LIA4013 –CIVIL PROCEDURE II

TUTORIAL QUESTIONS

Question 1

Explain the scope of Order 14 of the Rules of Court 2012.

Question 2

Briefly outline the procedure for summary judgment under Order 14 of the Rules of Court 2012.

Question 3

(a) Patricia is suing Daniel in the High Court. Patricia has applied for summary judgment pursuant to
Order 14 of the Rules of Court 2012. What order is likely to be made in the following separate
and independent situations?

(i) Daniel will rely on fraud as a defence;

(ii) Daniel will raise a counterclaim that is known to Patricia;
(iii) Daniel will raise a set-off that is known to Patricia; and
(iv) Patricia’s claim is for damages for false imprisonment.

You must substantiate your answer by making reference to the provisions in the Rules of Court
2012 and/or case law.

Question 4

P is suing D in the High Court. P has issued a notice of application for summary judgment under Order 14
of the Rules of Court 2012. Five separate and independent situations are listed below:

(i) At the hearing of the notice of application D is unable to raise any triable issue or set-off.
Has the court the discretion to give D unconditional leave to defend?

(ii) At the hearing of the notice of application, the court finds that P has no cause of action
against D. May the court strike out P’s writ and statement of claim?

(iii) P’s notice of application was served on D’s wife at D’s house. Is the service valid?

(iv) At the hearing of the notice of application, D raises a counterclaim known to P. What
order is likely to be made by the court?

(v) P’s claim is based on fraud. What order is likely to be made by the court?

Question 5

(a) Pam is suing Don in the High Court. Pam has applied for summary judgment under Order 14 of
the Rules of Court 2012. State the order that is likely to be made by the court in the following
separate and independent situations. You must substantiate your answers by making reference
to the provisions in the Rules of Court 2012 and/or case law, if any.

(i) Pam’s claim is for malicious prosecution.

(ii) At the hearing of the notice of application, Don raises fraud as a defence.

(iii) At the hearing of the notice of application, Don raises a triable issue. The triable issue
arouses the court’s suspicion.

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Question 6

P is suing D in the High Court. P has applied for summary judgment under Order 14 of the RC 2012.
Three separate and independent situations are listed below. State the order which is likely to be made by
the court at the hearing in each situation.

(i) At the hearing D raises a triable issue. The triable issue arouses the court’s suspicion.

(ii) At the hearing D is unable to raise any triable issue as to his liability. However, D is able
to raise triable issues on how P’s damages should be quantified.

(iii) P is seeking injunctive relief against D. D does not appear at the hearing.

Question 7

P is suing D in the High Court. P has applied for summary judgment under Order 14 of the Rules of Court
2012. At the hearing of P’s notice of application, D raises the objections stated below. Consider each
objection separately and state its validity and its likely effect.

(i) P’s case involves an allegation of fraud.

(ii) P’s case involves the construction of several documents.

(iii) P’s affidavit does not contain a statement that P believes that D does not have any
defence to P’s claim.

(iv) P issued his notice of application although P knew that D had a genuine counterclaim
against him.

Question 8

In Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157, the Federal Court explained
that a set-off and counterclaim are both cross claims. However, in the context of an application for
summary judgment, these cross claims are treated differently.

Critically examine the treatment of cross claims by the Federal Court in the context of a summary
judgment application.

Do you agree with the approach adopted by the Singapore High Court in Kim Seng Orchid Pte Ltd v Lim
Kah Hin [2017] SGHC 4 pertaining to the treatment of cross-claims in a summary judgment application?

Question 9

P has commenced an action by writ against the D in the High Court. P is seeking to rescind an agreement
that he had entered into with D. The agreement was in relation to the sale of a property. P believes that D
has no defence to the action and intends to apply for summary judgment.

Explain to P the procedural steps that he has to take up to the date of the hearing of his application.

Question 10

(a) Explain the scope and procedure for summary possession of land under Order 89 of the Rules of
Court 2012.

(b) Compare and highlight the procedural differences involving applications for summary judgment
under Order 14 and Order 81 of the Rules of Court 2012.

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Question 11

State the circumstances as to when Order 16 of the Rules of Court 2012 may be invoked.

Question 12

Piah commenced an action in negligence against Din in the High Court last month. Piah’s writ and
statement of claim had duly been served on Din. Din had also duly entered an appearance and served
his defence to Piah. Din now wishes to commence third party proceedings against Ella. Din wants to
seek contribution from Ella.

Advise Din as to the steps he has to take up to the stage of the hearing of the summons for third party
directions.

Question 13

P has commenced an action seeking damages against D for negligent breach of trust. D is unhappy
because E, the co-trustee has not been sued. D wishes to seek contribution from E by way of third party
proceedings under O 16 of the Rules of Court 2012.

Explain to D the procedural steps that he has to take up to the stage of the summons for third party
directions.

Question 14

P is suing D in the High Court. D wishes to commence third party proceedings against E.

(i) Explain to D the circumstances as to when he may add E as a third party.

(ii) Explain to D the steps that he must take if he wishes to commence third party proceedings
against E.

(iii) May E, as a third party, counterclaim against P?

Question 15

Prissy was a passenger in a car driven by Teona when the said car collided with a van driven by Dorothy.
The collision caused severe injuries to Prissy. Discuss the following matters separately:

(i) Prissy has commenced an action against Dorothy to claim damages for personal injuries. Prissy
has not joined Teona as a party because Teona is Prissy’s friend.

Discuss the possible ways AND state the relevant procedure how Dorothy may “involve” Teona in
the existing proceedings.
Assume that Dorothy has not served her Defence.

(ii) Prissy has sued Dorothy and Dorothy has joined Teona as a third party. Can Teona, as a third
party, file a counter-claim against Prissy?

Question 16

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(a) Ali is the owner of a motel. Recently, he found a Rolex watch in one of the rooms at the motel.
He is not sure of the true owner of the watch. Two of his motel guests are claiming to be the
owner of the watch. He is not sure as to which one of the claimants is the rightful owner.

Advise Ali as to the procedural steps that he should take to resolve the above problem.

(b) Explain what is meant by interpleader proceedings. State the stages of interpleader proceedings
in the High Court from the stage of commencement to the stage of judgment.

Question 17

Briefly outline the procedure for an application for an order for interim payment pursuant to Order 22A of
the Rules of Court 2012.

Question 18

Explain the rationale and application of an offer to settle under Order 22 of the Rules of Court 2012

Question 19

L and K are neighbours. Last week K began excavation work on his land. The excavation work has
affected the foundation of two buildings on L’s land. K intends to continue the excavation work for
another four weeks. L is afraid that his buildings will suffer serious damage if the excavation work is
continued. K has ignored L’s appeals to stop the excavation work. What steps may L take to compel K to
stop the excavation work? State the procedure and principles which are relevant.

Question 20

Explain the principles governing the granting of an

(i) ad interim injunction; and

(ii) Erinford injunction.

Question 21

Pierre owns a building situated next to Darius’ land. Two weeks ago, Darius commenced some
excavation work on his land. Darius’ excavation work caused some damage to the foundation of Pierre’s
building and Pierre fears that his building may collapse. Ten days ago, Pierre obtained an ex parte
interlocutory injunction against Darius to stop all excavation works. The hearing of the inter partes
interlocutory injunction application is scheduled to take place tomorrow.

(i) What factors will the court take into account in deciding whether an interlocutory injunction should
be granted in Pierre’s favour to last until the conclusion of the trial?

(ii) What grounds can be raised by Darius to set aside the ex parte injunction?

(iii) If the inter partes hearing is postponed for a further two weeks, what steps, if any, may Pierre
take to protect his interests?

Question 22

G obtained an Anton Piller order from the High Court against H. G attempted to enforce the order
yesterday. H refused to comply with the order. H told G that he would not allow G to enter his premises.
G seeks your advise on this matter. Advise G on the legal position. What steps may G take?

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Question 23

Mr Moneybags is a lawyer who has appeared for the defence in a number of leading criminal trials in
Malaysia. A book written by him entitled “Ten Famous Murder Trials in Malaysia” is about to launched
next month at a fashionable hotel in Kuala Lumpur by a well-known politician. Among the murder trials
discussed in the book is one in which an accountant, Datuk Kira, was charged with the murder of his wife,
Rose. Datuk Kira was subsequently acquitted of the crime by the court. Mr Moneybags’ book mentioned
above puts forward a theory that the actual killer of Rose was Datuk Kira’s brother, Dr Oobat, a medical
practitioner.

The book is published by Syarikat Berita Malang Bhd, a company registered under the Companies Act
2016.

Dr Oobat has obtained an advance copy of the book and knows of its contents. He comes to see you and
tells you that the allegations about him in the book are false and malicious. He wants to bring an action in
defamation against Mr Moneybags and Syarikat Berita Malang Bhd. Dr Oobat also asks you whether the
launch of the book and its sale can be stopped immediately.

Mr Moneybags left Malaysia in 2019 and has now become a permanent resident of South America. His
only asset in Malaysia, an oil palm plantation in Sepang, was sold in January 2021 and the proceeds of
sale are with his solicitor. Mr Moneybags will be in Kuala Lumpur for two days next month for the launch
of his book and also to receive the proceeds of sale of his oil palm plantation from his solicitor.

State briefly :-

(a) the steps you would take as Dr Oobat’s solicitor to stop immediately the launch and the sale of Mr
Moneybags’ book;

(b) the steps you would take as Dr Oobat’s solicitor to ensure that there are sufficient assets in Malaysia
for the purpose of execution of any judgment that Dr Oobat may obtain against Mr Moneybags;

Question 24

In December 2020 K obtained a Mareva injunction against L. L wishes to apply to court to discharge the
injunction. L seeks your advice on the legal position. Advise L on the grounds for discharging a Mareva
injunction. State also any procedure that is relevant.

Question 25

In November 2020 C sued B in the Sessions Court in Seremban. In December 2020 B filed a
counterclaim against C. The trial is about to begin tomorrow after it was adjourned on two previous
occasions at C’s request. Answer the following separate and independent questions:

(i) C intends to apply for another adjournment of the trial when it commences tomorrow. B has told C
that he will oppose C’s application. Advise C on this matter.

(ii) Assume that the trial commences tomorrow C and his counsel are not present in court. Assume
also that B is present in court and ready to proceed with his counterclaim. What orders are likely
to be made by the court?

Question 26

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S sued T in the High Court. A consent judgment was recorded before Ariff J last week. T is now
dissatisfied with the consent judgment. He wants the consent judgment to be set aside. Advise T on the
legal position. What steps may T take?

Question 27

(a) State any three exceptions when a judge may depart from the rule that provides that “costs shall
follow the event”.

(b) R sued S and T in the Sessions Court. At the end of the trial the court gave judgment for R
against S. The court dismissed R’s claim against T. S is insolvent. What order as to costs is
likely to be made by the court?

(c) What orders as to costs are likely to be made by the court in the situations stated below?

(i) P entered a regular judgment in default of appearance against D. D applied to set aside
the default judgment. The default judgment was set aside by the court on the ground that
D had a prima facie defence to P’s claim.

(ii) Q sued R for damages for breach of contract. At the end of the trial of Q’s suit the court
dismissed Q’s claim on the ground that the alleged contract was an illegal transaction.

Question 28

Briefly outline the circumstances and the procedure for making an application for an order for security
for costs under Order 23 of the Rules of Court 2012.

Question 29

Loh Yah is Sue’s solicitor. In 2013, Sue obtained a money judgment in the High Court against Masni.
Masni has failed to satisfy the judgment debt.

Masni owns a house in Jalan Molek, Ipoh. Masni is also a partner in a successful business in Ipoh. Sue
is aware that Masni has RM300,000 in a savings account with Bank Anda. However, Masni owes Bank
Anda RM90,000 under an overdraft account. Sue also owes Bank Anda RM50,000 under another
overdraft account.

What steps, if any, may Loh Yah take to enforce the aforesaid judgment? State also Bank Anda’s rights
of set-off, if any.

Question 30

Encik Moto is Kayu’s solicitor. In 2018 Kayu obtained a money judgment in the High Court against one
Mok. Mok has failed to satisfy the judgment debt.

Mok has RM167,000 in his account with the Employees Provident Fund. He owns a piece of land in
Klang. Recently Mok’s Mitsui car was destroyed in a fire. The car was insured with Senyum. To date
Senyum has not paid the amount claimed by Mok.

What steps may Encik Moto take to enforce the aforesaid judgment?

Question 31

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Soto is Peter’s solicitor. Peter recently obtained three separate High Court money judgments against (i)
Dilly for RM300,000, (ii) Danny for RM250,000 and (iii) Doris for RM450,000. Dilly, Danny and Doris have
failed to satisfy their judgment debts.

Dilly owns 30,000 shares in Syarikat Kaya Bhd. Recently, Dilly withdrew the amount standing to her credit
in the Employee’s Provident Fund. The aforesaid amount (RM100,000) is now deposited under Dilly’s
name in Bank Maju.

Danny owns a piece of land in Sepang.

Doris is a senior officer in a Government department and receives a monthly salary of RM9,500. Soto and
Peter have been unsuccessful in their discreet inquiries to discover Doris’ assets.

What steps may Soto take to enforce the said judgments against Dilly, Danny and Doris?

Question 32

Patrick is a solicitor from Singapore. His client had obtained a judgment for the sum of S$800,000
against one Davindran, a Malaysian from the Singapore High Court. Patrick is aware that Davindran
owns a number of apartments in Kuala Lumpur.

Patrick has instructed you to enforce the said judgment that was obtained in Singapore against Davindran
in Malaysia.

Explain to Patrick the steps that you will be taking and the grounds that may be raised by Davindran to
resist the above attempt to enforce the said judgment.

Question 33

With reference to the relevant statutory provisions and case law, discuss the principles governing the
granting of an order for a stay of execution pending the disposal of an appeal in a civil suit.

Question 34

Winnie successfully sued Kala for breach of contract in the Sessions Court. However, the Sessions Court
Judge only awarded RM8,000 to Winnie. Winnie is unhappy because she had claimed for RM80,000.
She now wishes to appeal against the decision to the High Court.

(i) Is the matter appealable to the High Court?

(ii) Assuming that the answer to the above question is in the affirmative, may an appeal lie all the
way to the Federal Court?

Question 35

Briefly explain the circumstances as to when an appeal may be brought to:

(i) the Court of Appeal; and

(ii) the Federal Court.

Question 36

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W sued T in the High Court for damages for breach of contract. Last week Benar J found T liable and
awarded RM280,000 as damages to W. T intends to appeal to the Court of Appeal. Answer the following
questions:

(i) Under what circumstances may the Court of Appeal reverse findings of facts by Benar J?

(ii) T wishes to raise illegality as a new point before the Court of Appeal. This point was not raised
before Benar J. Advise T on this matter.

Question 37

(a) A sued B in the Magistrate’s Court. A claimed a sum of money which he alleged that he had lent
to B. At the end of the trial of A’s suit the court dismissed A’s claim with costs. A intends to appeal
to the High Court. What further information do you require to determine whether A may appeal to
the High Court?

(b) C sued D in the High Court for damages for breach of contract. At the end of the trial of C’s suit
the High Court gave judgment for C and awarded RM300,000 to C as damages. Subsequently D
appealed to the Court of Appeal. Last week D’s appeal was dismissed by the Court of Appeal on
the ground that his memorandum of appeal did not comply with the requirements of the Rules of
the Court of Appeal 1994. D now intends to appeal to the Federal Court against the decision of
the Court of Appeal. Advise D.

Question 38

K sued L in the High Court. Last week the court dismissed K’s suit with costs. K intends to appeal to the
Court of Appeal.

(i) When is K required to obtain leave to appeal to the Court of Appeal?

(ii) Will K’s appeal act as a stay of execution? What requirements must K satisfy to obtain a stay of
execution?

Question 39

Lin sued Min in the High Court for damages for defamation. Min’s defence to Lin’s claim relied heavily on
the testimony of his (Min’s) principal witness, Lye. Last week the trial judge, Rajin J gave judgment in
favour of Lin and awarded RM 940,000 as damages. In his judgment Rajin J said that he disbelieved Lye
and that he rejected Lye’s evidence. Lin is unhappy with Rajin J’s decision and wishes to appeal.

Answer the questions below.

(a) What steps must Min’s solicitor take if Min instructs him to appeal to the Court of Appeal?

(b) Under what circumstances, if any, may the Court of Appeal reverse Rajin J’s finding that the evidence
of Lye was false?

(c) Assume that Min appeals to the Court of Appeal and that his appeal is dismissed by that court.
Assume also that Min wants to appeal further to the Federal Court. What are the conditions that must
be satisfied before he may appeal to the Federal Court?