Malaysian Civil Court Procedure Note 2 of 4 Notes

Universiti Kebangsaan Malaysia Fakulti Undang-undang
Musbri Mohamed DIL; ADIL ( ITM ) MBL ( UKM )


Services of OS and others Introduction Service is the means by which a document used by a party in legal proceedings is brought to the notice of the other parties to the action or other persons who may become involved. The rules prescribe a variety of methods the application of which depends on the nature of the document and the circumstances. Personal Service The word 'personal' indicates that the document must be brought to the attention of the person to be served by a physical act of delivery to him personally.


How Personal Service Effected Personal service of a document is effected by leaving a copy of the document with the person to be served and, if so requested by him at the time when it is left, showing him: (a) in the case where the document is a writ or other originating process, show the sealed copy; (b) in any other case, show an office copy. O.62 r 3 (a) and (b)


Body Corporation If the person is a corporation, personal service is effected: O. 62 r. 4 and (S. 3550, 339 CA). (a) by leaving a .copy at the registered office (if any) of the corporation or (b) by sending a copy by registered post addressed to the corporation at the registered office or if the corporation has more than one office at its principal office; or (c) by handing a copy of the writ to the secretary , any director or any other principal officer of the corporation.


Order 10 rule 1 (1) was amended by the RHC (Amendment) Rules 1993. The effect of the amendment is that a writ may be served on the defendant by sending it by prepaid AR registered post addressed to his last known address. The prepaid AR registered post also applicable to other originating processes. 0. 10 r. 5 Service is deemed to be effected by properly addressing, pre paying and posting by registered post a letter containing the document. S. 12 (a) Interpretation Act. Service by registered post is presumed to have been effected at the time when the letter would have been delivered in the ordinary course of post. S. 12 (b) Interpretation Act.


Circumstances In Which Personal Service Is Generally Required (a) Originating process may be served personally (b) If a writ is amended after it has been .served the amended writ must be served on each defendant to the action unless the court otherwise directs. (c) Documents which are to be served on persons who are not yet been notified or involved in the proceedings yet. (d) A third party notice to a party not yet party to the proceedings. (e) A defence and counter claim against party who is not yet a party to the proceeding.


Exception to Personal Service (a) A writ need not be served where the D or his solicitor undertakes in writing to accept service and enter an appearance. O.62 r. 1 (3) and O. 10r.1 (2) (b) Where the defendant's solicitor indorses on the writ a statement that he accepts service of the writ on behalf of the D. In this case the writ is deemed to have been duly served on the D on the date on which the endorsement was made. 0. 10 r.1 (2) (c) Where P has obtained an order for substituted service (d) Where the writ is by the leave of the court issued for service outside the jurisdiction.


Substituted Service The court has the discretion to make an order in Form 135 for substituted service if it appears that it is impracticable for any reason to serve that document personally. 0. 62 r. 5(1) The application for substituted service is made by way of ex parte summons, which is supported by an affidavit in Form 136, stating the facts on which the application is based and method of service which would bring the action to the D's notice. O. 62 r.5(2) Mode of Substituted Service No restriction is placed on the mode of substituted service; the primary consideration is how the matter can be best brought to the personal attention of the person in question himself: Re McLaughlin (1905) AC 343.


In general the order will be for service by posting a copy of the writ (a) on the door of the defendant's last known address; and (b) posting the writ on the notice board of the court which issued the writ ;and (c) by advertising in local newspaper in the language of the defendant (if D is an Indian who knew Tamil and English advertise in both newspaper. O. 62 r. 5(3) Johannes Koplan v AW Chen P injured in a traffic accident . D an Australian national . P could not serve writ outside jurisdiction in the ordinary way. P obtained substituted service wide advertising in Australian Newspaper which was affirmed by the court.


Effect of Substituted Service The effect of substituted service carried out in pursuant to an order of court is equivalent for all purpose of actual service and will be regarded as properly served even the D is not aware of the action against him. Once substituted service has been executed and no appearance is entered, the P may obtain judgment. Subject to the right of D to set aside the judgment on the merits-Proof of substituted service is by an affidavit affirming that all steps to effect such service have been taken.


Service On Agent Of Principal The P who seeks to effect service of the writ on the agent of an overseas principal must apply ex parte and satisfy the court (by applying a leave from Court) that: (a) a contract has been entered into within the jurisdiction with or through an agent who is either an individual residing or carrying on business within the jurisdiction or a body corporate having a registered business or office within the jurisdiction. (b) the principal for whom the agent was acting was at the time the contract was entered into and is at the time of the application neither such an individual nor such a body corporate; and (c) at the time of the application either the agent's authority has not been determined or he is still in business relations with his principal. 0. 10 r. 2(1) (a) - (c).


Service Out Of Jurisdiction Where the D is at the time of the issue of the writ, resident outside the jurisdiction and falls under any of the circumstances set out in O 11 r. 1 service on him car only be effected outside the jurisdiction. The leave of the court must be applied and obtained for the issue of the writ as a precondition to service of the notice out of the jurisdiction. Nature of Application (1) Service out of the jurisdiction is effected by notice of a writ (not the writ itself) in Form 11. 0.11 r.3. The notice states the details concerning the action which has been begun against the D, inform him of the requirements relating to the entry of appearance and warns that failure to comply may lead to the entry of default judgement. (2) The application must be supported by an affidavit in Form 12 stating the grounds on which the application is made and that in the deponent's belief the P has a good cause of action showing in what place or country the D is or probably may be found. O, 11 r4(1).


(3) The court will not grant the leave unless it shall be made sufficiently to appear to the court the case is proper one of service out of jurisdiction. O. 11 r. 4(2). (4) The proposed form of service out of jurisdiction must be permissible under the law of the foreign jurisdiction. 0.11 r 5 (2). (5) The process of Substituted service outside jurisdiction may also apply. O. 11. The must be a 'practical impossibility' of actual service. Such circumstances occur when D could not be traced in foreign jurisdiction. Johannes Koplan v AW Chen When service of notice is not properly effected, in the D is in Malaysia he may enter a conditional appearance and apply to set aside the purported service of notice on him o the ground of irregularity. But if he enters unconditional appearance, he is deemed to have waived any irregularity in the service and is deemed to have been duly served: O. 10 r 3. * Conditional appearance is abolished in Singapore yet D still can proceed to set aside the service


Affidavit Of Service An affidavit of service of any documents must state by whom the document was served, the day of the week and date on which it was served; where it was served and how and must be in one of the Forms in Form 137. Service Own Partner And Firm (1) Where partners are sued in the name of the firm, a writ may be served on any one or more of the partners or at the principal place of business of the partnership within the jurisdiction on any person having at the time of service the control or management of the partnership business there. (2) If the above conditions are met, the writ will be deemed to have been properly served on the firm whether or not any member of the firm is out cf the jurisdiction. 0. 77 r. 3(1). (3) in addition, a written notice in Form 192 must be given to each person on whom a writ is served at the time of service.


(4) if this notice is not presented, the person will deemed to have been served as & partner O. 77 r 3(3). (5) If the P knew that the partnership was dissolved before the commencement of his action, the writ must be served on every person within the jurisdiction sought to be made liable in the action . O. 77 r. 3 (2). Hup Atk Tin Mining Co. v Kam Hov Trading [1969] MU The writ was served on former partners who had not registered their withdrawal from the partnership .The service was held to be good because their names continued to be on the register.


Service On The Government The application of 0. 10 and O. 11 and other provisions relating to service out of the jurisdiction are specifically excluded in proceedings against the government O, 73 r. 3(1). Documents are not required to be personally served on the government. The mode of service depends on whether the proceedings concern the Federal Government of State government. (a) If proceedings by or against Federal government, service must be affected on the AG or such other officer as may be designated in that behalf by the AG in gazette. 0. 73 r. 3(2). (b) If proceedings against a State government, service must be effected on the State Secretary of the State. 0. 73 r. 3(2). The document will be deemed to have been served on the day following that day preceding the weekly holiday or on the day following that other weekday, as the case maybe. O. 73 r. 3 (3).


Service Of Originating Summons, Originating Motion And Petition (1) AII the rules in Order 10 r. (1) to r. (4) except r. 1(4) is applicable to OS in which an appearance is required to be entered as they apply to a writ. (2) In respect of OS where no appearance is required to be entered, a notice of an OM and a Petition, only 0. 10 r. 1(1) and r 1(2) applies. (3) Originating process may be served personally or by sending the document by prepaid AR registered post to the D's last known address. 0.10 r. 1 (1).


Entry to Writs Introduction O 12 r. 1 states when the defendant is served with the writ, he may unless he is a person under disability or a body corporate, enter an appearance and defend the action in person or by his solicitor. Once the writ has been served on the defendant and he is made aware that an action has been filed in court against him, he has to decide whether to defend the case or let it go in default. But if he wishes to contend that the claim against him cannot be maintain he may enter an appearance. An appearance simply means that the defendant indicates by notice to the court and the plaintiff that he wishes to defend the action. By doing so he is submitting to the jurisdiction of the court and any decision made he is bound to accept subject to appeal.


Effect Of Appearance (1) The appearance will prevent a judgment being entered against him in default of doing so. 0. 13 (2) If the writ which was served on him is attached only with a concise statement of claim, the appearance serves as & notice to P that he requires a full statement of claim. Effect Of Non Appearance (1) If the D fails to enter an appearance within the time limited for appearing, the P may be able to obtain judgment in default of appearance. 0.13 (2) The D may succeed-in a subsequent application to set aside the judgment O.13 r. 8 but he is subject to pay the costs if he was at fault. (3) Once judgment is entered, the D may only enter an appearance with the leave of the court. O.12 r. 5(1). The D is not precluded from entering an appearance even after the prescribed period , but he is not entitle to serve a defense or do any other thing later than if he had appeared within that time, unless the court other wise orders. O. 12 r. 5(2).


Time Limit For Appearance The time limit for entering an appearance are as follows: (1) Peninsular Malaysia : O, 12 r. 4 (a) (a) 8 Days - if the writ for served within a local jurisdiction of the HC e.g. Kl_ to KL or Pg to Pg. (b) 12 Days - if the writ is served outside local jurisdiction e.g. KL to Penang


(2) East Malaysia : O. 12 r. 4 (b) (a) 10 Days - if writ is served within the same Residency/Division (b) 20 Days if writ served on D not within the same Residency/Division from the place where the writ was issued. If the time limit specified in O. 12 r. 4 above expires, D can still enter appearance but with leave of court: O. 12 r.5 (3) Where a notice of the writ has been served out of the jurisdiction the period is limited to that indicated in the order of court authorizing such service. : O. 12 r. 4(C), O. 10 r 2 (2) and 0. 11 r. 4(3)


Manner Of Entering Appearance & Memorandum Of Appearance In the HC process, the defendant may enter an appearance by completing the "requisite documents" (Form 15), and presenting them at, or sending them to, the registry. These documents consist of a memorandum of appearance and a copy. O. 12 r 1 (3) The 'Memorandum of Appearance' is defined as 'a request to the registry to enter an appearance for the defendant or defendants specified in the memorandum. 0. 12 r. 2 (1) If there are 2 or more defendants, and they enter an appearance by the same solicitor, at the same time, 'only one set of the requisite documents need to be completed and delivered for those defendants'. 0. 12 r. 1 (4) The memorandum of appearance must be in Form 15 and both it and the copy must be signed by the solicitor who represents the defendant or, if the defendant appears in person, by the defendant himself. O. 12 r.2 (2).


The document must specify. (a) if defendant appearing in person, the address of his residence and if his residence is not within the jurisdiction or if he has no residence, the address of a place within jurisdiction at or to which documents for him may be delivered or sent : O. 12 r. 2 (3) (a) and (b) if defendant appearing by a solicitor a business address of his solicitor within the jurisdiction. O. 12 r.2(3)(b) If the court satisfied that the address in the memorandum of appearance is 'not genuine' it may on application by P , set aside the appearance. O.12 r. 2 (4)


Appearance By Particular Person Body Corporate 1. Once P serves a writ on the D, the D must enter appearance and defend the action in person or by solicitor. O. 12 r. 1(1). 2. If the D is a person under disability, he must act by a guardian ad litem. The guardian ad litem can only act through a solicitor. 0.76 r.2 (2). 'A person under disability' means a person who is an infant or a patient. A 'patient' means a mentally disordered person within the meaning of the Mental Disorders Ord 1952, O. 76 r. 1 * When an infant enters appearance through guardian ad litem, and he becomes of age at any stage of the proceeding, he must file a notice of his coming of age and slate in that notice that he adopts the appearance entered on his behalf. He can continues with the same solicitor or choose a different one in which he must serve a notice of change of solicitor to P.


‡If after a proceeding have begun, the defendant becomes patient ( unsound mind), an application must be made to the court for the appointment of guardian ad litem. 3. A body corporate may only enter an appearance and defend the action by a solicitor .except provided otherwise by any written law. O. 12r.1 (2) 4. The D is not entitled to take any steps in an action unless he enter appearance. However in the following 3 situation he need not have to enter appearance: (a) an appearance is need not be entered where the claim is for a debt or liquidated demand only, and the D pays the amount due and costs within the time limited for appearing. O.6 r.2(1)(b) (b) where judgement is entered in default of appearance, the court may set aside in which case the action proceeds. O.13 r. 8 (c) a person who is served with notice, apply to the court to discharge, vary or add to the judgement w/out entering an appearance. 0. 44 r. 3 (5)


5. Appearance by other particular Person (a) A person who is not a party to the action, but a counterclaim has been served : 0.15 r. 3 (4) (b) A person served with a third party notice: 0.16 r 3 (3) (c) A defendant who is subsequently added to the action; O. 16 r. 8(3) 6. Appearance by Partnership Firm. (a) Where a proceeding is brought against a firm or partnership. Since a partnership is not a separate legal entity, it cannot appear in its name. Appearance is entered by the partners individually. 0. 77 r, 4(1) (b) If the writ is served on a person as having the control or management of the partnership business . that person may not enter an appearance unless he is a partner. O. 77 r. 4(5)


(c) Appearance by the firm is constituted if one partner, who describes himself as a partner, enters an appearance. Robinson v Ward & Son (1892). (d) If a person who is served as a partner, denies that he is a partner or liable as a partner at the material time, he may enter an appearance under protest by stating his denial in the memorandum of appearance Such appearance nevertheless constitutes an appearance for the firm until! it is set aside. O. 77 r. 4 (2) (e) After the appearance under protest is entered , the P either apply to set aside on the bases that the person serve as a partner or liable as such at that material time, or leave it to the court to dealt t at the subsequent proceedings. O. 77 r. 4{3)(a) (f) The D at a proper time serve a defence on the P denying his own liability as a partner, or the liability of the firm or with his and the firm's liability. 0. 77 r. 4 (3) (b) (g) Where P or D make such application, the court has discretion to order that the issue of the defendant or his firm's liability be tried in such a manner and at such a time as the court directs. O. 77 r. 4(4).


Conditional And Unconditional Appearance If the defendant does not intend to raise preliminary objections such as irregularity in the form or service of the writ or to the jurisdiction of the court, he will enter an unconditional appearance. The effect of this is to waive irregularities and to submit to the jurisdiction of the court. Where the defendant does intend to raise such an objection, he may , with the leave of the court, enter a conditional appearance in Form 15 to the action, O.12 r. 6(1) The case of Yana Soon The term' conditional appearance means an appearance in qualified terms , reserving to the appearing defendant the right to apply to the court to set aside the writ , or service thereof , for an alleged informality or irregularity which renders either the writ or service invalid.


Procedure The application to enter a conditional appearance is made by summon ex parte. O. 12 r. 7(2). The defendant may mount a challenge either before entering an appearance or if he has entered a conditional appearance, within 14 days of doing so, by applying to the court for an order to set aside the writ or service of the writ, or the notice of the writ. 0.12 r. 7(1) Tye Chwee Hoon v Cayman Commodities (M) Sdn Bhd & Anor (1989) 2 MLJ317 A Defendant who enters a conditional appearance is not obliged to file a defence while there is a pending application to strike out the plaintiffs writ or statement of claim.


Maritime (Pte) Ltd v ETPM SA (1988) 2 MLJ 289 This is a Singapore case which provides a useful example of the procedure on this issue. This an action by the P against the D for a debt. Service of the writ was effected on the agents of the D under O. 10 r, 2, The D entered a conditional appearance on the basis that the service was irregular because leave of the court had not been obtained as required by the rule. Thereafter, the D applied for an order to set aside the writ and its service. Two days later the Ps filed an application asking, inter alia, for an order that the Ps service of the writ on the Ds be deemed good service. The HC upheld the assistance registrars decision to cure the irregularity under O. 2 r. 1. (The failure to obtained leave) by validating the service of the writ and thereby deeming it as good service.


Effect Of A Condition Appearances No further action on the case be taken by the P until the decision of the court, unless the D fails to apply within specified time, in which the conditional appearance stands as unconditional. If the court dismisses the applications to set aside the writ or its service, the application proceeds as if the D has entered an unconditional appearance.


The case of Arabia Marine Bunkers Sales Co.Ltd. & Anor (1988) MLJ. The effect of entering an unconditional appearance was two fold (a) It waived any irregularity of the writ of it's service. (b) The D was considered to have submitted to the jurisdiction of the court. D who wishes to set aside the writ or its service for non-compliance of the rules of procedures or who wishes to challenge the jurisdiction of the court had to therefore enter a conditional appearance. In this case the appellants' unconditional appearance was fatal to their right to object to the jurisdiction.


Default of Pleadings Time For Service Of Pleadings O. 18 R. 1.2 And 31 Service of Statement of Claim [0.18 r1] Unless a statement of claim is indorsed on the writ or the court gives leave to the contrary, P must serve a statement of claim on D, or on each of two or more Ds, either the writ or at any time before 14 days after that D enters an appearance. Service of Defence [0.18 r. 2] Unless the court gives leave to the contrary, or a summons under 0.14 r.1 is served on D, a D who enters an appearance in, and intends to defence the action must serve a defence on P before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later.


Service of reply and Defence to counterclaim [0.18 r. 3] (1) A P on whom a D serves a defence must serve a reply on that D if it is needed for compliance r. 8 and if no reply is served r. 14 (1) will apply (summary judgment). (2) If P intends to defend a counterclaim, he must serve defence to counterclaim on D. (3) A reply to any defence or counterclaim must be served by P before the expiration of 14 days after the service on him of that defence or counterclaim was served on him. Note: Extension of time for service can be obtained by written consent of parties or by court order - [0. 3 r. 5]


Failure To File And Serve Pladings O. 19 deals with rights and liabilities of the parties for failing to file and send the pleadings within the prescribed time. Judgment in default Judgment in default means a judgment given to the plaintiff without the court hearing the merits of plaintiffs case. (1) Default in service of statement of claim ± [ O 19 r 1 ] The plaintiff must serve a statement of claim to the defendant within 14 after the defendant has entered appearance If he fails to do so, the defendant may apply to the court for an order to dismiss the plaintiff's action and the court may dismiss the action or make such order it thinks just. Clouoh v Clouahf 1968 11 WLR 525 Here it was stated that failure to serve the statement of claim within the prescribed time does not entitle the defendant to dismiss the plaintiff¶s action pursuant to Order 19 rule r 1.


(2) Default of Defence; Claim For Liquidated Demand [0.19 r.2] Where the claim by plaintiff is for a liquidated sum and the defendant fails to serve the defence within the stipulated time then the plaintiff can enter final judgment for a sum not exceeding the claim and for his cost. (3) Default of Defence : Claim for Unliquidated Damages [O.19 r. 3) Where the claim by plaintiff is for an unliquidated sum and the defendant fails to serve the defence within the stipulated time then the plaintiff can enter interlocutory judgement for the damages to be assessed and costs under 0 19 r 3 (4) Default of Defence ; Claim in Detinue [0 19 r 4] Where the plaintiff claims for the detention of any movable propertyln such cases if the defendant fails to serve his defence the plaintiff could choose 1. to get interlocutory judgment against the defendant for the delivery of the property or their value to be assessed and costs or 2. interlocutory judgment for the value of the property to be assessed and costs.


(5) Default of Defence: Claim for Possession of Immoveable Property (0.19 r. 55] If the plaintiff claims for possession of immovable property and not claiming any relief under O. 83 r 1 (charge actions). In such cases when the defendant fails to serve defence within the stipulated period the plaintiff may enter judgment for possession of the immovable property with costs. (6) Default of Defence To Counterclaim [O. 19 r. 8] O 19 r 8 states that a defendant who counterclaims shall be treated as if he were a plaintiff and above rules shall apply to him.


(7) Setting aside judgment of default of pleading (019 r. 9) The court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuant of this order. Plaintiff claims for other claims than those mentioned in a - c. e.g. he claims for declaration or injunction. In such cases when the defendant fails to serve defence on time, the plaintiff could apply for judgment and on the hearing of the application the court shall give such judgment, as the plaintiff appears to be entitled. Haji Salleh v Federal Auto Holdings Bhd (1979) 2 MLJ It was slated that the defence served out of time specified must be considered by the court and the application of plaintiff to sign judgment in default of defence will be refused if the defence disclose reasonable reasons.


Procedure of Pleadings Statement Of Claim [0. 18 R. 15] (1) statement of claim must state specifically the relief or remedy which the P claims but costs need not be specifically claimed. (2) a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of facts giving rise to a cause of action so mentioned but subject to that a P may in his statement of claim alter, modify or extend any claim made by him in the endorsement of the writ: w/out amending the endorsement.


Service of Statement of Claim [0.18 r.1] Unless a statement of claim is indorsed on the writ or the court gives leave to the contrary, P must serve a statement of claim on D, or on each of two or more Ds , either the writ or at any time before 14 days after that D enters an appearance. Service of Defence [0.18 r. 2] Unless the court gives leave to the contrary, or a summons under 0.14 r.1 is served on D, a D who enters an appearance in, and intends to defence the action must serve a defence on P before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later.


Defence of Tender [0.18 r. 16] Where in any action a defence of tender before action is pleaded, the defendant must pay into court m accordance with 0. 22 the amount alleged to have tendered, and the tender shall not be available as a defence unless, an until payment into court has been made. Defence of Set - Off [0.18 r. 17] Where a claim by a D to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim, made by P, it may be included in the D and set off against the P's claim whether or not it is also added as a counterclaim. Note: If D fails to enter defence, P can apply for: (a) judgment in default of defence or (b) summary judgement.


Service of reply and Defence to counterclaim [0. 18 r. 3] (1) A P on whom a 0 serves a defence must serve a reply on that D if it is needed for compliance r. 8 and if no reply is served r. 14 (1) will apply (summary judgment). (2) If P intends to defend a counterclaim, he must serve defence to counterclaim on D (3) A reply to any defence or counterclaim must be served by P before the expiration of 14 days after the service on him of that defence or counterclaim was served on him. Extension of time for service can be obtained by written consent of parties or by court order -[0. 3 r. 5] Pleadings subsequent to reply [0.18 r. 4] No pleading sub-sequent to a reply or a defence to counterclaim shall be served except with the leave of the court.


Where There Is No Reply To A Defence [0.18 r.14] (1) If there is no reply to a defence, there is an implied joinder of issue on that defence. (2) subject to para (3) . (a) there is at the close of pleadings an implied joinder of issue on the pleadings last served and (b) a party may in his pleading expressly joint issue on the next preceding pleading (3) there can be no joinder of issue, implied or express on a statement of claim or counterclaim. (4) a joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, if express joinder of issue, any such allegation is accepted from the joinder and is stated to be admitted ,in which case the express joinder of issue operates as a denial of every other such allegations.


The first and most important rule of all is that you should never ever make up a defence for your client. Don¶t get carried away to let one¶s enthusiasm for the job stray over the border into the land of fabrication which is the graveyard of all professional careers. Yet it may not be too cynical to divide defences into two broad categories i.e one those which are genuinely all the way to trial and second those which are calculated to mitigate the effect of the claim.


Close of Pleadings [0.18 r.20] (1) The pleading deemed to be closed: (a) at the expiration of 14 days after service of the reply or if there is a reply but only a defence top counterclaim, after service of the defence to counterclaim or (b) if neither a reply nor a defence to counterclaim is served at the expiration of 14 days after service of defence. (2) the pleadings is an action are deemed to be closed at the time provided by para 91) not withstanding that any request or order for particulars has been made but has been made but has not been complied at that time. Filling of Pleadings [0.18 r.21] Every pleading must be filed in the Registry of HC where the writ was issued and served within prescribed time unless the court gives leave to the contrary.


Striking Out Pleadings Introduction The court can strike out the Pleadings for certain reasons. They are mentioned in 0. 18 r. 19. Striking Out Pleading And Indorsement [O. 18 R. 19] (1) The court may at any stage of the proceedings, order to be struck out or amended any pleading or the indorsement, of any writ in the action, or anything in any pleading or in the indorsement, the following grounds: (a) it discloses no reasonable cause of action or defence, as the case may be ; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice , embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court and may order the action to be strayed or dismissed or judgment to be entered accordingly,


(2) No evidence shall be admissible on an application under para 1 (a). (3) This rule shall so far as applicable, apply to an originating summons and a petition s if the summons or petition, as the case may be, were a pleading. Explanation: Ground (a) Parties who wish to strike off the pleading on ground (a) no need to produce evidence. The court can decide base on the reading of the pleading. (a)The P must show in the statement of claim all relevant facts which forms his cause of action. If it is not mentioned, then the judge may amend the statement of claim so as to show the cause of action or but normally the judge will strike out the statement of claim, e. g. In a defamation sued, the P enters his statement of claim but did mention no one saw or heard the word uttered. Here the judge can strike out the SOC.


(b) If the Statement of defence does not state reasonable defence the judge may amend it or strike out the statement of defence, e ,g. P sue D for loan given to D and D fails to repay. In his statement of defence D admits the loan taken, amount and he admit he must pay within specified time. But he mentioned further that he had used the money for chanty purposes. This is not a defence and the court can strike out the SOD because no reasonable defence. Explanation; Grounds (b) (c) (d) The Parties who wish to strike off the pleadings on these grounds must provide evidence. Parties also can bring this ground together if the grounds are borderline case. Tractor (M) Bhd v Tio Chee Hine [1975] 2 MLJ 1 PC: "An action is said to be an abuse of the process of the court if it is brought for example, to defeat the course of justice by delaying the execution of an earlier judgment of court and the court will dismiss the action." The power to dismiss an action summarily without permitting the P to proceed to trial, however the court will exercise that power only if upon a critical examination of the pleadings or indorsement, it is clear for the court to do so.


Effect Of Striking Off Pleadings If the court strike of Statement of claim then Plaintiffs claim is dismissed If the court strike off Statement of defence than the plaintiff will get judgment in his favor. He will succeed. Pertamina v Kartika Ratna Thahir & Ors (MLJ) Mr Thahir an Indonesian national, was a senior employee and executive of the plaintiffs. He died on 23 July 1976. On that day, there was with the Sumitomo Bank Ltd in Asian Currency Unit (ACU) deposits DM53,972,374.12 and US$1,202,208.73 in the name of Mr Thahir, and/or Mrs Thahir the first defendant. On 27 July 1976 Mrs Thahir went to the bank and demanded payment to her of sums totalling DM8,310,982.99 and US$608,959.42. She also demanded that the balance of the said ACU deposits be transferred to her sole name.


That same day, Mr Ibrahim Thahir, one of the children of the deceased, directed the bank not to pay out any moneys to Mrs Thahir until the respective beneficial interests of Mrs Thahir and the estate of the deceased were determined. The bank was in 3 difficult positions because of the two claims made against the bank by different persons. The bank applied to the court for relief. Mrs Thahir was cited as first defendant. The two sons of the deceased were made the second defendants to represent the estate of the deceased. In June 1977, Pertamina were added as third defendants. In October 1979, Pertamina took out an interlocutory application for an issue to be stated and tried between the first, second and third defendants as to which of them was entitled to the sums of money represented by the ACU deposit accounts at the bank and for consequential orders. In November 1979 the first defendant took out a summons-in-chambers for an order that the originating summons of the bank be dismissed on the grounds that it was misconceived. She sought also that an issue be ordered between Pertamina and herself in which Pertamina should be plaintiffs and she the defendant. The plaintiffs claimed that Mr Thahir had unlawfully and improperly obtained money as bribes and/or secret commissions which belonged to the plaintiffs, that he had put these illegal gains in the bank in the joint account of himself and the first defendant.

The plaintiffs claimed that the first defendant was party to the wrong doings of Mr Thahir. The first defendant denied this. She said that the fact that Mr Thahir received income apart from his salary was not secret, but was known both to the plaintiffs by, inter alia, their said present director, and to the plaintiffs' principal, the State Government, who consented. Held:(1) Nowhere in the defence did the first defendant take the issue or even reserve the point that the plaintiffs statement of claim did not disclose a reasonable cause of action in the issue. (2) It was only in plain and obvious cases that recourse should be had to the summary process under O 18 r 19. It could not be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really had a cause of action. (3) So long as the statement of claim or the particulars disclosed some cause of action, or raised some question fit to be decided by a judge, the mere fact that the case was weak, and not likely to succeed was no ground for striking it out. In this case appeal was dismissed.


New Straits Times (M) Sdn Bhd v K.K. Niaga Sdn Bnd (1985) 1 MLJ 227 In this case the respondent had brought an action against the appellant for libel. The R applied to strike out the defence. The learned trial judge at first dismissed the respondent's application and allowed the appellant's application to amend their defend but subsequently she reversed her earlier decisions and reversed the entire statement of defence of the appellant to be struck out. The appellant appeal. Held: Allowing the appeal the Federal Court held: (1) In an application to strike out pleadings under O. 18 r. 9(1) (a) no evidence shall be admissible and the court must consider only the pleadings for the purpose of determining whether the statement of claim disclosed no reasonable cause of action or the statement of defence disclosed no defence. (2) 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. (3)In this case the learned judge erred in law in ordering the appellants defence to be struck out. The appellants have raised triable issue of fact and these issues can only fairly be resolved by evidence viva voce at the trial and not merely by affidavit evidence.

The Distinction Between O.18 R. 19 And 0. 14 The difference between Summary judgement and striking off pleadings is that: 1. Originating process: O. 14 does not apply to actions begun by an originating process other than by writ. O. 18 r.19 is not so limited. 2. Type of action; O. 14 is not applicable to certain types of actions, those which normally involve complex issues of fact and law, no* to applications against the government. 3. Time:-An application under O. 14 has to be made soon after appearance has been entered. An application made after defence has been served may be rejected unless the delay is explained to the satisfaction of the court. 0. 18 r. 9 may be applied for at any stage of proceedings. 4. Form and Proof: An O.14 application must be supported by an affidavit in Form 18, verifying the facts on which the cause to which the application relates, is based. This is the formal affidavit which must also state that in the deponent's belief there is no defence to the claim or no defence except as to the amount of any damages claimed. This affidavit is unique to O. 14. It is necessary prerequisite for the application-if there is no affidavit, or no sufficient affidavit, the summons may be dismissed . Affidavit evidence is inadmissible in application under 0.18 r. 19(l)(a).


5. Grounds:An 0. 14 application has to be made on the ground that there is no triable issue. An 0. 18 r,19 application may be made on an number of grounds, both specific, such as that the defendant has no reasonable defence, and general, such as that the proceedings are an abuse of the rules of court. The ground or grounds must be specified in the application. 6. Service: In an application under 0. 14, the summons, together with a copy of the supporting affidavit and of any exhibits referred to in affidavit, must be served on the defendant not less than four clear days before the return day. Regarding an application under 0. 18 r. 9 the usual rules regarding service of a summons-in-chambers will apply-it must be served on the other party not less than two clear days before the day specified in the summons for hearing. Continue « Note 3 of 4 Notes