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Civil Procedure in Malaysian Court

Civil Procedure in Malaysian Court

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Civil Procedure in Malaysia
Civil Procedure in Malaysia

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Malaysian Civil Court Procedure Note 1 of 4 Notes

Universiti Kebangsaan Malaysia Fakulti Undang-undang
Musbri Mohamed DIL; ADIL ( ITM ) MBL ( UKM )

1

Civil Procedure means procedure to be followed in civil cases e.g. serving notice or documents , how to defend a case, types of documents to tender, how to present a case and how to appeal. We saw changes to the jurisdiction of the civil courts and we have also experienced changes to our system of civil justice.

2

There are two main types of Courts in Malaysia. Subordinate Courts -comprises of Session, Magistrate and Penghulu Courts. They are governed by SC (Amendment) Act 1994. Superior Courts -comprises of Federal Courts , Court Of Appeal and High Court. They are governed by Court of Judicature Act S64.

3

MAGISTRATE COURTS (MC) It can be divided into 2 classes : 1st Class Magistrates Courts s. 90 SCA - Monetary jurisdiction or value of subject matter up to RM25,000.00 Local Territorial Jurisdiction s. 76(11) SCA - It Is assign by Yang Di Pertuan Agung (YDPA) and generally it covers the whole area of the state where the court situated, Third Schedule - s. 99A SCA states that the suit is to be filed at the place where: (a) the cause of action arose (b) where the Defendant (D) resides or has his place of business (c) One of the several D resides or has his place of business (d) The facts on which the proceedings are based exist or are alleged to have occurred (e) in the interests of justice Special Types of cases it can covers depends on the provision of the written laws.
4

Second Class Magistrates s. 92 SCA - value of subject matter up to RM3,000.00 Territorial Jurisdiction - same as aboves. 69(a), s. 70(1) & s. 70(4) SCA by virtues of s. 93(1) SCA applies mutatis mutandis to Magistrate Courts. The conclusion is that MC have jurisdiction to try matters concerning recovery of immovable property. However if there is a bona fide question of title involve then MC have no jurisdiction even parties consent that the matter may be tried in the MC. In practise they no longer try cases.

5

In the case of Sundram v. Chew Choo Khoon [1968] 2 MLJ 40 ; Chang Min Tat J; held that a statutory body vested with certain judicial functions and power as for eg. A Collector of Land Revenue sitting in an enquiry on a chargee¶s application is not a Subordinate Court. Whereas in the case of Lee Soo Chuan v. Lai Ah Yan & Anor [1971] 2 MLJ 275; on appeal the Federal Court affirmed the decision that the Court of Senior Inspector of Mines is an inferior court.

6

SESSIONS COURTS s. 3(2) SCA Value of Subject Matter of SC is up to RM 250,000. 00 s. 65(1) (b) SCA SC has Unlimited monetary jurisdiction in respect of Motor Vehicle Accidents , Landlord vs Tenants disputes and Distress. S. 65 (1) (a) SCA Session Courts has no jurisdiction to try the following matters: (cases not cognizable by SC) a. matters relating to immovable property except as provided in s. 70 & s. 71.s. 69(a) SCA b. specific performance or recession of contracts . s 69(b) SCA c. Injunction. S. 69(c) SCA d. Cancellation or rectification of instruments. S. 69(d) SC

7

e. To enforce trust. S. 69(e) SCA f. For accounts . s. 69(f) SCA g. For declaratory decree except inter pleader proceedings. S. 69(a) h. For issue or revocation of grant or representation s. 69(h) i. Legitimacy of any person, S..69(l) j. Guardianship or custody of infant except if provided specifically in any writen law. s. 69(i) k.validity or dissolution of any marriage, S.69(k)

8

Agreement - where claim exceeds monetary jurisdiction but parties (P and D) consent to the matter being tried in the SC then matter may be begun in the SC S. 65 (3) SCA. Where the Plaintiff may relinquish the claim then SC has jurisdiction to try e.g. P entitle to claim up RM300,000.00 but he don't want to claim that amount but agreed up to RM250,00.00. Here SC can try such claim. Later P cannot claim more. S. 67 SCA. Subject matters as mentioned in the statute Plaintiff cannot split claim i.e. Plaintiff may not split claim in order to bring it within the jurisdiction of SC e.g. RM400,000.00 is splited into two. S. 68 SCA,

9

In Wong Kon San v. Chang Litho Press Ltd [1968] 2 MLJ 234 the parties to an action entered into an agreement submitting to the jurisdiction of the Session Court, although the amount of the alleged counterclaim exceed the value limit of jurisdiction of Session Court . The President held that he had no jurisdiction to hear the counterclaim.

10

Matters concerning immovable property (a) SC has no jurisdiction to try matters concerning immovable property subject to s. 70 & s. 71 SCA. S. 69fa) SCA (b) SC may try matters concerning recovery of immovable property subject to s. 70(4) SCA. S. 70(1) SCA (c) SC does not have jurisdiction to try matters concerning immovable property if there is a bona fide question of title involved subject to s. 71. & S. 70f41 SCA. (d) SC may try matters involving bona fide question of the title if parties consent to the matter being tried in SC. S. 71 SCA Conclusion: SC may try cases of immovable property even it there is a bona fide question of title involved as long as parties consent. Territorial Jurisdiction: it¶s jurisdiction is assign by YDPA which covers the whole area of the state concern S 59(1) and s. 3(2) SCA

11

Writs of Summons General Introduction The Writ is the most usual mode of commencing civil proceedings. It is 3 format documents by which the YDPA commands the defendant to enter an appearance within the time stated in the writ (8 or 12 days from the date of service of the writ) failure of which the Plaintiff may proceed to judgment and execution. Therefore a writ is a solemn and weighty order.

12

Forms Of Writ O. 6 r. 1 Form of Writ There are two forms of writs of summons: (a) Form 2 is an ordinary writ for service within the jurisdiction of the court (both parties are in Malaysia) (b) Form 3 is for service of the writ outside the jurisdiction, which requires the leave of the court, (outside Malaysia) There are several blanks in the writ which must be filled by P or his solicitor: (a) particulars of parties - P and D, whether acting in persona! capacity or representative character, whether by a next friend or a guardian ad litem etc (b) Name of Chief Justice (c) Number of days for D to enter appearance: 0.12r.4 (d) Signature of P or his solicitor

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(e) The endorsement with a statement of the claim or with a concise statement of the nature : O. 6 r. 2 (1) (a) or in a claim for a debt or liquidated sum with a statement of the amount claimed: O. 6 r. 2 (1)(b) (f) The endorsement of the name of the solicitor and his address of service ‡ O. 6 r, 4 (g) The endorsement as to service on the defendant: 0.10 r. 1 (4) The Registry of the Court will take the following additional steps when writ is presented for issue: (h) indorse the number of the writ : O. 6 r. 6(3) (i) indorse the name of the registrar and his signature : O. 6 r. 6 (3)

14

Endorsements On Writ O. 6 r, 2 (1) - Before a writ is issued it must be indorsed (a) with a statement of the claim or with a concise statement of the nature of the claim. (b) if the claim made by P is for a debt or liquidated sum i.e. an ascertained sum indorse the writ with a statement of the amount claimed. A brief account of the nature of the claim known as general endorsement or concise statement of the nature of the claim will be included on the reverse side of the writ so that the defendant will know why legal action is being brought against him. Later the Plaintiff will give a detailed account of claim in the statement of claim. But if the defendant pays money to court under this rule he must give a notice in Form 4

15

O. 6 r 3 -Endorsement as to capacity Before a writ is issued, it must be indorsed (a) where the P sues in a representative capacity, with a statement of the capacity in which he sues. (b) Where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued. Before a writ is issued in an action brought by a P who in bringing it is acting by order or on behalf of a person resident outside the scheduled territories -must indorsed with a statement of that fact and with the address of that person so resident.

16

O. 6 r. 4 -Before a writ is issued it must be endorsed as to solicitor and address; (a) where the P sues by a solicitor, the address for service of a plaintiff shall be the business address of the solicitor endorsed on the writ where P sues in person, the address within the jurisdiction endorsed on the writ.

17

Concurrent Writ - O. 6 r. 5 The P may request during the validity of the writ, the issue of one or more additional writs which is known as concurrent writ and they are true copy or the original. Application should be made within 12 months after the issue of the writ, i.e. before the writ ceases to be valid. A concurrent writ is an almost exact copy of the original. A concurrent writ is used where ft is thought desirable, particularly for the purpose of service, either within or outside the jurisdiction, or where original writ has been lost, to have a duplicate of the original writ. O. 10 r. 4 requires the P or his solicitor to indorse on the writ which has been issued to him the particulars of the service of the writ on each defendant and for that purpose, a concurrent writ is required if the P ho' lost or misplaced the original writ.

18

Issue Of Writ 0. 6 r. 6 (2) When the writ has been suitably indorsed with the names and addresses of the parties and, where applicable, with names and addresses of solicitors and with an endorsement of claim and all other requirements are satisfied, the plaintiff or his solicitor deposits with the registrar the original and a copy together with as many copies there are defendants to be served. O. 6 r. 6 (3) The registrar then assigns a serial number to the writ, signs and dates the writ. He also affixes seal of the court. The writ the deemed to be issued. O. 6 r. 6 (1) Writ to be served out of jurisdiction shall be issued with leave from the court.

19

Duration And Renewal Of Writ 0. 6 r. 7 (1) A writ is valid 'in the first instance' (unless renewed) for 12 months from the date of its issue and must therefore be served within this period. A concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of the issue of the concurrent writ. If the original writ is renewed this will have the effect of renewing all concurrent writs which have been issued. 0. 6 r. 7 (2) If the writ is not served within 12 months, an application for the extension of its validity must be made. The court's power is limited to extending the validity of the writ for a maximum of 12 months at any one time. The application should be made before the writ lapses. It can be made after, but the court may not be disposed to make the order for renewal if made after. The court will not grant two or more successive renewals to bring the writ up to date.

20

Application must be supported by affidavit showing all the circumstances and giving full explanation for the failure to serve the writ during the lifetime. If no sufficient reason the court may refuse. Llovd Treistino Societa v Chocolate Products (M) Sdn. Bhd. (1978) 2 MLJ 27: Even if application for renewal of the writ is made within 12 months of date of issue, renewal should be allowed only where there are good reasons to excuse the delay in service. Heaven v Read & Rail Wagon Pte. Ltd Exceptional circumstances. Where the application is made to renew a writ after the expiry of the relevant period of limitation, the court should not exercise its discretion in favor of P so as not to deprive the defendant of an otherwise good defense to the action, UNLESS there are exceptional circumstances which amount to a good cause for renewing the writ.

21

Modes of beginning civil proceedings On being consulted, the solicitor must first decide whether the case is contentious or non-contentious, A contentious matter will involve hearing. Then he must determine the following in order to decide the form of action properly to be taken in accordance with these Rules (a) whether an action in court or an application to court is necessary (b) the parties to the action in court or an application (c) the cause of action (d) the true relief sought by the client. Once the decision to take legal proceeding has been made, the mode of commencement must be considered.

22

Modes Of Beginning The Proceedings It is stated that "Subject to the provisions of any written law and of these rules (RHC) civil proceedings in HC may be begun by :(a) Writ of Summons (WS); or (b) Originating Summons (OS); or (c) Originating Motion (OM); or (d) Petition.

23

The most common mode of commencing civil proceedings are WS and OS. "Subject to the provisions of any written law" means that when a written law lays down the form for the proceedings to be taken, that provision must be followed e.g. divorce - petition, companies winding up -petitions etc "Subject to (the provisions of) these Rules" means that where the Rules provide for a special; mode, that provision is to prevail over the provisions of this order e.g. O. 83 r. 1 - a charge is to be by writ or OS. O. 70 r.2 - an admiralty action in rem - writ O. 72 r.2 - contentious probate proceeding -writ. Otherwise, the provisions of O.5 will determine the modes to begin proceedings.

24

Writ Of Summons A writ of summons must be used, (a) an action in tort, other than trespass to Sand, but a claim for trespass to land may still be instituted by writ, though it will be found that such an action is much more conveniently and cheaply prosecuted by OS. (b) A claim based on fraud A claim for damages for breach of duty and personal injuries (c) Breach of promise of marriage and Infringement of a patent.

25

Originating Summons An Originating summon is: a) obligatory in applications to the HC under any written law O.5 r.3 b) discretionary, (OS or Writ) where : (i) the sole or principal question at issue is the construction of any written law or of any instrument under any written law or of any deed, contract or other document or of some other question of law; or. (ii) where there is unlikely to be any substantial dispute of fact . e g. in trespass to land: O.5 r. 4

26

O.5 r. 4 is a general provision in which whatever cases not covered by r.2, r.3 and r 5 is covered by r.4 An OS has been found in the court's experience to be an unsuitable for trial of serious or substantial disputes of fact. If it appears to the court that any proceedings which had been commenced by OS should more conveniently be continued as if by writ, the OS will not be set aside : Q.2 r. 1(3) But the court may order the proceedings to continue as if begun by writ: O. 28 r. 8 O. 7 provides general provisions for OS. The are also rules providing Procedures for Originating Summons.

27

Originating Motion An origination motion is to be used when required by any written taw or by these Rules, e.g , in those actions listed in O.88 r. 4 O. 8 provides general provisions for OM Petition A Petition is similarly to be used when required by any written law or by these Rules' e g O.88r 5. O.9 provides general provisions for Petition.

28

Examples Of Matters To Be Brought By OS, OM And Petition O 88 r.2(1) - Unless otherwise provided in the Companies Act and except application mentioned in rules 3,4,5, every application under Companies Act must be made by originating summons. O. 88 r. 2 (2) no appearance needs to be entered to an OS under this rule unless if the application is made by summons for: (a) application u/s. 173 CA (b) application u/s. 192 CA (order for directing receiver or manager to make good) (c) application u/s 12 CA (make good for default) O. 88 r. 2(3) application u/s. 357 CA may be made ex parte.

29

O. 88 r. 3 - Application u/s. 162 CA for rectification of the register of members of company to be made by Originating summon or Originating Motion. No need for appearance to be entered. O. 88 r. 4 - Application to be made by Originating Motion for the following applications: (a) u/s. 27 CA - an order that a co. be relieved from consequence of default (b) u/s. 63 CA - validating allotment of shares improperly issued (c) u/s, 88 (5) CA - an order to confirm, set aside or vary a direction of the holders of the interest (d) u/s. 95(4) CA to confirm a winding up resolution (e u/s. 200 (5)CA for an inquiry into any case as is mentioned therein (f) u/s. 307 CA an order to declare dissolution of a company which has not been wound up to have been void.

30

O. 88 r. 5 - Application to be made by petition: (a) u/s. 28 CA - to cancel the alteration of Co.'s objects (b) u/s. 59 CA - to confirm the issue by a co. of shares at a discount (c) u/s. 60 CA -to confirm a reduction of the share premium a/c of a co. (d) u/s. 61 CA - to confirm a reduction of the capital redemption reserve fund of Co. (e) u/s. 64 CA - to confirm a reduction of the share capital of a Co.

31

(f) u/s. 65 CA - to cancel any variation or abrogation of the rights attached to any class of shares in Co. (g) U/s. 176 CA - to approve a compromise or arrangement between a Co and its members (h) U/s. 161 CA - for relief in cases of oppression (i) U/s. 308 {5} CA - for an order restoring the name of Co. (j) U/s. 354 CA - for relief from liability of an officer of a Co or any other person to whom this section applies.

32

Failure To Comply Failure to comply with the rules in beginning proceedings or at any stage of the proceedings. O. 2 r.1 (11) - non compliance shall be treated as an irregularity and shall not nullify the proceedings. Nevertheless the court still have jurisdiction to set aside the proceedings. O. 2 r. (12) - The court can therefore set aside, wholly or in part, the proceedings for non-compliance with the Rules or allow amendments subject to costs. "Subject to costs" means that the party committing the breach of the Rules will have to pay the other party costs of the proceedings made necessary by the breach e.g. the application for the leave to amend. O. 2 r.2 - the party complaining of the breach must apply to set aside the proceedings within a reasonable time and before taking any fresh step in the action.

33

Amendments of Pleadings It is clear that the duty of the person responsible for the drafting and filling of The pleadings to ensure that the pleadings falls within the rules of pleadings (O. 18) and fully set out the claim or the counterclaim or the defence. Mistakes however may be amended under (C.20) Sometimes, the leave of the court is necessary. Amendments may be made at any stage of the pleadings. Obviously the earlier the better so that consequential arrangement by the other side may be kept to the minimum.

34

Generally, under [0.20] such party has a right to amend the pleading which he think best. The court should not interfere in drafting the pleadings as the party has the right to amend them, but 'here is an exception that such amendment should not be prejudicial in the interest of the other party. The case of Commercial Union Association The court has discretion to allow amendments. Amendments are allowed only if they cause no injury or injustice to the opposite party or if the opposite party can be sufficiently compensated for D¶s cost or other terms. H/ever negligent or careless may have been the first omission, and h/ever late the proposed amendment, the amendment should be allowed if it can be w/out injustice lo the other side. There is no injustice if the other side can be compensated by cost.

35

Types Of Amendments 1. Amendment Of Writs Without Leave : O.20 R 1 (1)The P may, without the leave of the court amend the writ once at any time before the pleadings in the action begun by the writ are deemed \to be closed. (2)The amended writ must be served on each D to the action (3)This rule shall not apply in relation to an amendment which consist of (a) the addition, omission or substitution of a party to (he action, or an alteration of the capacity of party.; or (b) the addition of substitution of a new cause of action (c) amendment of the statement of claim (if any) indorsed on the writ This rule is not applicable ,unless the amendment is made before service of the writ on any party to the action

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2. Amendment Of Appearance: O. 20 R. 2 A defendant may not amend his memorandum of appearance w/out the leave of the court. 3. Amendment Of Pleadings Without Leave: O.20 R3(1) & (2) (1) A party may w/out leave of the court amend any pleading of his once at any time -before the pleadings are deemed to be closed , and if so, he must serve the amended pleading on the opposite party. (2) where an amended statement of claim is served of a D : (a) the D , if he has already served a defence on a P , may amend his defence. (b) The period for service of his defence or amended defence, shall be either the period fixed by or under these rules for service of his defence or a period of 14 days after the amended statement of claim is served on him which ever expires later. (3) where an amended defence is served on the P by a D ' (a) the P . if he has already served a reply on that D , may amend his reply; and (b) the period for service of his reply or amended reply, shall be 14 days after the amended defence is served on him.

37

4. Disallowance Of Amendment Made Without Leave (1) within 14 days after the service on a party of a writ amended under r, 1 (1) or of a pleading amended under r. 3(1) , that party may apply to the court to disallow the amendment. (2) where the court hearing an application under this rule is satisfied that - if an application for leave to make an amendment in question had been made under rule 5 at the date when amendment was made under r. 1(1) or r. 3(1) leave to !he amendment or part of the amendment would have been refused, - it shall order the amendment or that part to be struck out. (3) any order made on an application under this rule, may be made on such terms as to costs or otherwise as the court thinks just.

38

5. Amendment Of Writ Or Pleading With Leave (1) Subject to order 15 (6),(7) and (8) and the following provisions of this rule, the court may at any stage of the proceedings allow (a) the P to ..amend his writ, or (b) any party to amend his pleading on such terms as to costs or otherwise as may be just. (2) where an application to the court for the leave to make the amendment mentioned in para (3)(4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that para if it thinks just to do so. Chatsworth Investment Ltd, v Cussion Contractors Ltd. M96911 WLR 1: Under the rigid rule of practice in Weldon v Neal (1887) 19 QBD 394, any amendment was disallowed if it would deprive the D of a defence under the Statute of Limitation. But that rule of practice was found to work injustice in many cases. The new Rule of Court order 20 r. 5(1). (3). (4) and (5) has specifically overruled a series of case which worked injustice, in view of the new rule, the court should now allow an amendment whenever it is just so to do even though it may deprive the defendant of a defence under the Statute of Limitation. (It means that even limitation period had expired the court shall still allow it if it is just.)
39

6. An Amendemnt To Correct Name & Alter The Capasity O 20 R. 5 (3) And (4) (1) an amendment to correct the name of a party may be allowed under para (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, intended to be sued (2) an amendment to alter the capacity in which a party sues (whether as P or as D by counter claim) may be allowed under para (2). if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued (3) amendment may be allowed even if the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the a party applying for leave to make the amendment.

40

7. Amendment For Other Originating Process : 0.20 R.7 (1) Rule 5 shall have effect in relation to an originating summons, a petition and an originating notice of motion as it has effect in relation to a writ. 8. Amendment Of Certain Documents [0. 20 R. 8] (1) The court at any stage of the proceeding, may at its own motion or on the application of any party to the proceedings order any documents in the proceeding to be amended on such terms as to costs pr otherwise which is just. (2) This rule not applicable to a judgments or order. 9. Failure To Amend After Order 0. 20 R. 9 Where the court makes an order under this Order giving leave to amend a writ, pleading or other document, then if that party does not amend the document in accordance with the order before the expiration of the period specified in the order or if not specified, of a period of 1 days after the order was made, the order shall cease to have effect, without prejudice, but the court may extend the period.
41

10. Mode Of Amendment Of Writ [O.20 R.10] (1) where the amendments authorized under any rule of this order to be made in a writ, pleading or other documents are so numerous or lengthy so as to give effect to them would make it difficult or inconvenient to read, a fresh document , amended s so authorized must be prepared and in case of writ or originating summon re- issued and subject to any direction given in rule 55 and 8, the amendments so authorized may be effected by making in writing the necessary alterations of the document in case of a writ or OS, causing it to be sealed and filling a copy. (2) the amended writ or pleading or documents must be indorsed with a statement that it has been amended, date on which it was amended and by whom the order was made, the number of the related rule

42

11. Amendment Of Judgment And Order Clerical mistake in judgment or orders or errors arising there on from any accidental slip or omission, may at any time be corrected by the court by summons w/out an appeal. 0. 42 r. 11(6) A judgment or order shall not be amended except on production of the duplicate thereof last issued, and if the judgment or order is amended the duplicate so issued shall be similarly amended and the amended sealed under the direction of the Registrar.

43

Joinder for cause of action Introduction Before a person can start an action in court . The following requirements need to be taken : (a) cause of action (b) within the limitation period (c) which court to file the action (d) Parties to the action i.e. Plaintiff and Defendant (e) How the action is to be started i.e. mode of commencement, either by writ or petition or originating summons or application. The cause of action arises when the facts of the case establish the elements of legal liability. It is a condition precedent to the commencement of an action and every claim must disclose a cause of action before the court will be able to adjudicate the dispute. Obviously this means that the advocate must have the facts before him and that he should be knowledgeable about the applicable principles of law.

44

If he acts for a claimant in a traffic accident, he will have to consider the lowing facts: (a) whether the other party drove as a reasonable driver would have done (b) the extent to which the defendant was at fault (c) damages suffered by the plaintiff in consequences of the accident. If he represents in a matter involving breach of contract he must determine: (a) whether a contract was concluded (b) what is the terms of the contract (c) whether the other party complied with the terms (d) if not, the ensuing damage to the plaintiff

45

Defintion Cause of Action Cause of action means the cause or the set of circumstances which leads up to an action in court. The term refers to every fact which is necessary for the Plaintiff to prove in order to entitle him to an order or judgment in an action. Read v Brown The (assignee) brought an action in the Mayor's court in London as assignee of a debt of the price of goods supplied by a firm of Brown & Co. ( assignor) to the defendant. The sale and delivery of the goods appeared to have taken place respectively in Surrey (outside the city of London) without the jurisdiction of the Mayor's court. But the Plaintiff alleged that the vendor (assignor) had executed in writing an absolute assignment of the debt in his favor in the city of London , a place within the jurisdiction of the Mayor's court, and that he had given the defendant express notice in writing of the assignment so executed.

46

Defendant argument: (1) The assignee has no cause of action because he is not the seller of the good. The Vendor must claim the price. (2) Since the sate and purchase took place outside the city of London, the Mayor's court in London has no jurisdiction to hear the case. Held: (1) Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to enable a plaintiff to sustain his action. Plaintiff must proved the assignment because the assignment is part of his cause of action , (2) In the present case the cause of action has arisen in the city of London and as such the Mayor's court has jurisdiction to hear the case.

47

Cooke v Gill 'Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.µ Lim Kean v Choo Koon The P was the owner of premises. There was an agreement in which the premises were subject to the rent control where the Plaintiff was paying higher the rent imposed. The Plaintiff brought an action to recover the excess paid in the rent i.e. RM100 per month excess. Held: There was a cause of action . The Rent Control Board made an order fixing a maximum recoverable sum of RM50 per month, plaintiff.

48

When Cause Of Action Commences Nasri v Mesah (1971) 1 MLJ A cause of action founded on contract accrues on its breach. In the case of actions founded on any other right, time runs from the date on which that right is infringed or there is a threat of infringement. It means that once the contract is breach then the plaintiff has the cause of action etc.

49

Sio Koon Tin &Anor v S.B. Mehra (1981) 1 MLJ The R had contributed $100,000 to a partnership and it had been agreed that this amount be repaid to him: $15,000 on the execution of the agreement $35,000 on/before 12/10/1972 $50,000 (balance) on the 12 every month. There was no provision that in the case of default of any of the installment, the remaining installments should become immediately due and payable. On 7/10/1972 R took out a writ claiming inter alia payment of the sum $85,000 with interest.

50

This writ was subsequently amended on 14/10/1972 and a new prayer was added for the payment of any sum for due on the taking of accounts. Trial judge gave judgment in R's favor. Appellants appeal. Held: (1) R did not on 7/10/1972 have any cause of action in respect of the $85,000 or any part thereof, as no installments were then due. (2) The amendment to the back date writ of the original issue of the writ and at that date even the first installment of $35,000 was not due.

51

Sneade v Wotherton Pte. Co. Coitins M.R held; "The writ as amended becomes the origin of the action and The claim thereon indorsed is substituted for the claim originally indorsed". The amendment dated back to the date of the original issue of the writ and the action continued as though the amendment had been inserted from the beginning.

52

Effect Of Death On Certain Cause Of Action S. 8(1) Civil Law Act 1956 - states that in death of any person all causes of action subsisting against or vested in him- shall survive against or as the case may be for the benefit of his estate. However this is not applicable to causes of action for defamation, or seduction or for inducing one spouse to leave or remain apart from the other or to any ciaim for damages on the ground of adultery. (eg) P and D involve in fatal accident. If P died, his representative or administrator can bring an action against D on behalf of A's estate. (eg) Similarly if D died than P can bring an action against D's personal representive or his administrator.

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S 8(3) Civil Law Act - No proceeding shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceeding against him in respect of that cause of action either: (a) were pending at the date of his death; or (b) are taken not later than six months after his personal representative took out representation.

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Counterclaim As for counter claim made under Order 15 r. 2 & 3 in a contrary intention against the claim made, the defendant may make a counter claim which can be included in his statement of defence. e.g. The plaintiff claim a breach on the part of the defendant but the defendant counter claims that the plaintiff has break a term too, such as indebted to the defendant. Where D makes a counterclaim, instead of making a separate action, he may bring the counterclaim in the same action by P. Now for the counterclaim he becomes the P and original P becomes D. O. 15 r 2(1) a D in any action who alleges that he has any claim against a plaintiff in the action in respect of any matter, may instead of bringing a separate action, make a counter claim and if he does so, he must add the counterclaim to his defense.

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0. 15 r. 2 (2) will apply to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant .Such counterclaim shall have the same effect as a cross action so as to enable the court to pronounce a final judgment in the same action both on the original claim by the plaintiff and the counter claim by the defendant. O.15 r 2(3) A counterclaim may be proceed with, notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, or discontinued or dismissed. O. 15 r 3 (1) Where D to an action who make a counter claim against the P alleges that any other person (whether or not a party to the action) is liable to him along with the P in respect of the subject matter of the counterclaim, or claim against such other person any relief relating to or connected with the original subject matter of the action then subject to r. 5(2) he may join that other person as a party against whom the counterclaim is made.

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O. 15 r. 3 (2) where a D joins a person as a party against whom he makes a counter claim, he must add that the person's name io the title of the action and serve on him a copy of the counter claim. As soon as served the other party become^ a party to it from date of service. O. 15 r. 3 (3) time for serving counterclaim must be as mentioned in O. 18 r. 2 O.15 r. (4) the D can join the third party under the counter claim and not as a co plaintiff but can be a co defendant. O. 73 r 4 prohibits a person from bringing a counterclaim in any proceedings by the Government, if the proceedings are for the recovery of or counterclaim arose out of a right or claim to repayment of any taxes, duties or penalties.

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Pender vTadde The D and another X were co owner of a piece of land. The P sued the D for breach of contract. The D on (he other hand counter claimed for trespass. The issue was whether or not the D could bring his co- owner into the counterclaim. Held: The rule did not apply to such counterclaim involving co-owner as the coplaintiff. The D could only bring X , a third party as a co defendant.

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Joinder Of Cause Of Action O. 15 r (1) provides for the Joinder of causes of action in 3 situations. A Plaintiff may claim relief in one action if: (1) both the plaintiffs claim and the defendant are alleged to be liable in the same capasity(personal capacity) in respect of all the cause of action; or (2) either the plaintiffs claim or the defendant is alleged to be liable, in the capasity of executor or administrator of an estate, in respect of one or more of the causes of action and in his personal capasity but with reference to the same estate in respect of all the other causes of action; or (3) with leave of the Court

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The law has invested the court under O. 15 r. (5) with the power to order separate trials, if it finds it inconvenient to try or dispose of the different causes of action in one action. This is the discretion given to court alone. One essential condition is that the court should have jurisdiction in respect of ail the causes of action involved, (eg.) if A (buyer) , B (seller), C (broker). If B died, C can sue as in his capacity as Broker and also in his capacity as representative of his father. Refer O. 8 r. 1 & O. 8 r 1 (b)

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Harris & Anor v Ashworth M96211 AER In this case, there were 2 plaintiffs whereby H and N brought a joint action against the defendants. There were 3 cause of action , namely fraud, fraudulent misappropriation and undue influence. The D argued that the joinder of these causes of action was irregular. Issue: Whether several causes of action could be brought against the defendants. Held: The plaintiffs were properly joined in alt the causes of action as the plaintiffs N argued on the fraud and H on the undue influence. So both H and N could sue on fraudulent misappropriation.

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Two Action In Respect Of Same Cause Of Action Bank of Canton Ltd, v Darts S.T.P. The Bank sued the Respondent being a guarantor to Def. via a guarantee letter dated 31/7/1974 signed by R. In 1976 the Bank sued D1 and Respondent and others based on the guarantee letter dated 31/7/74. R claim that no notice of demand was made by the Bank. On 9/5/77 the bank made another suit against the Respondent based on the same guarantee letter. Issue: There is 2 actions in the same court on the same cause of action Held: (1) The respective causes of action in this case are not separate and distinct but are the same and the learned chief justice had exercised the discretion given to him by Order 4 R 1 correctly in refusing to make the order for consolidation. (2) The court has an inherent jurisdiction to stay proceedings which are an abuse of its process. If a plaintiff brings two actions in the same court in respect of the same cause of actions the court will generally regard it as an abuse of process of the court and vexatious and will put the P to two election as to which cause of action he will continue and stay one of the actions. In this respect CJ has exercised his discretion correctly. Continue« Note 2 of 4 Notes
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