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Interrogatories - Appeals

Law (Universiti Teknologi MARA)

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Interrogatories
- A series of written questions posed to the opponent concerning discovery of facts.
- Mahon v Osborne: I te ogato ies, also k o as dis o e of fa ts , a e uestio s
served by one party, with leave from the court, to the other party which has to answer
the questions under oath, usually by way of an affidavit. The questions may relate to
a atte hi h suppo t the i te ogato s ase o dest o s the oppo e t s ase.
Application for leave to serve interrogatories:
- Interrogatories can be served before the pleadings are closed without leave from the
court.
- O. 26 r. 2: A party may at any time before the close of pleadings without leave
from the court deliver interrogatories relating to any matter in question
between the parties.

- However, once pleadings are closed, leave from the court becomes necessary.
- O. 26 r. 1(1): A party may apply in Form 44 to the court for an order:
- (a) giving him leave to serve on any other party interrogatories; and
- (b) requiring that other party to answer the interrogatories on
affidavit not less than fourteen days from the date of service of the
interrogatories.
- O. 26 r. 1(5): The order must then be made in Form 46 and served on the other
party.
The court, in determining whether or not it should grant the order, will look into two factors:
- Relevance of the questions
- The questions must relate to the issue at hand:
- To p o e the appli a t s o ase o atta k his oppo e t s ase
- To seek admissions of something material to the issues raised

- Mahon v Osborne: In this case, the defendant, a surgeon was sued for leaving
a s a i a patie t s od afte a ope atio , ho ulti atel died.
Interrogatories were administered by the plaintiff to establish how many
swabs were removed, by whom it was removed, and upon whose
instructions. The interrogatories helped establish that the surgeon had left a
swab behind. This greatly assisted the dispute by reducing it to the
determination of a question of law, namely whether the leaving of the swab
esta lished the defe da t s negligence.

- Griebart v Morris: In a claim for personal injury arising out of an accident,

he e the o je t of the plai tiff s i te ogato ies as to ascertain the exact
circumstances existing at the time of the accident, the interrogatories were
clearly served to obtain admissions which were material and relevant to the
issues raised.

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- Fishi g i te ogato ies a e ot allo ed:

- Where the interrogator seeks to look for a case against his opponent
instead of trying to establish a case, an order will not be granted.
- Hennessy v Wright (No. 2): The plaintiff brought an action for libel
against the defendant. The plaintiff delivered several interrogatories to
the defendant, which the defendant objected to answer on the
grounds that the interrogatories are irrelevant and do not relate to any
matters in question in the action. Held: The o je t of the plai tiff s
questions was for him to find out something of which he knows
nothing to enable him to make a case of which he has no knowledge
of. The effect of such interrogatories come within the description of
fishi g i te ogato ies a d o that g ou d, it a ot e allo ed. The
moment it appears that questions are asked and answers insisted
upon in order to enable the party to see if he can find a case, either
of a complaint or defence, of which at present he knows nothing of,
and which will be a different case from that which he now makes, the
rule against fishi g i te ogato ies applies.

- Overseas-Chinese Banking Corporation Ltd v Norman Wright & Anor:

Fishing refers to the attempt to find out information in the hope that
whatever it turns out to be it will enable a case to be made out by the
applicant of which he has no knowledge of.
- In a defamation suit, the defendants, through its
interrogatories, were in effe t aski g the plai tiffs, please tell
us what steps you have not taken so that I could show
negligence on your part and thus substantiate my comment as
fai o e t. Held: The interrogatories sought are in truth a
clear case of fishing which cannot be allowed. The defendants
hoped to stumble upon something which will show that their
comment was fair or enable them to plead justification, which
is not a legitimate function of interrogatories.

- Interrogatories which are oppressive in nature will not be allowed:

- Interrogatories are oppressive when the nature of the questions
impose an undue burden upon the party required to answer.
- Parnell v Walter & Anor: In an action for libel contained in a newspaper
and pamphlet, the court refused to allow the interrogatories as the
other party was put through inordinate (unreasonable) time, trouble
and expense in order to find out the exact number of newspapers
circulated of the particular edition.

- Interrogatories directed to the credibility or character of a witness are not

allowed.

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- Necessity of the questions

- O. 26 r. 1(3): On the hearing of an application, the court shall give leave only
for interrogatories which it considers necessary either for disposing fairly of
the cause or matter or for saving costs.

- Ramsey v Ramsey: The wife petitioned for divorce on the ground of the
hus a d s desertion, alleging that he had left the matrimonial home one
evening and had never returned, which the husband denied. The parties
agreed to supply lists of documents and the husband, in his list, stated that he
had had in his possession letters from the wife to himself, of dates unknown,
and that these letters had been burned by him shortly after their receipt. The
wife sought leave to administer the following interrogatories:
- (1) When did you receive the letters ... stating to the best of your ability
the approximate date of each such letter?
- (2) How many letters did you receive?
- (3) To the best of your recollection, what were the contents of each
such letter?
Held: The court has power to allow interrogatories as to the contents of
documents which had been lost or destroyed if there was evidence of their loss
or destruction and if secondary evidence would be admissible from the party
interrogated. However, the interrogatories cannot be allowed in this case
because the legitimate use of interrogatories is to elicit admissions of facts
esse tial to a pa t s case and on the pleadings the facts sought to be elicited
by the interrogatories were not necessary for the wife to establish her case
and neither were the interrogatories necessary for disposing fairly of the
cause or matter or for saving costs.

- The court in Ramsey v Ramsey ruled that the discretion of the court varies from
case to case and the court will take into consideration the following points:
- Are the questions relevant?
- Would the interrogatories assist the applicant or would he have to call
a witness to establish the facts?
- Are the questions clear and precise so that the opponent can give a
straight answer?
- Is it reasonable to obtain the information by way of interrogatories?
- Can the applicant employ other means such as:
- Discovery of document under O. 24
- Calling a witness at the trial
- Requesting the information through letters, or
- Serving a notice to admit facts under O. 27 r. 2

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Answers to interrogatories:
- A party served with interrogatories may object on grounds such as irrelevance,
unnecessary, fishing interrogatories, oppressive etc.

- O. 26 r. 1(6): The answers to the interrogatories must be made by way of an affidavit

in Form 47 within the specified time.
- The answers must not be evasive and must be answered to the best of the
pa t s k o ledge, i fo atio a d elief.

- O. 26 r. 6(1): If the answers are insufficient, the court may order the party to provide
further answers by way of affidavit or oral examination.
- The court is not concerned with the truth, instead with the sufficiency of the
answers.

- O. 26 r. 7: Failure to comply:
- Where the plaintiff is at fault: Dismissal of the action
- Where the defendant is at fault: Striking out of defence and judgment for the
plaintiff
- Where the solicitor failed to inform his client of the order: Committal of the
solicitor for contempt
- Where either party fails to comply with the order: Committal for contempt of
court

- O. 26 r. 8: A party which has obtained answers to the interrogatories may choose to

use some or all the answers as evidence.

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Admissions
- Statements in pleadings which admit the truth of the whole or any part of the action.
Voluntary admission:
- O. 27 r. 1: A party may give notice, by his pleading or in writing, that he admits the
truth of the whole or any part of the case of any other party.
Involuntary admission:
- O. 27 r. 2(1): A party to a cause or matter may not later than fourteen days after the
cause is set for trial serve on any other party a notice in Form 48 requiring him to
admit the facts specified in the notice in Form 49.
- A party is bound by admissions made by his counsel:
- Haron v Macaulay: The action arose out of personal injuries suffered in
a road collision. On the quantum of damages, the assessment was
based on certain admissions made by the defe da t s ou sel.
However, the counsel later argued that the quantum of general
damages was excessive. Held: The defendant is bound by such
admissions made and the question of quantum should be approached
on the basis of those admissions.

- However, a party is not bound by an erroneous admission made by his counsel

on a point of law and such admission does not preclude his counsel from
arguing that matter on appeal:
- Yap Cheng Kee v Ow Giam Eng: The respondent claimed possession of
certain premises from the appellants, which had been let to their father
who died, and the question was whether the father was a contractual
or statutory tenant. The Magistrate found the father to be a statutory
tenant and as this point was admitted by counsel for the appellants,
the Magistrate gave judgment for the respondents. This decision was
upheld on appeal to the High Court. Upon further appeal by the
appellants, in allowing the appeal, the Federal Court held: The
Magistrate was wrong in holding that the deceased had become a
statutory tenant as the deceased was at all times a contractual tenant.
Despite the erroneous admission made by counsel for the appellants,
the question of whether the deceased was a statutory tenant could
be decided on appeal.

- O. 27 r. 2(2): The admission made can only be used for that action.
- The admission would operate only in favour of the party who issued the notice
and not any other party.
- A pa t s ad issio is ot o lusi e p oof of the atte s ad itted, ut a
operate as an estoppel where the party in receipt of the admissions believe
them to be true and has acted upon such belief.

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Amendment or withdrawal of admissions:

- Hollis v Burton: Where an admission is proven to have been made by mistake, the
party that made the admission should be allowed to amend his pleadings for the
purpose of withdrawing the admission on such terms as the court thinks fit.

- Che Esah v Che Limah: Where the admission made is an erroneous statement of law,
an application for withdrawal of the admission can be made to the court orally.
- In this case, the respondent obtained an order against the appellants for the
surrender of vacant possession of certain premises and damages for unlawful
occupation. The appellants appealed on the ground that the first appellant was
a widow of the deceased tenant and that she was therefore protected by the
Control of Rent Ordinance 1956. They applied to withdraw an admission made
by their former counsel at the trial that the first appellant was no longer a
widow as she had remarried after the death of her former husband who was
the tenant. Held: The admission made by the former counsel in this case was
an erroneous statement of law as the first appellant remained a widow under
the Ordinance even after remarrying, but the admission could be withdrawn
on an oral application to the court.
Judgment on admission of facts:
- O. 27 r. 3(1) & (2): Where admissions of fact are made by a party either by his pleadings
or otherwise, any other party to the suit may apply by way of a notice of application
to the court for such judgment or order as upon those admissions he may be entitled
to, without waiting for the determination of any other question between the parties.
- Vithal Kumar Jayaraman v Azman Md Nor: The provision enables a party to
obtain speedy judgment where the other party has made a plain admission
entitling the former to succeed in his claim. The admission must be a clear
admission, and not simple evidence of some facts upon which the plaintiff
would have to rely to esta lish his ause of a tio . The o ds o othe ise in
the rule are of general application and justify the making of an order or
judgment where an admission is made by letter or other relevant documents
or agreements which clearly show that the defendant has no defence to the
plai tiff s claim. They are not confined to admissions contained in pleadings
alone.

- Ellis v Allen: The plaintiffs brought an action against Allen, the lessee of certain
property, and Johnston, the sub-tenant, to recover from them possession of
the premises. Allen let the property to Johnston without having applied to the
plaintiffs for their consent and thereby, breached the covenant. The day after
they entered appearance for Allen, his solicitors w ote a lette to the plai tiffs
solicitors, which is relied on by the plaintiffs as an admission by the defendant
Allen that there has been a subletting of the property by him contrary to his
covenant in the lease. Held: Under the circumstances, having regard to the

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admission made, Allen does not have a defence to the action. Thus, the
plaintiff is entitled to judgment.

- Re Beeny, Ffrench v Sproston: A verbal admission is enough when it is clearly

proven that it has been made. A defendant may be ordered to pay into court
money which he has verbally admitted to be in his hands or under his control.
- In this ase, the defe da t s ad issio o tai i g the o ds the
plai tiff s share of which he said a ou ted to a out £5 5, amount to
a sufficient admission to enable the judge to order the sum of £535 to
be brought into court by the defendant.

- Where admissions of fact are made:

- The court has a discretion in deciding whether judgment should be entered on
an admission of facts. A court will only allow judgment to be entered if there
was an unequivocal admission of fact by the defendant. If a plaintiff fails to
show that all the components of his cause of action had been admitted, the
plaintiff cannot be said to be entitled to a judgment.

- Aetna Universal Insurance Sdn Bhd v Fire Accident & Marine Sdn Bhd: The
plaintiff claimed a large sum in respect of premiums allegedly received by the
defe da t i a ti g as the plai tiff s u de iti g age t. The Se io Assista t
Registrar granted judgment in favour of the plaintiff on the ground of a clear
admission of indebtedness by the defendant. On appeal, the High Court held:
The pleadings and affidavits showed a clear, consistent and unequivocal
admission by the defendant of its indebtedness to the plaintiff in respect of
the plai tiff s lai .

- Even a failure to deny an allegation of fact in an affidavit can be held to be

sufficient admission of that fact.
- Freeman v Cox: The failure to deny an allegation in the plaintiff's
affida it that the o e as i the defe da t s hands was held
sufficient.

- Pembinaan KSY Sdn Bhd v Syarikat Federal Furniture Construction and

Engineering Works: In this case, the respondents were appointed as
subcontractors by the appellants to manufacture furniture for a hotel in Kuala
Lumpur which was under construction. The respondents claimed that they had
completed a certain portion of the works for which the architect had issued
certificates of interim payments and which the appellants were liable to pay.
The appellants in their defence claimed that the certificates were superseded
by another interim certificate issued by the architect. The respondents applied
for judgment based on a letter by the appellants addressed to the owners of
the hotel admitting the claim of the respondents under the three certificates.
The Senior Assistant Registrar dismissed the claim, but on appeal the High

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Court reversed the decision and ordered judgment for the sum claimed in
favour of the respondents. Upon an appeal made by the appellants, the
Supreme Court dismissed the appeal and held: On the evidence before the
judge it cannot be said that he had come to any unreasonable finding and the
respondents were entitled to judgment under O. 27 r. 3.

- The admission of fact can be express or implied, but must be clear in order for
the court to invoke the provision. This is because the rule is intended to enable
the ou t to g a t a judg e t o o de o the asis of a pa ty s plai
admission without waiting for the determination of any question between
the parties, thus, an admission that is not clear would not give rise to the use
of the rule.
- Ong Gim Huat v Toh Suan Lin Amy: The husband sought for divorce on
the ground that the marriage had irretrievably broken down. The wife
admitted that the marriage had irretrievably broken down but denied
that it was on the ground that she had deserted him for a continuous
period of two years before the presentation of the petition. Held:
Admissions of fact may be express or implied but they must be clear.
It is beyond doubt that the wife admitted that the marriage had
irretrievably broken down, but for different reasons. The ife s
admission was not clear such that it would enable the court to invoke
the rule. A trial was therefore necessary for the court to inquire into
the alleged fact for causing the breakdown before making a decree for
its dissolution.

- Admission of documents specified in a list of documents:

- O. 27 r. 4(1): A party on whom a list of documents is served under O. 24 is
deemed to admit:
- (a) that any document described in the list is an original document; and
- (b) that any document described as a copy is a true copy.

- O. 27 r. 4(2): If the party on whom the list of documents is served does not
admit the authenticity of any document on the list and requires it to be
proved at the trial, he shall not be deemed to have made any admission under
r. 4(1).

- O. 27 r. 5(4): A party may be required by notice to produce at the trial any

document which has not been admitted.

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Trial Process
Absence of parties (O. 35 r. 1 & 2)
- Where both parties fail to appear:
- O. 35 r. 1(1): If neither party appears, the judge may dismiss the action or make
any other order as he thinks fit.
- The plaintiff can apply under O. 35 r. 2(2) within fourteen days to restore the
case, giving good reasons for the absence and paying the costs incurred.

- Where the plaintiff is absent:

- If the defendant has no counterclaim:
- The plai tiff s suit a e dis issed, but he may apply within fourteen
days under O. 35 r. 2(2) for a reinstatement by paying costs, giving good
reasons as to his absence and establishing that the case has merits to
be tried.

- If the defendant has a counterclaim:

- The plai tiff s suit a e dis issed a d the defe da t s ou te lai
may proceed, which could result in the court giving judgment for the
defendant.
- However, the plaintiff may, within fourteen days apply under
O. 35 r. 2(2) to set aside the judgment and reinstate his claim.

- Thus, if u de a i u sta es, the plai tiff s a tio is dis issed due to his
absence, the dismissal of the claim does not amount to res judicata (a matter
judged) and the plaintiff can still file a fresh action, subject to the expiration
of the limitation period.

- Yogananthy AS Thambaiya v Idris Osman: The appellant and her counsel were
a se t at the t ial, hile the espo de t s counsel and his witnesses were
present. After heari g su issio of the espo de t s ou sel, the court
allowed his applicatio to dis iss the appella t s claim and gave judgment in
favour of the respondent. The next day, the appellant filed for reinstatement
of her claim and for setting aside the judgment. The appellant contended that
she and her solicitors were honestly under the impression that the trial dates
were fixed for another day as the trial dates were wrongly communicated to
them. However, the judge dismissed both applications. On appeal, in allowing
the appeal, the Court of Appeal held: The conduct of the appellant and her
counsel clearly and unequivocally did not reflect their intention to
deliberately and intentionally absent themselves from attending the trial. It
was the conduct of a party who genuinely had the intention to proceed with
the trial but was unable to attend court due to an innocent mistake with
regard to the trial dates. There was no evidence to show that the appellant
or her counsel were avoiding trial.

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- Where the defendant is absent:

- O. 35 r. 1(2): If the defendant does not appear, the judge may proceed with
the trial and give judgment for the plaintiff.
- The defendant can apply under O. 35 r. 2(2) within fourteen days to set aside
the judgment by furnishing the court with good reasons as to his absence.

- Shaharuddin Abdul Rahman v Satisah Ismail Sdn Bhd: At the hearing, the
plai tiffs representative was present together with their counsel. The
defendant was absent but his counsel was present. On an oral application by
the plai tiffs counsel, the magistrate gave judgment in favour of the plaintiffs.
On appeal, the court held: The magistrate was not empowered to order a
judgment in default. If the magistrate is not inclined to grant an adjournment,
he should have proceeded to hear and determine the action in the normal
manner. The defendant is thus allowed to either appear in person or by
counsel. Only if both the defendant and his counsel are absent may a default
judgment be entered against the defendant.

- Lembaga Kemajuan Tanah Persekutuan (FELDA) v Awang Soh Mamat: The

High Court in this case gave judgment in default in favour of the plaintiffs as
neither the defendants or their counsels turned up for the trial. The
defendants applied to set aside the judgment in default. In dismissing the
application, the court held: In an application to set aside a default judgment
due to non-appearance of a party, a distinction must be made between a
judgment obtained without a trial (judgment in default of filing an appearance)
and judgment obtained after a trial has proceeded:
- Shocked & Anor v Goldschmidt & Ors: In determining whether to allow
an application to set aside a judgment obtained after a trial has
proceeded, the reason for the absence of the party at the trial is the
pre-dominant consideration (O. 35 r. 2(3)):
- Where a party with notice of proceedings has disregarded the
opportunity of appearing at the trial, he will be bound by the
decision.
- Where judgment has been given after a trial it is the explanation
for the absence of the absent party that is most important:
unless the absence was not deliberate but was due to an
accident or mistake, the court will be unlikely to allow a
rehearing.
- Where the setting aside would entail a complete retrial on
matters of fact which have already been investigated by the
court the application will not be granted unless there are
strong reasons for doing so.
- The court will not consider setting aside the judgment obtained
unless the party applying enjoys real prospects of success.

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- A delay in applying to set aside the judgment is relevant,

particularly if during the period of delay, the successful party
has acted on the judgment, or third parties have acquired rights
by reference to it.
- In considering justice between parties, the conduct of the
person applying to set aside the judgment has to be
considered: where he has failed to comply with orders of the
court, the court will be less ready to exercise its discretion in his
favour.
- A material consideration is whether the successful party would
be prejudiced by the judgment being set aside, especially if he
cannot be protected against the financial consequences.
Adjournment (O. 35 r. 3)

- O. 35 r. 3: The judge may, if he thinks it expedient in the interest of justice, adjourn a

trial for such time, and upon such terms, if any, as he thinks fit.

- The discretion of the judge to allow or refuse an application for adjournment was a
subject dealt with in depth by the Court of Appeal in Dick v Piller. The following
principles were then adopted by the Federal Court in Lee Ah Tee v Ong Tiow Pheng:
- (1) Whether or not a party should be granted an adjournment is wholly at
the discretion of the judge. He would exercise the discretion solely upon his
view of the facts.
- (2) Prima facie this discretion is unfettered.
- (3) The question to ask in any particular case is whether on the facts there are
adequate or sufficient reasons to refuse the adjournment.
- (4) Although an appellate court has power to interfere with the Judge's
decision in regard to the granting of an adjournment, it would refrain from
doing so unless it appears that such discretion has been exercised in a way
which shows that all necessary matters were not taken into consideration or
the decision was otherwise arbitrarily made.
- (5) An appellate court ought to be very slow to interfere with the exercise of
the discretion. But if it appears that the result of the order made below would
be to defeat the rights of the parties altogether or that there would be an
injustice to one or the other of the parties then the appellate court has power
and indeed a duty to review the exercise of the discretion.

- Good reasons are essential to obtain an adjournment:

- Go Pak Hoong Tractor and Building Construction v Syarikat Pasir Perdana:
Notice of trial on August 17, 1980 was served o the defe da t s solicitors on
March 20, 1980. The plai tiff s counsel was present at the trial, but both the
defendant and counsel were absent. Counsel for the plaintiff tendered in court
a telegram which he had received from the defe da t s counsel which read as
follows: Defe da t fell sick. Unable to attend court tomorrow. Have applied

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postponement of hearing. Kindly mention for us as counsel in charge unable

to o tai seat to fly to Kota Bha u. The court in refusing to grant an
adjou e t uled that the defe da ts solicitors had been notified of the
date of trial as early as 20th March, 1980. They should have booked the
passage earlier. Further, there was no proper medical report from the
defendant. On appeal, the Federal Court, in dismissing the appeal, held: The
facts clearly show a lackadaisical lazy attitude to a ds la ye s duty to their
clients and their duty to the courts. Where the case had been fixed for hearing
about five months before the trial, an adjournment places the court in a
difficult position.
- The granting of an adjournment is in the absolute discretion of the
court depending on the facts of each case and unless it can be shown
that the discretion was improperly exercised it should not be disturbed.

- Zainuddin Husin v Yung Heng Farm Sdn Bhd: The Sessions Court judge in his
grounds of judgment gave two reasons for his refusal to grant further
adjournment, namely that the case was previously adjourned five times and
that the appellant was never present although hearing dates were fixed. On
appeal, the High Court held: The Sessions Court judge correctly exercised his
discretion in not granting an adjournment on the hearing date and to proceed
with the hea i g of the espo de t s claim without the presence of the
appellant and his counsel.
- The court would therefore be reluctant to grant further adjournment if
numerous prior adjournments had been granted.
Preliminary Issues (O. 33 r. 2 & 5)
- O. 33 r. 2: The court may order any question or issue arising in a cause or matter to be
tried before, at or after the trial and may give directions as to the manner in which the
question or issue shall be stated.
- O. 33 r. 5: If the court finds that the decision of any question or issue arising in a cause
or matter and tried separately substantially disposes it or renders the trial
unnecessary, it may dismiss the cause or matter.
- Thus, where the determination of the preliminary issues will be decisive of the
whole litigation or essentially the main part of the suit (rendering the trial
unnecessary) and result in a substantial saving of time and cost as it will
significantly cut down the costs and time involved in pre-trial preparation or
in connection with the trial proper, the court will most likely exercise its
discretionary powers under the rule.

- Huang Ee Hoe v Tiong Thai King: The defendants took out a summons seeking an order
for preliminary questions or issues to be tried and determined before the trial of the
action. The plaintiffs, in objecting to the application, urged that if it were to be
allowed, the preliminary issues should be dealt with at the commencement of the trial.
I dis issi g the plai tiff s o je tio s, the ou t held: Lea i g the p eli i a issues

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to be dealt with at the commencement of the trial of the main action necessarily
means that all are set for the trial including the subpoena and presence or attendances
of witnesses of both sides. If the preliminary issues are disposed of in advance,
preparatory works for the trial may or may not be necessary depending upon the
result of the present application. An early disposal of the application which would
undoubtedly place parties in a clearer position as to whether anything needs to be
done in the conduct of the case is therefore preferred.

- Thye Lam & Co. v The Eastern Shipping Corporation Ltd: The plaintiffs claimed against
the defendants for damages for breach of contract and/or duty in and about the
carriage of goods by sea. The matter came before the court for the determination of
the preliminary point of law raised by the defendants that the plaintiffs claim was
barred by limitation of time in that the suit was not instituted within one year from
the date when the cause of action arose. Held: The plea of limitation must succeed
as the claim was not instituted within the prescribed period under the Hague Rules.

- Thanaraj Manikam v Lower Perak Tamil Co-Operative Society: The plaintiffs sought a
declaration from the court that the defendant was holding several properties as
trustees for the plaintiff and an order for the defendant to deliver the title deeds of
the said properties. Counsel for the defendant raised a preliminary question of law,
namely whether the plai tiffs claim should be allowed to proceed. Held: The
preliminary issue of law raised in this instance would not require the ascertainment
of any facts beyond those that appear in the pleadings and a decision on the issue if
favourable to the defence would render the trial unnecessary which could only lead
to much savings and costs. The defendant therefore should be allowed to proceed
with their application.

- Krishnan Rajan v Bank Negara Malaysia: The plaintiff sued the defendants for
defamation and negligence arising out of an incident in which the defendant was said
to have wrongfully blacklisted the plaintiff under its Biro Maklumat Cek Operational
Framework and Reporting Guideli es BMC Guideli es ). The plaintiff applied for an
issue to be tried on a preliminary basis, namely whether the BMC Guidelines were
ultra vires and unlawful. The defendant argued that the court should not invoke its
discretionary powers since the determination of the preliminary issue or question
would not substantially dispose of the cause or matter. This was because whether the
BMC Guidelines were valid or otherwise, the court would still have to decide on the
issue of whether the alleged maintenance of the blacklist amounted to a defamatory
statement. I dis issi g the plai tiff s appli atio , the ou t held: The ule conferred
upon the court a wide discretionary power to order any question or issue in a cause
or matter. The overriding consideration to take into account was whether the
application would result in a substantial saving of time and expenditure. Even if the
court were to find the BMC Guidelines to be ultra vires, that outcome would not
result or substantially result in the disposal of the case. Thus, if the court were to try
the preliminary issue, there would not be a substantial saving of expense and time.

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Costs
Costs awarded may consist of:
- Costs between the parties; costs of and incidental to the proceedings
- Costs agai st a pa t s own advocate and solicitor
Costs between parties:
- O. 59 r. 3(1): No party can recover any costs except under an order of the court.
- O. 59 r. 3(2): 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.
- Thus, the general rule is that costs follow the event, namely the losing party
must pay the costs for the winning party and bear his own costs.
- In exceptional circumstances the court may:
- Award the winning party a proportion of his costs or his costs from or
up to a specific stage of the proceedings;
- Make no order as to costs and leave each party to bear their own costs
- O de the i i g pa t to pa the losi g pa t s osts of e tai
matters

- The Court of Appeal in Re Elgindata Ltd laid down several principles governing the
ordering of costs:
- (1) Costs are in the discretion of the court.
- (2) They should follow the event, except when it appears to the court that in
the circumstances of the case some other order should be made.
- (3) The general rule does not cease to apply simply because the successful
party raises issues or makes allegations on which he fails, but where that has
caused a significant increase in the length or cost of the proceedings he may
be deprived of the whole or a part of his costs.
- (4) Where the successful party raises issues or makes allegations improperly or
unreasonably, the court may not only deprive him of his costs but order him
to pay the whole or a part of the unsuccessful party's costs.
There exist several exceptions to the general rule that costs should follow the event:
- Where a claim is made under an illegal contract
- There will be no order as to costs where a claim is made under an illegal
contract.
- Cheng Mun Siah v Tan Nam Sui: The case concerned the sale of a house in
Singapore to a foreigner which was against the law. Where the whole
transaction was already an illegal one and as both parties to the transaction
had contravened some provisions of the law, the court made no order as to
costs since both parties had offended the law.

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- Misconduct or neglect
- Where there has been misconduct or neglect on the part of the winning party,
the court may make an order for the winning party to pay the costs.
- Chen Chow Lek v Tan Yew Tai: The case concerned the sale of a terrace house
from the respondent to the appellant. The court found that had the appellant
been co-operative, the case would not have come to court and the respondent
would not have initiated the civil suit. The litigation was completely
unnecessary a d ould ha e ee a oided if ot fo the appella t s attitude.
Thus, even though the appellant won the suit, the court ordered him to bear
the costs of the proceedings.

- Successful on a point not raised in the court below

- Anna Jong Yu Hiong v Government of Sarawak: Where the court found that
counsel for the appellant did not bring notice to the court below a particular
case, which he used on appeal and ultimately succeeded, he had therefore
succeeded on a point not raised in the court below. Thus, the appellant has to
bear the costs of the appeal.

- Relevant authorities not cited

- Re Syed Ahmed Hood Alsagoff: The court allowed the appeal, but made no
order as to costs for the appeal and the trial stage as the appellant had not
referred to two very relevant cases which would have won him the case.
- As the relevant authorities which have determined this appeal were
not cited to the learned Judge — nor was any point made concerning
the principles enunciated in them — while the appeal must be allowed
there would be no order as to costs either here or below.

- The i i g pa ty has to pay the losi g pa ty s osts fo a e y u usual thi g

- Petroliam Nasional Bhd (Petronas) v Cheah Kam Chiew: The respondent, an
account holder of Bank Bumiputra Malaysia Berhad applied by Originating
Summons for declarations that the acquisition of shares in the bank by
Petronas was ultra vires the Petroleum Development Act 1978, and so was the
purchase or acquisition of the loans of the bank by Petronas. The appellants
applied to strike out the Originating Summons on the ground that no
reasonable cause of action was disclosed against them and that the action was
misconceived, frivolous and vexatious as well as an abuse of the process of the
court. Before the hearing of the summons, the second appellant, the
Government of Malaysia, tabled a Bill in Parliament which was later enacted
as the Petroleum Development (Amendment) Act 1985. The Act in effect gave
the necessary powers to Petronas and gave them with retrospective effect.
Thus, when the Summons in Chambers to strike out the Originating Summons
was heard the respondent could no longer dispute that he had a cause of
action. The trial judge therefore struck out the Originating Summons but
awarded costs to the respondent. The appellants appealed. On appeal as to

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costs, the court held: An appellate court does not interfere in the question of
costs without reluctance. This is because the court below has an absolute
discretion except that the discretion must be exercised judicially. An appellate
court should not interfere unless it can be shown that there has been an error
of law or the purported exercise of discretion was based on grounds wholly
unconnected with the cause of action. In this case the appellate court could
not say that the learned judge had exercised his discretion wrongly in the
circumstances of the case. Thus, even though the respo de t s a tio as
dismissed, the appellant had to bear the costs.

- Where the appellant pleads guilty to negligence in the lower court when in fact he
was not negligent in the accident
- Mohd Salleh Samad v Zainodin Dongking: In this case, the appellant pleaded
guilty to a motor accident when he knew he was not negligent. Under the Road
Transport Act, a successful party can be deprived of his costs if he is guilty of
misconduct, negligence or omission. However, in this case, the High Court
held: The plea of guilty by the appellant was a material factor which misled the
learned Sessions Court judge into deciding wholly against him when in fact the
appellant knew that he was not negligent when he collided into the engine of
the respondent's motorcycle as it lay on the grass verge, the appellant should
bear his costs of the appeal and also the costs in the Sessions Court.
- The rationale behind the order of costs made is to discourage the
practice of parties pleading guilty to charges for traffic offences
involving driving a vehicle or riding a vehicle without due care and
attention, particularly in situations where the parties either know or
have reason to believe that they were not negligent at all and they were
doing so because of convenience in order to avoid having to attend
court for the trial. It would facilitate more accurate findings in the
outcome of civil claims in the lower courts involving road accidents
and in the process reduce unnecessary appeals and the incurring of
additional costs by the opposing party.

- Other exceptions
- O. 59 r. 8(a): Where an offer of settlement has been agreed upon between
both parties, the order as to costs will be in accordance with the settlement.
- O. 59 r. 8(b): Before or during the proceedings, where a party fails to admit
facts under O. 27 r. 2 or documents under O. 27 r. 5, the costs of proving such
facts or documents may be borne by the party who failed to make the
admissions.
- O. 59 r. 10: A party will have to bear the costs if he:
- Makes an unnecessary application or claim; or
- Defaults, causing the other party to make the necessary application

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Costs against the advocate and solicitor personally:

- O. 59 r. 6(1): Where costs are incurred improperly or without reasonable cause or are
wasted by undue delay or by any other misconduct or default, the court may make an
order:
- (a) disallowing the costs as between the solicitor and his client;
- (b) directing the solicitor to repay his client costs which his client has been
ordered to pay to the other party;
- (c) directing the solicitor personally to indemnify such other parties against
costs payable to them.

- Although an advocate and solicitor is not a party to the litigation, his conduct during
the process may cause the court to invoke the rule and exercise its discretion.
Where solicitors have been held personally liable for costs:

- Where an action is unmaintainable:

- Karpal Singh v Atip Ali: In this case the judge struck out a civil suit against the
defendant as there was no cause of action. The defendant then applied for
costs to be borne personally by counsel for the plaintiff. The judge declined to
make the order. On appeal, the court held: Having come to a conclusion that
the civil suit filed the plai tiff as o spi uousl u ai tai a le and
having rejected the explanation given by the counsel for the plaintiff, the judge
ought to have exercised his discretion and ordered that the costs of the
proceedings be paid by the lawyer personally.

- Commencing a suit for a plaintiff who is a bankrupt:

- Mohd Yusof Awang v Malayan Banking Bhd: In this case, the plaintiff, who was
a bankrupt instituted proceedings against the defendant. The action was
ordered to be struck out. The defendant applied for an order that the advocate
and solicitor for the plaintiff be personally liable for costs of the action on the
ground that the plaintiff was an undischarged bankrupt at the time of the
commencement of this action and no sanction had been obtained from the
Offi ial Assig ee s office as required by the Bankruptcy Act 1967. Held: An
advocate and solicitor who had taken on himself to act on behalf of the plaintiff
had impliedly warranted that he had the authority to act on behalf of the
plaintiff. As it turned out that the plaintiff was a bankrupt when the action was
commenced against the defendant, the advocate and solicitor for the plaintiff
had breached his warranty of authority and he should be personally liable for
all the costs thrown away.

- Where the advocate and solicitor has no authority to act:

- Yonge v Toynbee: The defendant, against whom the plaintiff was threatening
to institute an action for libel, instructed a firm of solicitors to act for him. On
October 8, unknown to his solicitors, the defendant was certified to be

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insane/of unsound mind. On September 30 the solicitors undertook to accept

servi e of the it o the defe da t s behalf and entered an appearance for
him. On April 5 the solicitors for the first time learned of the defenda t s
incapacity. The plaintiff then took out a summons asking that the appearance
and all subsequent proceedings in the action be set aside and that the
defe da t s solicitors might be ordered to pay personally to the plaintiff all the
costs of her action against the defendant up to date, on the ground that they
had no authority to appear and defend. Held: Although the defe da t s
solicitor had acted throughout in good faith and without knowledge of the
defe da t s mental condition, they were personally liable to pay the costs
upon an implied warranty or contract that they had authority, which in fact
they had not.

- Simmons v Liberal Opinion Ltd: A solicitor assuming to act for one of the parties
to an action warrants his authority, and is personally liable to the opposing
party for costs, if it turns out that the client for whom he assumed to act is
non-existing, or has revoked the authority.
- In this case, the court found that there was a breach of warranty by the
solicitor that he had authority to act for his supposed client, the
defendant, when in fact he had no client.

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Enforcement of Judgment or Order

Where a party fails to comply with a judgment or order, the other party can seek to enforce
it through the use of one or more of the available court processes.
- However, enforcement of a judgment or order is subject to the limitation period under
the Limitation Act.
- Sec. 6(3), Limitation Act: A judgment cannot be enforced after 12 years from
the date upon which the judgment becomes enforceable (when the judgment
or order has been entered, or when the pronouncement of judgment has been
made after the trial) and not from the date of the judgment.

- O. 46 r. 2(1)(a): If a writ of execution is issued after 6 years, but before the expiry of
12 years, the plaintiff must apply for leave from the court to enforce it.
- Tio Chee Hing v Chung Khiaw Bank: Where 6 years have lapsed, the rule
requires leave of the court to be obtained to issue a writ of execution. The
court has the discretion to grant leave if it is satisfied with the grounds given,
which in this case was that there were negotiations for settlement by
arrangement. Such reason was therefore sufficient for the court to grant an
extension for enforcement.
Discovery in aid of execution (O. 48):
- E e utio ea s e fo e e t of judg e t o o de a of a it of e e utio
which includes a writ of seizure and sale, writ of possession and writ of delivery.
- Dis o e i aid of e e utio ea s a e a i atio of the judg e t de to .

- The two existing methods that may be employed for the examination of the judgment
debtor are under:
- O. 48, or
- Sec. 4, Debtors Act

- The rules provide a process for the examination of the judgment debtor so that
information as to his means may be obtained for the purpose of determining the
appropriate mode of enforcement.
- Re Sassoon Ezekiel: Discovery in aid of execution is a process to ascertain what means
the judgment debtor has to satisfy the judgment.
Examination of the judgment debtor under O. 48:
- O. 48 r. 1(2): Where a judgment or order has been obtained for the payment of money
by the judgment debtor, the court may, on an ex parte application made by way of a
notice of application supported by an affidavit in Form 95, order the judgment debtor
to be orally examined by the Registrar on the questions:
- (a) what debt is owing to the judgment debtor
- (b) whether the judgment debtor has any other property or means of satisfying
the judgment or order

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- Republic of Costa Rica v Strousberg: The examination is intended to be a cross-

examination of the strictest character and the debtor is bound to answer all relevant
questions and cannot insist on the examination being confined to the simple
uestio of hat de ts, if a y, a e due to hi .

- O. 48 r. 1(3): An order made must be in Form 96 and served personally on the

judgment debtor.

- O. 48 r. 3: The Registrar conducting the oral examination must record all statements
made, read it back to the judgment debtor and ask him to sign it. If he refuses, the
Registrar must sign the statement.

- O. 48 r. 1(4): Any dispute arising in the course of the examination entitles the Registrar
to refer the matter to the court for its determination.
Examination of the judgment debtor under Sec. 4, Debtors Act (O. 74) (stronger method)
- Sec. 4(1), Debtors Act: Where the judgment of a court is for the recovery or payment
of money, the party entitled to enforce it may, subject to and in accordance with any
rules of court, summon the judgment debtor to be orally examined before the court
espe ti g the judg e t de to s ability to pay or satisfy the judgment debt, and for
the discovery of property applicable to such payment and to the disposal that the
judgment debtor has made of such property.

- O. 74 r. 11A: Any person entitled to enforce a judgment or an order for the payment
of money may apply for a judgment debtor summons under Sec. 4 of the Debtors Act
by filing a request in Form 174.

- O. 74 r. 11D(1) & (2): A judgment debtor summons shall be in Form 177 and served
personally on the judgment debtor at least seven days before the day fixed for the
hearing.

- Sec. 4(6), Debtors Act: Upon such examination, the court may order the judgment
debtor to pay the judgment debt either—
- (a) in one lump sum whether immediately or within such period as the court
may fix; or
- (b) by such instalments payable at such times as the court may fix.

- Sec. 4(7), Debtors Act: If the judgment debtor defaults in payment, a notice in the form
prescribed by the rules of court may be issued, 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.

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Writ of seizure and sale (O. 46 & 47):

- O. 46 r. 3(1): Application for leave to issue a writ of seizure and sale made by way of
an ex parte notice of application in Form 88 supported by an affidavit.

- O. 46 r. 2(3): The judgment creditor must apply for the writ to be issued within 1 year.
If he fails to do so, a fresh application for leave (O. 46 r. 3(1)) must be made.

- O. 46 r. 4(3) & (4): Before the writ is issued, a praecipe in Form 89 must be signed by
the judgment creditor or his solicitors.

- O. 46 r. 6(1): Once issued, the writ is valid for 12 months from the date of issue.

- Seizure and sale of movable property:

- Sec. 3(1), Debtors Act prohibits the seizure and sale of certain movable items:
- Apparel
- Tools of trade
- Wages or salary below RM200
- Thus, a seizure and sale of movable property can be made subject to the items
prohibited under Sec. 3(1).
- O. 47 r. 4: After a seizure has been made, any dealings by the judgment debtor
with the property seized is void.
- The sheriff will then sell the seized property to pay the judgment creditor.

- Seizure and sale of immovable property:

- It must be made through a prohibitory order which prevents the judgment
debtor from dealing with the property.
- O. 47 r. 6: Application for a prohibitory order to be issued:
- A copy of the prohibitory order must be served to the judgment debtor
and registered at the Registry of Title or Land Office.
- Once registered, it is deemed to have seized the property.
- The prohibitory order is valid for 6 months from the date of
registration.
- O. 47 r. 7: The sale of land can be made 14 days after the registration
of the prohibitory order.
Garnishee Proceedings (O. 49):
- Recovery by a judgment creditor of money which is due or accruing due to a judgment
debtor from the hands of a third party (garnishee)
- O. 49 r. 1(1): Where a third party (garnishee) owes money to a judgment debtor, the
judgment creditor (garnishor) may apply to the court to order the garnishee to pay
directly to the judgment creditor the amount of any debt due or accruing due to the
judgment debtor from the garnishee.

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Application for a garnishee order to show cause:

- O. 49 r. 2(1): An application for a garnishee order shall be made ex parte by a notice
of application supported by an affidavit in Form 98:
- (a) identifying the judgment or order to be enforced and stating the amount
remaining unpaid under it at the time of the application; and
- (b) stating that to the best of the information or belief of the ga isho s elief
that the garnishee is within the jurisdiction and is indebted to the judgment
debtor and stating the sources of the ga isho s information or the grounds
for his belief.
Garnishee order to show cause:
- O. 49 r. 1(2): An order in Form 97 under this rule shall in the first instance be an order
to show cause (as to why a garnishee order should not be made), specifying the time
and place for further consideration of the matter, and in the meantime attaching such
debt to answer the judgment or order and the costs of the garnishee proceedings.

- O. 49 r. 3(1): An order to show cause shall at least seven days before the time
appointed be served:
- (a) on the garnishee personally; and
- (b) on the judgment debtor.

- O. 49 r. 3(2): The order to show cause is binding upon the garnishee from the time of
its service against any debt specified in the order.
Garnishee order absolute:
- O. 49 r. 4(1) Where on consideration of the matter the garnishee does not attend or
does not dispute the debt due or claimed to be due from him to the judgment debtor,
the court may make an order absolute in Form 99 against the garnishee.
- O. 49 r. 4(2) An order absolute against the garnishee may be enforced in the same
manner as any other order for the payment of money.

- Kedah Kelang Papan Sdn Bhd v Hansol Sdn Bhd: The court laid down the principles
which apply when making a garnishee order:
- (1) No garnishee order can be made unless some person, at the time when the
order is made, is indebted to the judgment debtor.
- (2) If there is not a debt payable at present, but there is a debt in existence,
which is payable in the future, such an order can still be made with regard to
the debt whether legal or equitable.
- The o ds or accruing are intended to apply to those cases in which there
are debts owed at present time payable in the future. It is not enough to show
that it is very probable that there soon will be a debt; it must be shown that
there is a debt.

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- (4) A debt due at present, but not yet payable is nevertheless a debt which is
represented by an existing obligation.

- Thus, an order can be made when there is a:

- Debt payable at present
- Debt payable in the future but is in existence

- O. 49 r. 5: Where the garnishee disputes liability, the court may:

- Summarily determine the issue, or
- Order for any question necessary for determining the liability of the garnishee
be tried.
Rights of the judgment debtor:
- Hong Kong and Shanghai Banking Corporation v Goh Su Liat: Although, as counsel for
the judgment creditor had put it, the main fight in a garnishee proceeding is between
a judgment creditor and the garnishee, the court ruled that the judgment debtor has
a right to apply to the court to set aside the garnishee order to show cause and the
garnishee order absolute.
Whether there is a debt due or accruing due from the garnishee to the judgment debtor:
- Cheong Heng Loong Goldsmiths Sdn Bhd v Chan Kim Swi: The insured took out a policy
from the defendant (the garnishee) u de a je elle s block policy whereby the
garnishee agreed to insure and indemnify the insured against loss arising from any
hold up or robbery of stock a d e ha dise of the i su ed s business. On 10
December 1984, a claim was submitted by the insured to the garnishee in respect of
an alleged robbery. On 20 August 1985, the judgment creditor obtained a judgment
in default against the insured for a sum of money. The insured could not be traced.
Subsequently, the judgment creditor took out garnishee proceedings and obtained
an ex parte order attaching all debts due and accruing from the garnishee to the
insured to answer the judgment recovered against the latter. The judgment creditor
contended that the loss suffered by the insured was caused by a peril insured against
robbery and the garnishee was therefore liable under the policy. The main issue
before the court was whether there was any debt due or accruing due from the
garnishee and if so what amount. The court in dismissing the claim and discharging
the garnishee order nisi, held: Liability of insurers under an insurance policy is not a
debt which could be attached. The order for attachment could only be made if the
judgment creditor successfully establishes that there is in law a debt due from the
garnishee to the judgment debtor. In this case, there was no debt due to the insured
from the garnishee.

- Kedah Kelang Papan Sdn Bhd v Hansol Sdn Bhd: The issue in this case was whether
the sum already earned by the judgment debtor in respect of works carried out
under a construction contract, but which was retained by the garnishee as retention
money for compensating the garnishee for defects in the work carried out by the

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judgment debtor, could be garnished. Held: The sum retained by the garnishee was
in effect a fixed sum which had already been earned by the judgment debtor from
carrying out work under the contract. The money is retained in the power of the
garnishee as a fund to be drawn upon should the occasion arise to rectify defects in
the work carried out by the judgment debtor. There could not, therefore, be any
dispute that the sum retained represented a debt due from the garnishee to the
judgment debtor, despite it being payable after the expiry of the defect liability
period, namely payable in the future.

- Keen Builders Sdn Bhd v Utara Dua (M) Sdn Bhd: The garnishee, a housing developer,
entered into a building contract with the judgment debtor, the contractor, to build
houses. The contract allowed the garnishee to deduct RM17,080 a day from any
monies due to the judgment debtor under the contract as liquidated damages for
any delay in completion of the housing project. The total liquidated damages was a
sum of RM6.8 million. Meanwhile, the judgment creditor had obtained a judgment in
default against the judgment debtor for RM1.4 million. The judgment creditor then
obtained a garnishee order absolute against the garnishee. On appeal, the High Court
in setting aside the garnishee order absolute, held: Where it was clear that the
judgment debtor owed the garnishee more money, the garnishee has a right to set
off against any claims owing to the judgment debtor. It would be contrary to justice
and fair play to order the garnishee to pay the judgment creditor just because the
garnishee had not initiated an action against the judgment debtor for the sum owed.
This is particularly so where the garnishee order had caused great financial problems
as it was the judgment debtor who had delayed the project, causing the garnishee to
have to pay the sub-contractors and the purchasers for late delivery.
- Hale v Victoria Plumbing Co Ltd: A garnishee could benefit from its
counterclaim, despite the fact that the garnishee had taken no legal
proceedings against the judgment debtor to diminish or extinguish its
indebtedness to the judgment debtor, so that there might be nothing due to
the judgment debtor on which a garnishee order could operate.

- Mohammad Abdullah v Fu Lee Development Sdn Bhd: In this case, the sums of monies
available from the end-financier for the housing project developed by the judgment
debtor were released progressively to the judgment debtor on the basis of certificates
of completion issued by the architect for the housing project. All payments paid by
way of end-financing were channelled to the judgment debtor through the
garnishee, a firm of solicitors. The final instalment amounting to 5% of the purchase
price was to be retained by the garnishee as stakeholders until the issuance of the
certificate of fitness. Two years later, the judgment creditors obtained judgment
against the judgment debtor. The Senior Assistant Registrar ordered that certain
monies held by the garnishee as stakeholder remain garnished until further inquiry to
satisfy a judgment recovered against the judgment debtor by the judgment creditors.
On appeal, the court held: The judgment debtor is entitled to payment of the monies
only upon production of the certificates of fitness. Therefore, until the condition is

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met, that is, until the certificate of fitness is produced, the monies in the hands of
the garnishee cannot constitute a debt due or accruing due to the judgment debtor.
Claims of a third party:
- O. 49 r. 6(1): If a third party (some other person other than the judgment debtor)
claims to be entitled to the debt sought by the judgment creditor in the hands of the
garnishee, the court may order that person to attend before the court and state the
nature of the claim.
- O. 49 r. 6(2): After hearing the person, the court may:
- Summarily determine the issue, or
- Order for any question necessary for determining the liability of the garnishee
be tried.

- Tay Way Boon v Omar Marican Holdings Sdn Bhd: An interested party applied to
intervene in the garnishee proceedings, claiming to be entitled to the money by virtue
of a deed of assignment by which the judgment debtor, in consideration of a loan of
RM300,000 granted to it by the interested party, had assigned to the interested
party all payments and debts due from the garnishee. The interested party also relied
on a letter written by the judgment debtor to the garnishee purporting to give an
irrevocable authority to the garnishee to pay to the interested party monies due
from the garnishee to the judgment debtor under a certain contract. After hearing
the parties, the Senior Assistant Registrar made a garnishee order absolute ordering
the garnishee to pay to the judgment creditors. The interested party appealed and
contended that it had priority over the judgment creditors because the assignment
was absolute and was executed one year before the judgment creditors obtained
judgment against the judgment debtors. It was also contended that the letter
constituted a valid equitable assignment which would also rank in priority to the
garnishee order. The court in allowing the appeal, held: The assignment was an
absolute assignment in the sense that the judgment debtor had assigned to the
interested party all moneys due and payable to him by the garnishee under the said
contract until his loan of RM300,000 was fully satisfied or repaid. Further, the letter
constituted a valid equitable assignment by the judgment debtor in favour of the
interested party. The garnishor cannot therefore attach a debt which had been
equitably assigned.
Whether a garnishee order prevails when a Mareva injunction is in existence:
- Labtec Sdn Bhd v Resilient Construction Sdn Bhd: A Mareva injunction merely restrains
the judgment debtor from disposing of or dealing with any moneys owed to the
judgment creditor from the garnishee. It does not prevent the judgment creditor from
resorting to O. 49 r. 1 to garnish the amount of debts due.

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Appeals
- The right of a party to appeal is a creature of statute. No appeal shall lie unless there
is a statutory provision enabling an aggrieved party to appeal.
Appeal to the High Court:
- O. 55 r. 2 & r. 3(1): A notice of appeal made in Form 111 must be filed in the Registry
of the court from which the decision is appealed from within 14 days from the date
of the decision.
Appeal to the Court of Appeal:
- r. 17, Rules of the Court of Appeal 1994:
- (1) An appeal is entered by filing 4 copies of Notice of Appeal in Form 1 in the
Registry of the High Court where the judgment was obtained
- (2) The appellant must send a copy of the notice of appeal by registered post
to the Court of Appeal.

- r. 12, Rules of the Court of Appeal 1994: No appeal shall, except by leave of the court,
be brought after the expiration of one month –
- (a) in the case of an appeal from an order in Chambers, from the date when
such order was pronounced at the hearing;
- (b) in the case of an appeal against the refusal of an application, from the date
of such refusal;
- (c) in all other cases, from the date on which the judgment or order appealed
against was pronounced.
Extension of time to file notice of appeal:
- Where a party has delayed in filing his appeal, he must apply by way of a notice of
motion supported by an affidavit for leave of the court for an extension of time:
- For appeals to the High Court: O. 3 r. 5
- For appeals to the Court of Appeal: r. 27(1), Rules of the Court of Appeal 1994

- The applicant must:

- Show merits of the appeal
- Give reasons for the delay in filing the notice of appeal

- Safety Insurance Co Ltd v Wong Choo Yong: The appellants had applied for extension
of time to file their notice of appeal. The reason for the extension as stated in the
affidavit in support of the appli atio as that the appella ts solicitor was unable to
file the record of appeal in time as although he had received the notes of evidence he
had not received copies of certain exhibits which were to be included in the record of
appeal. However, the affidavit did not say anything about the merits of the appeal.
Held: The appellants had failed to show the merits of the appeal in the affidavit in
support of the application and therefore the application must be dismissed.

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- Chin Hua Sawmill Sdn Bhd v Tuan Yusoff: The notice of appeal was filed by the
appellant s solicitors within one month, but it was not served within one month. Held:
Where the failure to serve the notice to the respondent within the prescribed period
of one month was due to the soli ito s istake, the e as o g ou d fo g a ti g
special leave.

- Soh Keng Hian v AIA Co Ltd: On 3 September 1994, the High Court at Muar delivered
its decision in the suit between the appellant and the respondent. Dissatisfied with
the decision, the appellant filed an appeal in the Registry of the High Court on 1
October 1994. The last date for serving the notice of appeal on the respondent was
4 October 1994. However, the appellant overlooked serving it. On 10 October 1994,
the espo de t e a e a a e of the appella t s i te tio to appeal, he it e ei ed
a copy of the notice of appeal. The respondent then filed a motion to strike out the
appeal for want of service. The appellant applied for an extension of time to serve the
noti e of appeal o the espo de t. The ou t i dis issi g the appella t s appli atio
a d allo i g the espo de t s appli atio , held: It is obvious that this court is seized
with a wide discretion to extend time in proper and deserving cases. But, it is not an
unprincipled discretion. There must be some relevant evidential material made
available before the court may exercise discretion. In the present case, there was no
reasonable explanation for the failure to serve and the delay in filing the appeal.
- The court held that four factors must be taken into account in deciding
whether to grant an extension of time to file a notice of appeal:
- The length of the delay
- The reasons for the delay
- The chances of the appeal succeeding in the event an extension is
granted
- The degree of prejudice that the opposite party may experience if the
extension is granted

- Delay due to the la e s istake as to a poi t of la :

- Sinnathamby v Lee Chooi Ying: In this case, where the amount or value of the
subject matter at the trial was less than RM100,000, the appeal could only be
brought with leave of the Supreme Court or a judge of the High Court. Leave
to appeal was therefore obtained by the appellants from the judge of the High
Court, but owing to a misunderstanding of the rules applicable the notice of
appeal was filed out of time. Held: Although the notice of appeal was filed out
of time, since leave to appeal had been obtained, there was in all the
circumstances sufficient ground for granting the appellants leave to appeal out
of time.

- Gatti v Shoosmith: Owing to a misreading of the rule, the applicant was a few
days late in entering an appeal. The intention to appeal had been notified to
the respondent s soli ito s a lette . The applicant asked from the court that
the time might be extended on the ground that the failure to enter the appeal

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within the time limited was due to the mistake of a legal adviser. Held: There
is nothing in the nature of such a mistake to exclude it from being a proper
ground for allowing the appeal to be effective though out of time; and
whether the matter shall be so treated must depend on the facts of each
case. The facts of this case made it one where the discretion of the court
ought to be exercised, and leave to appeal given.
Stay of execution:
- Where a judgment or order is not enforced until the appeal is heard and determined.
Procedure:
- A court which has given judgment certainly has the power to order a stay of execution.
However, a stay of execution is not granted automatically. A party appealing must first
apply for a stay of execution in the first instance to the court appealed from (where
judgment was given). If the application is refused, the party must then apply to the
appellate court against the decision refusing a stay of execution.

- Stay of execution in Subordinate Courts:

- O. 55 r. 16(1): An appeal shall not operate as a stay of execution under the
decision appealed against except in so far as the court appealed from or the
High Court may order, and any application for stay shall be made in the first
instance to the court appealed from.
- An application for stay must first be made to the court where the decision was
gi e , a el the Magist ate s Cou t or the Sessions Court.

- Stay of execution from the High Court to the Court of Appeal:

- Sec. 73, Court of Judicature Act & r. 13, Rules of the Court of Appeal 1994: An
appeal shall not operate as a stay of execution or of proceedings under the
decision appealed from unless the court below or the Court of Appeal so orders
and no intermediate act or proceeding shall be invalidated except so far as the
Court of Appeal may direct.
- An application for stay must first be made to the High Court.
- If the application is refused, an application must be made to the Court of
Appeal by way of a notice of motion supported by an affidavit.

- Stay of execution from the Court of Appeal to the Federal Court:

- Sec. 102, Court of Judicature Act & r. 52, Rules of the Federal Court 1995: An
appeal shall not operate as a stay of execution or of proceedings under the
decision appealed from unless the court below or the Federal Court so orders
and no intermediate act or proceeding shall be invalidated except so far as the
Federal Court may direct.
- An application for stay must first be made to the Court of Appeal.
- If the application is refused, an application must be made to the Federal Court
by way of a notice of motion supported by an affidavit.

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The court has the discretion to grant a stay, however such discretion must be founded upon
established judicial principles:
Special circumstances test:
- Halsbury’s La s of England: The court has an absolute and unfettered discretion as to
the granting or refusing of a stay and will only do so if there are special circumstances.
- Serangoon Garden Estate Ltd v Ang Keng: The court will not deprive a successful party
of the fruits of his litigation until an appeal is determined, unless the unsuccessful
party can show special circumstances to justify it.
- Merely showing that if the appellant succeeded in his appeal he could not be
restored to the same position as before cannot be a sufficient ground on which
to grant a stay of execution.
- However, the fact that the appellant could not be restored to his original
position if his appeal succeeds, coupled with some other grounds, for
example, that there were merits in the appeal, can be considered as special
circumstances justifying the discretion to grant a stay.

- Kwong Hing Sauce Factory v Pengarah Tanah dan Galian Wilayah Persekutuan Kuala
Lumpur: The appellant instituted a suit in the Sessions Court on the ground that it had
an equitable license to o up the go e e t la d. The appella t s occupation on
the land under temporary occupation license had e pi ed i . The appella t s
application for the land to be alienated to them was rejected by the respondent. The
Sessio s Cou t allo ed the espo de t s applicatio to st ike out the appella t s
claim. The appellant appealed against the decision. While the appeal was still pending
at the High Court, the respondent, with about 30 officers from DBKL and the police,
came to the land with bulldoze s to de olish the appella t s fa to y pu sua t to the
Sessio s Cou t s judgment. The respondent had damaged pa t of the appella t s
factory gate and fences. The appellant thus filed the present application for a stay of
e e utio of the Sessio s Cou t s judgment until the disposal of the appeal. In allowing
the application, the court held: In an application for stay of execution, the onus is on
the appellant to demonstrate the existence of special circumstances to justify the
grant of a stay. The reasons must relate to the enforcement of the judgment. In this
case, the demolition works would effectively deprive the appellant of the results of
the appeal. The main gate and fences to the factory had been damaged and assuming
that the demolition was effected, the appellant would suffer losses and the subject
matter of the appeal would be demolished. In doing so, the execution of the order
would destroy the subject matter of the action and deprive the appellant of the
means of the appeal. This, constituted special circumstances which justified the
granting of a stay of execution pe di g the disposal of the appella t s appeal.

Nugatory principle:
- See Teow Guan v Kian Joo Holdings Sdn Bhd: The paramount consideration governing
an application for a stay of execution or proceedings, is that the appeal, if successful,
should not be rendered nugatory (useless). If upon balancing all the relevant factors,

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it is clear that an appeal would be rendered nugatory without the grant of a stay or
the interim preservation order, a stay or other appropriate interim relief that has the
effect of maintaining the status quo should normally be directed. However, in a case
where the pending appeal is obviously unarguable, it will not be a proper exercise of
discretion for the court to grant a stay.

- Chong Wooi Leong v Lebbey Sdn Bhd: The appellants lost their appeal in the Court of
Appeal and were ordered to give vacant possession of their premises to the
respondent. In the meantime, they applied for a stay of the order, namely for the
preservation of the property pending the hearing of their application for leave to
appeal before the Federal Court. Counsel for the appellant contended that if the
order was not stayed, then the respondent would demolish the appella ts premises
and this would consequently render their application for leave to appeal nugatory. In
allowing the application, the court held: If the o de as ot stayed, the appella ts
application for leave to appeal to the Federal Court would be rendered nugatory as
even if they succeeded in their application and eventually in their appeal, their
premises, the subject matter of the appeal, would already be irretrievable. Hence,
the stay of execution of the order was therefore necessary in order to give any
meaningful purpose to their application for leave to appeal.

- However, the Federal Court in Kerajaan Malaysia Dato’ Haji Ghani Gilong and
Kerajaan Malaysia v Jasanusa Sdn Bhd has held that the nugatory principle is not a
paramount consideration and the special circumstances test laid down in Serangoon
Garden is to be followed.
Leong Chee Kong v Tan Leng Kee: The correct test to be applied is the special circumstances
test. The nugatory principle is one of the grounds on which the court may find that there are
special circumstances present warranting a stay. It would be wrong to apply the two tests
disjunctively because the nugatory principle is subservient to the special circumstances test.
In the event that an appeal would be rendered nugatory and that there are merits in the
appeal, then these would constitute special circumstances. Thus, whether an appeal would
be rendered nugatory, or otherwise is one of the factors to be considered in applying the
special circumstances test. The following considerations should therefore be taken into
account in deciding whether a stay should be granted:
- Whether a successful appeal would be rendered nugatory by a refusal to grant a stay.
- Whether irreparable damage would be done to the plaintiffs should the stay be
refused because the plaintiffs may not be able to obtain the fruits of their litigation.
- Whether the stay will be granted in order to maintain the status quo until all the
disputes between the parties have been resolved.
- Even where there are no special circumstances present, but where the appellants
would be irremediably injured if there was no stay should thei appeals su eed, the
court would still be empowered and has the discretion to grant a stay.
- Whether the appellant has an arguable appeal.

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