- Can you raise something you forgot to put in your affidavit?

o Re Balu case (Ask Hazeeq) 🡪 cannot

o Lim Securities (old one) 🡪 can je
- At the end of a hearing, what orders can the court make?
o Application of SJ dismissed with cost
▪ When claim is excluded under o.14 r.1(2)
▪ Where there is triable issue known or could have been anticipated by the
pl 🡪 Appadure case
▪ Df raises a set-off that is known or would have been anticipated 🡪
Permodalan Nasional
▪ Technical defectives
▪ Df is the govt of Malaysia
o Adjournment with leave to amend/file afresh
▪ Technical defectives (when the court does not take a serious mode)
o Unconditional leave to defend with cost in the cause
▪ Unconditional leave to defend v dismiss the SJ
▪ They are actually the same because in both situations, go to trial
▪ The only difference is in terms of cost. For dismissal, you are angry at
the pl and you ask them to pay. Under unconditional leave, no need pay
o Leave to defend on condition
▪ When the df arouses suspicions
● This is when the court is not sure whether you tipu ke betul
🡪o.14 r.4(3). It might be a triable issue but the court mcm tak
percaya sangat. SO court kena bagi benefit of the doubt
● Fieldrank case
o SJ to pl, but stay of execution
▪ When the df raises a valid counterclaims 🡪 o.14 r.3(2)
▪ Permodalan plantation: counterclaim is not a defence
▪ Whether a counterclaim is known or not known has no relevance
 ▪ In Kim Seng orchid case, BACA AND DISCUSS NEXT WEEK
o SJ to pl with cost
▪ No set off
▪ No triable issue
▪ No technical objections
▪ Nothing for the court to exercise its discretion
▪ No counterclaim
▪ Basically, this will happen if none of the above orders have happened
- If you apply for injunctive relief, can you get SJ?
o Pina Riang case: can
- The df admits liability, but question on the quantum. Can for SJ?
o Can because SJ only for liability
o Abel Consultant
- If someone pays you with a cheque and the cheque bounces, can claim based on the
cheque rather than the payment (because if claim based on payment, then dia boleh
counterclaim barang salah)
o Building of Flats v Naja case

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;
 
● SJ is only possible if the P have an unanswerable case or the D has no defence to P's
action
 o O14 r3 – the court will dismiss the application if the D satisfies the court that
there is an issue or question in dispute which ought to be tried or that there
ought for some other reason to be a trial of the claim.
o If the court is convinced that fraud is a valid triable issue, then Daniel has
successfully raised a triable issue.
 
● The court would have to determine as to whether the triable issue was known to the P
or not:
o Whether the triable issue (fraud) was known to Patricia
● Notice of application will be dismissed with costs as having known the
triable issue, he should not have applied for SJ.
● The case will proceed for trial.
 
o Whether the triable issue (fraud) was not known to or could not have been
reasonably anticipated by Patricia
● The court may grant Daniel an unconditional leave to defend and costs in
cause as stipulated in O14 r4(3)
● The case will go for trial and no party would have to pay the costs at this
stage. The costs will be postponed until the end of the trial.
● The party who loses the whole case would have to pay the costs.
o O14 r 1(2)(b) - for it to be caught under this, fraud must be a COA
 
 
(ii) Daniel will raise a counterclaim that is known to Patricia;
 
● CC is a cross-claim which is not closely connected to P's case which arises from a
separate and independent claim from P's claim - Permodalan Plantations Sdn Bhd v
Rachuta Sdn Bhd.
● According to this case, CC is not a defence. Since a CC is not a defence to P's claim,
whether P knows about the CC or did not know about the CC is irrelevant.
● The court will order the grant of SJ with costs against Daniel but with a stay of
execution. SJ cannot be executed until the CC has been disposed of. The CC will
proceed to trial. - Ronald Quay S/B
● THE COURT WILL ORDER THE GRANT OF SJ WITH COSTS BUT WITH A
STAY OF EXECUTION UNTIL THE CC IS DISPOSED OF. THE CC WILL
PROCEED TO TRIAL.
● THE JUDGE WILL SAY "JUDGEMENT FOR PLAINTIFF WITH COST
EXECUTION STAYED UNTIL TRIAL OF CC"
● THEY WILL NOT REQUIRE THE PAYMENT OF DAMAGES TO BE MADE -
STAY OF EXECUTION
● CC: FRESH CLAIM AGAINST P. IF HE WINS, P IS GONNA OWE HIM MONEY.
 
(iii) Daniel will raise a set-off that is known to Patricia; and
 
● Set-off is a cross-claim which is closely connected to the P’s claim which arises from
the same transaction of the P’s claim - Permodalan Plantations Sdn Bhd v Rachuta
Sdn Bhd.
● Hence, set off is a defence. Since it is a defence, the knowledge of P regarding the
set-off is relevant.
● The court would have to determine as to whether the set-off was known to Patricia in
making an order for SJ.
o If known to P, the court will dismiss SJ with costs (she knows so she shouldn't
have applied) and the action will proceed to trial.
o If not known or could not have been reasonably anticipated by P, the court will
grant unconditional leave to defend and costs in cause.
● In this case, since the set-off raised by Daniel was known to Patricia, thus the court
will dismiss the notice of application with costs. The case will proceed for trial.
  
(iv) Patricia’s claim is for damages for false imprisonment.
 
● Under O14 r1(2), false imprisonment is one of the 7 cause of actions where P cannot
apply for SJ.
● Para (a) - false imprisonment [be specific]
● So Patricia cannot rely on this cause of action in applying for SJ
● Her application will be dismissed with costs and the action would have to proceed for
trial.
 
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?
 
● Yes. The court may grant D unconditional leave to defend although D is unable to
raise any triable issue or set-off because of the wordings “there ought for some other
reason to be a trial of that claim” in O14, r.3.
● In Miles v Bull, the defendant was not able to raise any triable issue, or set-off but
only contended that the sale of house was a sham to evict her from the property.
 o D had no evidence or facts to support her allegation. The judge however
decided to exercise his discretion under O.14, r.3 and the reason given was that
of justice.
o All facts are known and controlled by the plaintiff whilst the defendant knows
nothing and therefore was unable to defend herself.
o The court is of the opinion that further investigation conducted at trial is to be
required.
o Rationale why the court exercised this: When she was in court, there was no
process of discovery which would able her to defend herself. So the court
ordered to proceed to trial because then only you can get discovery.
o But nowadays ada Rule 41 kot - allowed discovery at any time
● Concentrate Engineering Pte Ltd v UMBC Bhd [1990] 3 MLJ 1
o P's clients commenced action against D for wrongful payment of cheques. P
applied for SJ. The cheques were found to be duplicate copies fraudulently
printed with the same serial numbers as the genuine and unused cheques
supplied by the Ds.
o The circumstances which the fraud was carried out and the absence of an
explanation by the directors of the Ps constitute 'some other reason' for a trial
in terms of O 14 r 3(1). The situation called for further investigation as D might
be able to prove fraud P's part.
o If the D is not given opportunity to defend, there is a real likelihood that Ps
would terminate their overdraft facility and withdraw their fixed deposit.
o The court ordered unconditional leave to defend to D
 
 
(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?
 
● No, the court cannot strike out P's writ and SOC.
 ● Diamond Peak v Tweedie: The court can only dismiss application for SJ and not the
main action because in a SJ application proceeding, the only matter to be decided by
the court is whether SJ should be given to plaintiff. The court has no power to dismiss
P's entire action in a SJ hearing. The court's main function is to decide whether to
give SJ to P or not.
● Since there is no cause of action, the proper course for D is to apply to strike out the
SJ. If D wishes to strike out P’s writ and statement of claim, he must go under O. 18,
r.19(1)(a).
 
 
(iii) P’s notice of application was served on D’s wife at D’s house. Is the service
valid?
 
● O.14, r.2(3) is silent on the mode of service.
● Hence, reference is made to the order of general application, which is O.62, r.6.
● This order provides for the following method of service:
(a) by leaving the document at the proper address
(b) by registered post
(c) by fax in accordance to r.6(3)
(d) in such manner as agreed
(e) in such manner as court direct
● Therefore, the method of service by P is valid as it is served at the D's proper address,
although it is served at D's wife. Hence, it will qualify as leaving at the document at
the proper address.
 
(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?
 
SAMA MACAM QUESTION 3 (i)
  
● CC is a cross-claim which is not closely connected to P's case which arises from a
separate and independent claim from P's claim - Permodalan Plantations Sdn Bhd v
Rachuta Sdn Bhd.
● According to this case, CC is not a defence. Since a CC is not a defence to P's claim,
it is irrelevant whether P is aware of the counterclaim or not.
● The court is likely to order for SJ to be entered against the D with a stay of execution
until the counterclaim is disposed of by the court. - Ronald Quay
 
 
(v) P’s claim is based on fraud. What order is likely to be made by the court?
 
● O.14, r.1(2) lists out the COAs in which P is precluded from applying for summary
judgment.
● Be specific. State para (b).
● A person is not entitled to SJ if his claim is based on an allegation of fraud. Where P
applies for SJ under such circumstances, the court would dismiss the application with
costs to P by virtue of O.14, r.7.
● The case shall then proceed to trial.
 
 
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.
  
● Under O14 r1(2)(a), malicious prosecution is one of the 7 cause of actions where P cannot
apply for SJ.
● So Pam cannot rely on this cause of action in applying for SJ
● The court will order for her application to be dismissed with costs by virtue of O.14, r.7.
● The action would have to proceed for trial.
 
ii. At the hearing of the notice of application, Don raises fraud as a defence.
 
SAMA MACAM ATAS
 
● When fraud is raised as a defence, it indicates that there is a triable issue. According to
O.14, r.3 a triable issue is an issue/question which ought to be tried/can only be resolved in
a trial.
● The court would have to determine whether the triable issue (fraud) is known to P.
o If the triable issue is known to Pam, or could be anticipated by Pam, then the
application of SJ will be dismissed with costs as Pam should not have applied the SJ
having known there is a triable issue. Pam will have to pay the cost to Don.
o If the triable issue is not known to Pam, or could not be anticipated by Pam, the court
may order for unconditional leave to defend with cost in the cause i.e. whoever loses
the trial, who to pay is determine till the end of trial.
o The case will go for trial and no party would have to pay the costs at this stage. The
costs will be postponed until the end of the trial.
 
 
iii. At the hearing of the notice of application, Don raises a triable issue. The triable
issue arouses the court’s suspicion.
 
● [refer lecture notes on court's suspicion] O14 r3: the court will dismiss the application if
the D satisfies the court that there is an issue or question in dispute which ought to be tried
or that there ought for some other reason to be a trial of the claim.
● Since the triable issue has aroused the court's suspicion, the issues have to be resolved by a
trial as this means that that the court is uncertain as to whether D’s defence is genuine or a
sham.
● Fieldrank Ltd v Stein [1961] 3 All ER 681
● Conditional leave will be imposed where there is a good ground in the evidence for
believing that the defence set up is a sham defence.
● Court will usually order the Df to pay a certain amount to the court when the court is
left with a real doubt about the defendant's good faith, and would like to protect the
plaintiff though he cannot say for certain that there is a triable issue.
● However, this is a drastic order. The court will only grant if there is highly suspicious
issue.
● Therefore, the court may then order for a conditional leave to defend against Don with
payment of the whole or part of Pam’s claim within a number of days as a form of security.
● If Don defaults in paying, then SJ will be entered for P with costs.
 
Question 6 (belum discuss)
 
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.
 
● SAMA MACAM ABOVE
 
● Case: Filedrank Ltd
● Conditional leave will be imposed where there is a good ground in the evidence for
believing that the defence set up is a sham defence.
● Court will usually order the Df to pay a certain amount to the court when the court is
left with a real doubt about the defendant's good faith, and would like to protect the
plaintiff though he cannot say for certain that there is a triable issue.
● However, this is a drastic order. The court will only grant if there is highly suspicious
issue.
● Since the triable issue has aroused the court's suspicion, then court will make order of
conditional leave to defend bla bla bla. This means D is given leave to defend but there is
condition to the leave which is the D has to pay money as security to the court This is up to
the court to decide whether in whole or in part. If D fails, SJ will be granted to P with
costs.
 
 
(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.
 
● For P to obtain damages, D must prove 2 things: that D was liable and after that, prove the
quantum of damages. Sometimes, in raising a triable issue, the D cannot raise a triable
issue as to the liability such as the given situation.
 
● Avel Consultants v Mohd Zain
● This case concerns a BOT. It was clear that D was liable of BOT and has no defence
on liability but was able to raise issue on quantum of damages.
● Federal Court held that SJ application concerns only on liability. If there is no dispute
on liability, then SJ should be entered against the D.
● Quantum of damages can be decided by the Registrar in another hearing
● Datuk Mohd Ali bin Hj Abdul Majid v Public Bank Berhad (copy paste, simplify kan)
 ● the plaintiff was a company. The defendants were advocates and solicitors. The
plaintiff engaged the defendants to commence legal proceedings to recover
outstanding amounts loaned to a developer.
● When defendants enforced the judgement against the developer, the account included
arrears of interest for more than six years. Consequently, the winding up petition
against the developer was bad in law. The plaintiff sued the defendants for breach of
contract and negligence and applied for summary judgement.
● The deputy registrar granted the summary judgement by allowing the plaintiff’s
claim. The defendants appealed. The High Court ruled that the damages payable by
the defendants to be assessed.
● The issue in the Federal Court whether a summary judgement may be entered for the
amount claimed without assessment. The claim by the plaintiff in the present case is
for general and special damages arising out of breach of contract and/or negligence.
Therefore, the burden rests on the plaintiff to prove the damages and it is not
sufficient for the plaintiff to merely assert that he had suffered such damages without
proving it.
● In the circumstances, we hold that the learned High Court judge was right in ordering
that summary judgment be entered on liability with damages to be assessed.
● Thus, SJ will be entered to P with costs. Quantum of damages will be assessed in
another hearing under O. 37 after P obtained SJ.
 
● These 2 cases illustrate that if D cannot raise triable issue as liability but can raise as to
quantum, the court is likely to order for SJ to be entered to P with costs because the court is
concerned with the liability of D.
● What about the issues of quantum? That can be solved by Registrar in separate hearing.
 
 
(iii) P is seeking injunctive relief against D. D does not appear at the hearing.
 
 Q: Whether or not it is suitable to grant SJ to P when he is applying for injunctive relief.
 
● To obtain injunction, P must show that there is a serious question to be tried (Fitzgerald v
Francis). Why is this so? There seems to be a contradiction. Isn't the whole purpose of
SJ is when there is no question to be tried?
● Bina Riang's case - Normah Yaakob; there is no restriction preventing a P from
obtaining an injunction in SJ but 4 conditions must be satisfied in order for P to
obtain SJ where he is asking for injunction.
● D must have entered an appearance
● The SOC must have been served
● P must have applied for SJ by summons in chambers supported by affidavit,
now SIC has been replaced by notice of application. This is before ROC 2012.
● The application of SJ must be heard before a judge and not SAR
● This was followed by Microsoft Corp v Yong Wai Hong (CA case)
● P can seek for injunctive relief if 4 requirements are met. Since D did not appear
in hearing, the court may grant SJ in default of appearance or adjourn the
hearing to another date.
● However, D may apply to set aside the SJ order under O.14, r.11. Any party may
apply to set aside. D must show reasonable explanation/reason.
● So, can you apply for SJ where P is asking for injunction? Yes, bcs of Bina Riang where it
said you can ask for SJ when you are applying for injunctive relief so long the 4
requirements are satisfied.