(Issue, Power, Procedure, Legal Principle, Submission)

JULY 2019

Ques 1

(a)

• Cause of action: tort of defamation, tort of malicious falsehood, breach of contract as Dogma
unilaterally terminated the contract 3 years earlier
• Element of cause of action: Lim Kean v Choo Koon – 3 ingredients:
1) Person who can sue (Capacity to sue)
2) Person who can be sued
3) Material facts to entitle the plaintiff to succeed
• Defamation: D is Dato’ Hangat Cepat. There is defamatory statement, publication and it refers to the
P. Panda Secure Sdn Bhd can sue. Under s.8(1) CLA 1956, all causes of action survives, except
defamation which does not survive a deceased person. Hence, Dato’ Hangat Cepat who has passed
away cannot be sued
• Malicious falsehood: malicious intent, false statement, damage. Dato’ Seri Samy Vellu v Pernerbitan
Sahabat (M) Sdn Bhd. It is done in bad faith? Subjective, not easy to prove. S.8(1) CLA, survives.
Malicious falsehood can be taken against Dato’ Hangat Cepat’s estate since he has passed away.
• Tort of inducement of breach of contract: not easy to prove against Dato’ Hangat, Loh Holdings v
Peglin Development – there must be direct or indirect interference, D must have knowledge about
the contract, intention to interfere.
• Breach of contract: it is probable cause of action against Dogma. Company can be sued under s.20
CA 2016
➢ s.6(1)(a) LA 1953 – 6 years. OTF, Panda has to initiate its action within 6 years from 14 April
2018. The last date for Panda to initiate its action falls on 13 April 2024

(b)

• It shall appropriately be commenced by writ, as there is dispute of facts, pursuant to O.5 r.2

(c)

• O.62 r.4 – service on corporation writ is to be served at the registered office by post. The service by
Panda Secure Sdn Bhd is by registered post to Dogma’s registered address
• Issue of service: Summit Company v Nikko Products – change of registered address is effective on
the date the change is launched, which is 3/1. Hence, this will be the ground for setting aside JID of
appearance (Dogma can set aside)
• Procedure to apply for setting aside the JID for appearance: O.13 r.8 – court has absolute discretion.
➢ Dogma may apply to set aside within 30 days after receipt of the JID: O.42 r.13
➢ If crossed 30 days, apply extension of time under O.3 r.5, if not, can apply as of right O.42 r.13.
Apply by way of NASA, serve on P.
• Principle: In setting aside of JID, the court should determine whether the JID is regular or irregular?
If is regular, D must show defence on merits. If is irregular, then the order can be set aside as of
right.
• OTF. Evans v Bartlam – always liable to be set aside, because it is given in default of the procedure,
not given on merits. It is irregular judgment, can be set aside of right, because the judgment is
irregular. D shall set aside 30 days from time of service of judgment

(d)

• Dogma can apply under O.14A to dispose Panda’s action based on the decision in the case of Joint
Management Body and res judicata.
• O.18 r.19(1)(d) – abuse of process of court, res judicata. Asia Commercial Finance v Kawal Teliti –
res judicata is a matter adjudged, and its significance lies in its effect of creating an estoppel. On the
other hand, Khatijah Binti Md Ibrahim v Allen Choong Ching Yet – an action commenced to re-
litigate or contradict a final judgment in an earlier action amounts to abuse of process of the court.
• One of the criteria for res judicata is that it must be a final judgment/decision. OTF, the decision is
still pending appeal and not final. Hence, principle of res judicata cannot be applied. If is before pre-
trial stages, O.18 r.19 apply by NASA to strike out the claim. (If is at the trial, all application also can
be made O.33 r.2)

(e)

• O.34 r.2(3) – secure just, expeditious, economical disposal. If not follow the court’s discretion, D can
apply to strike out P’s claim (can apply either to P or D). Dogma may on the next case management,
31 July 2019 should apply orally, or at the same time put in formal application by NASA in Form 57
and strike out P’s claim / seek dismissal against P’s claim for non-compliance with the directions.
• O.34 r.2(3) – Dogma can seek dismissal of such action. Court can dismiss the action on 31 July 2019,
if by then, Panda’s solicitor is not there.
➢ If Panda’s action is dismissed, Panda may file a fresh action if the limitation period has not
expired
• O.34 r.5 – cannot adjourn more than 3 times
• Dogma may also apply to strike out P’s action under O.18 r.19 on the ground that Panda has no
cause of action. Procedure is by NASA: O.32 r.1

Ques 2

(a)(i)

• O.12 r.4 – the memorandum of appearance was filed within 14 days after service of writ (inclusive)
• O.5 r.6(2) – a private limited company can sue or be sued but it must act through a solicitor. The D
can only be sued by appointing a solicitor
• O.12 r.1(2) – company can only enter appearance by a solicitor
• Thus, the filing and service of memorandum of appearance and defence were not in compliance
with the ROC 2012 due to not appointing a solicitor
• Also, the filing of the defence did not comply with O.18 r.2(1) as it was filed more than 14 days after
filing the memorandum of appearance

(a)(ii)

• O.12 r.4 provides that D must enter appearance 14 days after service of writ.
• Since the calculation of 14 days is inclusive of the day of service of writ, the defendant filed
appearance on 13 June 2019 is valid, however, it is as good as no appearance due to non-
compliance with O.12 r.1(2) for not appointing a solicitor.
• By right, the P can enter judgment in default of appearance. However on the facts, the default
judgment cannot be entered because of the nature of cause of action, the P is claiming specific
performance of the contract and alternatively for damages. O.13 r.6 – P should proceed with the
action as if the D had entered an appearance.
• The D had served statement of defence on 1 July 2019. Under O.18 r.2, the time limit for serving the
defence is 14 days after time limited for appearing, which is 13 June 2019. Hence, the expiry date for
serving defence is 27 June 2019. (As of exam date, 24/7) Hence, P may apply to court for judgment
in default of defence under O.19 r.7, by way of NASA, then only after the hearing and exercise of
discretion then the court will grant specific performance, which will be a final judgment.
Alternatively, court will grant damages which is interlocutory in nature, where P will have to
proceed to O.37 for assessment of damages.

(b)

• Art.121 FC – 2 High Courts of coordinate jurisdiction, namely High Court of Malaya and High Court of
Sabah & Sarawak
• Local jurisdiction for each of these High Courts are provided in s.3 CJA 1964, HC of Malaya at
Peninsular Malaysia while HC of S&S at Sabah and Sarawak states
• To determine the local jurisdiction of each of these High Courts, resort to s.23(1) CJA 1964
• OTF, since the High Court has coordinate jurisdiction which is independent and separate, Philip may
not be able to transfer the case from High Court at Kuala Lumpur to High Court at Kota Kinabalu.
• Hap Seng Plantations – only can transfer within jurisdiction (Malaya and S&S is separate)
• Philip may not apply under Para 12 Schedule of CJA 1964 or O.57 ROC 2012 for the power of High
Court to transfer. This is because Hap Seng held that statute or delegated legislation cannot
overrides Federal Constitution, Art.121 must be followed
• However, Philip can file afresh the action provided that time has not lapsed.

(c)

• Appellant file notice of appeal, respondent can file cross appeal

• O.55 r.8 – Respondent may file notice of cross appeal in Form 113 by contending that the decision
of the Sessions Court should be varied.
• Kabushiki Kaisha Ngu – it is incumbent on the respondent to file a separate Notice of Appeal if it
wanted the decision to be reversed or set aside, rather than by filing a Notice of Cross Appeal.
• O.55 r.2 states appeal is re-hearing, O.55 r.8 is not re-hearing, it only confine to variation of decision
• OTF, Defendant has grounds to object on the basis that there is restriction on the use of cross
appeal. P should start a fresh appeal if want to appeal against both liability as well as quantum of
damages.

(d)

• The developer is advised that he may take stakeholder’s interpleader proceedings

• Since there is no suit yet, the Developer may apply by way of OS supported by affidavit as stated in
O.17 r.3(1) with reasons in O.17 r.3(2):………. Has no intetest……
• O.17 r.4(1) provides that the OS must be served personally on Company A and B at least 7 days
before the hearing date/return day
• O.17 r.10 – Order for discovery may be made under O.24
• O.17 r.11 – if go for trial, O.35 shall apply to the trial and the court may give judgement or order in 1
of the forms in Form 30

Ques 3

(a)

• Param can still enforce the consent judgment as it is within 12 years but no interest can be claimed
as it is over 6 years. 3 June 2013 <<< 12 years to enforce >>> 3 June 2025 (s.6(3) LA 1953).
• 6 years = 3 June 2019, Now is 1 July 2019, past 6 years O.46 r.2(1)(a) – required leave of court to
enforce a judgment as 6 years have lapsed
• Procedure to apply leave: apply by ex parte NASA, affidavit shall state grounds:
1) It is still within the limitation period
2) The judgment debtor was paying for 60 months, 6 months have passed therefore leave is
required for the balance
3) The judgment creditor is not sitting on the judgment
• Principles: Malayan Banking Bhd v Chong Hin Trading – P shall not sleep on his rights, showing
intention to execute the judgment. Affin Bank – sufficient reasons must be showed for the delay in
enforcing the judgment
• Hence, leave should be granted

(b)

• Provision: O.14A only QOL and QOC

• Procedure: P apply NASA
• Criteria: no dispute of facts. Lembaga Pembangunan Industri Pembinaan Malaysia v Konsortium
JGC Corp – no dispute of facts. There must be no substantial factual disputes left to be resolved

• O.33 r.2 & r.5 – normally done right before the trial, render the whole trial unnecessary. Preliminary
issues, eg: QOL, QOF or both
• St Rajah and Anne Lim

(c)

• First Phang has to commence a writ action against the contractor and the architect and engineer in
Form 2 (O.6 r.1 ROC 2012) and serve the writ on each one personally: O.10 r.1
• Since the architect and engineer have refused to hand over the technical drawing to Phang, Phang
can apply to the court under O.24 r.7(1)-(4) for an order of discovery of the documents. Application
is by notice of application supported by affidavit: O.32 r.1
• r.8 – Discovery will only be ordered if necessary. In this case it is submitted that it is necessary and
Phang will be given the technical drawing

(d)

• O.20 r.5(2) – power on Court’s discretion to grant leave to make amendment after limitation period.
Circumstances can be seen in:
➢ O.20 r.5(3) – amendment to correct name of party may be allowed, if it is not misleading or
cause any reasonable doubt as to identity of the person
➢ O.20 r.5(4) – amendment to alter capacity, if capacity was existed at the date of issue of writ
➢ O.20 r.5(5) – add or substitute cause of action if the new cause of action arises out of the same
facts
• Hong Leong Finance Bhd v Low Thiam Hoe – sought to introduce 2 new and distinct defences on
eve of trial (after close of pleading). D bears burden of producing material and cogent reasons to
explain why the change was sought so late and was not sought earlier

Ques 4

(a)(i)

• Pat may enter judgment in default of appearance as Daniel failed to enter appearance (O.12)
• Pat wants vacant possession of the shophouse, may enter by virtue of O.13 r.4 which is final in
nature (damages and quantum have been determined)
• Pat would need to submit:
1) O.13 r.7 – Form 12
2) Affidavit in Form 135, and
3) Judgment for possession in Form 75 para (d)
• Once all the above has been submitted, the judgment in default of appearance is entered pursuant
to O.13 r.4
(a)(ii)

• Pat cannot enforce judgment against Daniel before obtaining judgment against David, as stated in
O.13 r.4(2)

(b)(i)

• Once appearance is defaulted, may enter judgment in default under O.13 r.2 which is interlocutory
in nature for damages to be assessed.

(b)(ii)

• Procedure for assessment of damages: O.37 r.1(1) – within 1 month from the date of judgment,
apply to Registrar for directions by way of Notice of Application for direction supported by affidavit.
• After direction has been given, notice of appointment for assessment of damages in Form 62A shall
be served to all parties, and procedure for assessment for damages will commence

(c)

• The total amount of the 3 invoices is RM90,000, thus can be heard by Magistrate Court. (S.90 SCA
1948 – does not exceed RM100,000)
• Element of cause of action: Lim Kean v Choo Koon – 3 ingredients:
1) Person who can sue (Capacity to sue)
2) Person who can be sued
3) Material facts to entitle the plaintiff to succeed
• OTF, P has valid COA for sales of goods and delivery due to non-payment by D
• Besides, limitation period. S.6(1) LA 1953 – 6 years. OTF, 1st and 2nd invoices are time-barred. 3rd
invoice is not time-barred.
• Time-barred invoices can be overcome by s.26 LA 1953 if there is acknowledgment by D. OTF, on 1st
June 2019, verbal agreement was reached between the parties in which D agreed to settle 50% of
total amount outstanding within 30 days, and WhatsApp message was sent to D confirming the
terms of settlement, but nothing on the facts suggest that D did acknowledged in writing and signed
(s.27 – the acknowledgement must be in writing and signed). Yam Kong Seng v Yee Weng Kai –
Acknowledgment by SMS held valid and enforceable under Electronic Commerce Act 2006. Since D
remained silent, it is unlikely there is a fresh accrual of action.
• However, the P do have a valid cause of action against D in respect of the 3rd invoice that is issued
on 4 November 2013 for RM30,000

(d)

• Time
• Hassan wants to add Abdul as co-defendant to apportion the liability
• However, not in all circumstances could bring a person as a co-D if test not fulfilled
• If cannot, bring under 3rd party proceedings to avoid multiplicity of proceedings, or start a fresh
action

Ques 5

(a)

(i) Affidavit is evidence as far as interlocutory application is concerned. There must be strict compliance
with the rules. OTF, there is non-compliance with O.41 r.1(4) for omission to state P’s occupation
and address in the affidavit. O.2 r.3 – since there is no substantial miscarriage of justice or prejudice
to D, the court should not allow the preliminary objection by D. Also, under O.1A, the court shall
have regard to the overriding interest of justice and not only to the technical non-compliance. In
O.41 r.4, with the leave of court, the court may allow the affidavit to be used as evidence. Besides,
the court can also order for P to file supplementary affidavit to cure the defect. Hence, the P can
successfully overcome the objections
(ii) (putting cart before the horse) O.32 r.13(2) only provides for filing and service of the affidavit, this
affidavit is filed under O.14 r.2. Hence, it is just a technical argument, under O.2 r.3, no miscarriage
of justice. Thus, since the affidavit is just to a support the notice of application, the rules only
provide for file and serve, it does not stipulate for the date of the affidavit, therefore this will not
cause any prejudice to the D. Furthermore, this is O.14, the issue D should be raising is does he have
the triable issue. OTF, D’s objection cannot stand.
(iii) (side note: O.41 r.5(1) – For substantive application, need personal knowledge)
O.41 r.5(2) – For interlocutory application, may not need personal knowledge, can contain hearsay
evidence provided that source and grounds of information must be stated (must state the source of
information). O.14 r.2(2) – affidavit may contain statements of information or belief (=hearsay) with
the sources and grounds stated. See Form 13. Hence, P can overcome the objections.

(b)

• Ahmad filed a notice of appeal against the decision of Sessions Court, which is an appeal under O.55
• Rashid’s preliminary objection is based on O.2 r.3 for the appeal to be struck out due to late service
of the amended notice of appeal. There is no substantial miscarriage of justice or prejudice to the D
on the basis that it is only a grammatical error, the notice of appeal has already been filed and
served. The D is aware that there is a notice of appeal, what has not been served on him is just
amended notice of appeal only, the main notice of appeal is still remained the same except the for
the grammatical error.
• Secondly, Rashid was aware and attended the hearing for application of leave to amend the notice
of appeal as it is an inter parte application. Thirdly, Ahmad served the record of appeal on Rashid,
O.55 r.4, the amended notice of appeal should have contained in the record of appeal. Fourthly,
Rashid has served the amended notice of appeal immediately after discovering the omission, 10
days before the hearing date of the appeal.
• Today, under O.1A, the court should have regard to the overriding interest of justice
• Moreover, Bar Council Ruling 2019 11.04 – notice of preliminary hearing should be given not later
than 4 days before hearing, this has not complied by Rashid
• In conclusion, there is no substantial prejudice, the preliminary objection should be overruled.

(c)

• O.18 r.8 – a party shall specifically plead performance, release, an relevant statute of limitation…

(d) O.59

(i) Cost in the cause = cost in the interlocutory proceeding cost

(ii) Cost in any event = cost to be determined only after the conclusion of the case
(iii) Mareva injunction = prohibit the defendant from disposing off the assets in order to answer to the
claim of the P

Ques 6

(a)(i)

• Stay of execution. S.73 CJA 1964 tgt with r.13 RCA 1994
• A litigant once obtained judgment has an accrued right in the judgment and is entitled to enforce
the same notwithstanding there is an appeal pending. // A litigant who has obtained judgment is
always entitled to rip the fruits of his litigation notwithstanding there is an appeal pending.
• Procedure? Where to apply? Court of first instance. If refused, then to Court appealed to. OTF, NASA
to HC, if refused, is in COA, Notice of Motion supported by Affidavit. Affidavit shall state grounds: Jet
Sdn Bhd is facing a winding up proceedings
• Test: special circumstances: Seragoon , Jasausa. Principle to decide whether there is special
circumstances? Leong Chee Kong
1) Granting of stay is on case-by-case basis, discretionary
2) Nugatory principle. Appeal will be nugatory that respondent will not be able to restore to
original position. If company goes into winding up, will be having difficulty in recovering back the
money: See Teow Guan
3) To preserve the status quo
4) Appeal from interlocutory application or after a trial? OTF, it seems like it is after trial
• Submission: if the likelihood is strong that Jet will be go into winding up, it will be difficult for Ahmad
to get back the appeal if he success in appeal. As a concession, Ahmad may pay the money to the
solicitors who are acting for Jet Sdn Bhd pending the outcome of the appeal, with the undertaking
from the solicitors that the money will be refunded in the event Ahmad success in the appeal.

(a)(ii)

• Issue: Discovery in aid of execution

• O.48 – can only discover, no order for payment
• or s.4 Debtors Act 1957 read tgt with O.74 r.11A.. – can discover + order for payment

(b)(i)

• Precautions for summary judgment O.14 application?

1) SOC served
2) Appearance entered by D
3) Case must be in O.14 // case must not come under O.14 r.1(2) and (3)
4) Affidavit must be in compliance with O.14 r.2(1)
5) Must not delay
6) Not against government
7) No defence or triable issues

(b)(ii)

• O.14 r.4(1) – show cause by way of affidavit or otherwise

• O.14 r.3(1) – triable issue / there ought for some reason to be a trial of the claim. “triable issue” is
where there is a bona fide issue that needs to be tried, as in Ng Yek Seng. “ought for some reason to
be a trial of the claim” = Concentrate Engineering – cheque forgery, no summary judgment as
waiting for police to complete their investigation

Ques 7

(a)

• 2 types of injunction: perpetual injunction is given after judgment, temporary injunction is just for
the time being, interim, from date granted until remedy or judgment given.
• Interlocutory Prohibitory Injunction, it is a case of urgency because the transaction is to take place in
one week’s time, O.29 r.1(2) ex parte notice of application (bears higher burden) supported by
affidavit O.29 r.1(2A). File Certificate of urgency to expedite the hearing, get early date to hear the
matter
• The affidavit must be signed by the deponent before the Commissioner of Oath under O.41. OTF,
Fiona is not available. To overcome, urgently prepare the affidavit and send to Australia. O.41 r.12
can be filed. O.41 r.13. Alternatively, ask Fiona to sign Power of Attorney and give to someone here
in Malaysia who can attend to the matter.
• Legal principles: In granting prohibitory injunction, Keet Gerald –
1) Serious question to be tried: bona fide
2) Balance of hardships: Fiona will suffer greater injustice if injunction not granted
3) Damages are adequate remedy as it involves land
4) P must give undertaking as to damages
5) Discretionary
• Submission: court should grant an injunction, Mareva injunction can be granted, as land itself is
subject matter of the suit. Alternatively, it is possible to lodge a caveat provided that Fiona has a
caveatable interest.

(b)

• Issue: is the service regular? and effect of JID that has been entered

XYZ Sdn Bhd

• Pg 84 Additional Materials
• O.62 r.4 – service on corporation. The process server did not explain the nature of the document to
the office cleaner. The service is not proper, no doubt he has leave it at the registered address but
nobody to accept the service of the writ of summons.
• Hence, the JID is irregular and D, XYZ can set aside as of right

Ali
• O.10 r.1 – personal service O.62 r.3 or AR registered post
• A.R. registered post = prepaid registered post, but different with registered post
• OTF, service by pos laju is not in accordance with O.10 r.1, it is courier which is not accepted as
method of service. (Jaya Asahak v Munggau Lawai – pos laju is a species of prepaid registered post,
but just HC decision)
• Hence, JID is irregular and Ali can set aside as of right

Wong
• Where service cannot be effected under O.10 r.1, the court may make an order in Form 133 for
substituted service under O.62 r.5 if it appears that it is impractical to serve on Wong personally.
• Practice Note 1/1968 – 2 calls are to be made
• Bank Bumiputra v Lorrain Esme Osman – can apply SS if D went out of jurisdiction to evade service
• OTF, the P knows D is out of jurisdiction, in China. As it is an ex parte notice of application, requires
it to be full and frank disclosure. OTF, the substituted service order is bad, Wong should apply to set
aside the substituted service order because there is no full and frank disclosure. Wong can use O.32
r.6 or O.12 r.10 to challenge SS order
• Since the service is bad, it is as good as no service, the JID cannot stand and collapse on its own