A._Summary_Judgment_Under_Order_14.PDF

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Halsbury's Laws of Malaysia - Civil Procedure/190 - Civil Procedure/(6) Disposal of Proceedings Without Trial/(4) Summary Judgment/A. Summary Judgment Under Order 14

(4) SUMMARY JUDGMENT A. SUMMARY JUDGMENT UNDER ORDER 14 [190.6-048] Scope of Order 14 The procedure for summary judgment under Order 14 of the Rules of the High Court applies to every action begun by writ1 other than: (1) (2)

an action which includes a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage2; or an action which includes a claim by the plaintiff based on an allegation of fraud3.

The procedure does not apply to actions for specific performance to which Order 81 (agreements for sale, purchase or exchange of property) applies4. The Order 14 procedure applies to proceedings by the Government5 but not to proceedings against the Government6. The procedure applies to proceedings by or against a company or corporation7 and to proceedings by a company against its director8. It applies to an action for a debt or liquidated demand, including a claim based on a quantum meruit9, to a claim based on a progress payment certificate in a building contract10, to a claim based on an interest free friendly loan11, to a claim for unliquidated damages12, to a claim for an account13, to a claim for a final injunction14, to an action for enforcement of foreign judgment15, to landlord and tenant actions16, to Admiralty actions17, to a claim based for breach of a scholarship agreement18, and to a claim for delivery up of specific goods without giving the defendant the option to pay their assessed value19. Where the case is clear, it may be that an application for summary judgment under Order 14 can be made for a declaration20. It has been held that the Order 14 procedure is appropriate where the matter to be disposed of involves merely construction with a few documents21, or where the matter solely involves a question of law even if it is a difficult one22. Leave to enter final judgment under Order 14 will be given where all the issues are clear and the matter of substance can be decided once and for all without going to trial23. Difficulty in appreciating the nature of the liability of the defendant should not be an impediment and a ground to deny the plaintiff summary judgment where such liability is clearly established24.It is not the function of the trial judge in an application for summary judgment to delve into the merits of the case and decide whether the defendant is likely to succeed or fail. His function is merely to scrutinise the defence of the defendant and test it, inter alia, against the language of the Rules25 to determine whether it is a plausible defence26. The procedure by way of application for summary judgment is not appropriate in cases which involve lengthy argument by counsel on difficult questions of fact and law27. The power to sign judgment under Order 14 applies to those cases which almost on the admission of the defendant are undefended28. Summary judgment will not be granted when there is a bona fide triable issue to be determined29, where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff30 or where there are disputes arising out of conflicting professional opinions31. The Order 14 procedure is inappropriate where a guarantor successfully challenges the service of the notice of demand on the grounds that it was sent to an address different from that stated in the guarantee32 or where the sufficiency or validity of a notice of termination of tenancy is in issue33. Leave to defend will be given where the defendant alleges a collateral agreement which contradicts the main agreement34 or where the defendant challenges the accuracy of the survey in a land encroachment action35.

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A plaintiff may apply for summary judgment on a particular part of a claim included in the writ36. The court has the power to award interest when giving summary judgment under Order 1437. A claim for interest may be included in an application for summary judgment where it has been contractually agreed upon38. The court may give judgment in a foreign currency39, and may grant relief against forfeiture for non-payment of rent as if at a trial40. The court has the power to vary or set aside any judgment given against a party who does not appear at the hearing of an application under Order 14 on such terms as it thinks just41. The court has no jurisdiction to vary or amend an order for summary judgment after it is contested on the merits by both parties and has been drawn up, sealed and entered42. In cases in which the plantiff obtains summary judgment either unconditionally or subject to payment into court or to the plaintiff's solicitors, the usual order for costs will be limited to RM35043. 1 For subordinate courts, the procedure for summary judgment is provided in SCR O 26A. For comparison purposes, corresponding provisions of SCR are cited alongside the respective RHC provisions. The procedure under RHC O 14 (SCR O 26A) does not apply to actions begun by other originating process, eg by originating summons, originating motion or petition, or third party notice. See, however, RHC O 16 r 7(1); SCR O 12 r 5(1); and [190.3-062]. On the other hand, the procedure applies to a counterclaim served by the defendant in an action begun by writ: RHC O 14 r 5(1); SCR O 26A r 5(1). In such a case, the references to the plaintiff and defendant are reversed: RHC O 14 r 5(2)(a); SCR O 26A r 5(2)(a). 2 RHC O 14 r 1(2)(a); SCR O 26A r 1(2)(a). 3 RHC O 14 r 1(2)(b); SCR O 26A r 1(2)(b). The term 'fraud' in RHC O 14 r 1(2)(b) (SCR O 26A r 1(2)(b)) means fraud in the technical sense as in Derry v Peek (1889) 14 App Cas 337, HL, namely a false representation made knowingly, without belief in its truth: Tan See Yin Vincent v Noone & Co [1995] 1 MLJ 705, SC; Blue Nile Co Ltd v Emery Customs Brokers (S) Pte Ltd [1990] 2 MLJ 385, [1990] SLR 454. An action is based on an allegation of fraud only if it is framed and founded in deceit: Barclays Bank Ltd v Cole [1967] 2 QB 738, [1966] 3 All ER 948, CA (Eng); Stafford Winfield Cook & Partners Ltd v Winfield [1980] 3 All ER 759, [1981] 1 WLR 458; Newton Chemical v Arsenis [1989] 1 WLR 1297, CA (Eng). See also Pan Malaysian Equities Sdn Bhd v Fong Peng Wah [2005] 1 MLJ 407, where an appeal by the defendant against summary judgment based on an allegation that the plaintiff's claim was based on fraud and therefore barred by O 14 r 1(2)(b) was rejected. There was no evidence to support such an allegation. 4 RHC O 14 r 1(3). As to RHC O 81 see [190.6-058] and following. The two orders are mutually exclusive: see Lee Teng Siong v Lee Kheng Lian [2006] 5 MLJ 609, CA. However, in an action for specific performance of a contract relating to goods or choses in action, eg shares in a private company, it would seem that RHC O 14 will apply: see Woodlands v Hind [1955] 2 All ER 604, [1955] 1 WLR 688; Shigenori Ono v Thong Foo Ching [1992] 1 MLJ 117. 5 RHC O 73 r 5(2). 6 See RHC O 73 r 5(1). 7 Muirhead v Direct United States Cable Co Ltd (1879) 27 WR 708; Shelford v Louth and East Coast Rly Co (1879) 4 ExD 317, CA (Eng). 8 See Yeng Hing Enterprise Sdn Bhd v Datuk Dr Ong Poh Kah [1988] 2 MLJ 60, SC. 9 See Mott Macdonald (M) Sdn Bhd v Hock Der Realty Sdn Bhd (unreported, 8 August 1996), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4643; Runnacles v Mesquita (1876) 1 QBD 416; Lagos v Grunwaldt [1910] 1 KB 41, CA (Eng). 10 See Pembenaan Leow Tuck Chui & Sons Sdn Bhd v Dr Leela&'s Medical Centre Sdn Bhd [1995] 2 MLJ 57, SC; Ooi Boon Teong (t/a Mitsu–Da Construction) v MBf Construction Sdn Bhd [1994] 3 MLJ 413. 11 Wong Kim Fatt v Yong Kwet Yin [1996] 1 MLJ 45; Subramaniam Dhanapakiam v Ghaanthimathi [1991] 2 MLJ 447, [1991] SLR 432. 12 Such a claim may be for damages for breach of directors fiduciary duties (see Avel Consultants Sdn Bhd v Mohamed Zain Yusof [1985] 2 MLJ 209, SC), or for tort, including an action for damages arising out of a fatal accident ( Dummer v Brown [1953] 1 QB 710, [1953] 1 All ER 1158, CA (Eng)), or for damages for trespass ( Segar Restu (M) Sdn Bhd v Wong Kai Chuan [1994] 3 MLJ 530; Shaik Alauddin v Kamarutheen a/l K Dawood [1988] 3 MLJ 336), and also damages for breach of contract even where it is clearly established that there is no defence as to liability (see Associated Bulk Carriers Ltd v Koch Shipping Inc, The Fuohsan Maru [1978] 2 All ER 254, [1978] 1 Lloyd's Rep 24, CA (Eng)). It is inappropriate for a plaintiff to proceed by way of summary judgment in a motor vehicle accident action especially where contributory negligence is raised as a defence: Khairi bin Mohmed v Sanip Bin Salleh [1996] 3 CLJ 119. The value of proceeding for summary judgment under RHC O 14 for unliquidated damages has been greatly enhanced by the entitlement to include in the summons an application for an interim payment: see RHC O 22A r 2(2); and [190.5-041]. 13 As to such actions see RHC O 43 r 1; and [190.10-010]. See Tan Eng Choong v Foo Kai Yuen [1988] 1 MLJ 531. 14 Fabrique Ebel SA v Syarikat Perniagaan Tukang Jam City Port [1988] 1 MLJ 188; Shell Mex and BP Ltd v Manchester

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Garages Ltd [1971] 1 All ER 841, [1971] 1 WLR 612, CA (Eng). In such a case, the summons for summary judgment must be issued directly before the judge, and not to a registrar, since the registrar has no jurisdiction to grant an injunction: see the Courts of Judicature Act 1964 (Act 91) s 10(3). 15 See Hua Daily News Bhd v Tan Thien Chin [1986] 2 MLJ 107, SC. A covenanted rate of interest is an independent covenant and the contractual rate, even if above the statutory maximum rate, is recoverable: Chuah Eng Khong v Malayan Banking Bhd [1998] 3 MLJ 97 at 115, FC (it is purely a matter of construction of a document as to whether it contains a covenant for a contractual rate of interest overriding the maximum rate of interest allowed by law or rules of court on any judgment sum claimed under the said document). 16 See Wisma Sime Darby Sdn Bhd v Wilson Parking (M) Sdn Bhd [1996] 2 MLJ 81, CA; Chong Ngam Sen v Yeoh Bah Chee [1981] 1 MLJ 161, FC; Station Hotels Bhd v Malayan Railway Administration [1980] 1 MLJ 197, PC; Town House Hotel Ltd v Shanghai Hall Ltd [1966] 2 MLJ 169; Evelyn Saw Hee Li v Gan Tit San [1959] MLJ 146. 17 Unlike in England, the O 14 procedure is equally applicable to Admiralty actions: see The MV &'Brihope&'; Emmanuel E Okwuosa v Owners of the ship and other persons interested in the ship MV Brihope (Hong Leong Leasing Sdn Bhd, Interveners) [1995] 1 MLJ 676; affd on appeal sub nom Pemunya Kapal MV Brihope v Emmanuel E Okwuosa [1997] 1 MLJ 453, CA. 18 See Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400, SC. 19 See RHC O 14 r 9, which is expressed to apply to applications for summary judgment under both RHC O 14 rr 1 and 5 (see [190.6-002], [190.6-009]). For subordinate courts see SCR O 26A r 9. 20 See Fadzil bin Mohamed Noor v Universiti Teknologi Malaysia [1981] 2 MLJ 196, FC; Avel Consultants Sdn Bhd v Mohamed Zain Yusof [1985] 2 MLJ 209, SC; Ponniah v Sivalingam [1991] 3 MLJ 190; Chong Ket Sui David v Datuk Chau Tet On (Chairman and office bearer of Royal Sabah Turf Club for and on behalf of himself and the Management Committee of the Royal Sabah Turf Club) [1993] 2 MLJ 509. A declaration will not be made in default, on admissions or by consent: see Wallersteiner v Moir [1974] 3 All ER 217, [1974] 1 WLR 991, CA (Eng); Metzger v Department of Health and Social Security [1977] 3 All ER 444, [1978] 1 WLR 1046; affd [1978] 3 All ER 753, [1978] 1 WLR 1046, CA (Eng). 21 Esso Standard Malaya Bhd v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168; Fadzil Bin Mohamed Noor v Universiti Teknologi Malaysia [1981] 2 MLJ 196, FC; Carlsberg Brewery Malaysia Bhd v Soon Heng Aw & Sons Sdn Bhd [1989] 1 MLJ 104. 22 Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, SC. See also United Malayan Banking Corp Bhd v Pembinaan KSY Sdn Bhd [1993] 3 MLJ 45, SC; American Express Sdn Bhd v Dato&' Wong Kee Tat [1990] 1 MLJ 91, SC; Supreme Finance (M) Bhd v Bukit Barat Development Sdn Bhd [1991] 2 CLJ 1394; Amanah Merchant Bank Bhd v Sumikin Bussan Kaisha Ltd [1992] 2 MLJ 832; Keppel Finance Ltd v Phoon Ah Lek [1994] 3 MLJ 26; European Asian Bank A-G v Punjab and Sind Bank (No 2) [1983] 2 All ER 508, [1983] 1 WLR 642, CA (Eng). However leave to defend should be given where the question of law is raised and not determined ( Chong Ngam Sen v Yeoh Bah Chee [1981] 1 MLJ 161, FC) particularly if it is an arguable point of law which requires full and serious consideration ( Brightside Mechanical and Electrical Services Group Ltd v Hyundai Engineering and Construction Co Ltd [1988] 1 MLJ 500, [1988] SLR 186; Hong Leong Finance Bhd v Rextex Rubber Products (M) Sdn Bhd [1996] 4 CLJ 580). See also Guinness Anchor Marketing Sdn Bhd v Chellam Joe Vetha Thya Singh [1999] 3 AMR 2735. 23 Lee Wah Bank Ltd v Joseph Eu [1981] 1 MLJ 11, FC. The purpose of the O 14 procedure is to enable the plaintiff to obtain summary judgment without trial if he can prove his case clearly and if the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried: Doshi v Yeoh Tiong Lay [1975] 1 MLJ 85, FC; Ho Lai Ying (t/a Kh Trading) v Cempaka Finance Bhd [2004] 2 MLJ 197, CA. In Ng Hee Thoong v Public Bank Bhd [1995] 1 MLJ 281 at 287, it was observed that the effect of O 14 is to shut the defendant from having his day in the witness box. It is a very special jurisdiction and is only to be invoked in cases where there is no bona fide triable issues. See also Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd [1987] 2 MLJ 332, SC; Noh Hyoung Seok v Perwira Affin Bank Bhd [2004] 2 MLJ 203, CA (conflict of evidence in regard to the release of the appellant as a guarantor, which was an issue of fact which required viva voce evidence in a trial); Affin Bank Bhd v Datuk Ahmad Zahid bin Hamidi [2005]3 MLJ 361. Summary judgment will be allowed for a plain and obvious case: Lien Chong Credit and Leasing Sdn Bhd v Sri Saga Holdings Sdn Bhd [1997] 1 MLJ 367, CA; HSBC Bank Malaysia Bhd v LH Timber Products Sdn Bhd [2005] 6 MLJ 625 (when a fact is formally admitted, it ceases to be an issue, and that is conclusive for the purposes of the proceedings thus saving the plaintiff the trouble, time and expense of proving the fact in issue; as the defendants admitted their liability it was a fit and proper case for summary judgment). 24 Sime Bank Bhd v Kuala Lumpur City Securities Sdn Bhd [2001] 5 MLJ 670. 25 Ie RHC O 14 r 4: see [190.6-051]. 26 See Noh Hyoung Seok v Perwira Affin Bank Bhd [2004] 2 MLJ 203, CA. 27 See United Malayan Banking Corp Bhd v Palm & Vegetable Oils (M) Sdn Bhd [1983] 1 MLJ 206, FC (followed in RHB Bank Bhd v Farlim Holdings Sdn Bhd [2005] 2 MLJ 638); British and Commonwealth Holdings plc v Quadrex Holdings Inc [1989] QB 842, [1989] 3 All ER 492, CA (Eng); MBf Finance Bhd v Cahaya Luas Sdn Bhd [2001] 4 MLJ 551; Ho Lai Ying (t/a KH Trading) v Cempaka Finance Bhd [2004] 2 MLJ 197, CA, where it was noted that the summary judgment procedure

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is a procedural device available for prompt and expeditious disposition of an action by a plaintiff without trial when there is no dispute as to fact or law. In this case, the certificate of indebtedness relied upon was not conclusive as evidence had not been adduced to illustrate how the sum mentioned was arrived at. The mere production of a certificate of indebtedness was insufficient to establish that the said sum was due and owing. The court would still have to determine whether sufficient evidence had been adduced to prove the quantum and correctness of the amount claimed and the burden was on the plaintiff to establish that the sum stated in the certificate of indebtedness was owing. However, this decision was reversed on appeal in Cempaka Finance Bhd v Ho Lai Ying (t/a KH Trading) [2006] 2 MLJ 685, FC (a certificate of indebtedness excuses the plaintiff from adducing proof of debt; the burden then shifts to the defendant to disprove the amount claimed). See also Affin Bank Bhd v Datuk Ahmad Zahid bin Hamidi [2005] 3 MLJ 361 (any challenge to the certificate of indebtedness must give good reasons to question the accuracy of such certificate); Southern Finance Bhd v Sun City Development Sdn Bhd [2006] 6 MLJ 673. 28 Syn Lee & Co Ltd v Bank of China [1961] MLJ 87, following Lloyd&'s Banking Co v Ogle (1876) LR 1 ExD 262. 29 Kim Seng Hotel and Coffee Shop v Chuah Teong Buan [1971] 1 MLJ 233, FC; National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC. In Kewangan Bersatu Bhd v Sidax Latex Industries Sdn Bhd [2006] 2 MLJ 9, CA, a mere typographical error as to the account numbers of hire purchase agreements, corrected by affidavit evidence, could not amount to a triable issue. See also Syarikat Panon Sdn Bhd v Zacon Engineering Works Sdn Bhd [2007] 8 MLJ 309, where the plaintiff had earlier in a different injunctive proceeding between the parties taken the position that there were serious issues to be tried, so it could not now say otherwise in the summary judgment proceedings as there were sufficient common features between the two proceedings. 30 Harrison v Bottenheim (1872) 26 WR 362, CA (Eng). 31 European Partners in Capital (EPIC) Holdings BV v Goddard and Smith [1992] 41 EG 118, CA (Eng). 32 Ng Hee Thoong v Public Bank Bhd [1995] 1 MLJ 281, CA. See also Standard Chartered Bank Malaysia Bhd v Eng Song Huat [1996] 1 MLJ 446. 33 See Town House Hotel Ltd v Shanghai Hall Ltd [1966] 2 MLJ 169. 34 Eushun Properties Sdn Bhd v MBf Finance Bhd [1992] 2 MLJ 137, SC. 35 S M Appaduray v R Ananda [1982] 1 MLJ 292. 36 RHC O 14 r 1(1); SCR O 26A r 1(1). See also Fabrique Ebel SA v Syarikat Perniagaan Tukang Jam City Port [1988] 1 MLJ 188. 37 See Ellis Mechanical Services Ltd v Wates Construction Ltd (1976) 120 Sol Jo 167, CA (Eng); Gardner Steel Ltd v Sheffield Bros (Profiles) Ltd [1978] 3 All ER 399, [1978] 1 WLR 916, CA (Eng). As to interest on judgments generally see [190.9-026]. 38 See Seiko Electronics Industries Sdn Bhd v Chung Khiaw Bank Ltd [1977] 2 MLJ 49; Bank of China v Chew Kean Kor [1963] MLJ 41; Chuah Eng Khong v Malayan Banking Bhd [1998] 3 MLJ 97, FC; and see [190.9-026]. 39 See See Hua Daily News Bhd v Tan Thien Chin [1986] 2 MLJ 107, SC; Miliangos v George Frank (Textiles) Ltd [1976] AC 443, [1975] 3 All ER 801, HL; and as to judgments in foreign currency generally see [190.2-008], [190.9-021]-[190.9-022]. 40 RHC O 14 r 10; SCR O 26A r 10. 41 RHC O 14 r 11; SCR O 26A r 11. An application to set aside a summary judgment must be made pursuant to RHC O 14 r 11 which makes no distinction between a judgment obtained after hearing the merits and a judgment obtained without hearing the merits. What the rule means is that as long as the judgment was obtained in the absence of a party, the aggrieved party may apply to set aside the judgment under this rule: Tetracon Engineering Sdn Bhd v Manikan a/l Sokan [2010] 6 MLJ 80, CA (defendant failed to provide an explanation for non-attendance of counsel on the day and there was no merit in the defendant's argument that it was not served with the cause papers and hence the judgment was irregular as it was represented by counsel throughout). The court will have to be fully satisfied why the defendant was absent at the hearing of the O 14 application: Development and Commercial Bank Bhd v Cheah Theam Swee [1989] 2 MLJ 496; Perwira Habib Bank Malaysia Bhd v Yap Yeng Seng [1989] 1 CLJ 1101. This rule cannot be invoked successfully where the defendant had deliberately decided to allow summary judgment to be taken against him: Bank Bumiputra Malaysia Bhd v Kredin Sdn Bhd [1989] 1 MLJ 323. The principles applicable to setting aside a judgment in default of appearance under RHC O 13 r 9 apply similarly to an application to set aside a default judgment under O 14: Development and Commercial Bank Bhd v Cheah Theam Swee (above). It is not sufficient for the defendant to merely refer to the statement of defence in the affidavit in support of the application to set aside the summary judgment obtained in default without condescending to particulars to show a defence on the merits: Associated Tractors Sdn Bhd v PMB (Kulim) Sdn Bhd [1989] 1 MLJ 245. RHC O 14 r 11 applies to appeals against O 14 applications: Asia Commercial Finance (M) Bhd v Pasadena Properties Development Sdn Bhd [1991] 1 MLJ 111. A summary judgment granted on appeal in the absence of the defendant is a regular judgment where it is heard on the merits: Lewata Construction Sdn Bhd v Shamali Sdn Bhd [1992] 3 CLJ 1719. A party against whom summary judgment has been entered by default of appearance should make an application under

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RHC O 14 r 11 to set aside the summary judgment instead of filing an appeal to the judge: Bank Bumiputra (M) Bhd v Aik Lee Feedmill Co Sdn Bhd [1999] 1 MLJ 529. However, where an alternative remedy is available, a defendant is not confined to seeking his remedy in an application under RHC O 14 r 11 to set aside a default judgment. This rule states that the judgment may be set aside. It does not preclude the defendant from appealing against the judgment under RHC O 56. The court held that the defendants who had appealed under RHC O 56 should not be told that they ought to have proceeded under RHC O 14 r 11 unless it could be shown that by so doing the plaintiff would be prejudiced: Cempaka Finance Bhd v Fajar Lodge Sdn Bhd [2000] 5 MLJ 151. 42 Scott and English (M) Sdn Bhd v Leikie Refrigeration and Stainless Steel Industries Sdn Bhd [1993] 3 MLJ 137. But if the final judgment or order had been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing was forthcoming, a fresh action would lie to impeach the original judgment: Pemunya Kapal MV Brihope v Emmanuel E Okwuosa [1997] 1 MLJ 453, CA. See also Ling Kuok Teck v Tseng Choon Chin @ Tay Bak Hui [1995] 3 CLJ 889. 43 See RHC O 59, App 2, Pt I and II. In practice, one would ask for costs to be taxed.

[190.6-049] Application for summary judgment Before the plaintiff can apply for summary judgment under Order 14 on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of that claim, or has no defence except as to the amount of damages claimed, the following preliminary requirements1 must be satisfied: (1) (2) (3)

the defendant must have entered an appearance2; the statement of claim must have been served on the defendant3; and the plaintiff must support his application by the requisite affidavit4.

The application for summary judgment must be made after an appearance has been entered5 and normally before the defence is delivered6. Where it is made after the delivery of the defence, the plaintiff must explain the delay7 by way of an affidavit8. If the explanation is not accepted by the court no Order 14 judgment can be signed9. The question of whether there has been inordinate delay for an Order 14 application lies at the discretion of the trial judge10. However, delay in applying for Order 14 is no ground for defeating the plaintiff's right to summary judgment when there is no real defence disclosed11. The application for summary judgment must be made by summons12. The summons must be supported by an affidavit which must (a) verify the facts on which the claim or part of the claim is based; and (b) state the deponent's belief that there is no defence to that claim or part, except, where applicable, as to the amount of any damages claimed13. The supporting affidavit should ordinarily be made by a person who can speak to the facts of his own knowledge, and this will normally be the plaintiff14. Unless the court otherwise directs, such an affidavit may contain statements of information or belief with the sources and grounds thereof15. In his summons for summary judgment the plaintiff may add an application for an interim payment16. The summons, together with a copy of the supporting affidavit and of any exhibits referred to in it, must be served on the defendant within 14 days from the date of issue of the summons17. 1 See National Co for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC; Cempaka Finance Bhd v Ho Lai Ying (t/a KH Trading) [2006] 2 MLJ 685, FC. 2 RHC O 14 r 1(1). Cf SCR O 26A r 1(1). As to entering an appearance see [190.2-094] and following. This is what distinguishes summary judgment under RHC O 14 from a default judgment for failure to enter an appearance: see [190.6-030]. The plaintiff may commence RHC O 14 proceedings although no appearance has been entered where the defendant has taken a step in the proceedings by filing a defence and the court has the discretion to condone such irregularity under RHC O 2 r 2: Sungei Way Leasing Sdn Bhd v Sena Land Development Sdn Bhd [1989] 3 MLJ 37. Where the action is against the firm in the firm's name, the entry of appearance by any one partner would suffice to ground proceedings against the firm under Order 14: Lysaght v Clark & Co [1891] 1 QB 552. 3 RHC O 14 r 1(1). Cf SCR O 26A r 1(1). The need for the service of the statement of claim is to enable the court to determine the sufficiency of the relevant facts relied on by the plaintiff to support his claim. The statement of claim must be

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complete and good in itself and any defect or omission therein cannot be made good by affidavit evidence: United Malayan Banking Corp Bhd v Palm & Vegetable Oils (M) Sdn Bhd [1983] 1 MLJ 206, FC (followed in RHB Bank Bhd v Farlim Holdings Sdn Bhd [2005] 2 MLJ 638); UMW (Sarawak) Sdn Bhd v Kim Leong Timber Sdn Bhd [1989] 3 MLJ 177; Asia Life Assurance Society Ltd v Chan Theng Kiang (unreported, 13 January 1995), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4673; Gold Ores Reduction Co v Pain [1892] 2 QB 14, DC (Eng). If the defect is one of substance, the application for summary judgment will be dismissed: National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC; Ryley v Master , Sheba Gold Mining Co v Trubshawe [1892] 1 QB 674, DC (Eng). As to the formal requirements of a statement of claim, see RHC O 18. Nevertheless, the court has the power to amend the statement of claim at any stage of the proceedings under RHC O 20 r 5; SCR O 15 r 1 (see [190.3-215]), and to proceed to hear the summons or a fresh summons based on a fresh affidavit: see Gurney v Small [1891] 2 QB 584, DC (Eng); Paxton v Baird [1893] 1 QB 139; Roberts v Plant [1895] 1 QB 597, CA (Eng). 4 RHC O 14 r 2(1). Cf SCR O 26A r 2(1). Failure to explain a delay in making an application under RHC O 14 is not fatal per se. It is for the court to exercise its discretion to determine whether to proceed with the hearing of the application notwithstanding the absence of an explanation: Interfinance Bhd v Grand Ridge Sdn Bhd [1998] 4 CLJ Supp 485. For the purpose of an application under RHC O 14, the preliminary requirements are that the defendant must have entered an appearance, the statement of claim must have been served on the defendant, and the affidavit in support of the application must comply with the requirements of RHC O 14 r 2; SCR O 26A r 2. If the plaintiffs fail 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. The burden then shifts to the defendant to satisfy the court why judgment should not be given against him: Tac Construction and Trading v Bennes Engineering Bhd (No 1) [1999] 2 AMR 1521. 5 Krishnamurthy v Malayan Finance Corp Bhd [1986] 2 MLJ 134, SC; Standard Chartered Bank Malaysia Bhd v Eng Song Huat [1996] 1 MLJ 446. See also Renofac Builder (M) Sdn Bhd v Chase Perdana Bhd [1999] 5 MLJ 506. 6 Delivery of a defence does not, in a proper case, preclude a plaintiff from applying for summary judgment: Huo Heng Oil Co (EM) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ 139. 7 Krishnamurthy v Malayan Finance Corp Bhd [1986] 2 MLJ 134, SC; Société des Étains De Bayas Tudjuh v Woh Heng Mining Kongsi [1978] 2 MLJ 267; B-Trak Sdn Bhd v Bingkul Timber Agencies Sdn Bhd [1989] 1 MLJ 124; see also Comptroller-General of Inland Revenue, Malaysia v Weng Lok Mining Co Ltd [1969] 2 MLJ 98; McLardy v Slateum (1890) 24 QBD 504, CA (Eng). See also Tan Ah Chim & Sons Sdn Bhd v Lim Kean Siew [2000] 6 MLJ 670; Lim Tiong Huai v Wang Swee Teck (t/a Wang Plumbering & Electric Co) [2004] 1 MLJ 638. 8 See Ng Hee Thoong v Public Bank Bhd [1995] 1 MLJ 281, CA; Standard Chartered Bank Malaysia Bhd v Eng Song Huat [1996] 1 MLJ 446. 9 Krishnamurthy v Malayan Finance Corp Bhd [1986] 2 MLJ 134, SC; British American Life and General Insurance Bhd v Pembinaan Fal Bhd [1994] 3 MLJ 267; Abdul Manaf Mohd bin Ghows v Nusantara Timur Sdn Bhd [1994] 2 MLJ 180; K & N Kenanga Sdn Bhd v Latchman Dass s/o Shewaram [1986] 2 CLJ 136. 10 MBf Finance Bhd v Hasmat Properties Sdn Bhd [1990] 1 MLJ 180. See further Malaysian International Merchant Bankers Bhd v Richard Lee Chiong Woo [2002] 5 MLJ 215, where the court held that an application for summary judgment may be postponed until such time as any property held as security for the debt is sold and the statement of claim thereafter amended to take into account the disposal of the property and the amount thereby recovered. See also Bank Pembangunan Malaysia Bhd v Abdul Razak Sheikh Mahmood [2004] 2 MLJ 15, CA (a determination as to whether the delay was intentional and contumelious or inordinate and inexcusable was significant; if it was the latter, the burden was on the defendant to establish that he had suffered or would suffer prejudice as a result of the delay; if it was the former then there was no burden on the defendant to establish prejudice but he must show that the delay was intentional and contumelious; there could be no dispute that the appellant did not take any steps in the action from 1991 to 1996; no reasons were also advanced to explain the inaction during the period; it is settled law that delay per se does not make the conduct intentional and contumelious or an abuse of the process of court; the absence of an explanation for the delay per se also did not give rise to an inference of intentional and contumelious conduct; in this case, the absence of any explanation must be taken that the delay was inordinate and inexcusable; however, this alone is not sufficient; there must be prejudice suffered by the respondents; the absence of objection to the delay by the respondents transcended the boundaries of them passively waiting for the appellant to take the next step in the proceeding; this could only mean that they were not affected by the delay; considerable weight should be attached to the conduct of the respondents on the facts of this case in assessing the significance of the delay). 11 Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York [1997] 3 MLJ 818, CA; Yap Mong Siew v Leong Hum [1998] 3 CLJ Supp 513 (delay does not constitute a triable issue nor does it per se prevent the plaintiffs from securing summary judgment against the defendant). See also Tractors Malaysia Bhd v Joseph Thambirajah [1986] 2 CLJ 72; Public Finance Bhd v S Ramasamy s/o KMS Chockalingam Chettiar [1990] 2 CLJ 431; First Malaysia Finance Bhd v Yeow Bon Chong (unreported, 1 December 1989), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4519. 12 RHC O 14 r 2(1). Cf SCR O 26A r 2(1). A plaintiff cannot in proceedings for summary judgment include in his summons in chambers and affidavit in support matters which extend beyond his statement of claim: Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd [1998] 6 MLJ 38. 13 RHC O 14 r 2(1). Cf SCR O 26A r 2(1). The affidavit is in RHC App A Form 18; SCR Sch A Form 75A. The purpose of an

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affidavit in support of the application for summary judgment is merely to verify the facts upon which the claim is based; it cannot in law enlarge the same. Therefore, the plaintiff in an Order 14 application is precluded from claiming matters which had not been pleaded in the statement of claim: Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd [1998] 6 MLJ 38. Failure to comply with the requirement of verifying the facts will result in the application being dismissed: Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1993] 1 MLJ 316; Chai Cheon Kam v Hua Joo Development Co Sdn Bhd [1989] 2 MLJ 422; Lagos v Grunwaldt [1910] 1 KB 41, CA (Eng); Symon & Co v Palmer&'s Stores (1903) Ltd [1912] 1 KB 259, CA (Eng). Likewise, the failure to state the deponent's belief that there is no defence to the action will render the application deficient for want of compliance: Tan Tik Sing v Gomez Development Co Sdn Bhd [1979] 2 MLJ 78; Ang Swee Chuan v Lim Teng Huan [1988] 3 MLJ 471 (Brunei). The plaintiff has in effect to swear to the truth of the facts on which the claim is based: Supreme Leasing Sdn Bhd v Dior Enterprises [1990] 2 MLJ 36. Any defects or omission in the original affidavit may be cured or supplemented by a subsequent or further affidavit, and the court looks at the matter both on jurisdiction and on merits at the end of the day: Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1993] 1 MLJ 316; British American Life and General Insurance Bhd v Pembinaan Fal Bhd [1994] 3 MLJ 267; Syarikat Islamiyah v Bank Bumiputra Malaysia Bhd [1988] 3 MLJ 218; Les Fils Dreyfus and Cie SA v Clarke [1958] 1 All ER 459, [1958] 1 WLR 300, CA (Eng). The facts deposed to may be verified by reference to the statement of claim: Gissco Sdn Bhd v Blackgold (M) Sdn Bhd [1988] 2 MLJ 397; May v Chidley [1894] 1 QB 451, DC (Eng). 14 Lagos v Grunwaldt [1910] 1 KB 41, CA (Eng). The affidavit may be made by the plaintiff or any person duly authorised to make it provided he is a responsible person: Tan Kah Seng v Chi Liung Holdings Sdn Bhd [1993] 1 CLJ 233; and see Hallet v Andrews (1897) 42 Sol Jo 68; Pathé Frères Cinema Ltd v United Electric Theatres Ltd [1914] 3 KB 1253, CA (Eng). The Order 14 application can be supported by the plaintiff's solicitor as a responsible person where the facts on which the claim is based cannot be seriously challenged: see Malayan Banking Bhd v Chua Keng Leng (t/a New Fortune Enterprise) [1991] 3 CLJ 2522 at 2526 per Mahadev Shankar J. Persons in the employ of the plaintiff company may properly swear the affidavit on behalf of the plaintiff where the facts are within their knowledge: Siong Eng Co v Malayan Insurance Co Inc [1964] MLJ 65, FC. 15 RHC O 14 r 2(2). Cf SCR O 26A r 2(2). This sub-rule makes it unnecessary for a deponent only with first hand knowledge to make an affidavit: Standard Chartered Bank v Ahmad Aliyuddin bin Haji Zainal Abidin (unreported, 7 April 1990), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4643. See also RHC O 41 r 5(1), (2). Cf SCR O 25 r 26(1), (2); [190.7-015]. 16 RHC O 22A r 2(2): see [190.5-041]. Such an application must be supported by an affidavit complying with the requirements of RHC O 22A r 2(3), according to the nature of the plaintiff's claim. This is a very valuable adjunct to the procedure under RHC O 14, especially in relation to claims for unliquidated damages, claims for possession of land, claims for an account, and claims based on a quantum meruit. The plaintiff may make a single affidavit supporting his applications for summary judgment and for an interim payment, but in many cases it may be found more convenient to have separate supporting affidavits, although the applications may be contained in the same summons. The court has no jurisdiction to make an order for interim payment where the defendant is granted unconditional leave to defend: British and Commonwealth Holdings plc v Quadrex Holdings Inc [1989] QB 842, [1989] 3 All ER 492, CA (Eng). The interim payment procedure is not applicable against the Government: RHC O 22A r 11. 17 RHC O 14 r 2(3). Cf SCR O 26A r 2(3). See also Sin Kean Boon Metal Industries Sdn Bhd v Trikkon Construction Sdn Bhd [1991] 3 CLJ 2946. In the subordinate courts, an affidavit in reply is admissible as long as it is filed and served not less than four clear days before the date of the hearing for the application for summary judgment pursuant to SCR O 26A r 4(1): Autron Sdn Bhd v Goh Eng Hwa Construction [1997] 3 MLJ 414. If the defendant has delayed in the filing of the affidavit in reply, he may apply for an abridgment of time pursuant to RHC O 3 r 5(1): Perbadanan Nasional Insurans Sdn Bhd v Pua Lai Ong [1996] 3 MLJ 85, CA. The issue of late filing will not be a problem unless the adverse party raises an objection and if he does not do so and takes a step in the action, the non-compliance will be regarded as having being waived: Structural Concrete Sdn Bhd v Wing Tiek Holdings Bhd [1997] 1 MLJ 581, CA.

[190.6-050] Judgment for the plaintiff The underlying philosophy of the Order 14 procedure is to prevent the plaintiff clearly entitled to his money from being delayed in obtaining his judgment where there is no fairly arguable defence to the claim1 and the procedure enables the plaintiff to obtain a final judgment without a trial. The effect of Order 14 is to prevent the defendant from having his day in the witness box2 and the Order ought to be invoked only where it is clear that there is no real substantial question to be tried or there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment3. Unless the court dismisses the application, or the defendant satisfies the court with respect to the claim or part of the 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 judgment to the plaintiff having regard to the nature of the remedy or relief claimed4. Where no fairly arguable point is raised by way of defence, it is the court's duty to give judgment for the plaintiff5. Where part of the claim is clearly

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due by admission or otherwise, whereas a defence is raised as to the residue, the court has power to give judgment for the amount due and give leave to defend as to the residue6. In a claim for unliquidated damages, if the court is satisfied that liability is established, it has no power to give judgment or give conditional leave to defend for part of the damages7, but it may make an order for an interim payment on account of such damages to be assessed8. At the time of giving judgment against the defendant, the court may stay execution by writ of seizure and sale9. The court may stay execution of any judgment given against a defendant under Order 14 until after the trial of any counterclaim made or raised by the defendant in the action10. Where on an application for summary judgment the plaintiff obtains judgment on a claim or part of a claim against any defendant, he may proceed with the action as respects any other claim or the remainder of the claim or against any other defendant11. 1 Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, SC; and see Pengurusan Danaharta Nasional Bhd v Miri Salamjaya Sdn Bhd [2004] 4 MLJ 327, where the court held that delay in applying for summary judgment cannot provide an answer to an O 14 application if there is no triable issue. Consideration must be given to substantial and real justice, rather than to defeat a meritous claim merely on grounds of a technicality. 2 Ng Hee Thoong v Public Bank Bhd [1995] 1 MLJ 281, CA. 3 Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd [1987] 2 MLJ 332, SC; Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, SC; and see Ng Hee Thoong v Public Bank Bhd [1995] 1 MLJ 281, CA (it is only to be invoked in cases where there is no bona fide triable issue). 4 RHC O 14 r 3(1). Cf SCR O 26A r 3(1). The court has no jurisdiction in an application for summary judgment to dismiss the plaintiff's action: Diamond Peak Sdn Bhd v Tweedie [1980] 2 MLJ 31, FC. By virtue of this provision, the court has the power to give judgement for a plaintiff against a defendant on part of a claim, in other words, to give partial summary judgment: Chong Hin Trading Co Sdn Bhd v Malayan Banking Bhd [2004] 4 MLJ 453, CA. 5 See Anglo-Italian Bank v Wells , Anglo-Italian Bank v Davies (1878) 38 LT 197, CA (Eng); and see text to notes 1 and 3 above. 6 See Astim Perkhidmatan Pengangkutan Sdn Bhd v Utaraya Trading Sdn Bhd [1978] 2 MLJ 225. Such leave to defend may not be made conditional on payment of the amount due: Dennis v Seymour (1879) 4 ExD 80; Lazarus v Smith [1908] 2 KB 266, CA (Eng). If the admission is qualified by such words as 'or thereabouts', the court will give judgment for the admitted amount, leaving a reasonable margin for which leave to defend will be given: Contract Discount Corp Ltd v Furlong [1948] 1 All ER 274, CA (Eng). A letter by the defendant offering to make payment of the amount claimed 'to avoid litigation' can be interpreted as an admission of liability or an independent offer which constitutes a triable issue against the plaintiff's application for summary judgment: Luen Heng and Co v Oakes [1966] 1 MLJ 14 (on the facts, triable issue was found). 7 Associated Bulk Carriers Ltd v Koch Shipping Inc, The Fuohsan Maru [1978] 2 All ER 254, [1978] 1 Lloyd's Rep 24, CA (Eng). 8 RHC O 22A r 3: see [190.5-042]. Equally, in a claim for possession of land, the court may not give conditional leave to defend on the issue of the entitlement to the land on payment of the mesne profits pending the trial, but it may order the making of an interim payment in respect of those mesne profits: see RHC O 22A r 4(b). Again, in a claim for an account where the liability to account is established, the court may order an interim payment on account of the money likely to be found to be due on the taking of the account: RHC O 22A r 4(a). In all such and similar cases, judgment under RHC O 14 must be distinguished from orders for interim payments, which are governed by a different code and may have different consequences at the end of the day: see eg RHC O 22A rr 6-9. As to orders for interim payments generally see [190.5-040] and following. 9 RHC O 47 r 1(1): see [190.13-050]. For comparison purposes see the corresponding provision of SCR O 32 r 1(1). Such a stay may be granted where there are special circumstances rendering it inexpedient to enforce the judgment (RHC O 47 r 1(1)(a)), or where the applicant is unable from any cause to pay the money (RHC O 47 r 1(1)(b)). As to stays of execution generally see [190.13-048] and following. The application for stay of execution may be made by a defendant without the issue of a separate summons at the time summary judgment is given against him: Perwira Habib Bank Malaysia Bhd v Hong Huat Holdings Sdn Bhd [1992] 2 MLJ 160, SC. Pursuant to RHC O 47 r 1(3) (for comparison purposes see the corresponding provision of SCR O 32 r 1(3)) the defendant is required to disclose his assets and liabilities in full when making his application for a stay of the writ of seizure and sale: Y K Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian [1989] 3 MLJ 490. An application for a stay of execution of a summary judgment pending appeal must be made formally supported by an affidavit demonstrating special circumstances: Kerajaan Malaysia v Dato&' Hj Ghani Gilong [1995] 2 MLJ 119, FC; see also Kerajaan Malaysia v Jasanusa Sdn Bhd [1995] 2 MLJ 105, SC; Government of Malaysia v Datuk Haji Kadir Mohamad Mastan [1993] 3 MLJ 514; and [190.13-052]-[190.13-053]. In Hong Leong Finance Bhd v Hon Hoi Weng [1987] 2 MLJ 377 per VC George J held that an applicant for a stay pending appeal against a judgment granted summarily

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by a senior assistant registrar needs to only demonstrate merits of the appeal for the court to exercise its discretion in his favour; see [190.13-053] text to note 4. 10 RHC O 14 r 3(2). Cf SCR O 26A r 3(2). Such a stay should be granted where the defendant has clearly no defence to the plaintiff's claim but sets up a plausible counterclaim for an amount not less than the plaintiff's claim: see Société des Étains de Bayas Tudjuh v Woh Heng Mining Kongsi [1978] 2 MLJ 267; Lee Guat Eng v Seet Tiam Hock [1974] 1 MLJ 178; Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ 322; Invar Realty Pte Ltd v Kenzo Tange Urtec Inc [1990] 3 MLJ 388 (Sing); Algemene Bank Nederland NV v Teoh Guan Chiang [1989] 2 CLJ 789. At the O 14 stage, the court will not inquire into the merits of the counter claim but will only consider if it is a bona fide one: P H Grace Pte Ltd v American Express International Banking Corp [1987] 1 MLJ 437, [1986] SLR 128, CA (Sing). Failure to apply for a stay of execution of a summary judgment under RHC O 14 r 3(2) will be regarded as a waiver of the defendant's rights to a stay of proceedings and the defendant is estopped from applying for a stay of execution of the judgment in a subsequent and different action: Perwira Habib Bank Malaysia Bhd v Hong Huat Holdings Sdn Bhd [1992] 2 MLJ 160, SC. 11 RHC O 14 r 8(1). Cf SCR O 26A r 8(1).

[190.6-051] Defendant showing cause Where the plaintiff's application for summary judgment under Order 14 is presented in proper form and order1, the burden shifts to the defendant, and it is for him to satisfy the court 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 trial2. Unless the defendant does so, the court may give such judgment for the plaintiff against the defendant as may be just having regard to the nature of the remedy or relief claimed3. The defendant may show cause by affidavit4 or otherwise5 to the satisfaction of the court6. The defendant must 'condescend upon particulars'7 and should not raise a mere general denial of indebtedness8. At the hearing of the Order 14 application, the defendant is entitled to show that over and above what has been pleaded in the statement of defence he has other defences9. The affidavit may contain matters of hearsay provided the sources of information and grounds of belief are disclosed10. The defendant must raise an arguable issue and not one which is neither effective nor admissible11. The court has the power to order a defendant showing cause or an officer of a body corporate to produce any document12, and to attend and be examined on oath if there are special circumstances making it desirable to do so13. By necessary implication, the obligation on the defendant to show cause allows the plaintiff to answer the defendant's case14. Where one party makes a positive assertion upon a material issue in an affidavit, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted15. 1 A defendant faced with an application for summary judgment is entitled to take any and all procedural objections to defeat the plaintiff's summons: Ng Hee Thoong Public Bank Bhd [1995] 1 MLJ 281, CA. The defendant may object, by way of preliminary objection, that the application is in some way irregular or defective, eg that the affidavit in support is defective; for examples of such a defect see Chai Cheon Kam v Hua Joo Development Co Sdn Bhd [1989] 2 MLJ 422; Tan Tik Sing v Gomez Development Co Sdn Bhd [1979] 2 MLJ 78. However, it was held in Pengurusan Danaharta Nasional Bhd v Miri Salamjaya Sdn Bhd [2004] 4 MLJ 327 that delay in applying for summary judgment cannot provide an answer to an O 14 application if there is no triable issue. Consideration must be given to substantial and real justice, rather than to defeat a meritorious claim merely on grounds of a technicality. Notice in writing of an intention to raise a preliminary objection should be given at the earliest possible moment to the other side to avoid surprise: Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394; Gurbachan Singh v Seagrott and Campbell (No 2) [1962] MLJ 370. However, the preliminary objection may be allowed to be raised even without prior notice if it can be inferred that no surprise has been caused to the opponent and where the objection raised goes to the root of the matter such as illegality in the proceedings taken: Datuk Bandar Kuala Lumpur v Seman Bin Amat [1996] 3 CLJ 263. If the court allows the objection, the summons will be dismissed. If unconditional leave to defend is given without adjudication on the merits, the plaintiff is entitled to issue a fresh summons under O 14 and apply again for leave to enter final judgment: Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd [1974] 2 MLJ 94, FC. 2 RHC O 14 r 3(1). Cf SCR O 26A r 3(1). Where upon scrutiny of the affidavits, it is obvious that the defendant is severely disadvantaged in not being able to assess the evidence which the plaintiff had placed before this court, then the case is fit for a full trial where interrogatories, discovery and cross-examination would be made available: Kiwi Brands (M) Sdn Bhd v

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Multiview Enterprises Sdn Bhd [1998] 6 MLJ 38. If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, the court will invoke the concluding words of RHC O 14 r 3(1) and grant leave to defend: Miles v Bull [1969] 1 QB 258, [1968] 3 All ER 632. For cases where courts have held that there ought for some other reason to be a trial of the plaintiff's claim, see Gissco Sdn Bhd v Blackgold (M) Sdn Bhd [1988] 2 MLJ 397; United Malayan Banking Corp Bhd v Lim Meng Hua [1990] 1 MLJ 54; Concentrate Engineering Pte Ltd v United Malayan Banking Corp Bhd [1990] 3 MLJ 1, [1990] SLR 514; Majlis Islam Negeri Johor v United Merchant Finance Bhd (MUI Continental Insurance Sdn Bhd, Third Party) [1995] 4 MLJ 482; United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657, FC. For examples of circumstances which may constitute some other reason for there to be a trial see Bank für Gemeinwirtschaft v City of London Garages Ltd [1971] 1 All ER 541 at 548 per Cairns LJ. The bare assertion of a triable issue without documentary evidence in support is insufficient: Pengurusan Danaharta Nasional Bhd v Miri Salamjaya Sdn Bhd [2004] 4 MLJ 327 (bare assertion of collateral contract). This however would only be true if the collateral contract was said to be in writing, without condescending to details. Otherwise, whether a collateral contract exists would be a question of fact with regard to the surrounding circumstances and factual background; Kuantan Flour Mills Berhad v Wee Tuck Lee Food Industries [2007] 8 MLJ 117 (bare allegation goods not of merchantable quality without particulars not a triable issue). See also [190.6-048] text to note 34. As to collateral contracts see generally [390] CONTRACT (Original Title Scheme). 3 RHC O 14 r 3(1). Cf SCR O 26A r 3(1). As to judgment for the plaintiff see [190.6-050]. 4 The defendant must provide answers on oath which constitute evidence that he has a defence which is fit to be tried: Chen Heng Ping v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363. Once a defendant has shown cause against an application for summary judgment by affidavit or otherwise, the plaintiff has a right of reply. The court stated that the plaintiff is only required to show that he has a prima facie case and to state his belief that there is no defence to the claim, upon which the burden shifts to the defendant to show a triable issue: DCB Bank Bhd v NS Bahtera Sdn Bhd [1999] 1 CLJ 513. 5 The defendant may show cause by a preliminary or technical objection: see note 1 above. Such an objection need not be supported by an affidavit: Bradley v Chamberlyn [1893] 1 QB 439, DC (Eng). In opposing the plaintiff's application, the defendant may also show cause by serving a bona fide defence setting out triable issues (see Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd [1974] 2 MLJ 94 at 98 per Gill CJ; Gissco Sdn Bhd v Blackgold (M) Sdn Bhd [1988] 2 MLJ 397 at 399 per Tan Chiaw Thong J; Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York [1997] 3 MLJ 818, CA), but not if it is a sham defence served early to avoid showing cause by affidavit (see McLardy v Slateum (1890) 24 QBD 504, CA (Eng)). The mere presentation of alternative pleas by the plaintiff does not result in there being triable issues warranting the dismissal of the O 14 application: Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537. 6 RHC O 14 r 4(1) (cf SCR O 26A r 4(1), under which, in the subordinate courts, a defendant may not less than four clear days before the date of hearing show cause by affidavit or otherwise). The normal practice is for the defendant to show cause by affidavit, and except in a clear case, it is rare for the court to allow a defendant to show cause otherwise than by affidavit; see also note 5 above. See also Noh Hyoung Seok v Perwira Affin Bank Bhd [2004] 2 MLJ 203, CA (see [190.6-051] text to note 26). 7 See Wallingford v Mutual Society (1880) 5 App Cas 685 at 704, HL, per Lord Blackburn. A mere general allegation of fraud or conspiracy is insufficient and the party making the allegation is required to condescend to particulars: Ng Ah Ba v Ramanda Sdn Bhd [1996] 1 MLJ 62, CA; see also See Hua Daily News Bhd v Tan Thien Chin [1986] 2 MLJ 107 at 111, SC, per Mohamed Azmi SCJ. If questions of fact are in dispute, the defendant must depose to his own version of the facts in his affidavit: see Han Pit Loh Sdn Bhd v Chun Heng Tin Mine [1976] 2 MLJ 20. A mere assertion in an affidavit does not, ipso facto, provide leave to defend ( Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v Ghazali Bin Ibrahim [1985] 2 MLJ 225, adopting the statement of Ackner LJ in Banque de Paris et des Pays-Bas (Suisse) SA v de Naray and Walters [1984] 1 Lloyd's Rep 21, CA (Eng)) and the court must look at the whole situation and ask itself whether the defendant has satisfied the court that there is a fair or reasonable probability of the defendant having a bona fide defence (Hussein and K H Chong Sdn Bhd v Pengkalan Enterprise Sdn Bhd (unreported, 1 December 1989), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4647)). Where an assertion, denial or dispute raised by the defendant is equivocal, 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 not triable: Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400, SC, followed in Kapital Raya Sdn Bhd v Bloomville Corp Sdn Bhd [1996] 3 MLJ 522, CA. 8 Huo Heng Oil Co (EM) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ 139. The defendant must not merely plead a denial of the debt but must plead any facts which negative its existence or show that the action is unsustainable on other grounds: Chong Chow Fong v Ban Tuck (M) Sdn Bhd [1983] 2 CLJ 25. Denials in a defence do not constitute evidence of a defence which is fit to be tried but are merely challenges to the other side to show proof: Chen Heng Ping v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363, CA; Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537. Further, a defendant should not deny plain and acknowledged facts which it is neither in his interest nor in his power to disprove: Malayan Banking Bhd v Chua Keng Leng (t/a New Fortune Enterprise) [1991] 3 CLJ 2522. 9 Lin Securities (Pte) v Noone & Co Sdn Bhd (Klang Jaya Bahru Development Bhd, Third Party) [1989] 1 MLJ 321. However, see Development & Commercial Bank Bhd v Abdullah Ismail [1989] 1 CLJ 190, wherein it was held that the defendant is not permitted to improve on his statement of defence by raising a new issue for the first time in his affidavit in opposition to the application for summary judgment. See also United Malayan Banking Corp Bhd v Datin Theresah bt

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Abdullah [1995] 1 AMR 304; Pembinaan V-Jaya Sdn Bhd v Binawisma Development Sdn Bhd [1987] 2 CLJ 446. See now Tang Kwor Ham @ Tang Kwor Harm v Lembaga Kumpulan Wang Simpanan Pekerja [2006] 4 AMR 468. 10 RHC O 14 r 4(2) (cf SCR O 26A r 4(2)), applying RHC O 14 r 2(2) (cf SCR O 26A r 2(2)). See also RHC O 41 r 5(1), (2) (cf SCR O 25 r 26(1), (2)) (see [190.7-015]); Re J L Young Manufacturing Co Ltd, Young v J L Young Manufacturing Co Ltd [1900] 2 Ch 753, CA (Eng). Where statements in an affidavit are based on information and belief, they ought not to be looked at all, unless the court can ascertain not only the sources of the information and belief, but also the deponent's statement is corroborated by someone who speaks from his own knowledge: Lori (M) Bhd (Interim Receiver) v Arab-Malaysian Finance Bhd [1999] 3 MLJ 81, FC. 11 Voo Min En v Leong Chung Fatt [1982] 2 MLJ 241, FC. 12 RHC O 14 r 4(4)(a). Cf SCR O 26A r 4(4)(a). See also note 13 below. 13 RHC O 14 r 4(4)(b). Cf SCR O 26A r 4(4)(b). This power is exercised only in exceptional circumstances: see Millard v Baddeley [1884] WN 96; Sullivan v Henderson [1973] 1 All ER 48; [1973] 1 WLR 333. 14 See Davis v Spence (1876) 1 CPD 719 at 721 per Brett LJ; Girvin Grepe (1879) 13 Ch D 174. 15 Ng Hee Thoong v Public Bank Bhd [1995] 1 MLJ 281, CA; and see Alloy Automative Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382, SC; Overseas Investment Pte Ltd v Anthony William O&'Brien [1988] 3 MLJ 332. Only a positive assertion in an affidavit touching upon a material issue requires a reply and there is no need to reply to a bare denial: Ng Lai Tien v Peregrine Finance Ltd [1995] 4 MLJ 7. See also Clara Tai Saw Lan v Kurnia Insurans (M) Bhd [2001] 1 AMR 769, CA.

[190.6-052] Unconditional leave to defend The Order 14 procedure is intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for the mere purpose of delay1. Leave to defend will therefore be given where there is a bona fide triable issue requiring assessment of the credibility of witnesses to be seen and heard by the trial judge2. The defendant does not need to show a complete defence3, but only a fair probability of a bona fide defence4, or that there is a real substantial question to be tried5, or that there is a dispute as to facts6 or law7 which raises a reasonable doubt whether the plaintiff is entitled to judgment. The procedure under Order 14 is not intended to shut out a defendant who can show that there was an issue or question that ought to be tried8 or that for some other reason there ought to be a trial9. Leave to defend will be given where the amount recoverable is clearly subject to a reasonable inquiry or to an account being taken10. Where the defendant raises the defence of set-off sufficient to meet the amount claimed, he will be entitled to leave to defend11. Unconditional leave to defend will be granted when a defendant sets up a bona fide counterclaim arising out of the subject matter of the action and connected with the grounds of defence12. The mere fact that the defendant raises a counterclaim does not entitle him to leave to defend13; it will be disregarded if it amounts to a sham14 or if its bona fides is doubted15 or if it is totally foreign to the plaintiff's action16. On the other hand, if it is a bona fide and plausible counterclaim the amount of which is more than the plaintiff's claim, the court may give judgment to the plaintiff with costs but with a stay of execution pending the trial of the counterclaim or further order17. In an action on a dishonoured bill of exchange or cheque, the plaintiff is entitled to judgment on his claim without a stay of execution pending the trial of a counterclaim for damages for breach of another contract or the commission of a tort, for a bill of exchange is to be treated as cash18 unless there is an arguable case based on total failure of consideration19. In an action for price of goods sold and delivered it is not sufficient for the defendant merely to deny the debt but he must raise facts which negative its existence or which show that the claim is not maintainable

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on other grounds20. In an action for breach of contract, unconditional leave to defend will be given if the court is satisfied that bona fide allegations of recission, modification and variation are raised21. In an action on a guarantee, the guarantor is bound, by virtue of an express clause in the guarantee, to accept a certificate of indebtedness of the plaintiff as conclusive evidence of the debt due to the plaintiff22 unless there is a manifest error in the certificate23. The non-stamping of a guarantee document does not give rise to a triable issue as the court has the power to impound unstamped documents, if produced, and to admit them on payment of the relevant stamp duty or penalty24. Failure by the plaintiff in a recovery action to provide proof of delivery of the certificate of insurance by the insurer25will give rise to a triable issue26. Where unconditional leave to defend has been granted, it is inappropriate that the defendant be ordered to make an interim payment27. 1 Jones v Stone [1894] AC 122, PC, referred to in Kim Seng Hotel and Coffee Shop v Chuah Teong Buan [1971] 1 MLJ 233, FC. 2 See Kim Seng Hotel and Coffee Shop v Chuah Teong Buan [1971] 1 MLJ 233, FC. 3 Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400, SC (a triable issue must be shown). See also Runnacles v Mesquita (1876) 1 QBD 416. 4 Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v Ghazali Bin Ibrahim [1985] 2 MLJ 225; Hussein and K H Chong Sdn Bhd v Pengkalan Enterprise Sdn Bhd (unreported, 1 December 1989), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4647). 5 Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd [1987] 2 MLJ 332, SC, applying Codd v Delap (1905) 92 LT 510, HL. 6 See Amos W Dawe v Moscow Narodny Bank Ltd [1978] 1 MLJ 55, [1975-1977] SLR 266, CA (Sing); Chiew Soon @ Chiew Chun Soon v Tay Tai Aun [1990] 1 CLJ 469. 7 See Chong Ngam Sen v Yeoh Bah Chee [1981] 1 MLJ 161, FC; Pertama Malaysia Finance Bhd v Konrep Services Sdn Bhd [1990] 1 CLJ 127; Brightside Mechanical and Electrical Services Group Ltd v Hyundai Engineering and Construction Co Ltd [1988] 1 MLJ 500, [1988] SLR 186. 8 The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court: Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400, SC. 9 RHC O 14 r 3(1) (cf SCR O 26A r 3(1)); and see [190.6-051] note 2. 10 Warner v Bowlby (1892) 9 TLR 13; Lynde v Waithman [1895] 2 QB 180, CA (Eng); Wells v Allott [1904] 2 KB 842, CA (Eng); Contract Discount Corp Ltd v Furlong [1948] 1 All ER 274, CA (Eng). See also Lloyds Bank plc v Ellis-Fewster [1983] 2 All ER 424, [1983] 1 WLR 559, CA (Eng). In such a case and if the circumstances warrant it, the court may, on application by the plaintiff, make an order for an interim payment: see RHC O 29 r 12(a); [190.5-043]. 11 See Warner v Bowlby (1892) 9 TLR 13; Ford v Harvey (1893) 9 TLR 328; PT International Nickel Indonesia v General Trading Corp (M) Sdn Bhd [1978] 1 MLJ 1, [1975-1977] SLR 226, CA (Eng). To constitute a set-off, the sum of money meant as a cross-claim must from its nature and quality be such that it is proper to be dealt with as a defence to the plaintiff's claim and not as a separate cause or matter: Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157, FC. As to the distinction between a set-off and a counterclaim see Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157, FC; Shanghai Hall Ltd v Town House Hotel Ltd [1967] 1 MLJ 223, FC; and [190.4-009]. A defendant will be given unconditional leave to defend if he alleges facts which, if proved, would establish a good equitable set-off: Avery-Laurence (S&'pore) Pte Ltd v Electrical Enterprises [1972] 2 MLJ 182, [1972-1974] SLR 125, CA (Sing). The points of set-off raised by the defendant should be examined closely to ensure that the true purpose is not to cause delay to the plaintiff: Hua Khian Ceramics Tiles Supplies Pte Ltd v Torie Construction Pte Ltd [1992] 1 SLR 884. Where the counterclaim raised by the defendant amounts to an equitable set-off, the court should deal with the claim and counterclaim as one: Shanghai Hall Ltd v Town House Hotel Ltd (above); Baylis Baxter Ltd v Sabath [1958] 2 All ER 209, [1958] 1 WLR 529. The issue whether the defence of set-off or counterclaim can be raised in answer to a claim based on interim certificates in a building contract depends in each case upon the particular wording of the contract: Pembenaan Leow Tuck Chui & Sons Sdn Bhd v Dr Leela&'s Medical Centre Sdn Bhd [1995] 2 MLJ 57, SC. As to set off and counterclaims generally see [190.4-001] and following.

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12 Société des Étains De Bayas Tudjuh v Woh Heng Mining Kongsi [1978] 2 MLJ 267, following Court v Sheen (1891) 7 TLR 556. See also Astim Perkhidmatan Pengangkutan Sdn Bhd v Utaraya Trading Sdn Bhd [1978] 2 MLJ 225; H Abdul Shukoor v E Mohamed Kassim [1927] SSLR 67. However, the fact that a defendant has raised a set-off or counterclaim far in excess of the plaintiff's claim is in itself insufficient for the court to allow unconditional leave to defend: Bovis (M) Sdn Bhd v Samaworld (M) Sdn Bhd [1998] 1 AMR 582. 13 Anglo-Italian Bank v Wells , Anglo-Italian Bank v Davies (1878) 38 LT 197, CA (Eng); Rotherham v Priest (1879) 49 LJQB 104, DC (Eng). See also note 12 above. 14 United Manufacturers Sdn Bhd (In Receivership) v Guru Timber Sdn Bhd [1986] 1 MLJ 168. 15 Koshida Trading (S) Pte Ltd v Limco Products Manufacturing Pte Ltd [1990] 2 MLJ 341, [1990] SLR 294. 16 Yeo Hiap Seng v Australian Food Corp Pte Ltd [1991] 3 MLJ 144, [1991] SLR 567; Anglo-Italian Bank, Anglo-Italian Bank v Davies (1878) 38 LT 197, CA (Eng). 17 See [190.6-078]. 18 James Lamont & Co Ltd v Hyland Ltd [1950] 1 KB 585 at 588, sub nom James Lamont & Co Ltd v Hyland Ltd (No 2) [1950] 1 All ER 929, CA (Eng); Brown, Shipley & Co Ltd v Alicia Hosiery Ltd [1966] 1 Lloyd's Rep 668, CA (Eng); Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 2 All ER 463, [1977] 1 WLR 713, HL; Yeo Hiap Seng v Australian Food Corp Pte Ltd [1991] 3 MLJ 144, [1991] SLR 567. Confirmed letters of credit are also treated as cash: see Power Curber International Ltd v National Bank of Kuwait SAK [1981] 3 All ER 607, [1981] 1 WLR 1233, CA (Eng). 19 Fielding and Platt Ltd v Najjar [1969] 2 All ER 150 at 152, [1969] 1 WLR 357 at 361, CA (Eng), per Lord Denning MR. See also Marina Sports Ltd v Alliance Richfield Pte Ltd [1990] 3 MLJ 5, [1990] SLR 445. 20 Huo Heng Oil Co (EM) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ 139; see also [190.6-051] text and note 8. The defendant is not allowed to bring oral evidence to contradict the terms of the contract and to show that the goods were ordered for a third party especially where the sales invoice and delivery note show quite clearly that the goods were ordered by the defendant: Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124, FC. See also Y K Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian [1989] 3 MLJ 490; Team 108 Technical Services v Hujong Enterprises (Pte) Ltd [1987] 1 MLJ 272, [1986] SLR 149. 21 See General Trading Corp (M) Sdn Bhd v Overseas Lumber Bhd [1977] 1 MLJ 108, FC. 22 Citibank NA v Ooi Boon Leong [1981] 1 MLJ 282, FC (on appeal Ooi Boon Leong v Citibank NA [1984] 1 MLJ 222, PC); Chen Heng Ping v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363, CA; Development & Commercial Bank Bhd v Datuk Krishna Kumar Sharma [1988] 2 CLJ 453; Chartered Bank v Cheviot Industries (M) Sdn Bhd [1988] 2 CLJ 859; Development & Commercial Bank Bhd v Abdullah Ismail [1989] 1 CLJ 190. See also Malayan Banking Bhd v Edaran Pit Stop Bhd [2000] 5 MLJ 325. 23 D & C Nomura Merchant Bankers Bhd v Gunung Kuari Sdn Bhd [1990] 2 CLJ 58; Oriental Bank Bhd v Jaafar Sidek bin Mohd Salam [1990] 2 CLJ 72; Bank of Commerce (M) Bhd v Tan Boon Soon [1995] 1 AMR 156. 24 American Express International Banking Corp v Tan Loon Swan [1992] 1 MLJ 727, SC. See also Elders Keep Ltd (formerly known as Keep Brothers Ltd) v Luen Mei Plastic Industries Sdn Bhd [1989] 2 CLJ 1005. Further, there is no provision of law which forbids an undischarged bankrupt from witnessing the signature of the guarantor in the guarantee document: Lim Wah Siang v Perwira Affin Bank Bhd [1997] 1 MLJ 374, CA. 25 Ie as required by the Road Transport Act 1987 (Act 333) s 96(1). 26 Capital Insurance Bhd v Kassim bin Mohd Ali [1996] 3 CLJ 19, CA. 27 British and Commonwealth Holdings plc v Quadrex Holdings Inc [1989] QB 842, [1989] 3 All ER 492, CA (Eng).

[190.6-053] Conditional leave to defend The court may give a defendant against whom an application for summary judgment is made under Order 14 leave to defend the action with respect to the claim, or part of the claim, to which the application relates either unconditionally or conditionally, that is, on such terms as to giving security or time or mode of trial or otherwise as the court thinks fit1. Conditional leave to defend will be granted where the court forms the view, on the material before it, that

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the defence set up is a sham defence2, is shadowy3, or that there is little or no substance in it4 or that there is something suspicious in the defendant's mode of presenting his case5, or that there is doubt as to the bona fides of the defence case6 or the court is very nearly prepared to give judgment to the plaintiff7. However, if there is no sign of bad faith nor anything to show that the defence is a sham nor any suspicious circumstances as to the mode of presenting the case, leave to defend should not be conditional8, nor should it be conditional if there exists a material issue which should be decided at a full trial9. The usual form of conditional leave to defend requires the defendant to pay the whole or part of the claim into court10 normally within a specified period, failing which the plaintiff will be entitled to sign final judgment for that amount11. Alternatively, the court may order the defendant to furnish as security a bank guarantee12 or order the payment of the amount in dispute into a joint account held in the names of the parties' solicitors13 or make an order for an interim payment14. Further, the court may order the defendant to deliver possession of equipment which forms the subject matter of the action to the plaintiff as security pending the trial of the action15. 1 RHC O 14 r 4(3). Cf SCR O 26A r 4(3). A judge who grants leave to defend upon terms is not at all precluded from thereafter hearing the case at the trial: Law Mun v Chua Lai Seng [1984] 2 MLJ 328. 2 Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd [1974] 2 MLJ 94, FC; Fieldrank Ltd v Stein [1961] 3 All ER 681n, [1961] 1 WLR 1287, CA (Eng). 3 See Ooi Boon Teong (t/a Mitsu-Da Construction) v MBf Construction Sdn Bhd [1994] 3 MLJ 413; International Bank of Singapore Ltd v Bader [1989] 1 MLJ 214, [1988] SLR 823; Hong Leong Finance Ltd v Ng Kweng Chew (unreported, 25 August 1988), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4471; Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA (Eng). 4 Ionian Bank Ltd v Couvreur [1969] 2 All ER 651, [1969] 1 WLR 781, CA (Eng). 5 Cho Chin Huat v Lee Boo Hock [1970] 1 MLJ 112, FC; Lloyds Banking Co v Ogle (1876) 1 ExD 262. 6 Foong Weng Tat v Vu Siew Chin [1974] 2 MLJ 20, FC. See also QBE Supreme Insurance Bhd v Syarikat Chemas Pemborong Sdn Bhd [1986] 1 MLJ 56; Takian Construction Sdn Bhd v Asplen (Far East) Sdn Bhd (unreported, 8 August 1989), 2(2) Mallal's Digest (4th Edn, 1998 reissue) para 4474. 7 Wing v Thurlow (1893) 10 TLR 53, DC (Eng); affd 10 TLR 151, CA (Eng). 8 Jacobs v Booth&'s Distillery Co (1901) 85 LT 262, HL; Fieldrank Ltd v Stein [1961] 3 All ER 681n, [1961] 1 WLR 1287, CA (Eng). 9 See MKSK Trading Sdn Bhd v Syarikat Mashor Kemajuan Sdn Bhd [1989] 1 CLJ 1087. 10 See eg Ted Bates (M) Sdn Bhd v Balbir Singh Jholl [1979] 2 MLJ 257, FC. Where the defendant seeks to avoid or limit such payment by reason of his own impecuniosity, the onus is on him to put sufficient and proper evidence before the court: M V Yorke Motors (a firm) v Edwards [1982] 1 All ER 1024, [1982] 1 WLR 444, HL. The defendant may appropriate the amount paid into court by way of conditional leave to defend as a payment into court in satisfaction (see RHC O 22 r 8(2)). 11 See Alliance (M) Engineering Co Sdn Bhd v San Development Sdn Bhd [1974] 2 MLJ 94, FC; Yeng Hing Enterprise Sdn Bhd v Datuk Dr Ong Poh Kah [1988] 2 MLJ 60, SC. 12 See Coronation Electronics Ltd v Lalchand Mahtani [1987] 1 MLJ 190, [1986] SLR 307; Dimpex Gems (Singapore) Pte Ltd v Yusoof Diamonds Pte Ltd [1988] 1 MLJ 87, [1987] SLR 350; Marina Sports Ltd v Alliance Richfield Pte Ltd [1990] 3 MLJ 5, [1990] SLR 445. 13 See Halvanon Insurance Co Ltd v Central Reinsurance Corp [1988] 3 All ER 857. 14 British and Commonwealth Holdings plc v Quadrex Holdings Inc [1989] QB 842, [1989] 3 All ER 492, CA (Eng) (order for interim payment). If such an order is wrongly made, the court will order the money to be repaid to the defendant ( Warner v Bowlby (1892) 9 TLR 13), and so also, if the order is reversed ( Yorkshire Banking Co Ltd v Beatson and Mycock (2) (1879) 4 CPD 213). 15 See Sungei Way Leasing Sdn Bhd v Sena Land Development Sdn Bhd [1989] 3 MLJ 37.

[190.6-054]

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Directions for trial Where leave to defend is given, whether unconditionally or conditionally1, or there has been a stay of execution pending the trial of any counterclaim2, the court may give directions as to the further conduct of the action, as under a summons for directions3. In particular, and if the parties consent, the court may direct trial by a registrar4. The court will give directions as to the time for service of the defence, and as to discovery and production of documents and other necessary directions including direction as to the mode of trial and as to setting down the action for trial. 1 RHC O 14 r 6(1)(a); SCR O 26A r 6(a). As to unconditional leave to defend see [190.6-052], and as to conditional leave to defend see [190.6-053]. 2 RHC O 14 r 6(1)(b); SCR O 26A r 6(b). As to such stay see RHC O 14 r 3(2); SCR O 26A r 3(2); and [190.6-078]. 3 RHC O 14 r 6(1); SCR O 26A r 6. Thus, the application for summary judgment becomes a notional summons for directions when such order is made, and RHC O 25 rr 2-7 (see [190.3-420] and following, but note that the operation of RHC O 25 has been suspended (see [190.3-417]), but may still be operative in view of the High Court decision in Faridah Ariffin v Dr Lee Hock Bee [2006] 1 CLJ 660 (see [190.1-036] note 7); thus reference should be made to both RHC O 25 and O 34 (see [190.8-014])), must be applied to this situation: Law Mun v Chua Lai Seng [1984] 2 MLJ 328. Cf Hongkong Bank (M) Bhd v Tan Tock Sing [1998] 6 MLJ 89 (the application for summary judgment was dismissed by the senior assistant registrar and no directions were given; on appeal, the High Court (Augustine Paul JC) held that where the application is dismissed, the court has no power to give directions since the parties are restored to their original position; the applicant for summary judgment whose application has been dismissed must apply for a summons for directions). 4 RHC O 14 r 6(2). As to trial by a registrar see RHC O 36.

[190.6-055] Dismissal of summons If the plaintiff applies for summary judgment under Order 14 where the case is not within the Order or if it appears to the court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to the court's discretionary powers as to costs1, the court may dismiss the application with costs, and may require the costs to be paid by him forthwith2. If a plaintiff uses the machinery of Order 14, not with any reasonable prospect of success, but with the ulterior purpose of compelling or procuring the defendant to disclose on oath the nature of the defence, he will be guilty of abuse of process, and the summons will be dismissed with costs3. 1 See RHC O 59 r 2(2) (cf SCR O 48 r 2); Courts of Judicature Act 1964 (Act 91) Schedule para 15, which confers on the High Court the power to award costs. 2 RHC O 14 r 7(1). Cf SCR O 26A r 7(1). This rule gives effect to the dictum of Lord Goddard CJ in , as reported in Pocock v ADAC Ltd [1952] 1 TLR 29 at 34. RHC O 14 r 7(1) (cf SCR O 26A r 7(1)) is expressly stated to be subject to RHC O 59 r 4(1) (cf SCR O 48 r 4(1)). When such costs are expressly ordered to be paid forthwith, they may be taxed immediately and payment sought thereafter: Syarikat Kerjasama Nesa Pelbagai Bhd v V Sothirasan [1995] 2 AMR 1449. Normally where the proceedings are purely interlocutory, the general rule is that costs of the proceedings should be settled at the end of the action: Chow Yong Hong v Chow See Lim [1959] MLJ 23; Ko Ko Ma Pony Horse Centre v Rasa Sayang Beach Hotels (Pg) Bhd [1990] 1 MLJ 304. 3 Symon & Co v Palmer&'s Stores (1903) Ltd [1912] 1 KB 259 at 264, CA (Eng), per Vaughan Williams LJ, and at 267 per Buckley LJ.

[190.6-056] Summary judgment on counterclaim Where a defendant to an action begun by writ has served a counterclaim on the plaintiff, then, save in certain cases1, the defendant may apply to the court for judgment on the ground that the plaintiff has no

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defence to the counterclaim, or to the part of it on which the defendant applies for judgment2. The application is made by summons supported by affidavit, and the plaintiff may apply for leave to defend, as in the case of an application by a plaintiff for summary judgment in an action3. Where on such an application a defendant obtains judgment on a claim or part of a claim made in the counterclaim against the plaintiff, he may proceed with the counterclaim as respects any other claim or as respects the remainder of the claim or against any other defendant to the counterclaim4. The court has the same power to dismiss the defendant's application where it is improperly made as it has to dismiss a plaintiff's claim for summary judgment5. A defendant can not obtain summary judgment against a co-defendant against whom he had, or could have, issued a counterclaim6. 1 This procedure is not available if the counterclaim contains any such claim as is referred to in RHC O 14 r 1(2) (cf SCR O 26A r 1(2)) (see [190.6-048] heads (1), (2)): RHC O 14 r 5(3) (cf SCR O 26A r 5(3)). 2 RHC O 14 r 5(1) (cf SCR O 26A r 5(1)). See Ang Swee Chuan v Lim Teng Huan [1988] 3 MLJ 471 (Brunei); Invar Realty Pte Ltd v Kenzo Tange Urtec Inc [1990] 3 MLJ 388 (Sing); Express Newspapers plc v News (UK) Ltd [1990] 3 All ER 376, [1990] 1 WLR 1320. Where a defendant has a claim against the plaintiff, the defendant is not compelled to begin a separate action but may file a counterclaim in the same suit. Having done so, on the grounds that the plaintiff has no defence to the claim, he may seek summary judgment on the counterclaim under RHC O 14 r 5(1): Ng Hong Chai v Teok Ah Kow [2000] 5 CLJ 175. 3 Thus RHC O 14 rr 2-4 (cf SCR O 26A rr 2-4)) (see [190.6-049] and following) apply as if (1) references to the plaintiff and defendant were reversed; (2) RHC O 14 r 3(2) (cf SCR O 26A r 3(2)) (see [190.6-050]) referred simply to the trial and not to the trial of any counterclaim; (3) RHC O 14 r 4(3) (cf SCR O 26A r 4(3)) (see [190.6-053]) referred to leave to defend the counterclaim and not leave to defend the action: RHC O 14 r 5(2) (cf SCR O 26A r 5(2)). 4 RHC O 14 r 8(2). Cf SCR O 26A r 8(2). 5 Thus RHC O 14 r 7(1) (cf SCR O 26A r 7(1)) (see [190.6-055]) applies with the necessary modifications: RHC O 14 r 7(2) (cf SCR O 26A r 7(2)). 6 C E Heath plc v Ceram Holding Co [1988] 1 All ER 203, [1988] 1 WLR 1219, CA (Eng).

[190.6-057] Appeals in Order 14 cases All applications for summary judgment under Order 14 are heard in the first instance by a registrar1, and an appeal thereon lies to a judge in chambers2. A further appeal lies as of right to the Court of Appeal where the amount or value of the subject matter of the claim (exclusive of interest) is more than RM 250,000, and the leave of the Court of Appeal is required for claims below that amount or value3. An appeal which is not properly brought before the appellate court will be struck out4. The approach to be taken by the appellate court in an Order 14 appeal is not to regard the appeal as reviewing the exercise of the judge's discretion but to treat it as a rehearing5. When a triable issue arises as a matter of evidence and fact, it is most unlikely that the appellate court would interfere with the discretion of the judge below6. However, the appellate court will be more ready to interfere where the appeal raises a question of law7. 1 See Practice Direction No 1 of 1995. 2 RHC O 56 r 1(1). For comparison purposes, see the corresponding provisions of SCR O 24 r 15. As to appeals from the registrar see also [190.11-001]. The right of appeal extends to both plaintiff and defendant: see Shorga Sdn Bhd v Amanah Raya Bhd (as administrator of the Estate of Raja Nong Chik bin Raja Ishak, deceased) [2004] 1 MLJ 143 (defendant raised preliminary objection to the plaintiff's appeal against the registrar's dismissal of the plaintiff's application for summary judgment on the grounds that the decision or order of the registrar had no element of 'finality' and so was not appealable; held, dismissing the preliminary objection, that clear and unequivocal words must be employed in order to deny the right of an appeal from a particular decision handed down by an adjudicating officer; there were no clear words in the RHC denying

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the plaintiff the right of appeal). 3 Courts of Judicature Act 1964 (Act 91) s 68(1). The Court of Appeal in Monohary Teresa v Tan Ah Lek [1995] 3 MLJ 365 opined that this section is unsatisfactory because it is not precise and that it ought to be reworded to provide that no appeal should be brought without leave where the judgment appealed against is for the payment of a monetary sum which is less than RM 250,000. The phrase 'amount or value of the subject matter of the claim' in s 68(1) refers to the amount of the claim filed in the civil suit and not to the judgment amount appealed against: Yai Yen Han v Teng Ah Kok and Sim Huat Sdn Bhd [1997] 1 MLJ 136, FC. The words 'exclusive of interest' in s 68(1) refer to the amount of the interest which the court awards upon its judgment on the date of final order, and not to interest which has accrued up to the date of judgment: Phung Hoe Seng v United Malayan Banking Corp Bhd [1995] 3 MLJ 487, CA. Leave must be obtained from the Court of Appeal, and the Federal Court has no power to grant such leave: Auto Dunia Sdn Bhd v Wong Sai Fatt [1995] 2 MLJ 549, FC. An application for leave must be made within the prescribed time failing which a formal application for extension of time must be made setting forth the reasons for the delay and the merits of the appeal: Thong Kim Chea v Thong Seng and Co Sdn Bhd [1995] 3 MLJ 481, CA. See also Yap Ban Tick v Standard Chartered Bank [1995] 3 MLJ 401, CA. The circumstances in which leave to appeal will be granted would include cases where (1) the applicant is able to demonstrate a prima facie case of error; or (2) the question is one of general principle decided for the first time; or (3) a question of importance arises upon which further argument and a decision of the superior court would be of public advantage: Pang Hon Chin v Nahar Singh [1986] 2 MLJ 145. 4 Hamzah bin Abdul Majid v Sungei Way Leasing Sdn Bhd [1986] 1 MLJ 471, SC. 5 United Malayan Banking Corp Bhd v Pembinaan KSY Sdn Bhd [1993] 3 MLJ 45, SC; Koh Siak Poo v Perkayuan OKS Sdn Bhd [1989] 3 MLJ 164, SC; Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, SC; National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300, FC; Niaga Tani Sdn Bhd v Samarez Holdings Bhd [2005] 1 MLJ 239, where it was observed that the court hearing the appeal (in this case, it was an appeal to the judge in chambers) has to consider the affidavit evidence filed in support and reply to determine whether or not there is a triable issue. Cf United Malayan Banking Corp Bhd v Tan Kay Hock [1997] 3 MLJ 813, CA (in comparison to appeals under RHC O 14, appeals under RHC O 18 r 19 require review of the judge's discretion). 6 Lloyds Bank Ltd v Ellis-Fewster [1983] 2 All ER 424, [1983] 1 WLR 559, CA (Eng), followed in United Malayan Banking Corp Bhd v Pembinaan KSY Sdn Bhd [1993] 3 MLJ 45, SC. See also Niaga Tani Sdn Bhd v Samarez Holdings Bhd [2005] 1 MLJ 239 (cited in note 5 above). The appellate court will not interfere with the decision of a judge who refuses to make an order for summary judgment in a case for money lent and interest thereon on the ground that there are triable issues unless special circumstances are shown: United Malayan Banking Corp Ltd v Ipoh Mining Co (M) Ltd [1964] MLJ 69, FC; Ho Chooi Soon v Indian Overseas Bank Ltd [1961] MLJ 86. 7 European Asian Bank AG v Punjab and Sind Bank (No 2) [1983] 2 All ER 508, [1983] 1 WLR 642, CA (Eng); followed in Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, SC. See also Jaya Kumar v Subramaniam Mohana Krishnan [1987] 2 MLJ 432. See also [190.6-048] note 22.