NOV 2019

Ques 1

(a)

• Generally, there are 2 modes of commencing process, namely writ and originating summons (O.5
r.1)
• Since there are substantial dispute of facts in the action for defamation, Abu is advised to
commence his legal action against Hassan by writ pursuant to O.5 r.2
• In Ng Wan Siew – similar to the facts, there is a need for oral evidence and that witnesses are likely
to give conflicting evidence, writ is the proper choice

(b)

• Abu is claiming for damages in excess of millions in Ringgit Malaysia

• In s.65(1)(b) Subordinate Courts Act 1948, Sessions Court can only try matters up to RM1 million
• Thus, Abu is advised to commence his action in a High Court because High Court has unlimited
monetary jurisdiction
• Under O.6 r.1, the writ shall be in Form 2 since the action is in High Court

(c)

Whether Hassan has defamed Abu

• The issue is whether the words shouted by Hassan to Abu, “You are the worst Chairman I have ever
seen” in front of the residents of community amount to defamation
• Abu is advised that defamation is a tort which Abu has to show that the words shouted by Hassan
are defamatory, it refers directly to the Abu, and it is published.
• In order to determine whether the words amount to defamation, Abu is advised to invoke O.14A r.1
or O.33 r.2 for the court to determine whether the aforesaid words amount to defamation
➢ Under O.14A, the court may determine any question of law or construction, application is by
notice of application supported by affidavit or can be made orally in an interlocutory application
to the court (O.14A r.2)
➢ If O.33 r.2 is invoked, application is made before the trial by notice of application supported by
affidavit
• If the court decides that the words amount to defamation, then Abu may commence an action
against Hassan

Whether Abu may apply for summary judgment

• Abu cannot apply for summary judgment in a claim for defamation pursuant to O.14 r.1(2)(a)

Whether Abu may obtain judgment where Hassan did not deny making the statement
• Hassan did not deny making the statement, it means that he has admitted the facts in making the
statement but claimed it was his duty to express view and refused to apologize
• If the court decides that the statement is defamatory, Abu may apply to the court for judgment
based on Hassan’s admission and the application is by notice of application supported by affidavit
(O.27 r.3)
• The court will allow judgment if there was an unequivocal admission of facts but will not allow
judgment if there are issues to be tried or there is a defence: Aetna Universal Insurance Sdn Bhd

If Hassan has entered a defence whether Abu may strike out Hassan’s defence
• Hassan did not deny making the statement but claimed it was his duty to express his view and
refused to apologize.
• If Hassan files his defence and the court decides that the statement is defamatory, Abu may strike
out his defence and obtain judgment under O.18 r.19(1)(a) ROC 2012.
• Application is by notice of application supported by affidavit: O.32 r.1

Ques 2

(a)

• As a general rule, no discovery against stranger, Government Linked Company (“GLC”)

• However, if GLC is innocently mixed up with any tortious acts of the wrongdoer, he is under duty to
assist Paul by disclosing the identity of the unknown culprits and giving him full information:
Norwich Pharmacal Co
• Thus, Paul can request by letter to GLC to disclose the name of the unknown culprit who has sold
unauthorized copies.
• If GLC refused to disclose the identity of the unknown culprit, Paul can now obtain discovery of the
unknown culprit from GLC pursuant to O.24 r.7A ROC 2012, application is by way of originating
summons supporting by affidavit as provided in O.24 r.7A(3)

(b)

• O.55 r.2 provides that an appeal is a re-hearing and notice of appeal must be given within 14 days
from the date of the decision
• Generally, the appellate court will be slow in interfering (Sudram v Arjunan) and court will consider
all the factors
• The appellate court will interfere where:
a) The fact is inconsistent with the evidence given
b) Relevant evidence is not considered
c) The requirements to apply for an injunction are not satisfied
• Based on the facts, in order to obtain the interlocutory injunction (Anton Piller Order), Paul has to
satisfy that:
i) the requirements under O.29 r.1(2) & (2A) are satisfied
ii) the
Ques 3

(a)

• High Court judge will decide whether to give adjournment or proceed with the trial.
• In granting order for adjournment, O.35 r.3 provides that the court has discretion to adjourn the
trial and this is affirmed in Insas Bhd v Ayer Molek
• Practice Direction 1/2011 – adjournment is not allowed unless agreed by both parties. OTF, consent
is needed from Plaintiff and Defendant for the case to be adjourned.
• Alternatively, since defendant is absent, High Court judge may proceed with the trial and give
judgment for the Plaintiff (O.35 r.1(2))
• If the court gives default judgment, the D may, within 14 days apply to set aside the judgment giving
good reasons: O.35 r.2(2). The court will consider factors under O.35 r.2(3). OTF, the judgment will
unlikely be set aside by the D as the reason for his absence was because of the flight delay due to
bad weather. The D is expected to arrange sufficient time in order to secure his attendance in court.
• However, if D is absent but D’s solicitor is present, the trial will proceed: Goh Choon Lye
• OTF, D is absent but his solicitor is present, the HC judge will not give default judgment to the P but
will proceed with the trial.

(b)(i)

• O.2 r.3 – court shall not allow any preliminary objection only on the ground of non-compliance of
the Rules unless there is substantial miscarriage of justice.
• The purpose of notice of preliminary objection is to prevent surprise and to give an opportunity for
the other party to prepare his submissions
• Bar Council Rulings 2019 11.04 provides that a notice of preliminary objection is to be given not
later than 4 clear days before hearing
• Bukit Melita Sdn Bhd – failure to give notice of preliminary objection would amount to a waiver of
the party’s right to raise the objection
• It is submitted that Plaintiff’s failure to give notice of preliminary objection would amount to a
waiver of the Plaintiff’s right to raise the objection. Thus, court will unlikely allow the Plaintiff’s
counsel to raise the preliminary objection on the day of the trial.

(b)(ii)

• The Defendant only sent a letter of offer to settle the Plaintiff’s claim for RM500,000.00 and did not
serve the offer to the Plaintiff in Form 34 as required in O.22B r.1 Rules of Court 2012
• Also, the Plaintiff agreed to the offer by letter and did not serve the acceptance in Form 36 as
required pursuant to O.22B r.6(1)
• The offer to settle by the Defendant is not valid and the acceptance by the Plaintiff is also not valid
• Hence, the court would not allow the Defendant’s application to strike out the Plaintiff’s claim.
Ques 4

(a)(i)

• Since YL Sdn Bhd (YL) owns 3 shopping malls in different states and the particulars given by Jack are
not clear for YL to prepare its defence, YL can request Jack to provide for further and better
particulars pursuant to O.18 r.12(1) ROC 2012
• Under O.18 r.12(5), the order shall only be made after service of defence, unless in the opinion of
the court, it is necessary or desirable to enable the defendant to plead or some other special reason.
OTF, the particular of the alleged negligence is required for YL to prepare defence as YL owns 3
shopping malls in different states, and Jack has only mentioned that he fell down in a shopping mall
owned by YL.
• YL first has to request the particulars by sending letter to Jack under O.18 r.12(6). If this letter was
not sent, sufficient reasons must be shown to court, otherwise it is fatal.
• Under O.18 r.12(3), if the request is refused or insufficiently answered, then YL can apply to the
court by notice of application supported by affidavit enclosing a copy of the request letter.
• Then, the court may grant an order of particulars which shall be given in Form 31 by Jack to YL.

(a)(ii)

• YL Sdn Bhd (YL) is advised that it may take any of the following steps:
1) Apply to the court to add E&E Sdn Bhd (EE) as a co-defendant; or
2) Take 3rd party proceedings to claim indemnity from EE
3) Dispose of this suit as soon as possible under O.14 ?

1) Application to add EE as co-defendant

• In O.15 r.4(1) & r.6(1), YL and EE may be joined where there arises some common question of law or
fact and the rights to relief arise from the same or series of transaction
• Following the decision in Hee Awa v Syed Muhamad, YL may apply to the court to add EE as a co-
defendant
• Procedure is by notice of application supported by affidavit with leave of the court: O.15 r.6(2)(b)

2) 3rd party proceedings

• YL may bring third party proceedings against the third party, EE for any contribution, indemnity,
relief or any question to be determined under O.16 r.1(1)
• After YL has entered appearance, YL may issue a third party notice in Form 18 or 19 together with a
copy of the writ and pleadings (O.16 r.3(2)).
• No leave is required if YL issues a third party notice before its defence: O.16 r.1(2)
• Then, EE must enter appearance in Form 21 and YL shall apply to the court for directions: O.16 r.4(1)
• If YL defaults in applying for third party directions, EE may apply after 7 days by notice of application
in Form 22 to set aside the third party notice: O.16 r.4(2)
• On an application for directions, the court may exercise its power under O.16 r.4(3) and any order
made or direction given shall be in Form 23 (O.16 r.4(5))
• However, if EE does not enter an appearance, he is deemed to be bound by any judgment against
him: O.16 r.5

(b)

• General rule is that parties are bound by the four corners of their pleadings and are not allowed to
raise issues not pleaded, as in the case of State Government of Perak v Muniandy and O.18 r.10
• One of the exceptions is that a point that was not pleaded but was raised without any objection at
the trial: OCBC v Philip Wee
• However, if a point not pleaded is raised at the trial and the other party objects then that point
cannot be allowed to be raised: Hamit bin Matusin
• Dato’ Hamzah v Omega Securities held that radical departure from pleadings is not allowed

Ques 5

(a)(i)

• Hassan has served the writ on Ali and Ahmad by prepaid AR registered post pursuant to O.10 r.1(1)
• It is submitted that the writ was not duly served on Ali has the acknowledgement was signed by
Mohan and not Ali.
• It is also not duly served on Ahmad as the posting on him was not successful.
• Hassan is advised to apply for substituted service. Under O.62 r.5(1), the court may make an order in
Form 133 for substituted service if it appears to the court that it is impractical to serve on Ali and
Ahmad
• Application shall by way of notice of application supported by affidavit in Form 134 stating the fact
on which the application is founded, mere statement that defendant is evading service is
insufficient: O.62 r.5(2)
• Practice Note 1/1968 provides that Hassan has to make at least 2 calls/attempt at reasonable times.
2nd call is made either by sending AR registered letter stating when Hassan would come again, or
during 1st call, giving letter to any occupant stating when Hassan would make 2nd call/visit
• Re Nirmala(s) – Practice Note 1/1968 does not apply if Ali and Ahmad’s whereabouts are unknown
• After order for substituted service is made, Hassan must follow the steps directed by the court
• Leow Boke Chooi – P had not complied with the terms in the SS order by not posting the SOC on
court notice board, even though newspaper advertisement has been done. Held: not good SS, JID is
irregular and was set aside
(a)(ii)

• Hassan may enter judgement in default of defence against Ali and Ahmad under O.19 r.2(1) as the
claim is for liquidated damages
• Hassan may after the expiration of the period for Ali and Ahmad to serve the defence, enter final
judgment in form prescribed in Form 75, as stated in O.42 r.5

(b)

• Under O.22A r.1 – interim payment means payment by the D to the P of any damages or debt
(excluding costs)
• Josu Engineering Construction Sdn Bhd – “interim payment” = payment made by D to P on account
of final damages, that is before the assessment of damages has been completed and is paid mainly
to overcome financial difficulties which a P might experience pending final assessment.
• In O.22A r.3(1), the court may order the D to make interim payment not exceeding the claim for
damages if it is satisfied that the D has admitted liability, the P has obtained judgment against the D
for damages to be assessed, or if the action proceeded to trial, the P would obtain judgment for
substantial damages against the D (meaning that P has a clear-cut case)
• The court will make an order for interim payment against the D if the D is a person falling within one
of the categories under O.22A r.3(2), namely a person who is insured of the plaintiff’s claim, a public
authority, or a person whose means and resources are such as to enable him to make the interim
payment
• The court will only order an interim payment if procedure in O.22A r.2 is followed, which provides
that the P may after service of the writ on the D and after the time for D to enter appearance, apply
to the court for D to make an interim payment.
• The application is by notice of application in Form 33 but may be included in an application for
summary judgment under O.14
• The application shall be supported by affidavit stating particulars as provided in O.22A r.2(3)
• Standard of proof is on a balance of probabilities: Mediahouse Sdn Bhd v Koh Kim Suan
• The court may make order for D to pay reasonable proportion: David Chelliah v Monorail (M) Tech
Sdn Bhd – P only has to show that he would obtain judgment for substantial damages against D

(c)

• Sessions Court has no jurisdiction on matters stated in O.1 r.8(1), where it shall only be heard by the
High Court
• Under s.69 Subordinate Courts Act 1948, Sessions Court has no jurisdiction in respect of immovable
property, enforcement of trust, accounts, declaration except under s.65(5)(b) and s.73, grants of
representation, legitimacy, guardianship and divorce
Ques 6

(a)

• Chong is advised he may apply for an ex parte Anton Piller injunction to enter the premises of PLC
Co to inspect and remove vital materials before an inter parte application for an injunction could be
made.
• O.29 r.1(1) – application may be made before trial
• If the case is urgent as in this case, it must be certified by Chong’s solicitor
• The court has discretion to grant it according to requirement in Anton Piller KG case
• If satisfied, the court will grant an order in Form 53
• The validity of the order is 21 days unless sooner revoked or set aside: O.29 r.1(2BA)
• Enforcing Anton Piller Order

(b)

• Ong Yoke Eng – the court may at its discretion allow a witness to be recalled, if there is no surprise
or prejudice to the D
• Tan Kah Khiam v Liew Chin Chuan – trial judge may exercise his discretion to permit the reopening
of a party’s case will very much depend on the stage at which the application is made.
➢ It may be more likely that discretion may be exercised at the stage where the application is
made immediately after a party closes his case.
➢ But it may be less likely that discretion will be exercised where the application is made after the
D have closed their case and just before the trial judge is about to pronounce his judgement.
• Thus, Plaintiff is allowed to reopen his case

(c)

• s.33(4) & 35 Government Proceedings Act 1956 – no execution can be made against the
government
• s.19 Pensions Act 1980 – pensions cannot be attached
• s.11 Workmen’s Compensation Act 1952 – insurance paid to injured worker cannot be attached.
Now, SOCSO Act
• s.3(1)(f)(ii) Debtors Act 1957 – cannot attach salary of Judgment Debtor
➢ However, if salary is more than RM200 per month, excess may be attached
• s.51 Employees Provident Fund Act 1991 – money inside EPF cannot be attached, if withdrawn, not
protected
• s.142 Merchant Shipping Ordinance 1952 – cannot attach wages
• s.35(1) Bank Simpanan Nasional Act 1974 – cannot attach or garnish money in BSN without the
consent of the court
Ques 7

(a)

• As a general rule, party intending to vary/set aside shall make an application to court and serve it on
the other party within 30 days after receipt of the judgment under O.42 r.13
• Once a judgment is sealed, the court has no power to alter, vary or set aside because the court is
functus officio: Hock Hua Bank Bhd
• However, Badiaddin bin Mohd Mahidin – the court has inherent power under O.92 r.4 to reopen a
sealed judgment where the judgment is made in breach of a substantive provision of a written law
or where there is a breach of the rules of natural rights
• Thus, the Plaintiff may file a fresh action to rectify the omission in the judgment which has been
perfected

(b)

• Pleadings should contain facts only but not law. This can be seen in Middlesex County Council v
Nathan – submission of law in statement of claim is ignored and excluded
• However, O.18 r.11 provides that raising a point of law is allowed
• Under O.18 r.7(1), facts, not evidence should be pleaded. Only material facts should be pleaded, as
see in Re Estate v Lee Siew Kow – material facts are those which will put defendant on his guard. In
Bruce v Odhams Press, material facts are those necessary to formulate a complete cause of action
• Under O.18 r.7(2), documents or conversations are not to pleaded unless they are material
• Matters which shall be specifically pleaded can be seen in O.18 r.8(1)
• Tasja Sdn Bhd v Golden Approach Sdn Bhd – Limitation period under s.2 PAPA 1948 need not be
specifically pleaded as limitation period is absolute. But the limitation period which is not absolute
under LA 1953 must be specifically pleaded
• Parties are bound by their leadings and are not allowed to raise issues not pleaded

(c)(i)

• Bakar’s objection is not valid on this ground because at the summary judgment hearing, the court
can determine questions of law under O.14A r.1
• Malayan Insurance (M) S/B v Asia Hotel S/B – court will not hesitate to decide on the question of
law even if the issue of law raised is a difficult one
• Ahmad’s application for summary judgment will be allowed if:
1) Bakar has entered appearance, SOC served on Bakar and Form 13 served: O.14 r.1(1)
2) Bakar has no defence or no other reason there ought to be a trial: O.14 r.3(1)
(c)(ii)

• Bakar’s objection is valid on this ground because O.14 r.2(1) ROC 2012 states that the affidavit in
Form 13 must verify the facts and state that in the deponent’s belief there is no defence to that
claim except as to the amount of damages claimed: National Company for Foreign Trade v Kayu
Raya Sdn Bhd.
• Chai Cheon Kam v Hua Joo Development Co Sdn Bhd – Compliance is mandatory. Held: Notice of
Application dismissed with costs. If so, Ahmad’s application for summary judgment may be
dismissed and his action may go to trial: Diamond Peak Sdn Bhd v Tweedie
• However, following British American Life Insurance Bhd v Pembinaan Fal Bhd the court may look at
the merits of the case rather than on non-compliance of the rules and allow Ahmad to file a
supplementary affidavit which complies with O.14 r.2(1).
• Today, likely to be O.1A – overriding interest of justice and O.2 r.1(3) – discretion of court to cure

(c)(iii)

• Delay is not a ground to dismiss Ahmad’s application for summary judgment but Ahmad has to give
good reasons for the delay as held in – Krishnamurthy v Malayan Finance Corp
• MSSB v Ghazi b. Hasbollah – delay by P was not fatal due to D’s bare denial, court has discretion by
looking at circumstances of each case
• If Ahmad has good reasons for the delay and Bakar has no defence, then summary judgment will be
given to Ahmad: O.14 r.1(1) ROC 2012
• However, if Bakar has a good defence or some other reason there ought to be a trial, then the
application for summary judgment will be dismissed [O.14 r.3(1)] and the action will go to trial
(Diamond Peak Sdn Bhd v Tweedie)