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Note 1 of 4 Notes
Musbri Mohamed
DIL; ADIL ( ITM )
MBL ( UKM )
1
Civil Procedure means procedure to be
followed in civil cases e.g. serving
notice or documents , how to defend a
case, types of documents to tender, how
to present a case and how to appeal.
2
There are two main types of Courts in Malaysia.
3
MAGISTRATE COURTS (MC)
Special Types of cases it can covers depends on the provision of the written
laws.
4
Second Class Magistrates
5
In the case of Sundram v. Chew Choo Khoon [1968] 2
MLJ 40 ; Chang Min Tat J; held that a statutory body
vested with certain judicial functions and power as for eg.
A Collector of Land Revenue sitting in an enquiry on a
chargee’s application is not a Subordinate Court.
Whereas in the case of Lee Soo Chuan v. Lai Ah Yan &
Anor [1971] 2 MLJ 275; on appeal the Federal Court
affirmed the decision that the Court of Senior Inspector of
Mines is an inferior court.
6
SESSIONS COURTS s. 3(2) SCA
Session Courts has no jurisdiction to try the following matters: (cases not
cognizable by SC)
a. matters relating to immovable property except as provided in s. 70 & s.
71.s. 69(a) SCA
b. specific performance or recession of contracts . s 69(b) SCA
c. Injunction. S. 69(c) SCA
d. Cancellation or rectification of instruments. S. 69(d) SC
7
e. To enforce trust. S. 69(e) SCA
f. For accounts . s. 69(f) SCA
g. For declaratory decree except inter pleader
proceedings. S. 69(a)
h. For issue or revocation of grant or representation s.
69(h)
i. Legitimacy of any person, S..69(l)
j. Guardianship or custody of infant except if
provided specifically in any writen law. s. 69(i)
k.validity or dissolution of any marriage, S.69(k)
8
Agreement - where claim exceeds monetary
jurisdiction but parties (P and D) consent to the matter
being tried in the SC then matter may be begun in the
SC S. 65 (3) SCA.
9
In Wong Kon San v. Chang Litho Press
Ltd [1968] 2 MLJ 234 the parties to an
action entered into an agreement
submitting to the jurisdiction of the
Session Court, although the amount of
the alleged counterclaim exceed the
value limit of jurisdiction of Session
Court . The President held that he had no
jurisdiction to hear the counterclaim.
10
Matters concerning immovable property
11
Writs of Summons General
Introduction
12
Forms Of Writ
O. 6 r. 1 Form of Writ
There are two forms of writs of summons:
(a) Form 2 is an ordinary writ for service within the jurisdiction of the court
(both parties are in Malaysia)
(b) Form 3 is for service of the writ outside the jurisdiction, which requires the
leave of the court, (outside Malaysia)
There are several blanks in the writ which must be filled by P or his solicitor:
(a) particulars of parties - P and D, whether acting in persona! capacity or
representative character, whether by a next friend or a guardian ad litem etc
(b) Name of Chief Justice
(c) Number of days for D to enter appearance: 0.12r.4
(d) Signature of P or his solicitor
13
(e) The endorsement with a statement of the claim or with a concise
statement of the nature : O. 6 r. 2 (1) (a) or in a claim for a debt or
liquidated sum with a statement of the amount claimed: O. 6 r. 2 (1)(b)
(f) The endorsement of the name of the solicitor and his address of service
• O. 6 r, 4
(g) The endorsement as to service on the defendant: 0.10 r. 1 (4) The
Registry of the Court will take the following additional steps when writ is
presented for issue:
(h) indorse the number of the writ : O. 6 r. 6(3)
(i) indorse the name of the registrar and his signature : O. 6 r. 6 (3)
14
Endorsements On Writ
15
O. 6 r 3 -Endorsement as to capacity
16
O. 6 r. 4 -Before a writ is issued it must be
endorsed as to solicitor and address;
17
Concurrent Writ - O. 6 r. 5
The P may request during the validity of the writ, the issue of one or
more additional writs which is known as concurrent writ and they are
true copy or the original. Application should be made within 12 months
after the issue of the writ, i.e. before the writ ceases to be valid. A
concurrent writ is an almost exact copy of the original.
18
Issue Of Writ
0. 6 r. 6 (2) When the writ has been suitably indorsed with the names
and addresses of the parties and, where applicable, with names and
addresses of solicitors and with an endorsement of claim and all other
requirements are satisfied, the plaintiff or his solicitor deposits with
the registrar the original and a copy together with as many copies
there are defendants to be served.
O. 6 r. 6 (3) The registrar then assigns a serial number to the writ,
signs and dates the writ. He also affixes seal of the court. The writ the
deemed to be issued.
O. 6 r. 6 (1) Writ to be served out of jurisdiction shall be issued with
leave from the court.
19
Duration And Renewal Of Writ
0. 6 r. 7 (1) A writ is valid 'in the first instance' (unless renewed) for 12 months
from the date of its issue and must therefore be served within this period.
A concurrent writ is valid in the first instance for the period of validity of the
original writ which is unexpired at the date of the issue of the concurrent writ. If
the original writ is renewed this will have the effect of renewing all concurrent
writs which have been issued.
0. 6 r. 7 (2) If the writ is not served within 12 months, an application for the
extension of its validity must be made. The court's power is limited to extending
the validity of the writ for a maximum of 12 months at any one time. The
application should be made before the writ lapses. It can be made after, but the
court may not be disposed to make the order for renewal if made after. The court
will not grant two or more successive renewals to bring the writ up to date.
20
Application must be supported by affidavit showing all the circumstances and
giving full explanation for the failure to serve the writ during the lifetime. If no
sufficient reason the court may refuse.
Llovd Treistino Societa v Chocolate Products (M) Sdn. Bhd. (1978) 2 MLJ 27:
Even if application for renewal of the writ is made within 12 months of date of
issue, renewal should be allowed only where there are good reasons to excuse the
delay in service.
Heaven v Read & Rail Wagon Pte. Ltd
Exceptional circumstances.
Where the application is made to renew a writ after the expiry of the relevant
period of limitation, the court should not exercise its discretion in favor of P so as
not to deprive the defendant of an otherwise good defense to the action, UNLESS
there are exceptional circumstances which amount to a good cause for renewing
the writ.
21
Modes of beginning civil proceedings
Once the decision to take legal proceeding has been made, the
mode of commencement must be considered.
22
Modes Of Beginning The
Proceedings
23
The most common mode of commencing civil proceedings are WS and OS.
"Subject to the provisions of any written law" means that when a written law
lays down the form for the proceedings to be taken, that provision must be
followed e.g. divorce - petition, companies winding up -petitions etc
"Subject to (the provisions of) these Rules" means that where the Rules
provide for a special; mode, that provision is to prevail over the provisions
of this order e.g.
O. 83 r. 1 - a charge is to be by writ or OS.
O. 70 r.2 - an admiralty action in rem - writ
O. 72 r.2 - contentious probate proceeding -writ.
24
Writ Of Summons
25
Originating Summons
26
O.5 r. 4 is a general provision in which whatever cases
not covered by r.2, r.3 and r 5 is covered by r.4
27
Originating Motion
Petition
28
Examples Of Matters To Be Brought By OS, OM And Petition
29
O. 88 r. 3 - Application u/s. 162 CA for rectification of the register of
members of company to be made by Originating summon or Originating
Motion. No need for appearance to be entered.
30
O. 88 r. 5 - Application to be made by petition:
(a) u/s. 28 CA - to cancel the alteration of Co.'s objects
(b) u/s. 59 CA - to confirm the issue by a co. of shares at a
discount
(c) u/s. 60 CA -to confirm a reduction of the share premium a/c
of a co.
(d) u/s. 61 CA - to confirm a reduction of the capital
redemption reserve fund of Co.
(e) u/s. 64 CA - to confirm a reduction of the share capital of a
Co.
31
(f) u/s. 65 CA - to cancel any variation or
abrogation of the rights attached to any class of
shares in Co.
(g) U/s. 176 CA - to approve a compromise or
arrangement between a Co and its members
(h) U/s. 161 CA - for relief in cases of oppression
(i) U/s. 308 {5} CA - for an order restoring the
name of Co.
(j) U/s. 354 CA - for relief from liability of an
officer of a Co or any other person to whom this
section applies.
32
Failure To Comply
33
Amendments of Pleadings
It is clear that the duty of the person responsible for the drafting and
filling of The pleadings to ensure that the pleadings falls within the
rules of pleadings (O. 18) and fully set out the claim or the
counterclaim or the defence. Mistakes however may be amended
under (C.20)
34
Generally, under [0.20] such party has a right to amend the
pleading which he think best. The court should not interfere
in drafting the pleadings as the party has the right to amend
them, but 'here is an exception that such amendment should
not be prejudicial in the interest of the other party.
35
Types Of Amendments
(1)The P may, without the leave of the court amend the writ once at
any time before the pleadings in the action begun by the writ are
deemed \to be closed.
(2)The amended writ must be served on each D to the action
(3)This rule shall not apply in relation to an amendment which
consist of
(a) the addition, omission or substitution of a party to (he action, or an
alteration of the capacity of party.; or
(b) the addition of substitution of a new cause of action
(c) amendment of the statement of claim (if any) indorsed on the writ
This rule is not applicable ,unless the amendment is made before
service of the writ on any party to the action
36
2. Amendment Of Appearance: O. 20 R. 2
A defendant may not amend his memorandum of appearance w/out the leave of
the court.
(1) A party may w/out leave of the court amend any pleading of his once at any
time -before the pleadings are deemed to be closed , and if so, he must serve the
amended pleading on the opposite party.
(2) where an amended statement of claim is served of a D :
(a) the D , if he has already served a defence on a P , may amend his defence.
(b) The period for service of his defence or amended defence, shall be either the
period fixed by or under these rules for service of his defence or a period of 14
days after the amended statement of claim is served on him which ever expires
later.
(3) where an amended defence is served on the P by a D '
(a) the P . if he has already served a reply on that D , may amend his reply; and
(b) the period for service of his reply or amended reply, shall be 14 days after the
amended defence is served on him.
37
4. Disallowance Of Amendment Made Without Leave
38
5. Amendment Of Writ Or Pleading With Leave
(1) Subject to order 15 (6),(7) and (8) and the following provisions of this rule,
the court may at any stage of the proceedings allow
(a) the P to ..amend his writ, or
(b) any party to amend his pleading on such terms as to costs or otherwise as
may be just.
(2) where an application to the court for the leave to make the amendment
mentioned in para (3)(4) or (5) is made after any relevant period of limitation
current at the date of issue of the writ has expired, the court may nevertheless
grant such leave in the circumstances mentioned in that para if it thinks just to
do so.
Chatsworth Investment Ltd, v Cussion Contractors Ltd. M96911 WLR 1:
Under the rigid rule of practice in Weldon v Neal (1887) 19 QBD 394, any
amendment was disallowed if it would deprive the D of a defence under the
Statute of Limitation. But that rule of practice was found to work injustice in
many cases. The new Rule of Court order 20 r. 5(1). (3). (4) and (5) has
specifically overruled a series of case which worked injustice, in view of the
new rule, the court should now allow an amendment whenever it is just so to do
even though it may deprive the defendant of a defence under the Statute of
Limitation. (It means that even limitation period had expired the court shall still
allow it if it is just.)
39
6. An Amendemnt To Correct Name & Alter The Capasity O 20 R. 5 (3)
And (4)
(1) an amendment to correct the name of a party may be allowed under para (2)
notwithstanding that it is alleged that the effect of the amendment will be to
substitute a new party if the court is satisfied that the mistake sought to be
corrected was a genuine mistake and was not misleading or such as to cause
any reasonable doubt as to the identity of the person intending to sue or,
intended to be sued
(2) an amendment to alter the capacity in which a party sues (whether as P or as
D by counter claim) may be allowed under para (2). if the capacity in which, if
the amendment is made, the party will sue is one in which at the date of issue of
the writ or the making of the counterclaim, as the case may be, he might have
sued
(3) amendment may be allowed even if the amendment will be to add or
substitute a new cause of action if the new cause of action arises out of the
same facts or substantially the same facts as a cause of action in respect of
which relief has already been claimed in the action by the a party applying for
leave to make the amendment.
40
7. Amendment For Other Originating Process : 0.20 R.7
(1) The court at any stage of the proceeding, may at its own motion or on
the application of any party to the proceedings order any documents in
the proceeding to be amended on such terms as to costs pr otherwise
which is just.
(2) This rule not applicable to a judgments or order.
Where the court makes an order under this Order giving leave to amend a writ,
pleading or other document, then if that party does not amend the document in
accordance with the order before the expiration of the period specified in the
order or if not specified, of a period of 1 days after the order was made, the
order shall cease to have effect, without prejudice, but the court may extend the
period.
41
10. Mode Of Amendment Of Writ [O.20 R.10]
(1) where the amendments authorized under any rule of this order to be
made in a writ, pleading or other documents are so numerous or lengthy
so as to give effect to them would make it difficult or inconvenient to read,
a fresh document , amended s so authorized must be prepared and in case
of writ or originating summon re- issued and subject to any direction
given in rule 55 and 8, the amendments so authorized may be effected by
making in writing the necessary alterations of the document in case of a
writ or OS, causing it to be sealed and filling a copy.
(2) the amended writ or pleading or documents must be indorsed with a
statement that it has been amended, date on which it was amended and by
whom the order was made, the number of the related rule
42
11. Amendment Of Judgment And Order
43
Joinder for cause of action
Introduction
44
If he acts for a claimant in a traffic accident, he will have to consider the
lowing facts:
(a) whether the other party drove as a reasonable driver would have done
(b) the extent to which the defendant was at fault
(c) damages suffered by the plaintiff in consequences of the accident.
45
Defintion Cause of Action
Read v Brown
The (assignee) brought an action in the Mayor's court in London as
assignee of a debt of the price of goods supplied by a firm of Brown
& Co. ( assignor) to the defendant.
The sale and delivery of the goods appeared to have taken place
respectively in Surrey (outside the city of London) without the
jurisdiction of the Mayor's court. But the Plaintiff alleged that the
vendor (assignor) had executed in writing an absolute assignment of
the debt in his favor in the city of London , a place within the
jurisdiction of the Mayor's court, and that he had given the defendant
express notice in writing of the assignment so executed.
46
Defendant argument:
(1) The assignee has no cause of action because he is not the seller of
the good. The Vendor must claim the price.
(2) Since the sate and purchase took place outside the city of London,
the Mayor's court in London has no jurisdiction to hear the case.
Held:
(1) Cause of action means every fact which it would be necessary for
the plaintiff to prove, if traversed, in order to enable a plaintiff to
sustain his action. Plaintiff must proved the assignment because the
assignment is part of his cause of action ,
(2) In the present case the cause of action has arisen in the city of
London and as such the Mayor's court has jurisdiction to hear the case.
47
Cooke v Gill
The P was the owner of premises. There was an agreement in which the
premises were subject to the rent control where the Plaintiff was paying
higher the rent imposed. The Plaintiff brought an action to recover the
excess paid in the rent i.e. RM100 per month excess.
Held: There was a cause of action . The Rent Control Board made an
order fixing a maximum recoverable sum of RM50 per month, plaintiff.
48
When Cause Of Action Commences
49
Sio Koon Tin &Anor v S.B. Mehra (1981) 1 MLJ
There was no provision that in the case of default of any of the installment,
the remaining installments should become immediately due and payable.
On 7/10/1972 R took out a writ claiming inter alia payment of the sum
$85,000 with interest.
50
This writ was subsequently amended on
14/10/1972 and a new prayer was added for
the payment of any sum for due on the taking
of accounts. Trial judge gave judgment in R's
favor. Appellants appeal.
Held:
(1) R did not on 7/10/1972 have any cause of
action in respect of the $85,000 or any part
thereof, as no installments were then due.
(2) The amendment to the back date writ of the
original issue of the writ and at that date even
the first installment of $35,000 was not due.
51
Sneade v Wotherton Pte. Co.
52
Effect Of Death On Certain Cause Of Action
S. 8(1) Civil Law Act 1956 - states that in death of any person all
causes of action subsisting against or vested in him- shall survive
against or as the case may be for the benefit of his estate.
53
S 8(3) Civil Law Act - No proceeding
shall be maintainable in respect of a
cause of action in tort which by virtue
of this section has survived against the
estate of a deceased person, unless
proceeding against him in respect of
that cause of action either:
54
Counterclaim
O. 15 r 2(1) a D in any action who alleges that he has any claim against a
plaintiff in the action in respect of any matter, may instead of bringing a
separate action, make a counter claim and if he does so, he must add the
counterclaim to his defense.
55
0. 15 r. 2 (2) will apply to a counterclaim as if the counterclaim were a separate
action and as if the person making the counterclaim were the plaintiff and the
person against whom it is made a defendant .Such counterclaim shall have the
same effect as a cross action so as to enable the court to pronounce a final
judgment in the same action both on the original claim by the plaintiff and the
counter claim by the defendant.
56
O. 15 r. 3 (2) where a D joins a person as a party against whom he makes a
counter claim, he must add that the person's name io the title of the action and
serve on him a copy of the counter claim. As soon as served the other party
become^ a party to it from date of service.
O.15 r. (4) the D can join the third party under the counter claim and not as a co
plaintiff but can be a co defendant.
57
Pender vTadde
58
Joinder Of Cause Of Action
(1) both the plaintiffs claim and the defendant are alleged
to be liable in the same capasity(personal capacity) in
respect of all the cause of action; or
59
The law has invested the court under O. 15 r. (5) with the
power to order separate trials, if it finds it inconvenient to try
or dispose of the different causes of action in one action.
60
Harris & Anor v Ashworth M96211 AER
61
Two Action In Respect Of Same Cause Of Action
62