PARTIES

(A) Introduction
-In law, only a person who has a legal personality can sue.
-If the parties suing does not make it clear in the writ and pleading that he/it has
the legal personality to sue, the court is entitled to rule that he/it has no legal
personality to sue and, as a consequence, no reasonable cause of action.
(B) Parties in litigation
(i) Individuals as Plaintiff or Defendant
-Any person may begin and carry on proceedings by a solicitor or in person
(O. 5 R. 6 RC)
-The plaintiff or defendant must be sui juris (age of majority) and mentally
sound.
-Individual must describe themselves in the writ or pleadings.
(ii) Person under a disability (O. 76 RC)
-If the litigation is unsuccessful, the litigation representative maybe liable
personally but is entitled to be indemnified. The litigation representation is
not liable personally.
(iii) Incorporated Bodies
-These bodies are incorporated or registered under the Companies Act
1965.
-An incorporated body can sue or be sued in its name as it is a separate
legal entity. (sec. 16(5) Companies Act 1965.
-It must be represented by a solicitor (O. 5 R. 6(2) RC)
(iv) Partnership (O.77 )
-Advantages of suing in the name of the firm are that it is easier for
service and in enforcing judgment against the partnership property.
(v) Individual trading as a firm (O. 77 R. 9)
*Wee Tiang Kheng v. Ngu Nii Soon
-Under O. 77 R. 9 RC, a person carrying on the business within the
jurisdiction in a name or style other than his own name, is liable to be
sued in the name or style as if it were the name of the firm. This is
because it is a permissive provision and does not restrict him to be sued
only in that name or style.
(vi) Federal/State Government (O. 73 RC + Government Proceedings Act 1956)
-For federal government, the title Government of Malaysia will be used;
or
-For state government, the title State of .. will be used.
(vii) His Majesty the YDPA
-the YDPA shall not be liable to any civil proceedings whatsoever in any
court except in the Special Court established under Part XV of the
Constitution. (Art. 32 of FC)
-No action shall be instituted against the YDPA and Rulers in their personal
capacity unless the A-G personally gives consent. (Art. 183 of FC)

(viii) Their Highness the Rulers

-No proceedings whatsoever shall be brought in any court against a Ruler
of a State in his personal capacity except in Special court established
under Part XV.
-Expression of Ruler is defined in Art. 183 of FC.
-PRE-AMENDED CASES
*Karpal Singh v. Sultan of Selangor
-The Sultan of Selangor made a statement reported in the English
newspapers that His Highness would not pardon any drug traffickers. Mr
Karpal Singh made an application by OS to seek a declaration that the
statement violated Art. 42 of FC.
-The Supreme Court held, inter alia, that it had no jurisdiction to hear the
action on the ground that the plaintiff had no locus standi and that Article
181(2) bars the plaintiffs claim.
*Daeng Baha Ismail v. Tunku Mahmood Iskandar Al Haj
-The HC held that the YDPA enjoys absolute immunity upon being elected
by the COR under Art. 31(1) of FC.
*Stephen Kalong Ningkan v. Tun Abang Haji Openg
-The court held that Art. 32(1) of FC only protects the YDPA personally
from any actions in the courts. It does not protect the Federal government
from action in the court even though the Federal government acts in the
name of YDPA.
(ix) Foreign Sovereigns/Foreign States
*Mighell v. Sultan of Johore
-Foreign rulers cannot be sued.
*Village Holdings v. Her Majesty the Queen in Right of Canada
-In this case, the disputed land was owned by the defendant Canadian firm
in the name of the Queen. The plaintiff had paid a deposit.
-The proceedings against the Queen of foreign country was dropped as a
foreign sovereigns cannot be sued in Malaysia.
(x) Foreigns missions in Malaysia
-Diplomats specified in the following statutes enjoys immunity and cannot
be sued.
(a) Diplomatic Privileges (Vienna Convention) Act 1966
(b) International Organisations (Privileges and Immunities) Act 1992
(c) Diplomatic Privileges (Vienna Convention)(Amendment) Act 1999
(xi) Societies registered under the Societies Act 1966 (sec. 9)
-All societies registered under the Act shall name one member as public
officer
-A society can be sue or be sued in the name of the public officer; and

-If no police officer has been appointed, the society may be sued in the
name of any of its office bearers.
-No separate entity.

(xii) Trade Union

-A registered trade union may sue or be sued under its registered name
(sec. 25 of Trade Union Act)
-For tort, the action must be taken against the official in question
(xiii) Estates of the deceased persons
-Sec. 8(1)CLA
-The estate of the deceased person can be sue or be sued except in:
(a) Defamation
(b) Seduction
(c) Claim of damage on grounds of adultery.
(d) Inducing one spouse to leave the other.
-Sec. 8(3) CLA
-No tort action against the estate of the deceased can be taken unless the
action:
(a) were pending at the date of his death; or
(b) is taken not later than 6 months after his personal
representative took out representation
*Lee Lee Cheng v. Seow Peng Kwang
-The appellant administratrix commenced an action against the estate of
the deceased who was killed in a motor accident.
-The action was commenced more than 6 months after the personal
representative of the estate of the deceased had taken out the grant of
representation.
-The appeal was dismissed as the CLA gives no power to court to extend
the period of 6 months prescribed under sec. 8(3)(b).
-The normal limitation of 6 years for tort action under sec. 6(1) LA is not
applicable as sec. 8(3) of CLA overrides sec. 6(1) of LA.
-Administrator cannot sued or be sued before the grant is extracted.
*Govindasamy Pillay v. Lok Seng Chai
-Following Ingall v. Moran, in the court opinion, it is only on extracting the
grant of LA that the petitioner can be said to be fully clothed with a
representatives character and to have acquired a title to the estate.
*Comptroller of Income Tax v. Yan Tai Min
-An administrator appointed by beneficiaries of an intestate estate will
apply for LA which will then have to be extracted. The position of law is an
administrator cannot sue or be sued before the grant of LA is extracted.
*Ang Hoi Yin v. Sim Sie Hau

-The court had granted the LA to the administratrix but she had
commenced a writ action against the defendant before extracting the LA.
The defendant entered conditional appearance and applied to set aside
the writ on the ground that the plaintiff had no locus standi.
-The court held that the administratrix had no power to sue as she had not
extracted the LA and hence the writ had to be set aside.
*Ruhani v. Abdul Karim
-It was held that the administrator can be sue after the grant is approved
by the court and failure to extract is not fatal.
-Can the executor sue or be sued before the probate is extracted
*Meyappa Chetty v. Subramaniam
-It is quite clear that an executor derives his title and authority from the
will including all right of action upon the testators death therefore he can
institute an action before he proves the will. He however cannot obtain a
decree before probate as the production of probate is the only way to
prove his title.
*Mohamidu Mohideen Hadjiar v. Pithey
-The executor may only be sued after the grant of probate has been
extracted because although the executor is named in the will he may not
want to act as the executor.
-Writ is issued in the name of a deceased plaintiff or deceased defendant
*Dawson v. Dove
-A writ is issued in the name of a deceased plaintiff is a nullity
-O. 15 R. 6A(3)
-If a writ is issued against a deceased defendant, it is effective as if
it has been commenced against the estate of the deceased
defendant i.e. the personal representative of the deceaseds estate
can be substituted.
-Where the plaintiff or defendant dies after commencement of action (O. 15 R. 6
+ O.34 R. 12)
*Gov. of Malaysia v. Taib bin Abdul Rahman
-The court interpreted O. 15 R. 6 and held that the court has discretion to
order another person to be substituted and the proceedings to
be
continued.
-The other person need not be a personal representatives of the deceased
plaintiff or defendant.
-Suing the estate of a deceased person where no grant has been extracted
-Sec. 39(1) PAA
-Intestate property vests in the OA.
-However, sec. 39 does not make the OA the deceased PR.
-Advantage: The plaintiff can file his action within the limitation
period and apply for a PR to be appointed.

*Selvarajah v. OA
-OA can only accept service of writ. The action will be held in
abeyance until a PR of the deceased is appointed.
-O. 15 R. 6A
-The action may be brought against the estate of the deceased
using OS
-Where it is a motor accident case, the court may require notice to
be given to any insurer of the deceased who has an interest in the
proceedings and such person (if any having an interest in the estate
as it thinks fit.
-The court have power to appoint OA and require OA to receive
service of writ or OS or to take further steps in the proceedings.
Such order require OAs consent.
*Re Amirtheymour
-Where an OA has been appointed to receive the writ, JID cannot be
entered if the OA fails to enter appearance.
-Sec. 30 PAA
-The plaintiff may petition for a grant to the deceaseds estate . This
means that the plaintiff may petition for LA ad litem. The nominee
appointed may then be sued.
*Re Simpson
-Any judgment entered may be enforced against the estate of the
deceased and if the beneficiaries object, they will be asked to take
out the grant themselves.
(C) Joinder of Parties
-Conditions for joinder of parties (O. 15 R. 4 of RC)
(a) same common question of law or fact would have been involved in all
actions; and
(b) the relief claimed arises out of the same transaction or a series of
transactions
-MUST FULFILL BOTH!!!
-Circumstances where joinder of parties may arise:
(i) two or more parties may have causes of action against the defendant or
group of defendants arising out of a common complaint. (O. 15 R. 4(1) of
RC)
(ii) plaintiff claims any relief to which any other person is entitled jointly
with him. (O. 15 R. 4(2) of RC)
(iii) plaintiff may wish to join all the defendants against whom he has a
cause of action to make them jointly liable as parties to a contract in
breach of its terms.
(D) Misjoinder and Non-Joinder of Parties (O. 15 R. 6)
-This rule prevents an action from being defeated by the misjoinder or nonjoinder of Ps or Ds
-Misjoinder: when a person has been wrongly joined as a party.

-Non-joinder: when a person should have been joined as a party but was
not joined.
*KL Finance v. Azmi
-Where the plaintiff has improperly joined a defendant because the conditions in
Rule 4(1)(a) & (b) are not met, and the plaintiff had not obtained leave, the
defendant may apply for an order that he ceased to be a party.
-When and how application to be made (O. 15 R. 6(2) of RC)
-Court may order on its own motion and consent of plaintiff is required for
joinder
*Shell Malaysia v. Leong Yuet Yeng
-An application for an order in relation to misjoinder or non-joinder may be
made at any stage of the proceedings but before final judgment.
-At any stage of the proceedings means at any stage before the final order
is a made not after it has been perfected and extracted.
*Mohamed Haniffa v. Koperasi Doktor Malaysia
-O. 15 R. 6(2)(b) permits intervention on two grounds for intervention:
(i) where the presence of a party before the court is necessary.
(ii) where a party to an action claims relief or a remedy which will
materially affect the non-party interveners rights.
-In such circumstances, the court is empowered to permit intervention if it
form the view that to do so will be just and convenient.
*Pegang Mining v. Choong Sam
-The question of joinder is will his rights against, or liabilities to, any party
to the action in respect of the subject matter of the action to be directly
affected by the order which may be made in the action.
-Subject to certain principles it allows for the addition, substitution or striking out
of persons as plaintiffs or defendants, intervention or striking out of persons not
parties to the action.
-Adding
(a) Plaintiffs
-There is requirement for consent
*Mabro v. Eagle Star
-Leave to add or substitute a plaintiff will not be granted where to
do so would be to defeat the defendants reliance on limitation.
(b) Defendants
*Mohamed Haniffa v. Koperasi Doktor Malaysia
-A plaintiff may sue any person or persons he choose, at the risk of
costs against him and he may leave out any person from his action
as he wishes. However, it must be noted that a party to an action
must be a person who claims in that action some relief against
another party to the action or against who some relief is claimed by
another to the action.

*Sanderson v. Blyth Theatre

-When it was discovered subsequent to commencing the action that
it is necessary to add another defendant, i.e. the principal of a
defendant claiming merely an agent, the principal may be added by
this rule.
*Datuk Bandar Kuching Utara v. Kuching Plaza
-The plaintiff may make the application by summons, supported by
an affidavit giving the grounds or reasons for the application. There
is no requirement to obtain the consent of the party intended to be
added as a defendant before adding him.

(c) Co-Defendant by defendant

*Tajjul Ariffin v. Heng Cheng Hong
(i) The principle of overriding importance is that all necessary and
proper parties, but no others should be before the court at the same
time to enable the effectual and complete determination and
adjudication to be made by the court of all questions and issues
between the parties which arise for decision. (O. 15 R. 4& 6)
(ii) To this end, no action will be defeated by reason of mere misjoinder or no-joinder of any party which is capable of being
remedied and is no defense. The joinder of parties is permitted as of
right in a wide area of circumstances or otherwise with leave of the
court.
(iii) Additionally, the court has extensive discretionary powers- to
add, substitute or to strike out parties who are not proper or
necessary, and for these purpose the court may even act of its own
motion (O. 15 R. 6)
(iv) Generally, in common law and chancery matters, a plaintiff who
considers that he has a cause of action against a defendant is
entitled to pursue his remedy against that defendant alone and he
cannot be forced to pursue his remedy against other persons who
he has no wish to sue.
(v) Nevertheless, a person who is not a party may be added as a
defendant over the objections of the plaintiff on his own
intervention or upon the application of the defendant or in some
cases by the court of its own motion.
(vi) But, a defendant against whom no relief is sought by the
plaintiff will generally not be added against the wishes of the latter.
A third party is in such a case usually the proper procedure to adopt
though such a defendant can be added in a proper case.

-Intervention
*Pegang v. Mining
-The test in determining whether an applicant ought to be given
leave to intervene is whether the applicants right against or
liabilities to any party to the action, in respect of the subject matter
of the action, will be directed affected by any order which may be
made in the action.
*Sistem Penyuraian v. Kenny Height
-The COA found that the appellant was a person interested in the
compensation payable to the first respondent pursuant to sec. 2 of
Land Acquisition Act 1960 and O. 15 R. 6(2)(b) of RC.
-The court held that appellant should rightly be added as a party in
the land reference proceedings.
*Lee Meow Lim v. Lee Meow Nyin
-A mere commercial interest in the outcome of the action, divorced
from its subject matter, such as interest of a creditor of one of the
parties, is not sufficient to entitle a person to intervene.
*Tai Choi Yu v. Syarikat Tingan Lumber
-A mere shareholder, a fortiori, a minority shareholder, has no such
interest, legal or equitable in the property of a company, and is not
entitled to intervene in winding up proceedings brought by a
creditor of the company.

APPEARANCE AND DEFAULT JUDGMENT

(A) Introduction
-When the writ has been served, D knows that an action has been filed against
him in the Court. D may enter appearance if he wishes to defend the action. If D
does not enter appearance, judgment in default of appearance may be entered
against him in certain claim.
(B) Entry of Appearance (O. 12 RC)
-D may enter appearance in the action begun by writ if he wishes to defend it (O.
12 R. 1(1). Entry of appearance shows Ds intention to defend the action and to
submit to the jurisdiction of the court.
-Mode of entering appearance
-D may enter appearance by completing a memorandum of appearance in
Form 11
(O. 12 R. 2)
-Procedure:
(i) If D enters an appearance, it does not means that he is waiving any
irregularities in the writ served by P (O. 12 R. 9)
(ii) To enter an appearance, D/Ds solicitor must complete Form 11 in
duplicate and hand/post them to the Registry of the Court (O. 12 R. 2(2))
-Form 11 must be signed by D or his solicitor and must be specify
the address for service (O. 12 R. 2(3).
(iii) On receiving the documents, the Registry indorses the date on the
copies and enters the appearance in the cause book (O. 12 R. 3(1))
(iv) D must then serve a copy of the appearance entered, on P/Ps solicitor
(O. 12 R. 3(2) of RC)
-Appearance by body corporate (O. 12 R. 1(2) of RC)

-If D is a body corporate, D must enter appearance and defend the action
by a solicitor who has to give his address for service.
-Appearance by persons under disability (O. 76 of RC)
-A defendant under disability (minor or mental patient) must enter
appearance by a litigation representative (O. 76 R. 3(6) of RC)
-If there is no litigation representative, then P must apply to the court to
appoint one (O. 76 R. 6(1) of RC)
-If a solicitor believes his client has, at any stage after appearance,
become mentally unsound, he must immediately apply to appoint a
litigation representative or risk bearing the costs personally.
-Time limit for D to file appearance (O. 12 R. 4)
*Seng Loong Trading v. Angel
-P issued the writ at the HC at KL and served it on D whose address was in
Penang.
-The court held that D had 12 days to enter appearance under O. 12 R. 4
and not 8 days.

-Late appearance
-D may not enter appearance after the judgment has been entered except
with leave of court (O. 12 R. 5(1) of RC)
-However, leave of court is not necessary of D enters appearance after the
time limit but before judgment (O. 12 R. 5(2) of RC)
(C) Effect of non-appearance
-Where D has failed to enter an appearance within the time limit, P is entitled to
obtain judgment in default of appearance (O. 13 R. 1)
-The nature of the judgment depends on the type of claim involved. The rules
specify the various categories of claim. It may be:
(a) a claim for a liquidated demand
-O. 13 R. 1(1)
(b) a claim for unliquidated demand
-O. 13 R. 2
(c) a claim in respect of the detention of moveable property
-The plaintiff may obtain interlocutory judgment against the
defendant for the delivery of the property or their value to be
assessed.
-The plaintiff may also enter judgment for costs.
-The writ will usually include a claim for damages arising out of the
detention in which case the plaintiff would be entitled to
interlocutory judgment for unliquidated damages as well.
(d) a claim for the possession of land
-Where a writ is endorsed with a claim for the possession of land
and the defendant fails to enter an appearance within the time

required, the plaintiff may enter judgment for the possession of the
land and costs.
(e) a claims other than those specified in the rules
-JID cannot be entered in cases of account, injunction, specific
performance, declaration and rectification (O. 13 R. 1-6 and O. 19 R.
7)
-Instead the plaintiff may, after the time limited for appearing ,
upon filing an affidavit proving due service of the writ on the
defendant concerned, and upon serving the statement of claim,
proceed with the action as if the defendant had entered an
appearance.
-The effect of the rule is that the plaintiff goes to the next step of
the proceedings which is to require a defense pleading to be filed
and served. If the defendant does not take this steps, the plaintiff
may obtain judgment in default of defense (O. 19 R. 7(3) of RC).
*Lam Kong v. Thong Guan
-In an action for specific performance, D failed to enter appearance. P
entered judgment in default of appearance. D applied to set aside the
judgment because the claim fell under O. 13 R. 6 where P was not entitled
to enter a judgment in default of appearance.
-It was held that non-compliance with the rules is not a mere irregularity
but a fundamental defect not curable under O. 2. Thus the judgment was
set aside.
*Leong Seng Kiat v. Khaw See Song
-This ruling was also followed in an action for specific performance.
*Syarikat Joo Seng v. Habib Bank
-The plaintiff had claimed, inter alia, declarations concerning money
allegedly had and received by the defendants. The P entered JID in
defense without obtaining the court leave.
-The Supreme Court held that as the plaintiff had failed to obtain leave,
the judgment was irregular and the defendants were entitled to ex debitio
justitiae to have it set aside.
-The Supreme Court rejected the argument of the defendants that the
default judgment could be upheld under O. 2 R. 1.
-The court held that the provision does not apply to a default judgment.
-Procedure for entering judgment in default in HC
-No appearance before Judge or Registrar involved
-Documents required:
(a) Original writ duly endorsed as to particulars of service (day,
date, time, on whom) (O. 10 R. 1(4))
(b) affidavit of service in Form 135 to verify service (O. 62 R. 9)
(c) two completed judgment forms (Form 75) duly prepared (O. 42
R. 5)
(d) certificate of non-appearance in Form 12 (O. 13 R. 7)

-If D is represented by a solicitor, no judgment in default can be entered

against D without giving his solicitor a 7 days written notice of intention to
apply or to enter judgment in default of appearance (R. 56 of Legal
Profession (Practice and Etiquette) Rules 1978)
-Non-compliance: Amount to misconduct but does not invalid JID.
*Asia Commercial Finance v. BBMB
-A JID was entered without giving Ds solicitor 7 days written notice
as required under R. 56 of Legal Profession (Practice and Etiquette)
Rules 1978)
-It was held that this does not affect the validity of the judgment
entered therein. However, the Bar Council may take action against
Ps solicitor.
*PL Construction v. Abdullah bin Said
-It was held that a default judgment in breach in R. 56 is valid.
-Effective date of entry of JID
*Tatchee v. Posan Timber
-The court held that the date of judgment was when the actual judgment
was entered and not the date when the Assistant Registrar approved the
draft judgment. Here, D entered appearance before the actual judgment
and hence the judgment was not valid.

-Setting aside judgment in default of appearance

(i) Court has absolute discretion to set aside or vary the JID if it thinks just
(O. 13 R. 8 RC)
*Evans v. Bartlam
-The principle obviously is that unless and until the Court has
pronounced a judgment upon the merits or by consent, it is to have
the power to revoke the expression of its coercive power where that
has been obtained by a failure to follow any of the rules of
procedure.
*Tuan Haji Ahmad v. Arab Malaysian Finance
-The FC held that the court has discretion to set aside or vary the JID
if it thinks just taking into account the various factors of the case.
(ii) D is advised to act promptly
-D can apply to the court to set aside the JID within 30 days after
being served with the order or judgment (O. 42 R. 13)
-However, after the 30 days, D has to apply for leave of court to
extend the time limit (O.3 R. 5). The court has discretion whether to
grant to leave.

(a) Delay in Ds application

*Ban Huat Seng v. Lee Poh Soo
-The court did not set aside the JID as Ds application was
made 6 years after P obtained JID of appearance even though
D alleged that the contract was void under a statute.
*Tian Yan Onn v. National Holdings
-D applied after 7 months and 12 days to set aside the JID.
The court dismissed Ds application and said that the
applications must be promptly made although no time limit is
fixed. A reasonable time to file the application depends on
the circumstances of the case. In this case, D had waited too
long and it was unreasonable and inexcusable.
(b) Any irregularities in obtaining the JID and merits of the
case
*Fira Development v. Goldwin Sdn. Bhd.
-The court held that where the application is made to set
aside the JID, the court has to consider the merits of the case
and any irregularities in obtaining the JID.
(iii) Procedure for setting aside JID
-D must apply by Notice of Application in Form 57 supported by
Affidavit (O. 32 R. 1)
-The affidavit must state:
(i) the reasons why D did not enter appearance;
(ii) show prima facie defense on evidence; and
(iii) prospect of succeeding in the defense

(iv) Regular and Irregular JID

(a) Irregular JID
-Irregular judgment means a judgment obtained without complying
with the rules of procedure i.e. defects in issuance, service of writ or
in Ps application for JID.
-D can set aside an irregular judgment as of right i.e. set aside ex
debitio justitiae.
-There no need for D to show a defense on merits but it should state
the nature of the irregularity and the circumstances under which the
default arose.
*Mercurine v. Canberra Development
-In setting aside the irregular default judgment as of right, the court
should consider, inter alia:
(a) The nature of the irregularity, in particular, whether it
consist of:
(i) entering a JID prematurely or
(i) failing to give the defendant proper notice of the
proceedings.

(b) whether the defendant took a fresh step in the

proceedings after becoming aware of the irregular default
judgment;
(c) whether there was any undue delay by the defendant in
filing its setting-aside application; and
(d) where a judgment is irregular because of the plaintiffs
breach of procedural rules (which would be the case for the
majority of irregular default judgments), whether the breach
was committed in bad faith.
(b) Regular JID
-Regular judgment means a judgment obtained in compliance with
the rules of procedure.
-Although the default judgment is regular, the court still has
discretion to set aside if it thinks just.
*Evans v. Bartlam
-D must show some evidence of prima facie defense, i.e. there is
merit in the defense.
*Taisho Marine Insurance v. Wong Poo Peng
-In an application to set aside JID of appearance, it was held that the
applicant had not shown a prima facie defense on the merit on law
or in fact and thus the application must be dismissed.
*Dialdas v. Sin Sin
-D applied to set aside the JID of appearance on the ground that
they had a good defense on merits.
-The court held that if the judgment is regular, then D must show a
defense on the merits which means a defense which discloses an
arguable and triable issue.
-JID against the Government
-Except with the leave of the Court, no JID of appearance or of pleading
shall be entered against the Government in civil proceedings against the
Government or in third party proceedings against the Government. (O. 73
R. 7 of RC)
-Thus if default judgment is entered against the government without leave
of the court, it is an irregular judgement and can be set aside as of right.
-Judgment entered for a greater sum
-Judgment entered for a greater sum means that the sum stated in the
judgment is greater than the actual sum claimed by P. I.E. Ps statement of
claim is RM350,000 and the judgment entered is RM380,000 due to a
typing error.
-D may apply to set aside; P may apply to amend the judgment under slip
rule (O. 20 R. 11 of RC)

SUMMARY JUDGEMENT
(A) Rationale
-Where plaintiff or defendant has a strong case and no real issues to be
determined at trial so the plaintiff and defendant need not to wait until trial
-Prevent a defendant from exploiting the litigation process to delay on inevitable
judgment against him.
-By the time of trial, the defendant circumstances may change i.e.
bankrupt, moved out of his jurisdiction with his assets
-A procedural device used during civil litigation to promptly and expeditiously
dispose of a case without a trial.

-It is used when there is no dispute as to the material facts of the case and
the party is entitled to judgment as a matter of law
*Jacobs v. Booths
-To prevent sham defense from defeating the rights of parties by delay.
(B) Scope of O. 14
(i) O. 14 R. 1(2) of RC
-Begun as OS
(ii) O. 14 R. 1(2) of RC
-Action include defamation, malicious, prosecution, false
imprisonment, seduction, breach of promise of marriage and fraud
(iii) D has triable issue i.e. defense
(iv) O. 81
-Plaintiff claims for specific performance
(v) O. 73 R. 5(1)
-The defendant is government, but the government can applied for
SJ.
(C) Procedure to obtain SJ
(a) Application may be made after the statement of claim has been served and
defendant has entered appearance.
-The statement of claim must only plead material facts
(b) Affidavit in support must comply with O. 14 R. 2.
-It must be in Form 13 which verifying the facts and must contain a
statement of claim of the deponent belief that there is no defense to the
claim or part of the claim or there is no defense except as to the amount
of any damages claimed.
-It must be made by the plaintiff or person authorised to make it i.e.
solicitor (need to state source and ground)
-It must verify facts which application was based
-It must state the plaintiffs belief that there no defense to that claim.
-If it defective, the application will be dismissed but not the action

*Chai Cheon Kam

-The affidavit not comply with O. 14 R. 2 was bad.
-The plaintiffs application was dismissed and action had to go to
trial.
(c) If satisfied, the plaintiff have to establish a prima facie case and becomes
entitled to the judgment.
(d) The defendant know has the burden to satisfy that why judgment should not
be given against him (O. 14 R. 3)
-The defendant must show cause by the affidavit or otherwise. He can
relied solely on his defense (if filed or served) or items of evidence such as
documents)
-He does not have to file affidavit in reply. If he does, he is not limited to
the issues raised in the affidavit.

-However, he is expected to state his evidence in his affidavit unless

special circumstances justify an alternative method for presenting his
case. He is expected to respond to material allegation as failure will be
regarded as admission.
-Defendant may raise defense even though there is no reference to them
in the defense pleading.
*Lin Securities v. Noone
-There is no doubt that a defendant is bound by the four conners of his
pleadings at the trial of the action but he is not so bound at the O. 14
proceedings. O. 14 R. 4(1) provides that a defendant may show cause
against an application for summary judgment by affidavit or otherwise.
-He is entitled to show at the hearing of the O. 14 application that over
and above what has been plead in the statement of defense, he has other
defense.
-The issue in O. 14 application is whether the defendant has a defense and
not whether the statement of defense provides him with a defense.
(D) Nature of Hearing
*Banque de Paris v. Costa de Naray
-Defendant must satisfy the court that there is a fair/ reasonable probability of
defendant having a real/bona fide defense.
*BNM v. Mohd Ismail
-In order to resist O. 14 application, defendant must show in his affidavit in reply
that there is a defense and a triable issue.
-Here the defendant had admitted liability
-Thus, the plaintiff application for SJ was granted.
*Suppletchimi v. Palmco Bina
-Mere allegation is not support.

(E) Setting Aside SJ

(i) Technical objection
-Errors in plaintiff case, defective service, defective affidavit.
-Ensure documents are in order i.e. statement of claim must be appropriately
drafted and establish case against defendant.
-Allow amendment effected during hearing or adjournment if it just a mere
technicalities.
-If serious error, warrant dismissal, recommence new SJ proceedings.
*Alliance (Malaya) Engineering v. San Development
(ii) Delay in filing the application

*Krishnamurthy v. Malayan Finance

-Application must be made after defendant has entered an appearance
-It could be made before defense or after the delivery of defense. If after
defense, must explain delay.
*Malayan Building v. Ghazi
-There delay for 4 and months after enter appearance
-No hard and fast rule as to the effect of delay
-Depends on circumstances
(iii) Defendant shows that there is a triable issue
-Defendant is required to show that there is an issue/question in dispute which
ought to be tried
*Jacobs v. Booths
-Courts role not to delve into merits but determined whether issue has been
raised upon trial.
(iv) Points of law/documentary construction
(a) Documents
*Esso Standard Malaya v. Southern Cross Airways
-O. 14 should be made only if the court think it is plain case and ought not
to go trial.
-Court will decide what in its judgment is true construction.
-No reason to go to trial where no further facts emerge.
-There is agreement between parties but must refer to content of
agreement
-If the court need to interpreted the construction and it is:(i) complex need to go trial (have triable issue)
(ii) simple cant grant SJ
(iii) No need interpretation Grant SJ
(b) Statute
*Fadzil v. UTM
-Construction of Act 30 of 1971 and constitution of university, the
university had an absolute hopeless case.
-Function of the court is to ascertain the intention of parliament from
words used in statutes and nothing more.
(c) Question of law
*European Asian Bank v. Punjab
-Where the issue raised is solely a question of law and facts are
undisputed, O. 14 should be allowed even question of law is a difficult one.
-The court will not hesitate in an inappropriate case to decide question of
law under O. 14, even if the question of law is at first blush of some
complexity and takes a little longer to understand.
(v) Defendant raise set-off or counterclaim
-Set off:

Money claim constituting defense either whole or part of the plaintiff

claim.
-Both cannot get SJ
-For whole (no damages or claim), part (get little only)
-Arises from the same transaction and acts as defense for
defendant.
-I.E. price of car and remedying the cars defect (sec. 59 of SOGA)
-Counterclaim:
-A cross claim which defendant can bring against the plaintiff in separate
action where defendant become plaintiff and plaintiff become defendant.
-The purpose of the counterclaim is to enable defendant to pursue his
claim against plaintiff in the same action rather than to bring separate
proceedings (O. 15 R. 2)
*Koshida Trading v. Limco Products
-Plaintiff claim sufficient money not paid. Defendant said counterclaim the
claim of money not paid (sham defense).
-Defendant said by making counterclaim which claim money but different
transaction.
-Bona fide on defendants claim is doubtful.
-Counterclaim completely unrelated/insufficient
(vi) There ought for some other reason to a trial
-Although defendant may not be able to raise triable issue, but SJ is not
appropriate
*Miles v. Bull
-Invoke O. 14 second limb need to satisfy court that there are circumstances
surrounding the plaintiffs claim to be investigated before judgment is given due
to reason of justice, need to make investigation and not summary decision.
-The transaction was made at unusual speed in one day. It is a suspicious
circumstances which ought to be investigated.
*Concentrate Engineering v. UMBC
-Court found manner of forgery has taken place on cheque
-Although defendant fails to give proper defences but the circumstances
happened show some other reason for trial therefore proper investigation ought
to be done.

(F) Order which the court can make

(i) Dismissal if the summons/application
-Defendant show case not under O. 14
-Procedural requirements have not been complied with
-There is clear triable issue/set off which is known to plaintiff
-Court may order plaintiff to pay all interlocutory proceedings and defendants
cost

(ii) Dismissal of action

-Judge in chamber has no power to dismiss action
*Diamond Peak v. Tweedies
-Judge much concerns on question of whether or not the respondent has satisfied
him that he has good defense on merits.
-If entire case used different determination may be made and dismissed it.
(iii) Judgment for the plaintiff
(iv) Leave to defend
-Court imposed conditions as if the circumstances is when defendant need to pay
something within time but not in position to pay, the need to give evidence to
court to emphasize that impossible to fulfil conditions.
*Mr Yorke Motors v. Edwards
-Court imposed financial conditions and defendant feels that it is impossible for
him to fulfil it, defendant need to put sufficient and proper evidence that it will be
impossible to fulfils its condition.
(G) Appeals
-Both plaintiff and defendant may appeal to the judge in chamber from any
judgment/order made by the Registrar (O. 56 R. 1)
*Tuan Hj Ahmed v. Arab Malaysian Finance
-An appeal against interlocutory order constitutes rehearing to entire
matters.
-Plaintiff obtains JID due to default of appearance
-Defendant apply to set aside judgment because it is irregular
-The court held that rehearing may be consider as fresh by judge. So no
prohibition not raised before Registrar cannot be raised to judge
-At hearing of appeal, fresh evidence shall not be admitted unless Judge satisfied
that hearing before registrar new evidence not available to party (O. 56 R. 1(3A))
-Where triable issue as a matter of fact/evidence as oppose to law
*UMBC v. Pembinaan KSY
-It is most unlikely that Appellate court would interfere with the discretion
of the judge
*Hong Hock Trading v. Carseng Manufacturing
-Order made by Registrar may become final decision
-But it is not finally determine rights of parties, the order is interlocutory
order.