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PARTIES

- Before an action can be commenced in court, the litigants who intend to initiate
proceedings must determine the:
- Parties to the action
- Cause of action
- Subject matter of the action; and
- Remedy required
- There must be at least one party to the action; one plaintiff and one defendant.

JOINDER INTERVENER THIRD PARTY

PROCEEDING

Meaning O15 r4(1) O15 r6(2)(b)(ii) O16 - TPP is a process where

Two or more parties A stranger (3rd a defendant wishes to add
may be joined as party) may apply to another party as the 3rd party
plaintiffs or intervene in an to the existing proceeding
defendants in the action between the
same action plaintiff and the
defendant if he has
any interest in any
relief or remedy.

Objective Market & Co Ltd v The purpose of To prevent multiplicity of

Knight Steamship intervention is to actions and to enable the
to avoid needless prevent injustice court to settle disputes
expense where it being done to the between all parties in one
can be done without 3rd party. action; and
doing injustice to
anyone and it To prevent the same question
carries out its object from being tried twice with
possibly different results.

Who can Two or more parties O15 r6(2)(b)(ii) O16 r1

apply having common A person not only the defendant can bring
causes of action originally a party to a TP proceedings.
against the the existing lawsuit,
defendant or group but claiming an Plaintiff can apply if defendant
of defendants interest in the files a counterclaim (Plaintiff
subject matter of becomes defendant)
Oxford and the suit and wants
Cambridge v Gill to be made a party
Both universities to the action to
sought to restrain a protect his interest.
publisher from using
such titles as
‘Oxford and
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Cambridge
Publications’. It was
held that the action
arose out of the
same series of
transactions; that
common questions
of fact would arise.
Hence, they were
permitted to join
their actions in a
single proceeding.

Purpose O15 r4(2) - joint To adequately O16 r1(1)

relief represent the Claiming contribution or
O15 r4(3) - joint interest of the indemnity against a person
person related to not party to the action
liability
the subject of the
action Claiming remedy or damages
from another party

Requiring any question or

issue connected with the
original subject matter to be
determined between
plaintiff/def/person not party to
the action

Test Pegang Mining - whether the applicant’s rights against or liabilities to any
party to the action, in respect of the subject matter will be directly affected
by any order which may be made in the action.

Hee Awa - the court allowed a motorcyclist in which the pillion rider of the
motorcycle was killed to be made a co-defendant in an accident who ought
to have been joined as a party and whose presence is necessary to ensure
all matters may be effectively determined.

Conditions (a) Same Q of facts/ Tohtonku Sdn Bhd The condition is that the 3rd
law The stranger must party must be related to the
(b) Same have legal interest cause of action brought by
Plaintiff
transaction/ series which will be
of transaction affected by the
judgement.
Commercial
interest will not be
allowed

Tradium v Azahari
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The 3rd party will

not be allowed to
intervene if he
knew about the
action but only
applied to intervene
after the judgement
has been given

Procedure O15 r4(2) O15 r6(3) O16 r2

to apply Leave of court Leave of court / Ex parte NOP in Form 20 +
affidavit affidavit

Leave of O15 r4(2) O15 r6(3) O16 r1(2)

court joinder can only be With leave of the Without leave of the court:
applied with the court or supported - When he issues the notice
leave of the court. by affidavit before he serves his defence
on the plaintiff

With leave:
- If notice is issued after the
service of the defence on the
plaintiff

WRIT OF SUMMON

- O5 r2 - an instrument which provides a defendant with notice of the lawsuit - Form

2/2A
- O6 r1 - form of writ
- O6 r6 - issuance of writ
Service of writ;
- Once a writ has been issued, it must be served to the other party.
- O10 r1(1) - writ must be served personally on each defendant or sent to each
defendants by prepaid AR registered post to his last known address or by means of
electronic communication in accordance with any practice direction issued for that
purpose
1. Personal service
- It is where the originating process must be served personally on each defendant
- O62 r3(a) - It is effected by leaving a copy of the document with the defendant to be
served.
- O10 r3(1)(b) - service of writ pursuance of a contract
- Where the law prescribes the manner in which service is to be effected in a certain
situation, failure to comply with that requirements is fatal and entitle the defendant to
set it aside
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- Noraini Abu Bakar - If the defendant is under obligation under an agreement to

notify the plaintiff of any change of address for service, failure to do so would deem a
service on the old address as good service.
- Banque Russe v Clark - the server (Plaintiff’s solicitor’s clerk) served the writ in an
envelope and handed it to the defendant but did not inform him. It was held that the
service was not good personal service.
2. Prepaid AR registered post
- As an alternative to personal service, this rule allows service by post, specifically ‘AR
registered post’.
- Bah Lun Yew - ‘’it is clear that posting by way of AR registered is a far superior form
of service because the receipt of documents sent by AR registered post must be
acknowledged by the recipient”
- Jaya bin Asahak - the High Court held that PosLaju was also a species of prepaid
AR registered post. The duly acknowledged AR card is commonly attached to the
affidavit of service.
- Lo Kui Chen - It was held that the service on the defendant could only be affected by
way of prepaid AR registered post and not by way of an ordinary registered post.
Where the law has prescribed the manner in which service was to be affected, such
failure entitles the defendant to set aside the judgement in default obtained.
3. Substituted service
- Where the defendant no longer resides at his last known address and whereabouts
of the defendant is not known, or the defendant is evading the service of writ, the
plaintiff may apply to court to serve by way of substituted service
- O62 r5 - When the writ is failed to be served upon the defendant, the plaintiff may
apply to court to serve by way of substituted service - Form 133
- Application - Form 134 + Affidavit stating the facts of which the application is
founded.
- Re S Nirmala
- affected by posting the documents at the last known address of residence or
business
- at the notice boards of the court in which the action is brought
- by advertisement in a newspaper of the locality
- in a language which would reasonably ensure that the person to be served will
acquire knowledge of the proceedings against him.
- Practice Note 1/68 : In order to be entitled for the substituted service order, the
applicant must show it is impracticable to effect personal service
- Meaning of ‘impracticable’;
a) Two calls should be made;
b) at the defendant’s residence, permanent or temporary.
c) on weekdays and at reasonable hours.
d) Each call should be made on a separate day
e) 2nd call made by appointment
f) On keeping the appointment, the process server should enquire whether
the defendant has received the letter of appointment or not
g) The affidavit in support of the application should deal with the above
requirements whether they have been satisfied or not.
- Malayan United Finance Bhd v Sun Chong Construction - failure to comply with
Practice Note 1/1968 only renders the proceeding irregular and does not nullify it.
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4. Service out of jurisdiction

- O11 r1 - Malaysian courts can have jurisdiction statutorily over a foreign
defendant
- If at the time of filing action, the defendant is residing abroad, service outside
jurisdiction can be made by applying leave to serve on defendant according to
the law of that country
- O11 r4(1) - An application for the grant of leave to serve notice of writ out of
the jurisdiction must be supported by an affidavit in Form 8 .
- O11 r4(2) - Such leave shall not be granted unless it is made sufficiently to
appear to the Court that the case is a proper one for service out of the
jurisdiction under this Order.

JUDGEMENT IN DEFAULT

- O12 r1(1) - The Defendant upon being served with writ, he may enter appearance if
he wishes to defend the action.
- Malayan Banking Bhd v Swasta Jaya - appearance is entered to enable the
defendant to communicate/express his intention to defend or challenge the action
against him.
- O12 r4 - Time Limit for Appearance
- O13 - judgement in default of appearance - A judgement entered against the
Defendant after the Court is satisfied that a Writ of Summons or an Originating
Summons has been duly served onto the Defendant but the Defendant has failed to
physically appear or file a notice of his appearance in Court within a specified time
period.
- O13 r1 to r5 - when JID can be entered
- Setting aside JID;
- O13 r8, O19 r9 - A default judgement is good and enforceable until it is set aside.
- Procedure to set aside;
- O42 r13 - Application made within 30 days from the date of receipt of the judgement.
- O32 r1 - NOA - Form 57 + an affidavit.
- The affidavit must indicate:
(i) Whether the judgement in default was regular or irregular.
(ii) regular - the defendant must state reasons as to why appearance was not entered
and show prima facie evidence; and
(iii) irregular - the defendant need only show why the judgement is irregular and give
reasons for not entering appearance.
(iv) Any defence; and that there is a triable issue
- Primary considerations to set aside JID;
i)Whether the JID is regular;
- Woolley Development v Stadco - It is well settled that if the judgement is irregular
then it ought to be set aside ex defitio justitiae. If it is regularly obtained the applicant
must show that he has a defence on the merits
ii)If regular, whether the defendant has a defence on the merits or an arguable
defence;
- Evans v Bartlam - Lord Atkin - unless and until the court has pronounced a
judgement upon the merits or by consent, it is to have the power to revoke the
expression of its coercive power by a failure to follow any of the rules of procedure.
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iii)Whether there was inordinate delay in applying to set aside the judgement in
default;
- Lau Pick Hong - in the exercise of the court's discretion to set aside the JID, the
court is entitled to look at all circumstances including the circumstances under which
the JID was allowed to be entered as well as the explanation for the delay in making
the application
- Setting aside irregular judgement;
- Lai Yoke Ngan - a judgement is irregular if it does not comply with the rules which
allows for the JID to be set aside as a matter of right
- The irregularity must be specified in the notice of application and the affidavit in
support.
- The court may set aside JID on the basis of irregularities that include:
a) the failure to serve the summons, the service not provided for by law,
b) the failure to mention the mode of service in the application for substituted
service,
- Lo Kui Chen v Dr Kalayarasu Subramaniam - There was obvious non-compliance
to serve the defendant on the mode prescribed. Where the law has prescribed the
manner in which service was to be affected, such failure entitles the defendant to set
aside the judgement in default obtained.

SUMMARY JUDGEMENT

- O14 - plaintiff may apply for summary judgement after the defendant has entered
appearance, on the ground that the defendant has no bona fide defence to the claim
or raise a triable issue against the claim which ought to be tried.
- UNP Plywood v HSBC - It is a procedural device used available for promptly and
expeditiously disposition of an action by a plaintiff or a counterclaim by a defendant,
without a trial when there is no dispute as to the fact and law

- Preliminary requirements;
- National Company for Foreign Trade -
(i) The defendant must have entered appearance;
(ii) The SOC must have been served on the defendant; and
(iii) The affidavit in support of the application must comply with the requirements of O.
14 r. 2
- Once the plaintiff has satisfied the three requirements, the plaintiff would have
established a prima facie case and would be entitled to judgement.

- Setting aside SJ;

- O14 r3(1) - To set aside/ challenge SJ application, the Defendant needs to show that
there was a triable issue which ought to be tried or that there is some other reason to
be a trial.
- Even though the defendant may not be able raise a triable issue defence, he can
argue that granting summary judgement may not be appropriate if the court is
satisfied that there are circumstances that ought to be investigated
- Miles v Bull - if defendant cannot raise a triable issue but is able to satisfy the court
that there are circumstances which ought to be investigated, then it would be wrong
to enter SJ for plaintiff
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- Concentrate Engineering v UMBC - plaintiff sued defendant for honouring its

cheque which was stolen and the signatures forged. Plaintiff applied for SJ.
Defendant resisted plaintiff’s application on the ground that police investigations were
going on. The court dismissed the plaintiff's application for SJ as the ongoing police
investigations constituted “some other reason” that there ought to be a trial.
- Ng Seng Kee v Danaharta - the court held that the fact that a third party had been
included in the proceedings constituted ‘some other reason’ for trial
- Bank fur Gemeinwirtschaft v City of London Garages - where the claimant’s case
tended to show that he had acted harshly and unconscionably, and it is thought
desirable that if he were to get judgement at all it should be in the full light of publicity
- Other issues;

Construction of statute/document which requires further fact

- Esso Standard Malaya v Southern Cross Airways - If there is a need for a short
matter of construction with a few documents, the court, on summary application,
should decide what in its judgement is the true construction unless no further facts
would emerge

Delay in filing application

- Loo Sze Kin - Failure to explain the delay in filing the application could be fatal
- CGIR v Weng Lok Mining - The delay of a lapse of three months was not inordinate
and did not warrant a dismissal of the application

Defendant raises set off / counterclaim

- Set-off is a defence closely interwoven with the plaintiff’s claim
- Counterclaim may be entirely separate from the subject matter of plaintiff’s claim
- A defendant is not entitled to rely on a defence of counterclaim unless it is clearly
connected with the subject matter of the claim
- Koshida Trading - As the transactions relied upon by the defendants in their
counterclaim were separate from those raised by the plaintiff, summary judgement
was entered against the defendants.

STRIKING OUT PLEADINGS

- O18 r19(1) - order to strike out

- O92 r4 - inherent powers of court to prevent injustice
- No time limit during which a party may apply to the court to strike out pleading.
- An application for striking out may be made ‘at any stage of the proceedings’ and as
a rule should be made before the close of pleadings but should be made as soon as
possible after the service of writ.
- AG of Duchy Lancaster - Where the statement of claim is being challenged, the
application should be made before the defence is served
- The application to strike out pleading is made by way of a Notice of Application
supported by affidavit.
- Practice Direction No. 2 of 2008 -The application made under this rule is an
interlocutory application that must be heard before the judge
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- O18 r19(2) - for application to strike out alleging that the pleading discloses no
reasonable cause of action, no affidavit allowed as the argument is focused on the
pleading only.
- Grounds for striking out;

a. It discloses no reasonable cause of action or defence

- Abd Rahim v Perdana Merchant Bankers Bhd - if the pleading does not disclose
reasonable cause of action or defence, it ought to be struck out.
- AG of Duchy Lancaster - If the applicant must bring extrinsic evidence to show that
the pleading is bad as it discloses no cause of action or defence, the rule does not
apply
- Sambu v Stone World - Where the only ground for striking out pleadings is based
on O18 r19(1)(a), no evidence shall be admissible and the Court must only consider
the pleadings.
- Hashim bin Din v Sato Kogyo - no affidavit is admissible in support of the striking
off application and the court must only scrutinise the writ and the pleadings of the
parties.
- New Strait Times (Malaysia) v Kumpulan Kertas Niaga - The test to be applied is
whether on the face of the pleading, the court is prepared to say that the cause of
action or the defence is obviously unsustainable
- Loh Holdings v Peglin Development - The mere fact that the plaintiff is not likely to
succeed is not ground to strike out the SOC
- Premjeet Kaur v Chief Inspector (wrong party) - The defendants applied to strike
out the plaintiff’s writ of summons and SOC on the ground that the plaintiff had failed
to name the tortfeasors in the claim and that the 2nd defendant should not be named
as a defendant.
- Tan Sri Musa v Uthayakumar (no locus standi) - It was held that Hindraf was an
illegal body, as such, its leaders and members did not have the locus standi to
institute any civil proceedings in a court of law on the grounds of public policy
- Majlis Ugama Islam PP v Shaik Zolkaffily - the action should have been struck out
as the Syariah Court was seized of jurisdiction by way of the Administration of Islamic
Religious Affairs Enactment of the State of Penang
- Jamir Hassan v Kang Min (matter is res judicata) - principles of res judicata only
applicable if the matter had been decided and determined on merit
- Metrod v MGS Transport - the plaintiff has no locus standi to institute the suit
against the defendant as there was no privity of contract between the plaintiff and the
defendant due to the doctrine of separate legal entity
- Amakannu v Mayland Development (non-existence of contract) - plaintiff’s entire
cause of action which was premised on the tripartite agreement could not stand
because it was not signed or dated

b. Scandalous, frivolous or vexatious

- Boey Oi Leng v Trans Resources - Meaning of scandalous: wholly unnecessary
and irrelevant, and not just unpleasant allegations
- Thong & Anor v Saw Beng Chong - The words 'frivolous or vexatious' generally
refer to a groundless action of statement with no prospect of success, often raised to
embarrass or annoy the other party to the action
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- Muhamad Solleh v Norruhadi (claim is statute-barred) - The defendant’s application

to strike out was allowed on the grounds that the plaintiff’s cause of action in an
action for tort which was filed on 24.5.2004 was time barred on 20.5.2004

c. Prejudice, embarrass or delay the fair trial

- Gan Seng Biang - The High Court found that the counterclaim was deftly designed
for the purpose of denying, depriving and delaying the plaintiff the fruits of his
successful litigation

d. Abuse of court process

- Public Finance v S Ramasamy - The defence is simply filed to delay and play for
time
- Wayrex v Lee Ewe Bee - the Court of Appeal held that the plaintiffs’ second suit
against the fourth and fifth defendants was an abuse of the process of the court
because of the compromise agreement and the order of court wherein the plaintiffs
had by consent agreed not to file any fresh suit.
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INHERENT POWER

- O. 92 r. 4: Inherent power by the court is the secondary sources of court to

administer justice
- Inherent power refers to the court power which can be used at any time in
adjudicating any matter before the court as long as it can justify to prevent injustice
and any abuse of the court process
- It is a residuary and reserve source of power which is derived from the court’s nature
and status as court of law
- It is a procedural law, not substantive
- Exercise if there is lacuna in rules which is not in contravention of any statutory
provision
- Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and
other appeals [2018]
- It is the nature of the court to require this power to be given in order to
administer justice
- If this inherent power is not available, the court will not function effectively.
- With this power the court can decide something which is beyond either what
is mentioned in the rules or doing something but with justification of doing that
- O. 1A: the court shall have regard to justice in administering the rules. When there is
an issue of whether to override a procedural non-compliance, the court has to
also balance justice as between the parties with particular regard being given to the
questions of whether any miscarriage of justice would be occasioned. The court
should not allow the procedural irregularity to affect the essential justice of the
case
- O. 2, r. 1: in situations where there is non-compliance to the rules, the
non-compliance shall be treated as an irregularity and shall not nullify the
proceedings. However, where the non-compliance is so fundamental or serious as
to go to the root of the legal process, the court is generally reluctant to exercise
its discretion to cure any defect and would proceed to set aside or strike out the
proceedings.
- O. 2, r. 3: preliminary objection by any party to the proceedings is only allowed if the
non-compliance has occasioned a substantial miscarriage of justice or cannot be
cured by amendment or order for costs or both
- Majlis Perbandaran Melaka Bandaraya Bersejarah v Yau Jiok Hua [2006]
- It was decided that under O2 r3, a court or judge will not allow any preliminary
objection by any party to any cause matter or proceedings only on the ground of
non-compliance with any of these Rules unless the court or judge is of the opinion
that such non-compliance has occasioned a substantial miscarriage of justice.
- Inherent power of the court is exercisable:
- To prevent abuse of the court’s process
- DP Vijandran v Karpal Singh [1993]
- The Plaintiff withdrew the action by filing a notice of discontinuance.
The defendant by way of summon-in-chambers applied for costs
incurred in the appeal and the interlocutory application made by him in
the suit. The Court found nothing improper for the defendant to move
the court by way of summon-in-chambers in order to seek the
determination of the court regarding his entitlement to the costs
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incurred in the appeal and the interlocutory applications made by him

in the suit.
- To strike out applications
- Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011]
- The High Court Judge struck out the plaintiff’s writ of summons and
the statement of claim as the SOC contained particulars that were
intended to embarrass the defendant and it was certainly an abuse of
the court’s process.
- Interim measures in Arbitration
- La Kaffa International Co Ltd v Loob Holding Sdn Bhd and
another appeal [2018]
- COA held that, notwithstanding Arbitration Act 2005, the courts have
not lost its inherent jurisdiction to act on matters related to arbitration.
The inherent jurisdiction of court will naturally mean all the powers that
are necessary to uphold, to protect and to fulfil the judicial function of
administering justice within the spirit and intent of the law as stated in
Arbitration Act 2005.
- Lacuna in the law or procedural rules
- Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) [2010]
- The court may exercise its power under RHC 092 R4 where the rules
do not lay down a particular form of procedure to meet the exigencies
of a case.
- Inherent power of the court is not exercisable:
- Where sufficient provisions exist / specific rule of court effectively governs the
situation
- Mikien Sdn Bhd v Woolley Development Sdn Bhd [2008]
- It was held that there is no jurisdiction for the High Court to grant a
stay under O92 because sec 243 of the Companies Act 1963 prevents
the court from granting a stay before the winding up order.
- In cases where an action is filed indiscriminately
- Loh Eng Leong v Lo Mun Sen & Sons Sdn Bhd [2003]
- the court could not exercise its inherent powers to strike out the
petition under the sec 181 Companies Act 1965 without considering
the factual situation of the case.
- In cases where it is intended to alter substantive rights
- SBSK Plantations Sdn Bhd v Dynasty Rangers (M) Sdn Bhd
[2002]
- The court held that where a defendant has a substantive right to
present a winding up petition against a plaintiff, neither this rule nor
the inherent jurisdiction of the court could deprive the defendant of
such right or reduce the extent of that right.
- Irregularities which may be cured
- Failure to comply with stipulated time
- Tye Chwee Hoon v Cayman Commodities (M) Sdn Bhd [1989]
- Court held that failure to file conditional appearance and defence
within the stipulated time was a ‘mere technicality’ which was curable
under O2 r1 RHC and O2 r5 RHC
- Omission to give notice of intention to proceed
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- Bank Bumiputra Malaysia v Syarikat Gunong Tujuh Sdn Bhd

[1990]
- High Court held that the failure of the plaintiff to give one month’s
notice of his attention to proceed with the action (pursuant to O3 r6
RHC) was an irregularity which could be cured because the defendant
had ample notice of the application (which was served 44 days before
the hearing).
- Failure to comply with statutory forms
- Uni Wall Architectural Products & Services Sdn Bhd v Global
Upline (M) Sdn Bhd [2011]
- The error in stating in the writ the time for entering appearance is
curable under O2 ROC
- Irregularities which may not be cured (nullities):
- Defective affidavit:
- Dynacast (S) Pte Ltd v Lim Meng Siang [1989]
- An affidavit that does not comply with the requirements of Rules of
Supreme Court 1970 (Singapore) is a defect of fundamental nature
which cannot be cured.
- Failure to comply with a mandatory rule
- SDB Damansara Sdn Bhd v Datuk Bandar Kuala Lumpur No. 1
(2011)
- The court held that where leave was a mandatory requirement, neither
Order 1A or Order 2 Rules 1 could cure the defect arising from non
compliance with Order 53 Rules 3(1). Failure to comply with such a
rule could not be regarded as a mere technical non-compliance as it
went to the root of the issue which is the jurisdiction of the court.
- Action against wrong party
- Dollar Valley (M) Sdn Bhd v Rimba Raya Sdn Bhd [2004]
- The court held that the defect in the notice of appeal in the instant
case by bringing the wrong party to the court was not something which
could be cured under both the provisions of O1A & O2 r1 RHC
- Defective service of proceedings
- The Goldean Mariner [1990]
- One of the defendants, have not been served with the actual writ, only
the acknowledgement of services. It was held that the defective
service of writ cannot be cured under Order 2 rule 1 because such
omission of service was a serious one.
- No locus standi
- Ch' ng Team Soo @ Cheng Chiu Seng v Khor Hok Kee [2012]
- The court held that the issue of locus standi is not just a question of
irregularity but it is a substantive point of law for the reason that if one
had no locus standi, his action cannot be maintained.

CAUSE OF ACTION

- Cause of action is a set of circumstances which leads up to an action or claim in

court, which is a basis for which the lawsuit is initiated.
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- Cooke v Gill: every fact which is material to be proved to entitle the plaintiff to
succeed
- Nasri v Mesah [1971]: a cause of action is the entire set of facts that gives rise to an
enforceable claim.
- The cause of action is a condition precedent to the commencement of an action
which must be disclosed before the court will be able to proceed to adjudicate the
dispute.
- It is necessary to determine whether the facts of the case give rise to a cause of
action by establishing the elements of legal liability.
- Taib bin Awang v Mohamad bin Abdullah [1983]
- The court held that for the plaintiff to succeed for malicious prosecutions, one
of the important facts that need to be satisfied is, the prosecution ended up in
the plaintiff’s favour. Since the appeal had not been disposed of, his action
was held to be premature.
- The case illustrates the requirement to satisfy all necessary elements in order
to be deemed as having a valid cause of action to commence the proceeding.
- Cause of action in contract cases:
- COA accrues as soon as the contractual duty is broken.
- Sio Koon Lin v S.B Mehra [1981]
- The plaintiff contributed RM 100000 towards the partnership. By an
agreement it was agreed that the defendant shall pay the sum by way of
installments. A sum of $15,000 on the execution of the agreement, $35,000
on or before October 12, 1972 and the balance of $50,000 by monthly
instalments of $10,000 on the 12th day of each succeeding month. There was
no provision that in the case of default of any one instalment, the remaining
instalments should become immediately due and payable. On October 7,
1972 the plaintiff/ respondent took out a writ claiming inter alia payment of the
sum of $85,000 with interest. Federal Court struck out plaintiff’s/ action and
held that the respondent did not on October 7, 1972 have any cause of action
in respect of the $85,000 or any part thereof, as no installments were then
due.
- Cause of action in tort cases:
- In an action for negligence, the COA accrues when some damage occurs
- In order to establish negligence as a cause of action, the plaintiff must show
that the defendant owed a duty of care to the plaintiff, the defendant breached
that duty causing harm to the plaintiff. Hence, the plaintiff suffers damages.
- In action on personal injury, COA accrues from the date of injury (accident).
- Locus standi:
- the right or capacity of a party to appear/ bring an action and be heard by a
tribunal.
- A party may have a cause of action but if he has no locus standi to initiate the
action, the court will dismiss the action.
- Special Interest Test
- Government of Malaysia v Lim Kit Siang [1988]
- A litigant is said to have locus standi, standing to sue in a court of law,
if that court recognizes his ability to institute and maintain proceedings
before it.
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- Here, the respondent filed a declaration in pursuant to the letter of

intent issued by the Government to UEM in respect of a construction
of NSE highway. It was held that the respondent lacked locus standi to
pursue the action. He was not prejudiced with the letter of intent hence
there is no infringement of private right and therefore had no cause of
action.
- Real and Genuine Interest Test
- Malaysian Trade Union Congress (MTUC) & Ors v Menteri Tenaga,
Air dan Komunikasi & Anor [2014] (overruling Lim Kit Siang)
- MTUC (Appellant) wanted to apply to inspect the water Concession
Agreement and Audit Report from the Government of Malaysia
(Respondent) in view of the increased water tariff. However it was
refused by the Respondent on the ground that they were classified
documents. It was held that by looking at the whole legal and factual
context of the application, especially the fact that this is a public
interest litigation, it can be seen that MTUC had shown that it had a
real and genuine interest in the two documents. Hence, MTUC was
adversely affected by the Minister’s decision.

LIMITATION PERIOD

- Limitation period is the time limit prescribed by law within which a person must
enforce his/her claim in court.
- It is a limitation imposed by statute(s) upon any party who wishes to bring a claim in
court.
- If the plaintiff’s action is filed outside the limitation period, the defendant may raise a
defence that the plaintiff’s action is time barred, unless the time limit is subject to an
extension or exclusion.
- Malaysia’s general statute of limitations is the Limitation Act 1953 which is the main
law governing limitation period in Malaysia.
- Sec 6(1) LA: Action based on contract or tort is 6 years from the date on which the
COA accrued.
- Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984]
- A house was delivered late, namely, delivered on 7 November 1977 instead of 18
September 1975 as promised. The plaintiff claimed the agreed liquidated damages of
8% per annum for late delivery and filed his or her action on 9 September 1982.
Held: The action was considered time barred.
- Sec 9(1) LA: Action to recover land and rent is 12 years from the date which the
COA accrued. (recovery of land and not damages)
- Ponnusamy & Anor v Nanthu Ram [1959]
- The respondent sold his land to Naina and executed a transfer in statutory form.
Naina entered into possession but did not register the transfer. He died in February
1949 and thereupon the transfer became unregistrable. The appellants brought an
action in December 1956 claiming declaration of title to the land and an order on the
registering authority to register appellants as proprietors. It was held that the action
was one to recover land within the meaning of section 9 of the Limitation Ordinance
the period of limitation for such an action is 12 years and the present action was not
time-barred.
___________________________________NURUL AIN AFIQAH 2023____________________________________

- Exception:
- Sec 9(2) LA: Sec 9(1) is not applicable to action to recover State land or land reserve
for a public purpose and to the recovery of land by a registered proprietor under
National Land Code
- The limitation under sec 9(1) also does not apply in delays for an action where the
plaintiff would already have equitable title in the land or when the property was
wrongly acquired.
- Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and Mines, State of
Johor & Anor
- Where property was wrongly acquired, time remained at large and the law of
limitation would be inapplicable.
- Computation of limitation period
- Lim Kean v Choo Koon [1970]
- The period of limitation does not begin to run until there is a complete cause
of action and a cause of action is not complete when all the facts have not
happened which are material to be proved to entitle the plaintiff to succeed.
- Contract cases
- General rule: a cause of action on a contract accrues on the date of
the breach.
- Abdul Aziz Abdul Hamid v Perak Roadways Bhd [2007]
- A claim for liquidated damages for late delivery of premises under a
sale and purchase agreement, the limitation period of six years under
the day after which vacant possession should have been delivered
pursuant to the sale and purchase agreement
- Tort cases
- A cause of action in tort accrues when the appellant suffers damage or
from its commission
- Where the tort is a continuing one or is repeated, it gives rise to fresh
causes of action so long as it continues or on each repetition
- Where the tort is actionable only on proof of special damage, time
runs from the date of the damage and not from the act which causes
the damage.
- Anns v London Borough of Merton [1978]
- When damage is an essential part of the cause of action, time begins
to run from the date when the damage is suffered, not from the date of
the act or omission causing the damage.
- Tan Sri Dato’ Eric Chia Eng Hock v NKK Corporation [2004]
- The court held that in a defamation action, time began to run from the
date of the publication of the defamatory statement to a third party and
not from the date when the plaintiff first had knowledge of the alleged
defamatory words.
- Tort (latent defects)
- Before the amendment in the Malaysian position, knowledge of any
tortious act/breach of contract is not a requirement. The parties must
be vigilant on their rights.
- Sec 6A LA: the action must not be brought after 3 years from starting
date (which the plaintiff had both the knowledge COA and who caused
___________________________________NURUL AIN AFIQAH 2023____________________________________

the damage) if the period of 3 years is later than the period of

limitation under Sec 6(1)
- It applies to any action for negligence not involving personal injuries,
mainly to cater for latent defects in construction matters.
- Sec 6A(3) LA: no action can be brought after the expiration of 15
years from the date on which the cause of action accrued.
- Sec 6(3) LA: action to enforce any judgement must be brought before
the expiration of 12 years from the date on which the judgement
becomes enforceable / recovery of arrears of interest in respect of any
judgement debt is 6 years from the date interest became due
- Sec 23 LA: 12 years from the date when the right to receive the share
or interest accrued / recovery of arrears or interest in respect of any
legacy or damages in respect of such arrears is 6 years from the date
interest became due.
- Limitation under other Acts
- Public Authorities Protection Act 1948 (PAPA 1948)
- Sec 2(a) PAPA: any suit, action, prosecution against the Government or its
agents must be instituted within 36 months from the date of the act, neglect or
default complained of
- Applicable to any civil action instituted against the government.
- Limited to civil action where the wrongs were committed in the execution or
intended execution of any written law or any public duty or authority.
- Phua Chin Chew v KM
- Plaintiff resigned as teacher in 1977 under mental disability but his disability
ceased in 1982. His brother sued the Government in 1983 alleging that
plaintiff's resignation was null and void but one of the Defendants claimed
protection under Sec 2 PAPA. It was held that as PAPA does not provide for
cases of disability, Sec 24 LA should be read together with PAPA. Thus, 36
months run after disability ceases or after the appointment of the Committee
to manage his affairs.
- Civil Law Act 1956
- Sec 7(5) CLA: a claim for loss of support (financial loss) by the dependent
relatives shall be brought 3 years from the death of the deceased person
- Kuap Hip Peng v Yap Pin & Anor [1965]
- It was held that failure to commence the action within 3 years from the date of
the death was fatal to the proceedings. Since the writ of summon was filed 4
days after the expiration period, the court allowed the application to strike out
the writ.
- the categories of persons who can claim damages for loss of dependency are
extended to include any person with disabilities under the care of the
deceased
- Sec 8(1) CLA: On death, all COA shall survive unless on matter of
defamation, seduction, for inducing one spouse to leave or remain apart from
the other or to any claim for damages on the ground of adultery.
- Sec 8(3) CLA: action in tort against the estate of the deceased person
- Postponement of Limitation Period
- Sec 24 LA: person under a disability may take an action any time before the
expiration of 6 years from the date of ceasing from disability
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- Sec 2(2) LA: disability means an infant or of unsound mind

- Phua Chin Chew v KM
- Sec 26 to Sec 28 LA: Revival of cause of action on acknowledgment and
part payment
- Sec 29 LA: The period of limitation does not begin to run until the plaintiff has
discovered the fraud, concealment or mistake or could with reasonable
diligence have discovered it.
- Lim Yoke Kong v Sivapiran a/l Sabapathy [1992]
- The insurers conduct in keeping their identity unknown to the plaintiff until the
plaintiff's action had become statute barred amounted to a concealment of the
plaintiff's right of action.

CIVIL COURTS JURISDICTION

- When a person wants to initiate an action in court, it has to be commenced in a court

that has jurisdiction or else the case can be struck out.
- Jurisdiction of court is to be classified into 3 which are pecuniary, subject matter and
territorial jurisdiction.
- Territorial Jurisdiction:
- the geographical area over which the power or authority if a court extends.
- Sec 59 & 76 SCA: for subordinate courts, session court and magistrates court have
jurisdiction to hear and determine any civil and criminal proceedings within the local
limits of jurisdiction
- Art 121(1) FC: There are two High Courts of coordinate (common) jurisdiction which
is the High Court in Malaya and the High Courts of Sabah & Sarawak
- Syarikat Nip Kui Cheong Timber Contractor v Safety Life and General
Insurance Co Sdn Bhd [1975]
- The High Court in Malaya and the High Court in Borneo have separate and distinct
territorial jurisdictions. Therefore, there could be no crossover of action between the
two separate courts.
- Sec 3 CJA: “local jurisdiction” is defined to mean that in the case of the High Court in
Malaya, the territory comprising the States of Malaya and in the High Court of Sabah
and Sarawak, the territory comprising the states of sabah and sarawak respectively
- Sec 23(1) CJA: to determine which court shall have jurisdiction, matters to consider
among others are (a) where cause of action arose, (b) the defendant’s place of
residence or business, (c) where the facts are based exist or alleged to occur or (d)
any land the ownership of which is disputed is situated.
- Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd
- An order was made by the judge to transfer the case from KL court to Kota Kinabalu
Court. However, it was held that the court has no power to transfer any proceeding
which is not within its local jurisdiction.
- Forum of Convenience
- The proper and most appropriate forum to hear and try the action.
- The court emphasised that it must not put the defendant in inconvenience when
choosing the court.
- But, the forum conveniens must not be abused to the extent that it cause difficulty for
the defendant (by the Plaintiff ’s act applying to transfer the case to other states)
___________________________________NURUL AIN AFIQAH 2023____________________________________

- The plaintiff filed a Civil Suit in the High Court of Malaya at KL. The suit is an action
based on fraud and forgery and a power of attorney of a piece of land in Sabah. Both
the High Court of Malaya and the High Court of Sabah and Sarawak had the
jurisdiction, but it was Sabah, and not Malaya, which constituted the forum
conveniens for the suit. It was held that the court has no power to transfer the
proceeding in the KL High Court to Sabah HC although they are courts of coordinate
jurisdiction as they must be confined to the respective territorial jurisdiction
- Sec 23(1)(b) COJA: “the defendant or one of several defendants resides or has his
place of business;”
- Cita Marine Sdn Bhd v Progressive Insurance Berhad [2001]
- Although COA arose in KL, the fact that one of the several Ds had its place of
business both in Sabah and Sarawak meant that HC of Sabah & Sarawak, by virtue
of sec 23(1)(b) also had jurisdiction in respect of the action.
- Sec 23(1)(c) COJA
- Is it possible to oust the High Court jurisdiction in an agreement?
- Elf Petroleum v Winelf Petroleum [1986]
- The court held that although the parties had agreed for Singapore law to apply in any
dispute, this did not oust the jurisdiction of the Malaysian courts to try any action
arising out of the agreement.
- Extra Territorial Jurisdiction
- O. 11, r. 1: Malaysian courts jurisdiction statutorily over a foreign defendant, as
jurisdiction is implicit in the power to grant leave for service out of jurisdiction.
- Leave for the issue of the writ is a pre-condition to a service of notice out of its
jurisdiction.
- Conditions to be satisfied:
- The claim must come within the scope of one or more of the para of rule 1
- The claim must have sufficient degree of merit-must show that there is a
serious issue to be tried
- The issue of forum conveniens

SUMMARY JUDGEMENT

- A plaintiff may apply for summary judgement after the defendant has entered
appearance, on the ground that the defendant has no defence to the claim.
- UNP Plywood Sdn Bhd - It is a procedural device used available for promptly and
expeditiously disposition of an action by a plaintiff or a counterclaim by a defendant,
without a trial when there is no dispute as to the fact and law
- summary judgement is not available when;
- O14 r1(2) - Claim for libel, slander, malicious prosecution, false imprisonment,
seduction or breach of promises or a claim based on allegation of fraud;
- O81 - Actions for specific performance of an agreement for the sale, purchase
or exchange of any property or for rescission of such agreement or for the
forfeiture or return of any deposit made under such an agreement; and
- O73 r5 - Against the Government
- Yeng Hing Enterprise Sdn Bhd - Proceeding by a company against its
director
- Summary judgement is available when;
- Orix Factoring - monies due and owing
___________________________________NURUL AIN AFIQAH 2023____________________________________

- Tan Ah Chin - negligence actions

- action involving the government
- enforcement of foreign judgements
- Jasmine Food - intellectual property action
- architect’s interim certificate
- an action for an account
- admiralty actions
- probate action
- injunctive relief
- Chung Ket Suit David - declaratory relief - Declarations were granted to the
Plaintiff that the Defendant has acted ultra vires the constitution of the club
and in bad faith expelled the Plaintiff.
- specific performance
- Preliminary requirements;
- National Company for Foreign Trade -
(i) The defendant must have entered appearance;
(ii) The SOC must have been served on the defendant; and
(iii) The affidavit in support of the application must comply with the requirements of O.
14 r. 2
- Once the plaintiff has satisfied the three requirements, the plaintiff would have
established a prima facie case and would be entitled to judgement.
- The burden then shifts to the defendant to show the merits in the defence.
- AmInvestment Bank Bhd - the court found that the plaintiff had satisfied the
preliminary requirements for proceeding under O 14. Therefore, the burden had then
shifted to the defendant to satisfy the court why judgement should not be entered
against it
- O14 r2(1)(2) - procedural requirements (Form 57 + affidavit Form 13)
- Affidavit requirements;
- O14 r2(1) - affidavit in form 13
- Must comply with 2 important requirements:
(i) Affidavit must verify facts of Plaintiff's claim; and
(ii) Affidavit must state that in Plaintiff's belief, the Defendant has no defence to
Plaintiff's claim .
- UMW (Sarawak) Sdn Bhd - Failure to comply with Form 13 is not fatal and the
defects/irregularities an be cured by supplementary affidavit
- If the plaintiff fails to satisfy either of these considerations above, the application for
summary will be dismissed. If satisfied, the plaintiff have to establish a prima facie
case and becomes entitled to the judgement
- Time;
- As soon as the plaintiff becomes eligible to apply, he must apply as soon as possible
+ before the defendant filed defence within 14 days
- Even after defence is delivered, an application for SJ may still be made if it can be
shown that the defence is a sham and insubstantial
- The onus is on the plaintiff to explain the delay in application by way of affidavit
- Loo Sze Kin - Failure to give an explanation could be fatal to the plaintiff’s
application
- Perkapalan Shamelin Jaya Sdn Bhd - It was held that the delay in applying for O14
is no ground for defeating the plaintiff's right to summary judgement under O14. The
___________________________________NURUL AIN AFIQAH 2023____________________________________

plaintiff had given reason for the delay. Further the statement of defence disclosed no
bona fide triable issue.
- Takasima Industries - with ROC 2012 coming into force, the requirement of
unnecessary uncertainty and complexity to a SJ application should be discarded.
Hence, a 37 delay in filing SJ albeit unexplained is not fatal to the application
- Mode of Service;
- No specific mode of service on how to serve application/affidavit on def
- O62 r6(1) - GR: applies whenever there is no specific rule to serve a document
- (a) Leave documents at the proper address of def
- (b) Prepaid registered post
- (c) Facsimile
- (d) In such other manner as the court may direct
- Banque de Paris - it is trite law that the court will not decide an Order 14 application
by weighing both plaintiffs and defendant’s affidavits but the court must look at the
facts of the case to see whether the defendant has a real or bona fide defence.
- Setting aside SJ;
- O14 r3(1) - To set aside/ challenge SJ application, the Defendant needs to show that
there was a triable issue which ought to be tried or that there is some other reason to
be a trial.
- Burden to prove the existence of a triable issue is placed on the defendant.
- RHB Bank v Tan Swee Long Holdings Sdn Bhd - It is not enough for the defendant
to merely deny the amount owed but the defendant must plead any salient and
relevant facts which show that the claim is not maintainable on other grounds.
- Sebumi Magnetik Sdn Bhd - the High Court held that the court should only grant
summary judgement in cases where the defendant fails to disclose a triable issue or
a bona defence. Questions of law which do not require a trial may be answered by
the court even if they appear complex or difficult.
- Miles v Bull - if defendant cannot raise a triable issue but is able to satisfy the court
that there are circumstances which ought to be investigated, then it would be wrong
to enter SJ for plaintiff
- Where there is triable issue;
- Ng Yik Seng v Perwira Habib - The defendant raised the issue of the genuineness
as to their signature in a guarantee document. Held: Triable issue, as expert
evidence was required.
- Appaduray v R Ananda - The case involved an action for trespass. The court held
that the dispute in the boundaries of property raised by the defendant required
evidence of a survey report.
- UNP Plywood Sdn Bhd - The defendant raised the issue with regard to the illegality
of the foreign exchange contracts, issue of estoppel, and the plaintiff did not suffer
any damage. Held: Triable issue
- Chemsource (M) Sdn Bhd - It was held that a question is legitimately raised as to
the mental capacity of a defendant to contract. Such capacity can only be determined
by way of a trial and not summarily.
- AmBank (M) Bhd v Metroplex Sdn Bhd - Whether or not the cause of action had
accrued on the date of the first notice of demand or on the date of the plaintiff’s
solicitors’ letter of demand, was a matter to be tried. In so far as the limitation issue
was concerned, it was a triable issue.
- No triable issue;
___________________________________NURUL AIN AFIQAH 2023____________________________________

- BNM v Mohd Ismail - The court held that in order to resist an O.14 application, the
defendant must show in his affidavit that there is a defence and a triable issue. In this
case, the defendant admitted liability. Thus, the plaintiff's application for SJ was
granted.
- KWSP v Richmatt Holding - The court held that a mere assertion that a settlement
had been achieved when there was no evidence to substantiate it, could not create a
triable issue.
- Ngui Mui Khin v Gillespie Bros - It was held the defendant’s statement of defence
actually did not disclose any serious defence warranting a trial at all. No triable issue.
Therefore, the plaintiff’s application for SJ was allowed.
- Loo Sze Kin - Failure to explain the delay in filing the application could be fatal
- Koshida Trading - As the transactions relied upon by the defendants in their
counterclaim were separate from those raised by the plaintiff, summary judgement
was entered against the defendants.
- Esso standard Malaya v Southern Cross Airways - If one simply has a short
matter of construction with a few documents, the court, on summary application,
should decide what in its judgement is the true construction and there is no need to
formally go for a trial if no further facts would emerge
- Chin Yew Chye - The court entered summary judgement on the account that the
matter before the court was a simple case of interpretation of the SPA pursuant to
basic accounting principles.
- Appeal;
- Unconditional leave to defend - interlocutory appeal which is by way of rehearing
- Conditional leave to defend - by reviewing the judge’s discretion.

JUDGEMENT IN DEFAULT

- The Defendant upon being served may enter appearance if he wishes to defend the
action.
- Malayan Banking Bhd v Swasta Jaya - appearance is entered
(i) to enable the defendant to communicate/express his intention to defend or
challenge the action against him.
(ii) to submit himself to the jurisdiction of the court.
- O12 r2(2), r3 - Filing of MOA - Form 11 - signed by the defendant if acting in person
or by his solicitor.
- Appearance in particular cases;
O 77 r 4(1) - A firm is not a legal entity, it cannot appear in its name. Appearance is
entered by the partners individually
- O12 r4 - Time Limit for Appearance - Failure to enter appearance within time does
not mean he cannot enter appearance at all.
- O12 r5 - Late Appearance
- Wan Mohd Sofian v MBF Finance Bhd - it was held that an order obtained by the
plaintiff setting aside the memorandum of appearance which was filed late, and
giving the plaintiff liberty to enter judgement against the defendant was in breach of
the rules.
- Uni Wall Architectural v Global Upline - Error in stating time limit for appearance
by the plaintiff by giving the defendant 8 days to enter an appearance is an
irregularity that was curable under O2 r3
___________________________________NURUL AIN AFIQAH 2023____________________________________

- O12 r9 - Appearance not to constitute a waiver on validity of the writ

- O12 r10 - Dispute as to jurisdiction on the ground of irregularity in the writ
- O12 r10(3) - An application shall be made by notice of application supported by an
affidavit
- O2 r2 - Defendant must state the grounds of irregularity
- Period to enter appearance;
- Within peninsular - 14 days after service of writ unless extended
- Sabah Sarawak - 14 days after service of writ unless extended
- Defendant lives outside court’s division - 20 days after service of writ unless
extended
- O13 - judgement in default of appearance - A judgement entered against the
Defendant after the Court is satisfied that a Writ of Summons or an Originating
Summons has been duly served onto the Defendant but the Defendant has failed to
physically appear or file a notice of his appearance in Court within a specified time
period.
- O13 r1 to r5 - when JID can be entered
- JID cannot be entered when;
- Gov is sued in civil without leave
- Defendant is a minor or a patient without legal representative
- Writ served does not follow O10 r1(4)
- Case of equitable remedies
- How to enter JID - documents required;
- O10 r1(4) - day, date, time, on whom
- Affidavit verifying service - Form 135
- Two completed judgement form duly stamped - Form 75
- Certificate of non-appearance - Form 12
- Rule 56 Legal (Profession and Etiquette) Rules - Before the plaintiff wishes
to enter a default judgement against the defendant, it is a matter of practice
and courtesy that he must first serve a 7 day written notice expressing his
intention to do so.
- Asia Commercial Finance - Non-compliance with rule 56 does not render
the JID irregular.
- Setting aside JID;
- O13 r8 - If the defendant fails to serve defence in time, judgement may be entered
against him and the nature of the judgement will depend on the type of claim
involved.
- Jayamary v Anbuselvy - The court allowed the defendant’ s application to extend
the time to file defence due to problems with the ‘ e-filing system ’.
- O13 r8, O19 r9 - A default judgement is good and enforceable until it is set aside.
- Procedure to set aside;
- O42 r13 - Application made within 30 days from the date of receipt of the judgement.
- O32 r1 - NOA - Form 57 + an affidavit.
- The affidavit must indicate:
(i) Whether the judgement in default was regular or irregular.
(ii) regular - the defendant must state reasons as to why appearance was not entered
and show prima facie evidence; and
(iii) irregular - the defendant need only show why the judgement is irregular and give
reasons for not entering appearance.
___________________________________NURUL AIN AFIQAH 2023____________________________________

(iv) Any defence; and that there is a triable issue

- In all cases where delay is in issue, the burden is upon the litigant who has delayed
to render a satisfactory explanation for it, depending on facts and circumstances
- Primary considerations to set aside JID;
i)Whether the JID is regular;
- Woolley Development v Stadco - It is well settled that if the judgement is irregular
then it ought to be set aside ex defitio justitiae. If it is regularly obtained the applicant
must show that he has a defence on the merits
ii)If regular, whether the defendant has a defence on the merits or an arguable
defence;
- Evans v Bartlam - Lord Atkin - unless and until the court has pronounced a
judgement upon the merits or by consent, it is to have the power to revoke the
expression of its coercive power by a failure to follow any of the rules of procedure.
iii)Whether there was inordinate delay in applying to set aside the judgement in
default;
- Lau Pick Hong - in the exercise of the court's discretion to set aside the JID, the
court is entitled to look at all circumstances including the circumstances under which
the JID was allowed to be entered as well as the explanation for the delay in making
the application
- Ban Huat Seng Co v Lee Poh Soon - the power to set aside a regular judgement
however is discretionary and in exercising its discretion the court may, apart from the
question of merits, consider the conduct of a defendant
- Setting aside regular judgement;
- The judgement means a judgement obtained in compliance with the rules of
procedure
- In the case of a regular default judgement, the main consideration is whether there is
a defence on the merits.
- Nevertheless, unexplained delay may justify the court’s conclusion that the
application to set aside the judgement is not made bona fide.
- Hong Kong & Shanghai Bank v Ismail bin Daud - The defendant should not be
deprived of the opportunity of having his case adjudicated upon merely because he
failed to take a step in the proceedings. The inflexible rule is that where the affidavit
shows a defence on the merits, the application should be allowed.
- Taisho Marine Insurance v Wong Poo - where the affidavit discloses no triable
issues, the application to set aside the judgement in default should be dismissed.
- KWSP v Agni Energie - The High Court found the JID was a regular judgement and
that no merits were raised by the second defendant in her proposed defence. No
bona fide triable issues were raised to justify the setting aside of the JID
- Setting aside irregular judgement;
- Lai Yoke Ngan - a judgement is irregular if it does not comply with the rules which
allows for the JID to be set aside as a matter of right
- The irregularity must be specified in the notice of application and the affidavit in
support.
- The court may set aside JID on the basis of irregularities that include:
a) the failure to serve the summons, the service not provided for by law,
b) the failure to mention the mode of service in the application for substituted service,
c) the plaintiff getting more than what is prayed for or for a sum more than that
allowed by O42 r12
___________________________________NURUL AIN AFIQAH 2023____________________________________

d) the default judgement obtained prematurely, and

e) the judgement entered without leave when leave is required
- Lo Kui Chen v Dr Kalayarasu Subramaniam - There was obvious non-compliance
to serve the defendant on the mode prescribed. Where the law has prescribed the
manner in which service was to be affected, such failure entitles the defendant to set
aside the judgement in default obtained.
- Lau Pick Huong - Once it is known who the lawyer acting for the opponent is, it is a
matter of justice to serve on them. Since the plaintiffs lawyers did not serve the cause
papers on the defendant's former lawyers, the JID should be set aside.

WRIT OF SUMMON

- O5 r2 - an instrument which provides a defendant with notice of the lawsuit - Form

2/2A
- O6 r2(1) - endorsement + form of writ
- O6 r6 - issuance of writ
- O6 r7(1) - date of issuance + duration + expiry + renewal
- Yap Seng Hock v Southern Finance - writ expired and no application was made to
extend. WOS was a nullity
- O3 r5 - extension of time - discretion of court
- Kun Kay Hong - the court allowed renewal of the writ after the limitation period had
expired on the ground that plaintiff’s delay of service was because the solicitors of
the defendant’s insurers asked plaintiff to withhold service.
- Tunku Ibrahim Ismail v Datuk Captain Hamzah - A simple and plain statement that
efforts had been made to serve cannot be a sufficient ground. The affidavits must
provide detailed facts as to when, where and how attempts to serve were made.
- Tong Tai Holdings Sdn Bhd - A plaintiff in a representative action must state clearly
in the summons and statement of claim that he represents the other persons within
the class, failing which he will not have the proper authority to sue on their behalf
- O92 r1 - national language
- Zainun bte Dahlan v Rakyat Merchant Bankers Bhd - court held that the
requirement of Order 92 rule 1 is mandatory. Failure to comply with the provision
resulted in notice of motion (in English) becoming a nullity
- Exception;
(i) a document in the form of an exhibit; or
(ii) in cases of urgency
- Harcharan Singh - Grounds of judgments also do not fall within the National
Language Act 1963/67 thus judges have the discretion to provide their grounds of
judgement in either the national language or English.
- Service of writ;
5. Personal service
- O62 r3
- O62 r3(a) - It is effected by leaving a copy of the document with the defendant to be
served.
- O10 r3(1)(b) - Where the law prescribes the manner in which service is to be effected
in a certain situation, failure to comply with that requirements is fatal and entitle the
defendant to set it aside
___________________________________NURUL AIN AFIQAH 2023____________________________________

- Noraini Abu Bakar - If the defendant is under obligation under an agreement to

notify the plaintiff of any change of address for service, failure to do so would deem a
service on the old address as good service.
- Banque Russe v Clark - the server (Plaintiff’s solicitor’s clerk) served the writ in an
envelope and handed it to the defendant but did not inform him. It was held that the
service was not good personal service.
- Exceptions;
- O10 r1(2) - where the defendant’s solicitor endorses on the writ or originating
process that he accepts service on behalf of the defendant.
- O10 r1(3) - where the defendant enters an appearance although the writ is
not duly served on him.
- O10 r4 - If it involves a recovery of an immovable property and the court has
made an order to affix a copy of the writ on some conspicuous part of the
immovable property.
- O62 r4 - service on corporation
- O62 r5 - where an order is obtained to effect substituted service on the
defendant.
- O73 r3 - Proceeding against the Government
- O11 r5(3) - where service is effected in a foreign country in accordance with
the law of that country.
- O62 r1(2) - where the court dispenses with the requirement for personal
service.
- Prepaid AR registered post
- As an alternative to personal service, this rule allows service by post,
specifically ‘AR registered post’.
- Jaya bin Asahak - the High Court held that PosLaju was also a species of
prepaid AR registered post. The duly acknowledged AR card is commonly
attached to the affidavit of service.
- Lo Kui Chen - It was held that the service on the defendant could only be
affected by way of prepaid AR registered post and not by way of an ordinary
registered post. Where the law has prescribed the manner in which service
was to be affected, such failure entitles the defendant to set aside the
judgement in default obtained.
- Goh Teng Whoo - the court could not seal a JID where the affidavit of service
did not exhibit the AR registered card containing an endorsement as to
receipt by the defendant himself or someone authorised to accept service of
the same on his behalf.
- Disadvantages of AR Registered Post;
- Where registered post is used, the defendant has the opportunity to refuse to
accept service, whereupon the claimant has to resort to substituted service
that will cost more
- In situations where the AR card is signed by someone other than the
addressee named on the AR card, in which event, the presumption of prima
facie, but not conclusive, evidence of service may be rebutted by the said
signature
- Substituted service
- When the parties failed to serve the writ by way of personal service after a
few attempts.
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- O62 r5 - Where the parties are avoiding receiving the service of writ, the
plaintiff may apply to court to serve by way of substituted service - Form 133
- Form 134 - Application + Affidavit stating the facts of which the application is
founded.
- Where the defendant no longer resides at his last known address and
whereabouts of the defendant is not known, or the defendant is evading the
service of writ, the plaintiff may apply to court to serve by way of substituted
service
- Re S Nirmala
- affected by posting the documents at the last known address of
residence or business
- at the notice boards of the court in which the action is brought
- by advertisement in a newspaper of the locality
- in a language which would reasonably ensure that the person to be
served will acquire knowledge of the proceedings against him.
- Practice Note not applicable if the whereabout of the person is not
known at all or his last known address has ceased to be his last
address
- Practice Note 1/68 : In order to be entitled for the substituted service order,
the applicant must show it is impracticable to effect personal service
- Meaning of ‘impracticable’;
a) Two calls should be made;
b) at the defendant’s residence, permanent or temporary.
c) on weekdays and at reasonable hours.
d) Each call should be made on a separate day
e) 2nd call made by appointment
f) On keeping the appointment, the process server should enquire whether
the defendant has received the letter of appointment or not
g) The affidavit in support of the application should deal with the above
requirements whether they have been satisfied or not.
- Malayan United Finance Bhd v Sun Chong Construction - failure to
comply with Practice Note 1/1968 only renders the proceeding irregular and
does not nullify it.

CIVIL FINAL
4 Questions (100 marks)

1. summary judgement
- whether they have complied with the requirements or not?
- JID
- late appearance
striking out
- focus on second limb - interlocutory application (requirements and procedure) - o14 r2
2. writ of summon
- problem based
- relates to another topic
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3. Parties
- joinder, tpp & intervener (essay)
4. Drafting (SOD high chance)
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REVISION CLASS

- PARTIES - NOT LAPSE OF LIMITATION PERIOD - RIGHT TO ADD PARTY - IF

NOT IT MEANS THAT AS IF WE HAVE WAIVE OUR RIGHTS - LIKE BRINGING
ACTION FOR THE FIRST TIME
- JOINDER - O. 15, R.
- WRONGLY ADDED AS PARTY - MISJOINDER
- NOT ADDED AS PARTY - NON-JOINDER -
- PEGANG MINING TEST - CAN THE JUDGEMENT BE ENFORCED AGAINST THE
PARTY FOR THE PARTY TO BE ADDED - EG. ADD EMPLOYER OF DEFENDANT
- THE WRONGFUL ACTION WITHIN JOB SCOPE OF DEFENDANT
- TEST OF HEE AWA - O. 15, R. 6(2)(b) - IF ADDING THE PARTY WOULD PROVIDE
A CLEARER PICTURE, THEN THE PARTY WOULD BE ABLE TO BE FILED IN -
TWO OPTIONS - JOINDER / THIRD PARTY PROCEEDINGS - SEPARATE AND
INDEPENDENT PROCEEDINGS - CONTRIBUTORY NEGLIGENCE -
CONTRIBUTION OF LIABILITY - LIMITATION PERIOD STARTS FROM THE DATE
THE JUDGEMENT IS ENTERED AGAINST THE DEFENDANT
- WHY NEED TO ADD AS PARTY - CAN ADJUDICATE THE MATTER EFFECTIVELY
- PLAINTIFF HAS THE RIGHT TO OBJECT - BURDEN TO PROOF IS ON THE
PLAINTIFF - I'M ONLY CONCERNED WITH THE NEGLIGENCE OF THE
DEFENDANT - TAJUL ARIFFIN CASE - PLAINTIFF CAN OBJECT A THIRD PARTY
IF HE IS NOT CONCERNED WITH HIM
- CONSTRUCTION CASE - THERE IS DEFAULT - SUB-CONTRACTOR - PLAINTIFF
CAN OBJECT - TO PROVE NEGLIGENCE OF SUBCONTRACTOR - SO THIRD
PARTY PROCEEDINGS CAN BE FILED BY DEFENDANT
- FAILURE TO ADD PARTY CAN BE FATAL
- INTERVENER - PENCELAH - NOT ORIGINALLY PARTY BUT CLAIMED INTEREST
IN THE SUIT AS IT AFFECTS HIS INTEREST - TEST PEGANG MINING
- CASE - TO GIVE NOTICE - COURT MUST CONSIDER THE INTEREST OF THE
INTERVENER - NOT TO GIVE LAND BUT TO GIVE DAMAGES TO THE NATIVES
- PARTIES SOALAN ESSAY

- WRIT OF SUMMON - SOALAN PROBLEM - RELATES TO ANOTHER TOPIC

- WRIT FILED USING FORM 2 OR 2A - FILED AT THE REGISTRY WITHIN
LIMITATION PERIOD - OR ELSE THE MATTER WILL NOT BE REFERRED /
WOULD BE TIME-BARRED
- VALIDITY PERIOD STARTS TO RUN - PL HAVE 6 MONTHS TO SERVE WRIT -
FROM DATE OF EXCEPTION - FIRST ATTEMPT IN FIRST MONTH - LAPSE OF
VALIDITY PERIOD
- EXTENSION OR RENEWAL - APPLYING EXTENSION IS MANDATORY - ISSUE
ON TIMELINE IS MERE IRREGULARITY NOT AMOUNTING TO NULLITY - IT IS
INCURABLE - BECAUSE WE CANNOT SERVE INVALID WRIT
- PERSONAL SERVICE - TAK SEMESTINYA TERIMA ACKNOWLEDGEMENT OF
SERVICE - IT CAN BE REGARDED AS A GOOD SERVICE - EXPLAIN THE
CONTENT OF THE DOCUMENT - AS LONG AS IT IS PUT NEARBY TO HIM AND
EXPLAINED
- AR REGISTERED POST - ACKNOWLEDGEMENT TO THE RECEIPT ATTACHED
TO THE ENVELOPE - THE AR CARD MUST DO AFFIDAVIT - ADA
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ACKNOWLEDGEMENT - VIA ELECTRONIC COMMUNICATION ALSO - CAN BE

DONE PERSONALLY OR REGISTERED POST -
- SUBSTITUTED SERVICE - PENYAMPAIAN GANTI - WHEN NOT KNOWN THE
LAST ADDRESS - MUST DECLARE LAST ADDRESS TO BANK - IF NOT THE
LAST ADDRESS IS GOOD SERVICE - FORM 133, 134 (AFFIDAVIT) - THEN CAN
START IN THE APPLICATION - HOW IT IS DONE WHETHER VIA
ADVERTISEMENT OR EMAIL - DO APPLICATION IN COURT TO SEE WHICH IS
APPLICABLE
- IF AT TIME OF FILING ACTION HE IS RESIDING ABROAD - SERVICE OUTSIDE
JURISDICTION BY APPLYING LEAVE TO SERVE ON DEF - OUTSIDE
JURISDICTION ACCORDING TO THE LAW OF THAT COUNTRY
- 14-20 DAYS TO ENTER APPEARANCE - FORM 11
- LORRAINE OSMAN

- APPEARANCE - ISSUE: IF NOT ENTERED APPEARANCE - NOTIFY - MUST

SERVE WRIT - CAN ENTER JID - DEPENDS ON WHICH CLAIM BCS NOT ALL
CAN APPLY FOR JID - FOR MONETARY CLAIMS ONLY / ANY DELIVERY OF ANY
GOODS - NOT APPLICABLE FOR EQUITABLE REMEDIES - AS IT INVOLVES THE
DISCRETION OF COURT - ENTER APPEARANCE LAPSED - AUTO ENTITLED
FOR PLAINTIFF TO ENTER - 7 DAYS NOTICE IS NOT MANDATORY - NOT
SERVED 7 DAYS NOTICE IS MERE IRREGULARITY NOT AMOUNTING TO
NULLITY
- FILE THE DOCUMENT - COURT WILL ENTER JID - JUDGEMENT WILL BE
CONSIDERED AS A GOOD AND ENFORCEABLE JUDGEMENT - CAN BE
EXECUTED UNTIL IT IS SET ASIDE - COURT WILL ALWAYS RESERVE THE
RIGHT TO SET ASIDE AS IT IS NOT ENTERED ON MERIT - EVAN BUTLER
DEVELOPMENT
- 30 DAYS - CAN SET ASIDE AS LONG AS IT DOES NOT PREJUDICE ANY PARTY
- JUDGEMENT ENTERED REGULAR OR IRREGULAR - IF THERE IS, THE
IRREGULARITY MUST BE MENTIONED AND THEN THE COURT WILL SET
ASIDE AS A MATTER OF RIGHT - PROCEDURE BEFORE MUST BE
UNDERSTOOD TO DETERMINE WHETHER IT IS REGULAR OR IRREGULAR JID
- REGULAR THEN PF DEFENCE ON MERIT - MUST FILE NOTICE OF
APPLICATION WITH AFFIDAVIT WITHIN 30 DAYS - WHETHER JUDGEMENT IS
REGULAR OR IRREGULAR - DEPENDS ON FILING/EXTENSION/SERVICE -
RELATED WITH WRIT - THEN COURT CAN DECIDE TO SET IT ASIDE OR NOT -
- HOW TO ANSWER - 30 DAYS FILING SERVICE - NOA AND AFFIDAVIT -
JUDGEMENT REGULAR OR IRREGULAR - WHAT IS REGULAR OR IRREGULAR
- CASE - IF REGULAR THEN PF DEFENCE - NO DEFENCE MENTIONED MAKE
PRESUMPTION - 14 DAYS TO FILE DEFENCE
- IF DOES NOT MENTION GOOD DEFENCE - MAKE PRESUMPTION -
JUDGEMENT WAS REGULARLY ENTERED HOWEVER NO DEFENCE WAS
MENTIONED

- SUMMARY JUDGEMENT - WHEN ENTER MEMO OF APPEARANCE - 14 DAYS

TO ENTER STATEMENT OF DEFENCE - BEFORE SOD BEING FILED - BUT NO
TRIABLE ISSUE - ONLY BARE DENIAL - DEFENCE HAS NO WEIGHTAGE - CAN
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APPLY FOR SUMMARY JUDGEMENT - NO NEED TRIAL - NO ISSUE TO BE

TRIED
- AFTER ENTERED APPEARANCE - NEXT STEP IS TO FILE SUMMARY
JUDGEMENT - IF ER SUMMARY - NATURE OF CLAIM CANNOT GO FOR JID -
DEEMED TO HAVE ENTERED APPEARANCE - NEXT STEP IS JID OR SUMMARY
JUDGEMENT - IT DEPENDS
- REGULAR/IRREGULAR - NO DEFENCE THEN DEEMED TO BE REGULAR
- SUMMARY JUDGEMENT - INTER PARTE FOR ALL APPLICATION
- NOTICE OF APPLICATION - FORM 47 - AFFIDAVIT IN SUPPORT - MUST HAVE
PRIMA FACIE CASE - MUST EXPLAIN AND VERIFY THE CLAIM - CANNOT
AMEND AFFIDAVIT, ONLY PLEADINGS - IF THERE IS CORRECTION -
AFFIDAVIT PEMBETULAN - IF MISSING - AFFIDAVIT PENAMBAHAN
- AFTER COMPLY REQUIREMENT - THERE IS PF CASE FOR SJ - BURDEN
SHIFTED TO DEF - WHEN SERVED ON DEFENDANT - DEFENDANT MUST
OPPOSE VIA AFFIDAVIT IN REPLY - NOT LIKE JID - THERE MUST BE TRIABLE
ISSUE - THEN GO FOR HEARING - IF AFFIDAVIT IN REPLY NOT GIVEN - HE
AGREES THAT THERE IS PRIMA FACIE CASE AGAINST HIM
- HOW TO DETERMINE ISSUE OF LAW IS TRIABLE ISSUE - IF THE EVID MUST
BE TENDERED IN COURT TO INTERPRET THAT LAW - THERE IS A REASON TO
GO FORMALLY FOR TRIAL
- NO AFF IN REPLY - HE ADMITTED THERE IS PF CASE ON THE SUMMARY
JUDGEMENT - 9
- PL PROVE PF CASE ON SUMMARY JUDGEMENT - BURDEN SHIFTED ON
DEFENDANT TO CHALLENGE IT - MUST SHOW CONTENTION VIA AFFIDAVIT IN
EVIDENCE THAT THERE IS TRIABLE ISSUE
- IF TRIABLE ISSUE OF LAW - COURT HAS DISCRETION TO DECIDE WHETHER
THE ISSUE OF LAW RAISED REQUIRE FURTHER FACT OR EVIDENCE TO BE
DECIDED ON THAT - THEN KENA GO FOR TRIAL - FALL UNDER SECOND LIMB
- IF IT INVOLVES POINT OF LAW - NO NEED TO GIVE EVID - TO INTERPRET THE
LAW REQUIRE FURTHER FACT - THEN MUST GO FOR TRIAL TO INTERPRET
THE LAW
- SOME OTHER REASON OUGHT TO BE TRIED - ISSUE OF DOC/STATUTE -
REQUIRE FURTHER FACT TO CONSTRUE - SET-OFF/COUNTERCLAIM -
DISCOVERY OF DOCS COME LATER - OTHER REASON THEN CAN GO FOR
TRIAL - CANNOT ENTER SJ
- INTERLOCUTORY APP - SOMETHING UNCLEAR - ISSUE RAISED - SOME
OTHER REASON
- FOCUS ON SECOND LIMB

- DRAFTING OF PLEADING - STATEMENT OF CLAIM - CONTRACT / TORTS -

STATEMENT OF DEFENCE - SET OFF / COUNTERCLAIM

- APA YG KELUAR LAST SEM TAK KELUAR THIS SEM