Chapter 9 - Summary Judgment for SP, O.81

Question 1

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE

Overview

Answer 1

1) The law & scope;
2) Principles of SJ for SP
3) The grounds to enter SJ for SP
4) Test to grant SJ for SP
5) Procedures to apply for SJ for SP
6) Opposing SJ for SP
7) Examples of granting SJ for SP

Question 2

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE

The law & scope

Answer 2

1) The law:
- O.81
2) Scope - Mawar Awal (M) Sdn Bhd v Kepong Management Sdn Bhd:
i) Applicability:
- O.81 applies to any action begun by writ indorsed with a claim.
ii) Procedures & procedural objective:

• It provides for a speedy mechanism for obtaining summary judgment without proceeding to a trial.
• It may be filed notwithstanding the fact that D has not entered an appearance.

iii) Remedy & judgment under O.81:

• the remedy is for specific performance is enshrined in the SRA 1950 and it is entirely discretionary.
• The court is empowered after hearing an O. 81 application to give judgment to the plaintiff;

iv) Circumstances where it applies:

• action for SP for the sale and purchase of a piece of land where there is no defence to the action at all.
• action to enforce an agreement, whether in writing or not, for the sale and purchase of a property.
  action for SP of the delivery of strata title.

Question 3

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE

Principles of SJ for SP

Answer 3

1) Woolly Development Sdn Bhd v Mikien Sdn Bhd:
- The principles in O.14 also applies to O.81.
2) Principles - National Foreign Trade Company v Kayu Raya Sdn Bhd:

• P establish a case, prima facie entitled to a judgment.
• Burden then shifts to D to prove bona fide defence, triable issue.

Question 4

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE

The grounds to enter SJ for SP

Answer 4

O.81, r.1:

• SP of an agreement for sale and exchange of property;
• Rescission for an agreement;
• Forfeiture or return of deposit under the agreement.

Question 5

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE

Test to grant SJ for SP

Answer 5

1) Mawar Awal (M) Sdn Bhd v Kepong Management Sdn Bhd:

Ref. Bigg v Boyd Gibbins Ltd:

• an order for summary judgment under O. 81 of the RHC should only be made in a plain case and where there is no necessity for a trial

Ref. Codd v Delap:

• Such a procedure is also ideal where the defence put forward is obviously “frivolous and practically moonshine”.
  2) National Foreign Trade Company v Kayu Raya Sdn Bhd:
• P establish a case, prima facie entitled to a judgment.
• Burden then shifts to D to prove bona fide defence, triable issue.

Question 6

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE

Procedures to apply SJ for SP

Answer 6

1) The law - O.81, r.2:

Mode:
Affidavit:
Additional documents attached:
Service:

2) Minutes of judgment - Dato’ Yeoh Kian Hin v Wijaya Astana S/B:

• minutes of judgment is orders & reliefs sought for;
• not “records” of proceedings.
• the court held that the word ‘minutes’ refers to the orders or relief sought but not yet granted or made by the court;
• minutes are drafted and attached to the summons (now notice of application) as required on the assumption that the plaintiff’s application will meet with the court’s approval;
• it does not pertain to the written record of what transpired in court in the form of notes.

3) Rationale for the requirement of ‘minutes’ - Dato’ Yeoh Kian Hin v Wijaya Astana S/B:

• To ensure that the final orders are speedily, promptly and expeditiously issued by the court upon termination of the proceedings in the plaintiff’s favour;
• To alert the defendant on what is sought for against him.

4) Failure to attach minutes of judgment - Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd:
- An applicant for O.81 has an option either to:

i) set out the reliefs of the judgment sought by the plaintiff in the summons; or
ii) attached thereto minutes of the judgment.

• It is not mandatory that an application under O.81 must in all cases have the minutes of the judgment sought for attached to the summons;
• In any event, the failure to attach the said minutes to the summons is not fatal & curable under O.2, r.1.

Question 7

SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE

Opposing SJ for SP

Answer 7

1) Leave to defend: O.81, r.4

• Show cause by affidavit or otherwise;
• i.e. enter an appearance & file a defence;
• leave to defend conditionally or unconditionally.

2) Set-aside: O.81, r.7
- Order made may be set-aside or varied.