lOMoARcPSD|33064818

Finals Civil ZAHIDA

Civil Procedure 2 (Universiti Teknologi MARA)

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ZAHIDA’S CIVIL PRO II NOTES

DR AZHANI’S LECTURE - EXAMINATION OF JUDGEMENT DEBTOR

- Kalau has no information of the
Dependent’s asset = examination
ENFORCEMENT OF JUDGEMENT
of judgement debtor.
- 2 OPTIONS:
- Introduction: The general rule is that upon
- O. 48: TO IDENTIFY ASSETS ONLY
obtaining the judgement, you may enforce
it without the leave of the court. Unless - SECTION 4 OF DEBTOR’S ACT +
under a few circumstances. O.74: DISCOVER IN AID OF
EXECUTION.
1. After lapse of 12 years
(COA-execution) from date of 1. O 48: If to identify the assets sahaja without
judgement of a leave. - need leave no enforcement.
as per section 6(3) of the - The procedures:
Limitation Act 1953. - O 48 r 1(2): The Court may on an
- Daud v Ibrahim [1961] ex parte notice of application and
Court refused to allow P supported by an affidavit in Form
to enforce the judgment 95 by judgement creditor, order
to have the land transfer the judgement debtor to attend
to P after 12 years from the court and be orally examined
the date judgment is given and produce documents on:
because it is
statute-barred. - (a) Whether there is any
debt owing to the
2. The execution is issued after 6 judgement debtor; and
years but before 12 years of leave -
as per o46 r 2(1)(a) ROC. - (b) Whether there is any
- Cases: property or means to
satisfy the judgement
- Affin Bank Bhd v Wan Abdul owned by the judgement
Rahman bin Wan Ibrahim [2003]: debtor.
The court held that sufficient
reasons vary from case to case and - Must make application by
it is not possible for COA to provide NOA + Affidavit
an exhaustive list of what is - When got the order (Form
considered to be sufficient reasons. 96), the debtor must
- Tio Chee Hing v Chung Khiaw Bank attend the court and the
Ltd [1981]: allowed after 6 years court will examine + sign
because reasonable as there was and affirm the assets.
negotiation between them - But the court has no
throughout those years. power to order the JD to
- Finals; gives 4-5 situations and what’s best pay the judgement sum.
options for such situations. - O.48, r.1(4), if there is any dispute,
the JD may refer it to the court to
determine it.
- CASES

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- Lim Wee Kiat v Yeow Li Li [2019]: non-appearance of

Only a JC who has obtained judgment debtor, Court
judgement for the recovery or may order to compel the
payment of money whether by judgment debtor to pay.
instalment or otherwise may - If datang, he
summon the JD to be examined. must show all
- Republic of Costa Rica v evidence/docs to
Strousberg: The JC must be prove his debt
prepared to cross-examine the JD and assets. Then,
on all incidents relating to the the court may
debts owed to him and the assets make an order
he owns as it is vital for the JC to for him to pay
be knowledgeable and well the judgement
equipped with sufficient material. sum - either in
lump sum or
2. DISCOVER IN AID OF EXECUTION: SECTION
instalment
4 OF DEBTOR’S ACT + O.74:
(S.4(6) DA 1957).
- Any person entitled to enforce a
judgment or an order for the - The most effective is the second
payment of money, whether by one.
instalments or otherwise, may - But it depends on the question.
apply for a judgement debtor
summons under section 4 of the - This is also applicable to assets that
Debtors Act 1957 + Order 74 ROC. cannot be garnished. I.e EPF,
pension.
- The procedures:
- Cases:
- The form is form 177
(Judgement Debtor - Salvatore a/l Munusamy v. Mohd
Summons) Nuraizad bin Ahmad Lias [2022]:
For the examination, the court will
- It will be served look at the monthly income, his
personally + with dependent and total liabilities in a
subpoena witnesses (if month and make a payment plan.
refused to attend)
- Bauer (M) Sdn Bhd v Embassy
- If tak datang, boleh Court Sdn Bhd [2014]: The court
panggil witnesses through will look at whether the judgement
subpoena: section 4(3) DA debtor has the means and ability
1957. to pay before making any order
- Otherwise, show cause you pay in lump sum etc.
will be given to warrant
and arrest and commit
that person to
imprisonment- Section
4(8) of the Debtors Act.
- S. 4(6): Upon such
examination or

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- O. 46 r 6: WSS will be valid until 12

months. After that make a new
- WRIT AND SEIZURE AND SALE
application.
- General rule is under o. 46 , o. 47
- Execute and conducted by sheriff
- It is a type of enforcement or registrar.
proceeding applicable for a
- TWO TYPES OF ASSETS: MOVABLE AND
moveable or immoveable property.
A writ is issued to seize the asset IMMOVABLE ASSETS.
and it will be sold.
- Movable assets:
- O. 46 r. 2 : require leave from the
It means all Items , UNLESS
court before execution. (see a-e)
mentioned under section 3(1) of
- (a) where six years or the Debtors Act (makan, pakai,
more have lapsed since tidur,gaji) can be seized and sold.
the date of the judgement
- The procedure:
or order;
- Application under Form
- (b) where any change has
89
taken place, whether by
death or otherwise, in the - Court bagi order under
parties entitled or liable to Form 84/84A for the
execution under the bailiff/sheriff to do
judgement or order; seizure. (includes laptops,
cars, paintings, etc)
- (c) where the judgement
or order is against the - Within 14 days, bailiff will
assets of a deceased be make a public auction
person coming to the - All money incurred will be
hand of his executors or given to the creditor
administrators after the
- (tolak cost dulu, lepastu
date of the judgment or
bayar to judgement
order, and it is sought to
creditor, if tak cukup baru
issue execution against
buat lagi WSS lain.
such assets;
- Immovable assets:
- (d) where under the
judgment or order any - The procedures:
person is entitled to relief - Must apply for WSS under
subject to the fulfilment Form 85 and PO
of any condition which it (prohibitory order) =
is alleged has been sama macam caveat cuma
fulfilled; and yang ni takde interest of
- (e) where any movable the bank. Supaya no
property sought to be dealing over that land.
seized under a writ of - An application must be
execution is in the hands made for PO under o47
of a receiver appointed by
the Court.

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r6(a). by NOA and creditor, if tak cukup baru

affidavit (b). buat lagi WSS lain.
- Content for NOA - 2 GROUNDS TO SET ASIDE
and affidavit - (c) - where there is ‘a material
(i) -(v) irregularity or fraud in publishing
- Serve and register the PO or conducting it’ (rule 7(f)) or
to the land office. PO is - where ‘the judgment debtor has
valid for 6 months. no saleable interest in the property
- JC apply for direction at sold’ (rule 7(g))
the court by NOA + - Lim Eng Chong v SG Sarawak
affidavit Recycle Industries Sdn Bhd & Ors
- To fix the reserve [2014]: The court held that the
price, application to set aside the sale
must be made before the order
- put the auction
making the sale absolute.
date,
- Hire the public
auctioneer (tak
dibuat oleh
mahkamah,
mahkamah only
do foreclosure
proceedings, ie.
when ada charge.
Selain daripada
tu mesti hire
public auction),
- Conditions of
sale (berapa
bulan tempoh
untuk bayar, how
much the
deposit, etc. so
no prejudice to
JD)
- Then the auctioneer will
prepare a proclamation
sale and advertisement.
- Then only public auction.
- All money incurred will be
given to the creditor
(tolak cost dulu, lepastu
bayar to judgement

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GARNISHEE PROCEEDINGS - Procedures:

- #1 : [O 49 r 1(2)] Application for Order to
Show Cause.
- Applicable in situations where someone is
- O 49 r 2: Application for show
holding your money, or owe you certain
cause order be made by ex parte
money. Ie. a bank, insurance company.
notice of application supported by
- The money has to be a calculated fixed sum. affidavit in Form 98:
No potential money, etc.
- Identifying the judgment
- O. 49 r 1: The Court may order for a third and the amount of unpaid
party (‘Garnishee’) who is holding the judgment sum; and
money ‘due or accruing due’ to the
- Stating the deponent
judgment debtor, to pay that amount of
(JC)’s belief that the
money to the judgment creditor
garnishee is within
(‘Garnisher’) to satisfy the judgment debt
jurisdiction and is
- Kedah Kelang Papan v Hansol [1988]: The indebted to the JD.
words ‘or accruing’ in O 49 r 1 are intended
- Order to show cause will be made
to apply to cases in which there are debts
in Form 97 by the Court to call
owed at the present time but payable in the
upon the garnishee to attend a
future. An accruing debt, therefore, is a
hearing in Chambers for further
debt not yet payable but a debt which is
consideration of the matter.
represented by an existing obligation.
- O 49 r 3(1): Order to show
- Capital Insurance Bhd v Cheong Heng
cause must be served on
Loong Goldsmiths (KL) SdnBhd [2005]: A
garnishee personally and
judgment creditor has no right to make an
JD at least 7 days date of
insurance claim on the judgment debtor’s
further consideration
insurance policy. The judgment creditor can
(hearing in Chambers)
only garnish the debt if there was a debt
due from the insurance company to the - Effects of Order to Show Cause
judgment debtor (insured). being served:
- Two situations - Fix the date, time and
place of hearing further
consideration of the
matter; and
- Freeze the money (same
amount of the debt) in the
hands of garnishee
- #2 Further Consideration of the matter
- At the hearing, all parties (JC, JD
and garnishee) are supposed to
attend.
- O 49 r 4(1): If the garnishee does
not attend the hearing or does not
dispute the debt due or claimed to

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be due from him to the JD, the - Same as the pension act. kecuali if
Court will make the garnishee the money dah withdraw dan
order absolute in Form 99. deposit dekat bank.
- O 49 r 5: If the garnishee attends - If hutang with the government, the
and disputes his liability to pay the government will tolak dulu and
debt, the Court may: then baru will be released.

- summarily determine the - STATUTES WHICH FORBID THE

question at issue; or
- order in Form 100 for
another trial to determine
the liability of the
garnishee in open court.
- Sykt Long Lian Trading v Roxy
Malaysia [1978]
- Facts: Garnishee attended the
further consideration hearing, but
he was unrepresented. The
amount involved is a very large
sum. When SAR chooses to dispose
of the issue summarily, the
garnishee has not even been asked
whether he consented to have the
matter disposed summarily when
there is another way to determine
the matter in a trial in open court.
- Held: If the SAR chooses to dispose
of the issue summarily, it must be
consented by the parties, and the
issue is simple and the amount
involved is small. It cannot be said
that the conduct of the garnishee
who was unrepresented, amounts
to an implied consent. Hence, SAR
did not have jurisdiction to dispose
of the matter summarily, since
consent is a requirement under O
49 r 5.
- Restrictions
- Dia mesti restricted by the written
law. Ie. EPF. SOCSO, Pension.
- EPF cannot be garnished. Kecuali if
the money dah withdraw dan
deposit dekat bank.
ATTACHMENT OF DEBTS:
- S. 19 Pensions Act 1980:
- Pensions received by a pensioner
cannot be attached except for the
purpose of satisfying:a debt due to
the government; or an order of the
court for maintenance of the
pensioner's wife or former wife or
minor child.
- S. 35(1) Bank Simpanan Nasional Act 1974:
No deposit or interest in the bank shall be
attached in respect of any debt or claim.
However, the bank may in its discretion
retain a sum to the amount ordered by the
court to be paid into court.
- Debtors Act 1957:
Wages of a Federal officer/railway officer of
less than RM200 cannot be attached:
s.3(l)(f)(ii,)DA1957. (Note: this amount has
not been amended until now.)
However, the salary may be deducted:
S.4 DA '57.
Thus, the judgement creditor may take
garnishee proceedings for the judgement
debtor to pay by instalments through the
deduction of his salary by the garnishee (his
employer).
- S.51 EPF Act 1991:
Money in the EPF cannot be attached,
If the judgment debtor withdraws the EPF
and puts the money in the bank, then the
money can be attached by way of garnishee
proceedings.

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ZAHIDA’S CIVIL PRO II NOTES

JUDICIAL REVIEW entertain an application for judicial review.

Without leave, HC has no jurisdiction.
INTRODUCTION
a. When can apply? O. 53 R3(6):
1. General Rule: all administrative authorities months from the date of
and tribunals are bodies of limited judgement/order communicated to
jurisdiction - where decisions and the applicant.
proceedings are subject to judicial review.
b. O. 53 R3(2): Application will be
2. It’s an application to challenge the decision
made by ex-parte accompanied by
of a public authority.
NOA + summary statement +
3. Must be made not in his own personal affidavit.
capacity. The board will decide on that. Not
an individual will decide for that. c. After that, the court will grant the
leave.
4. Ie. caveat enter over the land and we want
to challenge the entry of the caveat but the d. Leave is a mandatory requirement.
Land Administrator dismissed the
application by power vested to him. e. Purpose of leave: to obtain
a. How? By judicial review under s418 permission to bring proceedings by
NLC. Three months to appeal to JR and to demonstrate a prima
the HC for JR. facie case. To avoid floodgates.
5. In judicial review proceedings, the court f. In granting the leave, the judge
does not sit as an appellate court to review may imposed conditions, if
the findings of the inferior tribunal. It can necessary, ie. cost and security.
only make an order on the issue of the
legality of the decision-making order. 4. Before granting the leave, the court will
6. Who can apply? O 53 R2(4): Any person examine whether the case has a good
who is adversely affected by the decision, cause. If yes, then only proceed.
action or omission in relation to the exercise
a. Factors considered:
of the public duty or function is entitled to
make the application for judicial review. i. Ta Wu Realty Sdn Bhd v
a. Marcel Jude Joseph v The Minister Ketua Pengarah Hasil
of Education, Ministry of Dalam Negeri: The
Education,Malaysia: The applicant applicant must prove a
had failed to show in what manner prima facie case to ensure
he was adversely affected by the the claims are not
decision of the respondent. The vexatious or frivolous.
applicant therefore lacked locus
standi to institute the present ii. Government of Malaysia
application. v Lim Kit Siang: whether
the claimant possess locus
THE PROCEDURE standi.
1. Sivarasa Rasiah v Badan Peguam Malaysia:
“...the judicial review procedure under iii. Tan Sri Haji Othman Saat
Order 53 provides for 2 stages.” v Mohamed bin Ismail: an
Applicant for judicial
2. O. 53 R2(1): An application for any remedies review must only establish
except for remedy of habeas corpus must that he or she has
be made in Form 109. sufficient interest in the
matter.
3. #1 The grant and leave to the court. O 53 r
3(1): Leave is required before the HC can

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5. #2 O. 53 R 4(1): After granting the leave, has the jurisdiction to hear the
within 14 days, must enter NOA for hearing application for leave for judicial
(Form 110). review

a. National Union of Bank Employees 8. O. 1A & O. 2 r 1: cannot cure the defect of

v Director General of Trade Unions absence of leave. Means the court will not
& Anor: Form 110 is a drawn up entertain.
assumption that leave application
was made ex parte and upon leave a. SDB Damansara Sdn Bhd v Datuk
being granted, the appellant would Bandar Kuala Lumpur: Failure to
file and serve F110 upon the comply with rule 3(1) cannot be
respondent. regarded as a mere technical
non-compliance as it goes to the
6. O 53, R4(2): Form 110 must be served on root of the issue, namely, the
the affected party. This is mandatory. jurisdiction of the court. Failure
cannot be cured by Order 1A nor
a. Ottavio Quattrocchi v Menteri Order 2 Rule 1.
Dalam Negeri, Malaysia:
9. The application must all be made to the HC
i. The applicant must serve judge in chambers, accompanied with NOA
with the notice a copy of + summary statement + affidavit.
the statement and all
affidavits in support which 10. The power is discretionary only.
accompanied the leave
application. 11. The court will only decide the substantive,
ie. to maintain or to abolish the decision.
ii. The notice should
normally bear the name CASES
of the respondent, the
other parties to the 1. In WRP Asia Pacific Sdn. Bhd. v Tenaga
proceedings before it and Nasional Bhd [2012] 4 MLJ 296: If the
the affidavit of service matter is under private law, though
should show that the concerning a public authority, it would be
parties have been served. inappropriate to commence the action
under Order 53. Ie contract.
iii. The service must be
effected so that there 2. TRLampoh AK Dana v Government of
must be at least 14 days Sarawak [2005]: if the plaintiffs choose to
between the date of challenge the act or decision of the public
service and the hearing body or public authority under public law by
resorting to other forms of action than an
7. But may still apply for extension if there is action for judicial review under O 53, it
good reason. Application for extension must would be an abuse of process. Order 53
also be served to all parties affected. provides for procedures where a challenge
is made against a public act or a public
a. Wong Kin Hoong & Anor v Ketua decision by a public body or authority.
Pengarah Jabatan Alam Sekitar &
Anor: the time frame in applying RELIEF THAT CAN BE SOUGHT/ORDERED
for judicial review prescribed by
the Rules is fundamental. Once the 1. Prerogative order - Habeas corpus,
trial judge had rejected the Mandamus, Prohibition, Quo warranto and
explanation for the delay for Certiorari
extension of time to apply for
2. Additional orders - Injunction, Declaration
judicial review, the court no longer
and Monetary compensation

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ZAHIDA’S CIVIL PRO II NOTES

3. Mandamus d. Once awarded – Court will direct

an inferior court, tribunal or public
a. An order issued by the court authority to reconsider the matter
requiring an authority to perform a and to arrive at a fresh decision.
public duty imposed by law
e. Court may refuse to award
b. Requirements of mandamus order certiorari if an alternative remedy
under Section 44 of Specific Relief exists.
Act
f. Kejuruteraan Superskill Sdn Bhd
i. The Applicant must show Perak v Kesatuan Pekerja-pekerja
that his property, Perusahaan Alat-alat
franchise or personal right Pengangkutan dan Sekutu [1994]:
would be injured by the Whether or not the court will
doing a specific act; interfere with the decision
depends not on the decision itself
ii. the doing is obligatory but on whether the decision was
under any law for the time made ultra vires, unfairly or
being in force; unjustly by the respondent in the
exercise of his discretion.
iii. the Judge is of the opinion
that the doing is in 5. Habeas Corpus
consonance with right and
justice a. A writ of habeas corpus is a
challenge to the legality of a
iv. there is no other legal prisoner’s detention: The Federal
remedy; and Court in Chua Kian Voon v Menteri
Dalam Negeri Malaysia & Ors
v. the remedy given by the
[2019]
order applied for will be
complete 6. Quo Warranto
c. In Ketua Polis Negara v Indira a. Peguam Negara Malaysia v
Gandhi a/p Mutho [2015]: No Micheal Jeyakumar Devaraj
mandamus because there were [2012]: A writ to challenge the
other remedy ie. committal order appointment of a person to hold
and this is within private rights public office, on the ground that he
(marriage) and not public right. is not qualified to do so or that
there was a legal flaw in his
4. Certiorari
appointment.
a. An order to quash the decision
7. Discovery:
made by a tribunal or public
authority (including administrative a. O 53 R6
actions.
b. Malaysian Association of Private
b. Can only be issued after the Colleges and Universities & Ors v
decision has been made by the Ketua Pendaftar Institusi
bodies Pengajian Tinggi Swasta & Ors: the
courts discretion to grant leave for
c. Invoked to quash administrative
discoveries pursuant to Order 53,
decisions e.g. Ministers and
such leave will be ordered only if it
administrative authorities, which
is found necessary, for the purpose
adversely affect individuals
of saving costs or for the fair

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disposal of the case within the

meaning of Order 24 rule 8

c. The leave should be limited strictly

to documents relevant to the issue
which had emerged from the
affidavit.

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b. A party appealing must first apply

for a stay of execution in the first
GROUNDS OF APPEAL instance to the court where the
decision was given, namely the
STAY OF EXECUTIONS Magistrate’s Court or the Sessions
Court.
INTRODUCTION
1. Section 73 and 103 of CJA + O. 55 r. 16: 3. COA to Federal Court:
a. Section 102 of Court of Judicature
An appeal does not mean an automatic stay
Act: An appeal shall not operate as
of execution. Thus, the appellant must apply
a stay of execution under the
if they want it.
decision appealed unless the
- Associated Cover Sdn Bhd v MCIS Federal Court had ordered for stay.
Insurance Bhd [2004] 4 MLJ 408, it b. Thus, an application for stay must
was held that the law provides that first be made to the Court of
an appeal does not operate as a Appeal.
stay of execution unless there was c. If the application is refused, an
leave granted either by the court application must be made to the
appealed from or from the Court of Federal Court by way of a notice of
Appeal. motion supported by an affidavit.

2. SOE prevents or stops a party from TWO APPROACHES:

enforcing the judgement before the appeal.
- Nugatory
3. Eg: P win the case, court bag judgement. D - Special circumstances
wants to appeal. If D tak apply for SOE, the
P may enforce the judgement. NUGATORY TEST

STAY OF EXECUTION IN COURTS 1. See Teow Guan v Kian Joo Holdings Sdn
Bhd: The paramount consideration
1. From HC to COA: governing an application for a stay of
execution or proceedings, is that the
a. Section 73 of Court Judicature Act appeal, if successful, should not be
& R13 of ROC: An appeal shall not rendered nugatory (useless).
operate as a stay of execution
under the decision appealed unless SPECIAL CIRCUMSTANCES TEST
the COA had ordered for stay.
1. Syarikat Berpakat v Lim Kai Kok:
b. Thus, an application for stay must - courts have absolute discretion
first be made to the High Court. whether to allow or to refuse an
application for stay.
c. If the application is refused, an - Stay can only be granted if there
application must be made to the are special circumstances which
Court of Appeal by way of a notice must be deposed in the
of motion supported by an affidavit supporting the application
affidavit.
2. Kosma Palm Oil Mill Sdn Bhd & 2 Ors v
2. Subordinate court: Koperasi Serbausaha Makmur Bhd:
a. O. 55 r.16(1): An appeal shall not The test in granting a stay of execution was
operate as a stay of execution laid down.
under the decision appealed unless
the High Court had ordered for
stay.

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- Firstly, appeal shall not operate as

a stay of execution unless the court - Court grants a stay of execution
orders. when the subject matter
concerned is land.
- Secondly, the question of which - Why? land has special value and it
approach a court should adopt? would render nugatory the
:Nugatory approach or special decision of the Court of Appeal if a
circumstances approach? stay was refused.
- The onus is on the applicants to 4. Syarikat Berpakat v Lim Kai Kok [1983]:
demonstrate the existence of
special circumstances to justify the - Permanent deprivation of money
grant of a stay of execution.

- The paramount consideration

governing an application for a stay
of execution is that the appeal to
this court, if successful, should not
be rendered nugatory.
- *maksudnya kalau appeal, xdela
harta tu habis. Kalau menang takde
hasil macamtu.

- Here, nugatory = special

circumstances

ANOTHER FACTORS OF SPECIAL CIRCUMSTANCES

1. Mohamed Mustafa v Kandasamy:

Special circumstances includes:

- whether the granting of a stay

would make the appeal nugatory.
Ie. destruction of subject matter;
- the merits in the appeal;
- and the delay and the cause of the
delay in hearing the appeal.

2. Serangoon Garden Estate Ltd

Special circumstances:

- If the defendant is successful in his

appeal, can't be back to the old
position =/= special circumstances
if stand alone.
- However, it is an ‘important factor’.
- But if it comes with other grounds,
for example, merit of the appeal =
‘special circumstances.

3. Institut Teknologi Federal Sdn Bhd

(land=grant)

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ADDUCING FRESH EVIDENCE

Ladd v Marshall:
INTRODUCTION
- (i) Evidence could not have been
obtained with reasonable diligent during
1. Question: Can the party tender fresh
trial
evidence during appeal?
- (ii) Evidence if it was given during trial
- Fresh evidence = evidence that is would have had an important influence
not tendered in HC on the case
- (iii) The evidence must be capable of
2. Answer: Yes, but subjected to with or believe i.e. it must be credible evidence
without leave. but need not to be incontrovertible – R. 7
of COA Rules
Without leave What is credible but incontrovertible?
- Strong evidence which cannot be
Section 69(2) CJA
challenged.
- (a) When it is an interlocutory application
before COA
- stay of execution
- Application for leave to appeal
- If I have IA in COA, then there is
no need to obtain leave from
COA if I want to bring fresh
evidence.

- (b) In any matters which have occurred

AFTER the date of the decision from
which the appeal is brought
- When the evidence came after
the decision was given by HC

With leave

S. 69(3) CJA

- Memang evidence tu dah ada cuma tak

tender je.
- (a) If the evidence existed before the trial
itself;
- (b) What was not tendered before the
trial judge but it was available.
- This is not considered as fresh evidence.
It is just further evidence

Court will only grant leave if the party shows

special reason why the evidence was not tendered
earlier.

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