Mode of Originating Process

O. 5 r. 1: Civil proceedings can be commenced by two modes:

- Writ
- Originating summons
Writ, O. 5 r. 2: Proceedings in which a substantial dispute of fact is likely to arise must begin
by way of writ of summons.
- Under the Rules of High Court 1980, what was considered a substantial dispute of fact,
was, inter alia, a claim based on an allegation of fraud.
- Seah Choon Chye v Saraswathy Devi: An application begun by way of originating
motion which involves questions of facts in dispute and is not a matter which can be
determined by affidavits, but requires parol evidence due to the allegations of fraud
appearing in the applicant's affidavit, should have been commenced by way of writ.

- However, in Malaysian International Merchant Bankers v Highland Chocolate &

Confectionery: If fraud is not the sole issue in the proceedings, but only raised in the
affidavit as an alternative, it is not necessary for the plaintiff to proceed by way of writ.
- In this case, the court allowed the plaintiff to proceed by way of an originating
summons as the whole case depended on the interpretation of a debenture
document with an alternative allegation of fraud.

- Where evidence is required in order for the dispute to be resolved, it would be most
appropriate for the action to be begun by way of writ.
- Abdul Majid v Haji Abdul Razak: The defendant executed a deed in favour of
his son, the plaintiff, and his wife in consideration of his natural love and
affection for them. Subsequently, the defendant refused to perform what had
been agreed upon. The plaintiff applied for an order by way of originating
summons. In his affidavit in support, the defendant denied that there was a
valid trust and produced evidence indicating a change of heart. Held: In the
circumstances of this case, it remained for the court to find what was the actual
agreement reached. This meant, at the least, that evidence would have to be
led, and therefore, an originating summons was not a suitable medium or
process for the determination of the issues raised.
Originating summons, O. 5 r. 3: An application that is to be made to the court under any
written law shall be begun by way of originating summons.
- Commencing proceedings by way of originating summons will substantially save time
and cost as the matter can be efficaciously disposed of through affidavit evidence.

- O. 5 r. 4: Where the sole principal question at issue is likely to be one of the

construction of any written law, instrument, deed, will, contract or document, or of
any question of law, or where there is unlikely to be any substantial dispute of fact,
 the most appropriate mode of commencement of proceedings is by way of originating
summons.

- Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee: The applicant made a claim by
way of originating summons for compensation for the removal of squatters from the
respondents’ land. The respondents contended that the action should have
commenced by way of writ as both, disputed questions of law and fact were involved.
Held: Where the court found that the question of fact, namely how many squatter
families were removed was not relevant as the compensation could be computed by
way of the area of land concerned, was not crucial to the determination of the case,
the applicant could proceed by way of originating summons.

- National Land Finance Cooperative Society v Sharidal Sdn Bhd: The appellants objected
to the respondents commencing the proceedings by way of originating summons
instead of by way of writ. The issue involved was purely a matter of construction of
the sale and purchase agreement between the parties, and no other evidence was
needed to determine the issue other than the correspondence that passed between
the parties. Held: Where there are no issues relevant to the case which required
evidence to be called at a trial, the respondents were right in having commenced the
proceedings by way of originating summons.
Wrong mode of commencement:
- Re Deadman: Where a plaintiff, in the course of proceedings commenced by
originating summons, seeks for leave to amend his claim to include an alternative
allegation of fraud, the court may allow the amendment and order the proceedings
to be continued as though they had been commenced by way of writ. Thus, failure
to commence an action through the correct mode is not fatal to the continuance of
the action.
- The court may exercise its inherent jurisdiction under O. 2 r. 1 to not strike out
a case merely on a procedural irregularity.

- O. 28 r. 8(1): An action begun by originating summons may be continued as if it had

been begun by way of writ, if it appears at any stage of the proceedings that the action
which should have been commenced by way of writ was begun by originating
summons.

- Ting Ling Kiew v Tang Eng Iron Works Co Ltd: The appellants contended that the
learned trial judge erred in law in dealing with the application summarily by an
originating summons, especially in light of the plea of fraud and the conflicting
affidavit evidence. In allowing the appeal and ordering the proceedings to continue as
though it had begun by way of writ, the court held:
- A judge is not precluded in the exercise of his discretion from making an
order that the proceedings should be continued as if begun by writ under
O. 28 r. 8(1).
 - It is in fact within his absolute discretion and he is justified to do so, as in the
circumstances of this case, in order to resolve the conflicts of affidavit evidence
and reach a well-balanced decision.
- In this case, where fraud or intention to defraud was the central issue,
particulars of fraud must be specifically pleaded and such particulars were
absent in the affidavit of the respondent. Thus, there were matters which were
not satisfactorily explained in the affidavits and could be resolved if the
proceedings had been begun by way of writ.

- Khoo Kheng Sim v Khoo Chooi Leong: Where the plaintiff's allegation of fraud was
based merely on a single sentence in the most general term which did not specifically
plead the particulars of fraud, the matter should have been commenced by way of
writ as opposed to an originating summons. Besides the allegation of fraud, there
were numerous disputes of facts which certainly called for the application of
O. 28 r. 8(1) for the purpose of enabling the court to order the proceedings to continue
as if the matter had begun by way of writ.
The Writ
- A formal document by which the defendant is directed to enter appearance within a
specific period from the date of service of the writ.
Endorsement (O. 6 r. 2):
- O. 6 r. 2(1): Before a writ can be issued, it must be endorsed with a statement of claim
or with a concise statement of the true nature of the claim made, or the relief or
remedy required.
- An endorsement would help inform the defendant the nature of the suit and
the reasons why legal action is being taken against him.

- General endorsement: It must make it precisely clear to the defendant the claim which
is made against him.

- Endorsement of a concise statement of the nature of the claim:

- Where the statement of claim is not endorsed on the writ, the writ may be
endorsed with a brief statement of the nature of the claim, or the relief or
remedy sought.
- Pontin v Wood: An application to set aside a writ which discloses no cause of
action is appropriate only where the endorsement shows that the action is an
abuse of the court process.

- A general endorsement or an endorsement of a concise statement which contains

defects or lacks in sufficient particulars may be amended or cured by subsequent
service of a full statement of claim.
Issuance of a writ (O. 6 r. 6):
- A writ must be issued according to Form 2 (application at High Court) or Form 2A
(application at a Subordinate Court)

- Procedure for the issuance of a writ:

- Filed with the court registry
- A case reference is given to the writ
- The Registrar will sign, seal and date the writ

- A writ only takes effect from the date it is issued.

- Jumatsah v Voon Kim Kuet: The effective date of the writ is the date of its filing
at the relevant court Registry and upon payment of the requisite fee.
Duration and Renewal (O. 6 r. 7):

- Validity of the writ:

- O. 6 r. 7(1): A writ is valid for a period of 6 months from the date of its issue
and must be served within such period.
- Trow v Ind Coope: For the purpose of service, the period concerned includes
the day on which the writ is issued.
- E.g.: A writ issued on 1st January 2015 expires on 1st July 2015.
- An expired writ served upon a defendant has no validity.

- Extension:
- O. 6. 7(2): A plaintiff may apply to extend the writ twice, not exceeding
6 months at any one time.

- O. 6 r. 7(2A): In order for the validity of the writ to be extended:

- An application for renewal must be made before expiry of the writ.
- An application for renewal must be made by way of an ex-parte
summons.
- The notice of application must be supported by an affidavit stating that:
- Effort had been made to serve the writ within one month
- Effort had been made thereafter to effect service

- The granting of an extension is within the discretion of the court. In exercising

such discretion, the court will look into the reason why the plaintiff failed to
serve the writ during the period of validity, and where the plaintiff has clearly
not made reasonable effort to serve the writ, an extension would not be
granted.

- A primary consideration of the court would be the effect of the extension on

the defendant’s rights, particularly where the extension would go beyond the
limitation period.
 - Negligence by the plaintiff’s solicitors would not be sufficient to excuse a delay
in serving the writ, unless they were reasonably made.
- New Ching Kee v Lim Ser Hock: In the absence of sufficient or good reason, the
court will not exercise its discretion in favour of the renewal of the writ after
the period allowed for service has expired, if the effect of doing so will be to
deprive a defendant of the benefit of a limitation period which has accrued.
- In this case the appellant’s solicitor had not acted reasonably in the
matter and had been negligent in not serving the writ in time. There
was also no sufficient or good reason for extending the validity of the
writ and thus, the appeal was dismissed.
Personal service of the writ:
- Once a writ is issued, it must be served upon the other party as due and fair notice of
the claim made against them.
- O. 10 r. 1: A writ shall be personally served upon each defendant or sent to each
defendant by way of registered post, and the first attempt at service must be made
no later than 1 month from the date of the issue of the writ.
- O. 62 r. 3: A writ may be personally served by leaving a copy of it with the defendant.

- A defendant may be properly served despite him refusing to accept it. As long as he is
made aware of the content of the document, the service is said to have been properly
effected.

- Thompson v Pheney: Personal service can simply be the act of bringing the writ to the
defendant’s attention.
- Where the defendant refused to accept the writ, the conduct of the server in
throwing it to the defendant with the words “I’m serving it to you”, was held
to amount to good service.

- Banque Russe v Clarke: Where the server served the writ to the defendant in an
envelope but did not inform him of its content, the service was held to be bad in law.

- Exceptions:
- O. 10 r. 1(2): Defendant’s solicitor endorses acceptance on the writ on behalf
of the defendant
- O. 10 r. 1(3): Defendant enters appearance before being served
- O. 10 r. 4: In an action for recovery of land, the court has made an order to
affix a copy of the writ on some conspicuous part of the land
- O. 11 r. 5(3): Service is effected in a foreign country in accordance with the law
of that country
- O. 62 r. 5: Order for substituted service has been made
- O. 73 r. 3: In civil proceedings against the government
Substituted service:
- If the defendant cannot be found or is evading service, the plaintiff may seek for an
order for substituted service from the court, namely to serve the writ through other
means.

- O. 62 r. 5(1): The court may make an order in Form 133 for substituted service if it
appears to be impractical to serve the writ on the defendant personally.
- O. 62 r. 5(2): An application must be made by way of ex-parte notice of application
supported by an affidavit in Form 134 stating the facts and reasons.
- O. 62 r. 5(3): Once an order has been made, the steps provided must be followed.

- In order to be entitled to an order for substituted service, the applicant must show
that it would be impractical to effect personal service.
- Re Nirmala Muthiah Selvarajah:
- Where the whereabouts of the defendant is known, Practice Note 1 of 1968
must be complied with or else service can be rendered bad.
- The basis of Practice Note No. 1 of 1968 is that a mere statement that the
person to be served was evading service was not sufficient to satisfy the court
the impracticability of serving the document.
- The steps that must be taken are:
- Two calls should be made to the defendant’s residence if known. If it
relates to the defendant’s business, the call should be made to his
business address.
- The second call should be made by appointment through a letter sent
to the defendant giving not less than two clear days’ notice. It must
enclose a copy of the document to be served and offer an opportunity
to make a different appointment.

- Where the whereabouts of the defendant is not known, Practice Note 1 of

1968 is not applicable.

- Once the steps have been followed, the applicant may then apply for an order
for substituted service. However, a mere statement in the affidavit stating
that the defendant is evading service is insufficient.
- The affidavit must set out:
- Facts that show the application is bona fide; the explanation on
circumstances that had resulted in the whereabouts of the defendant
not being known
- The belief and reason for such belief that the defendant is within or
outside the jurisdiction of the court
- The application is made with the intention that the defendant will be
able to attend the proceedings.
 - Malayan United Finance Bhd v Sun Chong Construction: Failure to comply with Practice
Note 1 of 1968 will only render the proceeding irregular and will not nullify it.

- An order for substituted service can be granted if the court is satisfied that the
defendant had left the jurisdiction in order to evade service.
- BBMB v Lorrain Osman: The defendant applied to have the order for substituted
service on him set aside. He claimed that he left the country two months before the
writ was issued. The plaintiffs did not admit that the defendant was out of the country
on the date of the issue of the writ and submitted that the onus was on the defendant
to prove such fact. Even if the defendant was not within the jurisdiction on the date
of the issue of the writ, the plaintiff argued that the defendant was evading service.
Held: The defendant failed to discharge the onus to show that he was out of Malaysia
on the date of the issue of the writ. Even if the defendant had left the country and
was out of jurisdiction when the writ was issued, he clearly did so in order to avoid
service of the writ as he was eager to maintain the secrecy of his whereabouts, and
thus, his application should be dismissed.
Service outside of the jurisdiction (to a foreign defendant):
Through the comity of nations, each country is allowed to exercise judicial power over foreign
defendants, thus enabling the service of writ between countries.
- Where the foreign defendant is within the jurisdiction, the Malaysian courts shall
have jurisdiction against the defendant.
- Atmaram & Sons v Essa Industries: If the defendant visits the country
voluntarily, the writ can be served on him personally, but if he is induced to
come to the country, the courts cannot be said to have jurisdiction over him.
- In this case, the plaintiffs, a Singapore firm, served a generally endorsed
writ claiming damages for breach of contract against the defendants, a
company incorporated in Pakistan. The writ was served on the
chairman of the defendant company, at his hotel, while he was on a
temporary visit to Singapore.
- Watkins v North American Land & Timber Co Ltd: If a person has been induced
by fraud of any kind to come within the jurisdiction for the concealed purpose
of serving him with a writ in an action, the court will set aside the service as
an abuse of the process of the court.

- O. 11 r. 1: Where the foreign defendant is outside the jurisdiction, service of the writ
is only permissible with the leave of the court in the circumstances mentioned in limb
(A) to (M).
- Seasiana Sdn Bhd v Saab Scania AB: Where the writ was served outside the
jurisdiction without leave of the court, the writ was set aside.
- BBMB v ITC: Before granting leave for service outside jurisdiction, a plaintiff
must satisfy the court that the action falls within one of the paragraphs under
O. 11.
- O. 11 r. 4(2): A court will only grant leave where it is satisfied that the case is a
proper one for service outside the jurisdiction.
- Société Générale de Paris v Dreyfus Brothers: What amounts to a ‘proper case’
can be seen where three criteria are satisfied:
- Whether the claims are within the scope of one or more paragraphs
of the relevant rule (O. 11 r. 1)
- Whether the claim has a sufficient degree of merits which would justify
allowing the service to stand
- Whether the court ought to put a foreigner to the inconvenience of
being brought to another country merely to contest his rights
(principle of forum non conveniens)

- The Spiliada: Where leave was obtained by the shipowners, a Liberian

company, to issue and serve a writ upon a Canandian firm outside the
jurisdiction on the ground that the action was brought to recover damages in
respect of a breach of a contract which was by its terms governed by English
law, the issue was whether the most appropriate forum was an English or
Canadian court. Held: An English court was the most appropriate forum.
- Where there is some other appropriate forum for the trial of the action,
the burden resting on the defendant is not just to show that England
is not the natural or appropriate forum for the trial, but to establish
that there is another available forum which is clearly or distinctly
more appropriate than the English forum.
- Thus, where there is another available forum to hear the case, the
burden of proof is on the plaintiff to show why the trial should take
place in England. Factors such as convenience, expense, availability of
witnesses and where the companies do business, should all be
considered by the court.

- In exercising its discretion judicially, the court must take into consideration
other factors:
- Whether the plaintiff can make out a cause of action in which they are
likely to succeed
- Whether there exists a comparative advantage in furtherance of justice
to all parties
- Whether the particular case falls within the spirit and the letter of the
various classes of cases provided for

- Procedure (O. 11 r. 4):

- An application for leave for service outside the jurisdiction must be
made by way of an ex-parte notice of application supported by an
affidavit in Form 8 satisfying the court that the case is a ‘proper case’.
- An order for service will be made in Form 9 granting leave for service
outside the jurisdiction.
Appearance and Default Judgment
Once a writ is served, the defendant knows that an action has been filed against him in court.
The defendant may then enter appearance if he wishes to defend the action. Failure to enter
appearance may cause a judgment in default to be entered against him.
- O. 12 r. 1(1): A defendant may enter an appearance and defend the action.
- O. 12 r. 2(2): A defendant may enter an appearance by completing a memorandum of
appearance in Form 11.

- O. 12 r. 4: A defendant must enter an appearance within the time limit set:

- (a) For a writ served within Peninsular Malaysia, the time limit is 14 days
- (b) For a writ served within Sabah and Sarawak, the time limit is 14 days, or
where the defendant lives outside the court’s division or residency, the time
limit is 20 days.
- (c) For a writ served out of the jurisdiction under O. 11 r. 4, the time limit is 21
days.

- Where the defendant fails to enter appearance within the time limit set, this does not
mean that he is barred from entering appearance.
- O. 12 r. 5(1): A defendant may not enter an appearance after judgment has been
entered except with the leave of the court.
- However, under O. 12 r. 5(2): Leave of court is not necessary where the defendant
enters appearance after the time limit, but before judgment is entered.
Effect of non-appearance:
- O. 13 r. 1: Where the defendant has failed to enter an appearance within the time
limit, the plaintiff is entitled to obtain a judgment in default of appearance.

- The nature of the judgment is dependent upon the type of claim involved.
- A judgment may be final or interlocutory, where further steps are required to
finalise it.
- O. 13 r. 1, Claim for a liquidated demand: The plaintiff may enter final
judgment for a sum not exceeding that claimed by the writ.
- O. 13 r. 2, Claim for unliquidated damages: The plaintiff may enter
interlocutory judgment against the defendant for damages to be assessed.
- O. 13 r. 3, Claim in detinue: The plaintiff may obtain:
- An interlocutory judgment for the delivery of property or their value
to be assessed, or
- An interlocutory judgment for the value of the property to be assessed.
- O. 13 r. 4, Claim for possession of land: The plaintiff may enter judgment for
the possession of land.

- However, judgment in default of appearance cannot be entered in equitable claims

(account, injunction, specific performance, declaration, rectification) as the award for
 such remedies is dependent on the discretion of the court, and is thus, incompatible
with the automatic nature of a judgment in default.
- Lam Kong Co Ltd v Thong Guan Co Ltd: In an action for specific performance,
the defendant failed to enter appearance and the plaintiff entered a judgment
in default of appearance. The defendant applied to set aside the judgment as
the claim fell under O. 13 r. 6 where the plaintiff was not entitled to enter a
judgment in default of appearance. Held: Non-compliance with the rules is not
a mere irregularity, but a fundamental defect not curable under O. 2 r. 1. Thus,
the judgment was set aside.
Procedure for entering judgment in default at the High Court:
- Plaintiff must file the following documents with the Registry for judgment in default:
- Original writ duly endorsed
- Affidavit verifying service in Form 135
- Two completed judgment forms in Form 75
- Certificate of non-appearance in Form 12

- Once judgment in default is entered, the Registrar will seal the judgment in default.

- Tatchee Machinery Agency v Posan Timber Trading Sdn Bhd: The effective date of
entry of judgment in default is when the actual judgment is entered, and not the date
when the Assistant Registrar approved the draft judgment.

- Rule 56, Legal Profession (Practice and Etiquette) Rules 1978: Where the defendant is
represented by a solicitor, no judgment in default can be entered against the
defendant without giving his solicitor a 7-day written notice.
- Asia Commercial Finance v BBMB: Non-compliance to Rule 56 does not affect
the validity of the judgment entered. However, the Bar Council may take
action against the plaintiff’s solicitor for the misconduct.
Setting aside the judgment in default of appearance:
- O. 13 r. 8: The court may, on such terms as it thinks just, set aside or vary any judgment
entered.

- The court has absolute discretion to set aside a judgment in default:

- Evans v Bartlam: Unless and until the court has pronounced a judgment upon
the merits or by consent, it has the power to revoke the expression of its
coercive power where that has been obtained by a failure to follow any of the
rules of procedure.

- Tuan Haji Ahmad Abdul Rahman v Arab Malaysian Finance Bhd: The court has
the discretion to set aside or vary the judgment in default if it thinks just, taking
into account the various factors of the case.
 - A defendant who wishes to set aside a judgment in default must act promptly.
- O. 42 r. 13: An application to set aside a judgment by a defendant must be
made within 30 days after the receipt of the judgment by him.
- Time begins to run once the judgment in default is served upon the
defendant.

- After the 30 days has lapsed, the defendant must apply for an extension of the
time limit under O. 3 r. 5. However, it is within the discretion of the court
whether or not to grant such an extension.

- Ban Huat Seng Co Ltd v Lee Poh Soo: The court refused to set aside the default
judgment as the defendant’s application was made 6 years after the plaintiff
obtained the judgment in default of appearance, despite the defendant
alleging that the contract was void.

- Tian Yan Onn v National Holdings Ltd: The court refused to set aside the default
in judgment where the defendant’s application was made 7 months and 12
days after the judgment was obtained.
- The defendant in this case had waited too long, and the delay was
unreasonable and inexcusable.

- Fira Development Sdn Bhd v Goldwin Sdn Bhd: Delay in applying to set aside a
judgment in default is merely another factor to take into account. The court
also has to consider the merits of the case and any irregularities in obtaining
the judgment in default.
Procedure for setting aside the judgment in default:
- O. 32 r. 1: The defendant must apply by way of notice of application in Form 57
supported by an affidavit stating:
- The reasons why the defendant did not enter appearance
- That the defendant has a prima facie defence on evidence
- The prospect of the defendant succeeding in the defence
“Regular” and “irregular” judgment in default:
- Irregular judgment: A judgment obtained without compliance with the rules of
procedure.
- Where the judgment is an irregular judgment, the defendant may have it set
aside as a matter of right that is for an order to set aside the judgment to be
made ex debitio justitiae.
- There is no need for the defendant to show a defence on merits, but only for
him to state the nature of the irregularity and the circumstances under which
the default arose.
- There will be no order of costs made against the defendant.
 - Mercurine Pte Ltd v Canberra Development: In deciding whether an order
should be made ex debitio justitiae, the court should consider the nature of
the irregularity, namely if it consists of:
- Entering a default judgment prematurely
- Failing to give the defendant proper notice of the proceedings
- Whether the defendant took a fresh step in the proceedings after
becoming aware of the irregular default judgment
- Whether there was any undue delay by the defendant in filing the
application to have the judgment set aside
- Whether the breach of procedural rules by the plaintiff was committed
in bad faith

- Tuan Haji Ahmad Abdul Rahman v Arab Malaysian Finance Bhd: In this case,
where the judgment obtained was irregular in that it was for an amount in
excess of what is actually due to the plaintiff, despite the defendant’s long
delay in applying to set aside the judgment, the Federal Court exercised its
discretion to have it set aside where:
- No prejudice was caused by the defendant’s delay
- Alternatively, where prejudice was sustained, it could be met by an
appropriate order as to costs
- To allow the judgment in default to stand would amount to an
oppression on the part of the defendant
- The court has the inherent jurisdiction to prevent an abuse of the
proceedings

- Regular judgment: A judgment obtained when there has been full compliance with the
procedural rules.
- However, the court may still choose to exercise its discretion to set aside the
judgment if it finds that it is just to do so.
- Evans v Bartlam: In order for the defendant to succeed in setting aside the
judgment in default, the defendant must show evidence of a prima facie
defence, namely that there is merit in the defence.

- Dialdas & Co Pte Ltd v Sin Sin & Co: If the judgment in default is regular, then
the defendant must show a defence on the merits, which means a defence that
discloses an arguable and triable issue.

- Taisho Marine Insurance v Wong Poo Peng: In an application to set aside the
judgment in default, the court held that the defendant had not shown a prima
facie defence on the merits on law or in fact and thus, the application must be
dismissed.
Parties
Categories of litigants:
- Individuals, O. 5 r. 6(1): Right to sue in person
- Corporate body, O. 5 r. 6(2): Must be represented by a solicitor
- Persons under a disability, O. 76: Must sue through a litigation representative
- Firms or partnerships, O. 77: May sue or be sued in the firm’s name
- Sole proprietor, O. 77 r. 9: May be sued in the firm’s name, but can only sue in his own
- Federal or State Government (O. 73)
- The YDPA (Art. 183, FC) or Ruler of a State (Art. 181(2), FC)
- Deceased persons through their estate (Sec. 8(1), CLA & O. 15 r. 7(2))
Estate of deceased persons:
- Sec. 8(1), CLA: All causes of action subsisting against or vested in the deceased shall
survive against or for the benefit of his estate (inapplicable to actions for defamation,
seduction, inducement of a spouse)
- Sec. 8(3), CLA: An action in tort against the estate of a deceased person is maintainable
where the cause of action was pending at the date of his death, or the action is taken
within six months after his personal representative has taken out representation
(extracted order from the court)

- Airey v Airey: An accident occurred on 24th February 1951 in which the plaintiff was a
passenger in the car, while one Isaac Airey, who was killed in the accident, was the
driver. The defendant took out letters of administration to Isaac Airey’s estate on 18th
March 1957. Only on 9th September 1957 did the plaintiff issue a writ against the
defendant claiming damages for the negligence. Although the defendant contended
that the proceedings were statute-barred where they were not commenced within six
years from the cause of action, the court held: The act of the defendant in extracting
the letters of administration revived the claim, thus resulting in the plaintiff’s claim
to not be statute-barred where it was made within the six months permitted.

- Lee Lee Cheng v Seow Peng Kwang: The appellant is the administratrix of the estate of
one Gooi Kim Kwan who was killed in an accident near Sungei Siput on 21st March
1956. The respondent is the administrator of the estate of one Loke Ta Poh who was
killed in the same accident. Letters of administration to Loke’s estate, although
granted to the respondent on 4th November 1956, were not extracted until 8th August
1957, and the appellant did not institute an action for the tort until 17th February 1958.
The proceedings were therefore taken after the expiration of the period of six
months prescribed. The respondent contended that the action was barred where the
six-month period had expired, while the appellant applied to have the six-month
period enlarged. Held: The court has no power to enlarge the period of time
prescribed and thus, the appellant's alleged cause of action was barred.
Action by or against the administrator before the letters of administration are extracted:
- Where the deceased dies intestate, an administrator cannot sue or be sued before
the letters of administration are extracted.
- Ingall v Moran: The plaintiff had issued a writ, under which he claimed he was suing
in a representative capacity as administrator of his son’s estate, but failed to take out
the letters of administration until almost two months after the issuance of the writ.
Held: The action was incompetent at the date of its inception by the issue of the writ,
as at the time, the letters of administration had not been taken out.

- Ang Hoi Yin v Sim Sie Hau: Where the plaintiff had not extracted the letters of
administration, the court held that she had no power to sue as an administratrix, and
thus, the suit was a nullity and the writ was ordered to be set aside.

- P Govindasamy Pillay v Lok Seng Chai: An ‘administrator’ has not fully clothed himself
with that status until he has extracted the grant.
- Until the grant is extracted, a party has no locus standi as representatives and
could not therefore be sued in a representative capacity.

- However, in Ruhani Mohiat v Abdul Karim: A person is vested with the power to
administer the deceased’s estate from the date the letters of administration are
granted upon an application having been made under O. 71 r. 5(1), and the failure to
extract the letters of administration is not fatal.
- In this case, an accident which involved the defendants and the deceased
occurred on 28th May 1982. The plaintiffs were granted letters of
administration on 11th May 1984, and proceeded to filing a suit against the
defendants on 14th March 1985. However, the letters of administration were
only extracted on 6th May 1991. Held: The plaintiffs had the capacity to sue as
the deceased’s administrators as the letters of administration, despite not
having been extracted, had already been granted before the filing of the suit.
Action by or against an executor before the grant of probate is extracted:
- Where the deceased dies testate, an executor need not extract probate in order to
commence a suit.
- Meyappa Chetty v Subramaniam Chetty: An executor derives his title and
authority from the will of his testator and not from any grant of probate. The
personal property of the testator, including all rights of action, vests in the
executor upon the testator’s death, which allows him to institute an action
with the status of an ‘executor’ before he proves the will.

- However, where a person wishes to sue the executor, in Mohamidu Mohideen

Hadjiar v Pitchey: An executor cannot be sued before the grant of probate is
extracted.
- The person named as ‘executor’ in the will may not want to act as an executor.
A person who intermeddles with the deceased’s assets indirectly becomes an executor or
administrator of the deceased’s estate:
- Kerajaan Malaysia v Yong Siew Choon: In this case, the respondent was the widow of
the deceased, but was neither the executrix nor the administratrix of the deceased’s
estate. In fact, no letters of representation were applied for or taken out in respect
of the deceased's estate. The appellant brought an action against the respondent for
tax due to it by the deceased, and thus, sued her as the representative of the
deceased’s estate despite her not having applied for or taken out any letters of
representation.
- The Federal Court held: O. 15 r. 6A provides for a remedy where no letters of
representation have been taken out and thus, there is no person in law who
can be sued. However, in this case, there was such a person, namely the
respondent, who is the person administering the deceased’s estate.
- Despite not having applied for or taken out letters of representation,
she was an executor de son tort who had the capacity of being sued.
- ‘Executor de son tort’: A person who, without having been appointed
as an executor, or without having taken out letters of administration,
intermeddles with the goods of the deceased, or does any other act
with the characteristic of the office of executor or administrator. She
has all the liabilities and none of the privileges of an executor.
Action against the deceased’s estate where no grant of representation has been extracted:
- Sec. 39(1), Probate and Administration Act (PAA): Where a person dies intestate, his
movable and immovable property, until administration is granted, shall vest in the
Official Administrator.
- Selvarajah v Official Administrator: Where the Official Administrator was sued as the
representative of the deceased’s estate, the court set aside the writ as mere vesting
of the property in the Official Administrator did not place him in a capacity in which
he may be sued.

- O. 15 r. 6A(1): Where no grant of probate or letters of administration has been made,

an action may be initiated against the deceased’s estate.
- The provision provides a remedy where no letters of representation have been
taken out and thus, there is no person in law who can be sued.

- O. 15 r. 6A(4): However, in any such action, before any further steps can be taken, a
personal representative must be appointed for the purpose of the proceedings.
- Yong Siew Choon v Kerajaan Malaysia: Non-compliance with O. 15 r. 6A(4)
renders the action more than a mere irregularity, but one that is badly
constituted as a matter of substantive law.
- Only in an action against a duly appointed legal representative of the
deceased’s estate can a judgment obtained be enforced against the
assets of the estate.
 - O. 15 r. 6A(7): Once the terms of O. 15 r. 6A are complied with an order
or a judgment obtained in the action binds the deceased’s estate.
- If the provisions are not complied with, any order or judgment would
be wholly unenforceable against the deceased’s estate.
- The rule of substantive law is that an action may be commenced and
maintained by or against the deceased’s estate only after letters of
representation have been extracted.
- Thus, an action cannot be maintained against the estate of a deceased
person in the absence of the extraction of letters of representation.

- O. 15 r. 6A(5): Before an appointment is made under paragraph (4), notice may be

given to any insurer of the deceased or any person having an interest in the deceased’s
estate to step in.

- O. 15 r. 6A(5A): The court has the power to appoint the Official Administrator to
represent the deceased’s estate, but such appointment shall be limited to accepting
service of a writ or originating summons.
- Thus, once the Official Administrator has received the writ, he shall be functus
officio (fulfilled his function) and shall take no further action.
- Re Amirteymour: Where the Official Administrator has been appointed only to
receive the writ, a judgment in default cannot be entered upon his failure to
enter appearance.
Issuance of a writ in the name of a deceased defendant:
- Dawson v Dove: Where writs were issued against the deceased, it was not known to
the plaintiffs at the time of its issuance that the deceased had died and appointed the
defendants as his executors. Held: The writs and all subsequent proceedings were set
aside as at the date on which they were issued, the person named was already dead.

- However, under O. 15 r. 6A(3): A writ issued against a deceased defendant is effective

as though it was commenced against the deceased’s estate.
Where the plaintiff dies in the course of proceedings:
- Govt. of Malaysia v Taib Abdul Rahman: Where there has yet to be a grant of probate
or letters of administration, O. 15 r. 7(2) provides the court with the discretionary
power to order another person (a surviving member of the family) to be the
deceased’s substitute and for the proceedings to continue as usual, even where such
person is not a personal representative of the deceased.
- In this case, the deceased’s son, Abdul Rahim Taib, applied to be appointed as
a party under O. 8 r. 7(2) of the Subordinate Court Rules 1980 (in pari materia
with O. 15 r. 7(2))
Representative action:
- Where a number of persons want to sue or are to be sued in respect of the same
interest or a specific matter, a representative action may be taken.
- O. 15 r. 12: Where numerous persons have the same interest in any proceedings, it
may be begun, and continued, by or against any one or more of them as representing
all or as representing all except one or more of them.
- In a representative action, the cost of the suit is borne by the named plaintiff
and not those that he is representing.
- However, once judgment is obtained, it shall be binding upon every single
person represented in the action.

- Requirements for representative action as in Duke of Bedford v Ellis: Given a common

interest and a common grievance, a representative suit is in order if the relief sought
is in its nature beneficial to all whom the plaintiff proposed to represent.

- Smith v Cardiff Corporation: Where the Corporation decided to increase the rent
payable by tenants earning a certain income and above, an action was brought by four
tenants acting “on behalf of themselves and all other tenants”. Held: The plaintiffs
could not take representative action as the scheme did not adversely affect all the
tenants.

- Palmco Holding Bhd v Sakapp Commodities Sdn Bhd: The defendants sought for an
order of the court to strike out the plaintiff's writ of summons and that all further
proceedings against them be stayed on the ground that the plaintiff's action is not
properly constituted in that the plaintiff is not entitled to sue on behalf of or as
representing all purchasers of palm oil under future contracts which the defendants
had defaulted on. Held: The plaintiff and those represented by it were purchasers of
crude palm oil under the contracts. Where the plaintiff had satisfied all three
requirements necessary in a representative action, the defendants’ applications
were dismissed.

- Agi ak Bungkong v Ladang Sawit Bintulu Sdn Bhd: The first defendant is a joint venture
company of the second and third defendants. Two provisional leases over two lots of
land located in Bintulu were issued to the defendants. The plaintiffs claimed that their
land was within the defendants’ parcel and brought an action claiming native
customary rights over their land. Held: All that O. 15 r. 12 requires is for there to
exist a ‘same interest’ and in this proceeding the plaintiffs and those they
represented share a same interest in claiming for native customary rights at the
Longhouse communities of Selezu, Setulai and Sepadok of Sebauh District in Bintulu.

- Voon Keng v Syarikat Muzwita Development Sdn Bhd: Representative action could
continue even though each member of the class may be entitled to different
amounts of damages.
- Conflict between members of a class:
- John v Rees: Despite the differences between the members and that many of
them support the defendant’s position, they are bound to each other by
contract, linked by a common membership and a common interest in the
assets. The important thing is to have before the court, either in person or by
representation all who will be affected and for the issue to be fairly argued.

- Persons represented must be defined with sufficient clarity:

- E.g.: Where an action is brought on behalf of a club or association, it must be
stated that the plaintiff is suing on behalf of such club or association.
- However, in Vellasamy Ponnusamy v Gurbachan Singh: Where the plaintiffs,
purported to represent 213 sub-purchasers of plots of land in an action against
the defendant, it was contended that the 213 sub-purchasers represented by
the plaintiffs were never identified in the evidence either by names or the plot
numbers they held in the said land. Held: The exact identities of the persons
whom the plaintiffs are representing is not an impediment to commencing a
representative action so long as they are a class of persons with a common
interest and a common grievance.

- Consent in a representative action:

- Eh Riyid v Eh Tek: In a representative action, the plaintiff is the self-elected
representative of himself and others. He does not have to obtain the consent
of the other persons whom he purports to represent, and they are not liable
for costs, though by estoppel and res judicata they will be bound by the result
of the case.
- However, in Kamarudin Merican Noordin v Kaka Singh Dhaliwal: Where a
public officer of a society brings a representative action, it can be assumed
that he would have obtained the consent and mandate of its members in
bringing the action, even if only a single member is affected.

- Representative action cannot be taken for defamation:

- Ong Boon Hua v Kerajaan Malaysia: The first and second plaintiffs were the
same person suing firstly, in his own capacity, as well as a representative of all
members of Parti Komunis Malaya (PKM), and secondly, in his capacity as the
Secretary General of PKM. The plaintiff’s complaint were in respect of two
allegedly slanderous statements made by the defendant in newspaper articles.
Held: Defamation involves a right in personam and a close relationship with
the person defamed alone will not give rise to the right on the part of other
persons to sue the defendant. Further, an unincorporated association such
as PKM must be clothed with authority before it can be considered as a body
with legal personality capable of suing and being sued in its own name either
in contract or tort.
Joinder:
- O. 15 r. 4(1): Two or more parties may be joined as plaintiffs or defendants in the same
action with leave of the court or where:
- Some common question of law or fact would arise in all the actions, and
- All rights to relief claimed are in respect of or arise out of the same transaction
or series of transactions.

- Thus, leave is only required where the two conditions cannot be fulfilled.
- S Constantine v Social Security Organisation: The appellant had joined the two
respondents together in the same action as defendants without the leave of
the court. Held: Where the appellant’s claim against the first respondent was
for a declaration that he was entitled to invalidity pension, and the claim
against the second respondent was for damages or reinstatement for wrongful
dismissal, both claims were unrelated to each other with no common
question of law or fact involved. Thus, failure to obtain leave of the court
would not allow a joinder of the parties.

- Joinder of plaintiffs, O. 15 r. 4(2):

- Where two or more persons are entitled to relief jointly, all such persons must
be joined in the action as plaintiffs.
- However, where one person does not consent to being joined as a plaintiff, he
shall be made a defendant.

- Joinder of defendants, O. 15 r. 4(3):

- Where the liability of the defendants is several, as well as joint, the plaintiff
may choose which one of them to sue.
- However, where the liability of the defendants is joint, but not several, such
persons should be joined as defendants. If the plaintiff does not join them, the
defendant may apply for the action to be stayed until the others are joined.

- TEST to determine joinder as in Pegang Mining v Choong Sam: Will his rights against,
or liabilities to, any party to the action, be directly affected by any order which may
be made in the action.
Misjoinder and non-joinder:
- O. 15 r. 6(1): An action shall not be defeated by reason of the misjoinder (where a
person has been wrongly joined as a party) or non-joinder (where a person should
have been joined as a party, but was not) of any party.
- O. 15 r. 6(2)(a): At any stage of the proceedings, but before the final judgment, the
court may order any person to cease to be a party where:
- He has been improperly joined
- He has unnecessarily been made a party
- He has, for any reason, ceased to be a proper party
Addition or substitution of parties:
- O. 15 r. 6(2)(b): At any stage of the proceedings, but before the final judgment, the
court may order any of the following persons to be added as a party:
- (i) Any person whose presence is necessary to ensure that all matters are
effectually and completely determined and adjudicated upon, or
- (ii) Any person, the addition of whom would be just and convenient to
determine the cause or matter.
Adding or substituting plaintiffs:
- O. 15 r. 6(4): A person shall not be added as a plaintiff without his consent.
- Mabro v Eagle Star & British Dominions: Leave from the court is required before
another person can be added as a plaintiff to the proceeding. However, such consent
will not be granted where it would defeat the defendant’s reliance on the limitation
period.
- Govt. of Malaysia v Mohamed Amin Hassan: An accident involving the respondent and
his family had caused the death of his son. The respondent brought an action on behalf
of the deceased’s estate for damages. After the expiry of the limitation period the
respondent applied for an order to amend the statement of claim by adding himself
and his wife as plaintiffs in their own personal capacity. Leave was granted to add the
respondent himself as plaintiff, but leave was refused to add his wife. On appeal, the
Federal Court held: What the respondent did was not to correct the name of a party,
neither was it a matter of mistake. It was instead to add a new and different party.
This is not permissible particularly when the period of limitation affecting the
proposed plaintiff had expired.
Adding or substituting defendants:
- A plaintiff may sue any person he chooses and may leave out any person from his
action as he wishes.
- Datuk Bandar Kuching Utara v Kuching Plaza Sdn Bhd: There is no requirement to
obtain the consent of the party intended to be added as a defendant before adding
him.
- Credit Corporation v Fong Tak Sin: Adding or substituting a new party to an action after
the expiration of the limitation period should not be allowed as it would be unjust
when the limitation period had run in the defendant’s favour as it would deprive him
of a valid defence.
Adding a co-defendant:
- Hee Awa v Syed Muhammad: A defendant has the right to add a co-defendant
despite an objection made by the plaintiff. There is nothing in the Rules to prevent a
defendant from making the choice to add a co-defendant and once the choice is made,
that is the end of the matter.
- Where an accident had occurred, the court allowed the application of the
defendants to add a motor cyclist involved as a co-defendant to ensure that all
 matters in dispute will be effectually and completely determined and
adjudicated upon as under O. 15 r. 6(2)(b)(i).

- However, in Tajjul Ariffin v Heng Cheng Hong: The powers of the court under
O. 15 r. 6 to add, substitute or strike out parties who are not proper or necessary is
entirely discretionary.
- The Supreme Court in this case did not fetter (restrain) the discretionary power
of the court of first instance to add a co-defendant upon an application made
against the wishes of the plaintiff.
- Generally, a plaintiff cannot be forced to pursue his remedy against persons
who he does not wish to sue. However, a person who is not a party may be
added as a defendant, over the objections of the plaintiff, on his own
intervention, upon application of the defendant, or by the court’s own motion.
- Nevertheless, a defendant against whom no relief is sought by the plaintiff
will not be added against the plaintiff’s wishes.

- In this case, where an accident had occurred, the defendant pleaded in his
prayers to add two defendants and for the plaintiff to plead negligence against
the intended defendants. Held: A plaintiff cannot be forced to have a second
defendant added against whom he does not wish to proceed as the negligence
of the intended defendant is not an issue involved in the claim he has made.
Thus, he should only be made to proceed with the defendant of his choice.

- Abidin Umar v Doraisamy: The plaintiff sued the defendants for damages arising out
of an accident involving two lorries. The plaintiff was the lorry attendant of the lorry
driven by one Salleh Ani that collided with a stationary lorry driven by the first
defendant and owned by the second defendant. The defendants applied for Salleh to
be joined as one of the defendants. Held: Bearing in mind that at the material time of
the accident, the plaintiff was asleep, he was not in a position to describe the
movements of the lorry he was on nor that of the other lorry before the accident.
Thus, Salleh as the proposed co-defendant, could shed light as to whether there was
in fact a collision from the rear and for this purpose, it was prudent to make him a
co-defendant.
- The High Court in applying both, the case of Hee Awa and Tajjul Ariffin,
distinguished the two cases:
- In Tajjul Ariffin, the defendant applied to not only have the plaintiff add
the intended persons as co-defendants, but to also plead negligence
against them.
- However, in Hee Awa, the application was merely to add a co-
defendant and not for the plaintiff to also plead negligence against the
intended person, as was the circumstances in Abidin Umar.
Intervention:
- O. 15 r. 6(2)(b)(ii) allows a person to apply to intervene in an action at any stage of the
proceedings, but before the final judgment, if he has sufficient legal interest in the
outcome of the case.
- The purpose is to help prevent injustice done to the proposed intervener.

- Pegang Mining v Choong Sam: In determining whether a person should be allowed

to intervene, the test is whether the intended intervener’s rights against, or
liabilities to, any party to the action will be directly affected by any order made.
- Arab Malaysian Merchant Bank Bhd v Jamaludin Dato Mohd Jarjis: A pecuniary
interest in addition to the legal interest will also allow a person to intervene.

- However, in Lee Meow Lim v Lee Meow Nyin: A mere commercial interest in the
outcome of the action, divorced from its subject matter, such as the interest of a
creditor of a party to the action, is not sufficient to entitle a person to intervene.

- Tohtonku Sdn Bhd v Superace Sdn Bhd: The applicant is the proprietor of the
trademark ‘MISTER’ used in relation to condoms and had manufactured and/or
distributed condoms under the name of ‘MISTER 003’. The applicant alleged that there
were found, in the open market, condoms bearing the mark ‘SISTER 003’ distributed
by the intervener and alleged that the use of the mark ‘SISTER’ had infringed their
registered trademark ‘MISTER’. The applicant obtained an ex-parte order declaring
that the intervener’s trademark infringed the applicant’s registered trademark. The
intervener then applied to intervene. Held:
- A person who wishes to intervene must show that he has some interest
which is directly related to the subject matter of the action. A mere
commercial interest in the outcome is not enough; he must have rights or
liabilities in respect of the subject matter which will be directly affected by
any order of court in the action.
- In this case, the subject matter before the court was whether or not the rights
of the applicant in respect of the trademark 'MISTER' had been infringed by
the intervener's use of the trademark 'SISTER'.
- As a distributor, the intervener certainly has direct interest in the matter as
any finding of the court in the matter will directly affect it.

- Tai Choi Yu v Syarikat Tingan Lumber Sdn Bhd: The appellant is a minority shareholder
and a director of the company New Tingan Timber (NTT) who applied to intervene in
the winding-up proceeding commenced by the respondent, Syarikat Tingan Lumber
(STL) against NTT. In dismissing the application, the court held: The order to intervene
can only be granted when the applicant shows that he has a legal interest directly
related to the subject matter of the action. Where the appellant is only a minority
shareholder in NTT, he had no legal or equitable interest over the company’s
property.
Summary Judgment
UMBC Bhd v Palm & Vegetable Oils Sdn Bhd: A summary judgment can only be given in a plain
and obvious case, where the only consideration required is whether or not there are issues
or questions in dispute which ought to be tried.
- It is to avoid unnecessary trials and prevent a defendant from exploiting the litigation
process to delay an inevitable judgment against him.
- The court is entitled to dispose the case expeditiously by way of summary judgment
(save time and costs) if the parties have no real issues to be determined.
- It can be obtained under O. 14:
- O. 14 allows the plaintiff to obtain a summary judgment without going for a
full trial if he can prove his case clearly, and if the defendant is unable to put
up a bona fide defence or raise a triable issue against the claim.

- When summary judgment under O. 14 is not available:

- Where proceedings are begun by originating summons, and not writ
- Where the action includes a claim for defamation, malicious prosecution, false
imprisonment, seduction, breach of promise of marriage, or where the claim
is based on an allegation of fraud
- When the claim falls under O. 81, namely a summary judgment for specific
performance
- Where the defendant is the government (O. 73 r. 5(1)) a summary judgment
cannot be obtained.
- However, the government as a plaintiff may apply for a summary
judgment against a defendant.
Procedure for obtaining summary judgment:
National Company for Foreign Trade v Kayu Raya Sdn Bhd: In every application under O. 14
the first considerations are:
- Whether the case comes within the Order
- Whether the plaintiff has satisfied the preliminary requirements for proceeding under
O. 14

- For the purposes of an application under O. 14 the preliminary requirements are:

- The defendant must have entered an appearance;
- The statement of claim must have been served on the defendant; and
- The affidavit in support of the application (which must be made in Form 13)
must comply with the requirements of O. 14 r. 2:
- Must be made by the plaintiff or any other person duly authorised
- Must verify the facts on which the claim or part of a claim to which the
application relates is based
- Must state the deponent’s belief that there is no defence to that claim
or part of or no defence except as to the amount of damages claimed
 - A case is not within O. 14 where:
- No statement of claim has been served on the defendant
- The indorsement on the writ includes a claim or claims outside the scope of
O. 14 as coming within r. 1(2)
- The affidavit in support of the application is defective (e.g. in omitting to state
the deponent's belief that there is no defence to the claim or part to which the
application relates)
- The application is made in an action against the Government (O. 73 r. 5(1))

- If the plaintiff fails to satisfy either of the considerations, the summons may be
dismissed.
- However, if the considerations are satisfied, the plaintiff will have established a prima
facie case and he becomes entitled to a summary judgment.
- The burden then shifts to the defendant to satisfy the Court why judgment
should not be given against him (O. 14 r. 3 & 4(1))
- Cempaka Finance Bhd v Ho Lai Ying: Once the conditions in an application
under O 14 are fulfilled, the burden then shifts to the defendant to raise triable
issues.
Challenging the application for a summary judgment:
Delay in making an application:
- O. 14 r. 1: An application for summary judgment should be made promptly after the
defendant has entered appearance and a statement of claim has been served on the
defendant.

- Krishnamurthy v Malayan Finance Corp: An application can be made either before or

after the delivery of defence by the defendant. However, if it is made after the service
of defence, the plaintiff must explain the delay, and not doing so would cause a
summary judgment to not be granted.

- Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York: If the defendant
has no triable issue or defence against the plaintiff’s action, delay per se cannot be
raised as a ground to object the plaintiff’s application.

- MBSB v Ghazi Hasbollah: Where the plaintiff delayed 4 months in making an

application, the court ruled that whether or not a lapse of 4 months from the date of
entry of appearance to the date of the filing of the application is to be regarded as
fatal must depend on the circumstances of each case. There is no hard and fast rule
that a delay of four months must be held fatal in every case.

- CGIR v Weng Lok Mining Ltd: The plaintiff’s delay of 3 months in making an application
due to the holidays and the fasting month was a good reason which did not warrant a
dismissal of the application.
 - Loo Sze Kin v Cheong Choy Teik: The absence of an explanation as to the delay is fatal.
Where no explanation was given for the delay, the plaintiff's application for summary
judgment was dismissed.
Technical objections:
- In making an application, the plaintiff must ensure that his documents are in order.
- The defendant can raise substantive technical objections in the plaintiff’s application
for non-compliance with the rules such as defective service, defective affidavit, errors
in documents etc.
- If the defendant succeeds in his objection, the court will dismiss the plaintiff’s
application under O. 14 r. 7. However, if the defect can be cured, the court may give
leave to the plaintiff to amend the application.
- The courts are generally reluctant to allow mere technical errors to obstruct its
determination of the merits of the case.
- If the errors are serious enough to warrant a dismissal of the application, the
plaintiff would be entitled to recommence new summary judgment
proceedings.

- UMW (Sarawak) Sdn Bhd v Kim Leong Timber Sdn Bhd: A defective statement of claim
cannot be cured by the affidavit supporting the application.
- To cure it, the plaintiff must apply to the court for an amendment to be made.

- If the affidavit is defective, namely where it has failed to satisfy the requirements of
O. 14 r. 2(1), the application for summary judgment will be dismissed, but the action
will still go to trial.
- Chai Cheon Kam v Hua Joo Development Co Sdn Bhd: Where the plaintiff’s
affidavit failed to verify the claim and state that in his belief the defendant had
no defence, the affidavit was found to be in non-compliance with O 14 r 2(1),
causing the plaintiff’s application to be dismissed and for the action to go to
trial.
Where the plaintiff has made an application which is not defective, the court will proceed to
hearing the application for summary judgment.
- Banque de Paris v Costa de Naray: The nature of the hearing is such that the court
ought to consider whether the defendant has satisfied that there is a fair and
reasonable probability of the defendants having a real or bona fide defence.
Setting aside or challenging the summary judgment:
O. 14 r. 3(1): The court will not grant the summary judgment if the defendant can show that
there is an issue or question in dispute which ought to be tried or that there ought for some
other reason to be a trial of that claim.
Triable issue:
- Whether or not a triable issue exists depends on the facts or law arising from each
case, and not on the basis of the defendant’s allegation alone.
- The defendant must show that there is a substantial question of fact which ought to
be tried or a difficult question of law involved.
- It is insufficient for the defendant to merely deny a fact, he must plead any cogent and
relevant facts which negative the existence of the plaintiff’s claim, or facts which show
that the claim is not maintainable.

- A triable issue was held to exist where:

- Ng Yik Seng v Perwira Habib: The defendant raised the issue of the genuineness
of their signature in a document of guarantee.
- SM Appaduray v R Ananda: The defendant challenged the accuracy of the
survey in respect of a land encroachment.
- UNP Plywood Sdn Bhd v HSBC Malaysia: The defendant raised issues
concerning the illegality of the foreign exchange contracts, estoppel, and the
lack of damage suffered by the plaintiff.

- Where the construction of documents or statute is involved, the defendant cannot

merely raise the issue of construction in order to prevent the hearing of the
application.
- Esso Standard Malaya v Southern Cross Airways (construction of documents):
If one simply has a short matter of construction with a few documents, the
court should decide what the true construction is. There should be no reason
to go formally to trial where no further facts could emerge which would
throw any light upon the documents that have to be construed.

- Fadzil Mohamed Noor v UTM (construction of statute): The appellant, an

Assistant Lecturer at UTM, applied for leave to contest the elections in the
General Election, which was granted. He then requested an extension of leave
which was refused. He did not receive the letter of refusal but still proceeded
to take leave. Subsequently, he was asked by the Secretary of the Disciplinary
Committee of the University to show cause why disciplinary action should not
be taken against him, which he replied with an explanation. He then received
a letter stating that the University Council had considered the decision of the
Disciplinary Committee and had decided to terminate his employment. The
appellant filed a specially indorsed writ for a declaration that the purported
dismissal was ultra vires, illegal and void. He then applied for a summary
judgment. The application was dismissed by the High Court and he appealed
to the Federal Court, which held:
- By virtue of the provisions of the University and University Colleges Act
1971, the disciplinary powers under the Constitution of the University
are exercisable only by the Disciplinary Committee and the purported
 exercise of jurisdiction by the University Council in dismissing the
appellant was ultra vires its powers.
- Based on the principle enunciated in Esso Standard Malaya as to the
construction of the Act and the Constitution of the University, UTM had
an absolutely hopeless case. The only function of the court is jus dicere
(to declare the law) and to ascertain the intention of Parliament from
the words used in the statutes and nothing more. No useful purpose
would then be served to go formally to trial.

- Where questions of law are concerned:

- European Asian Bank v Punjab & Sind Bank: In appropriate cases, the court can
decide on the question of law under O. 14 even if the question of law seems
complex and takes “a little longer to understand”.
- Malayan Insurance Sdn Bhd v Asia Hotel Sdn Bhd: Where the issue raised is
solely a question of law and the facts are undisputed, an application should be
allowed even if the question of law is a difficult one.
- However, in Carter Ltd v Clarke: In order to determine whether there is an issue
of law, prolonged examination over a number of days of many documents or
other evidence is required. This will create the real risk that in the end the
court will grant leave to defend, thus wasting the time and expense of the
prolonged proceedings.
Some other reason for there to be a trial:
- Where the defendant fails to raise a triable issue, it is still available to him to argue
that the granting of a summary judgment would not be appropriate as there is ‘some
other reason’ for trial.

- Miles v Bull: If the defendant cannot point to a specific issue which ought to be tried,
but satisfies the court that there are circumstances that ought to be investigated,
then it would be improper for the court to enter a summary judgment for the plaintiff.
- The defendant and her husband separated, and the husband sold the
matrimonial home, in which the defendant was still living, to the plaintiff for
£10,000. The plaintiff subsequently brought an action against the defendant
for possession of the property, and sought for a summary judgment. The
defendant was granted unconditional leave to defend the action. On appeal by
the plaintiff, the defendant sought to contend by way of defence to the action
that the sale to the plaintiff had been a sham with the object of depriving her
of her right, as against the husband, to occupy the property.
- On the evidence before the court, the defendant had failed to establish that
there was a triable issue, but since the transaction was one which ought to be
carefully scrutinised, especially as the relevant facts were within the control
of the plaintiff, and the defendant would have to seek to produce by
discovery, interrogatories and cross-examination those which will aid her,
there in fact “ought for some other reason to be a trial”.
 - Bank Fϋr Gemeinwirtschaft v City of London Garages: It is not difficult to think of other
circumstances where it might be reasonable to give leave to defend although no
defence was shown, for example:
- If the defendant was unable to get in touch with some material witnesses
who might be able to provide him with material for a defence
- If the claim were of a highly complicated or technical nature which could only
properly be understood if oral evidence were given
- If the plaintiff’s case tended to show that he had acted harshly and
unconscionably

- However, in this case, where there was an absence of a reasonable defence

being disclosed, the court failed to see any other questions that ought to be
tried, and thus, refused to allow leave to defend.

- Concentrate Engineering Ltd v UMBC Bhd: The plaintiff sued the defendant bank for
honouring its stolen cheques upon which the signatures were forged. The plaintiff
applied for summary judgment. The defendant resisted the plaintiff’s application on
the ground that police investigations were currently ongoing, thus establishing that
there is some other reason for there to be a trial.

- Harrison v Bottenheim: If the defendant has shown enough to entitle him to

interrogate the plaintiff, the case is not within O. 14 and should not be pursued
without the defendant being allowed to defend himself.
Other illustrations of ‘some other reason for there to be a trial’:
- UMF Bhd v Majlis Agama Islam Negeri Johor: Where the case involved the payment
of a sum of RM1 million, two fixed deposits which were issued by the defendants to
the plaintiffs were considered material evidence, and were the same exhibits used at
the criminal trial of the former President of the plaintiffs in regards to criminal breach
of trust. The Federal Court, in allowing the defendants unconditional leave to defend,
held: In the interest of justice, the defendants should be given the opportunity to
fully examine the record of the criminal proceeding to provide them materials for
their defence.

- Kiwi Brands Sdn Bhd v Multiview Enterprises Sdn Bhd: The plaintiff is a company which
manufactured, distributed, marketed and sold floor cleaning products by the name of
‘Super Active Kleen Floor’, while the defendant is in the same business, with its
product named ‘Leo’. The plaintiff claimed that the defendant had infringed the
plaintiff’s artistic copyright. However, the court in refusing to grant a summary
judgment, held:
- The plaintiff claimed that the label contained original artistic and literary work
and that sufficient effort had been put into its making. However, this was a
mere assertion supported only through its affidavit, and no other material
particulars or evidence.
 - In light of the allegation of infringement and the complex nature of the
case, a full blown trial was needed to enable the court to make a finding
of fact and assess the evidence in its totality.

- Kalsombi VK Majid v Sahlan Saruddin: Where there was an allegation of duress raised
by the defendant, the court refused to grant a summary judgment, as the matter
requires further scrutiny.
- Whether or not the element of duress existed at the point of time in which the
defendant was asked to sign the letter of undertaking needs to be determined
in a full trial.
Where the defendant raises a set-off or counterclaim:
- Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd:
- Set-off: A claim for a sum of money by the defendant against the plaintiff’s
claim and constitutes a defence to the whole or part of the plaintiff’s claim.
- A successful set-off will extinguish or reduce the plaintiff’s claim
- However, if the amount of the set-off is less than the plaintiff’s claim,
the defendant will obtain unconditional leave in respect of the amount
of set-off, and the plaintiff will be granted judgment on the balance.

- Counterclaim: A claim which the defendant has against the plaintiff in respect
of which the defendant can bring a separate action against the plaintiff if he
wishes to do so.
- It does not amount to a set-off and does not constitute a defence for
which the defendant can obtain unconditional leave.
- O. 14 r. 3(2): If it is raised, the court may order a stay of execution of
judgment for the plaintiff until after the trial of the counterclaim.
- The counterclaim may or may not arise from the plaintiff’s claim.
- It may exceed the plaintiff’s claim:
- Ronald Quay Sdn Bhd v Maheswary Sdn Bhd: The defendant
made a counterclaim which was more than the plaintiff’s claim.
Held: The counterclaim was not frivolous and a stay of
execution of the judgment for the plaintiff was ordered.

- Koshida Trading Pte Ltd v Limco Products Manufacturing Pte Ltd: The plaintiffs are
suppliers of microchips, while the defendants are manufacturers of personal
computers and have been buying microchips from the plaintiffs. The plaintiffs claimed
a sum of money that the defendant acknowledged they owed. However, the
defendants submitted that they were entitled to unconditional leave to defend as they
had counterclaims arising from the plaintiffs’ alleged failure to supply microchips
under two purchase orders. Held: The counterclaims based on the two purchase
orders had no relation to the plaintiffs’ claim and were separate transactions from
those in respect of which the defendants admitted liability. Thus, the defendants
were not entitled to a stay of execution, much less unconditional leave to defend.
 - Invar Realty Pte Ltd v Kenzo Tange Urtec Inc: O. 14 r. 5 allows a defendant with a
counterclaim to apply for a summary judgment on the ground that the plaintiff has no
defence against the counterclaim.
- In this case, the defendants made a counterclaim against the plaintiffs for the
balance of professional fees due to them. The plaintiffs in their defence to the
counterclaim admitted that such fees were due to the defendants, but that
the amount owing was, according to their calculations, $116,585.07, instead
of $179,250 as was claimed. They also contended that they were entitled to
set-off against the counterclaim so much of their own claim against the
defendants as would satisfy and extinguish the counterclaim. The defendants
then applied under O. 14 r. 5 for a summary judgment for $116,585.07 and
obtained judgment from the registrar for such amount, with a stay of
execution pending trial of the plaintiffs’ claim, and with leave to the plaintiffs
to defend the balance of the counterclaim. The plaintiffs appealed. In
dismissing their appeal, the court held:
- If there is no defence to a claim other than a possible counterclaim,
then judgment must be entered on the claim. The overriding
consideration is that if the claim is undisputed other than by means of
a counterclaim, the party must not be put to the expense of proving his
claim. The plaintiffs had by their pleadings admitted in the clearest
terms that the defendants’ fees were owed to them, computing this
to the very last cent. In the circumstances, the defendants were
entitled to judgment with a stay of execution.
Orders which the court can make:
- Dismissal of the summons:
- O. 14 r. 7: Where the defendant can show that the case should not come
within O. 14, or where the defendant succeeds in raising a substantive
technical objection, a clear triable issue or a set-off known to the plaintiff,
the court may set aside the summary judgment.

- O. 14 r. 7: Where the plaintiff makes an application for summary judgment

knowing full well that the defendant will be relying on a contention which
will entitle him to unconditional leave to defend, the court may dismiss the
application with costs and require the plaintiff to pay the costs to the
defendant.
- Pocock v ADAC: If it is clear that the plaintiff knows that there was an
arguable defence to the claim, the proper course is to dismiss the
summons with costs.
- A summary procedure is not meant for the purpose of discovering what
evidence the defendant has, and the court should not hesitate to order
costs to be paid in such circumstances.
 - Dismissal of the action:
- Diamond Peak Sdn Bhd v Tweedie: A judge has no power in an application for
summary judgment to dismiss the plaintiff’s action as an application under
O. 14 is only interlocutory. He can only dismiss the application for summary
judgment and grant the defendant unconditional leave to defend.
- However, in Tan Soo Leng David v Wee, Sathu & Kumar Pte Ltd: The court
dismissed the summary application and the action on the ground that the claim
was plainly and obviously unsustainable.

- Judgment for the plaintiff (O. 14 r. 3):

- Judgment may be given to the plaintiff where the defendant fails to show that
there is a triable issue or some other reason for there to be a trial.

- Leave to defend (O. 14 r. 4(3)):

- Unconditional leave to defend is granted where the defendant can show that
there is a triable issue or some other reason for there to be a trial.

- Conditional leave to defend is granted where the judge is not entirely satisfied
that there is a genuine defence, but believes that the defendant should be
given the benefit of the doubt because it cannot be certain that the case is
entirely devoid of any triable issues.
- Choo Chin Huat v Lee Boo Hock: Where the court is left with a real doubt
as to the defendant’s good faith, even though it cannot be said for
certain that there is no triable issue, it is entitled to make an order that
the defendant pay the amount claimed, or any lesser sum into court,
or furnish security for that amount, as a condition for leave to defend.
- MY Yorke Motors v Edwards: Granting conditional leave to defend
which the defendant would find impossible to fulfil is tantamount to
giving judgment for the plaintiff. Conditional leave in such
circumstances would not be appropriate. However, if the defendant
cannot fulfil the condition, the burden is on him to provide sufficient
and proper evidence as to why he will not be able to comply.
Appeals (Rehearing):
- Both the plaintiff and defendant have a right to appeal from any judgment or order
made (O. 56 r. 1(1))
- If the application is heard by a judge in the High Court, an appeal to the Court
of Appeal would be made under O. 56 r. 2, provided that leave from the Court
of Appeal is obtained.
- However, an appellate court is unlikely to interfere with the decision of
the judge where the triable issues concern issues of facts or evidence.

- If the application is heard by a judge in a Subordinate Court, an appeal to the

High Court would be made under O. 55 r. 5.
Pleadings
- Material facts on which the parties rely on for the purpose of establishing a claim or
defence.
Function:
- To define issues of fact and questions of law to be decided
- To give distinct notice of the case to be set up in order to prevent any element of
surprise
- To provide a brief summary of the case of each party which contains the nature of the
claim or defence
- To save time
Define and limit the scope of the issues with clarity and precision:
- Janagi v Ong Boong Liat: The court is not entitled to decide a suit based on a matter
on which no issue has been raised by the parties.
- Lee Ah Chor v Southern Bank: If important issues are not raised in pleadings, they
cannot be raised on appeal.
Only material facts should be pleaded:
- Bruse v Odhams Press, ‘material’: Necessary for the purpose of formulating a complete
cause of action.
- Philipps v Philipps: Facts which will put the defendants on their guard and tell them
what they have to meet.
- Pleadings should contain facts, not law.
- It is for the court to decide which law applies and not the parties.
- Any form of evidence should not be pleaded as evidence can only be adduced during
trial.
Amendment of Writ or Pleadings
- Clarapede v Commercial Union Association: An amendment should be allowed if it can
be made without injustice to the other side.

- Leave to amend a writ is necessary except where O. 20 r. 1(1) applies: The plaintiff
may, without the leave of the court amend the writ once at any time before the
pleadings in the action are deemed to be closed.
- O. 20 r. 1(3): Leave is required for an amendment of a writ in relation to:
- The addition, omission, substitution of a party, or alteration of a party’s
capacity
- The addition or substitution of a new cause of action
- A statement of claim endorsed on the writ

- Leave to amend pleadings is necessary except where O. 20 r. 3(1) applies: A party

may amend any pleading of his without the leave of the court at any time before the
 pleadings are deemed to be closed and shall serve the amended pleading on the
opposite party.
Where leave to amend is not granted:
- The amendment is futile, frivolous, and not bona fide.
- Chip Chong Sawmill Co Sdn Bhd v Chai Khiun Fui: The learned trial judge was
not wrong in refusing amendments to the pleadings on the ground that it was
not bona fide, but merely to delay the fair trial of the action.

- The amendment is to raise a cause of action which accrued to the plaintiff only after
the action had commenced.
- Simetech Sdn Bhd v Yeoh Cheng Liam: The court refused to grant leave to
amend as the plaintiff is not entitled to claim an additional sum which became
due and payable to the plaintiff only after the date of the issue of the writ and
statement of claim.

- The amendment is to turn a suit of one character into a suit of another and
inconsistent character.

- The amendment is to add a party or to raise a cause of action after the expiry of a
limitation period unless O. 20 r. 5 applies.
- Liff v Peasley: In this case, where leave was sought to add a party after the
expiry of a limitation period, the court refused to grant leave on the ground
that where amendment is sought in such instances, this gives rise to two
alternatives:
- Under the doctrine of relation back, the action against the added
defendant relates back to the date of the original writ. The plaintiff is
deemed to have begun his action against the added defendant when
he began it against the existing defendant, and thus, the added
defendant would be deprived of his right to rely on the statute of
limitation, or
- If the action against the added defendant is begun at the date of the
amendment, it would serve no useful purpose to allow the new
defendant to be joined when he would later be able to successfully
plead his defence of limitation at the trial. The defendant can simply
rely on the statute as barring the plaintiff from suing him.

- Credit Corporation v Fong Tak Sin: Adding or substituting a new party to an

action after the expiration of the limitation period should not be allowed as it
would be unjust when the limitation period had run in the defendant’s
favour as it would deprive him of a valid defence.
Where leave to amend is granted:
- Malayan Banking Ltd v Ting Ee Ngieng: To determine whether injustice would or
would not result from an amendment made, a court will ask the following three
questions before granting leave:
- Is the application for amendment made bona fide?
- Will the amendments asked for cause no prejudice to the other side which
cannot be compensated by costs?
- Are the amendments asked for such as to turn a suit of one character into a
suit of another and inconsistent character?

- O. 20 r. 5(2) – (5): There are three instances where an amendment will be allowed
regardless of its effect to defeat a defence under the Limitation Act if the courts finds
it just to do so:
- Where the amendment is to correct the name of a party
- Where the amendment is to alter the capacity in which a party sues or is sued
- Where the amendment adds a new cause of action arising out of the same
facts as the original claim

- Govt. of Malaysia v Mohamed Amin Hassan: An accident, in which the respondent and
his family were involved, resulted in the death of his son. The respondent brought an
action for damages on behalf of the deceased’s estate. After the expiry of the
limitation period the respondent applied for an order to amend the statement of claim
by adding himself and his wife as plaintiffs in their own personal capacity. Leave was
granted to add the respondent himself as plaintiff, but leave was refused to add his
wife. The appellant appealed. In allowing the appeal, the Federal Court held:
- The respondent was adding himself in as a plaintiff to pursue a claim peculiar
to himself for his personal benefit. Such a step amounts to a joinder of a new
party and the addition of a cause of action different from the cause of action
of the original plaintiff in the suit. The claim he is pursuing is distinct from the
claim he instituted as administrator of the deceased's estate.
- By allowing the amendment the appellant would be deprived of the defence
of the limitation period under the Public Authorities Protection Act.
- What the respondent did was not correct the name of a party, neither was it a
matter of mistake. It was the addition of a new and different party, which is
not permissible particularly when the period of limitation affecting the
proposed plaintiff had expired.

- Hock Hua Bank Bhd v Leong Yew Chin: The court has power to grant an amendment
after the expiry of the limitation period notwithstanding that its effect will be to add
or substitute a new cause of action, subject to the very important condition that the
new cause of action must arise out of the same or substantially the same facts as the
cause of action in respect of which relief had already been claimed.
 - In this case, the respondents had issued a writ and a statement of claim against
the appellants relating to a claim in 1974. On December 3, 1984, the
respondents applied for an amendment of the statement of claim to introduce
a new cause of action. The application to amend was made after the expiry of
the limitation period and the proposed amendment raised a new cause of
action adding a new relief. However, the new cause of action arose out of the
same or substantially the same facts as the cause of action in respect of which
relief had already been claimed. Thus, the Supreme Court dismissed the
appeal and upheld the leave to amend.
Time for application:
- It is usually made before trial by way of notice to the Registrar.
- However, the court may, depending on the circumstances, allow it to be made during
trial or after the trial, but before the final judgment, by way of notice to the judge.

- Mahan Singh v Govt. of Malaysia: Where the entire case revolved on the
determination of pure question of law, the court allowed the plaintiff’s application for
leave to amend his pleadings on the third day of trial where the amendment caused
no prejudice to the defendant, no requirement of fresh evidence, no introduction of
a new cause of action, and the nature of the suit still remained the same. Where the
delay was not fatal to the application provided that the defendant could be
compensated by costs, the court ordered the plaintiff to pay costs.

- Raphael Pura v Insas Bhd: The appellant appealed against the dismissal of his
application to amend his pleadings. The appellant stated that the delay in his
application was due, inter alia, to the need to make comparison and confirmation of
copies of documents to the original documents which were kept overseas. The
respondent contended that there was an inexcusable and inordinate delay on the part
of the appellant in filing the application and it was for the sole purpose of adjourning
the already fixed trial date and to cause injustice and prejudice to the plaintiffs. The
Court of Appeal in dismissing the appeal held:
- The delay on the part of the respondent in setting down the action for trial was
no excuse for the appellant to delay the application for the amendment of his
defence at a very late stage without placing sufficient material before the court
and without any cogent reasons.
- An application for amendment of a writ or pleadings is not as a matter of a
right of a party but is left to the judicial discretion of the court depending on
the circumstances of each case.
- There was a lack of bona fide on the part of the appellant in his application as
there was insufficient material placed before him and even if there was
sufficient material no cogent reasons for the delay were given.