INTERLOCUTORY

PROCEEDINGS
STRIKING OUT OF PLEADING
SUMMARY JUDGMENT
Interlocutory
Proceedings
a reasonable cause of
action
O.18 r 19 1 (a)
 Manoharan Malayalam & Anor

Dato’ Seri Mohd Najib Tun Haji Abdul

Razak & Others

[2013] 2 MLJ 725

Factors to be considered
by the court
How should the court decide
.
Summary of Striking out of
Pleadings
1. It is an interlocutory 1. The Grounds are that the
application made before the statement of claim or defence
actual trial of the case is fixed 1. discloses no reasonable cause of
by the court. action or defence;
2. is scandalous, frivolous or
2. Both plaintiff and defendant vexatious;
can apply. 3. may prejudice, embarrass or
delay the fair trial of the action; or
3. Application can be made at 4. is otherwise an abuse of the
process of the Court,
any stage of proceeding
before the actual trial. 2. Court may order the action to
be stayed or dismissed or
4. The application is by Notice of
enter judgment.
Application + affidavit and any
argument to the application
must be made in the affidavit
in reply
Summary judgment

Rules of Court 2012

O.14
O.14A
O.81
O.89
 Synopsis

What is summary judgment?

What is the purpose?
What is the ground of application?
Who may apply?
When can you apply?
When you cannot apply?
What are the grounds?
How to apply?
 What is summary judgment

• Procedure to obtain quick judgment from

the court without having to go through a
proper trial in court.
• The hearing of the application for summary
judgment will be conducted based on
pleadings and affidavit
• before a judge in Chamber if the
application is made at the High Court and
in open court if the application is made at
the Subordinate court.
 The Purpose

• To prevent the defendant from taking

advantage of the inherent delay in the
procedure before a case comes for trial.
• To prevent sham defence from defeating
and delaying the rights of plaintiff to a
judgment
 The ground

The defendant has no defence to

the claim of the plaintiff
 The test

The plaintiff must prove that

he has a valid claim and that
the Defendant has no
meritorious defence to his
claim
Relevant Provisions Under
the Rules of Court 2012

O.14
O.14A
O.81
O.89
 o.14 ROC 2012
• 1. Application by plaintiff for summary judgment (O. 14 r. 1)
(1) Where in an action to which this rule applies a statement of claim
has been served on a defendant and that defendant has entered an
appearance in the action, the plaintiff may, on the ground that the
defendant has no defence to a claim included in the writ, or to a
particular part of such a claim, or has no defence to such a claim or
part thereof except as to the amount of any damages claimed, apply
to the Court for judgment against that defendant.
(2) Subject to paragraph (3), this rule applies to every action begun by
writ other than-
• (a) a claim by the plaintiff for libel, slander, malicious prosecution,
false imprisonment, seduction or breach of promise of marriage; or
• (b) a claim by the plaintiff based on an allegation of fraud.
• (3) This Order does not apply to an action to which Order 81
applies.
 O.81 ROC 2012
Application by plaintiff for summary judgment (O. 81 r. 1)
(1) In an action begun by writ endorsed with a claim-
(a) for specific performance of an agreement (whether in writing or
not) for the sale, purchase or exchange of any property, or for the grant
or assignment of a lease of any property, with or without an alternative
claim for damages;
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such an
agreement,
the plaintiff may, on the ground that the defendant has no defence to
the action, apply to the Court for judgment.
(2) An application may be made against a defendant under this rule
whether or not he has entered an appearance in the action.
 Differences between O.14
and O.81
• O.14 - claim for damages and appearance must be entered

• O.81
(a) for specific performance of an agreement (whether in
writing or not) for the sale, purchase or exchange of any
property, or for the grant or assignment of a lease of any
property, with or without an alternative claim for damages;
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such
an agreement
no need to wait for an appearance
 Who may apply?

The plaintiff

Q: can the defendant

apply?
 O.14 R 5
Application for summary judgment on counterclaim (O.
14 r. 5)

(1) Where a defendant to an action begun by writ has

served a counterclaim on the plaintiff, then, subject to
paragraph (3), the defendant may, on the ground that
the plaintiff has no defence to a claim made in the
counterclaim, or to a particular part of such a claim,
apply to the Court for judgment against the plaintiff on
that claim or part.
 Procedure for Application
• O.14 r
• Manner in which application under rule 1 shall be made (O. 14 r. 2)
• (1) An application under rule 1 must be supported by an affidavit in
Form 13 verifying the facts on which the claim, or the part of a claim,
to which the application relates is based and stating that in the
deponent's belief there is no defence to that claim or part, as the
case may be, or no defence except as to the amount of damages
claimed.
• (2) Unless the Court otherwise directs, an affidavit for the purposes
of this rule may contain statements of information or belief with the
sources and grounds thereof.
• (3) The notice of application, a copy of the affidavit in support and of
any exhibits referred to therein must be served on the defendant
within fourteen days from the date of receipt of the sealed notice of
application by the applicant.
 O.81
Manner in which application under rule 1 shall be made (O. 81 r. 2)
•(1) An application under rule 1 shall be made by notice of
application supported by an affidavit made by some person who
can swear positively to the facts verifying the cause of action and
stating that in his belief there is no defence to the action.
•(2) The notice of application shall set out or have attached
thereto minutes of the judgment sought by the plaintiff.
•(3) The notice of application, a copy of the affidavit in support and
of any exhibit referred to therein shall be served on the defendant
within fourteen days from the date of issue of the notice of
application.
 Procedure for Application

O.14 o.81
• notice of application
Notice of Application
• Affidavit in support by
Affidavit in Support person who can swear
in Form 13 positively to the facts
Must verify the claim verifying the cause of
and action and stating
State his belief that that in his belief there
there is no defence to is no defence to the
the claim action.
The Law On Summary Judgment
National Company For Foreign Trade
v. Kayu Raya Sdn Bhd [1984] 1 CLJ Rep
283; [1984] 2 CLJ 220 FC

Bank Negara Malaysia v. Mohd Ismail

& Ors [1992] 1 CLJ Rep 14

KERAJAAN MALAYSIA v. PJBUMI

COMPOSITES SDN BHD
HIGH COURT MALAYA, SHAH ALAM,
[2012] 9 CLJ 219
 National Company for Foreign Trade v Kayu
Raya Sdn Bhd [1984] 2 MLJ 300

• Federal Court said:

• "... We think it appropriate to remind ourselves once

again that in every application under O. 14, the first
considerations are
• (a) whether the case comes within the order and
• (b) whether the Plaintiff has satisfied the preliminary
requirements for proceeding under O. 14.”
“For the purposes of an application under O. 14,
the preliminary requirements:-

(i) the Defendant must have entered an

appearance;

(ii) the statement of claim must have been served

on the Defendant;

(iii) the affidavit in support of the application

must comply with the requirements of r. 2 of the
O. 14.”
“If the Plaintiff fails to satisfy either of these
considerations, the summons may be dismissed.
If however, these considerations are satisfied, the
Plaintiff will have established a prima facie case and he
becomes entitled to judgment.

This burden then shifts to the defendant to satisfy the

court why judgment should not be given against him..."
How and What should the defendant do to
convince the court not to enter judgment
v him?
• O.14 r 3 and O.81 r 3

Unless on the hearing of an application under rule 1 either

the Court dismisses the application or the defendant
satisfies the Court with respect to the claim, or the
part of a claim, to which the application relates that
there is an issue or question in dispute which ought to
be tried or that there ought for some other reason to
be a trial of that claim or part, the Court may give such
judgment for the plaintiff against that defendant on
that claim or part as may be just having regard to the
nature of the remedy or relief claimed .
 Defendant must

• Raise an issue or question in

dispute which ought to be tried
i.e triable issue, or
• Raise an issue or dispute that
ought for some other reason to
be a trial of that claim,
meaning there is a triable
defence to the action
 Triable issue?
• TAN YIEN SIONG V TAN POI MENG [2002] 6 CLJ 73

• CHEMSOURCE (M) SDN BHD V UDANIS

MOHAMMAD NOR [2001] 6 CLJ 79

–Whether the issue raised by the defendant that he was

suffering from parkinson disease when he signed the
agreement amount to triable issue?
–The usefulness of an O 14 application can never be doubted. It is a
vehicle to dispose of cases, which are virtually uncontested. But the
plaintiff can only resort to this procedure when the defendant 'has no
defence to a claim included in the writ, or to a particular part of such a
claim, or has no defence to such a claim or part except as to the
amount of any damages claimed' 
 How should the court decide
whether there is a triable issue or
not?
Bank Negara Malaysia v. Mohd Ismail & Ors
[1992] 1 CLJ Rep 14; [1992] 1 CLJ 627; [1992] 1
MLJ 400 SC

".....Under an O. 14 application, the duty of a Judge

does not end as soon as a fact is asserted by one party,
and denied or disputed by the other on affidavit.
Where such assertion, denial or dispute is equivocal
(vague) or lacking in precision or is inconsistent with
undisputed contemporary documents or other
statements by the same deponent or is inherently
improbable in itself, then the Judge has a duty to reject
such assertion or denial, thereby rendering the issue as
not triable.”
“In our opinion, unless this principle is
adhered to, a Judge is in no position to
exercise his discretion judicially under
an O. 14 application.

Thus, apart from identifying the issues

of fact or law, the Court must go one
step further and determine whether
they are triable issue.”
 KERAJAAN MALAYSIA v. PJBUMI COMPOSITES
SDN BHD [2012] 9 CLJ 219
• The plaintiff claimed against the defendant the sum of
RM1,400,674.99 being arrears of taxable income under the self
assessment scheme for the year of assessment 2002 inclusive
of the increase under the Income Tax Act 1967 that was due
and payable. Having taken into account the payment made in
the year of assessment 2011 and 2012 respectively, the balance
amount claim is the sum of RM1,280,674.99.
• The plaintiff filed an application for summary judgment
pursuant to O. 14 r. 1 of the Rules of the High Court 1980
claiming the sum of RM1,400,674.99 being arrears of taxable
income due and payable under the self assessment scheme .
• Court entered judgement for plaintiff.
  

PUTERA AZAMUDDIN SHAH ABDUL AZIZ v. YAM TENGKU PUTRI

DATIN PADUKA ARAFIAH IBNI ALMARHUM SULTAN ABDUL AZIZ SHAH
[2011] 1 LNS 925

Case under O.81

The plaintiff filed a writ of summons and statement of claim against the
defendant seeking an order for specific performance of a Consent Judgment
dated 25.10.2010 and for the defendant to sign the Share Sale Agreement and
costs. The defendant's defence is that she had every intention of fulfilling
her obligations under the Consent Agreement. However, the actions of the
Suruhan Pencegahan Rasuah ("SPRM") in seizing several of the defendant’s
document has left her in the state of depression and frustration.

The plaintiff applied for an order of specific performance against the

defendant under O. 81 of the Rules of the High Court 1980 ("RHC") to require
the defendant to sign the Share Sale Agreement and costs.

It was granted by the court.

DISPOSAL OF CASES ON
POINT OF LAW

O.14A ROC
 Determination of questions of law or
construction (O. 14A r. 1)
 (1) The Court may, upon the application of a party or of its own
motion, determine any question of law or construction of any
document arising in any cause or matter at any stage of the
proceedings where it appears to the Court that-
 (a) such question is suitable for determination without the full trial of
the action; and
 (b) such determination will finally determine the entire cause or
matter or any claim or issue therein.
 (2) On such determination the Court may dismiss the cause or matter
or make such order or judgment as it thinks just.
 (3) The Court shall not determine any question under this Order
unless the parties have had an opportunity of being heard on the
question.
 (4) The jurisdiction of the Court under this Order may be exercised by
a Registrar.
 (5) Nothing in this Order shall limit the powers of the Court under
Order 18, rule 19 or any other provisions of these Rules.
 The purpose of O.14A

Tengku Dato’ Baharudin Shah (COA) in Zaid

Ibrahim & CO case said:

“ O.14A of the RHC provides for an accelerated

final disposal of an action at an interlocutory
stage to save time and expense which would
otherwise arise if the action were to proceed to
full trial. It empowers the court to make a final
determination of a question of law without the
need of an application under O.33 r 5 for the
determination of a preliminary issue.”
 Requirements

) the question of law or

i

construction is suitable for

determination without full trial of
an action, and

Ii) such determination will be final

as to the entire cause or matter or
any claim or issue therein.
Petroleum Nasional Bhd
v Trengganu [2004] 1
MLJ 8 (COA)
The plaintiff, the Government of Trengganu,
sued the defendants, Petronas and the
Government of Malaysia for breach of
contract for failure to pay the yearly cash
payment amounting to 5% of the value of
the petroleum sold to the first defendant.
 Defendant’s Application

The question of laws for determination of

the courts evolved around:

1. the plaintiff’s right over the petroleum

under the Continental Shelf Act 1966.

2. The plaintiff’s entitlement of the payment

under the Petroleum Development Act 1974
 Plaintiff’s Arguments

• There are numerous issues of complexity raised

in the pleadings and that each cause of action
itself raised multiple issue of fact and law.
• There are massive documentation and discovery
of documents is fundamental.
• The claim involved large scale and magnitude of
cash payment and a heavy
commercial/constitutional case of public and
national interest.
• Thus cannot be disposed off in a summary way.
 Decision by the SAR

having considered the pleadings and the

submissions of the parties, he found this case is far
from being plain and simple because it raised a
number of complex legal issues involving, inter alia,
the interpretation and construction of the Federal
Constitution and the State Constitution,
International Convention and other statutes

Defendant appealed
 COA
• Allow the appeal by the defendants on the ground
that
• the first three questions will determine the
entitlement of the plaintiff to the payments under
the principal agreement
• And held that the determination of the threshold
issue as preliminary issues will be decisive of the
whole litigation or essentially the main part of the
suit.
• Thus resulting in a substantial saving of time and
cost as it will significantly cut down the costs and
time involved in pre-trial preparation or in
connection with the trial proper.
 Kerajaan Negeri
Kelantan
v
Petroliam Nasional
Berhad
2014 MLJU 844
 FAUZIAH ISMAIL & ORS v. LAZIM KANAN &
ORANG-ORANG YANG TIDAK DIKETAHUI [2013]
7 CLJ 37

A case involving provision under the Malay

Reservation Enactment and determination on the
status of a sale and purchase agreement of the land
entered with a non Malays.

point of law is based on a Sale & Purchase Agreement.

The effect of the question posed by the appellants in their application
under O. 14A is that if the sale and purchase of the said land from the
late Ismail bin Duahat to Lazim bin Kanan in 1993, is contrary to the
Malay Reservations Enactment (Chapter 142), then the sale is void and
the sale and purchase agreement signed by the parties on 16
December 1993 cannot be enforceable in law. That being the case, the
respondents' defence must fall and judgment can be entered in favour
of the appellants.

In other words, the determination of the question posed by the

appellants will dispose of the entire cause in the claim.

Therefore, this is a fit and proper case to be summarily determined

under O. 14A and/or O. 33 rr. 2 and 5 of the Rules of Court 2012. The
disposal of the question posed will ultimately and definitely dispose
the matter without the need to go to trial.
 Summary of summary judgment
• o.14, O.81 & 0.14A
An application to obtain quick judgment on the ground that the defendant
has no defence to the claim (o.14) or to the action (o.81) on point of law
(o.14A)

GR plaintiff may apply and the defendant may apply if there is a counter
claim.

The application can be made once the plaintiff has served the Writ and
statement of claim and in case of 0.14 the defendant has entered
appearance.

The application under 0.14 can not be made in case of libel slander etc

The application must be made by NOA + AIS

The application can be resisted by raising a triable issue or question in

dispute.
SUMMARY PROCEEDING
UNDER O.89 RULES OF
COURT 2012

O.89
 Proceedings to be brought by
originating summons (O. 89 r. 1)

Where a person claims possession of land which

he alleges is occupied solely by a person or
persons (not being a tenant or tenants holding
over after the termination of the tenancy) who
entered into or remained in occupation without
his licence or consent or that of any predecessor
in title of his, the proceedings may be brought by
originating summons in accordance with the
provisions of this Order.
 Bohari bin Taib & Ors v. Pengarah
Tanah Galian Selangor [1991] 1 MLJ 3
Mohd Azmi SCJ

• …for the purpose of the summary procedure, a

distinction should be made between squatters simpliciter
who have no rights whatsoever, and occupiers with
licence or consent, and as well as tenants and licensees
holding over.

• It may be impossible to establish the existence of any

triable issue in the case of bare squatters, but the position
of tenants and licensees holding over, or persons
occupying with implied or expressed consent of the
owner may be different.
 Mode of Application

• The originating summons shall be in Form 8A and an

acknowledgement of service is not required,
• The plaintiff shall file in support of the originating
summons and affidavit stating-
• (a) his interest in the land;
• (b) the circumstances in which the land has been occupied
without licence or consent and in which his claim to
possession arises; and
• (c) that he does not know the name of any person
occupying the land who is not named in the summons.
 Service of the OS – how
conducted
• See O. 89 r 4

• (1) Where any person in occupation of the land is named in

the originating summons, the summons together with a
copy of the affidavit in support shall be served on him-
• (a) personally or in accordance with Order 10, rule 5;
• (b) by leaving a copy of the summons and of the affidavit
or sending them to him, at the premises; or
• (c) in such other manner as the Court may direct.
 Service
• (2) The originating summons shall, in addition to being served on the
named defendants, if any, in accordance with paragraph (1) be served,
unless the Court otherwise directs, by-
• (a) affixing a copy of the summons and a copy of the affidavit to the
main door or other conspicuous part of the premises; and
• (b) if practicable, inserting through the letter-box at the premises a
copy of the summons and a copy of the affidavit enclosed in a sealed
envelope addressed to "the occupiers”.
• (3) Every copy of an originating summons for service under paragraph
(1) or (2) shall be sealed with the seal of the Court out of which the
summons was issued.
 SHAHEEN ABU BAKAR v. PERBADANAN KEMAJUAN NEGERI
SELANGOR [1998] 4 MLJ 233 FEDERAL COURT

• The respondent, Perbadanan Kemajuan Negeri Selangor

(PKNS) filed an application by originating summons
under O. 89 r. 1 in the High Court Shah Alam to evict the
defendants from a piece of land.
• PKNS and Punca Alam applied to obtain possession of
the land under O.89
• Defendant raised argument:

• - the developer has no locus standi to apply for summary

judgment under o.89 and that
 Federal Court
• It can strongly be argued that the appellant's land was within
the land sold to Punca Alam . Therefore, the question of
whether the respondent had the locus standi to file the O. 89
application against the appellant is a triable issue.

• [3] There is a strong arguable case that the settlers occupied the
said land with the implicit consent of the state authority. Even if
their entry on the said land was unlawful, there is an arguable
case that they occupied the said land with the acquiescence of
the state authority. This again is a triable issue.
K. Elizabeth Sumana De
Silve v
Amir Singh a/l Amrik
Singh
[2013] 9 MLJ 625
Nor ak Nyawai & Ors ( suing for and
on behalf of themselves and all other
occupiers, holders and claimants of
native customary right land (NCR) at
Sg Sekabai, Sg Tajem, Tatau, Bintulu
Sarawak
v
Tatau Land Sdn Bhd

[2014] 5 MLJ 309

 Orang-Orang Yang Tidak Dikenali
Yang Menduduki Atas Tanah Geran
No SP 1642, Portion No 3, (dikenali
sebagai Kampung Baru Pulau Tiga,
Sungai Layar) Mukim Sungai Petani,
Daerah Kuala Muda, Kedah v Dato'
Seri M Mahadevan a/l A Mahalingam

[2018] MLJU 302

 [2017] MLJU 41
Nodedua Sdn Bhd v
Rubayah binti Atan & 34
Ors