CP II NOTES

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Summary Judgment
Summary  SJ is governed by Order 14
Judgment,  The scope of O14 for case which is so strong that it is unanswerable
O14  It is clear-cut case & no defence, thus P should not be expected to wait
 P no need prove the case at the trial
 Alliance Finance Bhd v Cahaya Kelang Construction Sdn Bhd – it was clear-cut case, n
no dispute as to fact or law. D’s defence is only to delay
 The importance of SJ is to dispose a civil action quickly, thus save time n costs for all
parties

When not  O14r1(2)(a) – begin by OS / libel / slander / false imprisonment / malicious prosecution etc.
available  O14r1(2)(b) – allegation of fraud (P cannot apply SJ)
 43 (accounts and inquiries), O 81 (specific performance for SJ) and O 89 (possession of
land)
 73 r 5(1) against government; and
 Other grounds eg: triable issues

Procedure for  National Company for Foreign Trade v Kayu Raya Sdn Bhd, held that P must satisfy the
Obtaining SJ preliminary requirements for proceeding under O14:
(i) the D must have entered an appearance
(ii) the SOC must have been served on the D
(iii) the affidavit in support of the application must comply with the requirements of Rule 2
of Order 14

Time
 Is governed by O14r1, not before the commence of action
 Must be after the D entered appearance and SOC served, n before D serves defence
 If P delays his application, he must give good reasons and explain the delay
 CGIR v Weng Lok Mining Ltd – concerning non-payment of tax, it was held that the reason
of delay of 3 months in the application is due to holiday and fasting month was good reason
and did not warrant a dismissal of the application
 Krishnamurthy v Malayan Finance Corp
H: must be made after D entered appearance or either before or after the delivery of
defence. If made after the service of defence, P must explain the delay. If the reason no
accepted, then no O14. An application for summary judgment under O 14 r 1 of the RHC
must be made soon after appearance had been entered. If explanation of delay is not
accepted, then the application will be dismissed
 British American etc Insurance Bhd v Pembinaan Fal Bhd – did not accept the P’s
explanation of delay in that its former solicitors had moved to Kota Bharu and it had
engaged other solicitors
 MBSB v Ghazi bin Hasbollah – no hard and fast rule, depends on discretion of the court

Notice of Application in Form 57 (Order 14 r2(1) & O32 r1)

 Supported by Form 13 which verify the fact by:
(a) you refer to the court
(b) refer to SOC
(c) you believe there is no defence

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 Service of the Notice of application (O14 r 2(3))
 Serve on D within 14 days
 Service – O62r1 – O14r2(3) – ordinary service (O62r6) – no expressed requirement on
serve it personally. Can through address / registered post / fax / any such manner as agreed /
the court may direct
 O14r2(3)
(i) Apply by F57 +affidavit in F13
(ii) When you serve to D, he should had as well the F57 + F13

Affidavit requirements
 O14r2(1) – in Form 13. It must state (i) facts of P’s case; (ii) P believes D has no defence
 O14r2(2) – can contain hearsay evidence by P/ P’s solicitor (heard from who and the
source)
 Defective affidavit may be dismissed. The court may adjourn to allow a new affidavit to be
filed
 Chai Cheon Kam v Hua Joo etc Sdn Bhd – affidavit didn’t comply n was bad. P’s
application was dismissed n the action go to trial (it was said not a good case, as it can be
cured by O1A)

Hearing of the  O32r9 & 10 – HC hearing by registrar

Notice of  P wants SJ Order in Term, D wants the application be not entered (not dismiss it) so that
Application their application can be dismissed with cost

(a) Technical objections e.g. short or defective service, defective affidavit etc
 Q: when you get the NoA look at the prerequirement of the SJ such as action based on libel,
the other party is a government etc. if it is based on this, ask application to be dismissed
with cost (raising an objection)
 If the application not in order because SOC never tender or omit the words of “believe no
defence” then it is the court’s discretion
 If it is merely technical objections, then it is only a time saving strategy, still have to face a
SJ
 O14r7: judge dismissed and award cost to D

(b) D shows that there is a triable issue. D is required to show “that there is an issue or
question in dispute which ought to be tried”
 Appaduray v Ananda – The case of trespass, the court held the dispute in the boundaries of
property raised by D required evidence of a survey report. This is a triable issue
 Binariang etc Sdn Bhd v I & P Sdn Bhd (injunctive relief possible under O 14
proceedings)
H: as long as 4 conditions have been fulfilled, there is no restriction in law to prevent O14
to grant injunctive relief. Which is (i) D must enter appearance; (ii) SOC is served to D; (iii)
P apply SJ supported with affidavit; (iv) heard by a Judge
 Lin Securities v Noone & Co Sdn Bhd
H: O14r4(1) provides that a D may show cause against an application of SJ by affidavit. If
the defence filed, the trite principle that a party is circumscribed by his pleadings is
inapplicable against the D in O14 although it is encouraged to be no surprise element

(c) D raises set-off or counterclaim

 If D raised a set-off then he will get NoA dismissed with cost
 Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd
H: Set off is a cross claim for a sum of money by D against P’s claim and arises from the
same transaction and acts as defence for D. CC is a cross claim in a separate action where D
becomes P and P becomes D. CC is governed by O15r23 n wider than a defence of set off

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 and a separate action against P. Set-off is a defence. If it is a CC then the SJ can proceed but
if it is a set off which constitute as defence then cannot proceed

(e) Special rules concerning cheques

 A cause of action arises when cheques are dishonoured because –
(i) there is a contract to pay under common law
(ii) A cheque is cash under Bill of Exchange Act
 It is better for P to sue under BEA and straight away apply SJ. As D cannot raised defence
except –
(i) total failure of consideration
(ii) illegality, or
(iii) fraud or forgery
 Fielding and Platt Ltd v Najjar
H: P entitled for the payment under contract as it performed its duty and no failure of
consideration for the first note. But for the second promissory note, no consideration
completed and D allowed to defend for this note.
 Marina Sports Ltd v Alliance Richfield Pte Ltd
H: As BEA allowed a dishonoured cheque to be a cause of action and if there is only the
bare facts and nothing else, the SJ should have entered. However, in this case there are a lot
of issues to be raised to explain the background of the claim, there is a triable issue

(f) Order 14 r 3: “there ought for some other reason to be a trial of that claim”
 Means the court has discretion to proceed to trial
 Miles v Bull
F: The husband and wife separated and the husband sold the property in which the wife was
living. He then brought an action for possession of the property against her and now sought
SJ
H: If D cannot point to a specific issue which ought to be tried but able to satisfy the court
that there are circumstances which ought to be investigated, then it would be improper to
enter SJ for P. Requirements: (i) most or all relevant facts r under the control of P; (ii) the D
needs discovery, cross-E etc. to aid Dself; (iii) D doesn’t know anything

(g) D’s defence arouses suspicion

 May arouse suspicion when he makes many allegations in his defence but cannot produce
evidence.
 The court may grant conditional leave to defend, D has to pay money for security
 Fieldrank Ltd v Stein
H: Although a judge cannot say for certain whether there is triable issue, nevertheless he is
left with a real doubt about defendant’f good faith, would like to protect P, esp when there is
no grave hardship on the D in being made to pay money into court. D in this case was given
conditional leave to defend

(h) The case is one of construction (use as defence to stop application of O14)
 Documents: See Esso Standard Malaya v Southern Cross Airways
H: If one has a short matter of construction with a few documents, the court, on summary
application, should decide what in its judgment the true construction is. No reason why not
to go on or hear the matter in O14 if the issue are clear and the matter of
 substance can be determined at once
 Statute: See Fadzil v Universiti Teknologi Malaysia
H: D cannot raised issue of law to stop hearing of the application. The court will interpret
the statute. The court look into the construction of the Constitution of the University and the
U had absolutely hopeless case. The only function of court is jus dicere and to ascertain the
intention of the parliament from the words used in the statutes and nothing more. No useful
purpose would be then be served to go formally to trial

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 (i) Can the court determine questions of law?
 European Asian Bank v Punjab & Sind Bank – in appropriate case, the court can decide
on the question of law under O14 although it seem to be complex
 Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd – where the issue raised is sole
question of law without disputes of facts, O14 applicable even if the law is a difficult one.

Orders That (a) Notice of application dismissed with costs – O14 r 3(1) and O14 r 7
the Court May  Defence anticipated by P
Make and the  Substantive technical objection
Circumstances  Set off
When They
Would be (b) Adjournment and leave to amend or file fresh affidavit but P to pay D costs thrown away
Made  Minor defects in the rules of procedure

(c) Unconditional leave to defend and costs in cause – O14 r 4(3)

 Defence/ triable issue not anticipated by P
 D show triable issue or some other reasons ought to be a trial

(d) Conditional leave to defend on payment into court of whole or part of claim in x days to
abide event with costs in cause; in default, final judgment and costs against D – O14r4(3).
If D defaults, then P is entitled to final judgment and cost
 D defence arouses suspicious

(e) Judgment for P with costs execution stayed until trial of counterclaim – O14r3(2)
 D raises a counterclaim

(f) Judgment for P with costs – O14 r3(1)

 D unable to raise triable issue

Can the Court  P proceeds by way of O14 against D to enforce a contract. At the hearing for summary
Dismiss P’s judgment of court takes the view that there was no concluded contract. May the court
Action? dismiss P’s suit?
 Diamond Peak Sdn Bhd v Tweedie
H: The trial judge has no power in an application for SJ to dismiss P’s action. He can only
dismiss the application for SJ and grant D unconditional leave to defend
 There is no power in an application for summary judgment to dismiss the action

Appeals  Both P & D may appeal to judge in chamber from any judgment / order made by the
registrar
 Appeal from HC to CoA: O56
 Appeal from SubC to HC ; O55
 Where triable issue as a matter of fact or evidence (as opposed to law) “it is most unlikely”
that an appellate court would interfere with the discretion of the judge
 UMBC Bhd v Pembinaan KSY Sdn Bhd
H: An appellate court is most unlikely to interfere with the discretion of the judge where the
triable issues concern fact or evidence (as opposed to law)

Summary When is Order 81 applicable?

Judgment  See Order 81 rule 1(1):
under Order In any action begun by writ indorsed with a claim
81 (a) for specific performance of an agreement (whether in writing or not) for the sale,
purchase or exchange of any property, or for the grant or assignment of a lease of any
property, with or without an alternative claim for damages; or
(b) for rescission of such an agreement; or
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 (c) for the forfeiture or return of any deposit made under such an agreement, the plaintiff
may, on the ground that the defendant has no defence to the action, apply to the Court
for judgment.
 Subject matter : sale purchase or exchange of property & grant or assignment of a lease over
property
 Remedy: specific performance & rescission & return / forfeiture of a deposit

Procedure for Obtaining Summary Judgment

1. Preliminary requirements – (i) writ must be served to D; (ii) SOC must have been served to
D
2. Mode – NoA attach a minute of judgment supported by affidavit. Affidavit must comply
with O81r2
3. Hearing – if D unable to raise triable issue, then SJ will be granted
4. Technical Objection – irregularities than can be cured

Differences in Procedure between Order 81 and Order 14

 81 r 1(2) (as soon as writ is served – appearance not necessary)
 81 r 2(1) (swear positively as to facts, cannot be hearsay)
 81 r 2(2) (minutes of the judgment sought)

 Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd – Failure to comply with r 2(2) not fatal

Summary  O89 – recovery of possession of land / squatters on land / not apply to tenants or tenants
Proceedings holding over / not to licences or person who enter the property with P’s consent
for Possession  Can only apply to persons enter the P’s land without permission
of Land,  Can be used against the person that who is not known
Order 89  Summary Hearing will be b4 a judge. If P able to prove the case, the judge will give Form
195 (order for immediate possession & can be enforced immediately)

Procedure
1. Commencement – special form, 8A supported by affidavit (comply with O89r3)
2. Service – if D is named, then follow O10r1 or leaving a copy to premise or court directs; if
D is not named, then affixing copy of document at the main door of premise or some
obvious part, or insert through the letter box or seal envelope in containing the documents.
If practicable, the envelope must be addressed to the occupiers

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Third Party Proceedings
Introduction  Only D can bring a TP proceedings, through O16
 P can also bring TP if D makes a counterclaim i.e. P now becomes D
 A TP is a separate action from the main action btw P n D. in TP, D becomes P n the TP
becomes D
 TP n the main action btw P n D may be heard tgt to avoid multiplicity of suits

 D can opt to add 3rd party as co-D with leave of court by O15r6. P may object
 D can also apply to add 3rd party by O16, n no leave of court is needed

When can D  B4 join, D must show D’s claim against 3rd party falls under O16r1(1a-1c). If no, the party
apply cannot be added as a 3rd party

Four instances
 R1(1)(a) – D claiming contribution from the 3rd party, e.g. joint tortfearsors
 R1(1)(a) – indemnity. 3rd party is liable for whole amount, e.g. suretyship (guarantor is D,
ask for borrower to bear the claim)
 R1(1)(b) – D is claiming against 3rd party the same relief the P asking
 R1(1)(c) – There is a common issue btw the D & 3rd party

Procedures 1. D must 1st enter the appearance to P’s claim – r1(1)

2. D may issue a TP notice in Form 18 or 19
3. B4 he joins a 3rd party, he needs to determine whether he needs the leave of court. Only 3
circumstances is required:
(i) D issues the notice after serving his defence – r1(2)
(ii) P’s action is not begun by writ – r1(2)
(iii) TP is the govt, O73r8
4. D must then serve the TP notice on every TP personally tgt with a copy of the writ n of the
pleadings (if any) served – r3(2)
5. TP must enter appearance in Form 21 within 14 days after being served with the TP notice –
r4(1)
6. If TP fails to enter appearance or defence, then judgment may be entered against him in
default – r5(1)

Leave to issue Third Party Notice – r2

 Application is by ex-parte Notice in Form 20 supported by affidavit, r2(1). However, the
court may order it to be served on TP and / or P
 R2 – The affidavit must state:
(i) The nature of the claim made by P in the action
(ii) The stage of the proceedings which has been reached
(iii) The nature of the claim by D against TP
(iv) The name n address of TP
 The court has discretion to grant leave to issue a TP notice

Summons for  R4(1) – D must apply for directions by Notice in Form 22 within 7 days after TP has
TP directions entered appearance n serve the application on TP, P n co-D if any
 R4(2) – if D has not served the summons for direction within 7 days, then TP may apply to
the Court for directions or for an order to set aside the TP notice. TP may apply by Notice in
Form 22 to be served on all parties in the action
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  The notice may be dismissed if the action doesn’t fall under O16r1(1a-1c) or P / TP can
show special circumstances why the directions should not be given
 R4(3) & (4) – the court has wide powers to make any of the following:
(i) Order judgment for D against TP if the liability of TP is established
(ii) Order any claim, question or issue to be tried in court
(iii) Give TP leave to defend alone or jointly with D
(iv) Determine the extent TP is to be bound by any judgment
(v) Dismiss the application for directions. This terminates TP ptoceedings

Plaintiff and  Generally TP cannot bring claims against P in TPP because there is no nexus btw P & TP
Third Party  If the plaintiff wishes to obtain judgment against the TP, he must apply under O15r6 to add
the latter as D – Fullji Realty Sdn Nhd v Lim Yong Meng
 If the TP wishes to cc against P, he must himself apply to be so added. A TP who has been
given leave to defend the action pursuant to O16r4(4) may, at the trial, cross-E the P n seek
discovery against n interrogate the P – Kayla Beverly Hills

Limitation  The rules on limitation period apply for D as well as for TP

against Third  Time doesn’t begin to run until D is made liable to P. A TP claim is btw D n TP n is a
Party separate action from the main action btw P n D
 Mat Abu bin Man
H: TPP for contribution should be regarded as independent of and separate from
proceedings by a P against a D. When a D is made liable to the P, he then has a right open
against a third party to establish that he possesses a right to contribution or indemnity from
the third party. Time should begin to run from the date the defendant is liable. Even the
cause of action exceed the limitation period

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Interpleader Proceedings
Applicable Law  See Para 5 of the Schedule to the Courts of Judicature Act 1964 and Order 17 –
and Procedural (i) Para 5(a): person seeking relief is under libility for debt, money, goods or chattel for
Rule he has been, or expects to be sued by 2 or more parties making adverse claims
(ii) Para 5(b): where a sheriff, bailiff or other court’s officer in charged with te execution
of process of court, claim is made to any money, goods or chattels taken, intended to
be taken, by any persons other than the person against whom the process is issued
 S74 of Sub Court Act.
 O17 person under liability (applicant) is the prson under liability to ask for relief by
interpleader
 Eg: A and B claim a ring from C (ring which left at C’s home). C will go to court and
seek relief by interpleader. C is the applicant
(i) This is not a typical action of suing. It is just to force A to sue B or vice versa
(ii) C forced A and B to interplead. Ask them to resolve the matter among themselves
(iii) If C is the one who claiming the ring now, he cannot go for the interpleader process

When  Overseas Investment Pte Ltd v O’Brien & Anor

Available H: IP is where D is sued by P claiming property held by D in which D has no interest but
which is also claimed by a third party, D may take out n serve a summons on both
claimants for an order that the issues as to ownership be decide btw them
 The objective is to determine the title of goods or money / proceeds of sale

Types of 1. Stakeholder’s Interpleader

Interpleader  O17r1(a): a persons who holds property for D. If P obtains judgment against D, P may
Proceedings demand the property from the stakeholder
 Stakeholder can ask P and D to interplead for the court to decide to whom the stakeholder
should pay
 Commenced when caught in a situation that you yourself not interested in n got no interest
in claim
 Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd & Ors
H: interpleader proceedings has its objective of providing a relief or to extricate or
disentangle an applicant from the embarrassment of being sued, or likely to be sued by
more than one party in respect of the same subject matter. Before a relief can be sought
under O17r1 it is essential that the applicant must be genuinely faced with a potential suit
by one or more persons. Thus there must be in existence a real conflict between the
claimants. A mere anticipation of a legal suit would not suffice

2. Sheriff’s Interpleader
 O17r1(b): Sheriff has seized some goods, in the possession of D under writ of seizure and
sale, but the goods also claimed by others parties
 Sheriff takes interpleader summons to determine

Procedure  Must be by originating summons unless in a pending action, in which case it shall be
made by a notice of application in Form 27 (sheriff) or 28 (stakeholder), whichever is
appropriate. O17r3
 No appearance is required to be entered to an originating summons. O17r3(2)
 The originating summons or notice of application must be served personally at least 7
days before the return day (hearing) .O17r4(3)
 As to the mode of service, see r 4(3) and (4)
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  The originating summons (except that of a sheriff) must be supported by evidence that the
applicant:
(i) claims no interest in the subject-matter in dispute other than for charges or costs;
(ii) does not collude with any of the claimants to that subject-matter; and
(iii) is willing to pay or transfer that subject-matter into Court or to dispose of it as the
Court may direct

Hearing of the  See O 17 r 5

Originating  One claimant does not appear – barred from prosecuting claim.
Summons or  Parties appear:
Notice of (i) Summary disposal, or
Application (ii) Trial

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Injunction
Introduction  There is two ways of application ex/inter, but ex before expiry of 21 must go inter too
 It is then in the inter where court determine the factor whether an injunction should be
grant
 As this is an interlocutory injunction, it is a temporary injunction grant before a proper
trial
 Which after the proper trial, it either be dismissed or made as perpetual injunction
 As it is applied before trial, good arguable case must be prove by applicant so that does
not “steal” the right not belonged

Classification (a) Prohibitory – see s. 52 SRA 1950 and illustrations thereto

 A negative injunction in preventing a party to stop doing something.
 S52(1): prevent the breach of an obligation existing in favour of the applicant, whether
expressly or by implication.
 (2): an obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II.
 (3): when the defendant invades or threatens to invade the plaintiff’s right to, or
enjoyment of, property

(b) Mandatory – see s. 53 SRA 1950 and illustrations thereto

 A positive injunction in requiring one to do something
 S53: to prevent the breach of an obligation, it is necessary to compel the performance of
certain acts which the court is capable of enforcing
 The court may in its discretion grant an injunction to prevent the breach complained of,
and also to compel performance of the requisite acts
 Gibb & Co v Malaysia Building Society, it is held that:
(i) Court has jurisdiction to grant interlocutory and interim mandatory injunctions in
proper and appropriate cases
(ii) It is never granted except in exceptional and extremely rare cases
(iii) Before granting, the court will take into account: (a) both the positions of the parties,
subsequently at the final hearing and the questions of hardship and inconvenience in
the meantime; (b) any other relevant discretionary consideration
(iv) The court is not precluded from granting an interlocutory mandatory injunction even
though it amounts to a final relief which would be given in a trial
(v) If there is plainly no defence to the action and the only object of the defence is to
delay, the court may grant an injunction even if it amounts to a whole remedy before
trial

(c) Perpetual
 Order made after hearing both sides, in the normal course, to bind the parties finally
 S51(2) SRA: granted after decree of hearing and merit
 S52: granted to prevent the breach of an obligation existing n favour of applicant

(d) Interlocutory, interim or temporary (until full hearing – see Form 53)
 S51(1) of SRA: continue until a specified time, or until further order by the court
 May be granted at any period of a suit, and regulated by the CP, O29r1
 An temporary injunction is granted for a specified period at any stage of the proceedings
 An interim injunction is usually granted in urgent cases n is valid for 21 days. It is applied
by ex parte application by NoA supported by affidavit
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  An interlocutory injunction is usually granted b4 or during the trial where the case is not
urgent. It is valid until the end of the trial where a perpetual / final injunction may then be
given. It is applied by inter partes application by NoA supported by affidavits

(e) Quia timet

 A ‘quia timet’ injunction may be granted where P’s right is threatened but not yet
infringed
 P must show that a substantial damage will be suffered n must apply promptly
 PPES Resorts Sdn Bhd v Keruntum Sdn Bhd – it was held that applicant must show that:
(i) there is an immediate danger of substantial damage; (ii) it is impossible for the
applicant to protect himself if the injunction is not granted

(f) Erinford
 Erinford Properties Ltd v Cheshire Country Council
H: Erinford injunction is an injunction granted pending an appeal against the decision of
the judge who has set aside an injunction which had earlier been granted
 The effect is a stay of the judge’s decision until an appeal against the decision of the judge
is heard
 Ooi Meng Sua v Aetna Universal Insurance Sdn Bhd, the court gives the factors which
the court would consider in its discretion to grant an EI:
(i) Whether the applicant for stay had shown in his grounds special circumstances
peculiar to his case
(ii) The probability based on facts or law that the judgment or order may be reserved or
varied
(iii) Whether the successful party ought to be free to act despite the pendency of an appeal
(iv) The comparative effects of granting or refusing a stay pending an appeal r such it
would be right to preserve the status quo pending appeal
(v) The subject matter of the case n whether damages would appear to be a suitable
alternative

No Injunction  See s29(2) of Government Proceedings Act 1956 and s54 SRA 1950
against  No injunction, directly or indirectly can be granted against the govt or any statutory body
Government  Government of Malaysia v Lim Kit Siang
H: No injunction under S29 when it indirectly restraint the government. As well as S54 of
SRA where no injunction can be grant to ‘interefere with the public duties of any
department of government’
 Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah & Ors
H: It has been settled that s 29 of the Act does not prohibit the grant of temporary
injunctions against the Government

Interlocutory Procedure
injunction  Case not urgent (eg. Interlocutory injunction) – O29 r1(3) – issue originating process
(writ/OS) inter parte NoA and affidavit
 Case urgent (eg. Interim injunction) – O29r1(2-3) – no need originating process +
O29r1(1) and (2) – made by ex parte application and affidavit
a. It must certified by P’s solicitor that the case is urgent
b. O29r1(2) – application is made by ex-parte NoA supported by an affidavit
c. O29r1(3) – the application may be made b4 the issue of the writ or originating summons n
the interim injunction may be granted on terms providing for the issue of the writ or
originating summons n such other terms as the Court thinks fit
d. O29r1(2B) – the interim injunction is valid for 21 days from the date it was granted unless
sooner revoked or set aside
e. O29r(2BA) – The ex-parte interim injunction must be served on the relevant party within
7 days of the date of the order granting the interim inunction n the Court, when granting
the injunction, must forthwith fix a date for inter partes hearing to be held b4 the expiry of
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 the 14 days
 Contents of affidavit – O29 r1(2A)
(a) Facts giving rise to the case
(b) Facts giving rise to the action
(c) Facts rely on why ex-parte?
(d) Answer of the other party might probably be argued
(e) Full ad frank disclosure includes grounds not benefit to you
(f) Tell he court what you want from the court
 Non- compliance will be fatal (O1A will not consider)
 It is a discretionary remedy
 The court will not go to all merit of the case as it is not in trial when granting an
application for interlocutory injunction
 Matters to be considered by the court: Compliance of ROC, procedure, the tests below, P
undertakes the damages
 American Cynamid v Ethicon, when deciding to grant an interlocutory injunction, the
court would consider:
(i) Has the P shown a serious question to be tried? (lower burden than prima facie or
likelihood)
(ii)
sufficient to compensate P? if sufficient, then no injunction
(iii) Courts now trun o D and ask D: if you win he case and proven you should ot be injunt
at the fisrt stance, how much damage will you suffer? If D able to answer a specific
amount most likely the P will be granted the injunction
(iv) When (2) and (3) cannot adequately compensated, the court then will see the balance

the court will maintain the status quo

Serious question to be tried

 Keet Gerald Francis v Mohd Noor & Ors, Gopal Sri Ram JCA said that a judge should
undertake an inquiry along the following lines:
(i) Serious question to be tried must based on the totality of the facts presented and
discloses bona fide issues to be tried in the affidavit which are serious enough to merit
a trial
(ii) Having found there are issues to be tried, the judge must considere where the justice
lies. Include the practical realities, the harm suffer by both the parties, financial
standing, especially when P has financial position to meet his undertaking of damage
and suffer greater injustice, injunction should be granted. In cases where the injustice
were so manifest to the P, judge should grant to him as well
(iii) Court then will consider all matters. The remedy is a discretionary one, intended to
produce a just result for the period between the date of the application and the trial
proper and intended to maintain te status quo. should have taken count on the delay
application is made, alternative remedy(such as compensation of money to P) and
public interest

Application must be prompt

 Ware v Regent’s Canal Co – Delay “may be calculated to throw considerable doubt upon
the reality of his alleged injury”
 Evercrisp Snack Products v Sweeties Food Industries – the court didn’t grant the
interlocutory injunction because P had delayed his application n gave no satisfactory
explanation

Form of order and duration

 O29r1(4) – Form 53
 Duration – see O 29 r 1(2B): lapse 21 days from date it was granted
 Cheah Cheng Lan v Heng Yea Lee – the life of an ex parte injunction is in force for only
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 21 days if it is not revoked or set aside b4 the expiry of the 21 days. The court has no
power to extend the life of an ex parte injunction beyond 21 days because of the words,
“shall automatically lapse” in O29r1(2BA)
 See also the new O 29r1(2BA): interim injunction must be served within 7 days of the
date of order, and court must order to hear the inter partes within 14 days from the date of
order
 An ad interim injunction may be granted pursuant to an earlier successful ex parte
application which is now pending hearing on an inter partes basis
 It is invoked when:
(i) There has been an ex parte order granting an interlocutory injunction. (Under Order
29 rule 1(2B), an injunction obtained on an ex parte application shall automatically
lapse at the end of 21 days from the date on which it was granted); AND
(ii) The hearing of the application inter partes to set aside or to extend the injunction is
beyond the 21-day period
 Jakob Renner (an infant suing by his father and next friend, Gilbert Renner) v Scott
King Chairman of the Board of Directors of International School KL
H: Two stages of temporary injunction: (i) One granted without finally disposing of the
application for injunction to operate immediately till he disposal of the said application;
(ii) Other granted while finally disposing of the main application to ensure generally till
the disposing of suit (former is interim injunction, latter is temporary injunction). Neither
on principle nor on authority bar the courts granting ad interim injunction till the disposal
of the application for the temporary injunction.
 RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel
H: To protect the P’s injunction, the court may grant him an ad interim injunction, which
is not extension of 21 days, it is a fresh order made on application whether ad interim
should be granted or not. This injunction stayed until the court finally hear the inter parte
where the court will then decide whether to grant an inter parte injunction or not

Undertaking as to damages
 P must take an undertaking as to damages for the interim injunction against D should P
lose the case
 Keet Gerald Francis v Modh Noor & Ors
H: P must make undertaking as to damages for the interim injunction against D should P
lose the case. However, if injustice to P is so manifest, the court may dispense with the
undertaking as to damages

Failure to comply
 If D fails to comply with the interlocutory injunction, then t amounts to contempt of court

Grounds for discharge

 Same like ground to invoke
 No serious question to be tried
 Balance of hardship in D’s favourAssessment of damages: damages can be assessed or P
can’t paid damages if D wins
 Suppression of material facts
 Non-compliance of O29r1(2A)
 Insufficiency of urgency
 Affidavit not promptly made
 Injunction order is oppressive
 Damages is adequate to compensate P if P wins

Defamation actions
 In defamation cases, the court also use the principle in Keet Gerald to decide on the
granting of injunction

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  Woodward v Hutchins – if on the facts, it shows that D’s statements may amount to
defamation which would cause hardship to P’s reputation, then an injunction will be given

The Mareva  It is used to in aid of execution by ex-parte without notice to D before commence an
Injunction action
 Before proving D owed the money, go and freeze

Nature, origin and development

 It is originated in the case of Mareva Compania Naviera SA v International Bulk-
carriers SA
H: an injunction was granted to restrain D from disposing or concealing his assets in order
to defeat an action brought against him
 Third Chandris Shipping Corporation & Ors v Unimarine S.A.
H: the HC had jurisdiction under section 45 (1) of the Supreme Court of Judicature
(Consolidation) Act 1925 to grant a Mareva injunction as an interlocutory order in
appropriate cases where it appeared that a debt, which was or was likely to be the subject
of proceedings in England, was owing and there was a real risk of the debtor removing
assets from within the jurisdiction so as to defeat the debt
 S & F International Limited v Trans-Con Engineering Sdn Bhd
H: The order known as a Mareva injunction is a species of interlocutory injunction which
restraints a defendant by himself or by his agents or servants or otherwise from removing
from the jurisdiction or disposing of or dealing with those of his assets that will or may be
necessary to meet a plaintiff’s pending claim

Jurisdiction to grant a Mareva injunction in Malaysia

 Para 6 of S25 CJA: “Power to provide for the interim preservation of property the subject-
matter of any cause or matter by sale or by injunction or the appointment of a receiver or
the registration of a caveat or a lis pendens or in any other manner whatsoever." (+) can
exercise all power vested in it immediately prior to Malaysia Day as well as written law in
force within its local jurisdiction without prejudiced to the Art 121
 Zainal Abidin v Century Hotel Sdn Bhd – the Federal Court held that paragraph 6 of the
Schedule to the Courts of Judicature Act gave the High Court jurisdiction to grant a
Mareva injunction

Procedure for application

 Orwell Steel Ltd v Asphalt and Tar Mac (UK) Ltd – P may apply for a Mareva injunction
b4 an action has been commenced or after a full trial
(i) Ex parte summons; affidavit must satisfy O29 r2A
 Motor Sports etc Ltd v Delcont (M) Sdn Bhd – the court must strictly adhered to the
requirement of O29r1(2A) as the objective is to ensure that ex parte injunctions of any
sort were not granted willy-nilly especially in Mareva and Anton type of injunction
because incalculatable harm and damage might cause to D
(ii) Requirements
 There is a “good arguable case”: Rasu Maritima S.A. v Perusahaan etc Negara
H: The case need not be a strong case as to warrant an O14 or even a strong prima facie
case. It is sufficient to show on the evidence available that there is a fair chance that P will
obtain judgment against D. ultimately; it is the court’s discretion to decide
 Third Chandris case, Lord Denning M.R. set out certain guidelines:
a. P must make a full and frank disclosure by the plaintiff of all matters within his
knowledge which are material for the judge to know
b. P must set out the grounds of his claim with particularity and the amount thereof, and
fairly state the points made against it by the D
c. P should give some grounds for believing that the defendant has assets within the
jurisdiction
d. P must give some grounds for believing that there is a risk of those assets being removed
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 from the jurisdiction before the judgment or award is satisfied
e. P must give an undertaking as to damages
 Duty to make full and frank disclosure: Creative Furnishing Sdn Bhd v Wong Koi
H: P must make full and frank disclosure of all material facts. There must not be
misleading or suppression of the material facts. Failure to do so will be fatal
 In Bank Bumiputra v Lorrain Osman & Ors, the court granted Mareva injunction to
restrain D from transferring his assets out of the jurisdiction and said, inter alia, that the
requirements for MI:
a. P must show good arguable case
b. P give evidence D has assets within the jurisdiction
c. P must show that there is a risk that D may dispose of his assets before judgment
 Discovery in aid: court has a discretionary power
 BIMB v Lorrain Osman – the court has discretion in a MI for discovery to help whether a
MI should be granted or not

Risk of disposing of his assets

 There must be a real risk that the Defendants will or may remove their assets from the
jurisdiction or dispose of them within the jurisdiction so as to render them unavailable or
untraceable

Living expenses and debts

 Order must make provisions for living expenses and payment of ordinary debts
 Larut Consolidated Bhd v Khoo Ee Bee – held that the MI must not be oppressive n must
provide for D’s living expenses n legal costs; if there is delay there must be an
explanation in the affidavit

Foreign Assets
 Derby v Weldon (No. 2) – The court has J to grant MI even if the assets are in foreign
land
 Roseel NV v Oriental Commercial & Shipping Ltd – MI to prevent foreign assets from
being dissipated is an unusual measure n should rarely be granted because the court has to
supervise, will grant only they have jurisdiction

 Derby v Weldon (No. 1) – MI should have worldwide effect

Anton Piller Nature of the Anton Piller Order

Injunction  It is a type of ex-parte Injunction, which allows P to enter D’s premises, to search n to
seize evidence that may be used against D in a civil suit
 It can also be used for execution of judgment, when D is going to destroy the assets
 Mainly deals with the problems of privacy (books, movies, records) & copyright
infringement
 The reason of this I is to catch the person in red-handed, in surprise, so that there will be
no disruption of important evidence
 It was created in England, in the case of Anton Piller KG v Manufacturing Process Ltd:
 H: an order was granted for P to enter D’s premises to search n seize incriminating
materials which D might destroy or dispose of so as to defeat the ends of justice
 An API was granted in the Malaysian case of Television Broadcasts Ltd v Mandarin
Video Holdings Sdn Bhd

Procedure for application

 P normally applies b4 filing a writ by ex-parte NoA supported by an affidavit which must
comply with the requirements under O29r1(2A)(a)-(g)
 If inter-parte NoA is used, then there is no element of surprise

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Conditions for granting the order
 In Anton Piller case, the court laid down 3 conditions must be fulfilled:
(i) There must be a strong prima facie case
(ii) The damage must be very serious for P
(iii) There must be a clear evidence that D has incriminating documents or things; n there
is a real possibility that D may destroy such materials b4 any application inter-partes
can be made

Enforcement
 P will go to D’s premise (usually with court baliff & counsel) n have to ask to search the
premise
 The request to enter the premise must be done within reasonable hour
 If D wishes to seek legal advice b4 allowing P enter, the D must be given reasonable time
to do so
 It is not a search warrant, thus D can deny the entering. However, P can bring this to the
attention of court. There will be 2 consequences:
(i) The court will consider whether the D’s refusal is reasonable or unreasonable. If the
D’s refusal is unreasonable, the D may be in contempt to court
(ii) If it is unreasonable, the court may draw adverse inference against D in the trial

Setting Aside
 D may apply to set aside the AP I giving grounds such as no cause of action, damage is
not serious, hardships, suppression of material facts, non-compliance with the rules, etc

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Trial
Modes (O33)  R1 – Three modes
(i) Trial before a judge
(ii) Trial before registrar
(iii) With assessors (function: O33r4 help J/R by giving advice for complex or technical
issues, not active in proceeding, not involved in examination, not conclusion to issue
or outcome of the case)
 R3 – action start by writ, mode determine during the pre-trial case management

Preliminary  Usually questions of law that may conclude the suit

Points (O33r2  Q: can one issue be decided particular as preliminary issue/question? “tried before/ at /
& r5) after the trial of the cause/ matter. **pleading or otherwise
 O33r2 – yes, only to extend that such issue/ point will help dispose the whole case (cause
and matter) (the test). Eg: limitation period or any issues
 It can be an issue of law/ facts/mixtures = so long the issue can dispose the case
 If order given to be preliminary, after the trial the court will either dismiss/ give judgment.
 R5 (Dismissal of action after decision of preliminary issue) – If there is judgment or
decision dispose any question ot issue arising in cause or matter, which render trial of the
cause and matter unnecessary, it may dismiss the cause or action or judgment therein as
may be just

Absence of Both parties absent

Parties (O35r1)  O35r1(1) – action dismissed
 Mistake of not entering the trial date is not a good reason
 O35r2(2) – P must apply within 14 days to restore the case giving good reasons and
paying costs
 O35r2(3) – various consideration that the court must take into account when he decides
whether to allow reinstatement
 If reinstatement is rejected, P may appeal to a higher court. But a higher court is usually
reluctant to interfere with trial court’s decision
 P may file a new action against D, provided limitation period is not expired

D absent
 O35r1(2) – judge may proceed with the trial of the action by P and dismiss D’s CC in the
absence of the party
 O35r1(2) – Without trial give judgment / dismiss the action/ any other order as he thinks
fit
 O35r2(2) – D must apply within 14 days to restore the case giving good reasons and
paying cost

P absent
 D has no counterclaim: P’s claim dismiss
 O35r1(2) – D has a counterclaim: P’s claim dismiss and court will hear CC/ give
judgment without hearing
 P can apply reinstatement of his case under O35r2 within 14 days
 If reinstatement is unsuccessful, he can apply to appellate court
 P can also file a fresh action provided within 14 days

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Adjournment  A court may grant adjournment if it is expedient in the interest of justice
(O35r3)  The court has wide discretion in granting adjournment
 When a party applies for adjournment, he has to provide good reason, etc.:
(i) A witness is too ill to come to court
(ii) A very important witness cannot be traced
(iii) A counsel is too ill
(iv) The parties intend to settle outside the court
 If no good reason provided, the court will reject the application
 If court wants to refuse adjournment, the court must come to his judgment very carefully
n caustion, as the refusal may mean the ends of the party’s case
 Go Pak Hoong Tractor v Syarikat Pasir Perdana
F: D’s counsel not attended court, he through P’s counsel, he asked for adjournment, the
reason is he couldn’t get a seat at a commercial flight. It was said that it is not a good
reason, because D’s counsel was aware the trial very early, n he must book the flight very
early ago. Judgment entered against D. later it was appealed
H: the granting of an adjournment is in the absolute discretion of the court depending on
the facts of each case and unless it can be shown that the discretion was improperly
exercised it should not be disturbed
 Maxwell v Keun – if a court refuses to grant adjournment, the party can appeal to
appellate court.
 MGG Pillai v Tan Sri Dato Vincent Tan – appellate court is usually reluctant to interfere
unless it can be demonstrated to a conviction that refusal to grant resulted in a deprivation
of essential justice

Course of Trial Right to begin (when trial)

(O35r4)  Judge has discretion (r4(1)) – discretion of judge to direct which party to begin and the
order of speechers
 Normally P will begin (r4(2)) by opening statement n calling his evidence, because the
burden of proof usually laid on P
 Where the burden of proof of all issues on D, D is entitled to begin (r4(6)). Eg: res ipsa
loquitor

Order of speeches: Final Speech

 Situation where P begins and D elects to adduce evidence.: then P makes the last speech
in reply R4(4)
 R4(4): P gives opening statement, briefly states the facts; P calls his evidence; P rests his
case; D opens his case; D calls his evidence; D makes his closing speech; P then makes
his closing speech in reply
 Situation where P begins and D does not elect to adduce evidence: then D makes the last
speech R4(3)
 R4(3): P delivers opening statement; P calls his evidence; P makes closing speech; D
makes closing speech
 But if D raised a fresh point of law in his last speech (D no adduce evidence), P has a right
to reply only on the point of law raised but not a general reply (r4(7))

Evidence Attendance of witnesses: O38 r 14 – 23

 General Rule: all witness must be examined orally in the court (r1)
 Most of the time, witness will come voluntarily. Some occasion, party is not sure witness
will come or not. Then party may issue a subpoerna
 3 kinds of subpoerna:
(i) Subpoerna and testifacandum – is used to when witness is summoned to give oral
evidence
(ii) Subpoerna ducestecum – is used to produce a document
(iii) Subpoerna and testifancandum and ducestecum – to produce oral evidence n
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 document
 R14(1) witness can be compelled to be present by serving writ of subpoena. (F63-65:
testify or produce document); (2) deemed issued when registry served
 R15: names more than1 can put in the subpoena for person
 R16: one name only for document
 Service – R18 served personally within 12 weeks after date of issuance and must not be
served out of J
 R19 must attend in the duration of trial unless he is released
 Expenses: R22 not compelled unless give reasonable expenses
 Witness statement: O38r2: EIC by way of affidavit

Evidence by deposition (O39)

 Where material witness unable to give oral evidence, etc. too ill, sick, or too far way, the
party may obtain the witnesses’ evidence by deposition, i.e. the evidence is taken b4 the
trial begins
 Is only allowed with the leave of court (O39r1). The court will consider whether evidence
by deposition is necessary for expedient of justice
 O24: the order of the court in F69 from the witness before an examiner (judge) as in
discovery
 Can be subjected to EIC – CE – RE
 If the Witness is within J: the only reason for not attend is health
 O39r2: outside J: become witness in country he resides or appoint special examiner to
take evidence in that country

Agreed bundle  Henry Trading Co Ltd v Harun – it is not necessary to prove the documents n agreed
bundle
 Yap Choo v Tahir b. Yasin – a document in an agreed bundle has to be proved but not so
formally and strictly
 Chong Khee Sang v Phang Ah Chee – not necessary to prove and no need original
document but the contents still need to be proved
 Borneo Housing Mortgage Finance Bhd – by putting a document in agreed bundle,
parties only agree as to the authenticity of documents but not necessary to agree on the
contents
 Practice Note 2 of 1977 – 7 days before trial with all authenticity

Submission of  Normally made at the end of P’s case, after P presented all his witnesses n evidence
no case to  It is made by D by saying that P has not established the case in law / evidence of P is
answer unsatisfactory to establish a case
 Yuill v Yuill – May be made by D either if no case has been established in law or the
evidence led is unsatisfactory or unrealiable
 Laurie v Raglan Co – Judge should generally refuse to rule on such a submission unless
D makes it clear that he does not intend to call evidence
 Young v Rank ; Storey v Storey – Judge is not bound so to refuse and if does not put D to
his election whether to call evidence or not, D retains his right to call it if his submission
fails
 When D is intended to make a submission of no case to answer, the trial judge has to put
D in an election that D will not adduce any evidence b4 the trial judge rules on his
judgment (the D undertakes he will not adduce any evidence)
 The reason is to avoid 2 trials & 2 appeals
(i) Trial judge doesn’t obtain an undertaking from D, D wants submission of no case to
answer
(ii) Trial judge hears the D submission of no case to answer, trial judge agrees on D, n
dismisses the P’s case (Trial 1)
(iii) P now appeals to an appellate court against the trial judge rulling. Appellate court
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 disagrees with the trial judge. There is a case to answer (Appeal 1)
(iv) Appellate court sends the case to the trial court. D wants to adduce evidence against
P’s case (Trial 2)
(v) At the end of trial, the judge makes a decision. The losing party appeals to the
decision to an appellate court

Judgment and  2 stages: pronouncement & perfected

Order (O42)  Pronouncement is orally and in open court, O42r1
 Perfected is written out, signed by the judge n sealed
 B4 a judgment is perfected, the judge may change his mind. He can recall counsels n ask
for further clarification
 Tan Ah Yeo v Seow Teck Ming – New evidence of the correspondence were brought after
judgment entered the correspondence was brought in order to show the court should now
exercise and grant extension of limitation period to enter an action. The correspondences
used as a ground for the extension. Judge recalled and made the parties argued before the
judgment is perfected

Consent Judgment
 Is a judgment upon compromised. The parties may agree to record their compromise in
the judgment form of consent judgment
 The advantage is it can be executed n enforced. If no, it is just a contract
 To revoke a consent judgement, it is same as a party wants to rescind a contract. So the
principle governed is that the intending party must show vitiating factors: duress, fraud,
misrepresentation
 Lau Ming Hing Richard v Bank Pembangunan Malaysia Bhd – same principles as
though the judgment was a contract or compromise of which rescission is sought

Interest  O42r12: every judgment debt shall carry interest at such rate as CJ may from time to time
(O42r12) determine
 All judgment sums carry interest
 2 types of judgment interests: Pre-judgment interest & Post-judgment interest
 Pre-judgment interest –
(i) Granted by discretion of courts, s11 of CLA
(ii) The period from time of the injury sustained up to the date of judgment granted
 Post-judgment interest –
(i) The date of judgment granted up to the date the judgment is satisfied
 Sometimes, if both parties r contractually agree on the rate interest, then such agreed rate
will apply

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Costs
Introduction  Remuneration which a party pays to his own solicitor
 The sum which one litigant pays to another litigant to compensate the latter for the expense
which he has incurred in the litigation
 Cost only given upon judgment / order from court O59r1
 General Rule is that costs follows the event
 Costs and be paid by “any party” which includes a solicitor, director, office bearer
 In a case with many issues, court will appropriate the cost

Discretion of  O59r2(2) – Court’s power to award costs is discretionary

the court  O59r3(1) – Order for costs is essential
 O59r3(2) – As between litigants the general principle is “costs follow the event” i.e. the
loser pays the winner’s costs and is left to bear his own costs
 The general rule sometimes gives way in particular circumstances. For example, the court
may award the winner only a proportion of his costs or his costs from or up to a specified
stage of the proceedings. Sometimes the court may make no order as to costs, in which
case each party will be left to bear his own. Sometimes the winner may have to pay the
loser’s costs of certain matters
 Court will sometimes depart from this general principles –
(i) Cost r awarded up to a stage of the proceeding / only a portion of costs is awarded
(only arises when there is an offer to settle (reasonable offer of D). E.g: P didn’t accept
the settlement of D. thus even if P wins the case, the court may only grant the cost up
b4 to the settlement, as the later costs can be prevented)
(ii) No order as to costs (each party bears their own costs. Where there has been some
neglect / misconduct on the part of winning party)
(iii) The winning party is to pay costs of the losing party (only in rare cases where there has
been deliberately misconduct or gross negligence on the part of winning party)
(iv) The solicitor is asked to pay costs which accordance of O59r6

Costs against advocate and solicitor personally or a non-party, O59r6

 Costs were incurred improperly because of the solicitor’s conduct
 Costs were incurred without reasonable cause
 Costs were wasted by solicitor’s delay / misconduct
 Karpal Singh v Atip bin Ali
H: An advocate & solicitor is an officer of the court and his professional conduct is always
under the supervision and scrutiny of the court, and that when there is a dereliction of duty
on the part of the advocate and solicitor in the conduct of his professional duties, in a
proper case, order him to be personally liable for costs of the proceedings after giving him
an opportunity to defend himself

Exceptions to (i) Claim under an illegal contract

the rule that  P is suing D for an breach of contract. D claims that the contract is illegal. At the end of
costs follow trial, D establishes that the contract is illegal n P’s claim is dismissed
the event  The court may consider that it is inappropriate for D to obtain cost because he is also a
party to illegal party
 A court likely makes no order to the costs
 Cheng Mun Siah v Tan Nam Su
H: the agreement was null and void ab initio. Enter the agreement is an offence itself.
Governed by the maxim of ‘in pari delicto portior est condition defendentis’, a party to an
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 illegal contract who seeks to recover what he has transferred under it will normally be
denied relief on the ground that he may suffer is heard to allege his own turpitude and that
any loss he may suffer is well deserved. Dismissed the P’s application. No costs since both
parties have offended against the law
(ii) Misconduct or neglect
 The court may make no order to the costs
 In rare cases, the court may order the winner to pay the loser
(iii) Successful on a point not raised below
 On the appeal, a party wins on a point which is new
 The new point was not raised in trial court, but it should have been raised
 The court will grant no order to the costs, each party bears his own costs
 The reason is that if the party raises in trial, then there is no necessary to be in appeal
process
 Anna Jong Yu Hiong v Government of Sarawak
H: P the only successful partly. Point not raised in the court below, thus costs of appeal not
awarded
(iv) Relevant authorities not cited
 The party losing his case in trial, he appeals. At the appeal, he wins because he raises the
authority which he was not raised in trial. This authority should have been raised in trial
 No order as to costs
(v) For cases (“a very unusual thing”) where the successful party was asked to pay the
loser’s costs
 Petroliam Nasional Bhd & Anor v Cheah Kam Chiew
F: 8/12/1984: P(R) took out OS for declaration that the acquisition of shares in Bank
Bumiputra by Petronas which is ultra vires to the Petroleum Development Act 1974 and
the purchase of ‘problem loan’ (BMF scandal) is also ultra vires. In order to rescue from
crisis, Petronas acquired majority shares in the Bank. R exercised his right as an account
holder as well as a citizen to challenge the legality. In the pending of the hearing, the Act
amended and applied retrospectively to legalize the Petronas Act. No more cause of action
H: CJA S68 (1)(c) discretion of court to grant costs. GR: costs follow the event.Exception:
when it appears to the court that in the circumstances of the case, some other order should
be made”. So long judicially
(vi) Other exceptions e.g. O59 rule 4 read with O22B and O 58 r 8; O59 r 10
 O59r4: in granting costs, the court may take into circumstances any offer of contribution as
mentioned in O22Br11, and any offer for settlement under O22Br1
 O59r8: special matters to be taken into account: offer or contribution S22B, conduct of all
parties before and during proceedings (Tan Yew Lai), conduct of parties in attempt to
resolve issues by other means, and the extend of the parties followed any relevant pre-
action protocol or practice direction for the time being issued by Registrar
 O59r10: where parties has failed to establish any claim or issue, unnecessary and
unprotracted, added to the costs and complexity of the proceedings, court may order the
cost not be allowed in whole or in part and paid by the such party regardless to the
outcome

Taxation of  The winning party will get costs (including legal fees) from losing party
Costs  The winning party will send a bill of costs to losing party which lists down all items being
claimed
 When losing party receives a bill of costs, he is entitled to ask the bill of costs to be taxed.
Then it will go to process of ‘taxation of costs’
 The process is where the cosrt (SAR) scrutinizing the bill of costs item by item. The court
may:
(i) Allows the items as be claimed
(ii) Disallows the items as be claimed
(iii) Deduce the amount for the items paid

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  The principles where the SAR will apply is called ‘the basis of taxation’

Costs when  In some trials, it involves several parties. Eg: P sues 2 D

there are  If P success against D1, but failed against D2. General principle is that P gets costs from
several parties the losing party; n P bears the costs of the winning party
 However, there may be cases whereas P is compelled to sue 2D. for example, P is unsure
who is the proper D. in such of case, the court has a discretion. The court may grant
Bullock Order; or Sanderson Order
 Bullock Order –
(i) P sued D1 n D2. P obtained judgment against D1. Claim against D2 is dismissed
(ii) P pay costs of D2
(iii) P can claim reimbursement of D2 costs from D1
(iv) Winning D gets costs from P, P claims reimbursement from losing D
 Sanderson Order –
(i) P sued D1 n D2. P obtained judgment against D1. Claim against D2 is dismissed
(ii) D1 pay costs of D2
 Bullock order is made usually when the losing D is insolvent or unable to pay
 Sanderson order is made usually when the P is insolvent or unable to pay

 Federal Flour Mills Ltd. v Ta Tung

H: In view of these circumstances, the proper order as to costs of the second defendants is
to order the P to pay the 2nd D costs. The costs of the 2nd D paid by the P shall be included
in the costs to be paid by this 1st D to the P. It shows that Bullock Order is use “indirectly
for P to pay D2 costs when D1 is insolvent. Different with Sanderson is that, P in Bullock
is capable to pay; whereas P in Sanderson is not capable. It is the public policy that D2
should get the costs as innocent party. If, D2 is joined unreasonably, P will bear the costs
whereas if D2 is joined because of uncertainty of law rather than fact, the court will not
make either order, as costs follows event

Costs of  Btw period of commencement of trial n the trial, there may be various interlocutory
Interlocutory proceedings (IP), e.g SJ, Amendment of Pleadings, Injunction
Proceedings  General Principle is that the courts have wide discretion in deciding who n how much for
paying this IP costs
 However, there may be various orders court can grant:
(i) Costs reserved (court not deciding n how much of the costs of the application n the
determination is postponed until the end of trial)
(ii) Costs in the cause (P’s costs in the cause / P’s costs in any event / P’s costs)
(applicable to D also)
(iii) Costs thrown away
(iv) Costs of the day
 Costs reserved is court only decide on who pay n how much until the end of trial
 Costs in the cause is the most common order. The applying party usually ask for this order.
Whoever is to get the costs of IP depends who ultimately wins the trial:
a. P’s costs in the cause – if the P wins the trial, he will get costs of that IP. If P loses the trial,
he doesn’t have to pay the costs
b. P’s costs in any event – no matter who wins the trial, P will get the costs of IP
c. P’s costs – P gets the costs of IP n gets immediately
 Costs thrown away is the wasted costs or unnecessary costs where there has been default
judgment; n D applies to set aside the judgment in default n succeed. If JIDA is a regular
judgment, D bears the costs thrown away. If JIDA is an irregular judgment, P bears the
costs thrown away
 Costs of the day is if there is an application for adjournment. On the hearing day, one party
applies for adjournment, the other party can ask for costs of that day

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Security for  It is an application made by D to the court
Costs  The D is asking basically for security for costs by the P
 D is claiming P is not bona fide. If D ultimately wins the trial, P is unable to pay D’s costs

Circumstances can a D apply

 O23r1 – can be any of P
 S351 of Companies Act – when P is a company
 For O23r1, (i) P is an ordinarily citizen out of J; (ii) P is a nominee P n it is reasonable to
believe that P is unable to pay costs; (iii) P’s address is not stated or stated incorrectly in
the writ; (iv) P has changed his address during the course of proceedings to evade the
consequences of litigation
 For s351 of CA, (i) the P must be a registered company; (ii) there must be credible
testimony that there is reason belief that P company is unable to pay costs

Procedures
 Apply by NoA supported by affidavits
 Affidavit must show the grounds
 At the hearing, the court has the discretion to allow or not D’s application. In exercising its
discretion, the court will take several matters –
(i) The court will ask whether P’s claim bona fide, n P has reasonable chance to succeed
(ii) Was that there is omission made by D
(iii) Is the application oppressive n genuine claim
(iv) Is P lacks of means caused by D
(v) Was application made promptly

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Enforcement of Judgments
Introduction  If D no pay the judgment sum, P has to enforce the judgment
 In enforcement proceedings, the parties r referred as Judgment Debtor (JD) & Judgment
Creditor (JC)
 Enforcement of Money Judgment –
(i) Writ of seizure of sale, O46 & 47
(ii) Garnishee proceedings, O49
(iii) Charging Order, O50
(iv) Appointment of receiver, O30
(v) Order for communtal, O45 & 53
 B4 deciding use what modes, JC first has to know the nature of the types of assets of JD
 If a JC doesn’t know the nature of types of JD’s assets, there is a proceeding for JC to
discover the nature of JD’s nature of assets – discovery in aim of executing: O48 or s4 of
Debtors Act 1957
 JD will be summoned to court n he will be examined under oath as to disclose the nature of
his assets
 O48 is merely to discover the JD’s assets, the court cannot compel JD to pay JC. However
under s4 of DA, the court can make an order to JD to pay JC a sum of money, either in
sum-lum or instalments

Time Limit  S6(3) of Limitation Act 1953 –

(i) Judgment > 12 years can forget
(ii) < 6 years is totally fine
(iii) In some circumstances of 6 to 12 years needs the leave of court
(iv) Judgment interest cannot be recovered after six years from the date interest became due
 O46 r2(1) – a writ of execution (writ of seizure n sale, writ of delivery, writ of possession)
to enforce a judgment or order may not be issued without the leave of the Court where 6
years or more have lapsed since the date of the judgment or order
 Tio Chee Hing v Chung Khiaw Bank
H: The court said where 6 years have elapsed, O46r2 requires leave of court to be obtained
to issue a writ of execution. The court has the discretion to grant leave if it is satisfied with
the grounds given by the applicant. In this case, the reason for the delay was that there
were negotiations for settlement by arrangement. Leave of court was granted

Generally no  S33(4) Government Proceedings Act 1956 – no execution can be made against the
execution government.
against the  S35 of the same Act – Garnishment proceedings do not apply for the government.
Government  O73R12 – No enforcement of judgment, writ of execution apply against the government
unless with certificate S33(1) proviso
 This may be the government will usually pay, just a matter of delay

Discovery In Judgment Debtor Summons (s4 of DA)

aid of  Is a form of enforcement of monies judgment (usually use against salary of JD)
execution  Under s4, a judgment summons can be issued against JD n JD is supposed to attend court
to disclose the nature of assets
 The court may order the JD to pay the JC either in lum-sum or instalment
 If the court makes the order for JD to pay JC, failure of JD to pay is an offence. The JD
will be liable for imprisonment (maximum 6 years, s4(7) of DA)
 S4 only allows the order to be made against JD himself, thus not applicable to employer of
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 JD which requests the employer to deduct JD’s salary

Order 48
 Monetary judgment – ex parte application + NoA supported by affidavit Form 95: r1(2)
attend and to be orally examined for the debt and the property which can satisfy the debt
(S4 summons by court)
 O48r2 – non-monetary judgment
 R3 – Registrar record the answer of JD. JC will know what to do (only help JC to find out,
no further judgment)
 R1(3) only order JD to attend, no other power to order eg: to pay
 R1(3) any disputes may refer to court to determine it

Writ of  The forms r found in Form 84 (moveable property) & 85 (immoveable property)
Seizure of Sale  If 6 years has passed, leave of court is needed
(O46 & 47)
Procedure for moveable property
 If 6 years has lapsed, JC has to apply for leave under O46 by ex-parte NoA supported by
affidavit. Once leave is obtained, JC can apply to issue the writ of seizure
 If leave is unnecessary, JC can immediately take step to issue
 Issuance of writ of seizure is just an administrative process. No need to attend court. JC has
to file several documents, the court will issue Form 84
 Once writ is issued, the writ can be executed, i.e. the Registrar can take steps to execute or
enforce the judgment. This is done by seizure n sale. Usually it will be done by bailiffs
accompanied by JC’s counsel
 The seizure for sale is usually 9am-4pm
 There r certain items cannot be seized, which r stated in s3 of DA
 After seizure of items, the bailiff will take steps to sell, n the profits r used to pay JC

Procedure for immoveable property

 2 documents r needed, which r writ of seizure of sale & prohibitory order. They will be
issued tgt, the PO must be registered with appropriate land authorities
 O47r7 – After registration of PO, the PO must be served on JD. The PO has a life span of 6
months. During the life span of PO, JC must apply to court for order to sell the land
 To obtain court’s order to sell the land, the Registrar of court will draw up the particulars
of the sale n the judge will assess. The hearing date will be fixed, at least 2 days must be
given to all parties of hearing. The court will hear arguments whether the order of sale will
be made
 Once the judge makes order, the Registrar will then carry out the sales as according to the
particulars as opposed by court

Garnishee  Is used when JC seeks to satisfy a judgment debt by recovering money due or accruing due
Proceeding to a JD which is in the hands of 3rd party
(O49r1)  Eg. JD has performed some renovation work for A. Company A owes RM500k to JD. The
RM500k is money due or accruing due to JD
 Requirements –
(i) For sum of money to be garnisheed, it must be capable calculated with precision
(ii) The money must be within J, i.e. within M’sia
 In Garnishee Proceedings (GP), there r certain terminology to refer to the parties –
(i) Garnishee: the person who holding monies; 3rd party
(ii) Garnisher: the person who commencing the proceedings, JC

Procedures
 2 stages: show case & further consideration
 JC has to apply for a show case Order, O97. The application is by ex-parte application,
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 supported by affidavit, Form 98 n must be complied with O49r2
 Once the show cause order is obtained n issued by court, JC will serve the cause order on
JD & garnishee
 The effect of show cause is the money in the hand of garnishee will be frozen
 It will also fix the hearing date for the further consideration stage

 Further consideration stage is a hearing in court

 At hearing, all parties r required to attend court (JC, JD, Garnishee)
 The consideration or question has to be dealt by court is that should an order absolute be
made which is to transfer money from the hands of garnishee to the JC
 Possibilities that can be taken place:
(i) Garnishee n JD attend court n don’t object – order absolute be made
(ii) Garnishee doesn’t attend to court – order absolute be made (most likely)
(iii) Garnishee attends n objects – the court has to decide whether the objection can be dealt
with summary question, or matters have to come to trial
(iv) A 3rd party may attend court n object to the order absolute be made. The court may
listen to objection if 3rd party has the interest
 If objections r dismissed, then the order absolute will be made. Money will be transferred
from garnishee to JC

Garnishee Proceedings against Govt.

 Generally, GP cannot be made against govt
 It is possible but subject to conditions, which is found in s35 of Govt Proceedings Act –
(i) If money is in the hands of Federal Govt, then JC must obtain consent from Minister of
Finance
(ii) If money is in the hands of State Govt, then JC must obtain consent from Chief
Minister
 There r certain types of money / income / funds which cannot be garnisheed although they
fulfil the conditions –
(i) Pensions, s90 of Pensions Act. 2 exceptions: the JC is the govt; the application to
garnishee is by a wife / former wife of JD for maintenance which is for herself or
minor children
(ii) Wages of seaman or apprentice, s142 Item 1 of Merchant Shipping Ordinance
(iii) Money compensated under Workman Compensation Act 1952
(iv) Monies under Employee’s Provident Fund (EPF), s51 of EPF Act 1991

Right of Set off

 Garnishee is holding of RM200k monies belonging to JD. JC wants to garnish the monies
to satisfy the money judgment. The JD owns RM30k to garnishee. JC owns RM20k to
garnishee –
(i) Garnishee has the right of set off against JD
(ii) Garnishee doesn’t have the right of set off against JC (Sampson v Seaton Railway)

Charging Governed by O50

Orders (O50) When the JC use a charging order (CO) as execution mean
A CO is used when the assets of JD r shares, stocks, debenture

Procedures
 2 stages: show cause & further consideration stage
 JC has to apply for a show cause order by ex-parte application supported by affidavit in the
Form 102
 The show order once issued has to be served on JD & companies concerned
 The service of show cause order must be 7 days b4 the further consideration
 The show cause will fix a hearing date for a further consideration stage

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  On the hearing date, all parties r required to attend court (JC, JD, representative of
company concerned)
 The question b4 the court: should an order absolute be made
 The effect is the shares will be transferred or charged to the name of JC
 The company can raise objection. The court has to deal with summary or come to the trial
 If the objection is dismissed, then the shares will be transferred to JC
 The order absolute doesn’t entitle the JC to sell the shares. If JC wants to sell the shares,
another order from the court is required

Appointment  The receiver is appointed to receive the income of JD & pass it to JC (usually use to take
of Receiver over JD’s business)
 JC use a receiver as a method of enforcement when –
(i) The income o JD is a future income received by uncertain amount n over uncertain
period of time
(ii) No other modes of execution is applicable (usually the last resort) because of very
heavy costs involved & possibility that the receiver will run away
 When a JC wants to apply, the court will take certain factors –
(i) Is that some other modes which is possible for JC
(ii) The amounts of costs that may be involved

Procedures
 Is by way of NoA either ex-parte or inter-parte supported by affidavit, O30r1
 A hearing date will be fixed, the court will consider whether receiver can be appointed
 If a receiver is appointed, he will take steps to receive the income of JD whatever he
collects, he has to pay to JD
 It is very common for the court to ask the receiver to pay the security, so that he will not
absond

The Writ of  They r enforcement mechanism for non-monies judgment

Possession &  O45r3 – The writ of possession is used when JC obtains a judgment for the possession of
the Writ of land or immoveable property
Delivery  O45r4 –The writ of delivery is used when JC obtains a judgment for the delivery of
moveable property

Enforcement  Judgment was obtained from foreign countries & JC wants to enforce it in M’sia
of Foreign  2 ways to enforce
Judgment
Common Law
 A JC can sue on the foreign judgment, treating it as a debt due
 JC will commence the action in court, thus JC will be P, n JD is D. The cause of action will
be foreign judgment
 Certain conditions must be fulfilled –
(i) The foreign court must have J to hear the case
(ii) The judgment from foreign court must be final judgment, not interlocutory judgment
(iii) The judgment must be a fixed sum summary
 They r very limited defences available on JD –
(i) The foreign judgment obtained from fraud
(ii) It is against the public policy
(iii) It is in breach the rules of natural justice
 If M’sia court gives judgment to JC, this judgment can be treated as normal local judgment
 Thus, JC can enforce in usual way

Reciprocal of Enforcement Judgment Act 1958

 Is by way of registration of foreign judgment in HC
Tan Shang Wei LEB110100
 Once it is registered, the foreign judgment can be enforced in the same way as local
judgment
 Requirements –
(i) Must be 6 years from the date of foreign judgment
(ii) Must be final judgment for a fixed sum of money
 The procedure only applies when there is ‘reciprocity’ btw 2 countries
 It only be allowed when M’sia judgment can also be registered in the foreign country
 Now only 7 countries: UK, New Zealand, Sri Lanka, India, HK, Singapore, Brunei
 JD may apply to set aside the registration of foreign judgment on 4 grounds –
(i) REJA doesn’t apply to the judgment
(ii) The foreign court has J
(iii) The foreign judgment was obtained by fraud
(iv) The foreign judgment contravened public policy

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Appeals
Introduction  Arises in a situation when one party is unhappy with the results
 Right of appeal is a statute of statute
 Auto Dunia Sdn Bhd v Wong Sai Fatt
H: both the courts n the right of appeal r creatures of statute. No appeal lies unless there is
a statutory provision enabling an aggrieved party to appeal

Appeal from Appeal from a Decision after Trial

Subordinate  S28CJA – from Subordinate Court (SC) to HC in any civil cause or matter, the amount
Court to High must > RM10k / a question of law / relating to maintenance of wives or children
Court  Kannaya v Teh Swee Eng – the judgment of the SC was RM9k. HC dismissed the appeal
 Procedure of appeal, O55:
(i) R1 – An appeal to HC is brought about by giving a notice of appeal in Form 111
within 14 days of the decision. The notice is filed in the Registry of SC n must set out
the grounds briefly. Then, the appellant must apply to the court appealed from for
notes of evidence n grounds of evidence
(ii) R3(4) – Form 111 (notice of appeal) must be served by the appellant to all parties
within the same 14 days
(iii) R4(3) – The appellant must file n serve the memorandum of appeal in Form 112 within
1 month from the date of filing notice of appeal. It must contains in detail the grounds
of appeal
(iv) R4 – Within 1 month from the date of filing notice of appeal, the appellant must
prepare his record of appeal, file it in the court n serve it to all parties. The record of
appeal must contain: (a) all pleadings; (b) notes of evidence; (c) grounds of judgment;
(d) memorandum of appeal; (e) the judgment / order being appealed against; (f) notice
of appeal; (g) all documentary exhibits produced in court; (h) all affidavits filed in
court. If the notes of evidence n grounds of judgment r not available when preparation
of Memorandum of Appeal n Record of Appeal, O55r4(2) provides that such
documents can be filed in Supplementary Record of Appeal without leave
(v) O55r8 – a respondent to an appeal may, within 7 days from receiving Memorandum of
Apeal, file in HC n serve upon the appellant a notice of cross appeal in Form 113
(vi) O3r5 – a party may apply to HC to extend time by NoA supported by affidavit
(vii) O55r16 – stay of execution
(viii) Fresh Evidence, O55r7. It shall not be admitted unless the Judge is satisfied that at the
hearing b4 the SC the new evidence was not available; and the fresh evidence is true
would have a determining influence upon the decision of the SC

Appeals from Interlocutory Proceedings in the Subordinate Courts: O55r5

 Is a faster n more simplified manner as there is no need of notes of evidence, grounds of
judgment / order n memorandum of appeal
 O55r5(2) – the appeal can be made by filing a notice of appeal in Form 111A within 14
days after the decision was pronounced
 Form 111A is filed with the ‘Registry of the SC with copy exhibited to the Registry of HC’
 O55r5(2) – the notice of appeal must be served on the party within 14 days
 O55r16 – stay of the proceedings
 O55r5(3) – within 1 month after the filing notice, the appellant must file a record of appeal.
It must contains (a) the application of the decision; (b) all pleadings filed; (c) all affidavits
filed in support of or in opposition to the application; (e) the order or draft order of the
decision appealed from
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  The hearing of appeal is b4 a Judge in Chambers
 Fresh Evidence, O55r7

Appeal to the High Court under written law, O55A

 A party can appeal if the relevant Act in question gives a right of appeal. E.g: Accountant
Act, Local Govt Act
 Unless otherwise provided by any written law, the appeal must be made within 1 month
from the date of the decision given by the State
 The appeal shall be by originating summons supported by affidavit
 O55Ar1(4) – unless provided by any written law, the OS must be served on the respondent
 Hearing of the appeal is b4 a Judge of the HC in open court

Appeal from Registrar of High Court to Judge in Chamber in High Court, O56
 R1(1) – there is an absolute right of appeal to the judge in Chambers from any judgment /
order made by the registrar
 R1(2) – notice of appeal in Form 114 must be given
 R1(3) – the notice Form 114 must be filed within 14 days from the judgment, order or
decision
 O56r1(3) – once the notice is filed in the Registry, it must be served on the other parties
not later than 5 days b4 the date fixed for the hearing of the appeal. The appeal will be a
rehearing
 Hearing of appeal is b4 a judge in chambers
 Fresh evidence, O56r1(3A)
 Stay of Execution – O56r1(4)

Appeals from Appeal as of Right and Appeal with Leave

High Court to  Appeals to CoA can arise from HC where:
the Court of (i) HC exercises its original J
Appeal (ii) HC exercise its appellate J
 S67CJA provides that CoA shall have J to hear n determine appeals for any judgment /
order of any HC subject to s68
 S68(1) provides that no appeal shall lie to CoA where:
(i) The amount of claim is < RM250k except with leave of CoA
(ii) The judgment / order is made by consent
(iii) The judgment relates to costs only which r left to discretion of the court except with
the leave of CoA
(iv) By any written law, the judgment of HC is expressly declared to be final
 3 types of appeals from HC to CoA:
(i) Appeal as of right – amount of claim > RM250k, s68(1)(a) / judgment or order of the
interpleader issue is given after the trial, s68(3)
(ii) Appeal with leave of CoA – amount of claim < RM250k, s68(1)(a) / judgment is on
costs only which is left to the discretion of HC, s68(1)(c) / in interpleader proceedings
dealt with summarily, s68(3)
(iii) No appeal allowed – judgment was recorded by consent of parties, s68(1)(b) /
judgment of HC is declared to be final by any written law, s68(1)(d)

Procedures
(i) Procedures for Appeal as of Right
 R17(1) – Appeal to the CoA is entered by filing 4 copies of Notice of Appeal in Form 1 in
the Registry of the HC where the judgment was obtained. The appellant must send copy of
notice of appeal by registered post to CoA, r17(2)
 R12 – no appeal shall be brought, except by leave of CoA after expiration of 1 month.
Notice of appeal must be served on all parties within the time limited for filing the notice
of appeal, R6
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 (ii) Procedures with leave of Court of Appeal
 R16 – time for filing the application for leave must be within the time limited for filing the
notice of appeal (1 month)
 R27(1) – application for leave shall be made to CoA by motion supported by an affidavit
 R27(3) – it must be served on all parties concerned not less than 7 days b4 the return day
unless the Court otherwise directs

(iii) Extension of time to file Notice of Appeal

 Where a party has delayed in filing his appeal as required under r12 RCA, n then he must
apply for extension of time b4 filing the notice of appeal
 R27(1) – application is made by notice of motion n supported by an affidavit
 Leave of full court is required to extend time
 Applicant must show merits n reasons for delay

(iv) Filing of memorandum of appeal and record of appeal

 Normally after the filing the notice of appeal, the appellant will apply to the judge for notes
of evidence n grounds of judgment in order to prepare a memorandum of appeal
 R18(7) – the time period to file the record of appeal containing the memorandum of appeal
n other copies of documents is 8 weeks after the entry of a notice of appeal
 R18(9) – must be served within 8 weeks
 The record of appeal r same with HC’s filing

Appeals from  S96(1) CJA – an appeal shall lie from CoA to FC with the leave of FC granted in
Court of accordance with s97:
Appeal to (a) From any judgment or order of CoA in respect of any civil case decided by HC in exercise
Federal Court of its original J involving a question of importance upon which further argument n a
decision of the FC would be to public advantage
(b) From any decision as to the effect of any provision of the Constitution including the
validity of any written law relating to any such provision
 S97 CJA – the application must be within 1 month from the date on which the decision
appealed against was given
 All appeals to FC shall be with the leave of FC

Procedure to appeal
 Time to apply for leave of FC – s97(1) CJA
 Application for leave of FC – r66 & r107 RFC
 Notice of appeal – r108, 66, 126, 48 RFC
 Service of appeal – r48
 Filing of memorandum of appeal n record of appeal, r57 RFC
 Notice of cross-appeal, r49 RFC
 Withdrawal of appeal, r50 RFC

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