July 2019 (Civil Procedure)

Q2(d) – 6 marks

1. The developer may apply to the Court for relief by way of stakeholder interpleader
under O.17 RC 2012.

q Tong Lee Co Pte Ltd v Koh Chiow Meng : interpleader proceedings are not, in
the strictest sense, proceedings against anybody, but are proceedings, the
object of which is to extricate the applicant from the embarrassment of being
sued, or likely to be sued, by more than one party in respect of the same
subject matter, and also to put the claimants in a position in which, if they are
going to insist upon their claims, they should do so when the application was
made.

q FC in Tetuan Teh Kim Teh, Salina & Co (a firm) v Tan Kau Tiah @ Tan Ching
Hai [2013] 4 MLJ 313 – stakeholders should be impartial and should not play on
the same side as one of the claimants.

2. The developer is genuinely facing a potential suit by both Company A and
Company B – they must be real threat of litigation.

q Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd [2009] 7 MLJ 124 –
the High Court held that the application did not meet this requirement
since the applicant was not faced with two or more competing claims.
Moreover, the applicant did not face any real threat of litigation since the
threats by the second and third claimants in the instant case could not be
construed as threats of legal suit


3. The Developer does not claim any right to the retention money, and he must not
collude with any of the claimants

q Murietta v South American etc Co Ltd [1893] 62 LJQB 396

4. Procedure:

− Application to court is by way of originating summons -- r.3(1)
− A stakeholder applicant must file and serve an affidavit in support in the
manner specified under r3(2), among others, stating that he claims no interest
in the subject matter in dispute (other than cost)
− The OS must be served personally at least 7 days before the return day – r.4(1)

5. The court may decide on the merits of the application summarily – r.5(2) or order
for a trial of interpleader issue – r.11.

6. If either Company A or B, having been duly served with an originating summons /
notice of application under this Order does not appear at the hearing, or, having
appeared, fails or refuses to comply with an order made in the proceedings – the
Court may make an order forever barring him from prosecuting his claim against
the applicant for such relief – O.17 r.5(3)

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7. Order as to costs - the Developer is entitled to costs up to the date he brought into
court the amount claimed and this will be borne by the unsuccessful claimant –
Goodman v Blake[1887] 19 QBD 77


Q3(a) – 6 marks

RM12,000 of the consent judgment has not been paid.

Judgment dated 3 June 2013. Current date : July 2019. More than 6 years have lapsed.

1. S6(3) Limitation Act 1953 - An action upon any judgment shall not be brought after
the expiration of twelve years from the date on which the judgment became
enforceable and no arrears of interest in respect of any judgment debt shall be
recovered after the expiration of six years from the date on which the interest
became due.

2. If enforcement is sought by way of writ of execution after 6 years, leave must be
obtained – O.46 r.2(1)(a)

3. Param is entitled to enforce the judgment, subject to the following:

− He will not be able to recover arrears of interest in respect of the judgment
debt
− If he would like to enforce by way of writ of execution, he must first obtain
leave

4. Writ of execution – O.46 r.1 : includes a WSS, writ of possession and writ of
delivery.

5. Param may proceed by way of WSS if Devan has movable / immovable property
that he may seize and sell to satisfy the remaining judgment debt.

6. Other methods of enforcement -- O.45 r.1:
a. Garnishee – if Devan has any debt owed to him from a third party; or any
bank accout of Devan that has sufficient funds
b. Committal
c. Charging Order – if Devan has any stock and shares
d. Appointment of receiver – if Devan has any other income, for eg. From
rental.


7. What about bankruptcy – would leave be required? [YES]

q Ambank (M) Bhd v Tan Tem Son & Anor Appeal (FC)[2013] 3 CLJ 317 – a
bankruptcy proceeding is not a writ of execution within the meaning of O.46
r.2

q DR SHAMSUL BAHAR ABDUL KADIR & ANOTHER APPEAL v. RHB BANK
BHD [2015] 4 CLJ 561, FC

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(1) The effect of s. 3(1)(i) of the BA 1967 is that a judgment creditor, who has
obtained a final judgment or final order against a judgment debtor for any
amount and execution thereon had not been stayed, was entitled to
commence a bankruptcy proceeding against the judgment debtor. Section 6(3)
of the Limitation Act 1953 (‘LA 1953’) provides that an action upon any
judgment shall not be brought after the expiration of 12 years from the date on
which the judgment became enforceable and no arrears of interest in respect of
any judgment debt shall be recovered after the expiration of six years from the
date on which the interest became due. (paras 8 & 35)

s3(1) BA 1967 (Now Insolvency Act 1967) : A debtor commits an Act of
bankruptcy in each of the following cases:

(i) if a creditor has obtained a final judgment or final order against him for any
amount and execution thereon not having been stayed has served on him in
Malaysia, or by leave of the court elsewhere, a bankruptcy notice under this
Act requiring him to pay the judgment debt or sum ordered to be paid in
accordance with the terms of the judgment or order with interest quantified up to
the date of issue of the bankruptcy notice, or to secure or compound for it to the
satisfaction of the creditor or the court; and he does not within seven days
after service of the notice in case the service is effected in Malaysia, and in
case the service is effected elsewhere then within the time limited in that behalf
by the order giving leave to effect the service, either comply with the
requirements of the notice or satisfy the court that he has a counter-claim, set off
or cross demand which equals or exceeds the amount of the judgment debt or
sum ordered to be paid and which he could not set up in the action in which the
judgment was obtained or in the proceedings in which the order was obtained:
[Am. Act A827:s.3]
Provided that for the purposes of this paragraph and of section 5 any person
who is for the time being entitled to enforce a final judgment or final order shall
be deemed to be a creditor who has obtained a final judgment or final order;

(2) Until the advent of Tan Tem Son, a judgment creditor was entitled to
commence a bankruptcy proceeding against the judgment debtor, if the
judgment creditor could issue immediate execution upon the judgment
or order. In that case, it was held that O. 46 r. 2(1) of the RHC, which did not
apply to a bankruptcy proceeding, could not be employed to construe the
words ‘execution thereon not having been stayed’ to mean that in addition to
there being no stay of execution, the creditor must be in a position to issue
immediate execution, and the only bar to the institution of bankruptcy
proceedings is the limitation under s. 6(3) of the LA 1953. Tan Tem Son had
clearly departed from history and case law and this court saw no alternative
but to put it back to where it was, in line with other jurisdictions with a
provision equipollent to s. 3(1)(i) of the BA 1967. (paras 10, 11, & 59)
(3) In Lim Ah Hee, it was decided that a bankruptcy proceeding was not a writ
of execution within the meaning of O. 46 r. 2 of the RHC and it was within the
meaning of ‘action’ in s. 2 of the LA 1953. Therefore, it was caught by s. 6(3) of
the LA 1953. However, the issues in that case had nothing to do with the
meaning of the words ‘execution thereon not having been stayed’ in the
context of s. 3(1)(i) of the BA 1967. Rather, the issues there were about the
applicability of s. 6(3) of the LA 1953 to bankruptcy proceedings and the

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validity of a bankruptcy notice where the judgment debtor had not disputed
the claim stated in the bankruptcy notice within seven days from the date of
service of the said notice. Further, Lim Ah Hee did not state that leave was not
required to issue a bankruptcy notice where six years had lapsed since the
judgment or date of the order. Hence, this court could not agree with the trial
court that in Lim Ah Hee, a bankruptcy proceeding was not executionary
proceedings in the sense that it was a continuation of a judgment and that no
leave was required to issue the bankruptcy notice after six years. (paras 10, 39,
43 & 45)
(4) In Re Woodall, ex p Woodall and Re ex p Ide, a creditor was entitled to issue
a bankruptcy if he was in a position to issue execution on his judgment at the
time when he issued the bankruptcy notice. A bankruptcy proceeding was not
execution but the right of the creditor to issue bankruptcy notice was pegged
to the right of the creditor to proceed to execution. A creditor was not entitled
to issue bankruptcy notice if he was not in a position to issue execution on his
judgment at the time when he issued the bankruptcy notice. If by reason of the
Rules of Court or on account of some valid legal reason a creditor was in no
position to issue execution at the time when he issued the bankruptcy
notice, then the creditor had no right to issue bankruptcy notice. (paras
53 & 54)
(5) The meaning of the words ‘execution thereon not having been stayed’
should be construed in the context of s. 3(1)(i) of the BA 1967 and not from the
perspective of s. 6(3) of the LA 1953. Section 6(3) should not be read to
nullify O. 46 r. 2 of the RHC. Further, any person who is for the time being
entitled to enforce a final judgment in the proviso to s. 3(1)(i) must be a person
who is entitled to enforce a final judgment without prior leave of court. (paras
57 & 60)
(6) A judgment creditor who commences bankruptcy proceedings after more
than six years had lapsed from the date of judgment must obtain the prior
leave of the court pursuant to O. 46 r. 2 of the RHC. On the facts, the judgment
was obtained on 10 October 2000 and when the bankruptcy notice was issued
on 3 January 2011, the judgment was more than six years old. In other words,
when the bankruptcy notice was issued, the respondent was not in a position
to execute the judgment without the leave of court. Leave should and could
have been obtained. Since the answer to the first question was in the positive
and would dispose of this appeal, there was no necessity to answer the second
question. (paras 60 & 61)

q AMFRASER SECURITIES PTE LTD v. POH GAIK LYE [2016] 6 CLJ 637, FC

(1) There is a reason (independent of the reasons given by the Court of Appeal
in its judgment) which is fundamental in nature on account of which the
decision of the High Court reinstating the notice could not stand. This is in
respect of the fact that the notice was issued without complying with O. 46 r. 2
of the RHC. This critical issue was not dealt with by the Court of Appeal.
(2) AmBank Bhd v. Tan Tem Son & Another Appeal was reconsidered by a
different panel of this court in Dr Shamsul Bahar Abdul Kadir & Another
Appeal v. RHB Bank Bhd where the later panel declined to follow AmBank Bhd.
In Dr Shamsul Bahar Abdul Kadir & Another Appeal v. RHB Bank
Bhd this court held that a judgment creditor who commences

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bankruptcy proceedings after more than six years have lapsed must
obtain the prior leave of court pursuant to O. 46 r. 2 of the RHC.
(3) As was said in Dr Shamsul Bahar Abdul Kadir & Another Appeal v. RHB
Bank Bhd, a person ‘who is for the time being entitled to enforce a final
judgment’ in the proviso to s. 3(1) of the Bankruptcy Act 1967 must be a person
who is entitled to enforce a final judgment without prior leave of court. If
when the bankruptcy notice is issued, the judgment was more than six
years old, then the judgment creditor is not in a position to execute the
judgment without the prior leave of court. In such a case, leave under O.
46 r. 2 must be obtained.
(4) The notice in the present appeal was issued some ten years and five months
after the judgment was obtained. Applying the law as pronounced by this court
in Dr Shamsul Bahar Abdul Kadir & Another Appeal v. RHB Bank Bhd, the
eventual outcome of the appeal is inevitable. The appellant was not a person
for the time being entitled to enforce a final judgment in the proviso
to s. 3(1)(i) of the Bankruptcy Act 1967 and leave under O. 46 r. 2 of the
RHC should have been obtained. Since no such leave was obtained, the
appellant was not in a position to execute the judgment and hence was not
entitled to issue the notice. On this ground alone, the notice ought to be set
aside.


Q5(a) – 9 marks

(i) Plaintiff omitted to state his occupation and his address in the affidavit

• A requirement of form of affidavit pursuant to O.41 r.1(4)
• O.41 r.4 allows the court to grant leave for the use of an affidavit
notwithstanding any irregularity
• Syarikat Islamiyah v Bank Bumiputra Malaysia Bhd [1988] 3 MLJ 218 –
omission to state that in the deponent’s belief there is no defence in an
O.14 application – was allowed to be corrected by subsequent supplemental
corrective affidavit and regarded as a defect, provided that the defendant is
not thereby prejudiced
• Ho Mee Luang v Lo Ga Lung [1997] 2 MLJ 617 – where former rather than
current occupation and business address was stated – affidavit was not
struck out

(ii) The issue is whether the affidavit is thus defective and a “still-born” for possibly
supporting a non-existent application?

Issue : An affidavit in support of an OS is affirmed before the issue of the OS

q Ban Hin Lee Bank Bhd v Pang Lai Hin [1999] 2 MLJ 234, RK Nathan

“…if the affidavit has not been affirmed in an existing cause or matter, then the filing
of such an affidavit cannot be treated as an irregularity that can be cured. In my view
it is a nullity as it supports a non-existent cause or matter. In other words, the
affidavit is 'still-born' and no resuscitative procedure by way of Order 2 r 1 of the RHC

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which relates to the liberal stand taken by the courts in respect of non-compliance of
the rules, can breathe life into the 'still-born'. It remains a nullity. In the
circumstances, even Order 41 r. 4 of the RHC which read: An affidavit may, with the
leave of the court, be filed or used in evidence notwithstanding any irregularity in the
form thereof..cannot save the day for the plaintiff.”

However,

q Hong Kong Bank Malaysia Bhd v. Nor Harizan Mohd Ali[1999] 6 CLJ 466

Order 41 r. 1 of the Rules of the High Court 1980 required that an affidavit to be
used in support of an originating summons must be given a title. The title should
relate to the subject matter of the action, and in the present case, this was present.
The case number that is assigned by the court registry upon filing an originating
summons is for administrative purposes only and could not be considered as the
title in the cause or matter.
The swearing of an affidavit that bears no registration number of the case before
the originating process had even begun does not violate any provision of the law,
and to hold otherwise would result in grave hardship and unnecessary
inconvenience to the parties concerned.
Therefore, in the present case, to hold that the affidavit was defective on the
ground that it lacked the registration number and therefore not properly entitled
would militate against basic principle of justice. The affidavit therefore was
properly admitted and admissible.

q Yang Lak Man v. Yang Paw Man[1999] 7 CLJ 131, Hishamudin Yunus J

With respect, I share the view as expressed by the learned judge in Hongkong
Bank. On my part, I have nothing more to add to what has been expressed by Azhar J
except just to stress that, having scrutinised O. 41 r. 1(1) and (2), I simply fail to see in
what way it could justifiably be said that the said provisions, either expressly or by
implication, require the affirming of a supporting affidavit to be done only after the
originating summons has been filed and not before. It is, I concede, true that an
affidavit affirmed before the originating summons is filed would not carry the
originating summons serial number as yet. But then this omission, at the time of the
affirmation, is understandable, and should not, in my mind, be a matter of grave
concern. For the serial number would in due course (when the originating summons
together with the supporting affidavit are filed in court), partly as a matter of
procedural law (O. 6 r. 6(3) read together with O. 7 r. 5 of the RHC), and partly as a
matter of hitherto accepted practice, be given by the registrar and thereafter inserted
by the relevant officer of the court in the title (as a matter of practice, at the time of
filing, the reference to the serial number in the title would be left blank in the form
'Originating Summons No: ...') of both the originating summons as well as the
supporting affidavit.
Another thing that I wish to add is that, in my humble view, it is unfair to
overemphasise the importance of the serial number of a supporting affidavit in
respect of a nascent (that is, a pre-presented) originating summons. The serial
number, as we are all aware, is only one of the components or parts of the title of the
action. There are other equally important components of the title, that is, the name
of the High Court where the action is filed, the name of the parties to the action, and
the subject matter of the action (expressed in the form of '(In the matter of...)'), as
illustrated by Azhar J (at p 633A-E) in Hongkong Bank.

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Finally, I share the sentiment as expressed by the learned judge in Hongkong

Bank that, to insist that a supporting affidavit for an originating summons be
affirmed only after the originating summons has been filed in court, would be not
only contrary to established contemporary legal practice but would also cause
unnecessary confusion and hardship to litigants.
Accordingly, the preliminary objection is overruled.

q STANDARD CHARTERED BANK MALAYSIABHD v. ARIVALAGAN KRISHNAN &
ANOR [2001] 4 CLJ 168, Low Hop Bing J

I would stress that O. 41 r. 1(1), which has become the focus of judicial interpretations
in all aforesaid four judgments, did not make any reference to any serial number of a
cause or matter but merely that "every affidavit sworn in a cause or matter must be
entitled in that cause or matter". That being the case, the case number or serial
number, as the case may be, is not a specific or express requirement of O. 41 r. 1(1). By
way of a practical illustration, when an originating summons is to be filed in court,
the originating summons and the affidavit in support thereof are invariably prepared
together and the affidavit in support is normally affirmed first and then filed, as a
matter of practical convenience, together with the originating summons. The
originating summons would then be registered with a case number with the
necessary code for the purposes of the payment of praecipe. Thereafter, possibly a
few days or exceptionally few weeks later, depending on the volume and pressure of
work at the registry of the court the originating summons would be sealed and finally
it is signed by the registrar of the court, to be extracted by the law firm filing it. It
would be inconvenient or impractical for the affidavit to be affirmed on or after the
date on which originating summons has been filed and extracted, as it would mean
filing the originating summons first, obtain the extract copy with the case number
and then file the affidavit in support. That possibly is the reason why O. 41 r. 1(1) does
not make any reference to the case number or serial number but merely the title. In
the circumstances, I hold that the affidavits filed by the plaintiff herein are not
defective and therefore admissible.

• The notice of application for summary judgment and the supporting
affidavit would be prepared together, and the affidavit would be affirmed
before both the NoA and affidavit filed together
• The NoA would then be sealed and dated upon it being issued – O.32 r.2
• No requirement that a supporting affidavit can only be affirmed AFTER the
issue of notice of application


(iii) The affidavit contained facts which the Plaintiff was not able of his own
knowledge to prove.

• O.41 r.5(1) & (2) – an affidavit in interlocutory proceedings may contain
statements of information of belief with the sources and grounds provided
• O.14 r.2(2) – an affidavit for the purpose of application for summary judgment
may contain statements of information or belief with the sources and grounds
thereof, unless the court otherwise directs

q Savings and Investment Bank Ltd v Gasco [1984 1 WLR 271] -- the purpose [of
the exception] is to enable a deponent to put before the court in

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interlocutory proceedings, frequently in circumstances of great urgency,

facts which he is not able of his own knowledge to prove but which, the
deponent is informed and believes, can be proved by means which the
deponent identifies by specifying the sources and grounds of his
information and belief’ –

q Dynacast (S) Pte Ltd v Lim Meng Siang [1989] 3 MLJ 456 – an affidavit of
information and belief which does not state the source of the information
or belief is irregular and therefore inadmissible in evidence – as such
statements of information or belief have no probative value unless the
sources and grounds of the information and belief are revealed. If the
sources are not so identified, they are purely hearsay evidence.

Q6(a)(ii)

Judgment sum of RM2 million (monetary judgment)

O.45 r.1(1) & (1A) – WSS, garnishee, committal, charging order, appointment of
receiver

*explain each type of execution by reference to the rules

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 November 2019 (Civil Procedure)

Q2(c) – 12 marks

Judgment including damages totally RM1.5 million and RM80,000 cost.

O.45 r.1 – WSS, garnishee, committal, charging order, appointment of receiver

(i) Bank account with ABC Bank

− Garnishee under O.49 – as ABC Bank is a garnishee to DEF.
− As long as ABC Bank is within jurisdiction, Paul may institute
garnishee proceedings

Procedure

a) Stage 1 - rr. 1 & 2
o Garnishee to show cause
o Garnishee order nisi to show cause in Form 97 – r.1(2);
application by way of ex parte notice of application supported by
affidavit in Form 98 – r.2
o Service of order nisi on garnishee as per r.3
o Serves as an injunction – a charge created that freezes the sum

b) Stage 2 - rr. 4 & 5

o If no appearance or dispute, order absolute in Form 99 is made –
r.4(1)
o Garnishee could dispute liability, for eg where he has his own
claim against the judgment debtor which would extinguish or
diminish his liability to the latter – Hale v Victoria Plumbing Co
Ltd [1966] 2 All ER 672
o If garnishee disputes liability – r.5

q PEMBINAAN HT JAYA SDN BHD v. LEMBAH KLANG
LANSKAP SDN BHD AND ANOTHER ACTION [1998] 1 LNS
488

In the event the garnishee disputes his liability to pay the debt as
exemplified in Hale v. Victoria Plumbing Co. Ltd [1966] 2 QB 746
(where the garnishee have his own claim against the judgment
debtor which would extinguish or diminish his liability to the
latter), then the court has no choice but to determine the matter
summarily or order that the matter be “tried in any manner in
which any question or issue in an action may be tried” (Kiyoso
Metal Co Sdn Bhd v. Intersistem Development (M) Sdn Bhd
[1987] 2 MLJ 244)

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 November 2019 (Civil Procedure)

(ii) Shares in Kaya & Rich Sdn Bhd

• Such shares fall within O.50 r.2(3) – as such Paul could obtain a
charging order in relation to such shares

a. Stage 1
− r.3 : to show cause
− r.4 : on service of order nisi
− r.5 : effect of a show cause order

b. Stage 2
− r.6: Order nisi may be made absolute

• Enforcement of an order absolute is by way of instituting separate
proceedings for the sale for the stocks or interests, since the charging
order is not an order for sale, Leggott v Western [1884] 12 QBD 287

• Also – WSS of Securities under O.47 r.8



Q3(b)

(i) Plaintiff is raising a preliminary objection on the ground that Defendant’s
counterclaim does not have reasonable cause of action on the day of the trial

11.04. Notice of preliminary objection

(1) An Advocate and Solicitor shall give written notice to the Advocates and
Solicitors representing all the other parties in the litigation, of his/her intention
to raise a preliminary objection at any hearing before any court, tribunal or
other body.

(2) Such written notice shall be given to the other Advocates and Solicitors
within a reasonable time before the hearing and in any event not later than 4
clear working days before the hearing, to enable the other Advocates and
Solicitors to properly prepare themselves and to secure instructions from their
clients with regard to the proposed preliminary objection.

(3) Such written notice shall set out the following details:

(a) the nature of the proposed preliminary objection;

(b) a list of authorities that the Advocate and Solicitor raising the preliminary
objection intends to rely on; and

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(c) the proposed relief that the Advocate and Solicitor raising the preliminary
objection will seek before the court, tribunal or other body.

(4) Only in exceptional circumstances may an Advocate and Solicitor raise a
preliminary objection during the hearing of any matter without giving the
written notice required in this Ruling. In such event the Advocates and
Solicitors representing the other parties are entitled to request for an
adjournment of the preliminary objection and the Advocate and Solicitor
raising the preliminary objection is precluded from objecting to such a request.

(5) Nothing in this Ruling shall affect the general discretion of the relevant
court, tribunal or other body to deal with preliminary objections, including
making orders for costs.

O.2 r.3 – Preliminary Objection not allowed

Further – Plaintiff should have filed an application to strike out under O.18
r.19(1)(a) instead of raising it on the day of the trial

(ii) Defendant applied to strike out Plaintiff’s claim on the ground that the
Plaintiff has agreed to accept the offer for settlement

• Plaintiff has initially agreed to the offer to settle
• Assuming that the offer to settle was made in Form 34, which calls into
operation of O.22B, it may be accepted at any time before the court
disposes of the matter – O.22B r.3(2)
• The Plaintiff now refused to accept the payment of RM500,000
• The Defendant’s options – O.22B r.8
• The Defendant may apply to the judge for judgment in the terms of the
accepted offer and strike out the Plaintiff’s claim


Q5(b) – 8 marks

Interim payment is ordered pursuant to O.22A

1. The purpose of O.22A Rules of Court 2012 is to allow the court to make an
order requiring the defendant to pay the plaintiff a certain sum of money
which the plaintiff is claiming from the defendant in the proceedings, to
alleviate the plaintiff’s hardship – ie the plaintiff will be awarded at earlier
stage of the proceedings what will become due to him at a later date.

2. Grounds for application for interim payment in respect of damages under
r.3:

(a) The defendant has admitted liability

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(b) The plaintiff has obtained judgment against the defendant for
damages to be assessed

(c) If the action proceeded to trial, the plaintiff would obtain judgment
for substantial damages against the defendant / defendants

q Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd [1987]
2 All ER 181 CA Eng – the standard of proof required is more
than a mere prima facie case is required but not proof beyond
a reasonable doubt; it is a civil burden on the balance of
probabilities


3. r.3(2) states that an order for interim payment in an action for personal
injuries will not be made unless the defendant falls into one of the following
category:

(a) the defendant is a person who is insured in respect of the plaintiff’s
claim
− as such, if it is a motor accident claim, since it is a requirement in
law that all motor vehicles must be insured, a plaintiff with a
personal injury claim will be able to make an application under
O.22A and the application may be allowed if the requirements of
this rule are met

(b) the defendant is a public authority
(c) the defendant is a person whose means and resources are such as to
enable him to make the interim payment

Further, r.11 states that an order for interim payment shall not be made
against the Government

q David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia Technology
Sdn Bhd [2005] 1 CLJ 589 CA

The plaintiff suffered serious head injuries as a result of being hit on the
head by a safety wheel which fell off a monorail train on a test run while he
was crossing the road. The plaintiff filed an action against the respondents
for their negligence in operating the monorail train and claimed general
damages in the sum of RM5,000,000 and special damages. The respondents
disputed the claim. Pending the trial, the appellant filed an application for
an interim payment of RM250,000 in respect of damages. The High Court
dismissed the claim.

The Court of Appeal allowed the appeal (and allowed the claim for an
interim payment), and held the following:

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a. the purpose of O.22A interim payment is to alleviate a plaintiff’s

hardship before trial
b. there is no necessity for the Plaintiff to make out a case that his
condition had deteriorated so that an interim payment is needed to
meet a worsening medical condition
c. O.22A is available to any plaintiff and not limited only to those
whose condition is deteriorating
d. The statement of claim showed that if the appellant succeeds, he
would be entitled to substantial damages
e. The medical report showed that the appellant had suffered severe
brain damage as a result of the accident
f. The court noted that brain damage is generally recognized as giving
rise to ‘substantial damages’ or ‘substantial loss’
g. The court was also of the view that the appellant was a ‘conscious
sufferer’ who would suffer more than a victim who is brain-dead or
comatose
h. The High Court judge failed to appreciate that the present case falls
within the ‘substantial damages’ category and instead confined
himself to determining whether there has been deterioration in the
appellant’s condition since the accident
i. The High Court judge on the issue of liability also failed to have
regard to the type of accident by which the appellant suffered his
injuries
j. It was a type of accident which clearly called for the respondents to
explain how the safety wheel could have dislodged and dropped on
the appellant, a res ipsa loquitur situation; where in the absence of
explanation by the respondents, negligence may be inferred
k. The respondents pleaded an act of an unknown third party as
responsible for the dislodgement of the safety wheel, but there was
no averment in respect of this third party intervention
l. The learned judge’s conclusion that the damages would be
substantially reduced because of novus actus inerveniens is wrong –
as the judge had concluded based on material which was not yet
tested at that stage
m. There was no basis in law for the trial judge to conclude that in the
event the respondents succeeded in their third party intervention
defence, the respondents would be absolved from liability altogether
or that damages would be substantially reduced.
n. However, the basis of the appellant's claim for RM250,000 interim
payment was that he would recover substantial damages at the trial
of his action for negligence. The respondents, however, contended
that any award to compensate the appellant if he succeeded at the
trial, would not exceed a sum in the region of RM50,000 to
RM60,000 based on the current trend of authorities. For that reason
the respondents suggested an interim payment of RM20,000 to be a
fair figure. In our view, the sum offered was too low. Therefore, in
the circumstances of this case and based on the available evidence

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and the current authorities on comparable damages, we are of the

opinion that the appellant would be able to recover substantial
damages exceeding RM50,000 if the matter proceeded to trial.
However, in this case, the appellant's claim for RM250,000 for an
interim payment under O. 22A was rather excessive. A sum of
RM50,000 would be more reasonable. In the exercise of our
discretion, we made the orders accordingly.

4. Procedures -- Manner of making application is provided in r.2 – by a notice
of application in Form 33 supported by affidavit.

5. r.2(3) states that in the affidavit, the plaintiff must:

(a) verify the amount of the damages, debt or other sum to which the
application relates and the grounds of the application;

(b) exhibit any documentary evidence relied on by the plaintiff in support of
the application; and

(c) if the plaintiff's claim in connection with fatal accident and the claim is
on behalf of dependents or the estate of the deceased (made under Part III
of the Civil Law Act 1956), the affidavit must contain the full particulars of
the person for whom and on whose behalf the action is brought and of the
nature of the claim in respect of which damages are sought to be recovered.

6. The notice of application and the affidavit in support must be served on the
defendant not less than 14 clear days before the return day.


Q6(c) – 6 marks

1. The proviso to S.3 Debtors Act 1957 sets out items not liable to attachment,
seizure or sale.

(1) Subject to and in accordance with any rules of court any sum of money
payable under the judgment of a court may be recovered in case of default or
failure of payment thereof forthwith or at the time or times, or in the manner
thereby directed by execution whether legal or equitable against the property
movable or immovable of the party against whom the judgment was obtained:

Provided that the following shall not be liable to attachment, seizure or sale
in such execution, namely:

(a) the wearing apparel, cooking vessels, beds or bedding of the judgment
debtor, his wife and children, and the tools and implements of his trade to the
value of two hundred ringgit in all, which to that extent shall be protected
from execution;

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(b) the tools of artisans or, where the judgment debtor is an agriculturalist,
his implements of husbandry and such cattle and seed-grain or produce as
may in the opinion of the court be necessary to enable him to earn his
livelihood as such;

(c) houses and other buildings (with the materials and the sites thereof and
the land immediately appurtenant thereto and necessary for their enjoyment)
belonging to an agriculturalist and occupied by him;

(d) books of account;

(e) any pension, gratuity or allowance granted by the Government of Malaysia
or the Government of any State or by such other public body as the Yang di-
Pertuan Agong may by notification in the Gazette designate;

(f) wages or salary of the judgment debtor:
Provided that where such wages or salary exceed two hundred ringgit a month
the court may authorize execution to be levied in such manner as may be
prescribed by rules of court in respect of such excess or part thereof as the
court may think just;

(g) where the judgment debtor is a person liable for the payment of land
revenue, any movable property which under any law applicable to him is
exempt from sale for the recovery of an arrear of such revenue; and

(h) any share of a judgment debtor in a partnership as to which the judgment
debtor is entitled to proceed to obtain a charge under any written law relating
to partnerships.

(2) Nothing in this section shall be deemed to exempt houses or other buildings or
the materials or sites thereof or the land immediately appurtenant thereto or
necessary for their enjoyment from attachment or sale in execution of judgments
for the payment of rent of any such house, building, site or land.



2. Other provisions expressly forbidding attachment of debts:

a. Bank Simpanan Nasional Act 1974, s.35(1)
b. Employees Provident Fund Act 1991, s.51
c. Pensions Act 1980, s.19
d. Workmen’s Compensation Act 1952, s.11
e. Co-operative Societies Act 1993, s.23
f. Employees’ Social Security Act 1969, s.41
g. Merchant Shipping Ordinance 1952, s. 142(1)(a)