Chapter 8 - Summary Judgment, O.14 Flashcards

Question

PROCEDURES TO APPLY FOR SJ Scope & example of defence

Answer 1

Lin Securities v Noone & Co Sdn Bhd: - In objecting the summary judgment application, D is entitled to show over and above what has been pleaded in his statement of defence; - D may show that he has other defences than those pleaded.

Answer 2

1) Meaning of counterclaim - Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd: - a cross-claim which a defendant has against a plaintiff but in respect of which the defendant can bring a separate action against the plaintiff if he wishes to do so. 2) Meaning of plausible counterclaim - Sheppards & Co. v Wilkinson & Jarvis: The test for plausible counterclaim is: - Firstly, whether or not it is reasonably possible for the defendant to succeed if the counterclaim is brought to trial. - Secondly, whether the counter-claim is frivolous or not. 3) Effect of counterclaim - Societe Des Estains De Bayas Tudjuh v Woh Heng Mining Kongsi: - If the defendant sets up a plausible counterclaim for an amount not less than the plaintiff's claim, the order should not be for leave to defend but should be for judgment for the plaintiff on the claim with a stay of execution until the trial of the counterclaim. 4) Example & application - Ronald Quay Sdn Bhd v Maheswary Sdn Bhd: - Referring to Societe des Estains, court held that stay of execution pending the trial of the defendant's counterclaim should be allowed provided that the counterclaim set out by the defend.

Answer 3

1) Principle - Miles v Bull: - When D cannot pinpoint to specific issue but the court is satisfied that there are circumstances that ought to be investigated. 2) Example: Concentrate Engineering Pte Ltd v UMBC Bhd: - The audacity with which the fraud was carried out and the absence of an explanation by the directors of the plaintiff constitute 'some other reason'. Ngai Heng Book Binder Pte Ltd v Syntax Computer Pte Ltd: - Where liability is not denied but the specific sum is disputed, summary judgment may not be entered for the sum claimed or part thereof, and that leave to defend should have been given. 3) Recent example - Cense Media Sdn Bhd v Permata Bumimas Properties Sdn Bhd (HC, 2019): - "some other reasons" & the principle stated in Miles v Bull are wide enough to cover the circumstances of the present case.

Answer 4

1) Syn Lee & Co Ltd v Bank of China: - The court should not conduct a trial based on affidavit evidence. - Court has to decide on affidavit evidence whether there is a moral improbability of a very high degree that the defendant can possibly succeed. 2) Bank Negara v Mohd Ismail & Ors: - Whether the issues raised are triable or otherwise is essentially a question of facts as disclosed in the affidavit evidence.

Answer 5

1) Leave to defend - the law & scope 2) Unconditional leave to defend 3) Conditional leave to defend 4) Judgment or orders for P - interlocutory judgment with damages to be assessed 5) Judgment or orders for P - Injunctive relief 6) Judgment or orders for P - Stay of execution 7) Judgment or orders for P - Other orders

Answer 6

O.14, r.4(3) 1) When: - D is given leave to defend if he manages to raise a bona fide triable issue or for some other reasons. 2) Scope - Bank Negara v Mohd Ismail: A defendant ought to have a leave to defend where he shows that: - FAIR CASE: he has a fair case for defence; or - REASONABLE GROUNDS: reasonable grounds for setting up a defence; or - FAIR PROBABILITY: a fair probability that he has a bona fide defence.

Answer 7

O.14, r.4(3) 1) Scope - Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd: - When the judge has decided that the defendant has raised a bona fide triable issue, the question which he had then to consider was whether he should grant the defendants unconditional or conditional leave to defend; - Court should look at whether there is considerable suspicion as to its bona fides.

Answer 8

1) Test for conditional leave to defend - Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd: - If there is a considerable suspicion, the judge should grant the defendants leave to defend conditional upon their paying into court the amount of the plaintiffs' claim. 2) Test for conditional leave to defend - Fieldrank Ltd v Stein: - When the judge is left with a real doubt about the defendant's good faith; - In protecting the P & when there is not grave hardship on the defendant, court may order D to pay money into court as a condition before giving leave to defend. 3) The condition - MV Yorke Motors (a firm) v Edwards: - The sum imposed as a condition must not be the one that D would never be able to pay. - If a D is in hardship for not being able to pay for the sum, the onus is on him to put sufficient & proper evidence & make a full and frank disclosure before the Court. - D cannot complain because a financial condition is difficult for him to fulfil - rather, D can only complain if the financial condition imposed is impossible for him to fulfil (i.e. the amount is exorbitant) and that impossibility was known or should have been known to the Court by reason of the evidence placed before it. 4) Whether the same judge can hear the main action - Law Mun & Ors v Chua Lai Seng: - Ref. R v Camborne Justices & Brassington v Brassington: The test is whether a real likelihood of bias has been shown. - A mere apprehension of bias is not enough. - A feeling of greater happiness with another judge must be even less so.

Answer 9

1) Datuk Mohd Ali Hj Abdul Majid v Public Bank: - a claimant claiming damages must prove that he has suffered the damage. - The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed. 2) Akitek Timur v Tai Kian Cheong (FC, 2014): - The High Court ordered, pursuant to O.14, r.3, that summary judgment be entered against D with damages to be assessed & the Federal Court affirmed the order.

Answer 10

Binariang Communications Sdn Bhd v I&P Inderawasih Jaya Sdn Bhd (CA): - Injunctive relief could be obtained in an O.14 application.

Answer 11

Societe Des Estains De Bayas Tudjuh v Woh Heng Mining Kongsi: - when D raised a plausible counterclaim for amount not less than P’s claim.

Answer 12

- Dismissal with costs; - Adjournment and leave to amend or file fresh affidavit but P to  pay D costs thrown away; - Unconditional leave to defend and costs in cause; - Leave to defend on payment into court of whole or part of claim  in x days to abide event with costs in cause; in default, final  judgment and costs; - Judgment for P with costs and execution stayed until trial of  counterclaim; - Judgment for P with costs. - Declaratory relief.

Answer 13

1) Whether issue of construction of document is appropriate under O.14; 2) Whether bank is entitled for SJ; 3) Whether issue of interpretation of statute is appropriate under O.14; 4) Whether court can determine question of law under O.14

Answer 14

1) Principle - Esso Standard Malaya v Southern Cross Airways: - If one simply has a short matter of construction with a few documents, the court, on summary application, should decide what in its judgment is the true construction. - There should be no reason to go formally to trial where no further facts could emerge which would throw any light upon the letters that have to be construed. 2) Application - Fadzil v University Teknologi Malaysia: - If a point taken is quite obviously an unarguable point, and the court is satisfied that it is really unarguable, the court has precisely the same duty under Order 14 as it has in any other case, i.e. to apply the rule. - Court applies principle in Esso Standard & held that the function of the court in the present case is just to ascertain the intention of Parliament from the words used in the statues and nothing more. - Therefore, O.14 is appropriate since no useful purpose would then be served to go formally to trial.

Answer 15

Lee Wah Bank v Joseph Eu: - Bank is entitled for summary judgment provided that the matter of substance can be decided once & for all without going to trial.

Answer 16

Fadzil v Universiti Teknologi Malaysia: - Court applies principle in Esso Standard & held that the function of the court in the present case is just to ascertain the intention of Parliament from the words used in the statues and nothing more. - Therefore, O.14 is appropriate since no useful purpose would then be served to go formally to trial.

Answer 17

1) Whether appropriate - European Asian Bank v Punjab & Sind Bank (CA, 1983): - It will not hesitate, in an appropriate case, to decide questions of law under Order 14; - This is so even if the question of law is at first blush of some complexity and therefore takes 'a little longer to understand’. - However, if the court cannot decide it by way of O.14, it will go for trial and the argument will be rehearsed all over again before a judge, with the possibility of yet another appeal. cf. Eushun Properties Sdn Bhd v MBF Finance Bhd: - Court held that when an issue of law has been raised, the issue becomes triable & a full trial ought to be set down. 2) Duty of court - Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd (1987): - the court hearing an O.14 application should work within the framework of O.14 and not embark on an exercise under O.33, r.2. - Where the issue raised is solely a question of law pure and simple without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O.14 as in any other cases and decide on the question of law. - This is so even if the issue of law raised is a difficult one.

Answer 18

1) Dismissal 2) Setting-aside 3) Appeals

Answer 19

Diamond Peak Sdn Bhd v Tweedie: - In an O.14 application, court has no power to dismiss P’s claim. - OTF, P proceeds by way of Order 14 against D to enforce a contract. - At the hearing, the court takes the view that there was no concluded contract. - It was held that court has no power in an application for summary judgment to dismiss the action.

Answer 20

1) The law: - O.14, r.11 2) Scope - Tetracon Engineering Sdn Bhd v Manikan Sokan: - O. 14, r. 11 ROC is clear & it merely states "any judgment ...", and did not specify the nature or type of judgment made. - The provision therefore makes no distinction between a judgment obtained after hearing the merits and a judgment obtained without hearing the merits. - What r. 11 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 pursuant to this rule. 3) Procedures to set-aside:

Answer 21

1) The law: O.56 2) Absence of D at appeal hearing - Asia Commercial Finance (M) Bhd v Pasadena Properties Development: - The Court will only allow reinstatement if the appeal was struck out; - Alternatively, the parties can appeal against the whole decision.

Answer 22

1) National Foreign Trade v Kayu Raya: - where a Judge has decided there is a triable issue on a question of fact, the appellate court would be unlikely to interfere. - h/ever, if appellate court l differed from the Judge on issues of law, the appellate should substitute its own view for that of the Judge and give judgment for the plaintiffs under O.14, r.3. - In practice, appellate court will simply approach an appeal of this kind as a rehearing. 2) United Malayan Banking Corporation Bhd v Pembinaan Ksy Sdn Bhd: - If the trial judge has dismissed the application & decided based on the evidence that there is a triable issue on a question of fact, appellate court will be unlikely to interfere with the decision & hold that there is no triable issue and thus allow P to enter summary judgment against D. - i.e. O.14 application > trial judge dismissed on the ground that there is a triable issue on fact or evidence > P & D need to go to trial > P appealed to enter O.14 against D for summary proceeding > appellate court will unlikely to interfere > appeal dismiss > P&D need to go to trial; - However, if the appeal raises a question of law, this court may be more ready to interfere. - i.e. O.14 application > trial judge dismissed on the ground that there is a triable issue on law > P & D need to go to trial > P appealed to enter O.14 against D for summary proceeding > appellate court will interfere > appeal may be allowed > P& D do not need to go to trial if appeal is allowed.

Chapter 8 - Summary Judgment, O.14 Flashcards

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