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1. Summary Judgment

CIVIL PROCEDURE 2 (Universiti Malaya)

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SUMMARY JUDGMENT
(ORDER 14, ORDER 43, ORDER 81 & ORDER 89)

The Normal Course of a Civil Suit and Its Consequences

 The normal course of a civil suit involves many steps and consequently, it takes time.
 If the Pf has an “unanswerable claim” against the Df (the Df has no answer/defence to the
Pf’s claim against the Df), then it is unfair for the Pf to have to wait for his judgment.
 To overcome this, the Rules has devised a procedure to allow the Pf to obtain judgment at a
very early stage of the proceedings/ without having to go for a trial.

Summary Judgment and Its Nature

 Short definition: A Summary Judgment (SJ) is a procedure where the Pf can obtain a
judgment against the Df without proving the case at a trial.
 Long definition: A SJ is a procedural device used during civil litigation to promptly +
expeditiously dispose a case without a trial. It is used when there is no dispute to the
material facts + Pf is entitled to judgment as a matter of law.
 SJ only applies to actions begun by writ.

Importance of Summary Judgment

 The policy behind SJ is to prevent delay to a Pf obtaining a judgment in cases where Df has
no defense to the claim.
 UNP Plywood Sdn Bhd v HSBC Bank Malaysia Bhd [2010] 5 MLJ 323 at 337, CA
o Summary judgment procedure is a procedural device available for prompt and
expeditious disposition of an action by a plaintiff or a counterclaim by a defendant,
without a trial when there is no dispute as to the fact and law.

I. SUMMARY JUDGMENT UNDER ORDER 14

Instances when SJ is not available

(a) O.14, r.1(2);
(b) O.43, O.81 and O.89;
(c) O.73, r.5(1); and
(d) Other grounds

(a) O.14, r.1(2)

 A Pf cannot apply for SJ if the Pf’s claim is on:
o Libel
o Slander
o Malicious prosecution
o False imprisonment
o Seduction
o Breach of promise to marry
o Allegation of fraud
 Rationale: O.14, r.1(2) is modelled after the English Rules of Court. For cases under these 7
cases, a Df can elect to choose to a trial by jury (not applicable in M’sia).
 ∴ Pf cannot apply for a SJ.
(b) O.43, O.81 and O.89
 A Pf cannot apply for SJ if the Pf’s claim falls under O.43, O.81 or O.89 as these orders apply
to specific cases which have their own special procedures for SJ.
 O.14 is a general procedure.

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(c) O.73, r.5(1)

 Pf cannot apply for SJ against the Government.
 However, the Government can apply for SJ.

(d) Other grounds

i. Df can show a triable issue.
ii. Df raises a technical objection i.e. Pf did not comply with procedure.

 Under instances (a), (b) and (c), it is a clear-cut dismissal of application of SJ.
 Instance (d) requires a hearing.

Procedure for Obtaining Summary Judgment

(a) Form 57 + 13
(b) Preliminary requirements
(c) Time
(d) Service
(e) Affidavit requirements

(a) Form 57 + 13
 A SJ is applied for by filing a notice of application in Form 57, supported by an affidavit in
Form 13.
(b) Preliminary requirements
 Before Pf can apply for a SJ, the Pf must be procedurally eligible (comply with preliminary
requirements).
 Seah F.J. in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC:
o “We think it appropriate to remind ourselves once again that in every application
under Order 14 the first considerations are (a) whether the case comes within the
Order and (b) whether the plaintiff has satisfied the preliminary requirements for
proceeding under Order 14. For the purposes of an application under Order 14 the
preliminary requirements are:
(i) the defendant must have entered an appearance;
(ii) the statement of claim must have been served on the defendant; and
(iii) the affidavit in support of the application must comply with the
requirements of Rule 2 of Order 14.
o It is to be observed that a case is not within Order 14(a) where no statement of claim
has been served on the defendant; (b) where the indorsement on the writ includes a
claim or claims outside the scope of Order 14 as coming within Rule 1(2); (c) where
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; (d) where the application is made in an action against the
Government [Order 73 Rule 5(1)].
o If the plaintiff fails to satisfy either of these considerations, the summons may be
dismissed. If however, these considerations are satisfied, the plaintiff will have
established a prima facie case and he becomes entitled to judgment. The burden
then shifts to the defendant to satisfy the Court why judgment should not be given
against him [See Order 14 Rules 3 and 4(1)].”

 Cempaka Finance Bhd v Ho Lai Ying [2006] 2 MLJ 685 at 689-690, FC

o In an application under O.14, the burden is on the Pf to establish the following
conditions: that the defendant must have entered appearance; that the statement of
claim must have been served on the defendant; that the affidavit in support must

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comply with r.2 of O.14 in that it must verify the facts on which the claim is based
and must state the deponent's belief that there is no defence to the claim.
o Once those conditions are fulfilled, the burden then shifts to the Df to raise triable
issues.
(c) Time
 As soon as the Pf becomes eligible to apply, he must apply as soon as possible + before the
Df files defence (within 14 days). These principles were developed by case law.
 Krishnamurthy v Malayan Finance Corp [1986] 2 MLJ 134
o Pf must file for application for SJ before Df enters defence.
o If Pf files application for SJ after Df enters defence, Pf has delayed + Pf must explain
reasons for delay.
o If reason is acceptable—can proceed.
o If reason is unacceptable—Court can refuse application for SJ.
 CGIR v Weng Lok Mining Ltd [1969] 2 MLJ 98
o Pf was the income tax department that applied for SJ.
o Pf only applied after Df entered his defence.
o Pf was required to give an explanation for the delay and claimed that:
 There was a delay because it was fasting month (Back then, office closed at
2pm); and
 That year, Hari Raya, Deepavali, and Christmas were celebrated closely
together—thus office was understaffed.
o Court accepted reasons, application allowed.
 British American etc Insurance Bhd v Pembinaan Fal Bhd [1994] 3 MLJ 267
o Pf applied for SJ after Df entered defence.
o Excuse: They changed solicitors.
o Explanation not accepted—application dismissed.
 MBSB v Ghazi bin Hasbollah [1994] 2 MLJ 1
o No hard and fast rule – discretion of the Court.

See also Perkapalan etc v Alpine Bulk Transport [1997] 3 MLJ 818; Interfinance Bhd v Grand
Ridge Sdn Bhd [1998] 4 CLJ Supp 485 and Pengurusan Danaharta Nasional Bhd v Miri
Salamjaya Sdn Bhd [2004] 4 MLJ 327.

(d) Service of the Notice of application

 Mode: O.14 does not prescribe a specific mode of service on how to serve
application/affidavit on Df.
 Where the specific rule does not prescribe a mode of service—look at the general rule.
 O.62, r.6 applies whenever there is no specific rule on how to serve a document.
o 5 ways (O.62, r.6(1)):
(a) By leaving documents at the proper address of Df;
(b) By prepaid registered post;
(c) By facsimile;
(d) In such other manner as may be agreed between the parties; or
(e) In such a manner as the Court may direct.
 Time limit: O.14, r.2(3) states that the notice of application + affidavit + any exhibits referred
to must be served within 14 days of receipt of sealed notice of application by the Pf.
 After Pf files application to Court, Pf must extract a sealed copy (Court affixes seal + state
date of hearing) from Court.
 In served after 14 days—technical non-compliance.

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(e) Affidavit requirements

 Must comply with Form 13.
 Must comply with 2 important requirements mentioned in O.14, r.2(1):
o Affidavit must verify facts of Pf’s claim (Affidavit must contain a detailed account of
Pf’s claim; and
o Affidavit must state that in Pf’s belief, the Df has no defence to Pf’s claim (A
statement by Pf).
 If there is non-compliance to O.14, r.2(1) then court may:
o Dismiss the application for SJ (Chai Cheong Kam v Hua Joo etc Sdn Bhd [1989] 2 MLJ
422); OR
o Adjourn the proceedings to allow the pf to amend the affidavit (usually this happens
because “justice of the claim”).
 Who makes the affidavit? (Known as the ‘deponent’)
o Usually the Pf.
o If company, then company rep.
o But anyone else can make an application on behalf of the Pf due to O.14, r.2(2).

Hearing of the Notice of Application

 A SJ application is usually heard by the Senior Assistant Registrar (SAR) OR by the Deputy
Registrar (If no SAR is around).
 May be heard by a Judge if there is a claim for injunction in SJ application.
 Always heard in chambers (not in open Court).

(a) Technical objections

 A Df may raise a technical objection to SJ application (non-compliance with the Rules).
 6 kinds of technical objections:
o Pf’s claim falls under O.14, r.1(2)
 If this objection succeeds, Pf’s application will be dismissed with costs (Pf
cannot file again).
o Short service (time limit)
 Notice of application + affidavit not served within time limit.
 Court has discretion to:
 Dismiss; OR
 Adjourn proceedings to allow Pf to serve afresh.
o Defective service (mode of service)
 Pf did not comply with O.62, r.6
 Court has discretion to:
 Dismiss application with costs; OR
 Adjourn proceedings to allow Pf to serve afresh.
o Defective affidavit
 Pf did not comply with O.15, r.2(1)
 If successful:
 Dismiss application with costs; OR
 Adjourn hearing to allow Pf to amend affidavit + file afresh.
 In both cases, costs borne by Pf (Chai Cheong Kam v Hua Joo etc Sdn Bhd
[1989] 2 MLJ 422)
o Defective SOC (e.g. no complete cause of action, etc.)
 Court has discretion to:
 Strike out application with costs; OR
 Adjourn proceedings to allow Pf to amend SOC + costs borne by Pf.

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o Delay
 Pf delayed in applying for SJ i.e. Pf applied after Df entered defence.
 Pf only needs to explain if Df raises the objection.
 CGIR v Weng Lok Mining Ltd [1969] 2 MLJ 98

 Pf only applied after Df entered his defence.

 Pf was required to give an explanation for the delay and claimed
that:
o There was a delay because it was fasting month (Back then,
office closed at 2pm); and
o That year, Hari Raya, Deepavali, and Christmas were
celebrated closely together—thus office was understaffed.
 Court accepted reasons, application allowed.
 If explanation given by Pf acceptable, Court will allow Pf to proceed—if not,
dismissed with costs.

(b) Triable issue

 Df is required to show that there is an issue or question in dispute which ought to be tried.
 Appaduray v Ananda [1982] 1 MLJ 292
o Boundary dispute.
o Pf alleged Df encroached his land—applied for SJ.
o Pf relied heavily on surveyor’s report (which stated very clearly that Df encroached
his land).
o Df questioned surveyor’s report—said it was wrong—there were boundary stones on
the land, but some are missing.
o There was a triable issue—application for SJ unsuccessful.
 If Df raises successfully raises triable issue, what the Court orders depends on the Pf’s
knowledge:
o If the triable issue was known to the Pf/Pf could have anticipated it, then the application for
SJ would be dismissed with cost (He should not have applied for SJ).
o If Pf does not know about the triable issue/Pf could not have anticipated it, the Court will
order unconditional leave to defend with costs in the cause (nobody has to pay costs yet—
party who eventually loses the trial will pay costs).
o In practice, the SAR/ Dept. Registrar will only say if the application is allowed/dismissed.

 Ng Yik Seng v Perwira Habib Bank [1980] 2 MLJ 83

o Case concerned an overdraft to a company which was secured by charge. RESPs
sought SJ against Appellants who denied executing the guarantee. There were great
variations in the signature of the Appellants not only in the documents but in the
specimens supplied by them.
o Held: There was a triable issue in this case and the appellants were rightly given
leave to defend.
 Miscellaneous matters:
o If at the point of SJ application, where the Df already raised defence, can Df raise in
his affidavit issues over and above those stated in his defence?
 Yes—Df is not limited to defence.
 O.14 r.4(1) – a Df may show cause by affidavit or otherwise.
 Lin Securities v Noone & Co S/B [1989] 1 MLJ 231
 An O.14 application, a Df is not restricted to the defences mentioned
in his defence and can mention issues outside.
 Rationale: Df is not restricted to defences stated in SOD because he
need not have served his defence at all.

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o Is SJ possible if damages must be quantified?

 In a basic claim of damages, a Pf must prove 2 things: liability + quantum i.e.
DF is liable + that Pf can quantify loss.
 Where it is clear-cut that the Df cannot raise any triable issue as to liability,
however quantum of damages is in dispute. SJ may still be entered.
 Avel Consultants Sdn Bhd v Mohd Zain [1985] 2 MLJ 209
 Breach of trust case.
 Df was clearly liable for the breach of trust + had no defence to
liability, but there were issues on how the quantum is to be
quantified
 Held: In an application for SJ, the court is only concerned with
liability. Therefore, if there are no triable issues as to liability, SJ will
be entered against the DF. Assessment of damages can be
determined by Registrar via another hearing (A separate application
must be made).

(c) D raises set-off or counterclaim

 Both are cross-claims raised by the Df to defeat/partially defeat Pf’s claim.
 Set-off: A cross-claim that is closely connected/arises from the same claim as the Pf’s cause
of action (usually monetary). It is a defence.
 Counterclaim: A cross-claim which is not closely connected to Pf’s claim + it is in fact a
separate + independent claim. Not a defence.
 Order that may be made:
o Set-off:
 If the set-off is known to the Pf/could have been known to the Pf—dismissed
with costs.
 If Pf did not know/could not have known—unconditional leave to defend
with costs in the cause.
o Counterclaim:
 Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157
 A counterclaim is a cross-claim which a Df has against a Pf in respect
of which the Df can bring a separate action against the Pf if he
wishes to do so.
 It is a separate + independent action by the Df, which the law allows
to be joined to the Pf's action to avoid multiplicity/circuity of suits.
 Whether the Pf know/does not know of the counterclaim is
irrelevant, since a counterclaim is not a defence + arises from
something unrelated to the case.
 The Court will award SJ to the Pf with a stay of execution until
disposal of counterclaim.
 Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ 322
 A Pf cannot enforce a judgment until a counterclaim is heard +
disposed off.
 Note position in Singapore: In Kim Seng Orchid Pte Ltd v Lim Kah Hin (trading as Yik Zhuan
Orchid Garden) [2017] SGHC 4, a 4-step test was propounded
o Step 1: Whether the counterclaim is plausible
 The court should first consider whether the counterclaim is plausible, i.e.
whether it is reasonably possible for the counterclaim to succeed at trial.
 If the counterclaim is not plausible, then its presence ought not to stand in
the way of the plaintiff obtaining SJ of its whole claim, without any stay
pending the determination of the counterclaim.

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 If plausible, proceed to Step 2.

o Step 2: Whether the plausible counterclaim amounts to a defence of set-off
 If the Court finds that the plausible counterclaim does amount to a defence
of set-off, then unconditional leave to defend should be granted.
 If the counterclaim does not amount to a defence of set-off, then the Court
may proceed to Step 3.
o Step 3: Whether the plausible counterclaim is sufficiently connected to the claim
 Court may then consider whether there is a connection between the claim
(for which SJ is sought) and the counterclaim which it has considered to be
plausible.
 If that counterclaim arises out of quite a separate and distinct transaction/it
is wholly foreign to the claim or there is no connection between the claim +
counterclaim, the court should generally grant summary judgment of the
whole claim, without a stay pending the determination of the unconnected
counterclaim.
 If the court is satisfied of the degree of connection between the claim +
counterclaim, it may proceed to Step 4.
o Step 4: Whether there are grounds for a stay of execution in the light of the
connected
+ plausible counterclaim.
 If the court considers that there is really no defence to the claim + that as a
consequence the Pf would be put to needless expense in proving its claim,
the court should generally grant summary judgment of the whole of the
claim.
o Difference with M’sian position
 Starts immediately with a counterclaim, not looked as a crossclaim first (Dr
Su: Which makes sense as when you draft a counterclaim, you don’t call it a
crossclaim, you refer to it as a counterclaim. It is then for the lawyer to argue
if it is a set-off or not).

(d) Order 14 r 3: “there ought for some other reason to be a trial of that claim”
 Sometimes, a Df may not be able to raise any triable issue, set-off, technical objections, etc.
 BUT Court still has discretion to refuse SJ where there ought to be some other reason to be a
trial of that claim.
 Miles v Bull [1968] 3 All E.R. 632
o There was a farmhouse which belonged to the husband—but occupied by his wife
(husband wife was separated).
o The husband sold the property, unbeknown to his wife.
o He then brought an action for possession of the property against her + now sought
SJ.
o At trial, the wife could not raise any triable issue/set-off/technical objections etc—
she could only raise that the possession proceedings seemed to be a device to evict
her.
o Although there was no triable issue, there ought for some other reason to be a trial.
o Reason: All the relevant facts were in control of the Pf + Df had no knowledge of the
facts. There were circumstances which required to be investigated by process of trial
+ cross-examination.
o SJ not given but a trial was initiated instead.
o Megarry J: “Order 14 is for the plain and straightforward, not for the devious and
crafty”.
 Concentrate Engineering Pte Ltd v UMBC Bhd [1990] 3 MLJ 1

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o Followed Miles v Bull

(e) D’s defence arouses suspicion

 If Df raises triable issue + Court believes it’s a sham—SJ is given to Pf with costs.
 If Court is unsure if triable issue is genuine/sham, Court may:
o Grant conditional leave to defend with payment in to Court of the whole/part of the
Pf’s claim in X number of days, in default, judgment to Pf with costs.
o Df is given leave to defend (No SJ) but there is a condition—Df has to pay either
whole/part of Pf’s claim as security in X number of days.
 Fieldrank Ltd v Stein [1961] 3 All ER 681
o If the Df’s defence raises suspicion, the court will order a conditional leave to defend
where the Df pay into court the whole of the amount claimed by the Pf.
o A defence that raises suspicion is one that nevertheless left the court with a real
doubt about the defendant's good faith + would like to protect the Pf, especially if
there is not grave hardship on the Df in being made to pay money into court.
 Alliance etc v San Development Sdn Bhd [1974] 2 MLJ 94
o The defence put up by the Rps was a sham defence and there was very little
substance in the Rps' claim to a right of set-off + counterclaim.
o The learned trial judge should have granted the Rps leave to defend conditional
upon their paying into court the amount of the applicants' claim.
 Law Mun & Ors v Chua Lai Seng [1984] 2 MLJ 328
o If conditional leave is given in a hearing before a Judge in Chambers can the same
judge hear the main action?
o Yes—the contention that a judge who gives leave to defend upon terms should
thereafter not hear the case at the trial is not supported by any authority. The
contention is also not calculated to facilitate the efficient disposal of cases but rather
to delay the business of courts even further.

(f) The case is one of construction

 Documents:
o Esso Standard Malaya v Southern Cross Airways [1972] 1 MLJ 168
 Construction of documents would be suitable for SJ if it was a short matter
of construction involving a few documents.
 Case involved interpreting 3 letters—suitable for SJ.
 Statutes:
o Fadzil v Universiti Teknologi Malaysia [1981] 2 MLJ 196
 Applied Esso Standard Malaya case.
 Would be suitable for SJ if it was a short matter of construction involving a
few statutory provisions.

(g) Can the court determine questions of law?

 European Asian Bank v Punjab & Sind Bank [1983] 2 All ER 508 (CA)
o There was no arguable defence, Court granted Pf SJ against the Df.
o Principles: Since O.14 has set out the circumstances in which the Court should give SJ
for a Pf, any discretion conferred on the Court by that rule was only of the most
residual kind.
o Even if the appeal raised a point of law, the Court would hear full argument + decide
it even though by doing so it would determine the outcome of the substantive
proceedings.

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 Chong Ngam Sen v Yeoh Bah Chee [1981] 1 MLJ 161

o Where therefore there is a question of law raised and remained to be determined,
leave to defend should be given.
 European Asian Bank was applied by the Supreme Court in Malayan Insurance (M) Sdn Bhd
v Asia Hotel Sdn Bhd [1987] 2 MLJ 183
o Where the issue raised is solely a question of law pure + simple without reference to
any facts or where the facts are clear and undisputed the court should exercise its
duty under O.14 as in any other cases and decide on the question of law.
o This is so even if the issue of law raised is a difficult one. If the court after considering
the argument is satisfied that it is really unarguable then the court should grant SJ.
 These cases are now academic—we now have O.14A which provides a summary procedure
for cases involving points of law/construction of documents/statutes.
 O.14A: Parties may apply to Court if it concerns questions of law/construction of documents
—Court may allow summary procedure.
 If in exam, must explain cases then O.14A.
 O.14A does not provide procedure but same procedure as under O.14 applies.

(h) Can an injunction be granted in an application for SJ?

 Yes.
 Binariang etc Sdn Bhd v I & P Sdn Bhd [2000] 3 AMR 3198 (CA)
o There is no restriction preventing a Pf from obtaining an injunctive relief in SJ. An
injunctive relief is possible under O.14 proceedings.
o Conditions to fulfil:
 Df has entered appearance;
 SOC was served on Df;
 Application for SJ must be supported by a valid affidavit; and
 Application must be heard by a Judge.
 Microsoft Corp v Yong Wai Hong [2008] 3 MLJ 309
o The Resp's objection that a perpetual injunction ought not to be granted on a
summons for judgment was without merit because by virtue of O.29 of the RHC
1980, nothing prohibits the grant of a final injunction on a summons for judgment.

ORDERS THAT THE COURT MAY MAKE AND THE CIRCUMSTANCES WHEN THEY WOULD BE MADE

(a) Notice of application dismissed with costs – O.14, r.3(1) + O.14, r.7
 Where Pf’s claim is excluded by O.14, r.1(1)
 Where Df raises triable issue that was known/could have been anticipated by the Pf
 Where Df raises set-off known/could have been anticipated by Pf
 Where notice of application was not served in within time limit
 Where Pf served notice of application/affidavit wrongly
 Where Pf served defective affidavit (Doesn’t comply with O.14, r.2(1)—Chai Cheong Kam)
 Where Pf files notice of application after Df files defence (delay)

(b) Adjournment and leave to amend/file fresh affidavit but Pf to pay Df costs thrown away
 Where there has been short service
 Where there has been defective service
 Defective affidavit
 Defective SOC

(c) Unconditional leave to defend and costs in cause – O.14, r.4(3)

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 Where the Df raises a triable issue/set-off which was not known/could not have been
anticipated by Pf
 Court exercises discretion under O.14, r.3—there ought for some other reason to be a trial

(d) Leave to defend on payment into court of whole or part of claim in x days to abide event
with costs in cause; in default, final judgment and costs – O.14, r.4(3)
 When Df’s defence arouses suspicion

(e) Judgment for P with costs execution stayed until trial of counterclaim – O.14, r.3(2)
 Df raises counterclaim
(f) Judgment for P with costs – O.14, r.3(1).
 No triable issue, set-off, counterclaim, technical objection, etc. (SJ given)

Defendant to pay into court

 Guidelines that must be followed:
o Yorke Motors v Edwards [1982] 1 All ER 1024
1. Court must thread with caution because if Df is forced to pay money into
Court, it is good as giving judgment against him
2. Burden of showing that he has no money to pay is on the Df. Df must make
full + frank disclosure of financial situation
3. Not enough for Df to say that he is on legal aid
4. Df must show that it is impossible for him to pay into Court, it is not enough
to say it is difficult for him to pay

Can the Court dismiss Pf’s main action?

 Pf proceeds by way of Order 14 against D to enforce a contract. At the hearing for summary
judgment of court takes the view that there was no concluded contract. May the court
dismiss P’s suit?
 Diamond Peak Sdn Bhd v Tweedie [1980] 2 MLJ 31
o In a SJ hearing, Court can only dismiss a SJ application—not the main action.
o This is because in a SJ hearing, the only function of the Court is to determine if a SJ
should be granted.
o It is not the Court’s function to dismiss the Pf’s action in a SJ application.

Setting aside O.14 judgment against a party who does not appear at the hearing
 What if a Df/his lawyer does not appear at the hearing?
 Court may hear Pf’s SJ application + grant the SJ.
 O.14, r.11: Any judgment entered in default can be set aside but Df must explain why he was
not present at the hearing.

Appeals
 Both Pf + Df may appeal
o Huo Heng Oil Co v Tang Tiew Yong [1987] 1 MLJ 139
 Appeal is a rehearing.
 O.56: A person who is dissatisfied with a decision of a SAR can appeal to a High Court Judge
in Chambers.
 S.68 CJA: Can further appeal to the CoA
o Leave may be required.
 S.96 CJA: Final appeal to FC
o Leave must be obtained.
 UMBC Bhd v Pembinaan KSY Sdn Bhd [1993] 3 MLJ 45 SC

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o Where triable issue as a matter of fact or evidence (as opposed to law) “it is most
unlikely” that an appellate court would interfere with the discretion of the Judge.

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II. SUMMARY JUDGMENT UNDER ORDER 81

What is a SJ under O.81?

 A procedure where a Pf can obtain a SJ against a Df without going to a trial

When is O.81 applicable?

 O.81, r.1(1):
In any action begun by writ indorsed with a claim
(a) for specific performance of an agreement (whether in writing or not) for the sale,
purchase or exchange of any property, or for the grant or assignment of a lease of
any property, with or without an alternative claim for damages; or
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such an agreement, the
plaintiff may, on the ground that the defendant has no defence to the action, apply
to the Court for judgment.
 Must look at:
o Subject matter of Pf’s claim; and
o Remedy that Pf is claiming for.
 Subject matter of Pf’s claim must involve:
o Sale/purchase/exchange of any property; OR
o A grant/assignment of a lease of property.
 Pf must be claiming for:
o Specific performance;
o Rescission; OR
o Forfeiture/return of deposit.
*With/without a claim for damages

Procedure for Obtaining Summary Judgment

(a) Preliminary requirements
(b) Commencement
(c) Service
(d) Affidavit requirements
(e) Hearing

(a) Preliminary requirements

 Writ must have been issued + served on Df.
 SOC must have been issued + served on Df.

(b) Commencement
 O.81, r.2(1): Pf applies by way of notice of application supported by affidavit (unlike O.14, no
mention of Form 57+13).
 O.81, r.2(2): Notice of application must be attached with a minute of judgment (draft of
judgement that Pf is asking from Df).
o Failure to comply with O.81, r.2(2) not fatal (Sova Sdn Bhd v Kasih Sayang Realty
Sdn Bhd [1988] 2 MLJ 268)

(c) Service
 Mode: O.81 is silent on mode of service—∴ governed by O.62, r.6.

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 Time limit: O.81, r.2(3) states that notice of application + affidavit must be served on Df
within 14 days from the date the application is issued by the Court.
o Stricter than O.14—O.14 mentions time limit is 14 days after receipt of sealed
application.
(d) Affidavit requirements
 Must verify the facts of the Pf’s claim.
 Must contain a statement that in the Pf’s belief the Df has no defence.
 Must be made by a person who can swear positively on the facts (must be able to state facts
within his personal knowledge, not matters which were informed to him).

(e) Hearing
 Exact rules + principles in an O.14 SJ hearing applies to O.81.

Differences in Procedure between Order 81 and Order 14

 A SJ under O.14 is more general—a SJ under O.81 caters to specific cases.
 There are 3 preliminary requirements under O.14 but only 2 under O.81—O.81, r.1(2): As
soon as writ is served – appearance not necessary.
 Affidavit under O.81, r.2(1) must be made by someone who can swear positively as to facts—
cannot contain hearsay.
 An application under O.81 must be attached with the minutes of the judgment sought—
O.81, r.2(2).

III. SUMMARY PROCEEDINGS FOR POSSESSION OF LAND (ORDER 89)

What is a SJ under O.89?

 Provides a summary process for recovery of possession of land.
 O.89 enables a Pf to recover his possession of land without having to prove his case as trial
(usually a drastic order, as recovery of possession of land is usually contentious).
 Rationale: Usually used to deal with squatters.
 O.89 is unique as it can be used against Dfs whose names are not known.
 O.89 provides for a fast + economical way for recovery of land.

Ambit of Order 89
 O.89, r.1—procedure under O.89 cannot be used against the following categories of people:
o Tenants
o Tenants holding over (persons who were your tenants, but tenancy expired + they
refuse to move out)
o Licensees (persons on your land because you gave them a license)
o Persons who have entered Pf’s land with consent
 Zaibar Auto (M) Sdn Bhd v Shell Trading Sdn Bhd [1996] 2 MLJ 221 (CA)
o O.89, r.1 of the RHC has always been read as applying to squatters.
o It does not apply to tenants who are holding over, one who enters upon land or who
remains in occupation with the consent of the applicant under the order or any
predecessor in title of such an applicant, or persons who are in occupation under a
legitimate expectation of receiving, from the state authority, issue documents of title
to the portions they occupy.
Procedure
(a) Commencement
(b) Service
(c) Hearing

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(a) Commencement
 Not an interlocutory application—O.89 itself can be a mode of commencement.
 Commenced by an OS in Form 8A supported by an affidavit.
 Affidavit must state:
o Pf’s interest in the land;
o Circumstances in which the land had become occupied without license/consent; and
o Pf does not know the names of the persons occupying the land.
(b) Service
 If Dfs are named:
o Served under O.10, r.1 (personal service).
o By leaving a copy of OS + affidavit at premises.
o Serve in any other manners Court may direct.
 If Dfs are not named:
o Affix a copy of the OS + affidavit on the main door/some conspicuous path of the
premises.
o Put documents into sealed envelopes + if not practicable, place into letterbox at the
premises (envelope must be addressed to occupiers).
(c) Hearing
 OS to be heard before a Judge (Not SAR/Dept. Registrar).
 Usually squatters don’t turn up in Court, Judge will then hear Pf’s side (will hear squatters
side too if present).
 Judge will give an order under Form 195 (form for immediate possession).

See (i) Bahari bin Taib & Ors v PTG Selangor [1991] 1 MLJ 343.
(ii) Titular Roman Catholic Bishop of Penang v Stephen Ramachandran [1994] 3 MLJ 4.
(iII) Cheow Chew Khoon v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457.
(iv) Zaibar Auto (M) Sdn Bhd v Shell Trading Sdn Bhd [1996] 2 MLJ 221 (CA).
(v) Shaheen bte Abu Bakar v PKNS [1996] 1 MLJ 825.
(vi) Lee Beng Lai v Tetuan Tokoyaki Property Sdn Bhd [2002] 3 MLJ 287, CA.
(vii) Fullrise Resources Sdn Bhd v Ng Ah Toh [2004] MLJU 187.
(viii) Bitromax Corp Sdn Bhd v Amil bin Salleh [2005] 1 MLJ 780.
(ix) Yap Chiang v Koh Sau Choon [2008] 8 CLJ 63.
(x) Ng Chin Eng v Penghuni-Penghuni di Premis No 39 Kampung Sira [2010] 1 LNS 662.

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