INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

END-OF-SEMESTER EXAMINATION
SEMESTER 2, 2016/2017 SESSION

AHMAD IBRAHIM KULLIYYAH OF LAWS

Programme : Bachelor of Laws Level of : Fourth

Study

Reading Time : 9.00 a.m. – 9.15 a.m. Date : 17.5.2017

Duration : ( 15 minutes )

Answering Time : 9.15 a.m. – 12.15 p.m. Section(s) : All Sections

Duration ( 3 hours )

Course Title : Civil Procedure I Course Code : LAW 4210

This Question Paper Consists of 10 Printed Pages With 8 Questions.

INSTRUCTIONS TO CANDIDATES
DO NOT OPEN UNTIL YOU ARE ASKED TO DO SO.
Answer FOUR (4) Questions only.
Answer ALL the Questions in Part A and any THREE (3) Questions in Part B

REFERENCE(S) ALLOWED
The Rules of Court 2012

Statutes should be free from any form of annotations.

Any form of cheating or attempt to cheat is a serious

offence which may lead to dismissal

APPROVED BY
 PART A

THE QUESTIONS IN THIS PART ARE COMPULSORY.

ANSWER ALL THE QUESTIONS (15 MARKS)

Amino Power (M) Sdn Bhd, a company incorporated in Malaysia and having its

registered address at No.1, Jalan Anggerik, Shah Alam, Selangor, is in the business of

selling engineering equipment and products. Another company, Megah Alam (M) Sdn

Bhd, is the main contractor of a project known as “Constructing and Completing High

Tech City Centre at Lot PT 12345 in the District of Kemuning, Shah Alam, Selangor.”

By way of a letter dated 1 November 2013, Megah Alam Sdn Bhd appointed Amino

Power Sdn Bhd as a nominated sub-contractor to supply, deliver, install, test and

commission generators installation services for the project for the sum of RM20 million

over a period of three years. It was agreed between the parties that the payment term

should be 10% down payment, 70% upon delivery to the site before installation, 10%

after installation, and 10% after testing and commissioning.

Pursuant to the contract, Amino Power (M) Sdn Bhd supplied and installed 10 generators

as requested by Megah Alam (M) Sdn Bhd. The progress claims were submitted to the

project’s mechanical and electrical engineer, Dynamic Engineers Sdn Bhd, and the

architect, Architect Jerneh Sdn Bhd, for the certification of the work done. As at 1st

November 2016, Dynamic Engineers and Architect Jerneh Sdn Bhd certified the value of

the works as RM18 million. Since RM2 million had been paid as the down payment,

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Amino Power (M) Sdn Bhd claimed a balance sum of RM16 million from Megah Alam

(M) Sdn Bhd but the company refused to pay for the work done and certified.

After several reminders sent to Megah Alam (M) Sdn Bhd, Amino Power Sdn Bhd

received a payment of RM10 million with a reply from the company stating that they

were only eligible to pay RM10 million for the works done due to the following reasons:

i) There was a delay of eight (8) months in completing the project.

ii) Five of the generators supplied were not functioning well for several months after

the installation. Even after the service had been done by Amino Power (M) Sdn

Bhd, the default still occurred. Megah Alam Sdn Bhd had to incur additional cost

in repairing the default.

iii) Megah Alam (M) Sdn Bhd had to pay for the late payment interest to the owner of

the project, that is, the State of Selangor due to the delay caused by Amino Power

Sdn Bhd.

Amino Power (M) Sdn Bhd contended that Megah Alam (M) Sdn Bhd had no right to

raise the above stated reasons on the following grounds:

1) Amino Power Sdn Bhd had issued a letter asking for eight (8) months extension

period due to unforeseen technical issues and the shortage of manpower. It was

also stated in the letter that if there was no reply from the company within one (1)

month from the date the letter was issued, the company was deemed to agree on

the extension period. There was no reply issued from Megah Alam (M) Sdn Bhd.

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2) It is agreed in the term of the contract that any complaint on the malfunction of

the machines must be made within three (3) months from the installation date.

There was no complaint made by Megah Alam (M) Sdn Bhd within this specified

period.

Dissatisfied with the conduct of Megah Alam (M) Sdn Bhd in deducting the amount of

payment, Amino Power Sdn Bhd seeks your legal advice pertaining to several issues in

this case.

QUESTION 1

Advise Amino Power (M) Sdn Bhd on the following;

a) Whether there is a cause of action for the company (Amino Power Sdn Bhd) to

take against Megah Alam (M) Sdn Bhd.

(1 ½ Marks)

b) If there is a cause of action, identify the court and the district where it is located at

which the case should be filed in and the considerations that should be taken into

account for such a decision.

(1 Mark)

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c) List the documents that should be used to commence this case, their content, and

the reason/s for including the documents in the list.

(1 Mark)

d) The procedure involved in order to inform the other party and the court of the

facts of the disputes that arose between the parties, the legal issues therein, and the

rules governing the matter.

(2 Marks)

QUESTION 2

a) Discuss the steps that the defendant in the proceeding should take after being

served with the documents in Questions 1(c) and 1(d) above and the effect(s) of

non-compliance.

(1 ½ Marks)

b) Discuss the application that is most appropriate for the plaintiff to apply in order

to obtain a quick judgment, a summary judgment or striking out. In your answer,

also explain the legal point(s) the other party should raise or argue in order to

oppose the application.

(3 Marks)

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QUESTION 3

a) Assume that the court has dismissed the application and the parties proceed to

prepare for trial.

i. State one relevant issue to be tried in the case; and

ii. Determine the relevant documents that could be used to support the

Plaintiff's case, and how these documents should be brought into the trial.

(1 ½ Marks)

b) At the Pre-Trial Case Management, the Plaintiff informed the court that they

would call two witnesses to testify. Explain the procedure for calling and the

process of examination of witnesses at trial.

(1 ½ Marks)

c) After a full trial the court ordered the Defendant to pay the outstanding sum to the

Plaintiff but the Defendants still refused to pay. Advise the Plaintiff on the

options available to force the Defendant to accordingly comply with the court

order.

(2 Marks)

OR

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c) Explain the step/s the Defendant may take should it disagree with the court’s

decision and the necessary documents it should file. While awaiting the outcome

of the course of action so taken, determine the step(s) it may take to stop the

Plaintiff from enforcing the judgment.

(2 Marks)

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 PART B

ANSWER THREE (3) OF THE FOLLOWING QUESTIONS (15 MARKS)

QUESTION 1

Based on the Rules of Court 2012 and case law,

a) briefly explain the meaning of a cause of action and its importance in ensuring the

success of the plaintiff in an action;

b) discuss the factors that determine the jurisdiction of a High Court in Malaysia and

the ground(s) upon which the argument of ‘forum inconvenience’ can be raised;

c) discuss the relevant mode(s) of service upon the following parties:

(i) a partnership business; and

(ii) the Government of Malaysia.

(5 Marks)

QUESTION 2

Briefly explain the procedure governing a civil litigation involving an action that begins

by writ starting from the commencement of the action until the pronouncement of the

judgment in open court. Your answer must clearly state the duty and responsibility of the

parties to the suit and the court involved at each trial stage based on the Rules of Court

2012.

(5 Marks)
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QUESTION 3

Based on the Rules of Court 2012 and decided cases,

a) discuss the circumstances when a party to an action can apply for a mareva

injunction,

b) how the order for mareva injunction or the nature of the order should be stated in

the Notice of Application,

c) explain the conditions that must be fulfilled in order to obtain the order

successfully,

d) the basis upon which the order may be opposed to by the other party.

(5 Marks)

QUESTION 4

a) Explain the rules governing amendment of statement of claim with leave of court

and the procedure of application as well as the mode of amendment.

b) Discuss the different rules governing an amendment that is made at the early stage

of a proceeding and a delayed application for amendment.

(5 Marks)

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QUESTION 5

a) State the procedure governing appeal from subordinate courts to the High Court.

b) State the basis upon which the judge at the High Court may interfere with the

decision of the courts below.

(5 Marks)

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