[8] Summary Judgment & Summary Proceedings in Respect of Land

CHAPTER 8
Summary Judgment &
Summary Proceedings in Respect of Land

A. Summary Judgment – Order 14

[8.01] O14 is a summary procedure that allows to court grant judgment to P without a
trial and effectively shuts D from defending himself at trial. It is, in that sense, draconian
and must only be exercised in the clearest of cases. In M alayan Insurance (M ) Sdn
Bhd v Asia Hotel Sdn Bhd 1 Hashim Yeop A Sani SCJ said:

“The underlying philosophy in the O 14 provision is to prevent a plaintiff clearly entitled to the
money from being delayed his judgment where there is no fairly arguable defence to the claim.
The provision should only be applied to cases where there is no reasonable doubt that the
plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The
2
jurisdiction should only be exercised in very clear cases.”

1. Jurisdiction

[8.02] It is important to appreciate that O14 confers on the court a jurisdiction that it
does not otherwise possess. The point was lucidly explained by Gopal Sri Ram JCA (as
he then was) in Lee Teng Siong v Lee Kheng Lian & Ors.3

“At common law, a court … has no jurisdiction to enter judgment summarily against a
defendant to an action. It was the English Rules of the Supreme Court 1883 that empowered
the High Court to enter judgment summarily .. There was however no jurisdiction in the High
Court to enter judgment summarily in cases of specific performance and rescission. The
jurisdiction to enter summary judgment in cases of specific performance was conferred
through an amendment to the 1957 Rules by the introduction of an O 14A. In the
comprehensive procedural changes that took place in 1980, this summary jurisdiction was
written into O 81 which is the current empowering provision. Take away O 81 and you cannot
enter summary judgment for specific performance or rescission. Likewise with O 14. Take it
away and the court has no jurisdiction to enter summary judgment. I have made these points
to show that O 14(1) and O 81(1) of the RHC are not merely procedural in nature. They are
jurisdictional. I cannot overemphasise that absent these two rules of court there is no power in
4
the High Court to enter summary judgment.”

1
[1987] 2 MLJ 183
2
In Bank Negara v Mohd Ismail [1992] 1 MLJ 400 Gunn Chit Tuan SCJ (as he then was) said: “.. The
2
scope of Order
In Bank Negara14 vproceedings
Mohd Ismail [is][1992]
meant1 for
MLJcases whichChit
400 Gunn are Tuan
virtually
SCJuncontested
(as he thenorwas)
uncontestable ..
said: “.. The
scope of Order 14 proceedings [is] meant for cases which are virtually uncontested or uncontestable ..
Generally where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up
a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend.”
3
[2006] 5 MLJ 609
4
Apart from O81, the O14 jurisdiction is also not available in the following situations: O14 r1(2) and O73
r5(1).

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 [8] Summary Judgment & Summary Proceedings in Respect of Land

5
Further, O14 in r2(3) makes it amply clear that it is mutually exclusive from O81 .. This
exclusivity is important because the jurisdiction that the court exercises under the former is
distinct from the latter. Thus, a plaintiff cannot move under O14 until after appearance is
entered. However, an appearance to the writ is not a sine qua non of the summary judgment
jurisdiction conferred under O81. Also, O81 is only concerned with the forms of specific relief
or damages as an alternative thereto as provided by that rule of court …

What we are therefore concerned with are not two different procedures to achieve the same
result but two entirely different types of jurisdiction. Now, O1A (of which I must confess to be
the draftsman) speaks of the "technical non-compliance of any of the rules" .. But what we
have here is a jurisdictional point: not a mere technical non-compliance of the rules of court.
And, it is settled law that neither consent nor waiver may confer jurisdiction on a court that has
6
none .. An irregularity may be waived by the court; a want of jurisdiction cannot. It therefore
follows that O1A has no application to the present instance.” (emphasis added)

2. The Plaintiff’s Burden

[8.03] In order to invoke the court’s jurisdiction to grant summary judgment, P will have
to show that (i) his case comes within O14 and (ii) that he has satisfied the procedural
requirements. Once the conditions are satisfied, P has made out a prima facie case for
judgment. The “burden” then shifts to D to show why judgment ought not to be granted
against him. These principles were explained by Seah FJ in National Company for
Foreign Trade v Kayu Raya Sdn Bhd:7

“ … in every application under Order 14 the first considerations are (1) whether the case comes
within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for
proceeding under Order 14. For the purposes of an application under Order 14 the preliminary
requirements are:

(i) the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and
(iii) the affidavit in support of the application must comply with the requirements of Rule 2
of the Order 14.

… a case is not within Order 14 (a) where no statement of claim has been served on the
defendant; (b) where the indorsement on the writ includes a claim or claims outside the scope
of Order 14 as coming within Rule 1(2); (c) where the affidavit in support of the application is
defective, e.g. in omitting to state the deponent's belief that there is no defence to the claim or
part to which the application relates; (d) where the application is made in an action against the
Government [Order 73 Rule 5(1)].

5
In Cotra Enterprises Sdn Bhd v. Pakatan Mawar (M) Sdn Bhd [2001] MLJU 358, P sought summary
judgment under O14 for a declaration that five written agreements he had entered into were void and had
been rescinded. Ahmad Maarof JC (as he then was) held that the declaration sought was in essence an
order for rescission within O81 and therefore fell outside the scope of O14.
6
In Essex County Council v. Essex Incorporated Congregational Church Union [1963] 1 All ER 326,
Lord Reid said: “In my judgment it is a fundamental principle that no consent can confer on a court or
tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the
consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction.”
7
[1984] 2 MLJ 300

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 [8] Summary Judgment & Summary Proceedings in Respect of Land

If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If
however, these considerations are satisfied, the plaintiff will have established a prima facie
case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy
the Court why judgment should not be given against him [see Order 14 Rules 3 and 4(1)].”
(emphasis added)

In Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor 8 the
Federal Court took this passage to suggest that the burden of proof shifts from P to D.
This is how Steve Shim CJ (Sabah & Sarawak) put it:

“Quite clearly, the Court of Appeal has put the burden on the plaintiff to prove his case in an O
14 application. With respect, that cannot be the correct proposition of law. In an application
under O 14, the burden is on the plaintiff to establish the following conditions: that the
defendant must have entered appearance; that the statement of claim must have been served
on the defendant; that the affidavit in support must comply with r 2 of O 14 in that it must verify
the facts on which the claim is based and must state the deponent's belief that there is no
defence to the claim .. Once those conditions are fulfilled, the burden then shifts to the
defendant to raise triable issues. The law on this is trite .. The proposition of law enunciated by
the Federal Court in [Kayu Raya] has been applied in numerous cases. We accept the
correctness of that proposition. In reversing the burden of proof as the Court of Appeal … has
done, it has … misapplied the relevant principles relating to an application for summary
9
judgment under O 14 of the Rules of the High Court 1980.” (emphasis added)

2.1 Delay

[8.04] A plain reading of O14 will show that that there is no time limit within which the
application must be made, so long as the application is made after D has entered an
appearance. However, the court may refuse to exercise its jurisdiction if the application
is made too late in the day as that would defeat the very purpose of O14. Some judges
had however taken the view that an unexplained delay was a bar to an O14 application.
That confusion was cleared by the Court of Appeal in Perkapalan Shamelin Jaya
Sdn Bhd v Alpine Bulk Transport New York 10 where Gopal Sri Ram JCA (as he
then was) said that “delay can surely provide no answer to an application made under O
14 where there are no bona fide triable issues” and NH Chan JCA said: “Delay in
applying for O 14 is no ground for defeating the plaintiff's right to summary judgment ..
when there is no real defence disclosed.”

8
[2006] 2 MLJ 685
9
It is odd to read Kayu Raya to suggest that the procedural mechanism in O14 can reverse the burden of
proof that is allocated by the Evidence Act 1950 and the common law. That surely cannot be the case. The
burden of proof remains with P. The procedure in O14 merely eases the discharge of that burden in
straightforward cases. Once P has crossed the Kayu Raya threshold, it is then for D to show why judgment
should not be entered against him. This “burden” is commonly referred to as the evidential or tactical burden.
That is quite different form saying that the burden of proof has shifted to D.
10
[1997] 3 MLJ 818

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2.2 The Affidavit in Support

[8.05] Kayu Raya (supra) makes it clear that the affidavit in support of the application
must comply with r2(1). In Tan Tik Sing v Gomez Development Co Sdn Bhd,11
P, in his affidavit, did not verify the cause of action nor state that in his belief there was
no defence to the action. Ajaib Singh J (as he then was) said:

“In an application for summary judgment under Order 14 .. the person making the affidavit in
support must verify the cause of action and state that in his belief there is no defence to the
action. Failure to do so is fatal to any application for summary judgment .. The clear provisions
of Order 14 rule 1(a) .. are mandatory and they must be complied with if a plaintiff wants to get
judgment without any trial whatsoever. In the present case the plaintiff had complied with the
first two conditions but not the third condition .. The plaintiff's application .. was therefore
deficient for want of compliance with rule 1(1) of the Order and ought to have been dismissed
12
in limine.” (emphasis added)

2.3 Defects or omission in the Statement of Claim

[8.06] In United M alayan Banking Corporation Berhad v Palm & Vegetable

Oils (M ) Sdn Bhd & Ors 13 P granted D a loan of RM9 million. D defaulted and P
issued proceedings for the outstanding sum of RM8,540,846.34. In its statement of
claim, P did not state that D had, in fact, lodged shares with P as security for the loan. P
later took-out an O14 application for the sum of RM3,490,113.26. In P’s affidavit, the
lesser amount was explained by the fact that P had disposed of the shares and a sum of
RM5,657,763.79 was realised from the sale. Raja Azlan Shan AG LP (as he then was)
said:

“As we have said earlier the deposit of the shares as security was not disclosed in the
Statement of Claim .. This omission is surprising, to say the least, and we cannot but observe
that any defect or omission in the Statement of Claim cannot be made good by affidavit
evidence: Gold Ores Reduction Co v Parr [1892] 2 QB 14 where Mathew J., said that ‘it is
most important that a defendant should know from the writ what the exact claim against him
is’ .. We would add that even after the sale of the shares there was and has been no attempt
14
to amend the Statement of Claim to reflect the true position.”

11
[1979] 2 MLJ 78
12
In Chai Cheon Kam v Hua Joo Development Co Sdn Bhd [1989] 2 MLJ 422 Haidar J (as he then was),
relying on Tan Tik Seng, dismissed an O14 application on the basis that P’s affidavit in support, which in
paragraph 2 merely said “I crave leave to refer to the plaintiff's amended statement of claim amended on 4
August 1988, the defendant's defence dated 18 August 1988 and the plaintiff's reply dated 28 August 1988”,
fell short of the of the requirement that P must verify the “facts on which the claim or part of a claim to which
the application relates is based” as set-out in Form 13.
13
[1983] 1 MLJ 206
14
In Kayu Raya (supra), Seah FJ said: “In Gold Ores .. it was held that for the purpose of Order 14
application the statement of claim must be complete and good in itself; any defect or omission cannot be
corrected or supplemented by the plaintiff's affidavit. Furthermore, if the defect is one of substance, the
application for summary judgment will be dismissed..”

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2.4 Damages to be assessed

[8.07] O14 r3 was considered by the Federal Court in Datuk M ohd Ali bin Hj Abdul
M ajid & Anor (both practising as M essrs M ohd Ali & Co) v Public Bank
Bhd.15

P appointed D to issue proceedings to recover a debt owed to it by ODA Holdings (M)

Development Corp Sdn Bhd (“ODA”) pursuant to an Overdraft Facility. On 10.4.1987, D
obtained JID of Defence. Nearly 10 years thereafter, ie sometime in March 1998, P
instructed D to enforce the judgment against ODA. D presented a winding-up petition
against ODA, who opposed the petition on the ground that P was claiming for an amount
under the judgment which included arrears of interest accrued more than 6 years after
the debt was due. On 22.6.1999, the High Court accepted the argument and dismissed
the Petition. P then instructed D to issue fresh winding-up proceedings against ODA. D
advised P that it could not take any action to enforce the judgment as it was statute-
barred under s.6(3) LA 1953.

P thereafter issued proceedings against D for breach of contract and/or negligence. The
prayers inter alia were as follows: (i) damages of RM899,190.13 or in the alternative,
damages to be assessed; (ii) RM26,202.55; and (iii) RM13,691.70 which was charged
by [D] as legal fees. P applied for judgment pursuant to O14. D did not file any affidavit in
reply. The Registrar entered judgment on the amounts prayed for. The Judge allowed
D’s appeal and ordered damages to be assessed. The Court of Appeal allowed P’s
appeal and re-instated the Registrar’s order. The Federal Court allowed D’s appeal.
Arifin Zakaria CJ said:

“[32] It is trite law that a claimant claiming damages must prove that he has suffered the
16
damage. The claimant has the burden of proving both liability and quantum of damages,
before he can recover the sum claimed. This follows from the general rule that the burden of
proving a fact is upon him who alleges it and not upon him who denies it, so that where a
particular allegation forms an essential part of a person's case, the proof of such allegation
falls on him (see s 103 of the Evidence Act 1950). If he fails to prove both the liability and the
quantum of damages, he loses the action. [33] Therefore, in a claim for damages, it is not
17
sufficient for the plaintiff to merely state the amount of damages that he is claiming , he must
prove the damage that he had in fact suffered to the satisfaction of the court .. [34] .. In the
circumstances, we hold that the learned High Court judge was right in ordering that summary
18
judgment be entered on liability with damages to be assessed ..”

15
[2014] 4 MLJ 465
16
In Bonham-Carter v Hyde Park Hotel (1948) 64 TLR 177 Lord Goddard CJ said: “Plaintiffs must
understand that if they bring actions for damages it is for them to prove their damage; it is not enough to
write down the particulars, and, so to speak, throw them at the head of the court, saying: 'This is what I have
lost, I ask you to give me these damages.' They have to prove it.”
17
D argued that P must show to the court that but for D’s negligence, P would have been able to recover the
judgment sum or any part thereof. P therefore must prove that at the material time the judgment debtor is
solvent and has the means to satisfy the judgment sum. If P is only able to show that the judgment debtor is
only able to pay 50% of the judgment sum, then that is the amount of damages that P is entitled to, and if P
fails to prove that the judgment debtor is able to satisfy the judgment sum or any part thereof, then P is only
entitled to nominal damages.
18
In Akitek Timor v Tai Kian Chong [2014] 1 CLJ 149 P, an architect, issued a writ for its unpaid fees of
RM567,576.50 and thereafter took-out an O14 application. The High Court ordered, pursuant to O14 r3, that

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2.5 Construction of Documents and Statutes

[8.08] In Fadzil v University Teknologi M alaysia 19 Raja Azlan Shah CJ (Malaya)

(as he then was) said:

“An Order 14 order .. is a very stringent procedure because it shuts the door of the court to
the defendant .. The only point [here] is that as everybody knows [that the University and
University Colleges Acts] is long and complicated. But it is not sufficient under an Order 14
case to flourish the title of the University and University Colleges Act, etc., in the face of the
court and say that is enough to give leave to defend. If a point taken under the Acts is quite
obviously an unarguable point, and the court is satisfied that it is really unarguable, the court
has precisely the same duty under Order 14 as it has in any other case. The court has the
duty to apply the rule .. In Esso Standard Malaya Bhd v Southern Cross Airways (M)
Bhd [1972] 1 MLJ 168, I pointed out that in an Order 14 case, where it turned on the
construction of a few documents, and the court was only concerned with what, in its
judgment, was the true construction, there could be no reason to go formally to trial where no
further facts could emerge which would throw any light on the documents that had to be
construed. We think we can safely apply that principle to the present case. On the view we
have taken of the construction of Act 30 of 1971, and the Constitution of the University, the
University had an absolutely hopeless case. The only function of the court is jus dicere and to
ascertain the intention of Parliament from the words used in the statutes and nothing more.
No useful purpose would then be served to go formally to trial.”

2.6 Questions of Law

[8.09] In Asia Hotel Sdn Bhd (supra) Hashim Yeop Sani SCJ said:

“.. what happens when a legal issue is raised by the defence in an Order 14 application. In this
regard several principles are involved. First, the court hearing an Order 14 application should
work within the framework of Order 14 and not embark on an exercise under Order 33 rule 2
which empowers the court to determine any question or issue arising in a cause or matter
whether of fact or law or partly of fact or partly of law before the trial of the cause or matter.
Order 33 rule 2 is entirely for a different purpose. Secondly, where the issue raised is solely a
question of law pure and simple without reference to any facts or where the facts are clear and
undisputed the court should exercise its duty under Order 14 as in any other cases and decide
on the question of law. This is so even if the issue of law raised is a difficult one. If the court
after considering the argument is satisfied that it is really unarguable then the court should
grant summary judgment.”

summary judgment be entered against D with damages to be assessed. The Federal Court affirmed the
order. In Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 20 the Supreme
Court held that where P’s claim is for unliquidated damages, the court, if it finds that D has no defence to the
claim, should proceed, pursuant to O14 r3, give judgment and order that damages be assessed.
19
[1981] 2 MLJ 196

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2.7 Injunctive Relief

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

Bhd 20 the Court of Appeal held that injunctive relief could be obtained in an O14
application.21

3. The Defendant’s Burden

[8.11] D, who wishes to oppose an O14 application, must satisfy the court that the
Plaintiff’s claim cannot be determined summarily and there are issues to be tried. He
may do so in a variety of ways.

3.1 Defence and Triable Issues

[8.12] D must show that he has a bona fide defence to P’s claim or that there are bona
fide issues in the case that can only be determined at trial (triable issues).22 It is however
not sufficient to merely raise an issue. It must be an issue that is bona fide triable.23 In
Bank Negara (supra) Mohd Azmi SCJ said:

“[It] is the requirement under O 14 for the court to be satisfied on affidavit evidence that the
defence has not only raised an issue but also that the said issue is triable. The determination
of whether an issue is or is not triable must necessarily depend on the facts or the law arising
from each case as disclosed in the affidavit evidence before the court .. Under an O 14
application, the duty of a judge does not end as soon as a fact is asserted by one party, and
denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is
equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents
or other statements by the same deponent, or is inherently improbable in itself, then the judge
has a duty to reject such assertion or denial, thereby rendering the issue not triable. In our
opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion
judicially in an O 14 application. Thus, apart from identifying the issues of fact or law, the court
must go one step further and determine whether they are triable. This principle is sometimes
expressed by the statement that a complete defence need not be shown. The defence set up
need only show that there is a triable issue.”

20
[2000] 3 MLJ 321
21
D argued that since there are specific provisions in O29 that govern the application and granting of
injunctive relief, resort to O14 proceedings for the same relief is procedurally wrong. The Court rejected this
argument on the basis that O29 relates only to the application and issuing of an interlocutory injunction as
opposed to one that is final in nature.
22
O14 r3. The Supreme Court Practice (1995) states, at pp 155 – 156: “As a general principle, where [D]
shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair
probability that he has a bona fide defence, he ought to have leave to defend .. A complete defence need not
be shown. A defence set up need only show that there is a triable issue .. and leave to defend ought to be
given unless there is clearly no defence in law such as could have been raised .. and no possibility of a real
defence on the question of fact ..” (emphasis added)
23
In Memphis Rogues Ltd v Skalbania (1982) 38 BCLR 193, the court said: “The question has been
stated in a number of ways: Is there no real substantial question to be tried? Is there no dispute as to facts
or law which raises a reasonable doubt? Is it manifestly clear that the appellants are without a defence that
deserves to be tried? Although cast in different terms, all point to the same inquiry, namely, is there a bona
fide triable issue?”

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3.2 Showing cause

[8.13] D may show cause why judgment should not entered against him pursuant to
O14 by “affidavit or otherwise”. This means that D may do so by (i) relying on P’s own
documents, (ii) raising an objection, for example, that the case is not within O14, (iii)
demonstrating that the statement of claim or the affidavit is defective, (iv) filing an
affidavit setting out the facts giving rise to a triable issue or (v) serving a bona fide
defence.24

[8.14] In opposing an O14 application, D is not confined to the matters pleaded in his
Defence. In Lin Securities v Noone & Co Sdn Bhd 25 VC George J (as he then
was) said:

“No doubt a defendant is bound by the four corners of his pleading at the trial of the action but
he is not so bound at the O 14 proceedings .. He is entitled to show at the hearing of the O 14
application that over and above what has been pleaded in the statement of defence (sic) he
has other defences. The issue at an O 14 application is whether the defendant has a defence
and not whether the statement of defence (sic) provides him with a defence.”

3.2 “some other reason”

[8.15] The meaning of this phrase in O14 r3 was explained by Megarry J in M iles v
Bull:26

“These last words seem to me to be very wide. They also seem to me to have special
significance where, as here, most or all of the relevant facts are under the control of the
plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross-
examination those which will aid her. If the defendant cannot point to a specific issue which
ought to be tried but nevertheless satisfies the court that there are circumstances that ought to
be investigated, then I think that those concluding words are invoked. There are cases when
the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation
possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary
judgment for the plaintiff .. In my judgment 'there ought for some other reason to be a trial'; and
the reason is that of justice .. Order 14 is for the plain and straightforward, not for the devious
27
and crafty. There is here a case for investigation, and so not for summary decision.”

24
See Noh Hyoung Seok v Perwira Affin Bank Bhd [2004] 2 CLJ 64. It must always be remembered that
O14 is not a summary trial procedure. The court therefore should not conduct a trial based on affidavit
evidence. In Syn Lee & Co Ltd v Bank of China [1961] MLJ 87 Thomson CJ said: “In a case of this sort it
is not a case of trying the issues on affidavit evidence, it is rather a question of deciding on affidavit evidence
whether there is a moral improbability of a very high degree that the defendant can possibly succeed.”
25
[1989] 1 MLJ 321
26
[1968] 3 All ER 632
27
In Harrison v Bottenheim (1878) 26 WR 362, Bramwell LJ said: “though a man cannot show a defence,
still, if he has shown enough to entitle him to interrogate the plaintiff, the case is not within O 14, and should
not be pursued without his being allowed to defend.”

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3.3 Conditional Leave to Defend

[8.16] In Fieldrank Ltd v Stein 28 Lord Diplock said:

“I think that any judge who has sat in chambers in RSC, Ord 14 summonses has had the
experience of a case in which, although he cannot say for certain that there is not a triable
issue, nevertheless he is left with a real doubt about the defendant's good faith, and would like
to protect the plaintiff, especially if there is not grave hardship on the defendant in being made
to pay money into court. I should be prepared to accept that there has been a tendency in the
last few years to use this condition more often than it has been used in the past, and I think
29
that that is a good tendency ..”

Further guidance was provided in M V Yorke M otors (a firm) v Edwards 30 where

Lord Diplock said:

“ .. if the sum ordered to be paid as a condition of granting leave to defend is one which the
defendant would never be able to pay, then that would be a wrongful exercise of discretion,
because it would be tantamount to giving judgment for the plaintiff notwithstanding the court's
opinion that there was an issue or question in dispute which ought to be tried .. [These are] the
proper limitations on its applicability:

(i) Where a defendant seeks to avoid or limit a financial condition by reason of his own
impecuniosity the onus is upon the defendant to put sufficient and proper evidence before the
Court. He should make full and frank disclosure .. (iii) A defendant cannot complain because a
financial condition is difficult for him to fulfil. He can complain only when a financial condition is
imposed which it is impossible for him to fulfil and that impossibility was known or should have
been known to the Court by reason of the evidence placed before it.”

28
[1961] 3 All ER 681
29
In Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd [1974] 2 MLJ 94, Gill CJ
(Malaya) said: “Assuming that [the Judge] took the view that the defendants had raised some sort of triable
issues, the question which he had then to consider was whether he should grant the defendants
unconditional or conditional leave to defend .. There was clearly very little substance in the defendants' claim
to a right of set-off and counter-claim in respect of the alleged damages for the delay in the completion of the
works. It should therefore have been looked upon with considerable suspicion as to its bona fides. In the
circumstances, the learned trial judge should have granted the defendants leave to defend conditional upon
their paying into court the amount of the plaintiffs' claim. For the reasons I have stated, I would allow this
appeal with costs, set aside the order made by the learned trial judge and substitute in its place an order that
the defendants do have leave to defend the action conditional upon their paying into court the sum of
$269,754 within 14 days from the date of this order, failing which the plaintiffs do have liberty to sign
judgment of that amount. I would also make a further order that in the event of the defendants paying the
money into court, the action be set down for trial in priority.”
30
[1982] 1 All ER 1024

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3.4 Set-off or Counterclaim

[8.17] O14 r3(2) allows the court to stay the execution of P’s judgment pending the trial
of D’s counterclaim. The test was explained in Societe des Etains de Bayas
Tudjuh v W oh Heng M ining Kongsi 31 where Abdoolcader J (as he then was) said:

"Where there is clearly no defence to the plaintiff's claim, so that the plaintiff should not be put
to the trouble and expense of proving it, but the defendant sets up a plausible counterclaim for
an amount not less than the plaintiff's claim, the order should not be for leave to defend but
should be for judgment for the plaintiff on the claim with a stay of execution until the trial of the
32
counterclaim ..”

4. Dismissal, Setting-aside and Appeals

[8.18] It is trite that the court cannot dismiss P’s claim in an O14 application –
Diamond Peak Sdn Bhd v Tweedie.33

[8.19] O14 r11 allows the court to set-aside a judgment that was granted to P in the
absence of D. There was some confusion as to the ambit of this provision.34 Clearly it
applies when the court grants judgment to P by default. But is it also applicable when the
court grants judgment to P after hearing the merits of the application, albeit in the
absence of D? The issue has been put to rest by the Court of Appeal in Tetracon
Engineering Sdn Bhd v M anikan Sokan.35

D’s counsel was absent at the hearing of the O14 application before the Senior Assistant
Registrar (SAR), who proceeded to hear the application and granted judgment to P. D’s
subsequent application to set-aside the judgment was allowed by the SAR. The Judge
allowed the resulting appeal36 on the basis that D ought to have appealed to the judge
against the SAR’s decision, given that the SAR had heard the merits of the plaintiff's
application. The Court of Appeal disagreed. Hishamuddin JCA said:

“With respect we are unable to agree with the view of the learned Judicial Commissioner. It is
true that the registrar granted the application for summary judgment after hearing the plaintiff's
counsel's submission and considering the merits of the application. However, the provision of
r. 11 above is clear: it merely states 'Any judgment...'. It does not specify the nature or type of
judgment made. The provision makes no distinction between a judgment obtained after
hearing the merits and a judgment obtained without hearing the merits. In our view, what r. 11
means is that as long as the judgment was obtained in the absence of a party, the aggrieved
37
party may apply to set aside the judgment pursuant to this rule.”
31
[1978] 2 MLJ 267
32
See Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ 322
33
[1980] 2 MLJ 31
34
See for example Bank Bumiputra Malayisa Bhd v Aik Lee Feedmill Co Sdn Bhd [1999] 6 CLJ 1
35
[2009] 6 CLJ 665
36
O56
37
The Court of Appeal approved of Perwira Habib Bank Malaysia Berhad v Yap Yeng Seng [1989] 1 CLJ
1101, where Dr. Zakaria Yatim J (as he then was) said: In the instant case the plaintiff made an application
for summary judgment and the defendant and his Counsel were absent on the date of hearing before the
Senior Assistant Registrar. An application to set aside the judgment in the absence of the defendant must be

Ravindran on Civil Procedure (2018) 10

 [8] Summary Judgment & Summary Proceedings in Respect of Land

[8.20] Either party may appeal against the decision on an O14 application. The
appellate approach was explained in United M alayan Banking Corporation Bhd v
Pembinaan Ksy Sdn Bhd & Ors where Mohamed Dzaiddin SCJ (as he then was)
said:

“The appellate court should not regard the appeal as reviewing the exercise of the judge's
discretion but should approach the appeal as a rehearing .. In this appeal, counsel for the
appellant attacked the decision of the learned judge, particularly on his finding that there was a
triable issue with respect to the duty of care owed by the appellant to the respondents in
realizing the securities of the respondents .. In our view, what is involved in this appeal is a
question of triable issue arising as a matter of evidence and fact as opposed to law. In this
respect, the function of the appellate court should be as what was said by Goff LJ (as he then
was) in European Asian Bank AG:

‘If the judge has already decided, on the evidence, that there is a triable issue on a
question of fact, it must in the very nature of things be unlikely that this court will interfere
with his decision and decide that no trial should take place; because, where such a
conclusion has already been reached by a judge, this court will be very reluctant to hold
that there is no issue or question which ought to be tried .. But where the appeal raises a
question of law, this court may be more ready to interfere ..’

In the present appeal, since the triable issues, as found by the learned judge, arose as a
matter of evidence, following the above principles, it would be wrong for this court to interfere
38
with the learned judge's discretion.”

made under O. 14 r. 11 of the Rules .. The principles on which judgment in default may be set aside under
O. 14 r. 11 are the same as those under O. 13 r. 9 .. The rule for setting aside judgment in default under O.
13 r. 19 is that "where the judgment was obtained regularly there must be an affidavit of merits meaning that
the applicant must produce to the Court evidence that he has a prima facie defence." Evans v. Bartlam.
Apart from this rule, the Court would wish to be fully satisfied as to the reason for the non-attendance at the
hearing of the summons of the party against whom judgment was given under O. 14 ..”
38
In Kayu Raya (supra) Seah FJ said: “In European Bank .. it was decided by the Court of Appeal .. that
where a Judge has decided there is a triable issue on a question of fact, the Court of Appeal would be
unlikely to interfere. On the other hand, if the Court of Appeal differed from the Judge only on issues of law,
the Court of Appeal should substitute its own view for that of the Judge and give judgment for the plaintiffs
under Order 14 Rule 3(1). And in practice, this court will simply approach an appeal of this kind as a
rehearing.”

Ravindran on Civil Procedure (2018) 11

 [8] Summary Judgment & Summary Proceedings in Respect of Land

B. Summary Judgment – Order 81

[8.21] The test to enter summary judgment pursuant to O81 is similar to O14. There is
however a further procedural requirement in r2(2). Its effect was explained in Sova Sdn
Bhd v Kasih Sayang Realty Sdn Bhd 39 D where Lim Beng Choon J said:

“… when an applicant is seeking the aid of Order 81 there is an option either to set out the
reliefs of the judgment sought by the plaintiff in the summons or attached (sic) thereto
minutes of the judgment .. it is not mandatory that an application under Order 81 must in all
cases have the minutes of the judgment sought for attached to the summons although in
practice minutes of the judgment are normally attached to the summons. In any event the
failure to attach the said minutes to the summons is .. not fatal; it is curable under Order 2
rule 1 ..” (emphasis added)

An example of the application of O81 is found Ng Ah Ba & Ors v Ramanda Sdn

Bhd.40 P entered into an agreement to purchase land from D5, a company, whose
shareholders and directors were D1–D4. When D5 defaulted, P issued a writ and moved
a summons for summary judgment pursuant to O81. D2-D5 pleaded that there was a
conspiracy between P, D1, and D1s’ solicitors whereby the true price of the land was
concealed from D2-D5 and that the difference in the purchase price was shared between
them. The High Court granted judgment to P. D2-D5’s appeal to the Court of Appeal was
dismissed. Shaik Daud JCA said:

“On my perusal of the statement of defence (sic), it seems that the defendants merely made a
bare and general allegation of the conspiracy .. Most important of all, I find that no particulars
of the alleged conspiracy has been disclosed in their affidavits. [D1] in his affidavit had
categorically denied the allegation of conspiracy, and has sufficiently explained the
circumstances heavily relied upon by the defendants in support of their allegation .. What the
defendants sought to do was merely make sweeping and general allegations of the alleged
41
conspiracy without alluding to any particulars. The authorities are clear on general
allegations of fraud, and they are equally applicable to such allegations of conspiracy .. a
mere general allegation of fraud is not sufficient, and the party making the allegation is
required to condescend to particulars. The same principle applies to allegations of
42
conspiracy.”

39
[1988] 2 MLJ 268
40
[1996] 1 MLJ 62
41
In Cannock Chase District Council v Kelly [1978] 1 All ER 152 the Court of Appeal held that “If a charge
of bad faith is made against [D], they are entitled ... to have it properly particularized. If it has not been
pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularized, the
pleading may be struck out.” In See Hua Daily News Bhd v Tan Thien Chin [1986] 2 MLJ 107 the Supreme
Court in considering allegations of fraud, held that “the failure of the appellants to condescend upon
particulars of the fraud in their affidavits is fatal.”
42
Gopal Sri Ram JCA said: “… neither in the defence nor in the affidavit in opposition are there any
particulars of the alleged fraud or conspiracy. It is of no consequence that the defence does not condescend
to particulars. After all, this was an application under the summary jurisdiction so that there was no obligation
on the part of the appellants to even deliver a defence. But the affidavit must do so ..”

Ravindran on Civil Procedure (2018) 12

 [8] Summary Judgment & Summary Proceedings in Respect of Land

C. Summary Proceedings for Possession – Order 89

[8.22] The scope of the English equivalent to 089 is explained in The Supreme Court
Practice 1988 (Vol 1) at pp 1470—1471:

“ .. this Order provides a somewhat exceptional procedure, which is an amalgam of other

procedures, eg procedure by ex parte originating summons, default procedures and the
procedure for summary judgment under O 14. Its machinery is summary, simple and speedy,
ie it is intended to operate without a plenary trial involving the oral examination of witnesses
and with the minimum of delay, expense and technicality .. like the default and summary
procedures under O 13 and O 14, this Order would normally apply only in virtually uncontested
cases or in clear cases where there is no issue or question to try, ie where there is no
reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to
wrongful occupation of the land without licence or consent and without any right, title or
interest thereto.”

[8.23] In Bohari bin Taib v Pengarah Tanah Galian Selangor43 P brought an

O89 action for recovery of state land in Selangor. P argued that the Temporary
Occupation License (TOL) granted by the State Government had expired in 1984 and D
continued in occupation without consent or license. D contended that they were
licensees holding over with the consent of P. The Supreme Court held that O89 was an
inappropriate procedure to be invoked. P’s OS was dismissed with liberty to proceed
afresh for possession by writ. Mohd Azmi SCJ said:

“In our opinion, for the purpose of the summary procedure, a distinction should be made
between squatters simpliciter who have no rights whatsoever, and occupiers with licence or
44
consent, and as well as tenants and licensees holding over. It may be impossible to
establish the existence of any triable issue in the case of bare squatters, but the position of
tenants and licensees holding over, or persons occupying with implied or expressed consent
of the owner may be different. On the facts, we hold that there are triable issues on the
absence of either licence or consent as alleged by [P].”

In Norimah v Bikit Lenang Development Sdn Bhd 45 D occupied the land

belonging to O, who collected payments from D, which led D to believe that would D
would receive an interest in the land. O later sold the land to P who had notice of D’s
occupation. P brought an action under O89. The Court of Appeal held that there was a
triable issue of whether O and D had reached an agreement to transfer certain interest in
the land to D and that the facts made it unsuitable to dealt summarily under O89.

Ravindran Shanmuganathan ∗

43
[1991] 1 MLJ 343
44
As Lawton J (as he then was) explained in McPhail v Persons, Names Unknown [1973] 3 All ER 393: “..
squatters were never able to enlist the aid of the Court of Chancery to resist a writ of possession and they
cannot now.”
45
[2000] 3 MLJ 129
∗
The views expressed herein are my own, as are all the mistakes. I welcome comments and may be
contacted at ravi@sreeneyoung.com

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