to be taken by an appellate court in an O.14 appeal has been settled. The
appellate court should not regard the appeal as reviewing the exercise of the judge's discretion
but should approach the appeal as a rehearing. Where the triable issues arose as a matter of
evidence, it would be wrong for the court to interfere with the learned judge's discretion.

23 | Page
 Chapter 1 (Part 2) - Summary Judgment Under Order 81

Summary Judgment under Order 81

Besides Order 14, there is another type of SJ under Order 81. Outline:
1. When is O18 applicable?
2. Procedure
3. Hearing
4. Differences

1) When is Order 81 applicable?

● Under Order 81 rule 1(1),33 once these 3 elements are fulfilled, Order 81 is applicable:
i. Any action begun by writ
ii. Any action relates to a specific subject matter involves either:
a) sale, purchase or exchange of any property; OR
b) grant or assignment of a lease of any property
iii. The Remedy claim must be any of the below for the subject matter above:
a) Specific performance;
b) Rescission; OR
c) Return/forfeiture of deposit paid under agreement.
P/s: Same as Order 14, there must be a clear cut case (aka the defendant has no defence) to apply an
SJ under Order 81.
33
O. 81, r. 1: Application by plaintiff for summary judgment
(1) In an action begun by writ endorsed 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;
(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.
24 | Page
● Hence, to fall under Order 81, there must be an agreement, with the subject matter mentioned above
and in respect of that agreement, the plaintiff must be claiming either specific performance, rescission
or return/ forfeiture of deposit.
● If the plaintiff’s claim falls within this ambit and he wants to apply for summary judgment, he would
need to apply under Order 81 and not Order 14.

1.1) Scenarios/ Illustration of Whether to Apply SJ under Order 14 or Order 81

No. Scenario Should Apply SJ under Order 14 or Order

1 A has entered into a contract with B.
Under the terms of the contract, A has
agreed to sell his house to B. A has now
reached the contract but he refused to sell
the house to B. B has sued A for breach
of contract and applied for specific
performance of the contract. B now
wishes to apply for summary judgment
against A. Should B apply for summary
judgment under Order 14 or Order 81?
81?
In this case, it is an agreement involving the sale
and purchase of the house [falls within the
subject matter of Order 81]. Further B is
claiming for specific performance. Order 14 is
of general application. In such instances where
there are specific procedures for specific
performance, one will need to comply with the
specific rule. Hence this case falls within the
scope of Order 81. B should apply for summary
judgment under Order 81, not Order 14.

2 A entered into a contract with B. Under
the terms in the contract, A has agreed to
sell his house to B. A has now breached
the contract and he refuses to sell the
house to B. B has sued A for breach of
contract and wishes to claim for
damages only. B now wishes to apply SJ
against A. Should B apply for summary
judgment under Order 14 or Order 81?
B’s claim falls within the subject matter of
Order 81. But B’s remedy does not fall within
the remedy of Order 81. Thus, B’s claim does
not fall within Order 81 as B is not claiming any
of the remedy provided in Order 81. B should
apply for summary judgment under Order 14, an
order of general application.

3 A entered into a contract with B. Under
the terms in the contract, A has agreed to
sell his house to B. A has now breached
the contract and he refuses to sell the
house to B. B has sued A for breach of
contract and wishes to claim for
damages and specific performance. B
now wishes to apply SJ against A.
Should B apply for summary judgment
under Order 14 or Order 81?
B’s claim falls within the subject matter of
Order 81 and he is claiming remedy which falls
within Order 81 too. Order 81 Rule 1(1)(a)
mentioned the words “with or without an
alternative claim for damages”, which means if
the plaintiff is claiming any of the remedies
provided in Order 81 Rule 1(1), the plaintiff
may add a claim for damages as well. In this
scenario, Order 81 will still apply.

4 A entered into a contract with B, where A is claiming for remedy provided in Order 81.

25 | Page
 A agreed to perform certain services for But A’s claim does not fall within the subject
B. A wants to rescind the contract and he matter of Order 81. In this scenario, Order 14
is claiming for rescission of this applies. A should apply for summary judgment
contract. A want to apply for summary under Order 14.
judgment against B. Should A apply for
summary judgment under Order 14 or
Order 81?

2) Procedure

2.1) Preliminary Requirement

● Order 81 Rule 1(2): “An application may be made against a defendant under this rule whether or
not he has entered an appearance in the action.”
● Under O81 r1(2), there is no need for the defendant to enter into appearance, unlike order 14 (where
there are 2 preliminary requirements, one of those being the defendant must have entered into
appearance).
● So, the plaintiff can serve a writ and statement of claim straight away on the defendant before
applying for SJ under Order 81.
● As soon as the plaintiff has served the writ and statement of claim, the plaintiff becomes eligible to
apply for summary judgment under Order 81.

2.2) Application of SJ under Order 81

● Order 81 Rule 2
(1)34 : If the plaintiff wants to apply for summary judgment under Order 81, he should apply by
way of notice of application supported by an affidavit.
35
(2) : There is an additional requirement: the notice of application must be accompanied by a
minute of the judgment.
- Minute of judgment refers to an additional document which states the orders that the
plaintiff is seeking from the court [draft judgment that the plaintiff is asking from the
court].
● In total, there are 3 documents:
a) notice of application;
b) affidavit; and
c) minute of judgment.

2.3) Service

34
O. 81, r. 2 (1) : Manner in which application under rule 1 shall be made
An application under rule 1 shall be made by notice of application supported by an affidavit made by some person who
can swear positively to the facts verifying the cause of action and stating that in his belief there is no defence to the
action.

35
O. 81, r. 2 (2)
: The notice of application shall set out or have attached thereto minutes of the judgment sought by the plaintiff.

26 | Page
 ● Once the plaintiff has applied for summary judgment under Order 81 by filing the notice of
application supported by an affidavit and minute of judgment, it must be served on the defendant to
notify the defendant.
● Service has 2 aspects:
a) Mode of Service
- Order 81 does not prescribe a specific mode of service for application of summary
judgment under this order.
- As Order 81 is silent, the rule of general application, Order 62 Rule 6 applies.
- Under Order 62 Rule 6(1),36 there are 5 ways of service of document:
(a) By leaving the document at DF’s proper address
(b) By sending the document by way of pre- paid registered post to DF’s proper address
(c) By fax, and further complying with O.62 r.6(3)- only if you are applying with solicitor
(d) In any manner agreed by the parties
(e) In such manner as the court may direct

b) Time Limit to Serve

- Order 81 Rule 2(3)37 : the notice of application and affidavit must be served on the
defendant within 14 days from the date of issue of the notice of application by the court.
- The date of issue of the notice of application by the court refers to the date the court issued
the sealed copy38 of the application.
- This is different from Order 14 where the notice of application must be served within 14
days from the receipt of the sealed copy of the application by the applicant.
- For Order 81, the 14 days is counted from the date of issue of the sealed copy. Hence the
time limit for Order 14 [when you received the sealed copy] is longer.

2.4) Affidavit requirements

● Under Order 81 Rule 2(1), there are 3 requirements:
i. Affidavits must verify the facts of the plaintiff’s claim.
ii. Affidavit must state that in the deponent belief, the defendant has no defence to the plaintiff’s
claim.
iii. Affidavit must be made by a person who can swear positively as to the facts.
▪ This means that the affidavit must be made by a person who is stating things from his
personal knowledge.
▪ The statements made by the deponent must be from his own personal knowledge, and
must not be any matter informed by others.
▪ In other words, the person who confirmed / the deponent must be the plaintiff
himself.

● What happens if there is non-compliance with any of these procedural requirements?

[Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd39]
36
O. 63, r. 6 (1):
The service of any document, not being a document which in accordance with these Rules is required to be
served personally, may be effected …. (a) – (e)

37
O. 81, r. 2 (3):
The notice of application, a copy of the affidavit in support and of any exhibit referred to therein shall be served on the
defendant within fourteen days from the date of issue of the notice of application.

38
Refers to the copy which has been signed, dated and there is the stamp of the court.
39
[1988] 2 MLJ 268
27 | Page
 Facts : The plaintiff sued the defendant for breaching a sale and purchase agreement. The plaintiff
sought for SJ under Order 81 Rule 1(b). The defendant prayed to dismiss the application as it
did not comply with Order 81 Rule 2(2) since the minutes of judgment was not attached with
the notice of application.
Held : It is not mandatory that an application for Order 81 must in all cases have the minutes of
the judgment sought for attached to the summons although in practice minutes of the
judgment are normally attached to the summons. In any event, the failure to attach the said
minutes to the summons is not fatal. It is curable under Order 2 Rule 1. 40
2.5) Hearing
● After application is filed, hearing date will be fixed.
● If the defendant is unable to raise any triable issue, summary judgment will be granted to the
plaintiff with costs.
● The principle or the issue for Order 81 is the same as the principle or issue for Order 14.

3) Differences
Differences Order 14 Order 81
Scope of General application O 81 r 1(1). :
Application
Specific type of cases, i.e. the plaintiff’s
claim must fall within a specific subject
matter and the plaintiff must be claiming
for a specific remedy.
Preliminary 2 Preliminary requirements;41 1 Preliminary requirement [O 81 r 1(2)] :
Requirements
a) writ and statement of claim must be - Writ and statement of claim must have
served; been served,42 regardless of whether
b) the defendant must have entered an the defendant has entered into an
appearance. appearance for the action.

40
41
[National Company for Foreign Trade v Kayu Raya Sdn Bhd]
42
As provided in Order 81 Rule 1(2).
28 | Page
 Affidavit O 14 r 2 (2) : The affidavit can be made O 81 r 2(1): The affidavit must be made by
by a person other than the plaintiff. a person who can swear positively as to the
facts.44
- This is because O 14 r 2 (2) 43 has
stated that the affidavit “may - This means that the affidavit can only be
contain statements of information or made by a person who has personal
belief”. knowledge of the facts.
- This shows us that the affidavit may - In other words, only the plaintiff himself
be affirmed by someone who does can make the affidavit.
not have personal knowledge but he
is giving information from what has
been communicated to him or from
his belief.
- In other words, it can be affirmed by
a person other than the plaintiff.
It can be said that an Order 14 affidavit can contain hearsay statements [statement of
info and belief], while an Order 81 affidavit cannot contain hearsay statement [swear
positively].

Minute of No requirement. O 81 r 2(2):

Judgment The notice of application must be
accompanied by a minute of judgment.
Time limit of O14 r2(3) : The notice of application O 81 r 2(3):
service must be served within 14 days from the The notice of application must be served
receipt of the sealed copy of the within 14 days from the date of issue of the
application by the plaintiff. sealed copy.

Chapter 1 (Part 3) - Summary Judgment Under Order 89

Summary Judgment under Order 89

Outline:
1. What is Order 89
2. Scope
3. Procedure
4. Hearing

1) What is Order 89
● Summary proceeding under Order 89 is a very specific order. It specifically deals with summary
procedure for the recovery of possession of land.
● The procedure under Order 89 enables a plaintiff to recover possession of land without having to proof
his claim at a trial.

43
Order 14 Rule 2(2): Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of
information or belief with the sources and grounds thereof.
44
Order 81 Rule 2(1)- “swear positively as to facts”.
29 | Page
 o Recovering possession of land may be a highly contentious matter. It may involve substantial
dispute as to facts.
o Usually for this kind of claims, it needs to have a trial to determine who’s the owner of the land and
entitled to possession of the land. But Order 89 provides a mechanism for a plaintiff to recover the
land without having to go through trial.
● Order 89 is specifically targeted to cases involving recovering possession of land from squatters.45
● Order 89 provides a very unique summary process because the procedure under Order 89 can be
brought/ commenced against people whose name are not known.
● Order 89 provides a fast-economical procedure for the plaintiff to get back his land from the squatters/
people occupying his land without his permission.

2) Scope
● Order 89 Rule 1(1)46 provides that a person who claims possession of a land who is occupied by a
person who doesn’t have right over the land (ie “entered into the land without his licence, consent or that
of any predecessor in title”) can apply for SJ by originating summons.
● However, since Order 89 is only limited to people who “don’t have right over the land”, it cannot be
used against certain categories of people:
i. Tenants; [person renting the property]
ii. Tenant holding over; [tenant who stays on the property after the tenancy period has expired]
iii. Licensee; [person who are occupying the land because they have a license to occupy the land,
can either be express or implied license]
iv. Persons who are occupying the plaintiff’s land / entered the plaintiff’s land with his consent.
● Based on the scope of Order 89, we can infer that Order 89 is specifically targeted to squatters [people
on the land without plaintiff’s consent or authorization].

3) Procedure

3.1) How to commence a procedure under Order 89?

● Procedure under Order 89 is not an interlocutory application like summary judgment under Order 14
or Order 81. It is commencing a new action as it uses originating summons47 as provided by O 89
r1(1).
● The originating summon is subjected to O 89 r2 & 3, which main provided that :
O 89 r2: the originating summon must be in Form 8A.
O 89 r3: the originating summons in Form 8A must be supported by an affidavit

3.1.1) O 89 r2: Form 8A.

O 89 r2 : Forms of Originating Summons

45
Refers to people occupying a land without the permission of the owner.
46
O. 89, r. 1 : Proceedings to be brought by originating summons
(1) Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or
tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence
or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in
accordance with the provisions of this Order.
47
mode of commencing an action in the court

30 | Page
 (1) The originating summon must be in Form 8A and an acknowledgement of service is not required.
The originating summons must also include a note at the end.48

● As oppose to the normal originating summons in Form 7, a special one (Form 8A) must be used
for an SJ application under Order 89.

3.1.2) O 89 r3: Affidavit in support

● As mentioned in Order 89 Rule 3(1),49 the affidavit in support must state 3 matters:
(a) The plaintiff’s interest in the land50
(b) Circumstances by which the land has been occupied by people without his license or consent
(c) The plaintiff must state that he does not know the name of any person occupying the land who
is not named in the summons.
▪ It depends, sometime the plaintiff may have done investigation and knew who is
occupying the land.

● O 89 r3(2): 51
If there are too many people who occupy the land the plaintiff doesn’t know all of them, the
plaintiff must state in his affidavit that he has taken reasonable steps to identify every squatters in
the land who are not named in the summons.

3.2) Order 89 Rule 4: Service

● Once the application is filed by OS and affidavit, the application has to be served.
● Service requirement can be found in Order 89 Rule 4.
● Generally, the mode of service depends on whether the defendant is named.

i. O 89 r 4(1): If the defendant is named, there are 3 ways of service:52

(a) Personal service under Order 10 Rule 1;
(b) By leaving a copy of the originating summons and the affidavit at the
premises; or
(c) In any other way as the court may direct.
48
“Note: Any person occupying the premises who is not named as a defendant by this originating summons may apply
to the Court personally or by solicitor to be joined as a defendant. If a person occupying the premises does not attend
personally or by solicitor at the time and place abovementioned, such order will be made as the Court may think just
and expedient.”.

49
O. 89, r. 3: Affidavit in support
(1) The plaintiff shall file in support of the originating summons an affidavit stating—
(a) his interest in the land;
(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to
possession arises; and
(c) that he does not know the name of any person occupying the land who is not named in the summons.

50
Usually the plaintiff will say he is the registered proprietor of the land.

51
O 89 r3(2): Where the plaintiff is unable, after taking reasonable steps, to identify every person occupying the land
for the purpose of making him a defendant, the plaintiff shall state in his affidavit that he has taken reasonable steps
(describing them) to identify the persons occupying the land who are not named in the summons.
52
O. 89, r. 4 : Service of originating summons
(1): Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the
affidavit in support shall be served on him—
(a) personally or in accordance with Order 10, rule 5;
(b) by leaving a copy of the summons and of the affidavit or sending them to him, at the premises; or
(c) in such other manner as the Court may direct.

31 | Page
 ii. O 89 r 4(2): If the defendant is not named, there are 2 ways of service:53
(a) Affix a copy of originating summons and affidavit on the main door or on
some conspicuous part [obvious, clearly seen] of the premises; and
(b) If possible/ practicable to insert the originating summons and affidavit in a
sealed envelope and the sealed envelope must be addressed to “the occupier”
and the sealed envelope must be put into a letter box at the premises.

● After the OS and affidavit are served, the hearing date will be fixed.

4) Hearing
● Summary proceeding under Order 89 will be heard before a judge.
● At the hearing, if the plaintiff is able to prove his claim, the judge will give an order in Form 195,54
which is an order for immediate possession that can be enforced straight away.
● Below are relevant cases of Order 8955:
● Same as other SJ applications, Order 89 can only be used when there is no triable issue:
[Bohari bin Taib v PTG Selangor]56 [COA]

53
Order 89 Rule 4(2): The originating summons shall, in addition to being served on the named defendants, if any, in accordance
with paragraph (1) be served, unless the Court otherwise directs, by—
(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises;
and
(b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed
in a sealed envelope addressed to “the occupiers”.

54
O. 89, r. 6(2): An order for possession in proceedings under this Order shall be in Form 195.

55
Other cases:

[Bitromax Corp Sdn Bhd v Amil bin Salleh [2005] 1 MLJ 780.]
Facts: The plaintiff entered into a sub-tenancy with the third defendant who subsequently terminated the sub-tenancy with
termination notice. The third defendant then granted the first defendant the right to manage and maintain the premises.
While the second defendant was the owner o the premises. The first defendant filed an originating summon under Order
89, claiming for the recovery of possession of the premises from the first defendant.

Held : An O 89 proceedings could not be brought by a person who claims possession of land against a person who enters or
occupies that land if such person enters or occupies with the license or consent of the predecessor in title of the person
who claims possession. Here, the third defendant was a predecessor in title since it was the third defendant who sublet the
premises to the plaintiff. The second defendant was also a predecessor in title as it was the registered owner of the
premises. Since second and third defendants has authorized the first defendant to enter and occupy the premises, this
meant the second and third defendants, as the predecessors in title of the plaintiff, had given consent or a license to the
first defendant to enter and occupy the premises. It was not open to the plaintiff to invoke Order 89 against the first
defendant. The plaintiff should have taken a writ action against him if it felt aggrieved by the first defendant's entry or
occupation of the premises.

[Yap Chiang v Koh Sau Choon [2008] 8 CLJ 63] [HC]

Facts : The subject matter in dispute was a state reserved land for the purpose of a Cantonese Cemetery. The defendants were
occupiers of the land from time immemorial. The plaintiff, acting on behalf of the Kwong Tong Cemetery Management
KL asserted that it was her right to the possession of the land.
Held : There was no evidence that the plaintiff was an association authorized by the relevant authority to have the management
of the land reserved for a Chinese cemetery. In the absence of any evidence of such authority, the plaintiff had no
standing under Order 89 to maintain this action as it did not have a right to possession. The plaintiff and the defendants
were in similar position or standing of persons seeking occupation of reserve land. Without evidence of authority the
plaintiff was in no better position than the defendants to occupy the reserved land, and to seek to remove the defendants
from the land.

56
[1991] 1 MLJ 343
32 | Page
 Facts : The respondent wanted to alienate some parcels of land to the appellants (landless farmers)
but subsequently the respondent changed its mind and wanted to hand the lands over to
FELCRA. The respondent contended that the appellants were in occupation of the lands
without license or consent so it applied for summarily under Order 89 for possession of the
land. On the other hand, the appellants claimed that they were not squatters of the land, but
were either licensees holding over or lawful occupiers of the land under the approved
alienation. Hence, Order 89 was not the proper procedure to be adopted.
Held : There were issues to be tried in this case which were not suitable to be decided by affidavit
evidence. Thus, this case should not be dealt with summarily under Order 89.
: For the purpose of summary procedure, a distinction must be made between a squatter
simpliciter who has no rights whatsoever and occupiers with license or consent, as well as
tenants and licensees holding over. It may be impossible to establish the existence of any
triable issue in the case of bare squatters, but the case will be different for tenants, licensees
holding over and those who occupied the land with consent. Where the entry to the land is
lawful, and there are triable issues, it is improper to adopt the procedure in Order 89 to evict
the occupiers.

[Titular Roman Catholic Bishop of Penang v Stephen Ramachandran]57 [HC]

Facts : The plaintiff was the registered owner of the land which were occupied by the defendant
and some other persons whose names were unknown. The plaintiff instituted a summary
proceeding under Order 89, claiming for the possession of the land on the ground that the
occupiers were in occupation without license or consent.
Held : There were disputes of fact in this case which could not be resolved by affidavit evidence.
Hence this was not a proper case for summary proceedings for possession of land under
Order 89.
: The persons against whom summary proceedings can be instituted under O 89 are confined
to trespassers and squatters simpliciter who enter on an unoccupied house or land without any
right, ie those whose initial entry and continued occupation upon the land remain unlawful.
The defendant was not a trespasser as his entry upon the premises was in the first instance
lawful. Thus, the summary procedure under Order 89 could not be resorted to. Even if the
notice to quit issued by the plaintiff had terminated the tenancy of the defendant, Order 89
still could not be invoked because he would be a tenant holding over after the termination of
the tenancy.
: The failure to name the other occupiers of the premises amounted to non-compliance with
Order 89 Rule 3(c) as the plaintiff or his agent did know of or could have obtained, the name
of the other occupants of the premises.

[Zaibar Auto (M) Sdn Bhd v Shell Trading Sdn Bhd]58 [COA]
Facts : The respondent purchased a land from Metro Murni Sdn Bhd (MM) and was registered as
the owner. Subsequently the respondent found out that the appellant had occupied the land.
The respondent contended that the appellant was trespasser and took out a summon under
Order 89. However, the appellant contended that it occupied the land with the consent of MM
and hence Order 89 could not be invoked against it.
Held : Order 89 Rule 1 only applies to squatters. It does not apply to tenants holding over, one who
enters upon or occupies the land with the consent of the applicant under the order or any
predecessor in title of such an applicant, or persons who are in occupation under a legitimate

57
[1994] 3 MLJ 4
58
[1996] 2 MLJ 221
33 | Page
 expectation of receiving, from the state authority, issue documents of title to the portions they
occupy.
: However, the appellant only obtained the consent from MM, the predecessor of the land
after MM divested itself all rights on the land to the respondent. As MM was not the
registered proprietor of the land anymore, it did not have power to give such consent or to
grant such license to the appellant. The appellant was trespasser who was in unlawful
possession of the land. Hence, the order of vacant possession was affirmed.

[Fullrise Resources Sdn Bhd v Ng Ah Toh]59[HC]

Facts : The plaintiff was the registered lessee of the land. It applied for vacant possession of land
under Order 89 against the defendant on the ground that the defendant had been in occupation
of the land without the plaintiff’s consent or license. While the defendant contended that he
occupied the land with the license or consent from the plaintiff’s predecessor in title. The
question for determination by the court is whether the first defendant is a trespasser or
squatter so as to attract the application of Order 89 pursuant to which the plaintiff may obtain
summary recovery of possession of the land.
Held : Summary procedure under Order 89 enables a person such as the registered owner or lessee
of land to obtain an order for the recovery of his land which is wrongfully occupied by a
trespasser or squatter i.e. a person who has entered or remained in occupation without the
registered owner's or lessee's licence or consent or that of any predecessor in title of his. As
the defendant has raised a triable issue pertaining to his occupation or remaining on the land,
an Order 89 application is unsuitable60.

● As long as you have a right over the land, you can apply for SJ. You don’t have to be the registered
owner:
[Shaheen bte Abu Bakar v PKNS]61 [COA]
Facts : The state authority has approved the alienation of land to the respondents subject to 2
conditions. Subsequently the respondents found out that the land were occupied. Unknown of
the occupiers’ identities, the respondents applied for possession of land under Order 89 . The
appellants refused to vacant the land and occupied the land continuously. The appellants
contended that the respondents have no locus standi to seek for relief under Order 89 as they
were not the registered proprietor of the land. They also alleged that the respondents failed to
comply with the requirements set out in Order 89 Rule 3.62

Held : Order 89 does not stipulate that only a registered proprietor may invoke its provisions. The
order is silent on the issue of standing. Therefore, it is for the court to determine, according to
the facts of each case, whether a particular plaintiff has standing to make an application. The

59
[2004] MLJU 187.
60
The proceedings should have been commenced by a writ as opposed to an originating summons, and that the application cannot
be resolved by way of affidavit evidence. At the same time, the court also cited the principles laid down by the Supreme Court in
Chiu Wing Wa & Ors v Ong Beng Cheng [1994] 1 MLJ 89, as produced below:
Principles governing an O89 application:
(1) The summary procedure under 0.89 should not be allowed to apply where the entry to the land in the first instance is lawful,
for in such a situation, there must necessarily be the facts and the law for determination by evidence viva voce;
(2) the summary procedure under O89 is governed by the same principles as those under O14;
(3) to entitle a defendant to a trial, all the defendant needs to do is show that there is a triable issue of law or fact;
(4) it is only in clear cases of trespass that a summary order can be made under O89;
(5) an application under O89 should be dismissed if there are triable issues of fact and law, as such an application for vacant
possession ought to have been commenced by writ; and
(6) for the purpose of the summary procedure under O89, a distinction should be made between squatters simpliciter who have no
rights whatsoever and occupiers with license or consent, as well as tenants and licensees holding over.
61
[1996] 1 MLJ 825
62
In that the respondents had failed to describe the nature of their interest, to set out the circumstances in which the land had been
occupied, and to state that they did not know the names of the occupants of the land.
34 | Page
 test of standing to be applied in cases under O 89 is one based upon a right to possession.
Although neither respondent was the registered proprietor of the land, each had standing to
apply under Order 89 by reason of the letter of approval from the state authority.
: The two elements that oust the operation of Order 89 are as follows:
i. the initial entry upon the land was lawful; and
ii. the existence of any express or implied consent or licence on the part of the owner
pursuant to which the occupation continued.
: The appellants were squatters with no occupational right. The court affirmed the order for
possession against the appellants.

Chapter 2: Third Party Proceedings

1) Introduction
Consider this scenario:
There is a collision between Tom’s car and Dan’s car. Pam was a passenger in Tom’s car and Pam was
injured in the collision. Pam decides to sue Dan for her injuries. Thus, Pam is the Plaintiff and Dan is the
Defendant in the civil proceedings.

However, Dan wants to Tom to join as a party in the proceedings because Dan contends that Tom was
responsible for the collision which resulted in Pam’s injuries.
35 | Page
What options are available to Dan? Dan has two options to join Tom into the proceedings.

Option 1: Dan (Defendant) may include Tom as a co-defendant. (this was learnt in Civil Procedure 1)
● Dan may apply under Order 15 rule 6(2)(b) to include Tom into the proceeding

Order 15 rule 6
(2) At any stage of the proceedings, the Court may either of its own motion or on application-
(b) order any of the following persons to be added as a party, namely-

(i) any person who ought to have been joined as a party, or whose presence before the
Court is necessary to ensure that all matters in the suit may be effectually and
completely determined; or
(ii) any person which the Court think, if added him in, would be just and convenient to
determine any issue related or arising out from the relief claimed in the suit. 63

● To add a party under this option, (Dan) must apply to the court by way of notice of application.
● Order 15 rule 6(3):64
Also, to add a party under Order 15 rule 6(2), the application must be supported by an affidavit
showing the party’s interest in the dispute or the issue to be determined between him and the parties
of the suit.
Leave of court is required to join a party as a co-defendant.

● Further, the Plaintiff (Pam) may object to Dan’s application to add Tom as a co-Defendant. [Tajjul
Ariffin bin Mustafa v Heng Cheng Hong]

Option 2 : Dan may include Tom as a third party (instead of co-defendant) under Order 16 Rules of Court.
(focus of this chapter)
● Generally, to join a third party, leave of court is not required, except in 2 circumstances.
● Further, the plaintiff’s consent is irrelevant. In other words, the plaintiff (Pam) may not object to Dan
for adding a third party into the proceeding.
Question: In considering the 2 options available to Dan as a defendant, which is a better option?
Option 2 (add Tom as a third party) is better as
i. leave of court is not required (unless 2 circumstances apply) AND
ii. the plaintiff may not object to the application.

1.1) Third party Proceedings – Overview

● Third party proceedings are governed by Order 16 of the Rules of Court 2012.
● Third party proceedings are brought by a Defendant against a “person” who is not a party to the civil
suit commenced by the Plaintiff.

63
O. 15, r. 6(2)(b)(ii):
Any person between whom and any party to the cause or matter there may exist a question or issue arising
out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion
of the Court, would be just and convenient to determine as between him and that party as well as between the
parties to the cause or matter.

64
O. 15, r. 6(3):
An application by any person for an order under paragraph (2) adding him as a party shall, except with the
leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or
matter or, as the case may be, the question or issue to be determined as between him and any party to the
cause or matter.
36 | Page
 ● The purpose of the third party proceedings is to bring in or add in that “person” into the civil suit.
This person would be known as the “third party” in the civil suit against the Plaintiff and the
Defendant.
● As in the scenario above, Dan (the Defendant) will bring third party proceedings against Tom, who is
not a party to the civil suit commenced by Pam (the Plaintiff). The purpose of the third party
proceedings is to bring in Tom into the civil suit. Tom will be known as the third party in the civil
suit between Pam and Dan.

2) Third party Proceedings - Requirements

● Before any person can be joined as a third party, the Defendant’s claim against the third party must
fall under Order 16 rule 1(1)(a) to (c).
● Under Order 16 rule 1(1), there are four categories of situations from (a) – (c) where a defendant can
bring in a third party.
● If the Defendant’s claim against the third party does not fall under one of the four categories in Order
16 rule 1(1)(a) to (c), the third party cannot be joined into the proceedings.

Order 16 rule 1(1):

In any action where the defendant has entered an appearance:

(a) claims against a person not already a party to the action any contribution or indemnity;
(b) 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;
or
(c) 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,

the defendant may issue a third party notice in Form 18 or 19 containing

- a statement of the nature of the claim made against the defendant AND
- the nature and grounds of the third party claim made by the defendant OR the question or issue
required to be determined.

● Four grounds under Order 16 rule 1(1)(a) to (c):

No Order Situation Elaboration

.
1 (a) the Defendant ● This is when the Defendant is asserting that if the
claims for Defendant is liable to pay any damages to the
contribution from Plaintiff, the third party is liable to pay some or a part
the third party. of it.

● Examples of a claim in contribution

i. joint tortfeasors (ie 2 people committed a tort
but only one tortfeasor was sued like in the
scenario of Dan)
ii. one of several trustees sued for breach of trust
(the trustee who was sued may want to add the
other trustees as third party)

37 | Page
 2 the Defendant ● This is where the Defendant is asserting that if he is
claims for indemnity made liable to pay any damages to the Plaintiff, the
from the third party third party is liable to pay the whole of it.

● Example of a claim in indemnity:

Suretyship/guarantor
- A borrows money from B Bank. C is the
guarantor for A.
- A is called the principal debtor, B is the creditor.
- Where the principal debtor fails to repay the
loan, the creditor/bank may sue the guarantor to
recover the loan.
- If the guarantor is sued by the creditor, the
guarantor may want to claim an indemnity from
the principal debtor. Therefore, the guarantor
may join the principal debtor as a third party in
the suit brought by the creditor.
3 (b) This is where the These 2 categories are fairly wide and can encompass a
Defendant is variety of situations.
claiming against the
third party
substantially the
same relief as the
Plaintiff is claiming
from the Defendant.

4 (c) This is where there

is a common issue
between the
Defendant and the
third party, as
between the Plaintiff
and the Defendant.

3) Third party Proceedings – Procedure

How does a Defendant commence third party proceedings and join in a third party? The procedure is as
follows.
1. Appearance by the Defendant
Order 16 r 1(1): the Defendant must have entered an appearance to the Plaintiff’s action before
he can apply for a third party proceeding.

2. Determine if leave is required

● The Defendant has to determine whether the leave of court is required to join the third party
into the proceedings.
● The leave of court is required in two situations –
i. when the defendant has already served his Defence (Order 16 r1(2))65, or
ii. when the intended third party is the Government of Malaysia (Order 73 r 8)66
65
Order 16 r1(2): A defendant to an action may not issue a third party notice without the leave of the Court unless he
issues the notice before serving his defence on the plaintiff.
66
O. 73, r. 8
38 | Page
 ● If either one of these two instances are applicable, the Defendant must first obtain the leave
of court to join in the third party.
● Procedure for leave application:
Order 16 rule 2
(1) The Defendant must apply by ex parte notice of application in Form 20, supported by
an affidavit.
(2) Such application for leave to issue a third party notice shall be supported by an
affidavit stating-
(a) the nature of the claim made by the plaintiff in the action;
(b) the stage which proceedings in the action have reached;
(c) the nature of the claim made by the applicant (the defendant) or particulars of the
question or issue required to be determined, as the case may be, and the facts on
which the proposed third party notice is based; and
(d) the name and address of the person against whom the third party notice is to be
issued.

3. Commencement of third party proceedings

● If leave of court is necessary, it must be obtained first before the Defendant can commence
the third party proceedings, where under O16 r3, the order may specify directions as to the
duration which the notice must be issued.
● However, if leave is not necessary (the two instances do not apply), the Defendant can
immediately commence the third party proceedings.
- This is done by the Defendant issuing and serving a Third Party Notice on the intended
third party which is governed by O. 16, r. 3

O. 16, r. 3: Issue, service of and entry of appearance to third party notice

(1) The order granting the leave to issue a third party notice may contain directions
as to the period within which the notice is to be issued.
(2) The third party notice shall be served to every third party notice with a copy of
the writ or originating summons.
(3) Subject to paragraphs (1) and (2), Order 6, rule 6(3), Order 10 (except rule 1(4)), Order
11, Order 12 and Order 70, rule 3 shall apply in relation to a third party notice and to the
proceedings begun thereby as if –
(a) the third party notice is a writ and the proceedings begun thereby an action; and
(b) the defendant issuing the third party notice is a plaintiff and the person against
whom it is issued a defendant in that action.

● When serving the third party notice, take note of the form of the Third Party notice –
- If the Defendant is seeking contribution, indemnity or same relief , use Form 18
- If the Defendant is seeking common relief, use Form 19.

4. Service of Third Party Notice

● Once the Third Party Notice is issued, it must be served on the intended third party.

(1) Notwithstanding anything in Order 16, a third party notice, including a notice issuable in accordance with
Order 16, rule 9, for service on the Government shall not be issued without the leave of the Court, and the
application for the grant of such leave must be made by notice of application, and the notice of application
must be served on the plaintiff and the Government.
(2) Leave to issue such a notice for service on the Government shall not be granted unless the Court is satisfied
that the Government is in possession of all such information as it reasonably requires as to the circumstances
in which it is alleged that the liability of the Government has arisen and as to the departments and officers of
the Government concerned.
39 | Page
 ● Order 16 rule 3(3): Service of a Third Party Notice is in accordance with Order 10 r 1, ie the
same as service of a writ. (This means that the mode of service can be done by the mode of
service of a writ like personal service etc)

5. Appearance by third party

● Once the intended Third Party Notice has been served, the third party must enter an
appearance in Form 21.
● The time limits to enter an appearance is the same as the time limits to enter an appearance
to a writ under Order 12 rule 4,67 namely - 14 days in West Malaysia and 14 or 20 days in
East Malaysia. (as learned in Civil Procedure 1)
● Order 16 rule 5:
If the third party fails to enter appearance within time prescribed time limit, the third party is
in default and he is deemed to admit to the Defendant’s claim against him.

O. 16, r. 5: Default of third party

(1) If a third party does not enter an appearance or, having been ordered to serve a
defence, fails to do so-
(a) he is deemed to admit any claim stated in the third party notice and shall be bound
by any judgment (including judgment by consent) or decision in the action, and
(b) if judgment in default is given against the third party, the defendant who issued the
third party notice may,
- at any time after satisfaction of that judgment or
- if before such satisfaction, with the leave of the Court,

enter judgment against the third party in respect of any contribution or indemnity
claimed in the notice. For other relief or remedy claimed, leave of the Court must be
obtained before filing the judgment in default.

(2) If a third party or the defendant by whom a third party notice was issued makes default
in serving any pleading which he is ordered to serve, the Court may, on an application
by a notice of application of that defendant or the third party, as the case may be, order
such judgment to be entered for the applicant as he is entitled to on the pleadings or
may make such other order as may appear to the Court necessary to do justice
between the parties.
(3) The Court may set aside or vary a judgment entered under subparagraph (1)(b) or
paragraph (2) on such terms, if any, as it thinks just.

6. Application for third party directions (Order 16 rule 4) 68

67
Time limited for appearing (O. 12, r. 4)
References in these Rules to the time limited for appearing are references-
(a) in the case of a writ served, whether within the local jurisdiction of each High Court of Malaya or
outside such local jurisdiction but within the jurisdiction of Malaya, to fourteen days after service of the
writ or, where that time has been extended by or by virtue of these Rules, to that time as so extended;
and
(b) in the case of a writ served within Sabah and Sarawak, to fourteen days after service of the writ or in
the case of a defendant whose place of residence or if an incorporated society whose registered office
of business is not within the Division or Residency in which is situated the Registry out of which the
writ of summons was issued, twenty days after the service of the writ or where that time has been
extended by or by virtue of these Rules, to that time as so extended; and
(c)   in the case of a writ served out of the jurisdiction, to fourteen days after service of the writ as
provided for in Order 10, rule 2 or Order 11, rule 2 or to such extended time as the Court may
otherwise allow.

68
O. 16, r. 4: Third party directions
(1) If the third party enters an appearance in Form 21, the defendant who issued the third party notice shall apply to
the Court for directions, by a notice of application to be served on all other parties in the suit.
40 | Page
 ● Order 16 rule 4(1) and (2):
Once the third party has entered appearance, the Defendant is under a duty to issue and serve
on all parties a notice of application for third party directions in Form 22.
- The Defendant must apply for directions within 7 days after third party has entered
appearance.
- This notice of application for third party directions must be served on all parties to the
action ie the Plaintiff(s), the other defendants (if any) and the third party.
- The purpose of the application for third party directions is to bring all parties before the
court so that the court can now make necessary directions for the smooth flowing of the
trial.

● What if the Defendant fails to apply for third party directions? There are two possible
consequences mentioned in Order 16 rule 4(2) –
i. the third party himself may apply for third party directions or
ii. the third party may apply to have the third party notice issued against him to be set
aside.
● Once an application for the directions is made, the Court may made order pursuant to Order
16 rule 4(3) – (5).

7. Hearing of the notice of application for third party directions

● At this stage, the Court may either dismiss or admit the notice of application:
● O16 r4(3)(c):
At this hearing, the Court may dismiss the application for directions if the third party can
show
- the action does not fall within Order 16 rule 1(1)(a) – (c) or
- the plaintiff or the third party can show special circumstances why the directions should
not be given.

● O16 r4(3) & (4):

If the application for directions is not dismissed, the court may make such orders:
i. The court may order the Defendant to serve a Statement of Claim on the third party
within a certain number of days (see Form 22 and Form 23)
- This is because the third party has to know the nature of the Defendant’s claim
against him.
(2) If no application is served on the third party under paragraph (1), the third party may, not earlier than seven days
after entering an appearance, by a notice of application in Form 22 to be served on all the other parties to the
action, apply to the Court for directions or for an order to set aside the third party notice.
(3) On an application for directions under this rule, the Court may-
(a) if the liability of the third party to the defendant who issued the third party notice is established on the
hearing, order such judgment as the nature of the case may require to be entered against the third party in
favour of the defendant;
(b) order any claim, question or issue stated in the third party notice to be tried in such manner as the Court
may direct; or
(c) dismiss the application and terminate the proceedings on the third party notice,

and may do so either before or after any judgment in the action has been signed by the plaintiff against the
defendant.
(4) On an application for directions under this rule, the Court may give the third party
- leave to defend the action, or
- to appear at the trial and to take such part therein as may be just, and
generally may make such orders/ give such directions as the Court deemed proper for having the rights and
liabilities of the parties most conveniently determined and enforced and as to the extent to which the third
party is to be bound by any judgment or decision in the action.
(5) Any order made or direction given under this rule shall be in Form 23 and may be varied or rescinded by the
Court at any time.

41 | Page
 ii. The court may order the third party to serve a Statement of Defence on the Defendant
within a certain number of days.
- Note: If the third party is ordered to serve a Defence on the Defendant, and the
third party fails to do so, the third party is deemed to admit to the Defendant’s
claim against and the third party will be bound by any decision made by the court
(Order 16 rule 5(1)).

iii. Order judgment in favor of the defendant against the third party if the liability of the
third party to the defendant is established at the hearing (Order 16 rule 4(3)(a))

iv. Order any claim, question or issue to be tried as the Court may direct (Order 16 rule
4(3)(b));

v. Give the third party leave to defend alone or jointly with any defendant and appear at
the trial (Order 16 rule 4(4))

Kayla Beverly Hills (M) Sdn Bhd v Quantum Far East Ltd69
Fact : In this case, the plaintiff’s lawyer was acting for the plaintiff and for the third
party. So the defendant applied to the court to disqualify the lawyer from
acting for the third party as they and the plaintiff are technically in an opposite
position, hence there will be conflict of interest if the same lawyer was to
represent them in the court.
Held : Since there is conflict of interest, the Court ordered the third party to defend
the suit whether alone or jointly with any defendant under Order 16 r 4(4).
Having said that, the necessary consequence of O 16 r 4(4) is that the third
party can cross-examine the plaintiffs and seek discovery against and
interrogate the plaintiffs at the trial.

vi. determine the extent to which the third party is to be bound by any judgment.

4) The Plaintiff and the Third Party`

● When the main action commences, there are usually 2 parties, namely the Plaintiff and the Defendant
but if a third party is joined, there are now 3 parties.
● When a third party is joined, the Plaintiff may now want to bring a claim against the third party and
more complicatedly, the third party may want to claim against the Plaintiff as well.
● In such a situation, the plaintiff and third party can’t sue each other as the third party is not a co-
defendant. If they wish to do so, either of them have to apply to the court to change the identity of the
third party to co-defendant under Order 15 rule 6:

i. Plaintiff wishes to claim against the third party

- A Plaintiff can only claim against against a Defendant.
- A third party is not a defendant. Therefore, a Plaintiff cannot claim against him.
- If a Plaintiff intends to claim against the third party, the Plaintiff must apply to court under
Order 15 rule 6 to alter the status of the third party to a co-Defendant.

ii. Third Party wishes to counter-claim against the Plaintiff

- Only a Defendant can counter-claim against the Plaintiff.
- A third party is not a defendant. Therefore, a third party cannot counter-claim against
Plaintiff.
69
(Uma Devi d/o Balakrishnan, third party) [2003] 6 MLJ 703
42 | Page
 - If a third party intends to counter-claim against the Plaintiff, the third party must apply to
court under Order 15 rule 6 to alter his status from a third party to a co-Defendant.

5) Limitation between Defendant and Third Party

When a Defendant’s claim against the third party for an indemnity or contribution, the time for limitation
does not run between the Defendant and the third party until the Defendant is made liable to the Plaintiff.

Mat Abu bin Man v Medical Superintendent, General Hospital, Taiping, Perak [1989] 1 MLJ 226.
Fact : The defendant was sued for injuring the deceased in an motor accident. The deceased later died at
the a hospital. Sometime later, the defendant took out a third party notice against the third parties
which are the Superintendent, District Hospital of Taiping and the Government of Malaysia claiming
for contribution and indemnity. The third parties objected by saying that the third party notice should
not be allowed as it is already time-barred under s 2(a) of the Public Authorities Protection Act.
Held : Third-party proceedings for contribution an indemnity under Order 16 should be regarded as
independent of and separate from proceedings by a plaintiff against a defendant. A third-party
proceeding s not intended to be treated in the same way as an action between the plaintiff and a
defendant.
: When a defendant is made liable to the plaintiff, he then has a right open against a third party to
establish that he possesses a right to contribution or indemnity from the third party. Hence, time for
limitation should also begin to run from the date the defendant is liable. (so, in this case, the notice is
not time-barred)

Chapter 3: Interpleader Proceedings

Under this topic, there are 5 areas to look at (due to the special structure of the chapter, the headings of this
chapter will be arrange alphabetically instead of numerically):
A. What are Interpleader Proceedings
B. Procedures for Interpleader Proceedings
C. Hearing of Interpleader Proceedings
D. Trial for Interpleader Proceedings
E. Costs for Interpleader Proceedings

A) What are Interpleader Proceedings

● Interpleader proceedings are governed by O.17 ROC
● Under O.17 , there are two types of interpleader proceedings:
O. 17, r 1(1)
(a) Stakeholder interpleader proceedings
(b) Sheriff interpleader proceedings [not important for our syllabus]

43 | Page
 A.1) Meaning of Interpleader Proceedings under O17 r(1)(a)
O. 17, r. 1: Entitlement to relief by way of interpleader
(1) Where—
(a) a person is under a liability in respect of a debt, money, goods or chattels and he
is sued or expects to be sued for that debt, money, goods or chattels by two or more
persons making adverse claims,
the person under liability may apply to the Court for relief by way of interpleader.

● Interpleader proceedings under O17 r(1)(a) are proceedings commenced by a person who is in
possession of property to which he himself has no claim, but the property is being claimed by
two or more persons and he is unsure as to who is the proper claimant. So, the persons holding
the property may apply to court and asks the court to decide who is the proper claimant.70
● The one who applies is called the interpleader and the proceedings are called interpleader
proceedings.

A.2) Case Law

● To apply for interpleading proceeding, there must be real thread of legal suit and mere
anticipation of suit is not sufficient. Also, if the numbers of clamant is less than 2 people (ie
only 1 person), Order 17 is not available merely because the applicant wants to confirm if the
sole complaint is the “real claimant”:

Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd [2009] 7 MLJ 124
Facts : The case concerns the control and/or management of an account (subject matter)
involving several claimants. The Applicant Bank maintains the account for Claimant
1 Company. The Applicant faced several threats of litigation and competing claims
concerning the control and management of the account. To clarify the issue, the
Applicant applied to for interpleader relief.
Held : Application dismissed with costs as O.17 r.1 is not fulfilled.
: The court laid down the law regarding interpleader proceeding:
- In seeking for interpleader relief under O.17 r.1 RHC, an applicant must
genuinely face a potential suit by one or more persons. There must exist a real
conflict between the claimants. Mere anticipation of a legal suit is not
sufficient.
- The application did not meet the first requirement under O.17 r.1 of the RHC
since the Applicant was not faced with two or more competing claims. The
money in the account belongs to Claimant 1. Therefore, there could not be
any competing claim to the account between the Claimants.
- Also, once you applied for interpleading proceeding, you as the pleader doesn’t
have to bear the cost unless:
i. There is an unreasonable delay (in this case, the application was taken
only after 4 months)
ii. When the interpleading application is unnecessary or inappropriate. (in
this case, there is no competing claims or threat to a legal suit faced by
the Applicant. Also, the the Applicant having filed this application before
consent orders were obtained with CCM, has been given a chance by all
parties to withdraw the Application but had refused to do so and
proceeded with this unnecessary Application)

70
Example: Ali found a pen but both Aminah and Bakar claims to be the owner of the pen. Ali doesn’t know who the proper
claimant and owner of the pen is, make an application to court to let the court decide who is the owner. Ali is known as
“interpleader” and the proceedings are called “interpleader proceedings”.
44 | Page
 : The court orders determined the rightful authority to operate and manage the
account. If there is any ambiguity, the applicant should have applied to clarify such
ambiguity instead of applying for relief under O.17 of the RHC. Interpleader
application is not an appropriate remedy to determine the alleged ambiguity. Hence,
the Applicant was ordered to pay cost.71

Lee Heng Moy v John Hancock Life Insurance (M) Bhd [2010] 1 MLJ 624, CA
Facts :This case concerns an insurance policy. Two parties (Respondent 2 and Appellant)
claimed to be beneficiary of the policy. The Appellant claimed she was entitled to the
sum as she was the lawful wife of the deceased while Respondent 2 was named by the
deceased as the wife in the insurance policy. Respondent 1 (Insurance Company)
sought interpleader relief. The trial judge held that Respondent 2 is the lawful
beneficiary since the Insurance Act does not limit beneficiary to a wife and the
deceased nominated Respondent 2 as lawful beneficiary.
Held : Respondent 1 could have decided on their own and release the insured sum to the
Respondent 2 but they decided to take a safer course by filing an interpleader
summons under O.17 requesting both claimants to come to court and state the
circumstances and particulars of their respective claims to the insured sum and that
they be bound by whatever order that the court may make.
: After looking into Insurance Act and Civil Law Act, the appellate judge agreed with
the trial judge and dismiss the appeal with costs.

● This case explained the real purpose of interpleading proceeding:

Tetuan Teh Kim Teh, Salina & Co (a firm) v Tan Kau Tiah @ Tan Ching Hai 72
Facts : (not important)73
Held : Court in this case explained the purpose of stakeholder interpleader proceeding.
Under O.17 r.1(a) RHC, a person who holds any money, goods or chattels which he
does not claim, or is under liability for a debt and he expects to be sued in respect of
that money, goods or chattels by two or more persons, that person can protect himself
from an action and the costs of such an action by calling on these claimants to
interplead, in other words, to claim against one another, so that the court can decide to
whom the money, goods or chattels belong.
: Interpleader proceedings is the method of compelling the parties (either one, or both,
or neither of whom may have actually issued a writ) to prosecute their claims. The
interpleader himself will then drop out of the suit as the person who has interpleaded
has no title himself. The real claimants are compelled to put forwards their claims and
have them adjudicated upon in front of all the parties. The reason for doing so is not
for the claimants’ benefit, but it is a relief of the person interpleading.
: One of the preconditions of Interpleader Proceeding under O.17 r.1(1)(a) is, there
must be “real foundation of expecting to be sued”. In this case, mere ‘direction and
71
because (i) the instant application was unnecessary, (ii) the applicant had refused to withdraw the application when
given the opportunity to do so; and (iii) the application was made after an inordinate delay.

72
[2013] 4 MLJ 313

73
Facts :
This case concerns disputes involving a law firm, a developer and a construction company. The Appellant (the
plaintiff) in this case was the stakeholder for 18 document of titles when the first defendant and the second
defendant entered into a joint venture agreement and subdivided the land. Disputes arose between the
defendants and the 2nd DF asked the plaintiff to return the documents of title. So, the plaintiff filed an
interpleader summons under O.17 RHC and the High Court High Court allowed. This case was later appealed
all the way to Federal Court.
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 warning’ was not sufficient foundation of expectation to be sued. So, the interpleading
proceeding application is dismissed.

B) Procedures of Interpleader Proceedings (IP)

B.1) Commencement
O.17 r.3(1):74 There are two ways in which interpleader proceedings can be commenced:
Way of commencing SP Originating Summons (OS) Notice of Application (NOA)
(O.17 r.3(1))
Form 7 27 and 28
When to use When it is a fresh action (no When there is already an action
action pending in court) pending in court

B.2) Affidavit
● Either by OS or NOA, both ways must be supported by an affidavit.
● The affidavit in support must comply with requirements under O.17 r.3(2):

O.17 r.3(2):
The applicant must emphasise or state in the affidavit that the applicant:
i. claims no interest in the subject matter in dispute;
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.

B.3) Service (O. 17, r. 4)

● Once the interpleader commences the proceedings in court, the OS or NOA together with the
affidavit in support must be served on the relevant parties.
Service OS + Affidavit NOA + Affidavit
Mode of service O.17 r.4(2) : O.17 r.4(3):
Must serve personally The NOA need not be served personally
unless the court orders to do so.

- Rule on personal service is - If the Court does not order for

governed in O.10 r.1, ie by personal service, then the NOA and
prepaid A.R. registered post or the affidavit may be served in
handing it personally to the accordance with O.62 r.6
parties involves. - General mode of serving documents
- O.10 r.575 allows O.10 r.1 to is more likely in NOA
apply to OS as well - Also, O. 17, r. 4(4) provided that the
NO shall be in one of the forms in
Form 29.
74
O. 17, r. 3: Mode of application
(1) An application for relief under this Order shall be made by originating summons unless made in a pending
action, in which case it shall be made by a notice of application in Form 27 or 28, whichever is appropriate.
75
O. 10, r. 5: Service of originating summons
Rules 1 to 4 (except rules 1(3) and (4)) shall apply with the necessary modifications in relation to an
originating summons as they apply in relation to a writ

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 Time O. 17 r.4(1): OS or NOA must be served at least 7 days before the return
day

“Return day” refers to hearing date fixed by the court for the interpleader
proceedings. The date is stated on the sealed copy of OS or NOA.
Who to serve to Parties claiming an interest in the property or subject matter in question.

C) Hearing of Interpleader Proceedings

● At the hearing, there are a number of things that can happen at the Interpleader Proceedings:
1. Whether all claimants appear at the proceedings
2. If yes, what is the proper way to deal with the proceedings

Scenario Way to deal with the proceedings/ Effect

If one of the claimants O.17 r.5(3) : In this scenario, the non-appearing party is deemed to
does not appear have waived his claim to the property or subject matter in question and
is forever barred from prosecuting his claim in the future.76

If all parties appear, the 1) Summary procedure

court will decide whether Only possible if
proceedings should be i) Parties consent to the matter being disposed of summarily.
dealt with: O.17 r.5(2)(b) ; or
1) Summarily (no ii) The matter involves only questions of law and there are no
trial); or disputes as to facts. O.17 r.5(2)(c)
2) Through trial
2) D) Trial
The court will order for a trial if there are substantial disputes as
to facts, e.g. case is very factual, need to call witness.

D.1) During the hearing of Interpleader Proceedings

To prepare parties for trial, the court will make certain
directions./order under O.17 r.5(1)77 to ensure the trial runs
smoothly and efficiently. These orders include:
i. Order that one of the claimants become the plaintiff
ii. Order that one of the claimants become the defendant
iii. Ask the interpleader at this point to step out of the
proceeding. 78

76
Example: Aminah and Bakar both claim the ownership of a pen. Aminah does not appear in court during the interpleader
proceeding, then under the Rule, she is deemed to have waived her claim to the ownership of the pen and she would be barred
from prosecuting her claim in the future.

77
O. 17, r. 5 : Powers of Court hearing originating summons or notice of application
Where on the hearing of the originating summons or a notice of application under this Order all persons making
the adverse claims to the subject matter in dispute (“claimants”) appear, the Court may order
(a) that any claimant be made a defendant in any action pending with respect to the subject matter in dispute in
substitution for or in addition to the applicant for relief under this Order; or
(b) that an issue between the claimants be stated and tried and may direct which of the claimants is to be plaintiff
and which is to be defendant.

78
There is no need for the interpleader anymore and the interpleader may step out of this proceeding.
47 | Page
 iv. Determine the issue to be tried at the trial

D) End of Trial
● If any of the claimants does not appear, he is barred from
prosecuting his claim.
● If any party does not comply with any direction which
was made at the previous hearing, he will also be barred
from prosecuting his claim.
● If all the parties are present at the trial, the court will go
through the trial process and at the end of the trial, the
court will deliver its judgement accordingly.
● Also, the trial is governed by O.17 r.1179

E) Costs
● After everything, who will bear the costs of paying for the interpleader proceedings?
o Costs of the interpleader proceedings will usually be borne by the losing party who will pay the costs
of the interpleader as well as the costs of the other successful parties.

Interpleader proceedings is quite an examinable topic. Usually there will be a question which might give
you a scenario and then you would have to identify that scenario relates to an interpleader proceeding and
then you would have to explain the procedures and the process of what takes place during interpleader
proceedings from the commencement stage to the trial stage.

Chapter 4 (Part 1): INJUNCTION

1) Definition
An injunction is a remedy in the form of a court order directed to a specific party to do an act or to refrain
from doing an act. The remedy of injunction is based on principles of equity.

2) Classification

79
O. 17, r. 11: Trial of interpleader issue
(1) Order 35 shall, with the necessary modifications, apply to the trial of an interpleader issue as it applies to the
trial of an action.
(2) The Court may give such judgment or make such order as to finally dispose of all questions arising in the
interpleader proceedings.
(3) The judgment shall be in one of the forms in Form 30
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● There are various classifications of injunctions.
● On the subject of classifications of injunctions, the following passage from Meagher, Gummow &
Lehane’s Equity: Doctrines & Remedies is instructive,
“Injunctions may be variously classified. If the purpose of the injunction is to distinguish between
injunctions which forbid and injunctions which command some positive act, they are called
prohibitory or mandatory respectively. If classified according to the point of the trial at which they
are granted, they are classified as interim or interlocutory on the one hand (being limited in their
terms to last until either further order; or until the final hearing of the case; or until the final hearing
or the final order), or final on the other hand. If the purpose is to distinguish those granted against a
defendant who has not been served or will not be heard from those granted against a defendant who
has been served and will be heard, they are called ex parte and inter partes injunctions respectively.
Again, quia timet injunctions, being injunctions granted against apprehended or threatened wrongs
which have not yet been committed, are often distinguished from injunctions directed against the
continuance or repetition of a wrong.”

● There are seven 7 types of injunction :

A) Prohibitory injunction – see s. 52 Specific Relief Act (SPA) 1950 and illustrations thereto.:
- Prohibitory injunction prohibits a person from doing an act.
- It is negative in nature.

Section 52: Perpetual injunctions when granted

(1) Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual
injunction may be granted to prevent the breach of an obligation existing in favour of the
applicant, whether expressly or by implication.
(2) When such an obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II.

49 | Page
 (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of,
property, the court may grant a perpetual injunction in the following cases, namely:
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion; and
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Explanation—For the purpose of this section, a trade-mark is property.

ILLUSTRATIONS80
80
ILLUSTRATIONS
(a) A lets certain land to B, and B contracts not to dig sand or gravel thereout. A may sue for an injunction to restrain B from
digging in violation of his contract.
(b) A trustee, threatens a breach of trust. His co-trustees, if any, should, and the beneficial owners may, sue for an injunction to
prevent the breach.
(c) The directors of a public company are about to pay a dividend out of capital or borrowed money. Any of the shareholders
may sue for an injunction to restrain them.
(d) The directors of a fire and life insurance company are about to engage in marine insurances. Any of the shareholders may
sue for an injunction to restrain them.
(e) A, an executor, through misconduct or insolvency, is bringing the property of the deceased into danger. The court may grant
an injunction to restrain him from getting in the assets.
(f) A, a trustee for B, is about to make an imprudent sale of a small part of the trust-property. B may sue for an injunction to
restrain the sale, even though compensation in money would have afforded him adequate relief.
(g) A makes a settlement (not founded on marriage or other valuable consideration) of an estate on B and his children. A then
contracts to sell the estate to C. B or any of his children may sue for an injunction to restrain the sale.
(h) In the course of A’s employment as a solicitor, certain papers belonging to his client, B, come into his possession. A
threatens to make these papers public, or to communicate their contents to a stranger. B may sue for an injunction to
restrain A from so doing.
(i) A is B’s medical adviser. He demands money of B which B declines to pay. A then threatens to make known the effect of B’s
communications to him as a patient. This is contrary to A’s duty, and B may sue for an injunction to restrain him from so
doing.
(j) A, the owner of two adjoining houses, lets one to B and afterwards lets the other to C. A and C begin to make such
alterations in the house let to C as will prevent the comfortable enjoyment of the house let to B. B may sue for an injunction
to restrain them from so doing.
(k) A lets certain arable lands to B for purposes of husbandry, but without any express contract as to the mode of cultivation.
Contrary to the mode of cultivation customary in the district, B threatens to sow the lands with seed injurious thereto and
requiring many years to eradicate. A may sue for an injunction to restrain B from sowing the lands in contravention of his
implied contract to use them in a husbandlike manner.
(l) A, B, and C are partners, the partnership being determinable at will. A threatens to do an act tending to the destruction of
the partnership-property. B and C may, without seeking a dissolution of the partnership, sue for an injunction to restrain A
from doing the act.
(m) A, the owner of certain houses in Kelang, becomes insolvent. B buys them from the Official Receiver of A’s estate and enters
into possession. A persists in trespassing on and damaging the houses, and B is thereby compelled, at considerable expense,
to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass.
(n) A, in an administration-suit to which a creditor, B, is not a party, obtains a decree for the administration of C’s assets, B
proceeds against C’s estate for his debt. A may sue for an injunction to restrain B.
(o) A and B are in possession of contiguous lands and of the mines underneath them. A works his mine so as to extend under
B’s mine and threatens to remove certain pillars which help to support B’s mine. B may sue for an injunction to restrain him
from so doing.
(p) A rings bells or makes some other unnecessary noise so near a house as to interfere materially and unreasonably with the
physical comfort of the occupier, B. B may sue for an injunction restraining A from making the noise.
(q) A pollutes the air with smoke so as to interfere materially with the physical comfort of B and C, who carry on business in a
neighbouring house. B and C may sue for an injunction to restrain the pollution.
(r) A infringes B’s patent. If the court is satisfied that the patent is valid and has been infringed, B may obtain an injunction to
restrain the infringement.
(s) A pirates B’s copyright. B may obtain an injunction to restrain the piracy, unless the work of which copyright is claimed is
libellous or obscene.
50 | Page
 B) Mandatory injunction – see s. 53 SRA 1950 and illustrations thereto.
- Mandatory injunction requires/compels a person to do/perform an act or to undo an act which he
has already done.
- It is positive because it requires a person to do something/undo something he has done.

53. Mandatory injunctions

When, it is necessary to compel the performance of certain acts to prevent the breach of an
obligation which the court is capable of enforcing, the court may in its discretion grant an
injunction to prevent the breach complained of, and also to compel performance of the
requisite acts.

ILLUSTRATIONS81

- This case laid down the criteria for granting interlocutory mandatory injunction BEFORE trial:
Gibb & Co v Malaysia Building Society [1982] 1 MLJ 271 [FC]
Facts : (not important)82
(t) A improperly uses the trade mark of B. B may obtain an injunction to restrain the user, provided that B’s use of the trade
mark is honest.
(u) A, a tradesman, holds out B as his partner against the wish and without the authority of B. B may sue for an injunction to
restrain A from so doing.
(v) A, a very eminent man, writes letters on family topics to B. After the death of A and B, C, who is B’s residuary legatee,
proposes to make money by publishing A’s letters. D, who is A’s executor, has a property in the letters, and may sue for an
injunction to restrain C from publishing them.
(w) A carries on a manufactory and B is his assistant. In the course of his business, A imparts to B a secret process of value, B
afterwards demands money of A, threatening, in case of refusal, to disclose the process to C, a rival manufacturer. A may
sue for an injunction to restrain B from disclosing the process.

81
ILLUSTRATIONS
(a) A, by new buildings, obstructs lights to the access and use of which B has acquired a right by prescription. B may obtain an
injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B’s
lights.
(b) A builds a house with eaves projecting over B’s land. B may sue for an injunction to pull down so much of the eaves as so
project.
(c) In the case put as illustration (i) to section 52, the court may also order all written communications made by B, as patient, to
A, as medical adviser, to be destroyed.
(d) In the case put as illustration (v) to section 52 the court may also order A’s letters to be destroyed.
(e) A threatens to publish statements concerning B which would be punishable under Chapter XXI of the Penal Code [Act 574].
The court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B’s
property.
(f) A, being B’s medical adviser, threatens to publish B’s written communications with him, showing that B has led an immoral
life. B may obtain an injunction to restrain the publication.
(g) In the cases put as illustrations (s) and (t) to section 52, and as illustrations (e) and (f) to this section, the court may also
order the copies produced by piracy, and the trade marks, statements, and communications, therein respectively
mentioned, to be given up or destroyed.
82
In this case, the respondent was a company providing finance for housing development. The developers applied to
the respondent for end-finance for its housing project, and the respondent approved the loan of $1,457,100 for 85
units of houses. Then, the individual purchasers of the several units also applied to the respondent for loans. The
appellant acted as solicitors for all parties (the respondent, the developer and the appellants themselves). Since the
land concerned was charged, the respondents paid some amount to the chargees so that separate titles could be
issued to the purchasers to be free from incumbrances.

On obtaining the issue documents of title for the 85 units and other relevant documents the respondent handed them
to the appellant for the requisite documentation. At this stage, a dispute developed between the appellant and the
developer who appointed new solicitors to act for it and also between the purchasers and the developer.

The purchasers alleged that the developer had collected extra money from them and thus the price of the units was
increased.

51 | Page
 Held : An interim mandatory injunction before trial may be granted if the case is
“unusually sharp and clear”. This means that the court must feel a high degree of
assurance that at the trial, a similar injunction would probably be granted and such
“degree” would then subject to certain considerations including, inter alia:
i. the hardship of the parties.
This means that the court will have to consider the extend of hardship the
mandatory injunction will cause to the defendant if the injunction was issued
and on the other hand, the extend of hardship the applicant may suffer if the
injunction was not given.

ii. The easiness or difficulty of complying with the injunction

This means the court will have to consider if it is easy to comply with the
mandatory injunction.

: Generally, the stronger the case of the applicant that the matters complained of are
unlawful, the more likely that the court will grant such an injunction to protect the
interest of the applicant. If there is plainly no defence to the action, and the defendant
solely raise a defence to delay the case, an injunction should be issued even if it gives
the applicant his whole remedy before trial. (in this case, the injunction was given)

Victory Enterprise v Chin Wei Yoon [2005] 2 MLJ 743 [HC]

Facts : Both the plaintiff and defendant were carrying logging-related business. One day,
the defendant entered into a contract with the plaintiff that the defendant would sell
ALL the timber logs he extracted from a concession to the plaintiff. However, the
defendant later failed to sell all the logs but only sold part of the total logs to the
plaintiff and the rest was sold to a third party without the plaintiff’s consent. The
plaintiff filed an action for breach of contract and applied for an interlocutory
injunction against the defendant to stop selling the logs to the third party,

Held : The court allowed the application for injunction. Mandatory injunction should not
be granted except in exceptional and extremely rare cases. In this case, the
injunction the plaintiff sought for is in line with the agreement, ie the defendant must
sell all the timber logs to plaintiff. Therefore, the facts and circumstances of this case
are exceptional and would constitute one of the extremely rare cases which would
warrant the intervention of the court by granting the injunction.

C) Perpetual injunction
- Perpetual injunction is an order made after hearing both sides to bind the parties finally.
- Perpetual injunction is also known as a final injunction; it binds the parties forever unless lifted.
- A perpetual injunction will only be granted by the court after a full trial has been held.

D) Interlocutory, interim or temporary injunction (until full hearing – see Form 58).
- This is injunction which is temporary, ie lasts during the period while the trial is pending.
- It can be granted at any time/various stages when the case is pending in court. It will last from
the date it is granted in court until the conclusion of the trial.

The appellant caused the transfers in favour of the purchasers to be registered but despite repeated requests by the
respondent, the appellant failed to register the charges in favour of the respondent in respect of the 82 units. The
respondent appointed other solicitors to protect its interests. The respondent then lodged caveats against the land.

The respondent then issued a writ to claim that it was entitled to the custody of the documents of title and instruments
of charge and made an order to the appellant to deliver the documents to them. It then applied for an injunction for the
appellant to forthwith deliver to it the issue documents of title and the instruments of charge. The High Court granted
an order accordingly.
52 | Page
 - Purpose: to maintain the status quo between the parties during trial

Bank Islam Malaysia Bhd v Tinta Press [1986] 1 MLJ 256 [OCJ]
Facts : In this case the plaintiffs had leased certain printing equipment to the first defendant. The
first defendant defaulted in payment of the lease rent, so the plaintiffs brought an action to
recover possession of the equipment and to recover the arrears of rent. The plaintiffs also
made an ex parte application for a mandatory injunction to enable the plaintiffs to recover
possession of the equipment. The first defendant applied to set aside the mandatory
injunction.
Held : the court has jurisdiction to grant a mandatory injunction on in urgent and exceptional cases
: In this case, the plaintiff-bank had an unusually strong and clear case again the first
defendant and if the injunction had not been granted earlier, the plaintiff bank would suffer
grave damage and greater hardship. The balance of convenience was very much in favour of
the plaintiff.
: This was clearly an exceptional case where the court was justified in granting a
mandatory injunction on an ex parte application.
: Considering the circumstances of the case (the rights of the parties, the balance of
convenience & the urgency of the matter), this is proper and appropriate to grant the
mandatory injunction.

E) Ex parte injunction
- This is a type/subset of interlocutory/interim/temporary injunction, where the court would hear
the application only with the applicant’s presence. (the defendant won’t be present)
- It is granted by the court only after the court hears the applicant/plaintiff, who has applied for
the injunction but ex parte injunction should only be allowed in very urgent cases.
- An ex parte injunction only lasts for 21 days. Upon the expiry of the 21 days, the ex parte
injunction would automatically expire. O 29 r 1(2B)

F) Quia timet injunction (translated as “because he fears”)

- Quia timet injunction is an injunction to restrain wrongful acts which are threatened or imminent
but have not yet commenced.
- This is granted when the plaintiff’s right is threatened but not yet infringed. In other words, the
plaintiff has not suffered damage at this point, however, the defendant’s action causes the
plaintiff to fear that the latter’s rights might be violated.
- However, this is granted very rarely.

G) Special forms e.g. Mareva and Anton Piller.

- This is granted when it is needed to create special types of injunction to cater to specific
situations.
- These injunctions are created by case laws, mostly named after the cases which create them, eg:
i. Mareva Injunction [Jefri Bolkiah’s case]
ii. Anton Piller Injunction
iii. Erinford Injunction
iv. Ad interim Injunction
3) Injunction against Government
● s.29(2) Government Proceedings Act 195683 suggests that a party/person cannot apply for an injunction
against the government if the effect of granting the injunction or making the order would be to give any
relief against the Government which could not have been obtained in proceedings against the
Government.
83
29. Nature of relief
(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if
the effect of granting the injunction or making the order would be to give any relief against the Government which could not
have been obtained in proceedings against the Government.
53 | Page
 Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 [SC]
Facts : In this case, the respondent applied for a declaration that the letter of intent issued by the
government to one United Engineers (M) Bhd. (UEM) in respect of the North and South
Highway contract is invalid. Thus, the plaintiff applied for an interim injunction against UEM
to restrain it from signing the contract.
Held : The court did not allow the application for injunction against government as the issue of the
interim injunction against UEM is absolutely contrary to the express words of section 29 of
the Government Proceedings Ordinance, as it has in effect indirectly restrained the
government

Cf: Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah [2005] 3 MLJ 325 [CoA]
Facts :The appellant carried on the business of a canteen operator at the first respondent's government
hospital. The appellant's case was that in reliance of the assurance of the first respondent, the
appellant borrowed money and incurred expenses for the canteen but the first respondent had instead
breached its promise by terminating the appellant's contract. The first respondent subsequently
granted the contract for operating the canteen to the fourth respondent. The appellant complained that
the first respondent acted in breach of contract and constructive trust. The appellant's applied for
urgent injunction against the first and fourth respondents from evicting it from the canteen premises
of the first respondent.
Held :Injunction was granted. An injunction can be obtained against particular servants and officers of the
government, though not the government as a whole.
: S.29(2) GPA does not prohibit interlocutory/temporary injunction against the government. (imply
that only perpetual injunction cannot be granted against the government)

Paul and Dennis own neighbouring lands. Dennis had been doing some earthing and excavation works to
build a resort on his land. Paul, his neighbour, had recently discovered that in the course of Dennis’s
construction work, Dennis had encroached into Paul’s property. A small part of Paul’s property had been
damaged/excavated. Paul was unhappy and asked Dennis to stop the works on his land. Dennis refused to
stop. Paul needs a prohibitory injunction to stop Dennis from doing further works and also a
mandatory injunction to compel the Dennis to repair the damage done to Paul’s land. However, the
question is how long would Paul want the injunction to last?

Paul would also want a perpetual injunction to prevent Dennis from encroaching into Paul’s land
permanently. However, this can only be granted after a full trial. Hence, to protect Paul’s interest, Paul
should apply for a temporary/interim/ interlocutory injunction. It’ll last while the case is pending in
court.

Paul’s case is considered a very urgent case, unless Dennis is stopped, there is a huge risk that any further
construction will damage Paul’s land. Hence. Paul can apply for an ex parte injunction, which lasts for
21 days, as an immediate preventive measure. In that 21 days, he can take further steps to apply for
interlocutory injunction or to initiate a proceeding in Court.

Scenario:
4) Temporary/Interlocutory/Interim Injunction
This part will discuss Temporary/Interlocutory/Interim Injunction in detail.

4.1) Procedure for interlocutory injunction

The procedure depends on whether the case is urgent or not.

54 | Page
 CASE NOT URGENT (O 29 r 1(2))
1. Plaintiff commences main action in court by
issuing the originating process (writ) and serving
it (writ & SoC) on the Defendant. Usually, there
is dispute of facts.
- O. 29 r(3): an interim injunction can’t be
issues before the writ is sent out unless in
cases of urgency.
2. After commencing action, Plaintiff applies for an
interlocutory injunction by a notice of
application supported by an affidavit (O 29 r
1(2)).
3. Notice of application (sealed copy) will fix a
hearing date for the application.
4. On the hearing date, the Plaintiff and the
Defendant will attend court. Upon submissions
by the parties, the court will decide whether to
grant an interlocutory injunction to last until the
conclusion of the trial.
5. The interlocutory injunction will maintain the
status quo between the parties until the end of
the trial.
6. At the conclusion of the trial, the court will
decide whether to grant a perpetual injunction
O29 r1: Application for interlocutory injunction
Application for interlocutory injunction may be made
by a notice of application supported by an affidavit
and where the case is one of urgency, may be made ex
parte.
CASE URGENT (O 29 r 1 (2A) – (3))
1. Plaintiff does not need to commence main
action in court.
2. Plaintiff can immediately apply for an ex parte
interlocutory injunction by filing an ex parte
notice of application supported by an affidavit.
(O. 29 r. 1(2))
3. The affidavit in support must comply with O 29 r
1 2A.
- There are 7 requirements that must be
complied with.
- Non-compliance with O 29 r 1 2A will result
in the application for an ex parte injunction
being dismissed. (stringent requirement)
4. A hearing date will be fixed for the application.
5. Only the Plaintiff attends court on the hearing
date and will be heard by the court. After
hearing the Plaintiff, the court may grant an ex
parte injunction or may dismiss the application.
(hence no need to serve anything on the D in
advance)
6. O 29 r 1(2B) :
If the court grants an ex parte injunction, the ex
parte injunction will last for max 21 days from
the date it is granted. At the expiry of 21 days,
the ex parte injunction will automatically lapse.
7. O 29 r 1 (2BA):
- If the ex parte injunction is granted, the
Plaintiff must serve the ex parte injunction
on the Defendant within seven (7) days of
the date of the order.
- Further, the Court when granting the ex
parte injunction, must fix a hearing date to
hear the application inter partes
interlocutory injunction within fourteen
days (14) from the date of the order.
- Further read the case of RIH Services etc v
Tanjung Tuan Hotel Sdn Bhd below.
8. The purpose of the inter partes hearing is to
bring both the Plaintiff and Defendant to court
55 | Page
 and for the court to decide whether to
i. dismiss the ex parte injunction or
ii. grant an interlocutory injunction to last
until the end of the trial. (subject to O.
29 r. 1(2C) & (3).
Provisions
Case Not Urgent Case Urgent
O. 29 r. 1(2) i. 29 r. 1(2)
ii. O. 29 r. 1(2A)84
O29 r1: Application for interlocutory iii. O. 29 r. 1(2B)85
injunction Note: Setting aside of ex parte
(2) Application for interlocutory injunction injunction does not have any
may be made by a notice of application retrospective effect; if D defaulted
supported by an affidavit and where the before the setting aside, then D is liable
case is one of urgency, may be made ex for contempt of court.
parte. iv. O.29 r. 1(2BA)86
v. O. 29 r. 1(2C)87
vi. O. 29 r. 1(3)88

84
(2A) The affidavit in support of an application made ex parte must contain a clear and concise statement of—
(a) the facts giving rise to the claim;
(b) the facts giving rise to the application for interim injunction;
(c) the facts relied on to justify the application ex parte, including details of any notice given to the other party or, if
notice has not been given, the reason for not giving notice;
(d) any answer by the other party (or which he is likely to assert) to the claim or application;
(e) any facts which may lead the Court not to grant the application ex parte or at all;
(f) any similar application made to another Judge, and the order made on that application; and
(g) the precise relief sought.

85
(2B) Unless earlier revoked or set aside, an interim injunction obtained on an ex parte application shall automatically lapse
twenty-one days from the date it was granted.

86
(2BA) An ex parte interim injunction must be served within seven days of the date of the order, and the Court when granting
the order must fix a date to hear the application inter partes within fourteen days from the date of the order.

87
(2C) A Court shall not grant an injunction on an ex parte application if the effect is to stop the holding or progress of a
meeting of a body corporate, a society, an association, a union, an organization, a club or any other body of persons however
constituted or named.

88
(3) The plaintiff may not make such an application before the issue of the originating process except where the case is one of
urgency, and in that case—
(a) the injunction applied for may be granted on such terms, if any, as the Court thinks fit; and
(b) if the originating process is not issued within two days of the granting of the injunction, or such other period as the
Court thinks fit, the Court shall, on application by a defendant, discharge the injunction.

56 | Page
 O. 29 r.4:
In either case, an interim injunction shall be in Form 53

Note: O. 29 r. 1 was amended in 2000 and again in 2012

(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 within seven days of the date of the
order, and the Court when granting the order must fix a date to hear the application inter
partes within fourteen days from the date of the order.” (emphasis added)

4.2) Duration for ex parte injunction

● 29 r. 1(2B) states that the an ex parte injunction will end in max 21 days (it may be shorter
depending on the court’s order) from the date it was granted. However, the day the injunction
was granted should be excluded in computing the 21 days.
● Also, if the court somehow fail to made the decision on the failing date, the duration for an ex
parte injunction will run from the date it was granted.

RIH Services etc v Tanjung Tuan Hotel Sdn Bhd [2002] 3 MLJ 1 [CoA]
Held : Order 29 r(1)(2B) of the RHC mentioned about 'at the end of 21 days from the date on
which it is granted'. Both O 3 r 2(2) of the RHC and s 54(1)(a) of the Interpretation Acts 1948
and 1967 required that the day the order was made to be excluded in reckoning the 21 days.
So, the ex parte injunction granted on 6 December 2001 expired on 27 December 2001. The
day the order was made should be excluded in computing the 21 days.
: Also, an ex parte injunction could not be extended beyond the 21 days. The order
automatically lapsed after 21 days.89
: However, an ex parte application, which for some reason could not be heard or was heard
but no decision was given within 21 days from its filing, did not expire after 21 days from
its filing. It would still subsist until it was heard and decided upon, even well after 21 days of
its filing.

4.3) Legal Factors to be Taken into Account by the Court

American Cynamid v Ethicon [1975] A.C. 396 [HoL]
Facts :The plaintiffs, an American company, owned a patent covering certain sterile absorbable
surgical sutures. The defendants, also an American company, manufactured in the United
States and were about to launch on the British market a suture which the plaintiffs claimed
infringed their patent. The defendants contested its validity on divers grounds and also
contended that it did not cover their product. In an action for an injunction the plaintiffs
applied for an interlocutory injunction with the usual undertaking in damages by the
plaintiffs. The High Court granted but was reversed by the COA, hence current appeal to the
Supreme court.
Held : injunction is granted.
: In all cases of granting an interlocutory injunction , the test is that, the court must determine
the matter on a balance of convenience, that:
- if the case went to trial, with the evidence presented at the hearing of the application, the
plaintiff would be entitled to a permanent injunction in the terms of the interlocutory
injunction sought
- Then, if there was a doubt as to the parties' respective remedies in damages being
adequate to compensate them for loss occasioned by any restraint imposed on them, it
would be prudent to preserve the status quo.
: In the present case, there was no ground for interfering with the trial judge's assessment of
the balance of convenience or his exercise of discretion and the injunction should be granted
accordingly.
89
Cheah Cheng Lan v Heng Yea Lee [2001] 1 MLJ 433 followed.
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 Principle:The balance of justice/balance of convenience test takes into account the following factors:
(a) Whether damages would be an adequate remedy
(b) Whether the party applying for injunction would suffer a greater deal, if injunction is not granted
(c) Whether the party resisting the injunction would suffer more if the injunction is granted

Sunrise v First Profile [1997] 1 CLJ 529 [FC]

Fact : (not important) 90
Held : Injunction granted.
: It is clearly permissible in law to grant an interlocutory injunction restraining the controller
and manager behind a company (as opposed to the company itself) from evading the
contractual obligations or duties undertaken by the company. The fact that the company
under control has not been restrained is, in itself, not a necessary bar to granting the relief
against the controller and manager behind it. Applying the principles in American
Cyanamid Co. v. Ethicon Ltd. to the facts of the instant appeal, it was clear that there
existed serious questions to be tried and that the balance of convenience was in favour
of the appellant.

4.4) Application must be prompt.

● Delay can be used as a ground to dismiss an application for injunction This is because injunction
is an equitable remedy- “Delay defeats equity.”
Ware v Regent’s Canal Co [1858] 3 De G & J 212, 44 ER 1250:
Held : Delay “may be calculated to throw considerable doubt upon the reality of his alleged
injury”.
● Plaintiff must apply for injunction quickly; as soon as he knows there is damage or he is aware of
circumstances which he might be granted an injunction. Otherwise, delay can be used as a
ground to dismiss an application for injunction.

Evercrisp Snack Products v Sweeties Food Industries [1980] 2 MLJ 297 [OCJ]91

90
Facts:
On 16 October 1991, the 1st respondent entered into an agreement with the appellant to sell all the paid-up shares of the 2nd
respondent to the appellant. The 2nd respondent owned four pieces of land in the Federal Territory ('the land') and was a wholly
owned subsidiary of the 1st respondent. It was agreed that the 1st respondent intended to build schools on the land and was to
submit an application for a development order for the same within three months from the date of the agreement. It was in
evidence that such an application was submitted on 16 January 1992. It was also agreed that the agreement was conditional
upon the development order not being obtained within 15 months from the date of its application. It was in evidence that no
development order was obtained by the cut-off date, i.e., 16 April 1993.
On 13 April 1993, ie, three days before the cut-off date, the 1st respondent purported to terminate the agreement by returning
the appellant's deposit and part payment. Dissatisfied, the appellant filed an action claiming, inter alia, a declaration that the 1st
respondent had committed an anticipatory breach of the agreement, specific performance, and an injunction restraining the 1st
respondent from disposing of the shares of the 2nd respondent. The appellant also applied for an interlocutory injunction to
restrain the 1st respondent from dealing with the land. The trial Judge refused the appellant's application for the interlocutory
injunction, holding that the 1st respondent had no right to deal with the land, that the interlocutory injunction even if granted
would not prevent the 2nd respondent from disposing of the land, and that there was no evidence showing that the 2nd
respondent intended to pass any resolution to deal with the land. The appellant appealed. The main issue before the instant
Court was whether the interlocutory injunction sought could be issued against the 1st respondent in respect of the land owned
by the 2nd respondent.

91
Facts:
The plaintiffs had sought an action alleging that the defendants had used a get up of their product which was calculated to lead
to deception and to the belief that the defendants' snack foods were the snack foods of the plaintiffs and to cause the snack
foods of the defendants to be passed off as that of the plaintiffs. Subsequently the plaintiffs applied for an interlocutory
injunction to restrain the defendants from passing off or attempting to pass off the goods.

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 Held : Application was dismissed because of delay. There was unreasonable delay in
applying for the interim relief and the delay had not been satisfactorily explained.

4.5) Undertaking as to damages.

● If at the end of the trial, the defendant wins the case, the defendant would have suffered some
loss which was caused by the imposition of the interlocutory injunction.
● So, in an application for interlocutory injunction, the plaintiff is required to give an undertaking
as to damages to the defendant (promise to pay damages if the defendant wins the case).
● During the trial process, the court might have imposed an interlocutory injunction to preserve the
status quo between parties. As a result of the loss suffered due to the imposition of the
interlocutory injunction, the plaintiff has to pay the defendant for these losses since he has given
an undertaking as to damages, even if the plaintiff didn’t take such undertaking as to damages to
the defendant.

Elias bin Mooin v Dato Zainal Abidin [1997] 3 CLJ 455 [HC]
Facts :The defendant won the case in an injunction application and claim damages. The
plaintiffs, opposing the claim, contended that there was no question of damages
arising as the ex parte injunction order did not specify their undertaking to pay any
damages to the defendant.
Held :The non-insertion of the plaintiffs' undertaking to pay damages in the order for the ex
parte injunction is not fatal to the defendant's claim for damages. Such failure does
not prevent the defendant from claiming on an express undertaking affirmed on the
plaintiffs' affidavit.

4.6) Failure to comply with injunction

If court grants an injunction (regardless of which type) but the defendant fails to comply with the
injunction, failure to comply is contempt of court. Committal proceedings can be commenced against
the defendant under O. 52.

4.7) Grounds for Discharge

● If the defendant wish to be discharged from an injunction, the onus is on the defendant to show to
the court the existence of these grounds:
i. the plaintiff has made a non-disclosure/has suppressed material facts. (main ground) The
plaintiff is under a duty to make a full and frank disclosure of all material facts to the court
in the application of an ex parte injunction.
ii. The facts do not justify ex parte relief, i.e. the case is not urgent.
iii. The effect of the ex parte injunction which was granted is very oppressive/burdensome on
the defendant.
iv. The defendant can show that the ex parte injunction unreasonably interferes with third
parties’ rights.
v. The defendant can show that there has been a change in circumstances.

4.8) Injunction for Defamation actions

● Example: A plaintiff applies for an injunction to stop a book from being published because the
book contains defamatory materials about him.
● Generally, a court would not grant an injunction to stop the publication of a book/journal, etc., IF
the defendant states that he is relying on the defence of justification or fair comment.
● This principle comes from English law; English law has always upheld the freedom of speech.

Woodward v Hutchins [1977] 2 All E.R. 751 [CoA]

Facts :The individual plaintiffs were pop singers. So, they employed the defendant to act,
inter alia, as their public relations officer and press agent. The defendant’s task was to

59 | Page
 to project a favourable image of their public and private lives. He toured with them
and saw all their activities. However, he left their employment man years later.
: When the left, he wrote a series of articles for a daily newspaper which purported 'to
put straight the fallacies and half-truths of the lives and careers' of the plaintiffs. The
articles contained much hitherto undisclosed information about their lives. The first
three articles were published. They gave an account of a number of discreditable
incidents involving the plaintiffs including details about the relationship between one
of them and a woman who was not his wife.
: The plaintiffs claimed that the articles were libellous and written in breach of
confidence. They brought an action against the defendant claiming, inter alia,
i. an injunction to restrain the defendants from publishing any similar libel,
ii. an injunction to restrain them from publishing any confidential information
about the group's private lives acquired by the defendant during the course of
his employment with the group, and
iii. damages for libel.
: On the afternoon of the day before the fourth article in the series was to be
published, the plaintiffs applied for an interlocutory injunction to restrain the
publication of any further confidential information obtained by the defendant during
the course of his employment with them. The defendants intimated at the hearing of
the application that so far as the libel claim was concerned they would plead
justification at the trial.
Held :Since the plaintiffs had sought publicity which was to their advantage, they could not
complain if publicity were given to matters which revealed them in a less favourable
light. In the circumstances, the public interest in giving publicity to the truth
outweighed the public interest in protecting confidential information obtained by an
employee about his employers during the course of his employment.
: The balance of convenience was on the side of allowing the remaining articles to be
published and leaving the plaintiffs to pursue their claim for damages for
i. the fourth article was just about to go to press, and
ii. the allegation that there had been a breach of confidence was interwoven with
the claim for damages for libel and the court would not grant an injunction
to restrain the publication of an alleged libel if a defendant indicated that
he was going to plead justification.

5) Ad interim Injunction and Erinford injunction

● Both the ad interim injunction and Erinford injunction are injunctions which are created by case law.
● They are special injunctions and they were created by case law to apply and cater to specific situations
only.

5.1) Ad Interim Injunction

● What’s difference between an interim and ad interim?
- An order interim order is an interlocutory order pending the disposal of the case but an ad-
interim order is an order made before the grant of an interim order.
- What’s the function of ad interim order? Scenario:
When a suit is filed for an order of interim injunction and the hearing takes place, the judge may
still be not able to decide the case and needs time. But the plaintiff side presses for the
injunction, which in many cases if postponed, will cause further damage. In fact, prevention of
further damage to plaintiff is one of the reasons why an interim injunctions is sought for. If that
also is postponed, then the plaintiff 's case is prejudiced and exposed to vulnerability of further
damage.

60 | Page
 Hence, the court can order ad- interim injunction to protect the interest of the plaintiff until the
interim injunction is decided. It's most likely derived from ad-hoc interim, which means for the
'specific purpose of giving protection during the intervening period only '. In other words, an ad
interim injunction is like an “interim injunction made out of an interim injunction proceeding.

● An ad interim injunction may be granted where

i. there is a successful ex parte injunction in place/ granted by the court and

Take note that:

O.29 r.1(2B) : an ex parte injunction only lasts for maximum 21 days from the date it is granted.
Upon the expiry of the 21 days, the ex parte injunction automatically lapses.

ii. the matter (that ex parte injunction) is now pending the hearing on an inter partes basis.

Take note that:

O.29 r.1(2BA) : When the court grants an ex parte injunction, the court must fix a date for the inter
partes hearing. This inter partes hearing date must be within 14 days from the date of
the grant of the ex parte injunction.

● How ad interim works? :

▪ When the court granted ex parte injunction, the court can only heard the Plaintiff and upon
hearing the Plaintiff only the court granted the injunction.
- So under O.29 r.1(2BA), the Court must fix for an inter partes hearing within 14 days. The purpose
of the inter partes hearing is for the court to hear both the Plaintiff and the Defendant’s
case.92
- In the inter partes hearing, the court will decide either one of these two things:
i. The court will decide whether or not it should dismiss the ex parte injunction that was
granted. (If the Defendant is able to convince the court that the ex parte injunction
should not have been granted earlier)
ii. The court will decide to grant an interlocutory injunction to last till the conclusion
of the trial. (If the court is convinced by the Plaintiff that the ex parte injunction was
rightly granted and now there should be a further interlocutory injunction that will last
until the trial ends, to maintain the status quo between the parties up to the end of the
trial.)

▪ Theoretically, it is very important to hold the inter partes hearing during the duration of the ex
parte injunction (21 days).
- This is why O.29 r.1(2BA) says the hearing date for inter partes hearing must be fixed within
14 days from the date of the ex parte injunction. This is to ensure that the inter partes hearing
will be held during the duration of the ex parte injunction i.e. within 21 days.

▪ However, sometimes the court may unable to hold the inter partes hearing within the 21 days of
the ex parte injunction. This means the inter partes hearing will be fixed after the 21 days period
but this also means that the ex parte injunction had lapsed.
- This may cause prejudice to the Plaintiff as the ex parte injunction has lapsed and the
Plaintiff’s rights may be unprotected. This is because, while the ex parte injunction is in

92
At this stage, the court has fixed the hearing for inter partes i.e. both parties have to come to court on this date and
on this date the court will now hear both the Plaintiff and the Defendant at the inter partes hearing
61 | Page
 place, the Plaintiff is protected by the injunction and the Defendant is stopped from doing
whatever damage he was doing.
- However, if the ex aprte injunction has lapsed (ie after 21 days), there is no longer injunction
on the Defendant and the Defendant can now continue whatever activity he was doing to hurt
the Plaintiff.
- In this situation, to protect the Plaintiff in such a situation, the Plaintiff may ask the
court for an ad interim injunction.
- If the court grants the ad interim injunction, it will take effect from the date the ex parte
injunction lapses up to the date of the inter partes hearing, so that the Plaintiff will be further
protected under the ad interim injunction although the interim injunction has lapsed.
- Note: The ad interim injunction is not an extension of the ex parte injunction but a fresh
order made by the court.

Example scenario of how ex parte and ad interim work:

Ex parte injunction (21 days)

Ad interim injunction

1/3/2020 14/3/2020
Ex parte injunction 21/3/2020 28/3/2020
inter partes hearing
granted to the Ex parte Date fixed for
supposed to be held within
Plaintiff injunction expires inter partes
14 days from the date of
hearing
the ex parte injunction but
NOT HELD.
Inter partes hearing date
not fixed within the 21
days of the ex parte

● The concept of ad interim injunction is accepted in Malaysia in this case:

Jakob Renner v Scott King Chairman of the Board of Directors of International School KL93

93
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. (First Malaysian case which granted ad interim
injunction)

62 | Page
 Facts : 1st Pf suffered from moderate spastic diplegia. After completing his elementary school at the
Melawati campus of the defendants’ school, he was expected to be transferred to the Ampang
campus for his middle school. However, he was denied entry to the Ampang campus due to
his physical disability. The plaintiffs appealed to the defendants' board but it was rejected.
The plaintiffs then filed an application for an interlocutory injunction restraining the
defendant from excluding, preventing, precluding or hindering the 1 st plaintiff from attending
and commencing middle school at the Ampang campus. Immediately after filing this
application, counsel for the plaintiffs applied for an ad interim injunction.

Held : The High Court granted the ad interim injunction based on the decision of the Indian Court
94
which explained there are two stages of a temporary injunction.
1) One is granted without finally disposing of the application for injunction to operate
immediately till the disposal of the said application. This is generally classed as ad
interim injunction.
2) The other one is granted while finally disposing of the main application to endure
generally till the disposal of the suit. This is generally called temporary injunction.
: The court is allowed to grant an ad interim injunction till the disposal of the
application for the temporary injunction, in line with the powers of the High Court under
S.25 COJA 1964 and the additional powers under para 6 of the Schedule to the same Act, it is
within the jurisdiction of the superior courts to grant an ad interim injunction pending the
disposal of an application for an interlocutory injunction.

RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel [2002] 3 CLJ 83
Facts :The appellant is the company that manages a hotel belonging to the respondent. On
6/12/2001, the appellant filed an ex parte summons in chambers to restrain the defendant
from interfering with or obstructing or hampering the appellant continued management and
operation of the hotel. The judge heard the application and granted the ex parte injunction.
The judge also fixed the inter partes hearing on 24/12/2001. The inter partes hearing was
adjourned to 26/12/2001. On 26/12/2001, the appellant’s counsel sought an adjournment. He
also prayed that in the interim period, the ex parte injunction that was granted on 6/12/2001
be extended.

Held : The ex parte injunction granted on 6/12/2001 expired on 27/12/2001. Since an ex parte
injunction cannot be extended beyond the 21 days, the order automatically lapses after 21
days.
: Then, a date of hearing inter partes must be fixed before the expiry of 21 days. The purpose
is to require the parties to appear before the judge before the ex parte injunction expires.

However, when the court is unable to hear the application inter partes before the expiry of 21
days and the ex parte injunction was expiring, the judge has the jurisdiction to consider
whether or not to grant an ad interim injunction pending the hearing inter partes of the
application.
The status quo is preserved after the expiry of the ex parte order until the inter partes hearing
of the application.

: The ad interim injunction is not an extension of the ex parte order which expires after 21
days. It is a fresh order made on the converted inter partes application now before the court.

94
in Jagjit Singh Khanna v Dr Rakhal Das Mullick AIR [1988] Calcutta 95
63 | Page
 : When the court finally hears the application inter partes, the court will then decide whether
or not to grant an injunction inter partes which will be a fresh order again.

5.2) Erinford Injunction

● It originates from the case Erinford Properties Ltd v Cheshire County Council95
● It is a limited type of injunction because it only operates during the pendency/ pending of an appeal
i.e. while parties are waiting for an appeal.
● It is granted to an applicant whose application for an injunction was dismissed and he has filed
an appeal in respect of the dismissal of the injunction application.
● The Erinford injunction takes effect from the date the application was dismissed until the appeal is
heard and disposed by the appeal court.
● The court which dismissed the injunction application can grant the Erinford.

Example scenario of how Erinford injunction work:

Erinford injunction

7/4/2020:
2/4/2020: 30/4/2020:
At the hearing, P’s
P applies to High Hearing of the appeal at
application for injunction
Court for an CA on dismissal of
dismissed by High Court.
injunction. Hearing injunction by HC
P appeals to Court of
date fixed on
Appeal against the
7/4/2020
dismissal of the
injunction.

Hearing of the appeal

fixed on 30/4/2020
P asks for an Erinford
injunction pending the

● As mentioned, Erinford injunction originates from the case of Erinford Properties Ltd :

Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448

Held : A judge which dismissed an interlocutor injunction can grant an Erinford injunction to
preserve the status quo pending the appeal.

95
[1974] 2 All ER 448
64 | Page
 : The principle of granting an Erinford injunction is :
i. that appeal, if successful, is not nugatory and
ii. the dispute is not a case which damages are a suitable alternative in lieu of the
Erinford injunction.

(this is my personal simplified interpretation of the judgment, for original judgement, refer to
the footnote96)

● An Erinford injunction will not be granted if the damages awarded would be an adequate remedy
for the temporary damage suffered by the applicant from the date of the dismissal of the
injunction to the date of the appeal being dicided.

Cocoa Processors v UMBC [1989] 1 CLJ 183

Facts :The plaintiff owed the 1st and 2nd defendants a substantial sum of money secured by a
debenture. Upon default of the plaintiff, the 3rd to 6th defendants were appointed receivers and
managers of the properties and assets of the plaintiff by the 1st and 2nd defendants as per their
powers under the debenture.

The plaintiff had obtained an ex parte injunction restraining the defendants from disposing,
selling and dealing with its assets pending trial of his action to claim for damages for
wrongful appointment of the receivers and managers. This ex parte injunction was
subsequently set aside. The plaintiffs appeal to the Supreme Court against the setting aside of
the injunction had yet to be heard. Pending the appeal, the plaintiff applied to the court for the
Erinford injunction. The defendants argued that the Erinford injunction should not be granted
if damages is a suitable alternative.

Held :Based on the facts and circumstances of the present case, the court found that the balance of
convenience lay in favour of the injunction pending appeal being refused. This is because
damages seemed to be a suitable and adequate remedy as the plaintiff would be adequately
compensated in damages for the temporary damage between now and the date when its
appeal is heard if the court’s decision is reversed by the Supreme Court.

Jawi Ak Landu v Sunny Inspiration Sdn Bhd [2007] 8 MLJ 38

Facts :The plaintiff applied for an order in the nature of Erinford injunction on the grounds that the
plaintiff’s application for interim injunction was dismissed and pending the appeal to the
Court of Appeal, this application is necessary to maintain the status quo.

Held : Where an applicant has failed in his interlocutory application for an interim injunction, he
may appeal against the said decision and at the same time apply for an Erinford injunction to
restrain the other party from dealing with the subject matter of the action pending the appeal.
: The principle governing this form of injunction is to preserve the status quo pending the
determination of an appeal so that the appeal will not be rendered nugatory.
: An Erinford injunction is not necessary when suitable statutory remedy is available.

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“A judge who feels no doubt in dismissing a claim to an interlocutor injunction may, perfectly consistently with this
decision, recognised that his decision might be reversed, and that the comparative effects of granting or refusing an
injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal.”

“The principle is to be found in the leading judgment of Cotton LJ in Wilson v Church… ‘when a party is appealing,
exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not
nugatory’… it was on that principle… that I granted counsel for the plaintiffs the limited injunction pending appeal that
he sought. This is not a case in which damages seem to me to be a suitable alternative.”

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 - The nature of Erinford injunction is one which the court always have powers to grant
under its inherent jurisdiction.
- However, this power is exercised by the courts on its own motion itself to protect the
justice of the case when the judge is not sure of his judgment or feels the
plaintiff’s argument may have some prospect of success.

Chapter 4 (Part 2): Mareva Injunction (MI)

Scope:
1. What is a Mareva Injunction (MI)?
2. The Nature, Origin and Development of MI
3. Jurisdiction to Grant a MI in Malaysia
4. Procedure to Apply and Obtain a MI
5. Other Issues
6. Grounds to Set Aside a MI (Dissolution or Discharge of a MI)

1) What is a Mareva Injunction (MI)?

What is a MI?
● It is also known as a “freezing” injunction/order (In Malaysia, we still call it as a MI, in UK under
the Civil Procedure Rules 1998, it is now known as a freezing order)
● It is a type of injunction which restrains a defendant from
- removing from the jurisdiction or
- disposing of or
- dealing with or
- concealing
his assets that will be necessary to meet the Plaintiff’s claim.

The Aim/Objective of a MI

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 ● It has a very specific purpose. The purpose of an MI is to freeze the D's assets so that the D is
unable to remove, dispose or conceal his assets.

Why do you need to freeze the D’s assets?

● Why do you need to freeze the D's assets? This is so that there will be assets against which the
Plaintiff can execute his judgement if he wins the case against the Defendant.

Example Scenario:
Let's say Paul is suing Dennis in the High Court. Paul is claiming RM 2,000,000.00. Paul has a very good
and strong case against Dennis. Dennis is aware that Paul has a strong case and that Dennis, the D, has a
weak case. Dennis knows that there is a very high chance that Paul is going to win this case against him.
So, Dennis has some assets and Dennis knows that if Paul wins the case and gets a judgment of RM
2,000,000.00 against him, Dennis will have to sell off some of his assets to pay the judgment sum to Paul.

Therefore, Dennis decides to sell off some of his assets e.g. Dennis has a car, so he decides to sell off the
car or transfer off the car to his wife/child's name. Say if Dennis has some money in his bank account,
Dennis decides to transfer his money to some foreign bank account. He starts doing all these things to
remove/dispose/conceal his assets.

This kind of activity is what a MI aims to prevent. Look at the definition of a MI again. It is a type of
injunction which restrains or prevents a D from removing, disposing or concealing those assets which
would be necessary to satisfy the P's claims. It is a freezing order to freeze the D's assets so that the D is
unable to deal with those assets.

2) The Nature, Origin and Development of MI

MI has its origin in English Law. It is a product of English case laws.
- MI was created in 1975. The 1st case which granted this type of injunction to freeze assets is the case of
Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093.
- After the Nippon case, in the same year, there was the 2 nd case of Mareva Compania Naviera SA v
International Bulkcarriers SA which followed the 1st case and granted the same type of freezing
injunction. MI is named after this 2nd case.
- After Mareva, the third case is Third Chandris Corporation v Unimarine S.A. [1979] 2 All E.R. 972.

Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093; [1975] 3 All ER 282 (CA)
Facts : Three ships were chartered to the Defendants (Karageorgis) but the Defendants defaulted on the
charterparty hire. Defendants alleged that they have transmitted the outstanding amount to the
Plaintiff’s New York account, but the money was never received. There were also failed attempts
to find and track down the Defendants.
: The Plaintiff was aware that the Defendants have funds with banks in London. Fearing that the
funds in those banks may be transmitted out of jurisdiction, they applied for an interim injunction
to restrain the Defendants from disposing of/removing any of their assets from the jurisdiction
(UK).

Held :The court noted that an injunction of this kind has never been done before. It has never been the
practice of the English courts to seize assets of a defendant in advance of judgment, or to restrain
the disposal of them. However, the court noted that the time has come from the courts to revise
its practice.
: There is a strong prima facie case that the hire is owing and unpaid. If an injunction is not
granted, these monies may be removed out of the jurisdiction and the shipowners will have the
greatest difficulty in recovering anything.

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 : The court derived power from s 45 of the Supreme Court of Judicature (Consolidation)
Act 192597 and granted the MI.
: The MI should be continued until after judgment of this proceeding. If the Defendants
wish to challenge this order, they can apply to discharge it if they have grounds for doing
so.

Mareva Compania Naviera SA v International Bulkcarriers SA; The Mareva [1980] 1 All ER 213
(CA)
Facts : (It’s similar to the facts of Nippon Yusen Kaisha)
The Plaintiff Shipowners (Mareva) sued the Defendants for unpaid hire and damages for
repudiation of a charterparty. Plaintiff applied for an injunction to restrain the disposal of the
Defendants’ funds in the bank in London.
Issue : Whether the court has jurisdiction to protect a creditor before he gets judgment.
Held : MI granted.
: If it appears that the debt is due and owing, and there is a danger that the debtor may
dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a
proper case to grant an interlocutory judgment so as to prevent him disposing of those
assets. It seems that this is a proper case for the exercise of this jurisdiction. There is money
in a bank in London which stands in the name of these charterers.
: The injunction shall be in force until the trial or judgment in this action. If the Defendants
have any grievance about it when they hear of it, they can apply to discharge it. But
meanwhile the shipowners should be protected.

Third Chandris Corporation v Unimarine S.A. [1979] 2 All E.R. 972 (CA)98
Fact : The facts are similar to the cases above where the charterers defaulted on the hire for the
charterparty.
Held : Lord Denning in delivering his judgment expressed that MI is now a well-
entrenched/established feature in English law.
: Guidelines for the application for MI:
i. The plaintiff should make full and frank disclosure of all matters in his knowledge
which are material for the judge to know;
ii. The Plaintiff should state the particulars of his claim against the defendant, the
ground of his claim, the amount thereof, and fairly stating the points made against it
by the defendant;
iii. The plaintiff should give some grounds for believing that the defendants have assets
in the jurisdiction. (In most cases the Plaintiff will not know the extent of the assets.
He will only have indications of them. The existence of a bank account in England is
enough, whether it is overdraft or not)
iv. The plaintiff should give some grounds for believing that there is a risk of the assets
being removed before the judgment or award is satisfied. (The mere fact that the
Defendant is abroad is not by itself sufficient)
v. The plaintiffs must give an undertaking in damages, in case they fail in their claim or
the injunction turns out to be unjustified. In a suitable case this should be supported
by a bond or security: and the injunction only granted on it being given, or undertaken
to be given.

3) Jurisdiction to Grant a MI in Malaysia

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S 45 of the Supreme Court of Judicature (Consolidation) Act 1925 provides that the High Court may grant a
mandamus or injunction or appoint a receiver by an interlocutory order in all cases in which it appears the courts to be
just and convenient to do so.
98
Note: Dr Sujata said that this is the third case that granted a Mareva Injunction but that isn’t really true. There are
other reported cases including House of Lords cases on Mareva Injunction in the time period between Nippon Yusen
and Third Chandris.
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● In Malaysia, the concept of MI was incorporated by this case through paragraph 6 of Schedule of the
Courts of Judicature Act. (though the Court did not grant it)

Zainal Abidin v Century Hotel Sdn Bhd [1982] 1 MLJ 260 (FC)
Facts :There was a hotel in a 9-storey building. The Defendant owns both the building and the hotel
business. The Plaintiff is a tenant of third-floor of the building where the Plaintiff runs a
recreation centre as one of the amenities provided in the hotel.
: As the Defendant’s hotel business was running at a loss, the Defendant decided to close the
hotel business and informed the Defendant of the formal closure of the hotel. The Plaintiff sued
the Defendant for wrongful repudiation of the rental agreement between the Plaintiff and the
Defendant.
: The Plaintiff believes that the Defendant intends to dispose of the said building, and therefore
applied for an injunction to restrain the Plaintiff.

Issue : Whether the Malaysian courts have jurisdiction to grant a MI

Held : A MI is an injunction granted ex parte against a defendant in a pending action to restrain him
from removing assets from and now even dissipating them within the jurisdiction and so
stultifying any judgment in favour of the plaintiff.

:Paragraph 6 of the Schedule of the Courts of Judicature Act 1964 is equivalent to the
English’s s 45 of the English Supreme Court of Judicature (Consolidation) Act 1925.

Para 6 : Additional Powers of High Court

“Power to provide for the interim preservation of property, the subject-matter of any cause
or matter by sale or by injunction or the appointment of a receiver or the registration of a
caveat or a lis pendens or in any other manner whatsoever.”

: However, in thin case, there is no real risk of dissipating assets. The danger envisaged is that
if the hotel building is sold, the proceeds thereof will simply disappear in discharging its
liabilities and any surplus will go to the Defendant’s holding company. If an injunction were to
be granted in this case it would be entirely ineffective to benefit the Plaintiff, because the money
would be held for the benefit of creditors generally.
: The disappearance which the Plaintiff fears in this case of the proceeds of sale does not come
within the concept of disposing of assets with the intention or with the effect of defeating a claim.
: Thus, the application for MI is rejected.

● A MI, like a interlocutory injunction, is vested in the HC:

S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62
Held : A Mareva injunction99 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.
: The sole purpose of a Mareva injunction is to prevent a plaintiff being cheated out of the
proceeds of an action (if successful), by a defendant transferring his assets abroad or
dissipating his assets within the jurisdiction.
: The discretion whether or not to grant an interlocutory injunction is vested in the High Court
judge and not the appellate court whose function initially is one of review only, and it will not
overrule the decision of the judge at first instance unless, broadly speaking, he has made an error
of law or misconceived the facts, and except in those circumstances it must defer to the judge's
exercise of his discretion and must not interfere with it merely upon the ground that the members
of the appellate court would have exercised the discretion differently.

99
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
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4) Procedure to Apply and Obtain a MI in Malaysia
The heading will lay out the procedure and necessary steps to be taken for applying for MI:

i. The P must act quickly and quietly (Speed and secrecy are of the essence)
● Speed = The P have to move very quickly
● Secrecy = The P have to move very quietly
● Speed and secrecy are very important because once a D finds out that the P might apply an MI
against him, the D will quickly take steps to dispose/conceal/transfer his assets out of the
country. Nobody wants a MI to be imposed against him. A MI is terribly inconvenient. It will
freeze all your assets.

ii. P has to file an ex parte Notice of Application supported by an Affidavit in Support

● Since the application is made ex parte,100 the application must be made y filing an ex parte
Notice of Application supported by an Affidavit in Support.
● An Affidavit in Support must comply with O 29 r 1(2A).
- 29 r 1(2A) contains 7 items which must be stated and elaborated on in the affidavit in
support, which are:
1. the facts giving rise to the claim;
2. the facts giving rise to the application for interim injunction;
3. the facts relied on to justify the application ex parte, including details of any notice given
to the other party or, if notice has not been given, the reason for not giving notice;
4. any answer by the other party (or which he is likely to assert) to the claim or application;
5. any facts which may lead the Court not to grant the application ex parte or at all;
6. any similar application made to another Judge, and the order made on that application;
and
7. the precise relief sought.
- Non-compliance with O 29 r 1(2A) will result in the MI not granted. It is very important the
Affidavit in support strictly comply with O 29 r 1(2A).
● For an application to obtain a MI, there must be very strict compliance with the rules. The courts
are extremely vigilant about the rules before a MI is granted. A MI will only be granted after
the court is satisfied that all procedural requirements are complied with. If any due
procedural requirements has not been complied with by the P, very likely the court will not grant
a MI.
- There is such a strict requirement to comply with the rules before the court will grant a MI
because a MI is considered a very draconian order that can be made by the court.
- If a P gets a MI, effectively the P is getting an order which allows the D's assets to be
frozen/seized. D will be unable to use/deal with any of these assets. The P is getting this order
even before he has won the case. No judgment has been given to the P but the P has gotten an
injunction to freeze the D's assets. That is why the court will not simply grant it. The court
will be very vigilant to ensure that procedural requirements are strictly complied with before
granting an MI.
- The MI has been described as one of the laws’ nuclear weapons. This tells you how powerful
this injunction is. The other nuclear weapon that the law possesses is the Anton Piller
Injunction.

Motor Sports etc Ltd v Delcont (M) Sdn Bhd [1996] 2 MLJ 605
Facts : Dispute arose between the Plaintiff who is a overseas producer of a Motor Trucks Show
who entered into a contract with the Defendant who is a Malaysian event management
company to organise a Motor Trucks show. Plaintiff applied for a MI to prevent the
Defendant from dealing with the vehicles that were currently in the possession of the
Defendant and the ticket monies that the Defendant has received for the show.
100
this means that only the applicant will be heard by the court.
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 Held :The provisions of O 29 r 2A were introduced by amendment in order to ensure that ex parte
injunctions of any sort were not granted willy-nilly, but only in cases where they were truly
called for.
: In order to ensure that the policy behind the introduction of r 2A is not defeated, high courts
must demand strict compliance with its terms. More so, when the relief applied for is in the
nature of a Mareva or an Anton Piller type of injunction because of the incalculable harm and
damage that may be caused to a defendant by the grant of either of these orders.
: In this case, the Plaintiff failed to meet the requirements of r2A. So, the MI should be
dismissed.
: In a case such as the present, where the amount of the claim has been quantified, it is
necessary for the order of court to sufficiently identify the upper limit of the sum that is
sought to be protected by the injunction. If it does not, then the order is liable to be
condemned as being too wide and therefore oppressive.

iii. Legal Requirements that the P must prove to the satisfaction of the court
● There are legal requirements that must be proven at the ex parte hearing before the court grants a
MI.

Requirement 1:
The Plaintiff must show that he has a "good arguable case"
o The P have to show that he has a good case, a strong case regardless of whether the D has a
valid defence or not.
o If the court feels that the P does not have a very good case against the D, then most likely the
court will not grant an MI. in most cases, the court must be very satisfied that the P will have
a good chance of winning the case against the D.

Pacific Centre Sdn Bhd v United Engineers (M) Bhd [1984] 2 CLJ (Rep) 319, HC
Held : A good arguable case for the purpose of a MI is one which is more than barely
capable of serious argument, but not necessarily one which the judge considers
would have a better than 50% chance of success.

Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

(Pertamina) and Government of Indonesia (as interveners) [1977] 3 All ER 324
Held : An MI order restraining removal of assets can be made whenever the Plaintiff can
show that he has a ‘good arguable case’ regardless of whether the Defendant
managed to prove that he has a valid defence under a SJ application.
Requirement 2 – 6:
● Requirements 2 – 6 are laid down by Lord Denning in Third Chandris Corporation v
Unimarine S.A101

Requirement 2
● The P must make a full and frank disclosure of all matters within the P’s knowledge
which are material for the judge to know.
● This will be stated in the affidavit. The P must make sure that he informs the courts about
everything that court needs to know about the case.

Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 M.L.J. 153.

Facts : There was a misrepresentation of material facts. The Defendant’s share capital
was $300,000, but the applicant wrote in that it was only $60,000. The applicant
depressed the paid-up capital of the Defendant in order to show that not only
that the Defendant had insufficient funds or assets to meet the Plaintiff’s claim
101
However, during lecture Dr Sujata only mention until requirement 5. She might have missed it out.
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 but also that in the circumstances there was a real risk that the said paid-up
capital might be dissipated or removed before judgment.

Held : Every material representation must not be misleading, and there must not be
any suppression of material facts. Failure to do so at the crucial time of making
the ex parte application would invariably be fatal.

Requirement 3
● The P must clearly set out the grounds of his claim with particularity. This include:
- the points that the D may make against the P and
- what are the possible points and defences that the D may raise against the P.
● This is to allow the court to assess the strength of the P's case.

Requirement 4
● The P must show that the D has assets within the jurisdiction.
- The P must show that the D has assets within the jurisdiction.
- Normally, the P will identify and give a list of all the assets which the D has.

Requirement 5
● Most important & difficult requirement: The P must show that there is a real risk that
the D will remove/conceal/dispose his assets which will frustrate the P’s attempt to
recover the fruit of judgment.
- This is not something that is easy to do. There must be some special circumstances
that will lead the P to convince the court of this.

Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd [1984] 2 M.L.J. 143
Held : In many cases, there will be a practical difficulty of proving the requisite intent.
Thus, it would be sufficient for the plaintiff to merely show a risk of disposal of
assets which has the effect of frustrating the plaintiff in his attempt to recover
the fruits of a judgment he is likely to obtain against the defendant.
: it will be open to the defendants or any creditor of the defendants (third parties)
to apply for a variation of the MI

a. Disposal of assets must frustrating the P’s attempt to recover the fruit of judgment.
The disposal of assets must have the effect of frustrating the P’s attempt to recover
the fruit of judgment. You cannot simply freeze the D’s asset just for the fake of
feeling secured. Cases have held certain examples where disposal of asset would not
“frustrating the P’s attempt to recover the fruit of judgment.”

Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd

Held : The mere disposal of funds (in this case proposed to be raised by the sale of
the Sungei Besi property) incidental to the defendants' course of business,
for example, by the repayment of debts, does not come within the scope of
dissipation of assets with the intention or with the effect of defeating the
plaintiffs' claim.

Regent Decorators (M) Sdn Bhd v Michael Chee [1984] 2 M.L.J. 78

Held : Mere complaints of passing off or attempted passing off by the defendants of
their business as being that of the plaintiff does not show that there was a

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 danger that the available assets of the defendants would be dissipated to
prejudice the plaintiff’s claim.

Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153

Held : Mere refusal to pay a disputed debt and issuing of a dishonoured
personal cheque by a director of the second defendant, who was not a party to
the appeal, fell far too short of the necessary evidence to establish a real risk of
dissipation of the assets of the appellant before judgment.

Biasamas Sdn Bhd v Kan Yan Heng [1998] 4 MLJ 1

Held : the Defendants company in this case had sufficient assets within the
jurisdiction which were not disputed by the Plaintiff. Thus, there is no real
risk of dissipation of assets.

b. Situations where the disposal of assets must have the effect of frustrating the P’s attempt
to recover the fruit of judgment.

● When you conduct tells that you may transfer the asset out of the jurisdiction:
Bank Bumiputra v Lorrain Osman [1985] 2 M.L.J. 236
Facts : This case concerns an action against Lorrain (director of bank) for breach of
fiduciary duty and receipt of secret profits. The Defendant, Lorrain is not a person
who keeps all his assets in Malaysia. From his previous conduct, it can be inferred
that he can transfer his assets from this country to another country. There is
evidence that Lorrain was planning to sell or dispose of his shares and securities
through a firm of stock-brokers in Kuala Lumpur. Plaintiff also had great
difficulty in trying to locate him to serve the cause papers. Even when the writ and
MI order was served upon him, he did not bother to enter appearance.
Held : There is sufficient evidence before the court to conclude that there is a risk that
Lorrain's assets would be disposed of thus frustrating or nullifying any judgment
that the plaintiffs may obtain against him.

● When you are a foreigner and you don’t have much asset
S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62
Fact : This case involved a D who was a Thai Company, a foreign company who
had an office in Malaysia. All of the D's shareholders were foreigners and
they did not reside in Malaysia. The D had only one asset in Malaysia and it
was money being held by a 3rd party. The D also had an office in Kota
Bharu but that office was closed.
Issue : Is there a real risk that the D will remove/conceal/dispose his assets before
the court gives a judgment? Is there a real risk that the D will remove this one
asset from the jurisdiction?
Held : There was a real risk here. The moment the P sues and serves a writ against
the D, the D will most probably remove and take this asset here out of the
jurisdiction. Therefore a MI is granted.

Ace King Pte v Circus Americano Ltd [1985] 2 M.L.J. 75

Fact : (see below for facts of the case)
Held :There is a real risk of dissipation of assets. The Defendant’s only assets within
the jurisdiction is the money that they have received and will continue to receive
from the staging of the Circus in Malaysia, their caravans, goods, equipment and
other things owned by the circus.

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 : The Defendants have no other assets in Malaysia and the Defendants are
also all foreigners. Once the Defendants leave and the assets are moved out
of Malaysia, the Plaintiff will not be able to realise those assets.

● If the D is giving inconsistent statement, the Court may conclude that the D is being
dishonest and rule that there is a risk the assets being disposed.

Ang Chee Huat v Engelbach T. Joseph [1995] 2 MLJ 83

Fact : A fraud case where ACH purported to assist the Joseph who is a foreigner to set
up a sealant plant in JB. Amongst the things that the ACH did:
i. ACH induced the Joseph to give ACH RM500,000.00;
ii. ACH represented that he had bought a piece of land in JB and informed
the Joseph that it had to be registered solely in ACH’s name because
Joseph is a foreigner and executed a declaration of trust with the Joseph
stating that the ACH is acting as a trustee for the Joseph for the land.
As a matter of fact, the land had been registered in the name of one Sepi Sdn Bhd
of which ACH was a shareholder and a director.
Held : There were inconsistencies in terms of the details of the land between the
declarations of trust and the land title. ACH initially denies that he executed
the declaration of trust but subsequently admits signing the document. The court
held that the conduct of ACH was lacking in probity and honesty. So.the court
concluded that there is a real risk that the assets will be dissipated.

c. Real Risk
● Under this requirement, the P must prove/establish is that there is a real risk that
the D will remove/conceal/dispose of his assets before the court gives a judgment.
● Only if the P can demonstrate to the court that there is a REAL RISK, only then the
court will grant a MI.
● If there is no real risk that the D will remove/conceal his assets, the court will not
grant an MI. This particular element is difficult to prove.

Case: refer S & F International Limited v Trans-Con Engineering Sdn Bhd

[1985] 1 MLJ 62 (explained above)

● In each case, the facts are different. So, tt really depends on the circumstances
surrounding the case whether there's a real risk of dissipation of assets.

Requirement 6
The plaintiffs must give an undertaking in damages, in case they fail in their claim or the
injunction turns out to be unjustified. In a suitable case this should be supported by a bond or
security: and the injunction only granted on it being given, or undertaken to be given.

Dr Sujata: The court has to be convinced of the presence of all these 6 requirements, then the court will
grant an MI.

5. Other Issues

5.1) Orders for living expenses/Orders for provision

● When a court makes/imposes a MI on a D, the MI which is imposed on a D must not financially
cripple the D. It is not the aim of a MI to financially cripple a D.

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 ● That is why when a court grants a MI, the court will also normally make allowances/provisions to
allow the D to have some money for the D's living expenses and also to allow the D to make
payment for his ordinary debts e.g. utility debts etc.

5.2) Plaintiff obtains no priority

● A MI does not override a prior claim. It means that a P does not get priority over a person who has a
prior interest in the asset frozen under a MI.

Iraqi Ministry v Arcepey [1980] 1 All ER 480

Fact : The P in this case obtained a MI over certain monies under an insurance policy. Prior to the
MI, the Defendant had earlier assigned the monies under the same policy to another person,
(let's call that person "X"). Only after the insurance monies were assigned to X, the P had
obtained a MI. Who has priority over the claim to the insurance monies? Does P have priority
or does X have priority?
Held : In this case, because the insurance monies were assigned to X before the obtaining of the
MI, this means that X has a prior interest in the asset frozen in the MI. Therefore X has
priority over the insurance monies.

5.3) Plaintiff doesn’t own the frozen asset until he got the judgement.
The plaintiff has no right over the frozen asset until he got the judgement

Cretanor Maritime Co. Ltd. v Irish Marine Management Ltd (“The Cretan Harmony”)102
Held : A MI cannot be regarded as a pretrial attachment. No rights in the nature of a lien arise
when a MI is made. Under a MI, the P has no rights against the assets. He may later
acquire such rights if he obtains judgment and can thereafter successfully levy
execution upon them, but until that event his only rights are against the D personally.

5.4) Protection of rights of third parties

● When a court imposes a MI on a D, in a lot of cases, the MI will not only affect the D, the MI may
affect 3rd parties who are connected to the D. In fact, MI is granted, it may not only interfere with
the D's rights, a MI may also interfere with 3rd party rights.
● Examples of 3rd parties who may be affected by a MI which is imposed against the D:
i. The D’s family:
The D's wife and children. If the D's bank account is frozen, it will result in the D's family not
having available cash etc.
ii. The employees of the D:
If the D is an employer, the D may not be able to pay the salaries of the employees. The
employees will certainly be third parties who will be affected by the MI
iii. The D's creditors i.e. people who have lent money to the D:
If the D's bank accounts are frozen, if D has no access to his assets, the D may not be able to
pay his creditors.
● The law has recognised that the MI might sometimes unreasonably interfere with the rights of 3rd
parties. Having recognised this, the courts have established a rule that if a MI unreasonably
interferes with 3rd party rights, the court has a discretion to either set aside or vary the injunction to
remove the hardship that it causes to 3rd parties.

Galaxia Maritime v Mineralimporriexport [1982] 1 All E.R. 796

Fact : In this case, A had a claim against B. B owned a large amount of coal and this coal was
onboard a ship. The ship which was carrying the coal belonged to C, a 3rd party. A obtained
a MI against B to freeze the coal, to stop the coal from being taken out of the jurisdiction.

102
[1978] 1 Lloyd’s Rep. 425
75 | Page
 Because the MI froze the coal, this prevented the ship from sailing because the coal was there
and the coal was frozen under the MI. Since the ship was compelled to remain in one place, it
could not move, this caused interference/hardship to C, who was the owner of the ship.

Held : The court will not allow a MI to unreasonably cause hardship to 3rd parties. In this case, the
MI was set aside so that the ship could move out of the port.

Bank Bumiputra Bhd v Lorrain Osman

Fact : The MI freezing the Defendant’s assets including restraining 81 companies from removing
their assets or dissipating them. Upon lifting the corporate veil of 75 of the companies, the
court found that the assets of the 75 companies are assets of the Defendant and therefore the
MI should apply to the D’s shares in these 75 companies as well as to all the monies kept in
the respective bank accounts of these 75 companies. However, there are 6 other companies
where the D owns only a certain percentage of shares.
Held : It is clear that the D does not fully own all these 6 companies and neither he is in full
control of them. In the circumstances, it is not proper for the court to lift the corporate veil of
these companies. The MI can, however, be enforced in respect of these companies insofar as
the Defendant’s shares are concerned. The court has the jurisdiction to extend the MI to these
companies as third parties. The situation here is similar to that of a bank where a defendant
has kept his money assets.

Ace King v Circus Americano Ltd [1985] 2 MLJ 75

Facts : It involved a circus. Money belonging to the circus was frozen under a MI. The circus
basically was sued and the P was able to obtain a MI to freeze monies which were belonging
to the circus. Because the money belonging to the circus was frozen, the circus' artists cannot
be paid. Also because the MI, the animal which was on hire from England, they cannot be
sent back to UK because there were no money to send the animals back
Held : The court did not set aside the MI but varied the MI to allow sufficient funds to be released
to :
i. pay the circus' artists;
ii. pay the expenses to transport the animals back to the UK.

5.5) Foreign Assets

● Usually in most cases which involve MI, the P is asking the court to freeze the D's assets which are
within the jurisdiction i.e. within Malaysia such as Malaysia's bank account etc.
● Question: Can a court freeze a D's assets which are outside the court's jurisdiction? e.g. can you get a
Malaysian HC to freeze D's assets which are in HK?
● This issue is subject to debate in the English courts. Most English cases seem to be saying that yes, a
MI can be granted to freeze assets outside of the jurisdiction. It is up to the D to make sure that he
complies with the MI.
● If the D does not comply with the MI, the D will be guilty of contempt of court. But there are some
cases which say that no, and only in really rare cases that the court should allow such MI.

Derby v Weldon (No. 2) [1989] 1 All ER 1002

Held : The court had jurisdiction in an appropriate case to grant a pre-judgment Mareva injunction
over a defendant's foreign assets, notwithstanding that he had no assets within the
jurisdiction, if such an order was necessary to prevent the defendant from taking action to
frustrate subsequent orders of the court.
: However, where there were sufficient assets within the jurisdiction, the injunction
should be confined to those assets.
: Furthermore, when granting a Mareva injunction against a foreign defendant who had
no assets within the jurisdiction the court should protect the position of third parties
outside the jurisdiction who were indirectly affected by the order by including a proviso

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 that, in so far as the order purported to have extra-territorial effect, no person, whether
natural or juridical, should be affected by it or concerned with its terms until it was
declared enforceable or recognised or enforced by an appropriate foreign court.

Republic of Haiti v Duvalier [1989] 1 All ER 456

Held : The court had jurisdiction to grant a MI pending trial over assets worldwide even
where the relief was sought in aid of a foreign monetary claim and not a proprietary
claim.
: However, such an injunction ought to be subject to a proviso protecting third parties
except to the extent that the order was enforced by the courts of states in which the
defendant's assets were situated, but such a protection proviso should only apply to
assets and acts done outside England and Wales. The proviso should not apply to
individuals who are resident in England and Wales.

Rossell NV v Oriental Commercial & Shipping Ltd [1990] 3 All E.R. 545 (CA) (unusual measure;
should rarely be granted)
Held : Only in very exceptional circumstances will the court grant a worldwide MI in
support of a foreign judgment or arbitration award which the court is being asked to
enforce. Normally, any MI granted in such cases will be limited to assets within the
jurisdiction.

Note: Worldwide MI was not granted in this case. Court held that there were no sufficiently
exceptional features.

● In any case, in Malaysia, we actually have a Malaysian HC decision called:

Metrowangsa Assets Management Sdn Bhd v Ahmad B Hj Hassan [2005] 1 MLJ 654
Held : HC granted a MI to freeze bank accounts in New York and Chicago. Unfortunately, the
judgment doesn't really discuss the issue of whether the court really has the power to do this
or not.
: Principles laid down in Metrowangsa case in regards to MI:
- MI restrains disposal of assets regardless of whether the P has proprietary claim to or
not. MI may even be granted where P does not even claim any interest in the assets and
merely ‘seeks an inhibition of dealings with them simply in order to keep them
available for a possible future execution to satisfy an unconnected claim”
- MI can be used to restrain disposal of assets within or outside the jurisdiction.
▪ The power to grant MI is the court’s discretionary power originally exercised over a
particular defendant who was out of jurisdiction has been extended and made
available to a Defendant who is within jurisdiction.
▪ Power to grant MI may even be exercised even if a particular D is a
foreigner/foreign-based entity/whether or not he is domiciled/resident/present within
the jurisdiction.
▪ A ‘worldwide’ injunction may even be granted where the assets to be frozen are
wholly abroad/some within jurisdiction, some abroad.
- MI may be granted where it appears to the court that it is ‘just and convenient’ to
do so and it may even be granted at any time. MI may be granted after judgment
with the sole aim of aiding execution as well as before judgment.
▪ However, MI will be refused if:
i. there is no evidence that a particular defendant possesses any removable assets
within a particular jurisdiction
ii. the value of assets is nominal, or
iii. ownership is in question
- MI operates in rem. Takes effect from the moment it is pronounced on every asset of a
particular D in relation to which it is granted. Anyone who has notice or knowledge of
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 MI is obliged to do whatever he reasonably can to preserve assets covered by its terms.
If he assists in disposing of those assets/any part of them, guilty of contempt of court for
interfering with the course of justice.
- Jurisdiction to grant MI extends not only to debt/liquidation demand, but even extends
to commercial actions such as actions for breach of contract/tort. May also extend to a
ship, and if the need arises, to several kinds of security taken cumulatively provided that
the size of claim justifies it

6) Grounds to Set Aside a MI (Dissolution or Discharge of a MI)

Once a MI has been granted by the court, the D will want to set aside the MI. A MI is terribly inconvenient
to the D. So, what are the grounds that a D can rely on to set aside the MI? There are 6 possible grounds:

i. Non-disclosure or suppression of material facts by the P

- One of the requirements that the P have to show is that P must make a full and frank disclosure of
all material facts that the Judge should know. When a P applies for a MI, he is under a duty to
disclose all facts including facts which are adverse to the P.
- If it can be shown that the P did not disclose something and that fact is a material fact, this would
amount to a non-disclosure.
- If the D can show that the P suppress/did not disclose some material facts, this can be a ground to
set aside MI.

ii. Where the D can show that the case is unsuitable for Mareva relief
This normally means that the D can convince the court that there is no real risk that he will
remove/conceal/dispose his assets.

iii. The D provides security to lift the MI

- Sometimes after MI is granted, the D will provide security i.e pay an amount of money into the
court to lift the MI. This amount of money can be a part/a whole of the judgment sum.
- This is where the D is providing security to lift the MI. There is no more risk of
concealing/disposing an asset.

iv. Delay to press on with the action

As you know, an injunction is a remedy in equity. The equitable maxim applies here “delay defeats
equity”. If after obtaining a MI, the P delays in taking further steps in the action, this may be a
ground to set aside the MI.

v. Where there is unreasonable interference with the rights of 3rd parties

If it can be shown that the MI unreasonably interferes with the rights of 3rd parties, then the MI can
be set aside as in the Galaxia Maritime case above.

vi. Where the P is guilty of unfair conduct

If the D can show that the P have been guilty of some unfair conduct, this will be a ground to set
aside the MI. This is also because of equitable maxim “he who comes to equity must come with
clean hands”.
Chapter 5: Trials

1) INTRODUCTION

1.1) Mode of Trial

● Mode of trial refers to the methods by which a trial may be conducted by the court
● Three modes by which a trial can be conducted in court, provided in Order 33 rule 1

i. Trial by judge alone

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 ● This is the most common mode for trials in Malaysian courts.
● A single judge presides over a trial

ii. Trial by judge with assessors (Order 33 rule 4) - read whole order, too long to be included here
● An assessor is a person with skill and expertise in a specialised area or field.
● Sometimes, an issue at a trial may involve a highly specialised or technical area and the judge
may not have knowledge on this area
● A person with skills, expertise and experience in this area may be able to assist the judge in
dealing with the matter. This person is known as the assessor

Order 33 rule 4: Trial with assistance of assessors

(2) The assessor shall assist the Court in dealing with a matter in which the assessor has skill
and experience.

iii. Trial by Registrar (Order 36)

● Order 36 rule 1:
Upon application by any party or by the Court’s own motion, the Court may, having regard to
the nature of the case (on the grounds of expedition, economy, convenience etc), order the
case to be tried by a Registrar.

1.2) Preliminary Points

Order 33 rule 5:
A preliminary point is a point which "substantially disposes of the cause or matter" or a point which
"renders the trial of the case unnecessary"

● In simpler terms, a preliminary point is a point which, if raised by a party, the Court may conclude the
whole the suit.
● Any party can raise a preliminary point before the trial, at the trial or after the trial (Order 33 rule 2)
● Examples of preliminary points
o Limitation
o Illegality
 
2) ABSENCE OF PARTIES
● When a trial commences, the parties are supposed to be present in court
● However, there are situations where the parties may not present during the trail. The consequences will
be explained below:

2.1) Both parties are absent

● The court may dismiss the Plaintiff's action (strike off the Plaintiff's suit) under O. 35, r. 1(1).103
▪ When this happens, the Plaintiff may apply to re-instate the action under Order 35 rule 2(1)104
▪ The application must be made within 14 days from the date of dismissal (Order 35 rule 2(2))
▪ In considering the application for the re-instatement, the court will have regard to the matters
stated in Order 35 rule 2(3), which includes:
(a) The interest of justice

103
O. 35, r. 1: Failure to appear by both parties or one of them
(1) If, when the trial of an action is called on, neither party appears, the Judge may dismiss the action or make any
other order as he thinks fit.
104
Under Order 35 rule 2(1), if the judge makes an order in the absence of the Plaintiff, that order made may be set
aside upon application by the Plaintiff. This action itself is the reinstatement, because by applying to set aside that
judgment made by that judge without the Plaintiff being there, the Plaintiff is saying "not fair you made that order
without me, so I want to apply to have that order set aside and continue with my case as usual". So in effect the
Plaintiff is reinstating his case sebab he wants the judge to retract the order made without him being there.

79 | Page
 (b) Whether the absence of the applicant or counsel was deliberate, or due to an accident or
mistake.
(c) The prospects of success of the applicant at trial
(d) Whether there is any delay in making the application
(e) Whether the conduct of the applicant has caused prejudice to the other party which
cannot be compensated by an order of costs
● If the application for reinstatement is unsuccessful, the Plaintiff may appeal to a higher court.
● If the appeal to the higher court is unsuccessful, the Plaintiff can file a fresh action provided the
limitation period has not set in.

2.2) When either defendant or plaintiff is absent

O35, r1(2) : When the trial is called on and either party does not appear, the Judge may
- proceed with the trial or any counterclaim in the absence of such party, or
- without trial, give judgment or dismiss the action, or make any other order as
he thinks fit.

O35, r2: Judgment given in absence of party may be set aside

(1) When one party does not appear at the trial and a judgment is given, the other party may apply to set
aside the judgment.
(2) Such application must be made within 14 days after the date of the judgment, though, the court may
extend such period.
(3) In considering such application, the Court will have to consider:
(a) The interest of justice
(b) Whether the absence of the applicant or counsel was deliberate, or due to an accident or mistake.
(c) The prospects of success of the applicant at trial
(d) Whether there is any delay in making the application
(e) Whether the conduct of the applicant has caused prejudice to the other party which cannot be
compensated by an order of costs

● When either party is absent, the governing sections are the same, it is just that the application is
different:

a) When Defendant is absent

● If the Defendant is absent at the trial and the Plaintiff is present, the court may give judgment to
the Plaintiff and dismiss the Defendant's counterclaim (if any) under O. 35, r. 1(2).105
● The Defendant can apply to set aside the judgment and reinstate the counterclaim (if any), under
Order 35 rule 2(1).
▪ The application must be made within 14 days from the date of dismissal (Order 35 rule 2(2))
▪ In considering the application for the re-instatement, the court will have to consider the
matters stated in Order 35 rule 2(3)
● If the application to set aside/ reinstate the counterclaim is unsuccessful, the Defendant may
appeal to a higher court.

Hup San Timber Trading v Tan La Lan [1979] 1 MLJ 238 FC

Facts : There was an agreement between the Respondent (Plaintiff) and the Appellant
(Defendant) where the defendant agreed to employ the plaintiff as carriers to carry
goods for the defendant’s logging business. The Plaintiff was suing for damages for
such breach.

105
O. 35, r. 1: Failure to appear by both parties or one of them
(2) If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the
action or any counterclaim in the absence of that party, or without trial give judgment or dismiss the action, or make
any other order as he thinks fit.
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 When the action came up, the Plaintiff, its counsel, and the Defendant's counsel were
present. However, the Defendant (Managing Director of the Company) was absent,
but produced a medical certificate. The trial judge allowed the Plaintiff to adduce
evidence and gave judgment in favor of the plaintiff. The Defendant appealed

Held : (Allowing the appeal) If the trial judge was in doubt as to the real reason behind the
inability of the Defendant to attend court, he should have allowed an adjournment to
enable both parties to be given an opportunity to be heard instead of proceeding with
the suit. Any delay occasioned by what appears to be an inadequate reason for
absence can be compensated by costs.

b) When Plaintiff is absent

● O. 35, r. 1(2) :
- If the Plaintiff is absent and the Defendant is present, the court may dismiss the Plaintiff's
action.
- If the Defendant has a counterclaim, the court may enter judgment against the Plaintiff in
respect of the counterclaim.

● Order 35 rule 2
(1) :
- The Plaintiff can apply to re-instate the action.
- If the judgment on the counterclaim has been entered against the Plaintiff, the Plaintiff
may apply to set aside the counterclaim under

▪ Such an application must be made within 14 days from the date of dismissal (Order 35 rule
2(2))
▪ In considering the application for the re-instatement, the court will have to consider the
matters stated in Order 35 rule 2(3)
● If the application for reinstatement is unsuccessful, the Plaintiff may appeal to a higher court
▪ If the appeal to the higher court is unsuccessful, the Plaintiff can file a fresh action provided
that the limitation period has not set in.
 
● In practice, the party’s and their counsels’ attendance will affect the outcome of the claim. The
possible scenario will be explained in detailed below:

a) When the defendant had NOT filed a counterclaim

Plaintiff Plaintiff's Defendant Defendant's Result of Plaintiff's claim
counsel counsel
Absent Absent Absent Absent Dismissed

Absent Present Present Present Court may grant postponement if

there is a valid reason for Plaintiff's
absence.
 
If there is no valid reason, court may
dismiss Plaintiff's claim.
Present Absent Present Present Court may allow postponement if
there is a valid reason for the

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 Plaintiff's counsel's absence.
 
If there is no valid reason, the court
will direct the Plaintiff to start the
case.

- If the Plaintiff cannot start the

case, the court may dismiss the
Plaintiff's claim
- If the Plaintiff can start the
case, the court will decide the
matter on the facts and
evidence surrounding the case
(make a decision based on its
merits).
Present Present Absent Absent Court will proceed with or without
the trial and give judgment or
dismiss the case for the Plaintiff
Present Present Absent Present Court may grant postponement if
there are valid reasons for
Defendant's absence.
 
If no valid reasons, court may
proceed to give judgment without
trial.
 
If the court proceeds to hear the
Plaintiff's case, the Defendant's
counsel will be allowed to cross-
examine the Plaintiff/
 
- If the Plaintiff can prove its
case, judgment may be entered
for the Plaintiff.
- If the Plaintiff cannot prove its
case, the court may dismiss the
Plaintiff's claim.
 
b) Where the defendant HAS a counterclaim
Plaintiff Plaintiff's Defendant Defendant's Results of the Results of the
counsel counsel Plaintiff's claim Defendant's
counterclaim
Absent Absent Absent Absent Dismissed Dismissed
Absent Present Present Present Dismissed Court will hear the
counterclaim.
 
Plaintiff's counsel

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 allowed to cross-
examine the
Defendant
 
Count will decide on
the counterclaim
(whether it is proven
or otherwise)
Present Absent Present Present Court will ask Court will ask
Plaintiff to Defendant to proceed
proceed to prove to prove its
its case by counterclaim by
adducing adducing evidence.
evidence.  
  Plaintiff allowed to
Defendant's cross-examine
counsel may Defendant
cross-examine  
Plaintiff Having heard both the
Plaintiff's claim and
the Defendant's
counterclaim, the
court will decide on
both matters.
Present Present Absent Absent Court may Dismissed
proceed with or
without trial and
give judgment

Present Present Absent Present Court may Dismissed

proceed with or
without trial and
give judgment
 
Defendant's
counsel allowed
to cross-examine
Plaintiff.
 
Court will decide
on the Plaintiff's
claim (dismiss or
not to dismiss)
 
● Dismissal for non-appearance is not res judicata106
New India Assurance v Karam Singh [1972] 2 MLJ 26 FC
Facts : The plaintiffs filed an action for the recovery from the defendant a sum of money. The
action was dismissed as the plaintiff and its solicitor was absent in court on the day of

106
a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same
parties.
83 | Page
 hearing. The president then dismissed the plaintiff's application to set aside the order of
dismission of the action on the ground that no good reason had been shown for the plaintiff's
absence on the day of the hearing.

While the learned president did not dismiss the action brought by the plaintiff on the view
that the principles of res judicata does or does not apply, he was of the view that filing a fresh
suit in the same court of the same jurisdiction, subsequent to the order of dismissal is not a
correct procedure or remedy for the plaintiffs. In the operative part of the formal order, the
reason stated for the dismissal of the action is that the court was functus officio.

Held : Functus officio means a person who has discharged his duty, or whose office of authority is
at an end. Thus, once a president has tried a civil action and made an order on the final
determination of the dispute between the parties, he is functus officio and cannot rescind his
final order and re-try the case, or try a subsequent action between the same parties on the
same subject matter.
: In the present case, the learned president became functus officio as regards the earlier action
on his refusing the plaintiff's application for its reinstatement, but he certainly did not become
functus officio as regards the real dispute between the parties which he never tried (whether
the plaintiffs were entitled to recover the money paid to the defendant under a mistake of
fact). Therefore, he was wrong in dismissing the action.
: He was also wrong in taking the view that filing a fresh suit in the same court of the same
jurisdiction subsequent to the order of dismissal of the earlier action was not a correct
procedure or remedy for the plaintiff.
: Res judicata signifies that the court has, after argument and consideration, come to a
decision on a contested matter. For the doctrine to apply, a defendant has to show that there
was a former suit between the same parties for the same matter and upon the same cause of
action, and also that the matter directly and substantially in issue has been heard and finally
decided by the court which heard it. In this case, the plea of res judicata is not available to
the defendant in the present action, so it cannot be said that the plaintiffs cannot in law
maintain their present action based on the same subject matter as in the earlier action.

● If the case is struck out under Order 35 rule 2(1) ROC, the matter can be reinstated but if it is
dismissed, then the only avenue open to the aggrieved part is to appeal.

Tee Ha Leong v Messrs Low & Lim [2005] 4 MLJ 426

Facts : The plaintiff was absent, but his counsel was present. The defendants and their counsels
were also present. The plaintiff's counsel requested for a postponement, but the counsels for
both defendants objected. The court, after finding the grounds for the request unreasonable,
disallowed the request for a postponement and ordered the plaintiff's counsel to commence
presentation of the plaintiff's case. However, since the plaintiff was the only witness, the
plaintiff's counsel could not proceed and the court dismissed the plaintiff's case with costs.
The plaintiff then made this application to reinstate his writ of summons and amended
statement of claim.
Held : If the case is struck out under Order 35 rule 2(1) of the RHC 1980 [now Order 35 rule 2(1)
ROC 2012] the matter can be reinstated.
: But when the case is dismissed, then the only avenue open to the aggrieved part is to
appeal. This is based on the rationale that the case was already heard on its merits
 3) ADJOURNMENT
● When a trial begins, one of the parties may ask the court for postponement or adjournment of the trial
under Order 35 rule 3

Order 35 rule 3

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 A judge may adjourn a trial if he thinks it expedient in the interests of justice, such time and upon such
terms as the court thinks fit.

● Thus, it can be seen that the court has a wide discretion on whether or not to grant an adjournment of a
trial.

3.1) There must be good cause to grant adjournment

● Case law illustrates that the party requesting for an adjournment of a trial must show good reasons
for the adjournment.
● Examples:
o An important witness cannot be traced
o An important witness is ill
o The counsel is too ill to attend court

Dick v Piller
Held : If an important witness cannot attend the court due to illness and his evidence is
directly and seriously material, the court ought to allow the adjournment

● If the party requesting is unable to produce a good reason for the adjournment, the court will refuse
to adjourn the trial.

Go Pak Hoong Tractor v Syarikat Pasir Perdana [1982] 1 MLJ 77

Facts : The Defendant's counsel did not attend court on the date of the trial. The Defendant's
counsel resided in a different state. The Plaintiff's counsel was present in court. Through the
Plaintiff's counsel, the Defendant's counsel requested for an adjournment of the trial. The
reason was that Defendant's counsel could not find a seat in a flight.
Held : This is not a good reason to grant an adjournment. The Defendant's counsel was aware of
the trial date long before, he should have made arrangements and booked a flight
earlier.Thus, adjournment was refused, the court proceeded with the trial and entered
judgment on the Defendant.

Lee Ah Tee v Ong Tiow Pheng [1984] 1 MLJ 107 FC

Facts : There were many adjournments made by the appellant. The appellant then made an
application for another adjournment. His petition was dismissed. The appellant then appealed
to the Federal Court.
Held : This was not really a case of refusing an application for adjournment but a case of refusing
to further adjourn after a number of adjournments granted previously. In this case, the
Judicial Commissioner exercised his discretion correctly in refusing a further adjournment
after all the previous adjournment. On the evidence before him it was little surprise that there
was no merit in the application.

● However, the court should be careful when refusing an adjournment.

o Adjournment should only be refused if the judge is satisfied that the absent party is guilty of
misconduct and justice can only be done by refusing the adjournment.

Maxwell v Keun
Held : 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".

● If the judge dismisses the application, the decision is still appealable. However, the appellate court
will be slow to interfere with the judge's discretion.
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 Go Pak Hoong Tractor v Syarikat Pasir Perdana (FC)
Held : If an appellate court interferred with the discretion of the trial court in refusing to allow an
adjournment, it must be shown that the discretion was improperly exercised. Otherwise, it
should not be disturbed.

MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun (CA)
Held : the granting or refusing an adjournment was a matter within the discretion of a judge and an
appellate court ought not to interfere with such a decision unless it could be demonstrated
that the refusal resulted in the deprivation of essential justice from the appellant.

Mariya Stephen @ Fredolin Milis v Lee Guat Toh [2014] 1 MLJ 809 CA
Facts : Plaintiff/Respondent claimed that her land was fraudulently or wrongly transferred by the
Defendant/Appellant. On the date of the hearing, the Defendant sought an adjournment on the
ground of appointment of new solicitors.

The trial judge refused the adjournment and proceeded with the trial. At the end of the
respondent's case, the Defendant submitted no case to answer, the judge found in favour of
the Plaintiff. The Defendant appealed.
Held : It is well settled that the matter of adjournment is within the discretion of the trial judge and
an appellate court will not interfere with a refusal of adjournment unless it appears that the
result of such a refusal has been to defeat the rights of an applicant altogether or it is an
injustice to such an applicant.

▪ Examples of interference of trial court’s discretion by the appellant court:

Dick v Piller
Held : If an important witness is prevented by illness from attending the court and his
evidence is directly and seriously material, the court ought to allow the adjournment.

Hup San Timber Trading v Tan La Lan [1979] 1 MLJ 238 FC

Facts : There was a breach of agreement for the Respondent (Plaintiff) to carry goods for
the logging business of the Appellant (Defendant). The Plaintiff was suing for
damages for such breach, alleging that the Defendant had failed to employ them as
carriers. When the action came up, the Plaintiff, its counsel, and the Defendant's
counsel were present. The Defendant (Managing Director of the Company) was
absent, but produced a medical certificate. Trial judge allowed the Plaintiff to adduce
evidence and to sign judgment. The Defendant appealed.
Held :As the learned trial judge was in some doubt as to the real reason behind the
inability of the Defendant to attend court, he should have allowed an adjournment
to enable both parties to be given an opportunity to be heard. Any delay occasioned
by what appears to be an inadequate reason for absence can be compensated by costs.

● Where the court allows an adjournment, that decision is non-appealable

Insas Berhad v Ayer Molek Rubber Company Berhad FC
Held : Where the court allows an application to adjourn, a party may not appeal against an order of
a judge to adjourn a hearing
 

4) COURSE OF TRIAL
● Governed by Order 35 rule 4.
● When the trial has begun and all counsels are present, who has the right to begin at the trial?
o The Judge has discretion to decide
Order 35 rule 4(1)

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 The Judge may give directions as to the party to begin and the order of speeches at the trial ,
and, subject to any such directions, the party to begin and the order of speeches shall be that
provided by this rule.

o Normally, it is the Plaintiff who will begin by opening his case, unless the burden of proof of all the
issues in the action lies on the Defendant.
Order 35 rule 4
(2) Subject to paragraph (6), the plaintiff shall begin by opening his case.
(6) Where the burden of proof of all the issues in the action lies on the Defendant, the Defendant
shall begin first.

▪ Chong Chee Yun v Germilla Sdn Bhd [2001] 5 MLJ 264

Facts:
Held:
▪ Lo Khi On v Tanjung Aru Hotel Sdn Bhd [1994] 3 MLJ 766
Facts:
Held:
▪ Kulandi v Subramaniam [1983] 1 CLJ 302
▪ Muthurasu Pillai v Pakir Mohamed (1929) 7 FMSLR 70

4.1) ORDER AND SPEECHES

● The order of speeches or order of proceedings at a trial depends on whether:

i) The Defendant elects to adduce evidence. Procedure:

- The Plaintiff begins the case.
- The Plaintiff opens his case by making his opening statement (briefly referring to the facts of
his case and claim)
- After the Plaintiff opens the case, the Plaintiff calls his evidence (witnesses), each of the
Plaintiff's witness will be examined in chief, cross examined by the Defendant and re-examined
by Plaintiff (if necessary).
- After the Plaintiff has called all his witnesses, he rests his case
- The Defendant opens his case
- The Defendant calls his evidence (witnesses), each of the Defendant's witness will be
examined in chief, cross examined by the Plaintiff and re-examined (if necessary)
- After the Defendant has called all his witnesses, the Defendant makes his closing speech
- The Plaintiff makes his closing speech in reply
- Trial ends
- What if the Defendant wishes to reply to the Plaintiff's closing speech?
▪ Generally, this is not allowed.
▪ Exception:

Order 35 rule 4(7)

If in the Plaintiff/ Defednat's closing speech, either raises a new point of law or cites a new
authority not cited before, then the other party may reply but only in relation to that point
or authority.

ii) The Defendant elects not the adduce evidence. Procedure:

- The Plaintiff begins.
- The Plaintiff opens his case by making his opening statement (briefly referring to the facts of
his case and claim)

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 - After the Plaintiff opens, the Plaintiff calls his evidence (witnesses), each of the Plaintiff's
witness will be examined in chief, cross examined by the Defendant and re-examined by
Plaintiff (if necessary)
▪ Even though the Defendant has elected not to give evidence, the Defendant may cross
examine the Plaintiff's witnesses and may even adduce documents
- After the Plaintiff has called all his witnesses, the Plaintiff makes his closing speech
- The Defendant makes his closing speech. (compared to above, the defendant no need to
open his case and call evidence)
- Trial ends. (compared to above, the plaintiff doesn’t reply to the defendant’s closing speech)
- What if the Plaintiff wishes to reply to the Defendant's closing speech?
▪ Generally, this is not allowed.
▪ Exception:

Order 35 rule 4(7)

If in the Plaintiff/ Defednat's closing speech, either raises a new point of law or cites a new
authority not cited before, then the other party may reply but only in relation to that point or
authority.
 
5) EVIDENCE

5.1) Attendance of witnesses

Mode Order 38 rule 14: Form and issue of subpoena107
(1) A subpoena shall be in Form 63, Form 64 or Form 65, whichever is
appropriate.

Order 38 rule 15
More than one name may be included in one subpoena to testify

Issuance of Order 38 rule 14

subpoena (2) The issue of a subpoena takes place upon it being sealed by an officer of the
Registry.
(3) Before a subpoena is issued, a Praecipe108 for the issue of the subpoena in
Form 66 shall be filed in the Registry, and the praecipe shall contain the name
and address of the party issuing the subpoena (if he is acting in person); or the
name of the firm and business address of the party's solicitor

● When there is a mistake in the subpoena

Order 38 rule 17
If there is a mistake in the name or address of the subpoena, discovered
before it is issued, the party planning to issue the subpoena may have it
resealed in the correct form by filing a second praecipe under Order 38 rule
14(3) endorsed with the words "Amended and resealed"

Service of Order 38 rule 18

subpoena (1) The Subpoena to be served personally within 12 weeks after its date of issue,
unless if the Court otherwise. (The Court may order for the subpoena to be issued
by another method)

Order 38 rule 23
An affidavit filed for the purpose of proving the service of a subpoena shall state

107
a writ ordering a person to attend a court.
108
an order requesting a writ or other legal document.
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 when, where, how and by whom the service was effected.

Revocation of Order 38 rule 14(4)

subpoena The Registrar may revoke a subpoena upon application by any person or on his
own motion

Review of Order 38 rule 14(5)

registrar's Any party dissatisfied with decision of the Registrar may apply to a Judge
decision (under Order 38 rule 14) for a review of that decision.

- Such application under Order 38 rule 14 shall be made by a notice of

application supported by an affidavit within fourteen days of the decision.

Subpoena to Order 38 rule 16

produce A Subpoena to produce documents shall contain the name of one person only.
documents
- It is sufficient to comply with the subpoena by producing the document
without attending personally)

Court records:
Order 38 rule 20
(1) Generally, a subpoena cannot require an officer of the High Court or
Subordinate Court to produce court records
(2) However, if there is a special reason required, the original copy of a court
record or documents filed in court may be requested to be produced by
application
(3) However, no mark shall be place on such court records or court documents

Subpoena for Order 38 rule 21

attendance of (1) An application to produce a prisoner using the subpoena can be made ex parte
prisoner by notice of application supported by affidavit in Form 67.
(2) the costs of conveyance of the witness to and from the Court shall be paid in
the first instance by the party on whose application the order was issued and
shall be costs in the cause, unless the Court orders otherwise.

Order 38 rule 22
A witness shall not be compelled to attend on subpoena unless reasonable sum to
cover expenses is offered to him

Lifespan of Order 38 rule 19

subpoena A Subpoena continues to have effect until the conclusion of the trial at which the
attendance of the witness is required

 
5.2) Evidence by Deposition (the giving of sworn evidence.)
Deposition Order 39 rule 1
(1) The Court may make an order in Form 69 for the examination on oath
before a Judge or the Registrar or some other person of any person at any
place where it appears necessary for the purposes of justice
(2) Such an order may be made on such terms (including, in particular as to
the giving of discovery before the examination takes place) as the court

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 thinks fit.

Where the person Order 39 rule 2

to be examined is (1) When the person to be examined is out of jurisdiction and he is needed to
out of jurisdiction give evidence, an application may be made:
(a) for an order in Form 70 for the issue of a letter of request to the
judicial authorities of the country in which that person is to take, or
cause to be taken, the evidence of that person; or
(b) if the government of that country allows a person in that country to be
examined before a person appointed by the Court, for an order in Form
71 under that rule appointing a special examiner to take the evidence
of that person in that country.
(2) An application may be made for the appointment as special examiner of a
Malaysian consul in the country in which the evidence is to be taken or his
deputy:
(a) if there subsists with respect to that country a Civil Procedure
Convention providing for the taking of the evidence of any person in
that country for the assistance of proceedings in the High Court; or
(b) with the consent of the Minister

Issue of letter of Order 39 rule 3:

request (1) Where an order is made under rule 1 for the issue of a letter of request to the
judicial authorities of a country to take, or cause to be taken, the evidence of
any person in that country the following provisions of this rule shall apply.
(2) The party obtaining the order shall prepare the letter of request and lodge it in
the Registry, and the letter shall be in Form 72 with such variations as the
order may require.
(3) If the evidence of the person to be examined is to be obtained by means of
written questions, there shall be lodged with the letter of request a copy of the
interrogatories and cross-interrogatories to be put to him on examination.
(4) Unless the official language or one of the official languages of the country in
which the examination is to be taken in is English, each document lodged
under paragraph (2) or (3) shall be accompanied by a translation of the
document in the official language of that country or, if there is more than one
official language of that country, in any of those languages which is
appropriate to the place in that country where the examination is to be taken.
(5) Every translation lodged under paragraph (4) shall be certified by the person
making it to be the correct translation and the certificate shall contain a
statement of that person’s full name, address and qualifications for making the
translation.
(6) The party obtaining the order shall, when he lodges in the Registry the
documents mentioned in paragraphs (2) to (5), also file in the Registry an
undertaking in Form 73 signed by him or his solicitor to be responsible
personally for all expenses incurred by the Minister in respect of the letter of
request and, on receiving due notification of the amount of those expenses, to
pay that amount to the office of the Minister and to produce a receipt for the
payment to the proper officer of the Registry.

Enforcing Order 39 rule 4

attendance of Where an order has been made under rule 1 for the following, the attendance of
witness that person before the examiner and the production by him of any document at
the examination may be enforced by subpoena in like manner as the attendance
of a witness and the production by a witness of a document at a trial may be

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 enforced:
(a) the examination of any person before the Registrar or some other person
(which is referred to as “the examiner” in this rule and rules 5 to 14); or
(b) the cross-examination before the examiner of any person who has made an
affidavit which is to be used in any cause or matter

Refusal of witness Order 39 rule 5

to attend, be sworn (1) If any person, having been duly summoned by subpoena to attend before
the examiner, refuses or fails to attend or refuses to be sworn for the
purpose of the examination or to answer any lawful question or produce
any document therein, a certificate of his refusal or failure, signed by the
examiner, shall be filed in the Registry, and upon the filing of the
certificate the party by whom the attendance of that person was required
may apply to the Court for an order requiring that person to attend, or to
be sworn or to answer any question or produce any document, as the case
may be.
(2) An application for an order under this rule may be made ex parte
(3) If the Court makes an order under this rule, it may order the person against
whom the order is made to pay any costs occasioned by his refusal or
failure.
(4) A person who wilfully disobeys any order made against him under
paragraph (1) is guilty of contempt of Court

Appointment of Order 39 rule 6

time and place for (1) The examiner shall give the party on whose application the order for
examination examination was made a notice appointing the place and time at which,
subject to any application of the parties, the examination shall be taken,
and such time shall, having regard to the convenience of the persons to be
examined and all the circumstances of the case, be as soon as practicable
after the making of the order.
(2) The party to whom a notice under paragraph (1) is given shall, on
receiving it, forthwith give notice of the appointment to all the other
parties.

Examiner to have Order 39 rule 7

certain documents The party on whose application the order for examination before the examiner
was made shall furnish the examiner with copies of such of the documents in
the cause or matter as are necessary to inform the examiner of the questions at
issue in the cause or matter.

Conduct of Order 39 rule 8

examination (1) Subject to any direction contained in the order for examination
(a) any person ordered to be examined before the examiner may be cross-
examined and re-examined; and
(b) the examination, cross-examination and re-examination of persons
before the examiner shall be conducted in like manner as at the trial
of a cause or matter.
(2) The examiner may put any question to any person examined before him as
to the meaning of any answer made by that person or as to any matter
arising in the course of the examination.
(3) The examiner may, if necessary, adjourn the examination from time to
time.

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Examination of Order 39 rule 9
additional witnesses The examiner may, with the written consent of all the parties to the cause or
matter, take the examination of any person in addition to those named or provided
for in the order for examination, and shall annex such consent to the original
deposition of that person.

Objections to Order 39 rule 10

questions (1) If any person being examined before the examiner objects to answer any
question put to him, or if objection is taken to any such question, that
question, the ground for the objection and the answer to any such question
to which objection is taken shall be set out in the deposition of that person
or in a statement annexed thereto.
(2) The validity of the ground for objecting to answer any such question or for
objecting to any such question shall be decided by the Court and not by
the examiner, but the examiner shall state to the parties his opinion
thereon, and the statement of his opinion shall be set out in the deposition
or in a statement annexed thereto.
(3) If the Court decides against the person taking the objection, it may order
him to pay the costs occasioned by his objection.

Taking of Order 39 rule 11

depositions (1) The deposition of any person examined before the examiner shall be taken
down by the examiner or a shorthand writer or some other person in the
presence of the examiner but, subject to paragraph (2) and rule 10(1), the
deposition need not set out every question and answer so long as it
contains as nearly as may be the statement of the person examined.
(2) The examiner may direct the exact words of any particular question and
the answer thereto to be set out in the deposition if that question and
answer appear to him to have special importance.
(3) The deposition of any person shall be read to him, and he shall be asked to
sign it, in the presence of such of the parties as may attend, but the parties
may agree in writing to dispense with the foregoing provision. If a person
refuses to sign a deposition when asked under this paragraph to do so, the
examiner shall sign the deposition.
(4) The original deposition of any person, authenticated by the signature of
the examiner before whom it was taken shall be sent by the examiner to
the Registry and shall be filed therein.

Time taken by Order 39 rule 12

examination to be Before sending any deposition to the Registry, the examiner shall endorse on the
endorsed on deposition a statement signed by him of the time occupied in taking the
depositions examination and the fees to the paid in respect thereof.

Special report by Order 39 rule 13

examiner The examiner may make a special report to the Court with regard to any
examination taken before him and with regard to the absence or conduct of any
person thereat, and the Court may direct such proceedings to be taken, or make
such order, on the report as it thinks fit.

Order for payment Order 39 rule 14

of examiner’s fees (1) If the fees and expenses due to an examiner are not paid, he may report
that fact to the Court, and the Court may make an order against the party
on whose application the order for examination was made to pay the
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 examiner the fees and expenses due to him in respect of the examination.
(2) An order under this rule shall not prejudice any determination on the
taxation of costs or otherwise as to the party by whom the costs of the
examination are ultimately to be borne.

Perpetuation of Order 39 rule 15

testimony (1) Witnesses shall not be examined to perpetuate testimony unless an action
has been begun for the purpose.
(2) Any person who would under the circumstances alleged by him to exist
become entitled, upon the happening of any future event, to any honour,
title, dignity or office, or to any estate or interest in any real or personal
property, the right or claim to which cannot be brought to trial by him
before the happening of such event, may begin an action to perpetuate
any testimony which may be material for establishing such right or claim.
(3) No action to perpetuate the testimony of witnesses shall be set down for
trial.

5.3) Affidavits 109

Form of affidavit Order 41 rule 1
(1) Subject to paragraphs (2) and (3), every affidavit sworn in a cause or
matter shall be entitled in that cause or matter.
(2) Where a cause or matter is entitled in more than one matter, it is
sufficient to state the first matter followed by the words “and other
matters”, and where a cause or matter is entitled in a matter and
between parties, that part of the title which consists of the matter may
be omitted.
(3) Where there are more plaintiffs than one, it is sufficient to state the full
name of the first plaintiff followed by the words “and others”, and
similarly with respect to defendants.
(4) Every affidavit shall be expressed in the first person and shall state the
place of residence of the deponent and his occupation or, if he has
none, his description, and if he is, or is employed by, a party to the
cause or matter in which the affidavit is sworn, the affidavit shall state
that fact:

Provided that in the case of a deponent who is giving evidence in a

professional, business or other occupational capacity, the affidavit may,
instead of stating the deponent’s place of residence, state the address of
which he works, the position he holds and the name of his firm or
employer, if any.
(5) Every affidavit shall be divided into paragraphs numbered
consecutively, each paragraph being as far as possible confined to a
distinct portion of the subject.
(6) Dates, sums and other numbers shall be expressed in an affidavit in
figures and not in words.
(7) Every affidavit shall be signed by the deponent and the jurat shall be
completed and signed by the person before whom it is sworn.
(8) A jurat shall be in one of the forms in Form 74.

Affidavit by two or Order 41 rule 2

more deponents (1) Where an affidavit is made by two or more deponents, the names of the
109
a written statement confirmed by oath or affirmation, for use as evidence in court.
93 | Page
 persons making the affidavit shall be inserted in the jurat except that, if
the affidavit is sworn by both or all the deponents at one time before the
same person, it is sufficient to state that it was sworn by both (or all) of
the “abovenamed” deponents.
(2) When the oath is administered to deponents in different languages,
there shall be a separate jurat for those sworn in each language.

Affidavit by Order 41 rule 3

illiterate or blind Where it appears to the person administering the oath that the deponent is
person illiterate or blind, he shall certify in the jurat that
(a) the affidavit was read in his presence to the deponent;
(b) the deponent seemed perfectly to understand it; and
(c) the deponent made his signature or mark in his presence,

and the affidavit shall not be used in evidence without such a certificate unless
the Court is otherwise satisfied that it was read to and appeared to be perfectly
understood by the deponent.

Use of defective Order 41 rule 4

affidavit An affidavit may, with the leave of the Court, be filed or used in evidence
notwithstanding any irregularity in the form thereof.

Contents of Order 41 rule 5

affidavit (1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and
to any order made under Order 38, rule 3, an affidavit may contain only
such facts as the deponent is able of his own knowledge to prove.
(2) An affidavit sworn for the purpose of being used in interlocutory
proceedings may contain statements of information of belief with the
sources and grounds hereof.

Scandalous matter Order 41 rule 6

in affidavits The Court may order to be struck out of any affidavit any matter which is
scandalous, irrelevant or otherwise oppressive.

Alterations in Order 41 rule 7

affidavits (1) An affidavit which has in the jurat or body thereof any interlineation,
erasure or other alteration shall not be filed or used in any proceeding
without the leave of the Court unless the person before whom the
affidavit was sworn has initialled the alteration and, in the case of an
erasure, has re-written in the margin of the affidavit any words or figures
written on the erasure and has signed or initialled them.
(2) An alteration shall not be made in any affidavit after it has been filed, but,
before an affidavit is filed alterations may be made therein and the
affidavit shall be resworn with a further jurat commencing with the word
“re-sworn” added.

Affidavit not to be Order 41 rule 8

sworn before An affidavit is not sufficient if sworn before the solicitor of the party on whose
solicitor of party behalf the affidavit is to be used or before any member of the firm of that
solicitor.

Filing of affidavits Order 41 rule 9

(1) Except as otherwise provided by these Rules, every affidavit shall be filed
94 | Page
 in the Registry.
(2) Every affidavit shall be endorsed with a note showing on whose behalf it
is filed and the dates of swearing and filing, and an affidavit which is not
so endorsed may not be filed or used without the leave of the Court.

Use of original Order 41 rule 10

affidavit or office (1) Subject to paragraph (2), an original affidavit may be used in
copy proceedings with the leave of the Court, notwithstanding that it has not
been filed in accordance with rule 9.
(2) An original affidavit may not be used in any proceedings unless it has
previously been stamped with the appropriate fee.
(3) Where an original affidavit is used, then, unless the party whose
affidavit it is undertakes to file it, he shall immediately after it is used
file with the proper officer in the Registry.
(4) Where an affidavit has been filed, an office copy thereof may be used in
any proceedings.

Document annexed Order 41 rule 11

to affidavit (1) Any document to be used in conjunction with an affidavit shall be
exhibited and a copy thereof annexed to the affidavit.
(2) Any exhibit to an affidavit shall be identified by a certificate of the person
before whom the affidavit is sworn. The certificate shall be entitled in the
same manner as the affidavit and rule 1(1), (2) and (3) shall apply
accordingly.

Affidavit taken Order 41 rule 12

outside Malaysia A document purporting to have affixed or impressed thereon or subscribed thereto
admissible without the seal or signature of a Court, Judge, notary public or person having authority to
proof of seal administer oaths in a Commonwealth country and in the case of any other country
the seal or signature of a consular officer of a Commonwealth country in
testimony of an affidavit being taken before it or him shall be admitted in
evidence without proof of the seal or signature being the seal or signature of that
Court, Judge, notary public or person.

Language of Order 41 rule 13

affidavit An affidavit of a deponent affirmed outside the jurisdiction may be filed in the
English language and, unless the Court otherwise orders, need not be
accompanied by a translation in the national language.

● Note: Order 35A has been deleted

 
5.4) AGREED BUNDLE [not covered this semester]
● Henry Trading Co Ltd v Harun [1966] 2 MLJ 281
● Yap Choo v Tahir b. Yasin [1970] 2 MLJ 138
● Goh Yu Tian v Tan Song Gou [1981] 2 MLJ 317
o [1983] 1 MLJ 60 CA
● Chong Khee Sang v Phang Ah Chee [1984] 1 MLJ 377
● Practice Note 2 of 1977
● Borneo Housing Mortgage Finance Bhd v PR of the Estate of Lee Lun Wah [1994] 1 MLJ 209
 
6) SUBMISSION OF NO CASE TO ANSWER [not covered this semester]

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 ● May be made by the Defendant either if no case has been established in law or the evidence led is
unsatisfactory or unreliable
o Yuill v Yuill [1945] P. 15
● Judge should generally refuse to rule on such a submission unless the Defendant makes it clear that he
does not intend to call evidence
o Laurie v Raglan Co. [1942] 1 K.B. 152 CA
● Judge is not bound so to refuse and if does not put the Defendant to his election whether to call
evidence or not, the Defendant retains his right to call it if his submission fails
o Young v Rank [1950] 2 KB 510
o Storey v Storey [1961] P. 63 CA
● Mariya Stephen @ Fredolin Milis v Lee Guat Toh [2014] 1 MLJ 809
Facts :Plaintiff/Respondent claimed that her land was fraudulently or wrongly transferred by the
Defendant/Appellant. On the date of the hearing, the Defendant sought an adjournment on the
ground of appointment of new solicitors.
: The trial judge refused the adjournment and proceeded with the trial. At the end of the
respondent's case the Defendant submitted no case to answer, the judge found in favour of the
Plaintiff. Defendant appealed.
Held :It is well settled that the matter of adjournment is within the discretion of the trial judge and an
appellate court will not interfere with a refusal of adjournment unless it appears that the result
of such a refusal has been to defeat the rights of an applicant altogether or it is an injustice to
such an applicant
● The reasons behind these rules
o Alexander v Rayson [1936] 1 KB 169
o UN Pandey v Hotel Marco Polo [1980] 1 MLJ 4
o Tan Song Gou v Goh Ya Tian [1983] 1 MLJ 60
o Ng Neoh Ha v Maniam [1994] 1 MLJ 434
▪ Made by two out of six defendants
▪ Is cross-examination calling of evidence?
 
7) JUDGMENT AND ORDERS
Governed by Order 42
 
7.1) Judgment after a Trial
● At the end of a trial, the judge will deliver the judgment of the court.
● Generally, a judgment has two stages
i. In the first stage, the judgment will be pronounced
▪ A judgment after a trial is pronounced (orally delivered) in open court
ii. In the second stage, the judgment will be perfected
▪ A judgment is perfected when it is printed, signed and sealed by the court
● If a judgment is pronounced but not yet perfected, can the judge change his mind? Yes, the judge may
recall the counsel and ask to hear further arguments

Tan Ah Yeo v Seow Teck Ming [1989] 2 MLJ 3 (Singapore)

Facts : There was some communication between the counsel for the Plaintiffs and the court, as the
court was under the impression that the counsel would soon submit to the court whatever
written communications there were, if any, between the parties prior to the expiry of the
limitation period; whereas the counsel for the plaintiff thought that the court would request
for the documents if the court thought they were going to be necessary, bearing in mind that
if the plaintiffs were, for example, to succeed in the third preliminary issue there would be no
need to go on to the fourth.
Held :The court has power to recall its judgment and to alter it at any time before it is entered and
perfected.

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 : Thus, as the counsel informed the court that there was no correspondence between the
parties highly materila to the fourth issue, the court in exercising their discretion under
Section 8 of the Maritime Convention Act, heard the counsel out. Accordingly, the court
recalled its earlier judgment, stating that such order is not without precedent by
referring to The Supreme Court Practice 1988
: A judgment takes effect from the time when the judge pronounces it and the subsequent
entry of it is a mere form in obedience to the direction of the court… but it is within the
powers of a judge to alter his judgment at any time before it is entered and perfected.
▪ Followed Lim Yam Tech v Lim Swee Chiang110 where the judge after dismissing the
Plaintiff's claim, recalled the parties and heard further arguments, as a result of which
judgment was entered for the Plaintiff. The case went on appeal and the appeal was
dismissed.
 
7.2) Consent Judgments and Orders
● A consent judgment is a judgment upon a compromise
Lagenda Kencana Sdn Bhd v Peter’s Holdings [2012] 3 CLJ 824 CA
Held : A consent order is an order of the court carrying out an agreement between the parties.

Khaw Poh Chhuan v Ng Gaik Peng [1996] 1 MLJ 761

Held : The first requisite of a contract is that the parties should reached an agreement which would
inter alia, involve an offer and acceptance of the offer. (how is this judgment relevant?)
● The Plaintiff and Defendant may reach a compromise in the case and they may ask the court to record
the terms of their compromise in the form of consent judgment
● Once a consent judgment is recorded by the court, the Plaintiff may execute the consent judgment like
any other judgment of the court

7.1) Setting aside a consent judgment

● After a consent judgment has been recorded, can the Defendant set aside the consent judgment? It
depends on whether the consent judgment is perfected or not. A perfected consent order can only
be set aside by filing a fresh action.
Khaw Poh Chhuan v Ng Gaik Peng [1996] 1 MLJ 761
Held : A perfected consent order can only be set aside by filing a fresh action

● In either case (whether the order is perfected or not), a consent judgment can only be set aside
under the grounds to rescind a contract. (contract law applies)

Lau Ming Hing Richard v Bank Pembangunan Malaysia Bhd [1994] 2 MLJ 323
Held : since a consent judgment arises from a consent or a compromise, setting aside a consent
judgment is akin to rescinding a contract. If a person wants to rescind a contract for lack of
consent, the person would have to show that there were vitiating factors such as fraud,
misrepresentation, duress, coercion or undue influence. To set aside a consent judgment, the
same principles would apply.

● The Grounds to set aside would be discussed below:

i. Illegality
Lian Mong Yee v Abdul Rashid [2001] 4 MLJ 38
Held : The parties to a consent order is entitled to go to the Court for a declaration that the
consent order was void and unenforceable by reason of its illegality. It is well within
the jurisdiction of the Court to grant such a declaration.
: Equity, in order to give complete justice, has always asserted jurisdiction to grant
consequential relief by setting aside void transactions either on terms or sans any
110
[1979] 1 MLJ 162
97 | Page
 terms.111In the present instance, if the respondents are right in their argument, the
consent order is void for illegality. It may, therefore, be set aside like any other
agreement.

● Lee Liang Kee

ii. Mistake, fraud misrepresentation, coercion, total failure of consideration, undue influence etc
Badiaddin Mohd Mahidin v Arab Malaysia Finance Bhd [1998] 1 MLJ 393 FC
Held : The grounds referred to for setting aside a consent order of a judgment by consent
are grounds which basically relate to consensus ad idem or the free consent of parties
to a binding agreement or contract. If there are grounds which vitiate such free
consent, the agreement is not binding.
: A consent order or a judgment by consent is based on an agreement of both parties
where consent to the agreement must or should have been free in the first place. If the
agreement upon which a consent order or judgment by consent is based is vitiated by
any ground recognized in equity as vitiating such free consent, such as fraud, mistake,
total failure of consideration,112 such a perfected consent order or judgment by consent
could be set aside in a fresh action filed for the purpose.
: Grounds which would vitiate such free consent should also include
misrepresentation, coercion, and undue influence and other grounds in equity.

iii. Grave injustice

Lagenda Kencana Sdn Bhd v Peter’s Holdings [2012] 3 CLJ 824 CA
Held : The consent order in effect is an agreement between the parties, not between their
lawyers. Generally, the consent of the parties are expressed and communicated
through their respective solicitors. If there are clear indications that the consent order
was recorded without the authority or knowledge of the parties or any one of them (as
in the present case) then, as an agreement, there is no consensus ad idem and the
validity of the said consent order can always be challenged and the consent order can
ultimately be set aside, particularly where the effect of which, if not set aside, would
cause grave injustice to the party in question.
: A perfected consent order can only be set aside in a fresh action filed for the
purpose. However, in a situation where grave injustice was caused to the
appellant, the law allows the court of the first instance to set aside the consent
order even though it has been sealed and perfected.

In a situation of grave injustice, the appellant can make an application to set the
consent order aside at the same court which recorded the consent judgment. There is
no necessity to file a fresh separate proceeding for that purpose. The court may in
appropriate circumstances set aside the consent order even though it has been sealed
and perfected. In such a situation the court has the power to interfere with and set
aside such a consent order even if the lack of consent on the part of the appellant or
the limitation of counsel's authority was unknown to the other side. The said consent
order should not be allowed to remain.113
● Gai Hin Refrigeration Sdn Bhd v Kamanis Holdings Sdn Bhd [2005] 1 MLJ 293
● Norshuime bin Baharudin (sole administrator for the estate of Baharudin bin Mahmud, deceased) v
Leong Yee Heng [2019] 5 MLJ 62
● Chief Registrar’s Circular No 4 of 2010
 

111
(see p 44B-C); Cooper v Phibbs (1867) LR 2 HL 149 (folld)
112
see Huddersfield Banking Co Ltd v Henry Lister & Sons [1895] 2 Ch 273
113
This principle was adopted by the Federal Court in the Khaw Poh Chhuan case following the decision of the Court
of Appeal in England, in Marsden v. Marsden [1972] 2 All ER 1162.
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8) Interest
o Order 42 rule 12
Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment
debt shall carry interest at such rate as the Chief Justice may determine from time to time or at
such other rate not exceeding the rate aforesaid as the Court determines, such interest to be
calculated from the date of judgment until the judgment is satisfied.

o Section 11 Civil Law Act: Power of Courts to award interest on debts and damages
In any proceeding for the recovery of any debt or damages, the Court may, if it thinks fit, order that
interest shall be included in the judgment sum, at such rate as it thinks fit on the whole or any part of the
debt or damages for the whole or any part of the period between the date when the cause of action arose
and the date of the judgment:

Provided that nothing in this section—

(a) shall authorize the giving of interest upon interest;
(b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any
agreement or otherwise; or
(c) shall affect the damages recoverable for the dishonour of a bill of exchange.

New Zealand Insurance Co Ltd v Ong Choon Lin [1992] 1 MLJ 185
Held: the court has a discretion under s. 11 CLA 1956 to award pre-judgment interest

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 Chapter 6: Costs

1) Introduction
There are majorly 2 types of costs in a civil action:
1) solicitor and client” costs. This is the remuneration a litigant pays to his counsel.
- In simple term, it is the legal fees.
- It is the sum of money a party pays to his lawyer or a sum of
money a lawyer receives from his client for the legal services
rendered.
- It is contractually agreed between the parties.

2) “party and party” costs. This is the sum one litigant pays to another litigant to compensate
the latter for expenses that he has incurred in the litigation.
- To be entitled to “party and party” costs, an order as to costs
must be given by the court.
- If no order as to costs was made by court, a litigant cannot
claim “party and party” costs.

E.g.:
At the end of a trial, the court decided and found the P won
the case. When the court found P has won at the end of trial,
the court will deliver judgment or make order which will
sound like “Plaintiff’s claim is allowed with costs”.

The “with costs” refer to “party and party” costs. This order is
saying that D has to pay costs to the P for the expenses the P
has incurred in the whole litigation.

2) Meaning of costs
● As explained, there are two definitions as to costs:
i. Solicitor and client cost : Remuneration that a litigant pays to his counsel.
ii. Party and party costs : The sum one litigant pays to another litigant to compensate the latter
for expenses that he has incurred in the litigation.

● At the end of interlocutory hearing/proceeding,114 if the P applied for interlocutory injunction, the court
may order that “Plaintiff’s application is allowed with costs.”
- This means that the court allowed the Plaintiff’s application and made an order as to costs
directing the Defendant to pay the Plaintiff the costs of the application.
- If at the end of the interlocutory hearing/trial, the court only orders “Plaintiff’s claim is
allowed”, there is nothing as to costs, so in this situation, the winning party may not obtain
costs from other party that has lost.
- It is important to ensure that the court makes an order as to costs and this is called “party and
party” costs.

● Dr. Sujata: In this topic for “Costs”, we will only deal with “party and party” costs.

114
a proceeding that takes place before trial e.g. :
- application to amend pleadings or
- application for interlocutory injunction where this interlocutory proceedings are commenced by NOA supported
by affidavit
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 2.1) An order for costs is essential
● No party is entitled to decide as to costs.
● To be entitled to party and party costs, the court must make an order as to costs. This is expressly
stated in O 59 r 3(1) as follows:
Subject to the following provisions of this Order, no party shall be entitled to recover any costs of or
incidental to any proceedings from any other party to the proceedings except under an order of the
Court. (emphasis added)
- This means there is no “party and party” costs unless an order of the court is made to this effect.
- No party can assume that he will be paid costs incurred in the entire litigation from the losing
party. He must ENSURE an order is made by the court entitling him to “party and party” costs.

3) Discretion of the court

● Party and party costs are entirely at the discretion of the courts. This means that it is entirely the court’s
discretion to decide whether to order costs or not and what type of costs.
● Under O 59 r 2(2), it clearly states that “party and party” costs are at the court’s discretion and it has
full power to determine by whom and the extent of the costs are to be paid.

O 59 r 2(2) :
Subject to other Rules in the ROC, the costs of and incidental to proceedings in the Court, shall be in
the discretion of the Court, and the Court shall have full power to determine by whom and to what
extent the costs are to be paid.

● As a general rule, when making an order for costs at the end of a trial or proceedings, the courts follow
the rule “costs shall follow the event”.
- The general rule “costs shall follow the event” means –
o the losing party pays winning party’s costs; and
o the losing party bears his own costs.
- Example:

Scenario 1:
At the end of a trial, the court found the Plaintiff has won the case. So, the court’s decision is that
Plaintiff’s claim should be allowed. If that is so and the court follows the general rule of “costs shall
follow the event”, the court will say:“P’s claim is allowed with costs.”/ “Tuntutan P dibenarkan
dengan kos.”
▪ This means the Plaintiff (winning party) can get his costs from the Defendant (losing party). The
Defendant has to pay the Plaintiff all the expenses the P has incurred in the litigation and the D
will also have to bear his own costs.

Scenario 2:
At the end of a trial, if the Plaintiff has lost, the court following the general rule of “costs shall
follow the event”, may order: “P’s claim is disallowed with costs.”/ “Tuntutan P ditolak dengan
kos.”
▪ This means that Plaintiff (losing party) has to pay Defendant’s (winning party) costs and
Plaintiff has to pay his own costs.

● However, in certain circumstances, the court will depart from this general rule. These are known as
exceptions to the rule “costs shall follow the event”.

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 O 59 r 3(2):
If the Court in exercising its discretion, sees fit to make any order as to the costs of or incidental to
any proceedings, the Court shall order the costs to follow the event, except when it appears to the
Court that in the circumstances of the case, some other order should be made as to the whole or
any part of the costs.

● Therefore,
O 59 r 2(2) :
General rule – if the court makes an order as to costs, the court will order the costs to follow the
event.

O 59 r 3(2):
Exception – circumstances where the court will depart from the general rule and the court may make
some other order as to costs.

3.1) Exceptions to the general rules

● There are four recognised exceptions to the rule ‘costs shall follow the event’:

i. Costs awarded up to a stage of the proceedings/only a proportion of costs awarded

▪ This means the court orders costs to the winning party but only up to a stage of the
proceedings. Therefore, the winning party is not obtaining costs for the entire
proceeding but up to a certain stage of a proceeding.

O 59 r 4 :The Court in exercising its discretion as to costs shall, to such extent,

if any, as may be appropriate in the circumstances, take into account
—
(a) any such offer of contribution as is mentioned in Order 22B, rule
11, which is brought to its attention in pursuance of a reserved
right to do so; and
(b) any offer of settlement under Order 22B, rule 1.

O 22B r 9(2) :Where an offer to settle made by a defendant—

(a) is not withdrawn and has not expired before the disposal of the
claim; and
(b) is not accepted by the plaintiff, and the plaintiff obtains judgment
not more favourable than the terms of the offer to settle,

the plaintiff is entitled to costs to the date the offer was served and the
defendant is entitled to costs from that date.

o O 22B r 9(2) is an example of order where costs is awarded up to a stage of the

proceedings.

ii. The court orders no order as to costs (each party bears his own costs)
▪ This happens when at the end of a trial, P won the case. When the court delivers its
judgment and says “P’s claim is allowed. No order as to costs.” This is an exception
to the rule “costs shall follow the event”.
▪ This means each party is to pay his own costs. The court is making an order for each
party to bear their own costs NOT the losing party paying costs to the winning party.

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 ▪ The reason for making such order is when the court has found that the winning party
has committed some sort of misconduct (delay) or neglect.

O 59 r 5:
(1) Where in any cause or matter any thing is done or omission is made improperly
or unnecessarily by or on behalf of a party, the Court may direct that any costs
to that party in respect of it shall not be allowed to him and that any costs
occasioned by it to other parties shall be paid by him to them.
(2) Without prejudice to the generality of paragraph (1) the Court shall, for the
purpose of that paragraph, have regard in particular to the following matters:
(a) the omission to do any thing the doing of which would have been
calculated to save costs;
(b) the doing of any thing calculated to occasion, or in a manner or at a time
calculated to occasion unnecessary costs; and
(c) any unnecessary delay in the proceedings.

iii. The court orders the winner pays loser’s costs

▪ This is the direct opposite of “costs shall follow the event”.
▪ This order is made in exceptional and rare circumstances – if winning party was
guilty of gross misconduct or wilful negligence.
▪ O 59 r 5 (see above)

iv. The court orders the solicitor to pay costs

O 59 r 6:
(1) Subject to the following provisions of this rule, where in any proceedings costs are
- incurred improperly or
- without reasonable cause or
- wasted by undue delay or by any other misconduct or default,
the Court may make against any solicitor whom it considers to be responsible an
order—
(a) disallowing the costs as between the solicitor and his client; and
(b) directing the solicitor to repay to his client costs which the client has been
ordered to pay to other parties to the proceedings; or
(c) directing the solicitor personally to indemnify such other parties against cost
payable to them.

(2) An order under this rule shall not be made against a solicitor unless he has been
given a reasonable opportunity to appear before the Court and show cause why the
order should not be made, except where any proceeding in Court or in Chambers
cannot conveniently proceed, and fails or is adjourned without useful progress being
made—
(a) because of the failure of the solicitor to attend in person or by a proper
representative; or
(b) because of the failure of the solicitor to deliver any document for the use of
the Court which ought to have been delivered or to be prepared with any
proper evidence or account or otherwise to proceed.

▪ Para (2) is basically saying that the court must give opportunity to solicitor to
explain himself before making such an order.

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● Example scenarios where the courts departed from the rule costs shall follow the event.

i. When a contract is illegal due to both parties violate the law

Cheng Mun Siah v Tan Nam Sui [1980] 2 MLJ 269.
Facts : In this case the plaintiff, a Malaysian citizen entered into an unconditional
agreement to purchase a house in Singapore from the defendant. The vendor
knew that the purchaser was a Malaysian citizen and the contract was entered
into by the parties despite the fact that approval to purchase the said property
had already been refused under section 16 of the Residential Property Act,
1976.

Held :It is clear from the Residential Property Act that the agreement, is prohibited
by statute and void ab initio, hence unenforceable by either party. As the
whole of this transaction is already an illegal one and as both parties to the
transaction have contravened the Act, the court can be called upon to assist
either of the parties with regard to the agreement in question. Therefore the P’s
claim under the contract is disallowed. The P lost the case and the D won.

: A party to an illegal contract will normally be denied relief as he cannot be

heard to allege his own turpitude and that any loss he may suffer is well
deserved. There will be no order as to costs since both parties have
offended against the law. The party will pay their own cost

: If the Plaintiff claims under an illegal contract and at the trial, illegality is
established, the Plaintiff will lose the case. Technically, the Defendant is the
“winning party”. If the general rule “costs shall follow the event” is
adhered to, the Defendant should be awarded costs of the trial/proceedings.

However, it may not be proper to award costs the Defendant (even though
he has won technically), because he was also a party to the illegal contract.
Therefore, in this scenario, the court may depart from the rule “costs shall
follow the event” and make “no order as to costs”. This means each party
bears his own costs.

ii. Misconduct or neglect

If a party is guilty of gross misconduct or neglect but he wins the case, the court may
make “no order as to costs” or in exceptional circumstances, the court may order “the
winner to pay the loser’s costs”.

See Chen Chow Lek v Tan Yew Lai [1983] 1 MLJ 170 (FC)
Facts :This case concerned the sale of a terrace house from the respondent to the
appellant. The respondent wanted to settle the issue but he appellant was
showing attitude.
Held : If the appellant was co-operative in this case, he would not have come to
court. The respondent would probably not have started the civil suit. This
litigation has been completely unnecessary and could have been avoided but
for the appellant's attitude.
: We also observe that even during the pendency of the suit, the respondent
was still trying to persuade the appellant to come to terms by writing a polite

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 letter explaining to the appellant why a fresh memorandum of lease was
needed. But unfortunately this was rebuffed by the appellant.
: Thus, in view of the appellant’s conduct, we cannot fully acquit him of the
blame and he must pay the costs of the proceedings both in the Court
below and before the current court despite winning the case. We also like
to express the hope that the appellant should sign a fresh memorandum of
lease if this document is still needed by the respondent, or should take steps to
convert his leasehold to freehold in order to avoid future troubles.

P/s: The court here did the direct the opposite of “costs shall follow the event”
where the court ordered the winning party to pay the losing party’s costs.

iii. Successful on a point not raised previously

Scenario:
A party loses a case in a lower court. On appeal to a higher court, he wins the case on a
new point or argument which was not raised at the lower court. The new point or
argument should have been raised at the lower court.

In such a situation, the court may make “no order as to costs” in relation to the costs of
the appeal. This is because if the winning party had raised the new point at the lower
court, the appeal would have been unnecessary. Therefore, the winning party does not get
costs of the appeal, and each party bears his own costs.

Anna Jong Yu Hiong v Government of Sarawak [1972] 2 MLJ 244 (FC)

Facts :Anna Jong sued the government of Sarawak and she lost the case in the lower
court. She appealed to the higher court and on appeal, she won the case but
she won on a new argument which was not raise in the lower court. That point
she raised on appeal should’ve been raised in the lower court.
Held :Since the appellant had succeeded on a point not raised in the court below,
and since she was only partly successful in this appeal, no costs were to be
awarded. With regard to costs in the court below, since the amount awarded
on appeal exceeded the amount deposited by the respondent in court, the
appellants were to have the costs in the court below.
: If the appellant had raised this point in lower court, she would’ve won and
the entire appeal will be unnecessary. So the court departed from the general
rule and made the order “no order as to costs” in relation to the cost of the
appeal. IF the court followed the general rule of costs shall follow the event,
Anna Jong being the winner should’ve obtained costs from the losing party,
government of Sarawak.

iv. Won on an authorities not cited previously

Same scenario as (iii) above but on appeal, the party wins by raising a new case or
authority which was not raised at the lower court and should have been raised at the lower
court.
Again, court may make no order as to costs because if the party had raised the case or
authority at the lower court, the appeal would have been unnecessary.

Re Syed Alsagoff, Decd. (1961) 27 MLJ 150

Held :In this appeal case it was discovered that the appellant had not referred two
“very relevant” cases to the learned judge at the trial. Although the appeal
was allowed no order as to costs was made for both the appeal and trial stages.
: IF the appellant had raised the authority at the lower court, he would’ve won
at the lower court and the entire appeal would’ve been unnecessary. So the

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 court made the order “no order as to costs” because if winning party had raised
the new authority at lower court, the whole appeal would’ve been
unnecessary. The court departed from the general rule costs shall follow the
event.

4) Costs against advocate and solicitor personally or a non-party (Dr. Sujata skipped this)
Provision: O. 59 r. 6 (see above)

Karpal Singh v Atip bin Ali [1987] 1 MLJ 291.

Fact : In this case the learned judge had struck out a civil suit against the appellant and another. The
appellant applied for costs to be borne personally by counsel for the plaintiff. The learned judge
declined to make the order. The appellant appealed.
Held : The court held that an advocate and solicitor is an officer of the court and his professional conduct
is always under the supervision and scrutiny of the court. It follows that when there is dereliction of
duty on the part of an advocate and solicitor in the conduct of his professional work the court
may, in a proper case, order him to be personally liable for the costs of the proceedings after
giving him an opportunity to defend himself.
: In this case, having come to a conclusion that the civil suit filed by the plaintiff was "conspicuously
unmaintainable" and having rejected the explanation given by the advocate and solicitor for the
plaintiff, the learned judge ought to have exercised his discretion and ordered that the costs of the
proceedings be paid by the lawyer personally.
5) Taxation of costs [This is not covered this semester]

5.1) The mechanics of taxation [This is not covered this semester]

6) Several Parties
Sometimes a Plaintiff is compelled to sue 2 Defendants. Where 2 Defendants are sued, a possible outcome
may be that the Plaintiff obtain judgment against one Defendant and the Plaintiff’s claim against the other
Defendant may be dismissed. In other words, the Plaintiff wins against one defendant and loses against the
other Defendant.

D1 (P won against this D1 is the losing

defendant) defendant
P

D2 (P lost against this D2 is the winning

defendant) defendant

● In a situation like the above, what would be the order as to costs?

- As a general rule, the courts will follow the rule “costs shall follow the event”.
- This means –
o Plaintiff pays costs of the winning defendant
o Plaintiff gets costs from losing defendant
- HOWEVER, this order above may not be fair where the Plaintiff was compelled to sue 2
defendants.
- A Plaintiff may be compelled to sue 2 Defendants in circumstances where Plaintiff did not know
who are the proper defendants to be sued, and the potential defendants refused to admit liability.

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 o When the Plaintiff is forced to sue 2 Defendants, the court may slightly vary the rule that
“costs shall follow event” instead of strictly following it.
o The variations are found in two types of orders namely Bullock order or Sanderson order.
- For example:
▪ Assuming that P is a passenger in a vehicle driven by D which collides with a vehicle driven
by E. P is injured. P wants to claim for his injuries but does not know who is responsible for
the collision.
▪ D and E blame each other for the collision and refuse to admit liability. So P, sues both D and
E.
▪ At the trial, only D is held to be solely liable. Therefore, P has won against D (the losing
defendant) and P has lost against E (the winning defendant).
▪ In such cases, the court may make either a Bullock order or a Sanderson order.

- However, before such orders can be made, it must be determine if it is reasonable to join other co-
defendants in an action. The test to determine this is laid down in :

Besterman v British Motor Cab Co Ltd115

Held : It is reasonable to join other co-defendants if the facts are such that it is in a state of
uncertainty as to which of the defendants is the really guilty one. In this case, it is part of the
reasonable costs of the action that the costs of the action which the P have launched against
one of those defendants, and who has succeeded in defending himself, should be borne by the
man who is to blame.

a. Bullock order
● A Bullock order means that the Plaintiff gets costs from the losing Defendant (D1). At the
same time, the Plaintiff pays the costs of the winning Defendant (D2). Then, the Plaintiff
then claims reimbursement of costs paid to winning Defendant (D2), from the losing
Defendant (D1).

Bullock v London General Omnibus [1907] 1 K.B. 264

Held : Where the P sues two Defendants jointly, D1 and D2, and D2’s case is dismissed, the
Court may make a Bullock order in the following terms: (Assume D1 is losing defendant
and D2 is winning defendant):
i. Judgment for P against D1 with costs,
ii. Claim against D2 dismissed; P to pay D2’s costs,
iii. D1 to pay P costs so paid by P to D2.

● Example of Bullock order can be seen in Federal Flour Mills Ltd. v “Ta Tung” 116
Held : “In this case, in view of the circumstances of this particular case, I am quite satisfied
that the plaintiffs were justified in bringing in the second defendants as co-defendants.
: Nevertheless, if the costs of the second defendants are ordered to be paid directly by
the first defendants, it might amount to completely depriving the second defendants
of their costs. The only asset of the first defendants 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

115
as stated by Vaughan Williams L.J.
116
[1971] 2 MLJ 201 Per Abdul Hamid J as he was then)
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 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.”

b. Sanderson order
● Same as a Bullock order, in Sanderson order, the court is ordering the losing Defendant to pay
for both winning Plaintiff and winning Defendant’s costs, either directly or add the cost that the P
has to pay to the winning D to the losing D’s cost.
● Assuming that D1 is losing defendant and D2 is winning defendant. In a Sanderson order, the
losing Defendant (D1) is ordered to pay for the winning Defendant’s (D2) costs. The order
will be like this:
i. Judgment for P against D1 with costs
ii. Plaintiff’s claim against D2 is dismissed; D1 to pay D2’s costs
● Under a Sanderson order, there are 2 types of order:

Sanderson v Biyth Theatre [1903] 2 K.B. 533

Held : In proper case, the Court has jurisdiction to
i. order the unsuccessful defendant to pay the costs of the successful
defendant directly or
ii. to order the plaintiff to pay the costs of the successful defendant and then to
add those costs to the costs which the unsuccessful defendant is ordered to
pay to the plaintiff. The latter course should be adopted when the action is
tried with a jury and the judge does not think that there is "good cause"
for depriving the successful defendant of costs.

Muniandy v Tan Lian Hock (1963) 29 MLJ 230).

Facts : The plaintiff, a bullock cart driver, was injured when a lorry knocked into a station
wagon which in turn knocked into the bullock cart. The first and second defendants
were the driver and owner respectively of the lorry. The third and fourth defendants
were the driver and owner respectively of the station wagon. The plaintiff alleged that
both the first and third defendants were negligent. The first and second defendants
paid $3,500 into Court under O.22 r.4(1) and the plaintiff elected to accept that sum
whereupon all further proceedings were stayed.
: The plaintiff then filed notice of motion under O.22 r.4(3) praying inter alia that
any costs awarded to the third and fourth defendants be paid direct by the first
and second defendants. It was contended by counsel for the defendants that the
plaintiff should not have sued the third and fourth defendants at all and that the first
and second defendants should not be made to pay their costs.
Held : It was reasonable for the plaintiff to have joined the four defendants because apart
from blaming the plaintiff for the collision, the defendants blamed each other. It was
reasonable to order that the costs of the successful third and fourth defendants
should be borne by the unsuccessful first and second defendants and that in this
case the costs should be paid direct to them.

6.1) Reasons for the 2 different orders (Bullock and Sanderson order)
● The reason is to protect the winning Defendant so that the winning Defendant gets his costs.

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 ● If the losing defendant is insolvent (bankrupt/lack funds), the court should make a Bullock
order and not the Sanderson order.
- Under Bullock order, the Plaintiff has to pay the winning Defendant’s costs and the Plaintiff
can seek reimbursement from losing Defendant. This is to make sure the winning Defendant
gets his costs.
- Subsequently whether the Plaintiff can get the reimbursement from the losing Defendant or
not, it is the Plaintiff’s disadvantage if he cannot.
● If the plaintiff is insolvent (bankrupt/lack funds), the court should make the Sanderson order
and not the Bullock order.
- Under Sanderson order, the court is directly ordering losing Defendant to pay the winning
Defendant’s costs.
● In a situation where both losing defendant and the plaintiff is insolvent, it is too bad for the
winning defendant, he will not get any costs.
7) Costs of interlocutory proceedings
● There are many ways in which a court may deal with costs of the many interlocutory stages of action.
● In that regard, Table in O 59 r1(3) of ROC 2012 had laid down all the terms and their effect used in an
order for costs

i. Reserved costs
Table in O 59 r 1(3) – “costs reserved”
The party in whose favour an order for costs is made at the conclusion of the cause or matter in
which the proceedings arise shall be entitled to his costs of the proceedings in respect of which
this order is made unless the Court orders otherwise.

● Under this order, the question of the incidence and amount of costs is postponed to the end of
the trial.
● So, the questions as to which party is to pay costs and the amount of costs to be paid is
postponed to the end of the trial.

ii. Costs in cause: Plaintiff’s costs in the cause, Plaintiff’s costs in any event, Plaintiff’s costs
- O 59 r 1(3) – “costs in any event”
This order has the same effect as an order for “costs” except that the costs shall be
determined only after the conclusion of the cause or matter in which the proceedings
arise.

- O 59 r 1(3) – “costs in the cause” or “costs in the application”

The party in whose favour an order for costs is made at the conclusion of the cause or the
matter in which the proceedings arise shall be entitled to his costs of the proceedings in
respect of which such an order is made.

- O 59 r 1(3) – “plaintiff’s costs in the cause” or “defendant’s costs in the cause”

The plaintiff or defendant, as the case may be, shall be entitled to his costs of the proceedings
in respect of which such an order is made if judgment is given in his favour in the cause or
matter in which the proceedings arise, but he shall not be liable to pay the costs of any other
party in respect of those proceedings if judgment is given in favour of any party(ies) in the
cause or matter in question.
- O59 r 1(3) – “Costs”

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 Where this order is made in interlocutory proceedings, the party in whose favour it is made
shall be entitled to his costs in respect of those proceedings whatever the outcome of the
cause or matter in which the proceedings arise.

Lord Denning M.R. in J.T. Stratford & Son Ltd. v Lindley No. 2 [1969] 1 W.L.R. 1547
described these orders:
Held : “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.”

iii. Defendants costs in the cause, defendants costs in any event, defendants costs
These have corresponding meanings to (b).

iv. Costs thrown away

O 59 r 1(3) – “costs thrown away”
Where proceedings or any part thereof have been ineffective or have been subsequently set aside,
the party in whose favour this order is made shall be entitled to his costs of those proceedings or
that part in respect of which it is made.

● Costs thrown away are costs awarded to a non-blameworthy party to compensate him for
effort put in and expenses incurred which turn out to be “wasted” because of the
blameworthy party’s conduct.
● The order “costs thrown away” is often made on a successful application to set aside a
judgment obtained in default of the defendant’s appearance or defence, and indicates that
the defendant must pay all the plaintiff’s costs which have been reasonably incurred ...
● If, however, the judgment to set aside was obtained irregularly (by the plaintiff), so that
the defendant was entitled to have it set aside, the defendant will be awarded the “costs
thrown away.”

v. Costs here and below

O 59 r 1(3) – “Costs here and below”
The party in whose favour this order is made shall be entitled not only to his costs in respect of
the proceedings in which it is made but also to his costs of the same proceedings in any lower
Court, tribunal or other body constituted under any written law or in arbitration proceedings.

vi. Costs paid forthwith

O 59 r 1(3) – “Costs paid forthwith”

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 The plaintiff or defendant, as the case may be, shall be entitled to his costs of that part of the
proceedings in respect of which such an order is made, notwithstanding that the cause or matter
has yet to be tried.

vii. Costs of the day

This is not in the schedule but it means costs awarded against a party who makes a successful
application for the postponement of a hearing.

8) Security for costs

O23 r1laid down the grounds where the defendant can apply for security of costs against the plaintiff.

8.1) Security for costs of action

O 23 r 1(1) states the grounds to apply for security for costs:
Where, on the application of a defendant to an action or other proceedings in the Court, it appears
to the Court—
(a) that the plaintiff is ordinarily resident out of the jurisdiction;
(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal
plaintiff who is suing for the benefit of some other person and that there is reason to believe that
he will be unable to pay the costs of the defendant if ordered to do so;
(c) subject to paragraph (2), that the plaintiff’s address is not stated in the writ or originating
summons or is incorrectly stated therein; or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to
evading the consequences of the litigation,

then, if, having regard to all the circumstances of the case, the Court thinks it just to do, it may order
the plaintiff to give such security for the defendant’s costs of the action or other proceedings as it
thinks just.

Basically, there are 4 grounds under O 23 r 1(1) where the defendant can APPLY for the security:
(a) the plaintiff is ordinarily resident out of Malaysia.
(b) the plaintiff is a nominal plaintiff who is suing for other people and he may not be able to pay the
costs of the defendant if ordered to do so.
(c) the plaintiff’s address is not stated or not correctly stated in the writ or originating summons.
(d) the plaintiff has changed his address during the course of the proceedings with a view to evading
the consequences of the litigation,

Purpose: Where a Plaintiff files an action against a Defendant, the Defendant may be of the view
that:
i. the Plaintiff does not have a strong case and
ii. if the Defendant wins the case, the Plaintiff will be unable to pay the Defendant’s costs.

In such a situation, the Defendant may apply for security for costs against the Plaintiff.*117
- Essentially, the Defendant is requesting for the Plaintiff to pay some money as a security for
the Defendant’s costs (which will be payable in the event the Defendant wins the case).

8.2) Non- party

O 23 r 1(2A): (non-party)
117
*The same principle applies with a Plaintiff who is faced with a counterclaim from the Defendant. The plaintiff may
also apply for security for costs against the Defendant.

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Where, on the application of a defendant to an action or other proceedings in the Court, it appears
to the Court that—
(a) a party, who is not a party to the action or proceedings (which is referred to as a “non-party”),
has assigned the right to the claim to the plaintiff with a view to avoid his liability for costs; or
(b) the non-party has contributed or agreed to contribute to the plaintiff’s costs in return for a
share of any money or property which the plaintiff may recover in the action or proceedings,

and the non-party is a person against whom a costs order may be made, then, if, having regard to
all the circumstances of the case, the Court thinks it just to do so, it may order the non-party to give
such security for the defendant’s costs of the action or other proceedings as the Court thinks just.

This order is also a ground for the defendant to apply for security of costs but only applicable to non-
parties:
(a) when the non-party has assigned the right to sue to the plaintiff to avoid his liability for costs
(b) the non-party has contributed or agreed to contribute to the plaintiff’s costs in return for a share
of the reward obtained, if the plaintiff succeeded in recovering them in the proceeding.

8.2.1) Procedure
O 23 r 1(2B):
An application for an order under paragraph (2A) shall be made by a notice of application,
which shall be served on the non-party personally and on every party to the proceedings.

O 23 r 1(2C):
A copy of the supporting affidavit shall be served with the notice of application on every
person on whom the notice of application is required to be served.

8.3) Cases
These cases apply to both O 23 r 1(1) & (2A)
Kasturi Palm Products v Palmex Industries Sdn Bhd [1986] 2 MLJ 310
Facts :The plaintiff firm carries on business in Bangalore, India. Its managing partner, an Indian
national, also resides there. The plaintiff seeks to enforce the award of Arbitration
adjudicated by the Arbitrators in London. The defendants are contesting the legality of the
Arbitration award and are applying for an order requiring the plaintiff to furnish security for
costs before the main application is heard. The question is whether it is just to order security
for costs.
Held :Under Order 23 rule 1, security for costs cannot be ordered as of right from a plaintiff
but only if the Court thinks it just to order depending on the circumstances of the case.
: Secondly, it is material to consider one of the grounds of the defendants in disputing the
plaintiff's main application. It is deposed by the defendant that the enforcement of the
award is contrary to public policy and the laws of Malaysia. The inference here is that the
plaintiff may not have complied with Order 69 rule 6 of the Rules of the High Court, 1980
: In this case, the Judge ordered the plaintiff to deposit $10,000 in Court as security for
costs before the next hearing date.

Faridah Begum v Dato’ Michael Chong [1995] 2 MLJ 404

Facts :The defendant applied under O 23 of the Rules of the High Court for an order for
security or costs to be furnished by the plaintiff on the main grounds that the plaintiff, a
Singaporean,
- was ordinarily resident out of jurisdiction,
- had failed to state her permanent address in Malaysia or in Singapore,
- was a bankrupt and did not have sufficient assets within jurisdiction.
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 -The D also claimed that the P has no genuine case and that the D has a strong prima
facie case against the P.
The plaintiff claimed that she had property in Malaysia and was a director of two local
companies and that as Singapore was listed in the Reciprocal Enforcement of Judgments Act
1958, any judgment could be enforced with ease.
Held :The court ordered the plaintiff to pay RM15,000.00 into court as security for costs. The
mere bankruptcy or impecuniosity of a plaintiff is not a sufficient ground for ordering
security for costs against it. On the other hand, the court is not precluded from ordering
security for costs under O 23 of the RHC merely by reason of the plaintiff's bankruptcy or
impecuniosity.
: In this case, the plaintiff's land was subject to several encumbrances and the two
companies were inactive and had no substantial assets. Although ease of enforcement is a
factor to be considered, enforcement of judgments in Singapore is not automatic and the mere
fact that the plaintiff is resident in Singapore is not a ground for refusing to order security for
costs. Furthermore, the plaintiff's failure to disclose her Singapore address weighed against
her.

Badrul Zaman bin P.S. Md. Zakariah v Mohd Aris bin Chonin [2006] MLJU 340
Facts :The defendants' applied for security for costs against the plaintiff pursuant to Order 23 of the
Rules of the High Court 1980 and pursuant to section 351 of the Companies Act 1965. It was
contended that in the event that this Court ordered the plaintiff to pay costs to the defendants,
the plaintiff may not be able to comply with the said order because the plaintiff has no source
of income and for this reason the defendants' application for security for costs should be
acceded to by this Court.
Held :Order 23 vests the Court with a wide discretionary power to order security for the
defendant's costs if the Court thinks it is just to do so. The discretionary power of the Court
to order security for costs reign supreme.
: In deciding whether it is just to order security for cost, relevant circumstances are to be
taken into account before deciding whether to order security for costs were catalogued. The
relevant circumstances may be stated as follows:
i. whether it appears that the application is made in order to stifle a genuine claim;
ii. whether the order will have the effect of stifling a genuine claim even if that is not the
motive for the defendant's application for security for costs;
iii. whether the application is made at a late stage; and
iv. whether the impecuniosity on the part of the plaintiff has been caused by the
defendant.
: The Court will also have to take into account the likely outcome of the case before
deciding whether to make an order for security for costs. 118In this case, it is just to order
security for costs in favour of the defendants for the following reasons:
i. there was reason to believe that the plaintiff will not be able to pay the
defendants' costs when directed by this Court in the event the plaintiff's case was
dismissed with costs
ii. the address of the plaintiff in his writ of summons and the Amended Statement of
Claim showed the address of a dormant company with no source of income; and,
consequently,
iii. the plaintiff himself has no source of income to flout around
iv. there were 12 civil suits against the Gov of Malaysia that were pending. If the
plaintiff were to lose his case and this Court awards costs to the defendants, the
defendants will find it difficult to enforce the award for costs given the fact that
the address of the plaintiff that was given was not his place of residence but rather the
registered office of his company.
118
cited Porzelack K G v Porzelack (UK) Ltd [1987] 1 All E.R. 1074
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Haidakota (M) Sdn Bhd v Tan Tiam Chai [2009] 1 CLJ 699
Facts :This was the appellant’s appeals against the orders of the High Court directing the appellant
to provide security for costs in actions brought by it against the respondents.
Held : Section 351 of the Companies Act 1965 (‘the Act’) confers a very wide discretion on the
High Court to order a company to provide security for costs in an action brought by it or
against it.
: There are settled guidelines upon which the discretion falls to be exercised:
i. Firstly, the application for security for costs must be made with reasonable
promptitude after the issue of the writ. Delay is a good reason for the court to
exercise discretion against the parties applying for security.
ii. Secondly, an order under s. 351 of the said Act should generally not be made where
the making of it would be oppressive. This is particularly so in a case where the
company has an arguable case.
iii. Thirdly, security for costs should not be ordered where there is absence of any
mala fide on the part of the plaintiff company in bringing its claim. Special
attention should be paid to the balance that should be drawn between exposing an
innocent defendant to the expense of defending a claim against the risk of shutting out
a plaintiff from ventilating a genuine grievance.
: The appellant’s claim against the first set of respondents was based on their alleged breach
of fiduciary duties and against the second set of respondents for their voluntarily assisting in
such breach. The appellant’s claim could not by any stretch of imagination be described as
frivolous and vexatious.
- Its answer to the application for security for costs was that, it found itself in a
financially strained position because of the respondents’ acts and omissions. In
the circumstances, it would be oppressive to require the alleged victim of serious
wrongs committed upon it to be required to furnish security for costs in favour of
those accused of having put the victim in the position in which the victim found
itself.
: Thus, the Court allowed the appeal and set aside the order of High Court.

Summary on the matters to be considered in the exercise of court’s discretion on whether to grant
security for costs:
a) Is P’s claim bona fide? Does he has 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)

A. Co. v K. Ltd [1987] 3 All E.R. 377

Held : While it is possible to make applications for security at a comparatively late stage, it is well
known that the proper time to apply for security is at an early stage, or else there must be
prejudice to the Plaintiff.

Skrine & Co. v MBF Capital Bhd [1998] 3 MLJ 649

Held : Section 351(1) of the Companies Act 1965 provides for a two-stage inquiry in the process
of arriving at the conclusion as to whether security for costs should be awarded in a particular
case in which the plaintiff is a company; ie the court has to determine:
i. whether there is credible evidence; and

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ii. whether that evidence, when found to be credible, supports the belief that the company
will be unable to pay the costs of a successful defendant.

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 Chapter 7: Enforcement of Judgment (Money Judgment)

1) Introduction
● Scenario:
o In 2018, P sued D in the High Court. In 2019, P obtained a judgment in the sum of RM500,000
against D. To date, D has not paid the judgment to P and the judgment sum remain unsettled. What
steps can P take?
o P can commence execution proceedings against D to enforce the judgement. This is called
enforcement of judgment.
● There are various modes/methods of enforcement of a judgment such as writ of seizure and sale,
garnishee proceedings etc.
● The method used to enforce the judgment depends on the asset claimed.
● Enforcement/execution proceedings are separate proceedings from the main action between the Plaintiff
and the Defendant. In enforcement/execution proceedings, the parties are not known as Plaintiff and
Defendant. They are known as Judgment Creditor (JC) and Judgment Debtor (JD).
- The JC (Pemiutang Penghakiman) is usually the Plaintiff cause the JC is a person who is seeking to
enforce the judgment.
- The JD (Penghutang Penghakiman) is the person against whom the judgment was obtained or the
person who has to pay the judgment sum, normally the Defendant.
● Basically, enforcement of judgment is where the judgment sum has not been paid and the P enforce a
judgment against the D to pay the sum.

2) Time Limit
● There is a limitation period for enforcement/execution proceedings.
S.6(3) of Limitation Act
The limitation period for actions to enforce a judgment is 12 years from the date of the judgment.119

Exp: if the P obtained a judgment against the D in January 2000 and after the judgment is obtained in
January 2000, the D failed to pay the judgment sum. Now, the P wants to enforce the judgment, the P
has to take note that there is a limitation of 12 years from the date of the judgment. Since the judgment is
obtained in January 2000, any enforcement of the proceedings must be commenced before January 2012.

● Thus, for all enforcement/execution proceedings, there is a limitation period of 12 years. Any
enforcement proceeding commenced after 12 years will be time barred.
● For a certain type of enforcement proceedings which is by writs of execution, then a leave of court is
necessary before you want to commence the proceedings if 6 years has passed after the date of judgment.

O46r1 & r2(1)(a) ROC:

Where the enforcement/execution proceeding is by any of the writs of execution and 6 years has
passed after the date of judgment, leave from the Court is necessary to commence the proceedings

3) No Execution against the Government

● Generally, execution/enforcement proceedings cannot be commenced against the Government. In other
words, if the Government fails to satisfy a judgment sum, its assets cannot be seized to settle the
judgment sum.

119
same goes to Sabah Limitation Ordinance and Sarawak Limitation Ordinance - 12 years from the date of the
judgment. Prof Chong: “I think the limitation for both Acts are not absolute, ie the debtor has to raise it as defence”
116 | Page
 s. 33(4) Government Proceedings Act 1956
No Court shall enforce a judgment against the Government to make any payment, and no person shall be
individually liable under any such order. 120

3.1) Exception
● The first exception is garnishee proceeding. Under s.35 of the Government Proceedings Act,121
garnishee proceedings is allowed against the govt to execute a judgment but this is subject to
conditions.
- Garnishee proceedings a process of enforcing a money judgment by the seizure or
attachment of debts due or accruing to the judgment debtor that form part of his property
available in execution. As such, it is a species of execution upon debts, for which the ordinary
methods of execution are unavailable.
● The second exception is judicial review for a judgment sum under S33(1).
Minister of Finance, Government of Sabah v. Petrojasa Sdn Bhd
Fact : The respondent had obtained a certificate of judgment sum and order for costs pursuant to s
33(1)122 of the Government Proceedings Act (GPA) against the State Government of Sabah
for breach of an agreement but the gov did not make payment as required by the certificate.
So, the respondent filed a judicial review for an order of mandamus pursuant to O 53 of the
Rules of the High Court 1980 against the state gov. The issue was whether judicial review
proceedings may be taken against the gov to compel payment of a judgment sum.
Held : Under s 33(4) of the GPA, there cannot be any enforcement of money judgment against the
government except as provided in s33(1). Under s 33(1) of the GPA, once a certificate is
issued and duly served on the government, the government is obligated to make the necessary
payment. This is because the Government had a statutory duty under s 33(3) of the GPA to
pay the amount as certified.

So, the only method to recover a sum from the gov is by the issue of the certificate under
s33(1), as ordinary execution proceedings are not available against the government.
Furthermore O 73 r 12(1) of the RHC provided the general policy that proceeding for
enforcements do not lie against the government.

120
S35(4): Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any
court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be
individually liable under any order for the payment by the Government or any officer of the Government as such, of
any such money or costs.

121
S35(1): Where any money is payable by the Government to some person who, under any order of any court, is
liable to pay any money to any other person, and that other person would, if the money so payable by the Government
were money payable by a subject, be entitled under rules of court to obtain an order for the attachment thereof as a
debt due or accruing due, or an order for the appointment of a sequestrator or receiver to receive the money on his
behalf, the High Court may, subject to this Act and in accordance with rules of court, make an order restraining the
firstmentioned person from receiving that money and directing payment thereof to that other person, or to the
sequestrator or receiver.

122
S33(1): Where in any civil proceedings by or against the Government or in any proceedings under Chapter VIII of
the Specific Relief Act 1950, or in any such proceedings as would in England be brought on the Crown side of the
Queen’s Bench Division, or in connection with any arbitration to which the Government is a party, any order (including
an order for costs) is made by any court in favour of any person against the Government or against an officer of the
Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that
person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for
the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the
later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the
court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the
applicant.
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 : However, although ordinary execution proceedings are not available against the
government under s 33(4) of the GPA, these execution proceedings are only limited to
the type of 'execution or attachment' as set out in O 45 to O 52 of the RHC and do not
include judicial review proceedings. Since judicial review could lie against a Minister, the
appellant in this case being the Minister in charge of financial matters is naturally responsible
for the payment of the judgment sum.

4) Enforcement of Money Judgments under Rules of Court 2012

● There are 2 types of judgment obtained by a Plaintiff, it can be a money judgment or a non-money
judgment.
Money judgment : where the judgment is for a sum of money.
Non-money judgment : where the judgment is for a declaration, injunction, order of specific
performance.

4.1) Money Judgment

● Before commencing enforcement of judgment proceedings, it is crucial for the Judgment Creditor to
find out the type of assets that the Judgment Debtor has.
● Only when the Judgment Creditor knows the type of assets that the Judgment Debtor has, the
Judgement Creditor can determine the appropriate mode of enforcement proceedings to
commence against the Judgment Debtor.

4.2) Mode of Enforcement of a Money Judgment

There are 5 modes (each of these will be elaborated further in heading 6 - 9):
No. Mode Used when the assets of the Notes
JD are in the form of…
1 Writ of Movable & immovable ● Governed by
seizure and property. O46: Writs of execution: General
sale - Movable property = cars, O47: Writs of seizure and sale
jewelries, laptop, T.V. … ● Under this method of enforcement of
- Immovable property = proceedings, the assets of the JD will be
land, buildings… seized and then sale, the proceeds of the
sales will be paid to the JC to settle the
judgment sum.
2 Garnishee “money or debt” due to the ● Governed by
proceedings JD which is in the hands of a O49 : Garnishee proceedings
third party. ● Exp: Where the JD has money in a bank.
So, if JC know that the JD has assets and
the assets is in the form of money in a
saving account. To enforce judgment
against this type of asset, needs to
commence in garnishee proceedings.

3 Charging securities such as shares, ● Governed by

order stocks, bonds, debentures. O50: Charging orders, stop orders
● Where the JC knows the JD has assets in
the form of shares or stocks, then the
correct modes to use is the charging
order.
● This charging order will freeze the
shares and then for those shares to be

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 sold, and the proceeds of the shares will
be paid to the JC to settle the judgment
sum.

4 Appointment varying income such as ● Governed by

of receiver royalties, business profits O30: Receivers
● Varying incomes = uncertain amount in
uncertain period, ie the income comes in
various time and in various amount.

5 Where O45r5 This is used when JD failed to ● Governed by

applies, an obey an injunction/a direct O45r5; Enforcement of judgment and
order of order of the court to do or not orders
committal. to do an act
(Not really
covered in
this Semester)

5) Discovery in Aid of Execution

● Before the mode of execution can be ascertained, it will be necessary for the Judgment Debtor’s assets to
be determined by the Judgment Creditor.
● In a lot of cases, the JC may not know exactly what are the JD’s assets.
● However, there are procedures/mechanisms to facilitate a JC to find out what are the JD’s assets.
● These mechanisms are called Discovery in Aid of Execution.
● There are 2 mechanisms that facilitate discovery in aid of execution:
i. Examination of judgment debtor under O48; and
ii. Judgment Debtor Summons (JDS) under s.4 Debtors Act 1957 read together with O74 r11A.
● Under both of these mechanisms, the JD will be summoned to appear in court and while he is in court,
the JD will be examined under oath, then the JD will be asked to disclose the nature and the whereabouts
of all his assets.
● The JD may also be asked to produce documentation to state what are his assets.

5.1) Examination of JD under O48

O48r1
(2) Where a judgment debtor has be order to make a payment, the Court may, on an application made
ex parte by a notice of application supported by an affidavit in Form 95 by the Judgement creditor,
order the judgment debtor, or, if the judgment debtor is a body corporate, an officer thereof, to
attend before the Registrar, and be orally examined on the questions -
(a) whether the judgment debtor has any and what debt owed to the judgment debtor; and
(b) whether the judgment debtor has any and what other property or means of satisfying the
judgment or order,
and the Court may also order the judgment debtor or officer to produce any books or documents in
the possession of the judgment debtor relevant to the questions aforesaid at the time and place
appointed for the examination.
● This examination is only to facilitate the discovery of the JD’s assets to know what exactly are the
JD’s assets. No order can be made by the court to compel the JD to pay the judgment sum

5.2) JDS under s.4 Debtors Act 1957 read together with O74r11A

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 ● After the JD discloses his assets, the court can make an order compelling the JD to pay the judgment
sum, either in a lump sum or in a number of instalments. See s.4(6), (7) and (8) of Debtors Act
1957:
S.4
(6) : Upon the examination of JD or non-appearance on such examination, the court may order the
judgment debtor to pay the judgment debt either
(a) in one sum whether forthwith or within such period as the court may fix; or
(b) by such instalments payable at such times as the court may fix
(7) : If the judgment debtor makes default in payment according to any such order, a notice in the
form prescribed by rules of court may be issued, on the request of the judgment creditor, calling
upon the judgment debtor to attend before the court at a time therein stated and show cause why
he should not be committed to prison for such default.
(8) : Any such notice shall be personally served upon the judgment debtor; and if, on the day so
named, or on any subsequent day to which the matter may be adjourned, no sufficient cause is
shown by the judgment debtor, the court may commit him to the civil prison for a term which
may extend to six weeks or until earlier payment of any instalment or instalments or other sum
due.

6) Writ of Seizure and Sale

● As mentioned, this is used as a method of enforcement if the JD has assets in the form of immovable
property or movable property.
● The writ is provided under Forms 84 and 85depending on the property being seized:
o Form 84 : movable property
o Form 85 : immovable property

6.1) Procedures
● Governed by O46 r1-6
● When a JC wants to enforce his judgment by writ of seizure and sale, the first thing to ask is “Is
leave required?”

i. When is leave is required?

● Leave will be required when the case falls under any of these 5 situations under O46r2(1):

O46r2(1):
A writ of execution to enforce a judgment or order may not be issued without the leave of the
Court in the following cases:
(a) when the date of the judgment has lapsed for 6 years or more;
(b) when any change has taken place to the JC or JD, whether by death or otherwise,
(c) when the judgment is against the assets of a deceased person coming to the hand of his
executors/ administrators after the date of the judgment or order, and it is sought to issue
execution against such assets;
(d) when under the judgment, any person is entitled to relief subject to the fulfilment of any
condition which it is alleged has been fulfilled; and
(e) when any movable property sought to be seized under a writ of execution is in the hands
of a receiver appointed by the Court.

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 ● If a case falls under any of these 5 circumstances applied, then leave will be required if the JC
wants to issue a writ of seizure and sale.
● In such a case, the JC must apply for leave to issue a writ by filing an ex parte notice of
application in Form 88 supported by an affidavit (refer to O46r3(2) for Requirements of
affidavit)
● After leave is obtained, writ of seizure and sale can be issued (but the JC must still fill up
Form 89 and comply with O 46 r 4, which will be explained more below)

ii. Where leave is not required or when leave is already obtained

● This stage is applicable to both situations when no leave is required or when leave is
required but it is already granted.
● In these cases, writ of seizure and sale can be issued straightaway.
● Such issuance of writ of seizure and sale is merely administrative i.e. there is no need to
make an application to court to issue it.
- The JC will have to complete Form 89123 and the JC must file it together with required
documents (as laid down in O 46 r 4, so that the writ can be sealed).
- Once these are completed, the Court will seal the writ and issue the writ of seizure and
sale.
● Once issued, the writ of seizure and sale is valid for 12 months beginning with its date of
issue [O 46 r 6(1)].

6.2) Ways to enforce judgment for movable and immovable properties

i. Movable Property
When the JC has obtained a writ of seizure and sale against the movable property, how is the
enforcement done?

1. The execution is to be conducted by the Sheriff. The Sheriff here is known as the Court
Bailiffs. – (O46 r14-21: Duties of Sheriff or bailiff)
- In practice, the execution is done by the Court Bailiffs not the JC. The Bailiffs will
go to the JD’s premises, and start to seize and sale the JD’s assets.
- There are certain items that cannot be seized to satisfy the judgment sum (proviso of
S.3 of Debtors Act provides a long list of unseizable items)
- O46 r15 : the execution (seizing of assets) must take place between 9.00 am and
4.00pm., unless the Sheriff thinks otherwise.

2. After seizure, Sheriff will sell the items at a value to be determined by the Registrar.
O46 r24 : Where the value of the items exceeds RM10,000, the sale must be conducted
by a licensed auctioneer.

3. After the items has been sold, the proceeds of the sale will be paid to the JC to satisfy the
judgment sum.

ii. Immovable Property

This is governed by O47 r6 and 7124:

1. when the court issues a writ of seizure and sale in Form 85, the JC will also have to apply
to obtain a prohibitory order (PO) from the Court.

123
praecipe for writ of execution
124
too long to be included the whole provision here.
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 - To successfully enforce a judgment under writ of seizure and sale for immovable
property, JC needs 2 things:
a) Form 85; and
b) A prohibitory order from the court. (to avoid the JD from dealing with the
property)

2. the prohibitory order must be registered with the appropriate land authority.
3. after the prohibitory order is registered, then the prohibitory order must be served on the
JD. Prohibitory order has a lifespan of 6 months only.
4. During these 6 months, the JC must register the PO and served the PO on the JD and the
JC must apply to court for an order for sales of land.
- To apply for an order for sale of land, the Registrar will draw up particulars for the
sale of the land and these particulars will be submitted to the Judge for approval.
- a hearing date will be fixed and the purpose of the hearing date is to decide whether a
court should grant an order for sale of the land.
- At least 2 days before the hearing, a notice should be given to all the parties about
the hearing before the judge.
5. On the day of the hearing, the JC and JD will attend court. On the hearing, the court will
decide whether it should make an order for sale of the land.
- Once the court is satisfied, the court will order for sale of the land.
6. Once the court has made an order for sale of the land, after that the Registrar will carry
out the sale in accordance with the particulars that were approved by the judge.
7. Once the land has been sold, the proceeds of the land will be given to the JC to settle the
judgment sum.

7) Garnishee Proceedings (GP)

● As mentioned, GP is used as a mode of enforcing a judgment when the JD’s asset is in the form of
money and that money is due/payable, accruing due to the JD and the money is being held in the
hands of a third party.

O49 r1.: Attachment of debt due to judgment debtor

(1) Where a JC has obtained a judgment for the payment of money by a JD, and any other person
within the jurisdiction (who is referred to as “the garnishee”), is indebted to the JD, the Court
may order the garnishee to pay the JC the amount of any debt due or accruing due to the JD
from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the
costs of the garnishee proceedings.
(3) “any debt due or accruing due” includes a current or deposit account with a bank or other
financial institution, whether or not the deposit has matured and notwithstanding any restriction
as to the mode of withdrawal.

● In GP, there are 3 parties,

1. The garnisher : the person who has taking steps to garnish the money which is due to the JD.
In other words, the garnisher is the JC.
2. The garnishee : the person who is holding the money which is due or accruing due to the JD.
The garnishee would be the bank, the insurance company or X.
3. The JD.

● Scenario:

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First scenario:
▪ The judgment sum is for RM200K. This JD has money in a fixed deposit account in a bank. The FD
account has money in an amount of RM100k. This is the money which is due or accruing due to the
JD.
▪ This money is in the hand of third party, the bank.
▪ This is the kind of asset which the JD had. For this kind of asset, the JC has to commence GP to
enforce the judgment against this asset.
Second scenario:
▪ Judgment sum of RM250k. this is not settled. The JD has an insurance policy under an insurance
company, and the amount is RM100k.
▪ This RM100k is the money which is due to the JD. And this money is in the hand of third party, the
insurance company.
▪ If the JC wants to enforce judgment against this asset, GP has to be commenced to enforce the
judgment against this money.
Third scenario:
▪ Judgment sum of RM150k. The JC has found out that there is a person, X. And X owes the JD
money in the amount of RM100k. This debt which is owing by X to the JD, this is money which is
due/accruing due to the JD. This money is in the hand of third party, X.
▪ Again, if the JC wants to enforce judgment against this asset, GP has to be commenced.

7.1) 3 Conditions to satisfy before commencing GP

There are 3 Conditions to satisfy before commencing GP:
1. Money that is to be garnished must be the sum that can be calculated with precision. – O49r1(1)
2. The sum to be garnished must be already due or accruing due to the JD. This means that JC
cannot garnish money which is supposed to be paid to the JD on a future date.
3. The money to be garnished must be within the jurisdiction - O49r1(1).

7.2) Procedures involved in GP

There are 2 stages.

i. Application for order to show cause/Show cause stage

a. The JC must first apply for a show cause order in Form 97. O49 r1(2)
b. The application for show cause order must be done by an ex parte notice of application
supported by an affidavit. The affidavit must comply with Form 98 (O 49 r 2)
c. Once the show cause order obtained, the Court will fix a hearing date for the next stage, ie
the further consideration stage.
- At the bottom of the show cause order, a date will be fixed for the next stage. The date is
the hearing date for the next stage.
- The show cause order must be served personally on the garnishee and JD, at least seven
days before the hearing date (O 49 r 3(1))
- Effect of service of the show cause order – once the show cause order is served
personally on the garnishee, the money in the hands of the garnishee is ‘frozen’ (O 49 r
3(2))

ii. Further Consideration Stage

a. On the date fixed for hearing, all parties (JC/garnisher, garnishee and JD) will appear in court

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 b. The purpose of the hearing is for court to consider whether an order absolute should be
made.
- An order absolute means the money in the hands of the garnishee must be paid to
the garnisher/JC immediately.
c. Possibilities that may take place in the hearing:
Scenario Outcome
If the garnishee does not attend or the court will make an order absolute to the
attends but does not dispute the debt garnisher. – O49 r4(1)
If the garnishee attends and objects the court must decide whether the objection can be
the debt disposed off summarily or the matter needs to be
resolved at a trial – O49 r5
A third party may also attend and In such a case, the court must also decide whether
object by claiming he has an interest the objection can be disposed of summarily or the
in the money to be garnished. matter needs to be resolved at a trial - O 49 r 6.

d. Rights of set off for garnishee: [To be discussed in tutorial]

A garnishee can set off against JD but cannot set off against JC

7.3) Can a GP be commenced against the Government?

● If the govt. owes money to a JD, or the govt is holding money which is due to a JD, can a GP be
commenced against the Govt.? (Take Note: The Govt. is not the JD, the govt is actually the intended
garnishee which is due to the JD.)
● As a general rule, execution proceedings cannot be made against the govt. – S.33 of Government
Proceedings Act.
● Under s.35(3) of Government Proceedings Act, it suggested that a GP is allowed against a Govt. if
certain conditions are fulfilled:
i. If the money to be garnished is in the hands of the Federal Govt. then the consent of the
Minister of Finance must be obtained
ii. If the money to be garnished is in the hand of the State Govt, then the consent of the Chief
Minister needs to be obtained.

7.4) Certain Types of Money that cannot be Garnished

There are 4 types of Money that cannot be Garnished:
No Type of money Note
1 Pensions Section 19 of the Pensions Act 1980:
If the JD is a pensioner, then the JC cannot garnish the JD’s pensions
subject to 3 exceptions:
(a) if the JC/ Garnisher is the Govt; or
(b) if the JC/Garnisher is the pensioner’s wife or a former wife or a
minor child (whether legitimate or not), and the purpose of the
garnishment is for maintenance.
(c) When the Court made an order against the pension for bankruptcy
matter.

2 Wages of a Section 142(1) of the Merchant Shipping Ordinance 1952:

seaman/sailor The salary or wages of a seaman/sailor cannot be subject to GP.

3 Money payable Section 11 of the Workmen’s Compensation Act 1952:

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 as compensation If any money has to be paid as compensation for any injuries that had
for any injuries suffered by the workmen, that money cannot be subject to GP.
that had suffered
by a workmen.
4 Money in Section 51 of the EPF Act 1991:
Employees Money in EPF cannot be garnished.
Provident Fund
(EPF).

8) Charging Order (O.50)

● Governed by O.50
● The charging order only applies to securities which includes stocks, shares, debentures, government
bonds, dividend or interest payable of such stocks etc. – O50 r2(3)
8.1) Procedures
Similar to GP, a charging order involves a 2-stage process.

i. First stage: Show cause stage

a. The JC needs to apply for a show cause order in Form 102. The show cause order is applied
for by filing an ex parte notice of application supported by affidavit
b. At the hearing, the judge will hear from the JC only, then the court will decide whether to
grant a show cause order to the JC
c. Once the show cause order is obtained, a hearing date for the next stage, i.e. the further
consideration stage will be fixed.
- The show cause order will have to be served on the JD and on the company where the
shares are held.
- The effect of service of the show cause order on the JD and the company concerned –
stop all dealings of the shares. [O50 r5]

ii. Second stage: Further Consideration Stage [O50 r6]

a. At the hearing date which was fixed, all the parties (JD, JC, representatives of the
company/institution in which the shares are held, official of the govt.) are supposed to appear
before the court.
b. The purpose of the hearing is for the court to decide whether an order absolute should be
made. If the court grants an order absolute, the shares in that company/institution will be
charged in favor of the JC.
c. At this stage, just like the procedures in GP, there are 2 possibilities that may take place:
Scenario Outcome
If there are objections raised If there is objection, the court will have to decide if the
by the JD, or very unlikely, objections should be dealt with summarily or order a trial to
by the company or a third resolve the objection.
party against the granting of
the order absolute
If there is no objection the court will make an order absolute.

O. 50, r. 6:
(1) On the further consideration of the matter the Court shall, unless it appears that there is
sufficient cause to the contrary, make the order absolute with or without modifications.
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 (2) Where on the further consideration of the matter it appears to the Court that the order
should not be made absolute it shall discharge the order.
8.2) Sale of Securities Charged
● Once the shares are charged in favor of the JC, if the JC wants to sell the shares, another order of the
court is required.
O50 r6(3) : Such proceedings to sell the securities shall not be taken until the date of the order to
show cause has been made for more than 6 months.

9) Equitable Execution by Appointment of a Receiver (O.30)

● This is used when the JD has assets which is in the form of income which varies in amount and in
time.
● In such case, the JC can appoint a receiver to receive the JD’s income and once the receiver has collected
a sufficient amount of income, it will be used to settle the judgment sum. This income received will then
be passed to the JC as satisfaction of the judgment sum.
● Under O30 r2, The court will usually require security from the receiver (to prevent absconding by
receiver)
● Exp of income that varies in amount and in time:
o Royalties from books;
o Royalties from records;
o Profits of a business; or
o Profits of a partnership.

9.1) When is this mode of enforcement applicable?

This mode of enforcement is only applicable in 2 situations:

1st situation : The JD’s income must be a future income and it must be received in uncertain
amounts and over uncertain periods. So, a receiver is appointed only in a situation
like this.

2nd situation : No other mode of execution is possible/applicable. Appointment of a receiver is a

very expensive mode. The receiver will charge an expensive fee, that is why the court
will ask is there no other ways to execute the judgment before appointing a receiver.

9.2) Procedures
O30 r 1: Application is made by notice of application either ex parte or inter partes

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 Chapter 8: Enforcement of Judgment (Non-Money Judgment)

1) Introduction
There are 2 modes of enforcement of non-money judgment:
i) For Immovable property: Writ of Possession (O. 45 r. 3)
This is used for immovable property and the Plaintiff has obtained a judgment or order giving him
possession of immovable property.

O45 rule 3: Enforcement of judgment for possession of immovable property

(1) A judgment or order for the giving of possession of immovable property may be enforced by
one or more of the following means:
(a) a writ of possession;
(b) in a case in which rule 5 applies, an order of committal.

Leong Ah Weng v Neoh Thean Soo [1983] 2 MLJ 119

Facts : The respondents brought an action against the appellant for possession of land leased to
him. The appellant joined issue on the claim but at the hearing a settlement was reached and a
consent order made. The consent order provided that the respondents would grant a lease of
the land to the appellant from March 16, 1978 and expiring on September 15, 1981. The
appellant failed to give possession of the land on the specified date of its expiry. The
respondents applied for leave to issue a writ of possession and this was granted by the learned
Judicial Commissioner in the High Court. The appellant appealed. They appealed that the
consent order did not contain an order for possession nor was any order for possession
applied for.
Held : there were no order for possession on the expiry of the lease which is a prerequisite for its
enforcement by a writ of possession as required by Order 45 rule 3(1)(a) of the Rules of the
High Court 1980, and the learned Judicial Commissioner therefore could not and should
not have given leave to issue a writ of possession in this case.

Enforcing the judgment- Issuance of writ of possession

▪ What if the Defendant does not deliver possession of the land to the Plaintiff? The
Plaintiff may issue a writ of possession in Form 87 or 87A (command to Sheriff to enter
the land and take possession of it).
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 ▪ To issue a writ of possession under Form 87 or 87A, leave of court is required.
Order 45 Rule 3(2)
: A writ of possession to enforce a judgment or order for the giving of possession of any
immovable property shall not be issued without leave of the Court except where the
judgment or order was given or made in a charge action to which Order 83 applies.

▪ What must be shown in order to obtain leave?

Order 45 Rule 3
(3) : Such leave shall not be granted unless it is shown that every person in actual
possession of the whole or any part of the immovable property has received such
notice of the proceedings as appears to the Court sufficient to enable him to apply
to the Court for any relief to which he may be entitled.
(4) : A writ of possession may include provision for enforcing the payment of any
money adjudged or ordered to be paid by the judgment or order which is to be
enforced by the writ.

▪ Is it compulsory to use O. 45 r. 3 to enforce judgment of possession of immovable

property?
Mas Anita Abdullah v Lew Wai Koung (No 2) [2013] 8 MLJ 815 HC
Held : O. 45 r. 3 uses the word ‘may’ and not ‘shall’. This means that there may be
more than one or two ways provided in O. 45 r. 3(1) for the defendant to
enforce the judgment for possession of his immovable property. It is therefore
open to the party to elect whether to enforce the judgment under O. 45 r. 3 or
by other means. On the facts of the present case, the defendant elected to
proceed under s. 234(2) NLC.

ii) For Movable property: Writ of Delivery (O. 45 r. 4)

O. 45, r. 4: Enforcement of judgment for delivery of movable property
(1) A judgment for the delivery of any movable property which does not give a person against
whom the judgment is given the alternative of paying the assessed value of the property may
be enforced by one or more of the following means:
(a) a writ of delivery to recover the property without alternative provision for recovery
of the assessed value thereof (which is referred to as a “writ of specific delivery” in this
rule);
(b) in a case in which rule 5 applies, an order of committal.
● This is used for movable property and the Plaintiff has obtained a judgment for the delivery of
movable property i.e. the judgment is an order by the court directing the Defendant to deliver
movable property to the Plaintiff.

Enforcing the judgment

● What if Defendant does not deliver the movable property to the Plaintiff?
● O. 45 r. 4 (2) provides for the means of enforcing a judgment for the delivery of any
movable property.

O. 45, r. 4(2):
A judgment for the delivery of any movable property or payment of their assessed
value may be enforced by one or more of the following means:
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 (a) a writ of delivery to recover the property or its assessed value;
(b) with the leave of the Court, a writ of specific delivery;
(c) in a case in which rule 5 applies, an order of committal.

a) Writ of delivery
- For writ of delivery, the Plaintiff may issue a writ of delivery in Form 86 or 86A
(command for the Sheriff to seize the movable property concerned and to deliver it to
the Plaintiff).
- For this option, leave is not necessary and the execution creditor may proceed to
issue a writ of specific delivery without first obtaining the assessed value of the
movable property. Hymas v Ogden [1905] 1 KB 246 CoA

b) Writ of specified delivery

- For a writ of specific delivery, it may only be issued with leave of the court.
- An application for such leave should be made by notice of application which must be
served on the defendant. The court has a discretion on whether to grant such a leave.
o Whiteley Ltd v Hill [1918] 2 KB 808 CoA
o Cohen v Roche [1927] 1 KB 169

2) Enforcement of Foreign Judgments

There are 2 procedural modes of enforcing a foreign judgment:
i. Enforcement under Common Law; and
ii. Enforcement under the Reciprocal Enforcement of Judgment Act 1958.

2.1) Enforcement under Common Law

● This is a common and important mode of enforcing foreign judgments in Malaysia.
● Under this mode, a JC with a foreign judgment has to commence a fresh action in the Malaysian
courts to sue the JD on the foreign judgment, treating the judgment sum as a debt owed by the JC.
▪ This means that the foreign JC commences a local action against the JD and the cause of
action is that the foreign judgment sum is a debt due from the JD to the JC.
▪ This is commonly referred to as an action upon a judgment.
▪ The JC would file a writ action in court, then proceed to apply for summary judgment against
the JD.

a. Mode of commencement the action

● Must the JC commence action through a writ or OS? Generally, most cases held that it
must be OS.
Delta Design Décor LLC v Pembinaan SPK Sdn Bhd [2015] 5 CLJ 509
Held : The enforcement of foreign judgment under Common Law must be made by OS.

Sardul Singh v Man Mahan Singh [2017] MLJU 1945

Held : The enforcement of foreign judgment under Common Law must be made
through OS and not writ. Wrong mode commencement is fatal.

● However, Judge Ravi Nekoo disagreed. He relyied on O. 2 and opined that it

is just an irregularity, not a nullity. He concluded that such an actiion may be

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 made through both OS and writ. However, if by writ, then an application for
summary judgment may be applied as in happened in See Hua Daily.125

b. Conditions to use this mode of commencement

There are 3 conditions to enforce a foreign judgement under this mode:
i. the foreign court must have had jurisdiction;
ii. the foreign judgment must be a final judgment and not an interlocutory judgment;
and
iii. if it was a personal action, the judgment must be for a fixed sum of money.

c. Defences that a JD may raise in an action upon a the commencement of action

Once the JC commenced an action, the JD may relied on these grounds of defences:
i. The foreign court which delivered judgment had no jurisdiction in the case;
ii. The foreign judgment was not a final judgment;
iii. The foreign judgment was obtained by fraud;
iv. The foreign court proceedings had breached the rules of natural justice; and
v. The foreign judgment obtained was against public policy.

d. Effect of a successful action upon a judgment

Once the JC obtains a judgment from the Malaysian court against the JD, that judgement can
be enforced like a local judgment

2.2) Enforcement under the Reciprocal Enforcement of Judgment Act 1958 (REJA)
● Money judgments granted by courts of some foreign jurisdictions are enforceable in Malaysia under
REJA.
● REJA provides for the enforcement of the foreign judgment by way of registration of the foreign
judgement in the Malaysian High Court. Once the foreign judgement is registered in the Malaysian
High Court, it may be enforced in Malaysia as if the judgment had originally been given in a
Malaysian Court.126
Standard Chartered Bank (SG) v Pioneer Smith [2015] 7 CLJ 677
Held : The raison d’ etre127 of the reciprocity arrangements on foreign judgments is
precisely to deal with situations where the debtors/defendants seek to evade
enforcement of judgments in the jurisdiction of the original court.

● Currently, REJA applies only to judgments obtained from the UK, Hong Kong, Singapore, New
Zealand, Sri Lanka, India and Brunei.

a. Conditions to register a foreign judgment under REJA:

There are 4 conditions (under S3 & 4 REJA) to fulfill:
Section 3(3) REJA : a foreign judgment may be registered if
(a) It is a final and conclusive judgment between the parties,
S3(4): Even if the judgment is pending appeal or appealable, it is still considered final. 128
(b) It is a monetary judgment
125
See Hua Daily v Tan Thien Chin [1985] 1 LNS 131: In this case, the plaintiff filed a writ and then made an
application for summary judgment.

126
REJA 1958 recognises strict reciprocity, which means the registration is only permitted to a foreign judgment if that
foreign country concerned also allows a Malaysian judgment to be registered in the same manner in that country.
Hence there must be a ‘reciprocal’ arrangement between Malaysia and the country concerned.

127
the most important reason or purpose for someone or something's existence.

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 (c) It is a foreign judgment from countries found in Schedule 1 REJA (UK, Hong Kong etc)

s. 4(1): The application must be made to the HC in M’sia within 6 years from the time the
judgment was issued by the foreign court.

b. Circumstances when the registration of the foreign judgment will not be allowed:
Section 4(1) REJA: Registration of the foreign judgment will not be allowed when:
(a) if the said judgment has not been wholly satisfied;
(b) if the said judgment cannot be enforced by execution in the country of the original
court.

c. Procedure to apply for registration of a foreign judgment in court (O 67)

No. Steps Elaboration
1 Apply to register the O. 67 r. 2 : Application for registration
forging judgment by An application to register a foreign judgment under s4
an OS REJA must be made by way of an OS.

O. 67 r. 3 : Evidence in support of application

The application must be supported by an affidavit.

2 Once the court O. 67 r. 5(1) : Order for registration

allowed the once court gives leave to register the foreign document,
registration, serve 2 the judgment creditor shall draw up the order in accordance
things: with Form 143, and be served on the judgment debtor.
i. the registration
order in Form O. 67 r. 7: Notice of registration
143 (1) : a notice of registration of the foreign judgment
ii. a notice of shall be served on the JD personally unless the court
registration orders otherwise.
(3) : the notice shall contain the following details:
(a) the particulars of the judgment registered and
the order for registration;
(b) the name and address of the JC or of his
solicitor;
(c) the right of the JD to apply to have the
registration set aside; and
(d) the period within which an application to set
aside may be made.

d. Application to set aside registration of foreign judgment

● There are 3 sections which provide for the grounds to set aside the registration of foreign
judgment:
i. S5(1)(a) REJA
ii. S5(1)(b) REJA
iii. O. 67 r. 9 (3)

i. Ground one
128
Section 3(4) REJA: a judgment shall be deemed to be final and conclusive notwithstanding that an appeal is
pending against it or even if it is appealable, but no appeal has been lodged in the country of the original court
which issued the judgment.
131 | Page
 S. 5(1)(a) REJA
: a registered foreign judgment may be set aside in these circumstances:
(i) The judgment is in contravention of REJA;
(ii) The court of original country had no jurisdiction; (refer to S5(3) when the
Court is considered having no jurisdiction)
(iii) The JD did not receive notice of those proceedings in sufficient time to enable
him to defend the proceedings and did not appear;
(iv) The judgment was obtained by fraud;
(v) The enforcement of the judgment would be contrary to public policy in
Malaysia; and

Ritz Carlton Casino Ltd v Datuk Seri Osu Haji Sukam

Fact : The defendant gambled in Australia and was indebted to the plaintiff
casino. The plaintiff casino obtained judgment in Australia and the
defendant returned to Malaysia. So the plaintiff commended an action
in Malaysia to enforce the Australia judgment.
Held : The judgment cannot be enforced in Malaysia because gambled is
against religion and Rukun Negara. Thus, to enforce the judgment
would mean the Court are recognising something against religion and
Rukun Negara, which is deemed against public policy129
(vi) The rights under the judgment are not vested in the person by whom the
application for registration was made.

▪ Section 5(3) REJA130: circumstances when the courts of the country which had
issued the judgment shall not be deemed to have jurisdiction

ii. Ground two

S. 5(1)(b) REJA:
A registered foreign judgment may also be set aside if before the original Court 131
decided on the case, another Court from another jurisdiction having jurisdiction in the

129
Ritz Carlton Casino Ltd v Datuk Seri Osu Haji Sukam [2005] 6 MLJ 760:
Held: It is universally recognised that gambling is evil and against the teaching of religion. 'Belief in God', one
of the principles in the Rukun Negara must mean believing and following the teachings of the religion.
Although gambling was allowed under license in Malaysia but it was to prevent it from being run by the
underworld and it was not that it was something that was good. Anything that seeks to go against the Rukun
Negara must surely be regarded as against public policy.

130
Section 5(3) REJA:
Notwithstanding anything in subsection (2), the courts of the country of the original court shall not be deemed to have
had jurisdiction—
(a) if the subject matter of the proceedings was immovable property outside the country of the original court;
(b) except in the cases mentioned in subparagraph (2)(a)(i), (ii), (iii) and paragraph (c), if the bringing of the
proceedings in the original court was contrary to an agreement under which the dispute in question was to be
settled otherwise than by proceedings in the courts of the country of that court; or
(c) if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of
public international law was entitled to immunity from the jurisdiction of the courts of the country of the original
court and did not submit to the jurisdiction of that court.
131
original court = the court which issued the judgment which the plaintiff wishes to register in Malaysia. For exp, if a
case had been decided by UK and the plaintiff is not satisfied with the decision, the Plaintiff sued the defendant in
Hong Kong for the same subject matter. In this case, if the Hong Kong Court (the original court) decided in favour of
the plaintiff, the plaintiff can’t register the judgment in Malaysia (the registering Court) because another court from
other jurisdiction (the UK Court) had decided on the matter.

132 | Page
 case had decided and had a final & conclusive judgment on the same subject matter of
the case (refer to 5(2) on when a Court is deemed having jurisdiction on the case)

▪ Section 5(2) REJA132: Circumstances when the original court of the country
which had issued the judgment is deemed to have jurisdiction.

iii. Ground three

O. 67 r. 9
(3) : the court may order the setting aside of the registration of the foreign judgment if
the court is satisfied that:
(a) the judgment falls within any of the cases in which a judgment may not be
ordered to be registered under s. 3(2) REJA; or
(b) it is not just or convenient that the judgment should be enforced in M’sia; or
(c) that there is some other sufficient reason for setting aside the registration.

● Other particulars about setting aside the registration of foreign judgment:

O. 67 r. 9(1) : application to set aside shall be made by notice of application
supported by an affidavit.

Commerzbank (South East Asia) Ltd v Tow Kong Liang [2002] CLJ 95
Held : When considering an application to set aside the registration of a foreign
judgment, the court will not review the decision of the foreign court in arriving
at its judgment.

132
Section 5(2) REJA:
For the purposes of this section the courts of the country of the original court shall, subject to subsection (3), be
deemed to have had jurisdiction—
(a) in the case of a judgment given in an action in personam—
i. if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by
voluntarily appearing in the proceedings otherwise than for the purpose of protecting, or obtaining the
release of, property seized, or threatened with seizure, in the proceedings or of contesting the jurisdiction
of that court;
ii. if the judgment debtor was plaintiff in, or counterclaimed in, the proceedings in the original court;
iii. if the judgment debtor, being a defendant in the original court, had before the commencement of the
proceedings agreed, in respect of the subject matter of the proceedings to submit to the jurisdiction of that
court or of the courts of the country of that court;
iv. if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were
instituted resident in, or being a body corporate had its principal place of business in, the country of that
court; or
v. if the judgment debtor, being a defendant in the original court, had an office or place of business in the
country of that court and the proceedings in that court were in respect of a transaction effected through or
at that office or place;
vi.
(b) in the case of a judgment given in an action of which the subject matter was immovable property or in an action
in rem of which the subject matter was movable property, if the property in question was at the time of the
proceedings in the original court situate in the country of that court; and

(c) in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or

(b), if the jurisdiction of the original court is recognized by the law of Malaysia.

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