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Nur Syahirah binti Mohamad Tahir

NOTES CP: SUMMARY JUDGMENT O14

SUMMARY JUDGEMENT UNDER O14

1. INTRODUCTION
Because theres a possibility of delay in civil suit and it involves a
long process, sometimes it is unfair for the P if a D does not have a
good defence.
To overcome the problem of delay, the Rules has a device of
procedure where P can get his judgment quickly without going for a
trial.
But this procedure only available if P has a clear cut claim or
unanswerable claim.
This procedure is called SUMMARY JUDGMENT.
Governed under O14 of RoC.

2. NATURE & IMPORTANCE


Summary judgement is a procedure where a P can apply for
judgment against D without going and proving the case at a trial.
It is a prompt and expeditious disposition of an action by the P or a
counterclaim by the D without going for a trial when there is no
dispute as to fact or law.
The policy behind summary judgment procedure is to prevent delay
of justice where the D has no defence to the Ps claim.

CASE: UNP Plywood Sdn Bhd v HSBC Bank Malaysia Bhd


Summary judgment procedure is a procedural device available for
prompt and expeditious disposition of an action by a plaintiff or a
counterclaim by a defendant, without a trial when there is no
dispute as to the fact and law.
3. WHEN SUMMARY JUDGMENT IS NOT AVAILABLE
There are situations where a P cannot apply for summary judgment.
(i)

Where case falls within O14,r1 (2)


o O14,r1(2) lists out a number of causes of action where P
cannot apply for SJ.
(a) Liber, slander, false imprisonment, malicious
prosecution, seduction, breach of promise to marry
(b) Ps claim is based on fraud
o If applies for SJ based on those 7 matters, the application will
be dismissed with cost.

Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

(ii)

Special cases with special procedure


o These three matters have their own special procedures.
O43 a claim for accounts
O81 a claim on property
O89 recovery of possession of land

(iii)

O73, r5(1)
o Where government is the D, one cannot apply for SJ against
them.
o If apply for SJ, the application will be dismissed with cost.

(iv)

There is a triable issue


o Where the D can show theres a triable issue
o Triable issue is some issues or some questions that ought to
go for a trial.
CASE: Ng Hee Thoong & Anor v Public Bank Bhd
(Gopal Sri Ram JCA) observed that O14 should be used only in
instances where there are no authentic triable issue.

4. PROCEDURE
(i)

Preliminary Requirements
o Before a P can apply for SJ, he has to satisfy some preliminary
requirements.
o There are 3 preliminary requirements: [O14,r1(1)]
1) P must have issued the writ
2) P must have served the writ
3) D must have entered an appearance
o Those matters will qualify that P can apply for SJ.
o P must apply for SJ by notice of application (Form 37)
supported by affidavit (Form 13) by setting out:
Verifying the facts on which the claim arises
The deponents belief that there is no defence to the
claim or except to quantum of damages claimed
CASE: National Company for Foreign Trade v Kayu
Raya Sdn Bhd
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Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

Every application under O14, the 1 st considerations are (a)


whether the case comes within the Order and (b) whether
the P has satisfied the preliminary requirements under O14.
A case is not within O14 where (a) no SOC has been served on the
D; (b) the indorsement on the writ includes a claim outside the
scope of O14; (c) the affidavit in support is defective; (d) application
is made against the government.
If the P fails to satisfy either of those considerations, the notice of
application may be dismissed. If the considerations are satisfied, the
P will have established a prima facie case and he becomes entitled
to judgment. The burden then shifts to the D to satisfy the court why
judgment should not be given against him.
(ii)

Time
o Once P qualifies to apply for SJ, the P must apply
promptly/quickly.
o If P delays in applying for SJ, the delay may be a bar to his
application.
o The court in cases has device a rule where a P must apply for
SJ before D files his defence.
o Then the Court will decide whether Ps reasons are acceptable
or not.

CASE: Krishnamurthy v Malayan Finance Corp


If P delays in applying for SJ (ie: D has files his defence), it is for
the P to explain to the Court the reasons for his delay. If the
reasons are not acceptable, then P will not be able to proceed
with SJ.
CASE: Comptroller-General of Inland Revenue Malaysia
(CGIR) v Weng Lok Mining Ltd
1. CGIR, a government department, apply for SJ and there was a
delay of 3 months after the D files his defence.
2. They explained the reasons of the delay were because it was a
fasting month, there was Hari Raya, Deepavali and Christmas
took place.
HELD: The reasons were acceptable and the delay was justified.
CASE: British American Life & General Insurance Bhd v
Pembinaan Fal Bhd
1. P was asked to explain and give reasons for his delay in
applying for SJ.
2. P stated that the delay was because its former solicitor had
moved to Kota Bahru and it had to engage with other solicitors.
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Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

HELD: It was not a good and unacceptable reason. A prudent


plaintiff seeking an O 14 judgment should be ready to file the
summons immediately after the defendant has entered
appearance and certainly within the period prescribed for service
of the defence.
CASE: MBSB v Ghazi bin Hasbollah
It is absolutely at the discretion of the Court based on the
surrounding circumstance to decide whether the reasons are
good or unacceptable.
(iii)

Notice of application
o O14, r2(1) and O32, r1
o Notice of application supported by affidavit.

(iv)

Service
o There 2 things which are important: 1) Mode of service; 2)
Time limit
1) Mode of service
14 does not specify the mode of service for the mode of
application and affidavit.
Where the specific rule does not specify the mode of
service, the service will be governed by general order of
application.
O62, r6 (complies with either one):
i.
The document may be served by leaving it at Ds
proper address
ii.
By prepaid registered post to Ds proper address
(NOT AR)
iii.
Serving by ac which complies with O62,r6(3)
iv.
In such manner as agreed between the parties
v.
In such manner as the Court mat direct

If P does not comply with either of those above, the


service will become as a defective service and the D is
entitled to raise it as a technical objection.

2) Time Limit

O14, r2 (3):
Must be served within 14 days from the date of receipt of
the sealed copy by the P.
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NOTES CP: SUMMARY JUDGMENT O14

(v)

If the P fails to comply with the time limit, then the service
will become as a short-service and the D is entitled to
raise it as a technical objection.

Affidavit
o Every application for SJ must be supported by affidavit.
o Affidavit is the heart/the core of every application.
o Affidavit must comply with O14,r2 (1):
Must be in Form 13 where it contains 2 requirements:
1) The affidavit must state precisely the facts of Ps
claim
2) The affidavit must contain a statement where P
believes that the D has no defence to the Ps claim.
o If these 2 requirements are not satisfied, then the affidavit
would become a defective affidavit and D can raise it as a
technical objection.
o If D raises it as a technical objection where the affidavit is
defective, the Court would have 2 possible orders:
1) The Court may dismiss the application for SJ with cost
CASE: Chai Cheo Kam v Hua Joo Development Sdn
Bhd
The manner in which an application under O14 must be
made is prescribed under r 2(1). One of the mandatory
requirements that an affidavit in an O 14 application must
satisfy is that it must verify the facts on which the claim
or part of a claim to which the application relates is
based.
By way of comparison between para 2 of the affidavit and
para 1 of Form 18 of the Rules of the High Court 1980, the
plaintiff has not sufficiently complied with Form 18 as to
the verification of facts on which the claim or part of a
claim to which the application relates is based.
The plaintiff's application for summary judgment O 14 of
the RHC was therefore deficient for want of mandatory
compliance with r 2(1)
2) The Court may adjourn the proceeding for the P to serve
a fresh affidavit which complies with O14, r2 (1)

Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

o Who is to make affidavit?


The person who makes affidavit is called a deponent.
Generally, the deponent of affidavit should be the P.
However, under O14, r2 (2), the Rule states that the
affidavit may contain statement of information and beliefs.
This has impliedly that the person other than the P may be
a deponent for O14 affidavit.

5. HEARING OF APPLICATION

TECHNICAL OBJECTION
The 1st thing that may happen before a hearing is that the D may
raise technical objections which are:
(i) The Ps claim is excluded by 14, r1 (2)
o Where it involves liable, slander etc. or the Ps claim falls
within special procedure or Ps claim is against the
government.

(ii) The D claims that there has been a defective service


o Where the application by the P is not complied with the
procedures
(iii)

The D claims there has been a short service


o The application for SJ was not served within the time
described

(iv)
The D claims there has been a defective affidavit
1. The application does not comply with O14, r2 (1)
(v) The D claims there has been a defective Statement of Claim
2. Sometimes at O14 hearing, the D may raise an objection
that the Ps SOC is defective. Ex: it does not disclose cause
of action.
3. The Court has discretion and there are 2 options that they
Court may order:

Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

o The Court may dismiss the application for SJ with cost;


OR
o The Court may adjourn the hearing/proceeding to allow
the P to amend the SOC to cure the defective.

(vi)

The D claims there has been a delay


o Where the D raises objection where the P has delayed in
applying for SJ.
o If theres a delay, the P must give explanation for the
delay.
o The Court may decide whether the explanation is
acceptable or not.

Except (i) and (vi), if they are raised by the D, it is merely a device
to delay some times.
In other words, the matters can be cured and it does not allow the D
to escape for SJ.
If (i) and (vi) are raised and successful, the case will go for trial and
the D will escape SJ.

TRIABLE ISSUE
If the D wants to escape SJ, he must show that there is a TRIABLE
ISSUES.
If D does so, the case will proceed for a trial.
O14, r3: Triable issues is basically issues or question in issues which
ought to be tried. It is issues which can be raised by the D and can
only be reasoned at trial.
CASE: Appaduray v Ananda
1. The case involves a boundary dispute.
2. The P alleged that the D has encroached onto his land, sued the
D and then applied for SJ.
3. The P relied on the surveyors report which shows that brick wall
has encroached into the Ps land.
4. The D questioned and disputed to the correctness and accuracy
of the surveyors report and claimed that some of the original
boundary stones have been removed and replaced with the new
ones.

Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

Held: The challenge to the accuracy of the survey created a


triable issue as to the positioning of the boundaries of the two
lots.
The Court held there is a triable issue as the D may have a
defence and the case proceeded for a trial.

If the D is able to raise triable issues successfully, the orders of what


the Court may make is depending on 2 situations:
1. If the triable issue was KNOWN to the P or COULD HAVE BEEN
ANTICIPATED by the P, the Court may order that the
application for SJ is dismissed with cost.
Because P having known or could have anticipated
triable issues should not apply for SJ in the 1st place.
2. If the triable issue was NOT KNOWN or COULD NOT HAVE
BEEN ANTICIPATED by the P, the order that the Court will make
is unconditionally leave to defend with costs in the cause
Where the D is given a permission/leave to defend his
case at a trial.
At the stage of proceeding, no party is required to pay
cost and the payment will be determined at the end of
the trial.

O14, r4 (1)

If the D wants to raise a triable issue, the D has to raise by affidavit


in reply.
If the D has already served his Statement of Defence, he is not
restricted to raise defence within that.
He can raise any triable issue even though it is not stated in his
SOD.
CASE: Lin Securities v Noone & Co Sdn Bhd
1. The plaintiffs and defendants were stockbrokers in Singapore
and Kuala Lumpur respectively.
2. By a contract, the P delivered an amount of shares to the D
and the D accepted made payments with certain balance left.
3. The P claimed for the balance and then filed application for SJ.

Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

4. The application for SJ was allowed and the D appealed and


sought to rely a further point of defence which was not stated
in his SOD.
Held: appealed was allowed. A defendant is bound by the four
corners of his pleadings at the trial of the action but he is not so
bound at the O 14 proceedings. Order 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 pleaded in the statement of
defence if he has other defences.
Summary judgment does not concern at all with SOD. It does not
include in those 3 preliminary matters.

DAMAGES 1) Liability; 2) Quantum


Q: Is SJ possible if damages have to be quantified?
In SJ application, theres no dispute to liability (ex: the D is clearly
liable)
However, theres a dispute for quantum.

CASE: Avel Consultants Sdn Bhd v Mohd Zain


1. In this case, it was clear that the D was liable for breach of
trust.
2. However, there was a triable issue to the amount of damages.
3. The D argued that the application for SJ should be dismissed
and the case should proceed for a trial.
Held (FC): In O14 application, the Court is only concerned with
liability. If theres not triable issue on liability, SJ is entered against
the D.
The quantum of damages can be decided by the Registrar in
another hearing.

CASE: Datuk Mohd Ali bin Hj Abdul Majid v Public Bank


Bhd
1. The resp was a bank while the app were advocates and
solicitors appointed by the resp.
2. The resp sued the app for breach of the terms, conditions and
warranties of their appointment and negligence in the
performance of their services. The resp then applied for SJ and
it was accepted.
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NOTES CP: SUMMARY JUDGMENT O14

3. The principal issue in this appeal is whether a SJ may be


entered for the amount as prayed for in the statement of claim
and as affirmed in the affidavit in support without the need for
any assessment.
Held:
1) It is trite law that a claimant claiming damages must prove
that he had suffered the damage. The claimant has the burden
of proving both liability and quantum of damages, before he
could recover the sum claimed.
This followed from the general rule that the burden of proving a
fact is upon him who alleged it and not upon him who denied it,
so that where a particular allegation formed an essential part of
a person's case, the proof of such allegation would fall on him.
If he failed to prove both the liability and the quantum of
damages, he would lose the action
2) In a claim for damages, it would not be sufficient for the
plaintiff to merely state the amount of damages claimed. He
must prove the damage that he had in fact suffered to the
satisfaction of the court.
The burden rested on the plaintiff to prove the damages and it
was not sufficient for the plaintiff to merely assert that he had
suffered such damages without proving it. The High Court judge
was right in ordering that SJ be entered on liability with
damages to be assessed.

D may raise set off or Counter-claim

A set off and CC are both cross claims.


There are material differences between set off and CC.
The differences have been explained in:
o CASE: Permodalan Plantations Sdn Bhd v Rachuta Sdn
Bhd
1. A set off is a cross claim which is closely connected or it
arises from the same claim as the Ps claim.
2. A set off is a defence to the Ps action.
3. A counter claim is a cross claim which his not closely
connected to the Ps claim and it arises from a separate
and independent claim.
4. A counterclaim is not a defence to the Ps action.

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NOTES CP: SUMMARY JUDGMENT O14

In SJ application, if D raises a valid SET OFF, the Orders that the


Court may make depends on 2 situations:
1. If the set off is KNOWN or COULD HAVE BEEN ANTICIPATED
by the P, the application for SJ may be dismissed with cost.

2. If the set off was NOT KNOWN or COULD NOT HAVE BEEN
ANTICIPATED by the P, the Court will grant unconditional
leave to defend with costs in the cause.
Because a set off is a DEFENCE. As the D has a
defence, the application for SJ should have not
proceed.

If the D raises a COUNTERCLAIM?


o SJ will still be entered against the D but with a stay of
execution until the counterclaim is disposed off.
o Meaning that P cannot execute his judgment until the counter
claim is heard and disposed off by the court.
Because CC is NOT a defence.
o CASE: Ronald Quay Sdn Bhd v Maheswary Sdn Bhd.
1. The P claim was for a sum money due and owing from the
D to the P for some services.
2. The D admitted that the P rendered the services but denied
that it was indebted to the P.
3. The D also made a counterclaim in certain amount for
damages alleging that P has breached its contractual
obligations.
4. The Registrar gave judgment for the P for the sum claimed
but ordered stay of execution pending the trial of the
counterclaim. The plaintiff appealed.
Held: there was a bona fide and plausible counterclaim the
amount of which was more than the Ps claim. The
counterclaim was plausible as it was reasonably possible
for the D to succeed if the counterclaim was brought to
trial. The counterclaim was also not frivolous.
The Registrar was right when he ordered a stay of
execution pending the trial of the counterclaim.

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Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

Special Rule Concerning Cheques

Sometimes in a SJ application, the P may be suing on cheque. If


suing on a cheque, there are special rules that apply on SJ
application.
When you gave a person a cheque, the cheque must be honoured.
If a cheque is dishonoured, then a cause of action arises on the
cheque.
It means you can sure on the fact that the cheque was dishonoured.
Example: A and B has a contract for sale of goods. A gave a cheque
to B to pay for the goods. The cheque was dishonoured.
In this situations, there are 2 causes of action arise; 1) breach of
contract; 2) cheque
When B commences an action against A, he can plead on 2 causes
of action above.
When P is suing on a cheque and applies for SJ, theres a specific
rule where the D is restricted to 3 defences only:
1. Fraud
2. Total failure of consideration
3. Illegality
o CASE: Fielding and Platt Ltd v Najjar
1. The P had contracted to make and export to the D an
aluminium extrusion press.
2. The D re-assured the P that it would be lawful for him to
import the plant, but asked that the plant be described
falsely on the invoice as parts for rolling mill.
3. Payment was made by promissory notes.
4. After the first two promissory notes had not been met, the
P ceased production, and sued on the notes and succeeded
summarily. The D appealed.
Held:
1. A Bill of Exchange or a Promissory Note is to be treated
as cash. It is to be honoured unless there is some good
reason to the contrary"
2. The P was entitled to payment under the first note,
because it had performed its obligations under the
contract, and there was no failure of consideration.
However there was no such completed consideration for
the second promissory note, and the D should be
allowed to defend.

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NOTES CP: SUMMARY JUDGMENT O14

O14, r3 ought for some other reason

Sometimes at O14 hearing, the D may not be able to raise any


triable issue or any set off.
Generally, if a D cannot raise those, the Court will allow SJ
application against the D with cost.

Q: If D is unable to raise a triable issue or set off, does the court still has a
discretion to grant to D an unconditionally defence?

Yes, the Court has discretion under O14, r3


Under O14, r3, it was stated that there ought for some other
reasons to be a tried for that claim.
Even though the D cannot raise triable issue/set off, there is some
other reason for this case to go for trial.
CASE: Miles v Bull
1. The D (wife) had separated with her husband.
2. Her husband sold the matrimonial home in which the D was
still living and without her knowledge, to the P.
3. Subsequently, the P brought an action against the P for
possession of property and sought SJ under O14.
4. At the hearing for SJ application, the D was unable to raise
any triable issues.
5. She only sought and contended that the sale of the house
was a sham with the object to deprive her rights, as against
the husband, to occupy the property.
6. However, she did not have any facts and issues that would
establish her allegation.
Held/Principle: due to the fact and circumstances of the
case, the judge stated that the case was ought to be tried
for some other reasons. This is because the facts of the
sale of the house was only known and controlled by the P
and the D knew nothing.
Further investigations are needed which will be conducted
at the trial.

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NOTES CP: SUMMARY JUDGMENT O14

CASE: Concentrate Engineering Pte Ltd v UMBC Bhd


1. The P, a customer of the D, claimed that the D wrongly paid
out on the cheques, which were purported to be issued by
the P.
2. On the facts, it became evident that the cheques were
duplicate copies fraudulently printed with the same serial
numbers as the genuine and unused cheques supplied by
the D.
3. However, the signatures on the cheques were declared by
expert evidence to have been traced from genuine
signatures.
Held: Dismissing the Ps appeal.
The
circumstances
disclosed
called
for
further
investigation. The circumstances and audacity with which
the fraud was carried out and the absence of an
explanation by the directors of the plaintiffs constitute
'some other reason' for a trial in terms of O 14 r 3(1).

The Ds Defence arouses suspicion

Sometimes at O14 application hearing, it is obvious that the Ds


defence is a sham.
If the Court is convinced that the Ds defence is a sham, the
application for SJ will be allowed with costs.

On the other hand, sometimes at the hearing, the Court is


convinced that the Ds defence is genuine.
o If the P KNOW or COULD HAVE BEEN ANTICIPATED the
defence, the application for SJ will be dismissed with costs.
o If the P DOES NOT KNOW, the Court will grant unconditionally
defence to D.

Sometimes, the Court may be uncertain whether the Ds defence is


a sham or genuine and the Court is suspicious.
In this situation, one particular Order that the Court may make is
granting Order of conditionally to defence with payment into court
of the whole or part of the Ps claim in X number of days, in default,
judgement to P with costs.
If the D does not pay to the Court on certain number of days, SJ will
be given to the P with costs.

CASE: Fieldrank Ltd v Stein


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NOTES CP: SUMMARY JUDGMENT O14

The conditions of bringing money into court or giving


security should only be applied where there is something
suspicious in the defendant's mode of presenting his case.

CASE:
Alliance
(Malaya)
Engineering
v
San
Development Sdn Bhd
1. The app applied for the defence to be struck out on the
grounds that the defence disclosed no reasonable
defence and that the defence was frivolous and
vexatious. This application was dismissed.
2. The app then applied again for SJ against the resp but
the learned trial judge came to the conclusion that there
were triable issues so as to entitle the resp to
unconditional leave to defend and he dismissed the
application. The appellants appealed to the Federal
Court.
Held: allowing the appeal.
In this case the defence put up by the resp was a sham
defence and there was very little substance in the resps
claim to a right of set-off and counter-claim.
The learned trial judge should have granted the resp
leave to defend conditional upon their paying into court
the amount of the applicants' claim.
CASE: QBE Supreme Insurance Bhd v Syarikat
Chemas
Before the learned judge ordered D be given conditional
leave to defend, he must be satisfied that there was no real
substantial question to be tried or that there is no dispute
as to facts of law which raises a reasonable doubt that the
P is entitled to judgment.

The Case is One of Construction

In the application of SJ, sometimes the Court may be asked to


construe document.
If a Court is asked to interpret documents, the issue is whether the
case is suitable for SJ.
CASE: Esso Standard
Airways (Documents)

Malaya

Southern

Cross

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NOTES CP: SUMMARY JUDGMENT O14

In this case, the Court held that there was no triable issue
but the case was simply a case of construction of certain
documents which passed between the parties.
Per Raja Azlan Shah J.: "It is, I think, right that an order
under Order 14 should be made only if the court thinks it is
a plain case and ought not to go to trial. If one simply has a
short matter of construction with a few documents, the
court, on summary application, should decide what in its
judgment is the true construction. There should be no
reason to go formally to trial where no further facts could
emerge which would throw any light upon the letters that
have to be construed."
* A case is suitable for SJ of the case involve a short matter
of construction involving few documents
CASE: Fadzil v Universiti Teknologi Malaysia
(Construction on Statute)
1. The app was dismissed as an Assistant Lecturer by the
University.
2. The app filed a specially indorsed writ for a declaration
that the purported dismissal by the respondents
was ultra vires, illegal and void. He then applied for
summary judgment. This application was dismissed by
the High Court and he appealed to the Federal Court.
Held: applies the same principle from Esso Standard
In an Order 14 case, where it turned on the construction
of a few documents and the court was only concerned
with what was the true construction, there could be no
reason to go formally to trial where no further facts
could emerge which would throw light on the documents
that had to be construed
On the view taken by the court as to the construction of
the University and University Colleges Act, 1971 and the
Constitution of the University, the University had a
hopeless case and the application for summary
judgment should be granted, as no useful purpose could
be served by going formally to trial.

Q: Can SJ be applied when the P is seeking injunctive relief?


If the P has to prove for injunctive relief, the P must show there is a
serious question to be tried.

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NOTES CP: SUMMARY JUDGMENT O14

CASE: Binariang Communications Sdn Bhd v I & P


Inderawasih Jaya Sdn Bhd
The judge stated that theres no restriction preventing a P
from obtaining an injunction relief in SJ application.
However there are 4 conditions that must be satisfied:
1. The D must have entered an appearance.
2. SOC must have be served on the D.
3. The P must have applied for SJ supported by a valid
affidavit.
4. The application must be heard before a judge.

Can the Court determine the difficulty on Questions of Law

If the case involves a difficult questions of law, is it suitable for SJ?


The case involve a legal issue and not factual issue.

CASE: European Asian Bank v Punjab & Sind Bank


Lord Golf: If the case involves difficult questions of law, it is
not a bar to apply for SJ. Because if the case goes for trial,
the same point of law will be argued.
In short, yes the case is suitable for SJ.

CASE: Malayan Insurance (M) Sdn Bhd v Asia Hotel


Sdn Bhd
Where the issue raised is solely a question of law pure and
simple without reference to any facts or where the facts are
clear and undisputed the court should exercise its duty
under Order 14 as in any other cases and decide on the
question of law.
This is so even if the issue of law raised is a difficult one. If
the court after considering the argument is satisfied that it
is really unarguable then the court should grant summary
judgment

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NOTES CP: SUMMARY JUDGMENT O14

CASE: Chong Ngam Sen v Yeoh Bah Chee


1. The resp had brought an action for possession of
premises.
2. The resp relied on an implied term for renewal of the
tenancy.
3. The learned judge without deciding this matter gave
summary judgment for the respondent. The appellant
appealed.
Held: as there was a question of law raised and not
determined, leave to defend should be given.

6. ORDERS THAT THE COURT MAY MAKE (EXAM)


1. Application for Summary Judgment Dismissed with Costs
(i) When the case is excluded under O14, r1(2)
(ii) Where the D raises a triable issue which is known to P or could
have been anticipated by the P.
(iii)
Where the D raises a set off which is known to P or
could have been anticipated by the P.
(iv)
Where the P has delayed in applying SJ and theres
no valid reasons for the delay.
(v) Where the D raises a technical objection and the Court finds the
technical objection is fatal to the applications for SJ. (rare)
Short notice
Effective affidavit (most likely)
Defective service
Defective SOC

2. Adjournment & Leave to Amend/File Fresh Affidavit; Cost Thrown


Away
o Where there is a defective affidavit raises by the D on
technical objection

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Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

3. Unconditionally Leave to Defend; Costs in the Cause


(i)
Where the D raises a triable issue which could have not known or
could have not been anticipated by the P.
(ii)
The D raises a set off and the P could not have known.
(iii) There ought to be some other reasons

4. Conditional Leave in Defend, Payment Into Court Whole/Part of Ps


Claim in X days to Default
o Where the Defendants defend raises some suspicion to the
Court

5. Summary Judgment is Allowed; Stay of Execution until Disposal Of


Counterclaim
o Where the D raises counterclaim

6. Application for SJ is Allowed with Costs/Judgment to P with Costs


o The D cannot raise triable issue, set off, counterclaim or any
technical objection.

7. CAN THE COURT DISMISS Ps ACTION IN SJ HEARING?


It may be discovered that the Ps main action is defective
Example: P has no cause of action
CASE: Diamond Peak Sdn Bhd v Tweedie
The Court can only dismiss the application for SJ and NOT
the main action.
This is because in a SJ application, the only matter that
need to be decided by the Court is whether SJ should be
given to P.
It is not the function of the Court in SJ application to
dismiss the Ps entire claim.
8. SETTING ASIDE O14 JUDGMENT
The D (or his counsel) may not appear during the hearing for SJ at a
fixed date.
In this situation, the Court may enter J in default against the D.

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Nur Syahirah binti Mohamad Tahir


NOTES CP: SUMMARY JUDGMENT O14

O14, r11 states that what the D can do if SJ is entered against him in
default.
O14, r11: Any judgment given against a D who does not appear at
the hearing of an application under rule 1 or 5 may be set aside or
varied by the Court on such terms as it thinks just.
9. APPEALS

At the hearing of SJ application, the P may win and SJ is entered


or the D may win and the SJ application is dismissed.
Where a decision is made on SJ application, the losing party may
appeal.
CASE: Huo Heng Oil Co v Tang Tiew Yong
Both the P and the D may appeal.

Stages of appeals
1. Senior Assistant Registrar will hear SJ application.
2. If theres appeal, the judge in chamber will hear the appeal by
way of re-hearing in which the judge will hear the whole
application again (O56)
3. If theres appeal, the COA will hear it (Sec 68 of CJA)
4. If theres appeal, the FC will hear it (Sec 96 of CJA)
Where the matter is decided on matter of facts/evidence, the higher
courts will unlikely interfere.
CASE: UMBC Bhd v Pembinaan KSY Sdn Bhd
The appellate court should not regard the appeal as
reviewing the exercise of the judge's discretion but should
approach the appeal as a rehearing.

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