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Oct 2022 (Civil Procedure)

Question 1
Q1(a)(i)

• s.6(1)(a) Limitation Act 1953 – 6 years from the date the cause of action accrues
o OTF, C/A should accrue when AST defaulted on the repayment ie. Sept 2014
• On 10/10/2014, AST acknowledged the debt – this amounts to fresh accrual of C/A (s.26 LA)
• However, AST made last payment on 20/1/2017 – this again amounts to fresh accrual of C/A
(s.26 LA)
• Therefore, C/A accrued on 20/1/2017
• By virtue of s.6 LA, Bank is still within time to file an action against AST

Q1(a)(ii)

• Credit facility is provided by Bank to AST hence, the partnership (AST) should be sued
• However, partnership is not a legal entity/body corporate thus, cannot be sued
• Exception: O77 r1 – partnership may be sued in the name of the firm
o OTF, “AST & Co.” will be appropriately named as defendants

Q1(a)(iii)

Where to file the action?

• Monetary jurisdiction
o OTF, debt/outstanding amount is RM1,500,000
o Exceeds monetary jurisdiction of Sessions Court ie. which is 1mil (s.65(1)(b) SCA 1948)
o Therefore, must file in High Court (s.23 CJA 1964)
• Subject matter jurisdiction
o No dispute
• Territorial jurisdiction
o Art.121 Federal Constitution – 2 HC – High Court of Malaya & High Court of Sabah and
Sarawak
o s.3 CJA – local jurisdiction of HC of Malaya includes territories in West Malaysia
o s.23 CJA – HC have jurisdiction to try proceedings where (a) cause of action arose, (b)
where D resides/place of business, (c) facts surrounding the proceeding exist/occur
o OTF, AST place of business in Temerloh and Bintang in Kuantan – both in Pahang
o So, should file in HC of Pahang (Temerloh)

By what mode of proceeding?

• Although no substantial dispute of facts OTF, Bank advised to file writ under O5 r1-2 to enable
it to go for summary judgement (since Bank intends to dispose of the case “expeditiously”)

Q1(b)

• s.28 Courts of Judicature (Amendment) Act 2022 – cannot appeal against Sub Court decision
to HC if amount in dispute is <10k unless there is question of law
o College University Tunku Abdul Rahman v Dr. Muhamad Omar [2023] 1 CLJ 437 (HC)
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• OTF, if there is no Qs of law then Bank cannot appeal. If there is Qs of law, it must be stated
in either the notice of appeal or the memorandum of appeal.

Question 2
Q2(a)

• Issue 1: Affidavit dated earlier than date of OS

o Technicality argument, not into merits
o There is nothing in ROC (O7, O28, O41) providing for date of affidavit must be dated
either before/after filing of OS
o O28 only provides for time of filing and service of OS
o However, there are different case views on the admissibility of an affidavit which is
dated earlier than the OS
▪ Arab Malaysian Finance v Serajudin
̵ Affidavit affirmed a week before OS was filed is a nullity &
inadmissible
▪ MBSB v Univein S/B
̵ Not a nullity & admissible
o Judge shall have regard to the overriding interest of justice and not only to technical
non-compliance (O1A)

• Issue 2: Business address stated only and not residential address

o O41 r1(4) – shall state place of residence and his occupation
o Advise to file supplementary affidavit to cure the defect

• Issue 3: Affidavit in English

o O92 r1
▪ All documents annexed to the affidavit shall be in national language and may
be accompanied by translation in English
▪ Any document annexed to affidavit in English language may be used as exhibit
with/without translation in national language
o O41 r13 – affidavit affirmed outside jurisdiction (Malaysia) may be filed in English
language unless Court others otherwise
o OTF, it is not a valid objection

Q2(b)(i)

• OTF, still at interlocutory stage since trial is pending

• Advise Raman to apply for a temporary prohibitory injunction – last from date of injunction
granted until date of judgment
o Prohibitory injunction is to prevent Alan from doing an act (ie. to transfer out the land)
• Procedure
o OTF, case is urgent – apply ex-parte (O29 r1(2)) – also note content of affidavit (O29
r1(2A)):
▪ Raman has duty to make full & frank disclosure
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▪ Affidavit must also provide the cause of action

o Conditions to be satisfied – American Cynamide v Ethicon & Keet Gerald Francis v
Mohd Noor – apply:
▪ Serious question to be tried
̵ OTF, there is a triable issue
▪ Compensation insufficient
̵ OTF, if Alan transferred the land away, Raman will be at huge loss and
compensation will be inadequate
▪ Undertaking as to damages
̵ OTF, Raman should give undertaking
▪ Balance of hardships
̵ OTF, the losses that Raman will face if injunction not granted
compared to Alan if injunction granted is grossly more than the latter
▪ Full and frank disclosure
▪ Prompt application
• OTF, prohibitory injunction should be granted

Q2(b)(ii)

• Ann & Sally is a stranger to the suit between Raman & Alan
o Ann & Sally as the third party can only be brought into the suit by Alan (but Alan went
into hiding)
o Therefore, Ann & Sally is advised to apply as intervener (O15 r6(2)(b)(ii)) instead to
intervene the said suit to prevent injustice being done to them since a potential
judgement against Alan will affect both their rights & interests
• Procedure – interlocutory application – NOA (F57) + AIS (O15 r6(3), O32 r1, O41)
• Timing – O15 r6(2) & Hong Leong Finance v Staghorn – at any stage of proceeding before
judgement
• Contents of affidavit – Ann & Sally must adduce evidence to show the alleged land in Port
Dickson is theirs and was held on trust for them by Alan ie. the trust deed
• O15 r6(2)(b)(ii) – court will add Ann & Sally if they can show there exist a Qs or issue (ie. that
they have beneficial interest over the land) connected with any relief claimed by Raman
against Alan
o OTF, got issue, Ann & Sally has to establish their interest is affected in the case
o Pegang Mining v Choong Sam – OTF, Ann & Sally’s rights must be directly affected by
the Court order
o Tohtonku v Superace – must show some interest directly related to subject matter of
action
• OTF, Ann & Sally is the beneficiary of the land held on trust for them by Alan. Hence, Ann &
Sally’s beneficial interest will be affected so court will grant leave.
• If leave to intervene not granted, Ann & Sally’s position will be vulnerable as they are not able
to defend the suit despite having beneficial interest in the land in dispute
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Question 3
Q3(a)
Procedure – appeal from HC to COA
• s.67(1) CJA 1964 – COA has jurisdiction to hear appeal from HC
• s.68 CJA – OTF, value of subject matter is unknown
o If <250k – leave of court required for appeal
o If >250k – appeal as of right (no need leave)
▪ Since the disputed area concerns land/property matters, highly likely the
value involved in more than 250k
o Also see, Court of Appeal Practice Direction 1/2017 on rights of appeal without leave
• r.12 & r.17 Rules of COA 1994 – must file 4 copies of Notice of Appeal (Form 1) within 30 days
from judgement date

Stay of execution pending appeal

• s.73 CJA & r.13 Rules of COA 1994 – GR – appeal is not stay of execution unless court directs
otherwise
• However, if there is a need for stay of execution, it must be applied for
o Application in the first instance must be to the court of first instance
▪ To be applied orally at the point/when judgement was given; or
▪ Applied by way of Notice of Application + Supporting Affidavit if subsequent
to judgement given – OTF, this since judgement was already given and
developer approached us after that
o If application made to COA (if HC refuses) – must be by way of Notice of Motion
supported by affidavit
• Principles in granting stay
o Must show special circumstances
▪ Serangoon Garden Estates v Ang Keng
̵ Merely showing appellant could not be restored to the same position
as before is not special circumstances unless coupled with some other
factors/merits in appeal
o A host of factors making up special circumstances to determine whether stay should
be granted are as follows:
▪ Whether it will render a successful appeal nugatory
▪ Nature of judgement
▪ Any merits
▪ Irreparable damage will be caused

Q3(b)
• An appeal is a re-hearing
• A point not raised in the pleadings (SOC) cannot be raised in an appeal
• Yew Wan Leong v Lai Kok Chye
o It is not the duty of the court to make out a case for a party when he does not raise
the point
• Exceptions – when the point is pleaded but not raised
o New point is solely on point of law/fact and not further evidence required
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o Lack of jurisdiction – it is a point of law which can be raised at any stage of the
proceedings
o Illegality (Qs of law) – see Mehrong Mahawangsa v Dato Eskay & Patel v Mirza
o In the interest of justice
• OTF, the locus standi issue cannot be raised on appeal because it is not pleaded at all hence,
the developer is unlikely to succeed in raising the locus standi issue as none of the exceptions
apply

Question 4
Q4(a) – stakeholder’s interpleader proceedings
• Disinterested party (insurance party) holding property of rival claimants (Lim & Wong) and the
party is in anticipation of suit
• OTF, this will come under O17 r1(1)(a) of stakeholder’s interpleader
• O17 r3 – insurance company will commence interpleader proceeding:
o Apply by Notice of Application in F28 incorporating OS + supporting affidavit
▪ O17 r3(2) – content of affidavit
̵ No interest in property – OTF, yes
̵ Not colluding with other side
̵ Willing to abide by the Court
o Serve OS 7 days before return date (O17 r4(4))
▪ Must be personal service (O62 r3) to Lim & Wong
• O17 r5 – court may hear on summary determination
• Conclusion – however, there is no real threat/expectation of being sued for court to provide
interpleader relief (Tetuan Teh Kim Teh v Tan Kau Tiah)

Q4(b) – judgement in default of defence

• Claim against XYZ for:
o Arrears of rental = liquidated damages (within O19 r2)
o Vacant possession = possession of land (within O19 r5)
o General damages = unliquidated damages (within O19 r3)
• O19 r6 – landlord will make a mixed claim in one SOC
o For the part on liquidated damages & possession of land – landlord will enter final JID
o For the part on unliquidated damages – landlord will enter interlocutory JID
• O19 r7 – apply to court for JID of defence
o For arrears of rental – enter F75(a)
o For possession of immovable property, damages & cost – enter F75(e)
• Claim against director of XYZ for arrears of rental = liquidated damages (within O19 r2) – enter
final JID in F75(a)
• After entering interlocutory judgement, landlord to go for assessment proceedings (O37) to
assess damages so it will become final judgement

Q4(c)(i)
• O55 r7 – fresh evidence shall not be admitted unless:
o New evidence was unavailable or reasonable diligence would not have made it
available; and
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o It would have a determining influence upon the decision of the Sub Court
• OTF, P is likely able to adduce fresh evidence as the documents he wants to rely on was
recently discovered after SC granted judgement and can potentially persuade (influence) the
HC to increase the quantum of damages.

Q4(c)(ii)
• O55 r8 – notice of cross appeal
o D can only contend that the SC’s decision should be varied
• Kabushiki Kaisha Ngu v Leisure Farm
o Cross-appeal can only vary a decision and not the whole (ie. cannot set aside a
judgement/order)
o Cross-appeal must be what the main appeal is dealing with
• OTF, P is seeking to increase the quantum of damages only but D wants to appeal against the
whole decision (ie. liability & quantum) hence, P can object the notice of cross-appeal on such

Question 5
Q5(a)(i)
• Defendant (Abu) intends to seek remedies (indemnity) against strangers (Malek) to the suit
o Cannot bring Malek as co-defendant as he is not privy to the contract
o Can only bring Malek to suit as third party (3P)
• Advise Abu to commence third party proceeding (3PP) under O16 r1(1)(a) for indemnity for
the judgement should it be made against him in the writ action by the bank
• After Abu entered appearance (O16 r1(1)) for the suit between him & the bank, he can take
out 3P notice but leave is required since he had entered his defence (O16 r1(2))
• Procedure to obtain leave – O16 r2 – ex parte NOA in F20 + Supporting Affidavit
o Content of affidavit (O16 r2(2)) – must state:
▪ Nature of the bank’s claim
▪ The stage in the proceeding
▪ Nature of 3P’s claim – OTF, for indemnity (O16 r1(1)(a))
▪ Name & address of 3P (Malek)
• Once leave obtained, serve Malek the 3P notice (in F18) within time prescribed in order giving
leave accompanied with writ & pleadings (O16 r3(2)) via personal service/AR registered post
(O10 r1)
• Malek has 14d to enter appearance in F21 – O16 r3(3)
o If Malek did not enter appearance, he is deemed to admit 3P claim against him &
bound by any judgment (O16 r5)
• Once Malek entered appearance, Abu shall then apply for direction by NOA & serve on all
parties (O16 r4(1))
o If Abu did not apply, Malek can apply to set aside 3P notice after 7d after entering
appearance or apply to proceed with 3P claim (for directions) (O16 r4(2))
• Court may direct to give judgment in favour of Abu/ Malek/ terminate 3PP (O16 r4(3))/ leave
to defence (O16 r4(4))
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Q5(a)(ii)
• Malek is not privy to the contract of guarantee between the bank and Abu
• Hence, Abu cannot apply to court to order Malek to pay directly to the bank

Q5(a)(iii)

• s.6(1)(a) Limitation Act 1953 – 6 years from the date the cause of action accrues
o OTF, C/A accrue when the Company defaulted in the repayment of the loan
• Mat Abu v GOM – OTF, limitation period starts to run the moment Abu is made liable to the
bank

Q5(b) – enforcing judgement

• s.6(3) Limitation Act 1953 – 12 years from the date judgment became enforceable
• Subject to O46 r2(1)(a) – leave of Court is required to obtain writ of execution for enforcing
judgement where 6 years have lapsed
o OTF, 6/2016 to 7/2022 – 6y have passed so leave is required
• O46 r3 – procedure for application for leave to issue writ
o O46 r3(3) – granting of leave is discretionary – exercised judicially based on the reason
▪ Reason? – OTF, D went into hiding
▪ Any effort made to find D?
o Affin Bank v Wan Abdul Rahman – sufficient reason is the burden of the judgement
creditor to furnish the court though it varies from case to case
o Malayan Banking v Chong Hin Trading – a considerate JC should not be denied from
the fruits of its litigation
o OTF, with regards to the bare facts provided, court is unlikely to exercise its discretion
unless P had made reasonable efforts to search for D

Question 6
Q6(a) – request for further and better particulars (O18 r12)

• Dato Seri Ling Liong Sik v Krishna Kumar – to seek clarity on facts arising from pleadings
o OTF, need to seek clarity as allegations of breach of trust is too brief & vague
o OTF, facts of allegations arise from the SOC (ie. pleadings)
• Timing – after defence (O18 r12(5))
o OTF, trustee can request more details after entering defence
• Procedure
o Request by formal letter (O18 r12(6)) – must be specific & precise
o If request failed/refused – apply inter parte NOA + AIS for court order for RFFBP
o If court thinks just, order further & better particulars be served to trustee in F31 (O18
r12(3), (4))
o Beneficiary shall serve details as ordered (O18 r12(7))
• Principles
o Cannot be facts not arising from pleadings
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o No issues of fishing, relevancy, oppressive, privilege, Qs of law, Qs of interpretation,

Qs of evidence [FROPQLIE]
o Only can ask for facts, not evidence (Skrine v MBF Capital)

Q6(b) – discovery

• O24 r10 – discovery by notice

o Applicable if D’s pleadings/affidavit refer to the document containing the warranties
in respect of the printing machine and that document is wanted by P
o Procedure
▪ P serve Notice in F41 to D
▪ D has 4d to serve Notice in response in F42
̵ Since D would refuse/reject to do so, grounds must be stated
▪ Due to D’s refusal, P shall apply by NOA + Supporting Affidavit to seek court
order in F43 for D to produce the document for inspection (O24 r11)
▪ Failure for D to comply with the court order will cause D’s defence to be struck
out & default judgement entered (O24 r16(1))
• s.131 Evidence Act 1950 – OTF, privilege does not apply as the document in D’s possession is
not one he would be entitled to refuse to produce

Q6(c)(i)

• Syarikat Marak Jaya S/B v Syarikat Masinda S/B – a perfected consent order can be reviewed
only with the consent of both parties
o OTF, the consent judgement is perfected as it was sealed by court (Tan Ah Yeo v Seow
Teck Ming) hence, can only review with consent of both P & D
• However, Lau Ming Hing v Bank Pembangunan Malaysia – consent judgement is like a
contract, cannot be set aside unless on grounds of mistake
o OTF, D alleged he was misled into agreeing to the terms of the consent judgement
o Hence, he might argue that his consent was not given freely so no consent was given
(Khaw Poh Chuan v Ng Gaik Peng), constituting grounds to set aside the consent
judgement
• Leong Ah Weng v Neoh Thean Soo – OTF, D is required to file a fresh action if he wishes to set
aside the consent judgement
• OTF, D made an application to court instead of filing a fresh action – procedurally wrong
• Also, D unlikely able to set aside the consent judgement as is perfected

Q6(c)(ii)

• A judgement once perfected (sealed by court) cannot be altered or varied by court unless it
falls under the “slip rule” of O20 r11
• O20 r11 – clerical mistakes in judgement or errors from accidental slip may be corrected by
court without an appeal
• Syarikat Marak Jaya S/B v Syarikat Masinda S/B – “slip rule” applies to consent judgement
• OTF, the consent judgement has been sealed by court hence, is perfected but the exception
of “slip rule” applies due to the accidental typographical error in the consent judgement sum
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• Therefore, P may apply to court by way of NOA + supporting affidavit (O20 r11) to amend the
error of RM50,0000 to RM55,000

Question 7
Q7(a)

1st Defendant
• What document to amend? – OTF, writ
• When amending it? – OTF, after service of writ but before 1st D filed defence (ie. before close
of pleadings)
• What type of edit? – OTF, altering capacity of 1st D
• How many previous amendments done? – OTF, assuming first amendment
• O20 r1 – may amend once without leave before close of pleadings (O18 r20)
• However, leave is required as the type of amendment falls under O20 r1(3)(a)
• O20 r5(4) – OTF, amendment will not be allowed as the ‘new’ capacity (if amendment is
allowed to alter the wrong capacity) was not one in which at the date of issue of writ P would
have sued

2nd Defendant
• What document to amend? – OTF, SOC
• When amending it? – OTF, after service of writ & 2nd D had filed defence
• What type of edit? – OTF, to add certain facts
• How many previous amendments done? – OTF, assuming first amendment
• Whether leave is required to amend depends on whether pleadings had closed
o If 14 days lapsed after 2nd D served his defence, pleadings will close (ie. amending after
COP)
▪ Then, apply for leave under O20 r5(1)
o If pleadings not closed, can amend once without leave (O20 r3)
▪ File and re-serve to 2nd D

3rd Defendant
• What document to amend? – OTF, writ
• When amending it? – OTF, before service of writ
• What type of edit? – OTF, to bring action against 3rd D’s estate as he died
• How many previous amendments done? – OTF, assuming first amendment
• OTF, amendment will not be allowed as defamation claims cease to subsist upon death (s.8(1)
CLA 1956)

Q7(b)

• O34 r2(3) – court has power to strike out D’s defence

• O34 r2(4) – court has power to set aside judgment made under O34 r2(3), on the application,
as it thinks just
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• Setting aside the judgement

o O13 r8 – court has power to set aside a JIDA
o O19 r9 – court has power to set aside a JIDD
o Timing – apply to set aside:
▪ O42 r13 (general) – Within 30d after receipt of judgement & serve on P
▪ O35 r2(2) (specific) – Within 14 days, for judgement given in absence of D,
after receipt of judgement
o Procedure – ex-parte NOA (F57) – O32 r1
o Principles
▪ May be set aside if there is defence on the merits
▪ Must show whether there is defence
̵ see Evans v Bartlam (for JIDA)
̵ see Hasil Bumi Perumahan v United Malayan Banking (for JIDD)

Q7(c)

• s.21 Limitation Act 1953 – OTF, bank still within limitation period of 12y to enforce the charge
against borrower
• OTF, charge is created when borrower charges his land to the bank for a housing loan
• As borrower defaulted on payment of housing loan, the bank will sell the charged property to
pay off the debt
• Requirements to be stated in affidavit (O83 r3)
o Must exhibit a copy of the charge
o Must show circumstances on which the right of possession arises
o Must prove money is due and payable
o Must give particulars of amount remaining due under charge
• Additional procedural requirement – O83 r2(4) – OTF, bank shall serve written notice of the
adjourned hearing, together with a copy of any further affidavit intended to be used at the
hearing, on the borrower not less than 2 clear days before the hearing date
o Proof of service is by an affidavit of service signed by bank/its solicitor