PLEADINGS

PART I & II
 PLEADINGS

FORMAL
REQUIREMENT
RULES
RULES OF PLEADINGS – O18 R7
ROC
• EVERY PLEADING MUST CONTAIN, AND
CONTAIN ONLY –
• A STATEMENT IN A SUMMARY FORM OF THE
MATERIAL FACTS ON WHICH THE PARTY RE
LIES FOR HIS CLAIM OR
DEFENCE, AS THE CASE MAY BE, BUT
• NOT THE EVIDENCE BY WHICH THOSE FACTS
ARE TO BE PROVED, AND
• THE STATEMENT MUST BE AS BRIEF AS THE
NATURE OF THE CASE ADMITS – O18 R7(1) ROC
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FACTS, NOT LAW
• THE LAW IS FOR THE COURTS TO DECIDE.
• IF PARTIES ARE ALLOWED TO PLEAD LAW –
• THEY WILL CLOUD THE ISSUES BY CONCENTRATING
THE LAW AND NEGLECTING THE FACTS;
• SOME MAY TRY TO CONCEAL THE FACTS AND THIS
MAY PREVENT THE COURT FROM DECIDING FAIRLY.
RULES OF PLEADINGS
• ESSENTIAL ELEMENTS OF PLEADINGS –
• FACTS, NOT LAW
• SO, A PLAINTIFF (P) MUST NOT MERELY AVER, “THE PLAINTIFF IS
ENTITLED TO RECOVER THE SUM OF RM300,000 FROM THE
DEFENDANT.”
• P MUST STATE THE FACTS WHICH GIVE HIM THAT RIGHT, OR IMPOSE
ON THE DEFENDANT (D) THE OBLIGATION TO PAY.
• EXAMPLE, IN A CLAIM FOR GOODS SOLD AND DELIVERED, P MUST
STATE THE FACT THAT GOODS WERE SOLD AND DELIVERED TO D.
• SO TOO, D MUST STATE CLEARLY THE FACTS WHICH AFFORDS
HIM A DEFENCE TO P’S CLAIM. D MUST NOT AVER MERELY, “THE
DEFENDANT DOES NOT OWE THE MONEY.”
• D MUST ALLEGE FACTS WHICH SHOW HE DOES NOT OWE IT, E.G. THAT
THE GOODS WERE NEVER ORDERED, OR WERE NEVER DELIVERED.
CASE LAW

• MIDDLESEX COUNTY COUNCIL V N

ATHAN
[1937] 2 KB 272
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FACTS, NOT EVIDENCE
• THE FACT IN ISSUE BETWEEN PARTIES IS THE FACTUM
PROBANDUM, THE FACT TO BE PROVED, AND
THEREFORE THE FACT TO BE ALLEGED.
• IT IS UNNECESSARY TO TELL THE OTHER SIDE HOW IT IS
PROPOSED TO PROVE THE FACTS; SUCH MATTERS ARE
MERELY EVIDENCE, FACTA PROBANTIA, THE FACTS BY
MEANS OF WHICH ONE PROVES THE FACT IN ISSUE.
• EVIDENCE IS TO BE ADDUCED AT THE TRIAL, NOT
PLEADED.
RULES OF PLEADINGS
• ESSENTIAL ELEMENTS OF PLEADINGS –
• FACTS AND ONLY MATERIAL FACTS
• MATERIAL FACTS ARE TO BE STATED CLEARLY,
PRECISELY AND BRIEFLY.
• “THE WORD ‘MATERIAL’ MEANS NECESSARY FOR THE
PURPOSE OF FORMULATING A COMPLETE CAUSE OF
ACTION, AND IF ONE ‘MATERIAL’ FACT IS OMITTED,
THE STATEMENT OF CLAIM IS BAD.” PER SCOTT LJ IN
BRUCE V ODHAMS PRESS LTD [1976] 1 KB AT P 712
• PLEADINGS ARE USELESS UNLESS THEY STATE FACTS
WITH PRECISION.
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FACTS AND ONLY MATERIAL FACTS
• OMITTING MATERIAL FACTS MAY CAUSE THE
CASE TO BE UNFORMULATED, DEPRIVING THE
PARTY THE REMEDY SOUGHT –
• FACTS NOT PLEADED MAY NOT BE RAISED DURING
TRIAL;
• EVIDENCE CANNOT BE ADDUCED ON FACTS NOT
PLEADED; AND
• THECOURT CANNOT DECIDE ON A FACT NOT
PLEADED.
CASE LAW

• MATERIAL FACTS
• IN RE ESTATE OF LEE SIEW KOW [1951] 1 MLJ 224
 FACTS NOT PLEADED
• WONG ENG V CHOCK MUN CHONG [1963] 1 MLJ 204
• JANAGI V ONG BOON KIAT [1971] 2 MLJ 196
• CHARTERED BANK V YONG CHAN [1974] 1 MLJ 157
• GOVERNMENT OF PERAK V MUNIANDY [1986] 1 MLJ
490
• WISMA PUNCA EMAS SDN BHD V DR DONAL [1987] 1
MLJ 393
CASE LAW

• FACTS NOT PLEADED BUT RAISED AND FULLY

DEVELOPED WITHOUT OBJECTION
• OVERSEA-CHINESE BANKING CORPORATION V PHILI
P WEE
KEE PUAN [1984] 2 MLJ 1
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• SOME MATTERS MUST BE SPECIFICALLY PLEADED
– O18 R8(2) ROC
 PERFORMANCE;
 RELEASE;
 RELEVANT STATUTE OF LIMITATION;
 FRAUD;
 ILLEGALITY.
• TENGKU ALI V KERAJAAN NEGERI TERENGGANU DA
RUL IMAN
[1994] 2 MLJ 83
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• ANSWERING OPPONENT’S PLEADINGS – O18 R13(1)
ROC
• SUBJECT TO R13(4), ANY ALLEGATION OF FACT MADE BY
A PARTY IN HIS PLEADING IS DEEMED TO BE ADMITTED
BY THE OPPOSITE PARTY UNLESS IT IS TRAVERSED BY
THAT PARTY IN HIS PLEADING OR A JOINDER OF ISSUE
UNDER R14 OPERATES AS A DENIAL OF IT.
• CASE LAW
• BORNEO HOUSING MORTGAGE FINANCE BHD
V PERSONAL REPRESENTATIVE OF THE ESTATE OF LEE LUN
WAH MAUREEN & ANOR [1994] 1 MLJ 209
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• DAMAGES
• GENERAL DAMAGES MUST BE PLEADED AND MUST
NOT BE QUANTIFIED – O18 R12(1A) ROC

And the Plaintiff claims:-

a)General damages;
b)Special damages in the sum of RM85,000;
c)Interest;
d)Costs.
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• DAMAGES
• SPECIAL DAMAGES MUST BE SPECIFICALLY
PLEADED AND QUANTIFIED AND IF THESE ARE NOT
PLEADED, THE COURT WILL NOT AWARD SUCH
DAMAGES.

Particulars of Special Damages

a)Medical expenses RM35,000

b)Loss of wages at RM2,000 pm
from … RM40,000
c)Cost of care at … RM10,000
RM85,000
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• PARTICULARS OF PLEADINGS – O18 R12 ROC
• PLEADINGS SHOULD CONTAIN PARTICULARS TO ENSURE THAT THE
PARTIES ARE INFORMED WITH REASONABLE PARTICULARITY AS TO
THE MATTERS WHICH ARE ALLEGED AGAINST THEM.
• BATCHA AMMAL V PONNACHI [1965] 2 MLJ 43
• THIS IS IN ACCORDANCE WITH THE PRINCIPLE –
• THAT A PARTY SHOULD NOT BE TAKEN BY SURPRISE;
• THAT PARTIES ARE INFORMED OF THE EVIDENCE THEY WOULD HAVE TO
PREPARE FOR TRIAL;
• THAT PLEADINGS SERVE TO LIMIT AND DEFINE THE ISSUES AT TRIAL;
• THAT PARTIES ARE PREVENTED FROM GOING OUTSIDE THEIR
PLEADINGS WITHOUT LEAVE.
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• PARTICULARS OF PLEADINGS – O18 R12 ROC
• EXAMPLES OF PARTICULARS WHICH MUST BE
PLEADED –
• O18 R12(1)(A) & (B) ROC
• TRESPASS
• SPECIAL DAMAGES
• FAIR COMMENT
• JUSTIFICATION
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• PARTICULARS OF PLEADINGS – O18 R12 ROC
• WHERE A PARTY FAILS TO GIVE ANY OR
INADEQUATE PARTICULARS, THE OTHER MAY
APPLY FOR AN ORDER FOR PARTICULARS OR
FURTHER AND BETTER PARTICULARS – O18 R12(3)
ROC
• TAN HOE KOCK & ANOR V ALI AKARBARA BIN MANGUD
IN & ORS
[1997] 4 MLJ 311
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FURTHER AND BETTER PARTICULARS
• WHERE THE PLAINTIFF DOES NOT PROVIDE ALL
THE REQUIRED INFORMATION TO ENABLE THE
DEFENDANT TO PREPARE HIS STATEMENT OF
DEFENCE, THE DEFENDANT MAY REQUEST FOR
FURTHER AND BETTER PARTICULARS.
• SUCH REQUEST SAVES TIME, EXPENSES AND
NARROWS DOWN ISSUES TO BE DETERMINED BY
THE COURT.
• CASE LAW
• LIM KEE TIAK V LIM KEE TIAN [1987] 2 MLJ 528
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FURTHER AND BETTER PARTICULARS
• EXAMPLES
• IN RE ESTATE OF LEE SIEW KOW [1951] 1 MLJ 224
• IN AN ACTION FOR BREACH OF CONTRACT, THE
STATEMENT OF CLAIM DOES NOT STATE WHETHER
THE CONTRACT WAS WRITTEN OR ORAL OR THE
RELEVANT DATES
• IN A SUIT FOR NEGLIGENCE, THE PARTICULARS OF
NEGLIGENCE ARE NOT PROVIDED.
WONG ENG V CHOCK MUN CHONG [1963] 1 MLJ 204
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FURTHER AND BETTER PARTICULARS
• PURPOSE
TO OBTAIN ADDITIONAL INFORMATION
TO BIND PARTIES TO THE FACTS PLEADED
THAT ONLY FACTS AND NOT EVIDENCE BE PLEADED
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FURTHER AND BETTER PARTICULARS
• PROCEDURE – O18 R12(6) ROC
• IN RE ESTATE OF LEE SIEW KOW [1951] 1 MLJ 224
• FORMAL LETTER TO THE OPPOSING SOLICITOR REQUESTING
FOR THE PARTICULARS.
• IF NO REPLY IS RECEIVED OR THE REPLY IS NOT
SATISFACTORY, THE APPLICATION MUST BE MADE BY WAY
OF INTER PARTES NOTICE OF APPLICATION [SUMMONS],
WHICH MAY OR MAY NOT BE SUPPORTED BY AN AFFIDAVIT.
• TAN HOE KOCK & ANOR V ALI AKARBARA BIN MANGUDIN &
ORS [1997] 4 MLJ 311
 RULES OF PLEADINGS
• ESSENTIAL ELEMENTS OF PLEADINGS –
• FURTHER AND BETTER PARTICULARS
• APPLICATION MAY BE OPPOSED ON THE GROUNDS THAT THE
PARTICULARS SOUGHT ARE:
• EVIDENCE, NOT FACTS;
• INFORMATION SOUGHT HAS ALREADY BEEN PLEADED;
• IRRELEVANT FACTS;
• ‘FISHING EXPEDITION’;
• CASE LAW
• TAN HOE KOCK & ANOR V ALI AKARBARA BIN MANGUDIN & ORS [1997] 4 MLJ 311
• SKRINE & CO V MBF CAPITAL & ANOR [1998] 3 MLJ 649
• DATO SERI DR LING LIONG SIK V KRISHNA KUMAR S/O SIVASUBRAMANIAM [2002]
2 MLJ 278
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FURTHER AND BETTER PARTICULARS
• PARTICULARS MAY ONLY BE SOUGHT OF MATTERS
ARISING FROM THE PLEADINGS.
• PARTICULARS WOULD GENERALLY BE ORDERED IN
RESPECT OF MATTERS OF EVIDENCE OR INFERENCE
DRAWN OR SUBSTITUTE INTERROGATORIES.
• CASE LAW
• SKRINE & CO V MBF CAPITAL & ANOR [1998] 3 MLJ 649
• DATO SERI DR LING LIONG SIK V KRISHNA KUMAR S/O SIVASU
BRAMANIAM
[2002] 2 MLJ 278
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FURTHER AND BETTER PARTICULARS
• ORDER
• IT IS UP TO THE COURT’S DISCRETION WHETHER TO GRANT AN
ORDER FOR PARTICULARS.
• WHERE THERE HAS BEEN INORDINATE DELAY OR WHERE THE
APPLICATION IS MADE AT A LATE STAGE AND THE ORDER IS LIKELY
TO CAUSE A POSTPONEMENT OF THE TRIAL, THE COURT MAY BE
RELUCTANT TO GIVE THE ORDER.
• WHERE THE PARTICULARS REQUESTED ARE CLEARLY NECESSARY
FOR THE APPLICANT TO PROPERLY PREPARE FOR THE TRIAL, THE
PARTICULARS OUGHT TO BE GIVEN EVEN IF IT DISCLOSES SOME
PARTS OF THE OTHER PARTY’S EVIDENCE.
• IN RE ESTATE OF LEE SIEW KOW [1951] 1 MLJ 224
RULES OF PLEADINGS

• ESSENTIAL ELEMENTS OF PLEADINGS –

• FURTHER AND BETTER PARTICULARS
• ORDER
• THE COURT MAY EVEN MAKE A PRE-EMPTORY ORDER
STIPULATING THAT IF THE ORDER OF THE COURT IS
NOT COMPLIED WITH, THE PARTY’S CONDUCT SHALL
BE DEEMED TO BE CONTUMELIOUS AND THE
PLEADINGS BE DISMISSED.
• THONG KIM CHEA@THONG MING KWEI
V THONG SENG & CO SDN BHD & ANOR [1995] 3 MLJ 481
FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC
• PLEADINGS –
• MUST MENTION THE NAME OF THE HIGH COURT
AND THE RELEVANT DIVISION;
• IN THE HIGH COURT OF MALAYA AT MALACCA
• IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION)

• MUST MAKE REFERENCE TO THE RECORD OF

THE ACTION;
• CIVIL SUIT NO. OF 2012
FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC

PLEADINGS –
• MUST HAVE A TITLE TO THE ACTION;
BETWEEN

ANWAR BIN AHMAD …PLAINTIFF

AND

MAHADZIR BIN RAUF …DEFENDANT

• MUST CONTAIN THE DESCRIPTION OF THE
PLEADINGS – O18 R6(1) ROC
STATEMENT OF CLAIM DEFENCE

DEFENCE AND COUNTERCLAIM REPLY AND DEFENCE TO COUNTERCLAIM

FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC
IN THE HIGH COURT OF MALAYA AT MALACCA
CIVIL SUIT NO. 22-XXX-2012

BETWEEN

ANWAR BIN AHMAD …PLAINTIFF

AND

MAHADZIR BIN RAUF …DEFENDANT

STATEMENT OF CLAIM
FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION)
CIVIL SUIT NO. 22-XXX-2012

BETWEEN

ANWAR BIN AHMAD …PLAINTIFF

AND

MAHADZIR BIN RAUF …DEFENDANT

STATEMENT OF CLAIM
FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC
STATEMENT OF CLAIM

1. The plaintiffs are the county council of the administrative

county of Middlesex, and under the powers conferred on them by
the Public Health Acts, 1875 to 1926, and the Local Government
Acts, 1888 and 1929, provide accommodation in a hospital
known as the North Middlesex County Hospital.

2. Solomon Nathan, an old and poor person unable to work is the

lawful father of the defendant. Solomon Nathan was admitted to
the hospital for treatment for a condition which is not an
infectious disease on June 6, 1936, and was maintained by the
plaintiffs therein until August 13, 1936.
FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC

3. The said hospital is an institution within the meaning of the

Local Government Act, 1929, s. 16.

4. The average daily cost per patient of the maintenance of the

hospital ascertained in accordance with the provisions of the
Local Government Act, 1929, s. 16, sub-s. 3, and the Middlesex
County Council Act, 1934, s. 144, was for the material period
10s. 7.9d., and a weekly rate of 3l. 14s. 7.4d. is charged by the
plaintiffs.

5. [This paragraph recited the Local Government Act, 1929, s.

16.]
FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC

6. The plaintiffs have recovered from the said Solomon Nathan

and one Alfred Nathan, a person legally liable to maintain the
said Solomon Nathan [1l. 9s. 8d. and 2l. 18s. 4d. respectively,
out of total expenses amounting to 36l. 4s. 11d.] and are
satisfied that the said Solomon Nathan and Alfred Nathan cannot
reasonably, having regard to their financial circumstances, be
required to pay the whole or any greater part of the expenses of
maintaining the said Solomon Nathan in the hospital.

7. The defendant is and at the material time was a person

legally liable to maintain the said Solomon Nathan. The plaintiffs'
claim is for 31l. 16s. 11d.
FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC
IN THE HIGH COURT OF MALAYA AT MALACCA
CIVIL SUIT NO. 22-XXX-2012

BETWEEN

PUBLIC BANK BERHAD …PLAINTIFF

AND

1. AHMAD BIN ANWAR

2. ABDULLAH BIN MUSA …DEFENDANTS

DEFENCE
 STATEMENT OF DEFENCE

• SERVICE
• 018 R2(1) ROC PROVIDES THAT D WHO ENTERS AN
APPEARANCE IN, AND INTENDS TO DEFEND, AN
ACTION MUST, UNLESS THE COURT GIVES LEAVE TO
THE CONTRARY, SERVE A DEFENCE ON P BEFORE THE
EXPIRATION OF 14 DAYS AFTER THE TIME LIMIT FOR
APPEARING OR AFTER THE STATEMENT OF CLAIM IS
SERVED ON HIM, WHICHEVER IS THE LATER.
• IF D WISHES TO DEFEND P’S ACTION HE MUST ENTER
AN APPEARANCE AND THEN SERVE SOD ON P WITHIN
THE PRESCRIBED TIME AFTER ENTRY OF APPEARANCE.
• THE TIME PERIOD TO SERVE SOD IS AS FOLLOWS –
• 14 DAYS AFTER THE TIME LIMITED FOR APPEARING; OR
• 14 DAYS AFTER SOC IS SERVED ON D, WHICH EVER IS LATER;
 STATEMENT OF DEFENCE

• SERVICE
• O18 R2(2) ROC PROVIDES THAT IF P SERVES A NOTICE OF APPLICATION
UNDER O14, THEN D NEED NOT SERVE SOD UNLESS AND UNTIL LEAVE
TO DEFEND IS GIVEN BY THE COURT.
• SOD SHOULD BE SERVED WITHIN 14 DAYS AFTER THE MAKING OF THE
ORDER, UNLESS OTHERWISE DIRECTED.
 STATEMENT OF DEFENCE
• SERVICE
• THE TIME PERIOD FOR SERVICE OF SOD MAY BE EXTENDED
BY –
• AN APPLICATION TO COURT; OR
• A WRITTEN CONSENT OF THE PARTIES WITHOUT AN ORDER OF
COURT
• IT IS COMMON PRACTICE FOR D’S SOLICITORS TO REQUEST
FOR AN EXTENSION FROM P’S SOLICITORS, WHICH REQUEST
IS USUALLY GRANTED.
• THE COURT MAY DISPENSE WITH SERVICE OF SOD IN
APPROPRIATE CASES, USUALLY WHERE D DOES NOT WISH TO
PLEAD OR JEOPARDISE HIS POSITION BY TAKING A FURTHER
STEP IN THE PROCEEDINGS, FOR EXAMPLE WHERE D WISHES
TO –
• DISMISS P’S ACTION – O12 R11(2) ROC;
• STRIKE OUT SOC – O18 R 19(1)(A) ROC;
STATEMENT OF DEFENCE

• DEFAULT – O19 RR2-7 ROC

• WHERE THE CLAIM BY P IS FOR A LIQUIDATED DEMAND
ONLY AND D FAILS TO SERVE SOD WITHIN THE
STIPULATED PERIOD THEN P MAY ENTER FINAL
JUDGMENT AGAINST D FOR A SUM NOT EXCEEDING THAT
CLAIMED IN THE WRIT AND FOR COSTS – O19 R2(1)
• A LIQUIDATED DEMAND IS IN THE NATURE OF A DEBT WHERE
A SPECIFIC SUM OF MONEY WHICH IS ALREADY ASCERTAINED
OR CAPABLE OF ASCERTAINMENT BY SIMPLE ARITHMETIC IS
DUE AND PAYABLE UNDER OR BY VIRTUE OF A CONTRACT.
• ‘COSTS’ MEANS COSTS UNDER O59 R22(1)(B)(IV) ROC AND
APPENDIX
STATEMENT OF DEFENCE
• DEFAULT – O19 RR2-7 ROC
• WHERE THE CLAIM BY P IS FOR
UNLIQUIDATED DAMAGES(EG: LIBEL AND
SLANDER) ONLY AND D FAILS TO SERVE SOD
WITHIN THE STIPULATED PERIOD THEN P MAY
ENTER INTERLOCUTORY JUDGMENT AGAINST
D FOR DAMAGES TO BE ASSESSED AND COSTS
– O19 R3 ROC
• ASSESSMENT OF DAMAGES WILL BE MADE BY A
REGISTRAR, UNLESS SOME OTHER METHOD IS
ORDERED – O37 R1 ROC
• ‘COSTS’ MEANS COSTS UNDER O59 ROC
STATEMENT OF DEFENCE

• DEFAULT – O19 RR2-7 ROC

• WHERE THE CLAIM BY P RELATES TO THE
DETENTION OF MOVABLE PROPERTY ONLY AND D
FAILS TO SERVE SOD WITHIN THE STIPULATED
PERIOD THEN P MAY AT HIS OPTION ENTER EITHER –
• INTERLOCUTORY JUDGMENT AGAINST D FOR DELIVERY
OF THE PROPERTY OR THEIR VALUE TO BE ASSESSED
AND COSTS; OR
• INTERLOCUTORY JUDGMENT AGAINST D FOR THE VALUE
OF THE PROPERTY TO BE ASSESSED AND COSTS – O19 R4
ROC
• ASSESSMENT OF THE VALUE OF PROPERTY WILL BE
MADE BY A REGISTRAR, UNLESS SOME OTHER METHOD
IS ORDERED – O37 R1 ROC
• ‘COSTS’ MEANS COSTS UNDER O59 ROC
STATEMENT OF DEFENCE

• DEFAULT – O19 RR2-7 ROC

• WHERE THE CLAIM BY P IS FOR POSSESSION OF
IMMOVABLE PROPERTY(EG: LAND) ONLY AND D
FAILS TO SERVE SOD WITHIN THE STIPULATED PERIOD
THEN P MAY, ON PRODUCING A CERTIFICATE BY HIS
SOLICITOR, OR (IF HE SUES IN PERSON) AN AFFIDAVIT,
STATING THAT HE IS NOT CLAIMING ANY RELIEF
UNDER O83 R1 ROC (CHARGE ACTIONS), ENTER
JUDGMENT FOR POSSESSION OF THE IMMOVABLE
PROPERTY AS AGAINST D AND FOR COSTS – O19 R5 ROC
• ‘COSTS’ MEANS COSTS UNDER O59 R22(1)(B)(VI) ROC
AND APPENDIX
STATEMENT OF DEFENCE

• DEFAULT – O19 RR 2-7 ROC

• WHERE THE CLAIM BY P IS A MIXED CLAIM AND D FAILS
TO SERVE SOD WITHIN THE STIPULATED PERIOD THEN P
MAY ENTER JUDGMENT IN RESPECT OF ANY SUCH CLAIM
AS HE WOULD BE ENTITLED TO ENTER UNDER ANY
PROVISIONS SET OUT UNDER O19 RR2-5 ROC – O19 R6
ROC (DEPENDS ON EACH CLAIM)
• WHERE THE CLAIM BY P IS ONE WHICH DOES NOT FALL
WITHIN RR2-5 AND D FAILS TO SERVE SOD, P MAY APPLY
TO THE COURT FOR JUDGMENT AND ON HEARING OF THE
APPLICATION THE COURT SHALL GIVE SUCH JUDGMENT
A P APPEARS ENTITLED TO ON HIS SOC – O19 R7(1) ROC
• THE WORD ‘SHALL’ IS NOT IMPERATIVE BUT DIRECTORY.
• AS TO COSTS, THE COURT MAY EXERCISE THE DISCRETION
UNDER O59 ROC.
REPLY

• WHEN?
• AFTER D HAS SERVED SOD, THE NEXT RELEVANT PLEADING IS THE REPLY (R)
BY P.

• FUNCTION
• R IS TO SET OUT FACTS IN ANSWER TO THE FACTS RAISED IN SOD.
• IN SHORT, R IS AN ANSWER TO SOD.

• NECESSARY?
• R IS UNNECESSARY IF P WISHES TO DENY EVERYTHING CONTAINED IN SOD.
• THIS IS BECAUSE UNDER THE RULES RELATING TO JOINDER OF ISSUE, FAILURE TO
REPLY PUTS INTO ISSUE ALL MATERIAL FACTS IN SOD – O18 R14(1) ROC

• THUS, IF P DOES NOT REPLY, HE IS DEEMED TO DENY EVERYTHING IN THE

DEFENCE. THIS IS CALLED THE PRINCIPLE OF JOINDER OF ISSUE – O18 R14 ROC
 REPLY

• NECESSARY? (CONTD)
• THE RULE AS TO JOINDER OF ISSUE, HOWEVER, DOES NOT
APPLY TO SOC OR COUNTERCLAIM – O18 R14(3) ROC
• THEREFORE, WHEN SERVED WITH SOC, D MUST SERVE SOD.
• ALSO, IF SOD ADDS A COUNTERCLAIM AND SERVED ON P, P
MUST SERVE ON D A REPLY AND DEFENCE TO THE
COUNTERCLAIM.
• BOTH REPLY AND DEFENCE TO COUNTERCLAIM MUST BE
INCLUDED IN THE SAME DOCUMENT – O18 R3(3) ROC
• THE DOCUMENT SHOULD BE HEADED ‘REPLY AND DEFENCE TO
COUNTERCLAIM’; THE DIFFERENT PARTS ARE SEPARATED BY
SUB-HEADINGS ‘REPLY’ AND ‘DEFENCE TO COUNTERCLAIM’.
• IF P DOES NOT SERVE THE REPLY AND DEFENCE TO
COUNTERCLAIM, D MAY ENTER JUDGMENT IN RESPECT OF
THE COUNTERCLAIM.
REPLY

• NECESSARY? (CONTD)
• HOWEVER, R IS NECESSARY IF IT IS NEEDED
TO COMPLY WITH O18 R8(1) ROC – O18 R3(1)
ROC
• IT IS ALSO PRUDENT TO FILE AND SERVE R IN
SOME CIRCUMSTANCES.
• MALAYSIAN COURT PRACTICE – HIGH COURT
(MALAYAN LAW JOURNAL, KUALA LUMPUR 2004)
PARAS [18.3.1] – [18.3.2]
REPLY

• DEPARTURE
• R SHOULD NOT ALLEGE NEW FACTS OR GROUNDS OR
CLAIMS INCONSISTENT WITH ANY PREVIOUS PLEADING – O18
R10(1) ROC
• THE OBJECT IS TO PREVENT P FROM SETTING UP IN HIS REPLY
TO SOD A NEW CLAIM THAT IS INCONSISTENT WITH THE CAUSE
OF ACTION ALLEGED IN SOC.
• R SHOULD NOT PLEAD MERE EVIDENCE OR ARGUMENT, OR
STATE CONCLUSIONS OF LAW TO BE DRAWN OR INFERRED
FROM THE FACTS PLEADED.
• SERVICE
• R IS TO BE SERVED WITHIN 14 DAYS OF SERVICE OF SOD – O18
R3(4) ROC
 DEFENCE TO COUNTERCLAIM
• WHAT?
• A COUNTERCLAIM (CC) IS A CLAIM BY D AGAINST P
WHICH IS BROUGHT IN P’S ACTION AGAINST D.
• CC IS TREATED AS A SEPARATE ACTION, AS SUCH
THE PERSON MAKING IT (D) IS TREATED AS THE
PLAINTIFF AND THE PERSON AGAINST WHOM IT IS
MADE (P) IS TREATED AS THE DEFENDANT.
• THEREFORE IF D SERVES SOD AND CC, P MUST SERVE
A DEFENCE TO THE COUNTERCLAIM, OTHERWISE P
IS DEEMED TO ADMIT THE FACTS ALLEGED IN CC –
O18 R13(1) ROC.
• P MAY HIMSELF COUNTERCLAIM IN HIS DEFENCE TO THE
COUNTERCLAIM.
DEFENCE TO COUNTERCLAIM
• SERVICE
• THE DEFENCE TO THE COUNTERCLAIM IS TO BE
SERVED WITHIN 14 DAYS OF SERVICE OF CC – O18 R3(4)
ROC.
• IF THERE IS R, THE DEFENCE TO COUNTERCLAIM MUST
BE INCLUDED IN THE SAME DOCUMENT– O18 R3(3) ROC
• THE DOCUMENT SHOULD BE HEADED ‘REPLY AND
DEFENCE TO COUNTERCLAIM’; THE DIFFERENT PARTS
ARE SEPARATED BY SUB-HEADINGS ‘REPLY’ AND
‘DEFENCE TO COUNTERCLAIM’.
• DEFAULT
• IF NO DEFENCE TO THE COUNTERCLAIM IS SERVED, O19
RR2-7 ROC SHALL APPLY – O19 R8 ROC
 FURTHER PLEADINGS
• NO PLEADING SUBSEQUENT TO THE REPLY OR
DEFENCE TO A COUNTERCLAIM SHALL BE
SERVED EXCEPT WITH THE LEAVE OF THE
COURT – O18 R4 ROC
• SUCH PLEADING WOULD USUALLY BE D’S
ANSWER TO R – A REJOINDER.
• ALTHOUGH UNCOMMON, IT MAY BE
NECESSARY –
• WHERE D ADDS A COUNTERCLAIM OF LIBEL AND P
PLEADS QUALIFIED PRIVILEGE IN REPLY TO WHICH D
WISHES TO PLEAD EXPRESS MALICE;
• TO COMPLY WITH O18 R8(1) ROC
 FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC
• EACH PLEADING –
• MUST BE IN NUMBERED PARAGRAPHS - O18 R6(2) ROC
• PARAGRAPHS MUST BE NUMBERED CONSECUTIVELY;
• EACH ALLEGATIONS MUST BE IN A SEPARATE PARAGRAPH.

• ALL DATES, SUMS AND OTHER NUMBERS MUST BE IN

FIGURES AND NOT IN WORDS – O18 R6(3) ROC
• THE PARTIES MUST BE REFERRED TO AS THE PLAINTIFF
OR THE DEFENDANT AND NOT BY THEIR NAMES.
• NAMES ARE ONLY TO APPEAR IN THE TITLE.
 FORMAL REQUIREMENTS OF
•PLEADINGS
EACH PLEADING – R6 ROC
– O18
• MUST BE INDORSED IN ACCORDANCE WITH
O18 R6(4) ROC
• “THIS STATEMENT OF CLAIM IS FILED BY MESSRS ISMET
ULAM RAJA, SOLICITORS FOR THE PLAINTIFF WHOSE
ADDRESS OF SERVICE IS NO. 2A, JALAN BUKIT BERUANG
UTAMA, 75450 MELAKA.”
• HOWEVER, A STATEMENT OF CLAIM INDORSED ON A WRIT
IS NOT A PLEADING BY ITSELF BUT IS PART OF THE WRIT
ON WHICH IT IS INDORSED.
• THUS, SO LONG AS THE WRIT HAS BEEN PROPERLY
INDORSED WITH THE NAME AND ADDRESS OF THE
SOLICITORS, IT DOES NOT MATTER THAT THE STATEMENT
OF CLAIM IS NOT SO INDORSED.
 FORMAL REQUIREMENTS OF
PLEADINGS – O18 R6 ROC
• EACH PLEADING –
• MUST BE SIGNED BY THE PARTY OR BY THE PARTY’S
SOLICITOR – O18 R6(5) ROC

……………………………………………….
SOLICITORS FOR THE PLAINTIFF

• TAY CHOO FOO V HARRISONS HOLDINGS (M) SDN BHD [2001] 4 CLJ 52
• OH AH GOH V KUAN KEH LAN & ANOR [1966] 2 MLJ 153
• MACLAINE STOKVIS (MALAYA) LTD V THE SALOMA COMPANY [1959] MLJ
241
• CHEANG CHAN V LEE KIN KOK [1959] MLJ 242
• NAYAR V GIAN SINGH & CO LTD [1970] 1 MLJ 176
 CLOSE OF PLEADINGS

• AT A CERTAIN TIME, PLEADINGS ARE DEEMED TO BE CLOSED.

• WHEN? – O18 R20(1) ROC
• IF THE DEFENCE IS THE LAST PLEADING, PLEADINGS ARE DEEMED TO
BE CLOSED 14 DAYS LATER.
• IF THERE IS A DEFENCE, AND THE REPLY IS THE LAST PLEADING,
PLEADINGS ARE DEEMED TO BE CLOSED 14 DAYS LATER.
• IF THERE IS A DEFENCE TO THE COUNTERCLAIM, AND IT IS THE LAST
PLEADING, PLEADINGS ARE DEEMED CLOSED 14 DAYS LATER.
CLOSE OF PLEADINGS
• WHY?
• CLOSE OF PLEADINGS ENABLES –
• THE TIME PERIOD FOR SUBSEQUENT PRE-TRIAL STEPS TO BE
ASCERTAINED, FOR EXAMPLES:
• AUTOMATIC DISCOVERY IN PERSONAL INJURY – O34 R10(1) ROC
• WHERE PLEADINGS ARE DEEMED TO BE CLOSED, WITHIN 14
DAYS OF THE DATE, DISCOVERY TAKES PLACE BETWEEN P
AND D IN ACCORDANCE WITH O24 ROC AND INSPECTION
WITHIN 7 DAYS THEREAFTER.]
• PRE-TRIAL CASE MANAGEMENT – O34 R2 ROC
• P MUST WITHIN 14 DAYS AFTER THE PLEADINGS ARE
DEEMED TO BE CLOSED PROCEED TO PRE-TRIAL CASE
MANAGEMENT.
• THE PURPOSE OF THE RULES IS TO PROVIDE A TIME-TABLE FOR L
ITIGATION.
• IMPLIED JOINDER OF ISSUE ON THE PLEADING LAST SERVED
- O18 R14(2)(A)