MUHAMMAD HAFIZ BIN HASHIM 2011283422 ADVANCED CIVIL PROCEDURE I

1. Joinder of Parties
a. Order 15 Rule 4(1)
i. Two or more persons may be joined together in one action as co-P or co-D with
the leave of the court @ where it involves common question of law or facts @
rights arise out of the same transaction or series of the same transaction

b. Circumstances
i. Two or more parties have causes of action against D arising out of a common
complaint
1. The Universities of Oxford and Cambridge v George Gill
a. D used the name of the Ps for publication where in fact there was
no permission given
b. HELD – common question of facts would arise even though
different parties – issues of publication and inducement to
believe the Ps were the one publishing such books

ii. P claims relief in which other person is entitled jointly with him
iii. P wants to join all Ds against whom he has a cause of action (i.e. joint liability)

2. Misjoinder of Parties
a. Order 15 Rule 6(1)– misjoinder will not defeat the cause of action and the Ct may still
determine the dispute which affected the rights and interest of the parties
b. Order 15 Rule 6(2)(a) – Ct may at any stage of the proceedings order the person who has
been improperly made a party to cease to be a party
c. Order 15 Rule 6(2)(b) – Ct may order any person necessary to ensure that the dispute is
effectually and completely determined @ if it is just and convenient with regards to
person whom questions or issues arise
1. KL Finance v Azmi & Co
a. Loan secured by a charge over a piece of land – defected – later
found out the valuation notice was defective – value of the land
is insufficient to cover the loan – the bank sued the valuers
b. Ds claimed that 3rd party was involved in giving false
representation and applied to add them as parties to the
proceeding as 3rd and 4th D
c. HELD – “Main object of O 15 r 6(2) of the RHC is to prevent a
multiplicity of proceedings. The court has a wide discretion to
make an order so that all matters in dispute can be effectually
and completely determined and adjudicated upon… A person
who is not a party may be added as a defendant against the
wishes of the plaintiff either on the application of the defendant
or on his own intervention, or by the court of its own motion -
the jurisdiction of the court is entirely discretionary”

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2. Pegang Mining v Choong Sam

a. TEST – “Will his rights against or liabilities to any party to the
action in respect of the subject matter of the action be directly
affected by any order which may be made in the action?"
b. Contract entered into by the company and the sub-lessee over a
piece of land – second agreement between the sub-sub lessee
c. First agreement – license obtain by the company to be granted to
the sub-lessee – second agreement – the license granted by the
company to the sub-lessee must be granted to the sub-sub lessee
d. Since the rights of the parties are not extinguished yet at the time
of hearing, all parties are considered as a parties who have
interest over the matter and are necessary to the appeal are called
by the Ct

3. Soo Hong v UMBC

a. The Respondent is the chargee (creditor) of the bridging loan
entered into by the developer (later wound up) – the project was
abandoned midway – requested the second respondent (State
Authority) to issue individual titles to them – security
b. Appellants (purchasers) apply to the Ct to intervene as to avoid
duplicity of claims and that they have interest over the said
matter– rejected by the trial judge – held that their rights will not
be affected
c. HELD – their rights will be affected – their interest is that the
land is to be free from encumbrances as the beneficial and
equitable owner – directly affected – satisfied the Pegang
Mining‟s Test

d. When and how to make the application

i. Can be made at any time of the proceeding but before final judgment – not after
it has been perfected and extracted
1. Shell Malaysia v Leong Yuet Yong
a. P filed an action against co-administrators of the deceased estate
– they were advised by D‟s solicitors that the action was
premature since no grant had been ordered by the Ct – they
proceeded nevertheless with a judgment in default of appearance
against D –Another person was granted as co-administrator and
P sought to amend the judgment to include him after 5 years
under the slip order rule and Order 2 Rule 1
b. HELD – Ct cannot amend – not a clerical mistake nor was it a
mere irregularity since P knew D had not been granted with
letter of administration as of yet – after final judgment cannot
amend

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2. United Asian Bank v Personal Representative of Roshammah

a. Bankruptcy proceeding -intervention to be legitimate must
qualify with the conditions prescribed by O 15 r 6(2)(b)(i) or (ii)
b. It may be permitted at any stage of the proceedings - must be
applied for before the final order is made, not after it has been
perfected and extracted

e. Adding or substituting P
i. Not allowed if it will deny D from the defence of limitation
1. Gov of Malaysia v Mohd Amin Hassan
a. Fatal accident – collided with government vehicle – son died,
husband and wife injured – sue for negligence - 3 years
limitation period – PAPA – filed within time as the
representative of the deceased‟s estate (so cannot claim for
dependency) – after limitation period lapsed– apply to the Ct to
include their names suing in personal capacity – only husband
allowed – appeal by D was rejected until Supreme Ct
b. HELD – despite the issue on fresh or distinct cause of action (in
suing as administrator and in personal capacity) – if the Ct
allowed, D will be denied of the defence of limitation –
prejudiced on the part of D

f. Adding or substituting D
1. Dato Dr Haji Mohd Haniffa
a. Intervention appeal - Ps claimed against 20 Ds – KDMB later
applied to intervene and be added as co-D – claimed that if there
was misconduct, the damages is payable to them and not Ps –
however KDMB‟s rights had never been affected and it was also
not a party to the agreement made
b. HELD – “KDMB is not a necessary party- not directly affected
by any order that may be made by the High Court on the merits
of the plaintiffs' claim against the existing defendants. Further,
since no claim has been made against it by the plaintiffs or any
other existing party to the action, it has failed to bring itself
within the sub-para (ii) of the rule. Accordingly the High Court
had no jurisdiction to permit KDMB to intervene and be added
as a party to the suit.” – Gopal Sri Ram JCA

2. Datuk Bandar Kuching Utara v Kuching Plaza

a. P claimed for the rates due against first D – registered owner of
the said shopping complex – claimed that they are not the owner
within the ambit of Local Authority Ordinance – the property
had been subdivided and sold to several purchasers – who should
pay the rates

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b. P applied to have them added as co-D – trial Ct allowed – the

purchasers appealed
c. HELD – relied on Order 15 Rule 6 – common question of law
and facts – will directly affect the purchasers – allowed

g. Adding Co-D by D
1. Hee Awa v Syed Mohd Sazalay
a. Road accident – between a motorcycle and a government van –
pillion rider killed, passenger in the van injured – the parents of
the deceased pillion rider took action against the driver of the
van and the government
b. Ds later applied to add the rider of the said motorcycle to be
added as a party – HCt allowed – P appealed
c. HELD – well within the ambit of Order 15 Rule 6(2)(b) – applies
even to the D‟s application – the Ct has jurisdiction to allow if
satisfied – in this case to be effectually and completely
determined

2. Tajjul Ariffin Mustafa v Heng Cheng Hong

a. Accident claim between two motorcycles– pillion rider claimed
damages for personal injuries against D – D later applied to add
the rider of P‟s motorcycle to be added as D – allowed - P
objected and appealed
b. ISSUE – whether D may add co-D against the wishes of P
c. HELD – to order for joinder is totally the discretion of the Ct –
to impose restriction to such discretion is not proper as the Ct
will fetter the discretion of the Ct without legal power to do so
(therefore case to case basis) - the decision by the Session Ct
Judge was well within the ambit of the law – however – the
principle which must be noted is that the P has a choice to sue
whoever he wanted where a cause of action arose against him
d. “We would answer the question posed at the outset of this
judgment by saying that a plaintiff cannot be forced, upon the
application of the defendant, to have a second defendant added,
against whom he does not wish to proceed for the reason that the
negligence of the intended second defendant is not an issue
involved in the claim he has made… so he should be allowed to
proceed against the defendant of his choice… There may be
cogent reasons for his not wanting to proceed against the
intended second defendant; for example, the intended second
defendant, may be a friend or next of kin of the plaintiff, or the
joinder may result in unnecessary prolongation of the trial or in
the plaintiff having to shoulder the burden of additional costs

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should he fail against both the defendants. There may, of course,

be other reasons” – Edgar Joseph Jr SCJ

3. Abidin Umar v Doraisamy

a. Accident claim – two lorries – P was a lorry attendant – evidence
shown that he was asleep at the material time – D applied to add
the driver in the lorry P was in to be included as Co-D – P
objected
b. HELD – Tajjul Ariffin‟s case did not affect the discretion of the
Ct – in this case P was asleep at the material time and cannot
prove his statement of claim – can only be narrated by the driver
of the lorry intended to be added as co-D – supported by the
principle that the joinder of party is allowed to prevent
multiplicity of proceedings and to enable the court to determine
disputes between all parties to them in one action and to prevent
the same or substantially the same questions or issues being tried
all over again with possibly different results

h. Intervention
i. Test – whether the applicant‟s rights is directly affected by any order made by the
Ct in that particular action
1. Pegang Mining
a. Interest means legal interest and not commercial interest which
will be directly affected by the order of the Ct

2. Lee Meow Lim v Lee Meow Nyin

a. P had applied for a writ of distress claiming arrears of rent where
the tenant had not paid the arrears of the rent for 12 months – the
Sessions Ct allowed a third party to intervene and allowed the
application to strike off the writ
b. HELD – the interest of the applicant for intervention must be
directly affected by the order of the Ct – mere commercial
interest is not sufficient – in this case the applicant was only „a
creditor of one of the parties‟ to the action – rights not directly
affected – should not be allowed to intervene

3. Tai Choi Yu v Sykt Tingan Lumber

a. Mere shareholder, a fortiori, a minority shareholder has no
interest, legal or equitable in the property of the company and
thus not entitled to intervene in the winding up process of the
company

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