BACHELOR OF LAWS AND SHARIAH (LLB AND SHARIAH) (HONS.

TUTORIAL/PRACTICAL

CIVIL PROCEDURE I (LAD 5033)

WEEK 8: SUMMARY JUDGMENT (ORDER 14,ORDER 14A,ORDER 83,ORDER 89)

NAME: NUR AINA AZMEEZA BINTI AZMI

MATRIC NUMBER: 1192053

KLB1/TLB3

1. Summarise in what circumstances can the summary judgment be obtained, and the
procedures involved. Support your arguments with relevant decided cases and laws.

Summary Judgement is a procedure where the plaintiff may obtain judgement from the
court without commencing a trial against the defendant. According to Order 14 of Rules of Court
(ROC) 2012, it is stated that the application by a plaintiff for summary judgement may be
obtained when the defendant has no grounds of defense to defend himself. Followingly, one of
the circumstances to obtain a summary judgement is when there’s no triable issue raised by the
defendant.

In the case of Ng Hee Thoong & Anor v Public Bank Bhd., it was mentioned by Gopal
Sri Ram CJA that summary judgement may be used only when there is no triable issue in the
case. Besides, in the case of Woolley Development Sdn Bhd v Mikien Sdn Bhd, it is also
mentioned by the court that the applicant for a summary judgment would need to show the court
that he is prima facie entitled to the said summary judgment whereby then the defendant must
show the reason the judgement should not be given against him. Accordingly, if the defendant
failed to show the reasons, it is implied that there is no triable issue hence the application for
summary judgement would be obtained.

In addition, according to Order 14 Rule 1 of ROC 2012, summary judgement may also
be obtained in every action begun by writ except a claim for libel, slander, malicious prosecution,
false imprisonment, seduction, or breach of promise of marriage or a claim that is based on
allegation of fraud. Besides, Order 14 Rule 1 of ROC 2012 also has limited the application for
summary judgement where summary judgement cannot be obtained through an action which
Order 18 applies.

Furthermore, summary judgement cannot be obtained against government, but the

government may avail the summary judgement as stipulated in Order 73 Rule 5 where it is
stated that an application against the government must not be made under Order 14 in any
proceedings against the government. Thus, summary judgement cannot be obtained when the
defendant is the government.

Therefore, in ensuring that the application of summary judgement can be obtained, the
plaintiff must ensure that there is no triable issue that is raised by the defendant whereby the
 plaintiff has established prima facie in the case, that the application does not fall under any
claims stated in Order 14 Rule 1 and that the defendant is not government otherwise the
application for summary judgement would not succeed.

Regarding the procedure for summary judgement, there are conditions that must be
fulfilled before applying to obtain the summary judgement. The conditions are that the statement
of claim has been served on the defendant and that the defendant had entered an appearance
whereby only when there is no triable issue raised by the defendant upon his appearance, then
the summary judgment may be obtained.

Then, an application for summary judgement must be made by notice of application

supported by an affidavit in Form 13 by verifying the facts for which the claim arises and
mentioning the deponent’s belief that there is no defense to the claim except the mentioning of
damages claimed whereby the affidavit must be served on the defendant within fourteen days
as stated in Order 14 Rule 2 of ROC 2012.

In the case of Chirgwin v Russell, the court contended that the affidavit must be made
strictly following the requirements stated under the rules yet if the affidavit becomes defective,
the defective affidavit can be cured by filling further affidavit. Besides, in the case of Ang Swee
Chuan v LimTeng Huan, the court stated that in applying the application for summary
judgement, the absence of the words in the applicant’s affidavit to assert in the deponent’s belief
that there was no defense to the claim was fatal as the words were mandatory and the court has
no discretion to make order for summary judgement if there is no such word. Hence, it shows
that by not following the procedures stated in Order 14 Rule 2 concerning the procedure of
summary judgement would be fatal and lead to failure of obtaining summary judgement.

In conclusion, although summary judgement in a way provides a prompt approach for

the plaintiff to obtain judgement without a trial, there’s a strict requirement and procedure that
must be complied with to obtain the judgement.

2. Ameera applies for Order 14 for non-payment of debt owed by Awie of RM100,000 under
ROC 2012.She asks your opinion regarding these issues:
a) factors that the court will take into account in considering O.14 application.
b) counterclaims, set off, in relation to that O.14 application.
Support your arguments with relevant decided cases and laws.

a) Factors that the court will take into account in considering O.14 application.

In considering the application of Order 14, the court first must consider the requirements
needed to be fulfilled under Order 14. This is illustrated in the case of National Company for
Foreign Trade v Kayu Raya Sdn. Bhd where the Federal Court stated that in every application
under Order 14, the court must consider whether the case comes within the Order, whether the
 plaintiff has satisfied the conditions under Order 14 namely the defendant must have entered
appearance, the statement of claim has been served on the defendant and that the affidavit in
support of the summary judgement application must comply with the requirement of rule 2 under
Order 14.

Besides, the Federal Court also mentioned that the case is not within the application
under Order 14 where no statement of claim has been served on the defendant, where the
affidavit in support of the application is defective where in fails to state the deponent’s belief that
there is no defense to the claim and that where the application is made against the Government.
Hence, if the applicant fails to satisfy one of the considerations, the application may be
dismissed.

In applying to the present situation, Ameera is applying for Order 14 for non-payment of
debt owed by Awie of RM100,000 under ROC 2012, Ameera must ensure that the statement of
claim against Awie must be served on Awie and that Awie has entered appearance before
applying for summary judgement. Besides, Ameera must also ensure that the affidavit in support
of the application has stated the deponent’s belief that there is no defense to the claim and the
affidavit must be served within 14 days to Awie. Since the application for summary judgement is
for non-payment of debt, it involves substantial dispute of facts and thus is begun by way of writ.
Therefore, her application regarding cause of action does fall under Order 14.

b) counterclaims, set off, in relation to that O.14 application.

Regarding counterclaims in relation to the Order 14 application, counterclaims are cross

claim which is not closely related to the same claim or different transaction and not closely
connected with the plaintiff’s claim which means a counterclaim is not a defense. If the
defendant can raise a counterclaim in application of summary judgement under Order 14, then
the court will still award summary judgement to the plaintiff but with a stay of execution until the
disposal of the counterclaim.

In the case of Ronald Quay Sdn Bhd v Maheswary Sdn Bhd, defendant made a
counterclaim which was more what the plaintiff claimed. The court held that the counterclaim by
the defendant is settled as the plaintiff has not returned a sum of money borrowed from the
defendant.

Furthermore, the roles between the defendant and plaintiff will also be reversed as the
defendant by making counterclaim is initiating a new claim against the plaintiff as if the
defendant is the plaintiff and vice versa which is stipulated under Order 15 Rule 2(1) of ROC
2012.

Meanwhile, for set-off in relation to Order 14, set-off is a cross claim which is closely
related, or it arises from the same claim as the summary judgement, closely related and the
same transaction which means a set-off is a defense. For instance, if a defendant raises a set
off, if the set off was known to the plaintiff or the plaintiff could anticipate it, the summary
judgement application will be dismissed with cost. In contrast, if the plaintiff did not know about
the set-off or could not have anticipated the set-off, unconditional leave to defense will be given
to the defendant.

This rule can be found under Order 18 Rule 17 where it is stated that set-off is a
defense to the whole or to a portion of plaintiff’s claim where the defendant has a claim to a sum
of money against the plaintiff in the same application for summary judgement. This shows that a
set-off may be described as a shield as it can be served as a defense in the application of
summary judgement.

In applying to the present situation, if Awie raises a counterclaim against Ameera,

Ameera’s application for the summary judgement may still be proceeded although due to the
counterclaim, there would be a separate cause of action where Ameera would be the defendant
and Awie would be the plaintiff. However, if Awie raises a set-off in the application of summary
judgement, Awie could reduce his liability against Ameera but if Ameera successfully obtains the
summary judgement despite the set-off claim by Awie, the set-off would come to an end and
Awie may not recover anything from Ameera.

Therefore, the application for summary judgement by Ameera is also depended on Awie
as after Ameera successfully applied complying with the procedures prescribed under Order 14,
the burden shifted on Awie to determine whether the application for summary judgement may be
obtained by Ameera.
 3. Prepare the cause papers for Summary Judgment under Order 14. There will be oral and
written submission on the application.
A) WRIT OF SUMMONS

WRIT (O. 6, r. 1)

IN THE MAGISTRATE COURT OF PETALING JAYA

Suit No of 2023

Between

Ameera (Plaintiff)

(IC NO: 980412)

and

Awie (Defendant)

(IC NO: 1998037658)

THE RIGHT HONOURABLE CHIEF

JUDGE OF MALAYA,

IN THE NAME OF THE YANG DI-PERTUAN AGONG

To: Awie

No. 4B, Jalan SR 2/8

Jalan Anjung Putra,

46505 Petaling Jaya, Selangor.

We command you that within fourteen days after the service of this writ on you, inclusive of the day
of such service, you do cause an appearance to be entered for you in a cause at the suit of AMEERA
and take notice, that in default of your so doing the plaintiff may proceed therein to judgment and
execution.

WITNESS the Suraya binti Sarip Registrar of the Court in the Magistrate Court at Petaling Jaya on the
28th day of May 2023.

…………………AINA…………….. ……………SURAYA…………………….

Plaintiff's Solicitors Registrar, Magistrate Court of

Petaling Jaya
 B) STATEMENT OF CLAIM

IN THE MAGISTRATE COURT OF PETALING JAYA

CIVIL SUIT NO:

BETWEEN

AMEERA
…PLAINTIFF

(IC NO: 980412-10-0912)

AND

AWIE
…DEFENDANT

(IC NO: 981224-03-7659)

STATEMENT OF CLAIM

1. The plaintiff, a corporate worker working at Samsong Sdn. Bhd, is demanding the
payment of debt to the sum of RM100,000 owed by Awie, the defendant who is a
corporate worker working at Watermelon Sdn. Bhd.

2. On June 23, 2022, the defendant borrowed a sum of money of RM100,000 from the
plaintiff under the agreement made and signed by both plaintiff and defendant where
the defendant must repay the debt within six months after the plaintiff served the
money to the defendant.

3. The plaintiff had served the money mentioned in the agreement on 1st July 2022
whereby the repayment is to be paid before 1st February 2023.

4. However, up to this date, the defendant has yet to pay the debt that he owed to the plaintiff
which amounts to the fact that the defendant has not paid the amount of debt of RM100,000
even after three months of the deadline mentioned in the agreement.

5. The plaintiff, therefore, claims:

i. The repayment of debt owed by the defendant amounting to RM 100,000

ii. Costs for issuance of the claim, in the sum of $200 and incidental to this claim
………28/5/2023………………… ……………Ameera………………

Date Signature of Claimant

……………1/6/2023…………... .………………Aina………………

Date of Filing Secretary

 C) NOTICE OF APPLICATION

IN THE MAGISTRATE COURT OF PETALING JAYA

Suit No of 2023

Between

AMEERA

(IC NO: 980412-10-0912)

…Plaintiff

and

AWIE

(IC NO: 981224-03-7659)

…Defendant

NOTICE OF APPLICATION

Let all parties concern attend before the Deputy Registrar on the day of 202 at
[am or pm] on the hearing of an application of Ameera, the abovenamed Plaintiff for an order as
follows:

(1) Pursuant to the Order 14, Rules of Court 2012, an order that the Plaintiff be at liberty to
enter final judgment in terms of prayers mentioned in Statement of Claim: -

(i) The repayment of debt owed by the defendant amounting to RM100,000.

(ii) Costs for issuance of the claim, in the sum of $200 and incidental to this claim.

(2) Costs of and occasioned by this application be provided for; and

(3) Such further of other orders or directions be made or given as this Honourable Court deems
just in the Circumstances.

The grounds for this application are as follows: -

 (a) The defendant appears/seems reluctant to take responsibility for the repayment of
debt owed by the defendant himself to the plaintiff amounting to RM100,000.
(b) The defendant also being considered as failure to comply with the agreement made
between plaintiff when the defendant did not pay debt he owed to the plaintiff.
(c) That the Defendant has no defence to the claim herein and the Plaintiff is entitled to
judgment under the Order 14 of the Rules of Court 2012.
(d) The affidavit affirmed by Awie on (date of affirmation) which is filed hereinshall be read
in support of this Notice of Application.

Dated the day of 2022

Entered No

Signature

Assistant Registrar,

Magistrate Court,

Petaling Jaya.

To:
The Defendant and/or his solicitors
Awie,

No. 4B, Jalan SR 2/8,

Jalan Anjung Putra,
46505 Petaling Jaya, Selangor.

This Notice of Application is taken out by Syafa & Partners, solicitors for the abovenamed Plaintiff
with business address at 28th Floor UBN Tower 10, Jalan P. Ramlee, 50250 Kuala Lumpur, Malaysia.
 D) AFFIDAVIT IN SUPPORT (FORM 13)

IN THE MAGISTRATE COURT OF PETALING JAYA

SUIT NO:

BETWEEN

AMEERA …PLAINTIFF
(IC NO: 980412-10-0912)
AND

AWIE …DEFENDANT
(IC NO: 981224-03-7659)

AFFIDAVIT IN SUPPORT

(Supporting Plaintiff’s application for Summary Judgment)

I, HASSAN (NRIC:890410-09-5075) is a Malaysia Citizen of full age with the residential address at
(Unit No.) Jalan Hulubalang 10, Taman Sentosa, 46505 Petaling Jaya, Selangor, do hereby solemnly
affirms and deposes as follows;
1. That I am a corporate worker working at Samsong Sdn. Bhd with the office address of Jalan
Balik Rumah, Taman Sentosa, 46505 Petaling Jaya, Selangor. I am duly authorized to affirm
this Affidavit on behalf of the Plaintiff.

2. While the defendant is a corporate worker at Watermelon Sdn. Bhd with a registered
address at No. 4B, Jalan SR 2/8, Jalan Anjung Putra, 46505 Petaling Jaya, Selangor.

3. The facts deposed in this affidavit are within my personal knowledge and/or information
and/or documents that I have seen or have access to, or information given to me unless
otherwise stated.

4. All statements stated here are within my own knowledge and also through the Plaintiff's
records to which I have access, unless otherwise stated.

5. I swear this Affidavit in support of the Plaintiff's Notice of Application for a Summary Judgment
against the Defendant.

6. I state that the Plaintiff is a corporate worker at Samsong Sdn. Bhd entered into an
agreement in writing with the defendant, a corporate worker at Watermelon Sd. Bhd. With
this regard, the plaintiff has entered contract with the defendant on or before June 23, 2022.
 a) The plaintiff agreed to lend money with the amount of RM100,00 to the defendant and
the defendant agreed repay the debt owed.

b) Both plaintiff and defendant agreed that the defendant will repay the plaintiff within six
months after the defendant received the money.

7. Despite numerous demands the defendant failed to repay the plaintiff the debt he owed to
the plaintiff.

8. I hereby affirm that the Plaintiff truly believes that the Defendant owes the Plaintiff the sum
of RM100,000 after borrowing and receiving the same amount of money from the Plaintiff as
requested in the Statement of Claim filed here.