Case Facts Held/Principle

Pengiran Othman Shah In this case, the appellants, who were twin brothers,
At page 310;
bin Pengiran Mohd inherited 3,835 acres of land in Karambunai, Sabah (2) The discretionary power to dismiss an action
from their mother and grandmother when they summarily under O 18 r 19 of the RHC and under the
Yusoff & Anor v
were still infants. The appellants’ father who was inherent jurisdiction of the court is a drastic power
Karambunai Resorts Sdn
Pengiran Othman, their relative and Minister of which should only be exercised in plain and obvious
Bhd (Formerly known as Federal Territory acted as the legal representatives.
cases. When a case is argued on the affidavit evidence
Lipkland (Sabah) Sdn available, it must become plain and obvious that the
Bhd) & Ors [1996] 1MLJ When they reached 16 years on 1982, they signed a case has no chance of success.
309 memorandum with the respondents to grant 99
years lease over 1500 acres of land. In October, the At page 311;
respondents paid various sum to the appellants in When a question of law becomes an issue, this in itself
COA - Gopal Sri Ram, NH
compliance with the memorandum. Both of the will not prevent the court from granting the
Chan and Siti Norma party had several other agreements after the first application, for as long as the court is satisfied that the
Yaakob JJCA memorandum. issue of law is unarguable and unsustainable, it may
proceed to determine that question.
However on 1994, the appellants sought a rescission
of all the agreements and a declaration that they Where the affidavit evidence discloses a dispute of
were all void on the ground that the appellants had facts, such facts must be analysed, and if they are
been undue influence. The respondents successfully found to be inconsistent with the undisputed
proved that the appellants had received contemporary documents or inherently improbable in
independent legal advice during the ten years of themselves, the court is entitled to reject those facts
transactions with the respondents. The court and proceed upon the undisputed contemporaneous
dismissed the appellants claim for undue influence. documentary evidence

At page 408;
Bank Negara Malaysia v  Claiming liquidated damaged for breach of The requirement under O 14 for the court to be
Mohd Ismail & Ors scholarship agreement
[1992] 1 MLJ 400  Breach of his undertaking to serve the
appellants for a period of ten years upon
SC – Mohamed Jemuri completion of his studies, the first
CJ, Mohamed Azmi and respondent resigned a few months after
Gunn Ghit Tuan SCJJ having commenced employment with them.
 SAR satisfied on the affidavit evidence that
there was no triable issue and accordingly
entered judgment against the respondents.
 On appeal, HC judge set aside order and
issued certificate of no further argument.
satisfied on affidavit evidence that the defence has not
only raised an issue but also that the said issue is
triable. The determination of whether an issue is or is
not triable must necessarily depend on the facts or the
law arising from each case as disclosed in the affidavit
evidence before the court.
Although in the normal way it is not appropriate for a
judge to attempt to resolve conflicts of evidence on
affidavit, this does not mean that he is bound to accept
uncritically, as raising a dispute of fact which calls for
further investigation, every statement on an affidavit
however equivocal, lacking in precision, inconsistent
with undisputed contemporary documents or other
statements by the same deponent, or inherently
improbable in itself it may be.
Under an O 14 application, the duty of a judge does
not end as soon as a fact is asserted by one party, and
denied or disputed by the other in an affidavit. Where
such assertion, denial or dispute is equivocal, or
lacking in precision or is inconsistent with undisputed
contemporary documents or other statements by the
same deponent, or is inherently improbable in itself,
then the judge has a duty to reject such assertion or
denial, thereby rendering the issue not triable. In our
opinion, unless this principle is adhered to, a judge is
in no position to exercise his discretion judicially in an
O 14 application.

The “Bunga Melati 5”  . appellant alleged that it had entered into a
[2012] SGCA 46 contractual relationship with the respondent,
under which the appellant would supply
COA, Chan Sek Keong CJ, bunkers to a number of the respondent’s
Andrew Phang Boon Leong vessels.
JA, & V K Rajah JA  Appellant did not receive full payment for
bunkers supplied, it commenced attachment
proceedings in the United States (“the US
proceedings”).
 The respondent applied to strike out the
appellant’s action in rem pursuant to O 18 r
19 of the Rules of Court or the court’s
Thus, apart from identifying the issues of fact or law,
the court must go one step further and determine
whether they are triable. This principle is sometimes
expressed by the statement that a complete defence
need not be shown. The defence set up need only show
that there is a triable issue.
Where the issue raised is solely a question of law
without reference to any facts or where the facts are
clear and undisputed, the court should exercise its
duty under O 14. If the legal point is understood and
the court is satisfied that it is unarguable, the court is
not prevented from granting a summary judgment
merely because 'the question of law is at first blush of
some complexity and therefore takes a little longer to
understand'
In our view, this analytical, fact-law distinction can
similarly be applied to O 18 r 19(1)(b) of the ROC or
the inherent jurisdiction of the court to strike out
unsustainable actions. Such a distinction helps to more
clearly elucidate what a court means when it holds that
an action is “plainly or obviously” unsustainable.
Applying this conceptual prism, a “plainly or
obviously” unsustainable action would be one which is
either:
(a)legally unsustainable: if “it may be clear as a matter
of law at the outset that even if a party were to succeed
 inherent jurisdiction, on the basis that it had
not been in a contractual relationship with
the appellant.
 Appellant’s claim in unjust enrichment was
held to be completely unsustainable. only in
a striking out application under O 18 r 19 of
the ROC would it be appropriate to
investigate whether the appellant had an
“arguable case” on the merits.
in proving all the facts that he offers to prove he will
not be entitled to the remedy that he seeks”; or
(b)factually unsustainable: if it is “possible to say with
confidence before trial that the factual basis for the
claim is fanciful because it is entirely without
substance, [for example, if it is] clear beyond question
that the statement of facts is contradicted by all the
documents or other material on which it is based”.