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1. PRELIMINARY CONDITIONS BEFORE ISSUE OF NOTICE OF APPLICATION FOR SUMMARY

JUDGMENT
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 PRELIMINARY CONDITIONS BEFORE ISSUE OF NOTICE OF APPLICATION
FOR SUMMARY JUDGMENT
Atkin's Court Forms Malaysia - Civil Procedure

Atkin's Court Forms Malaysia - Civil Procedure > Order 14 [Pub Date: 31 July 2013] > Practice
> INTRODUCTION
PRELIMINARY CONDITIONS BEFORE ISSUE OF NOTICE OF APPLICATION FOR SUMMARY JUDGMENT

[16041] GENERALLY

Before a notice of application for summary judgment is issued, the defendant must enter an appearance in the
action,1 and the plaintiff must have served his statement of claim on the defendant.

See the Rules of Court 2012 (PU (A) 205/2012) (RC) O 12 rr 1, 2 which came into effect on 1 August 2012. In Abercrombie &
Fitch Co v Fashion Factory Outlet KL Sdn Bhd[2008] 4 MLJ 127, the High Court found that the plaintiffs had satisfied the three
preliminary conditions laid down in RHC (now under RC) O 14: (1) the defendants had entered appearance; (2) the statement of
claim had been served on the defendants; and (3) the application for summary judgment had been supported by affidavit. In
order to succeed in their application, the plaintiffs had to establish their cause of action against the defendants for trademark
infringement on merit and the defendants must not have raised any defence to the plaintiffs’ claim or any triable issue. The onus
would then shift to the defendants to show why summary judgment should not be entered against them. The defendants had to
provide answers on oath which constitute evidence that they had a defence fit to be tried. Denial in a defence would not constitute
evidence. A mere bare assertion by the defendants would not be sufficient. In Waja Manufacturing (M) Sdn Bhd (formerly known
as Palsticon Pet (M) Sdn Bhd) v Alliance Bank Malaysia Bhd[2011] 1 MLJ 611, the Federal Court held that the appellants having
been served with summonses for judgment were relieved from delivering their defences to the several actions until after the
disposal of those summonses. This is made clear by RHC (now under RC) O 18 r 2. Further, based on RHC (now under RC) O
14 r 1, there is no requirement that a defence must have been filed.

[16042] APPEARANCE BY DEFENDANT

Unless and until the defendant has entered an appearance, the plaintiff cannot issue a notice of application for
judgment against him.1 If the defendant fails to enter an appearance, the plaintiff may enter judgment or otherwise
proceed against him in default.2 The orders3 are mutually exclusive. One applies where there is a failure to enter an
appearance; the other applies only after appearance has been entered. If there are two or more defendants, the
plaintiff may proceed with summary judgment4 against the defendant who has entered appearance and in default
of appearance5 against the defendant who has failed to enter appearance.

Ie under the Rules of Court 2012 (PU (A) 205/2012) (RC) O 14 r 1(1) which came into effect on 1 August 2012. In Cempaka
Finance Bhd v Ho Lai Ying (trading as KH Trading)[2006] 2 MLJ 685, FC, the court held that in an application under RHC (now
under RC) O 14, the burden is on the plaintiff to establish that the defendant must have entered appearance and that the statement
of claim must have been served on the defendant. See also Sinodaya Industrial Gas Sdn Bhd v Astrol Hover Engineering Sdn
Bhd[2002] 3 MLJ 354.

2 RC O 13 (default of appearance to writ).

Mohamad Hafiz Bin Hassan Mohamad Hafiz Bin Hassan

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PRELIMINARY CONDITIONS BEFORE ISSUE OF NOTICE OF APPLICATION FOR SUMMARY JUDGMENT
3 Ie RC O 13, 14.

4 RC O 14 rr 1(1), 8(1).

5 RC O 13 rr 1(1), 3, 4(1), 5.

[16043]-[16070] SERVICE OF STATEMENT OF CLAIM

A plaintiff cannot issue a notice of application for judgment unless he has first served his statement of claim on the
defendant.1 The statement may be endorsed on the writ,2 or it may be served with the writ or at any time after
service of the writ but within 14 days after the defendant has entered appearance. 3

The statement of claim, whether endorsed on the writ or not, is a pleading, 4 and must comply with the rules of
pleading.5 The statement of claim, whether endorsed on the writ itself, must be complete and good in itself and
disclose a cause of action if the plaintiff intends to proceed for summary judgment. Abbreviated forms of the
statement of claim endorsed on the writ may be used and the selection of specimens in this tide is representative of
most types of action which in practice lead to proceedings for summary judgment.6 If a statement of claim is
amended without leave7 after the issue of the notice of application, leave to amend the notice of application should
be sought ex parte and the amended notice of application (together with a fresh affidavit supporting the amendment)
should be re-served together with a copy of the amended statement of claim.

See the Rules of Court 2012 (PU (A) 205/2012) (RC) O 14 r 1(1) which came into effect on 1 August 2012. The burden is on the
plaintiff to establish the following conditions: (1) that the defendant must have entered appearance; (2) that the statement of claim
must have been served on the defendant; and (3) that the affidavit in support must comply with O 14 r 2, 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. See Cempaka Finance Bhd v
Ho Lai Ying (trading as KH Trading)[2006] 2 MLJ 685, FC; Supreme Leasing Sdn Bhd v Dior Enterprises[1990] 2 MLJ 36; Sinodaya
Industrial Gas Sdn Bhd v Astrol Hover Engineering Sdn Bhd[2002] 3 MLJ 354.

2 RCO 6 r 2(1). See Airmartech Corporation (M) Sdn Bhd v Equaltra (M) Sdn Bhd[2001] 2 CLJ 57; Bintulu Adhesives & Chemicals
Sdn Bhd v Chuah Seah Joo Plywood Industry (Sarawak) Sdn Bhd[2001] 2 AMR 1532; See Teow Chuan v YAM Tunku
Nadzaruddin Ibni Tuanku Jaafar[1999] 3 AMR 3739.

3 If
there are two or more defendants, the statement of claim must be served on each defendant within 14 days after that defendant
has entered appearance: RC O 18 r 1.

4 See Anlaby v Praetorius[1888] 20 QBD 764, CA (Eng).

5 RC O 18. See generally VI [20001] and following. In Perwira Affin Bank Bhd v Orison Sdn Bhd[2004] 5 CLJ 256, no proper
particulars of the debt claimed by the plaintiff had been pleaded in the amended statement of claim. The court held that this defect
in the pleadings was in itself sufficient to refuse an application for summary judgment.

6 As to statements of claim, see VI [16601]–[16637] (Forms 1–19).

Mohamad Hafiz Bin Hassan Mohamad Hafiz Bin

Hassan
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PRELIMINARY CONDITIONS BEFORE ISSUE OF NOTICE OF APPLICATION FOR SUMMARY JUDGMENT
7 RCO 20 r 3(1). See Gurbachan Singh v T/N Muthu & Lee[2001] 2 CLJ 173; Ultra Dimension Sdn Bhd v Sepadan Tuah Sdn Bhd;
Genesis The AS Agency Sdn Bhd (Third Party)[2000] 6 CLJ 548; Angel Cake House Sdn Bhd v Bandaraya Development
Bhd[2001] 1 CLJ 746.

End of Document

Mohamad Hafiz Bin Hassan Mohamad Hafiz Bin

Hassan