• Order 14 High Court Rules 1980

• Order 26A Subordinate Court Rules 1980

1.1. After Statement of Defence filed and Defendant enters After Statement of Defence filed and Defendant enters defence.defence.

2.2. In circumstances where the Plaintiff has a clear cut case / plain In circumstances where the Plaintiff has a clear cut case / plain & straightforward case.& straightforward case.

3.3. Must be filed promptly, if there is a delay, the delay must be Must be filed promptly, if there is a delay, the delay must be explained.explained.

Societe Des Estains De Bayas Tudjuh v Wong Heng Mining Kongsi [1978] 2 Societe Des Estains De Bayas Tudjuh v Wong Heng Mining Kongsi [1978] 2 MLJ 267MLJ 267

Perkapalan Shamelin Jaya Sdn Bhd v Alphine Bulk Transport New York [1998] Perkapalan Shamelin Jaya Sdn Bhd v Alphine Bulk Transport New York [1998] 1 CLJ 424 1 CLJ 424

- Delay is not an answer to defeat an application made under Order 14 RHC 1980 - Delay is not an answer to defeat an application made under Order 14 RHC 1980 where there are no bona fide triable issues.where there are no bona fide triable issues.

4. The Plaintiff must prove his case clearly. General Trading Corporation (M) Sdn Bhd v Overseas Lumber Bhd [1977] 1 MLJ 108

(FC)

Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400

Kapital Raya Sdn Bhd v Bloomville Corporation Sdn Bhd [1997] 1 AMR 22

-where assertions, denials and disputes are inconsistent with undisputed contemporary documents or is inherently improbable in itself then the Judge has a duty to reject such assertions and denials thereby rendering the issue not triable.

Huo Heng Oil Co (E.M) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ 139

i) necessary that parties condescend to particulars

ii) not sufficient for there to be a bare assertion or bare denial of indebtedness ii) not sufficient for there to be a bare assertion or bare denial of indebtedness

iii) Defendant must satisfy Court that there is a dispute that is an issue or question in iii) Defendant must satisfy Court that there is a dispute that is an issue or question in dispute that ought to be tried and this cannot be achieved by raising facts which do not dispute that ought to be tried and this cannot be achieved by raising facts which do not constitute a defence.constitute a defence.

Bank Bumiputra Bhd v Malek Joseph Au (A firm) [1995] 4 MLJ 251

- Alleged oral undertakings or representations should be allowed to add to the express terms and conditions of the Agreement based merely on the flimsy evidence that was put before Court.

5. Plaintiff can proceed on part of the claim.

- Necessary for the Plaintiff to state clearly in his application the part of a claim sought

so that there is no scope for doubt or mistake as to what issues remain for trial.

Fabrique Ebel Societe Anonyme v Syarikat Perniagaan Tukang Jam City Port & Ors [1988] 1 ML J 188

6. Improving on Defence by Affidavit

- Where defence is bare denial of the claim, the Court will be cautious about defence suddenly raised by the Defendant in their affidavits

o Pembinaan Jaya v Binawiswa [1987] 2 CLJ 446

o Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363

7. Sham Defences

Goh Swee Hoon & Anor v Ewings (Australia) Pty Ltd [ 1987] 2 MLJ 653

Isume Co Pte Ltd v Ho Shing Constructions Co Pte Ltd [1987] 2 MLJ 571

8. To order a Trial would encourage delay

Keppel Finance Ltd v Phoon Ah Lek [1994] 3 MLJ 26

Cascade Shipping v Eka Jaya Agencies [1992] 1 SLR 197

9.Where no further facts could emerge - Construction of few documents

Esso Standard Malaya Bhd v Southern Cross Airways (Malaysia) Bhd [1972] 1 MLJ 168

Fadzil Bin Mohamad Noor v UTM [1981] 2 MLJ 196

10.Breach of Fiduciary Duty

Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusoff & Ors [1985] 2 MLJ 209

11.Declaratory Prayers / Specific Performance/ Injunction

Fadzil bin Mohamad Noor v Universiti Teknologi Malaysia [1981] 2 MLJ 196

Megnaway Enterprise Sdn Bhd v Soon Lian Hock [2003] 5 CLJ 103

12. Exception:-

- Order 14 r1(2) para (a)- libel, slander, malicious prosecution, false imprisonment,sedition or breach of promise of marriage.

- Order 14 r1(2) para (b) – Allegation of Fraud

- Order 14 r1(3) – where O.81 RHC 1980 applies

1.1. Defendant to satisfy Court that there is a triable Defendant to satisfy Court that there is a triable issues or question or there ought to be a trial for issues or question or there ought to be a trial for some other reason.some other reason.

Hua Heng Oil Co (E.M) Sdn Bhd v Tan Tiew Yong [1987] 1 Hua Heng Oil Co (E.M) Sdn Bhd v Tan Tiew Yong [1987] 1 MLJ 139 MLJ 139

2.2. A complete defence need not be shown, the defence A complete defence need not be shown, the defence set up need only show that there is a triable issue.set up need only show that there is a triable issue.

Tan Yaw Soon & Anor v Teng Sian Loong Enterprise Sdn Bhd Tan Yaw Soon & Anor v Teng Sian Loong Enterprise Sdn Bhd [1994] 1 MLJ 239[1994] 1 MLJ 239

Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400

3. Order 14 is not intended to shut out the Defendant

Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183MLJ 183

4.4. CategoriesCategories

i)i) Dispute on amountDispute on amount

• Ngai Heng Book Binders Pte Ltd v Syntax Computer Sdn Bhd [1998] 2 MLJ 205

• Contract Discount Corporation v Furlong [1948] 1 ALL ER 274

ii)ii) Points of law / construction requires determinationPoints of law / construction requires determination

• Brightside Mechnical & Electrical Services Group Ltd & Anor v Hyundai Engineering & Construction Co Ltd [1988] 1 MLJ 500

• Jaya Kumar v Subramaniam Mohana Krishnan & Anor [1987] 2 MLJ 432

- If the issues of law are clear, there is no reason why there cannot be an immediate determination.

Malayan Insurance (M) Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183

American Express Sdn Bhd v Dato Wong Kee Tat & Ors [1990] 1 MLJ 91

Keppel Finance Ltd v Phoon Ah Lek [1994] 3 MLJ 26

- Court will scrutinize the point to determine whether there is a basis for argument and if not, will give judgment.

Tokyo Investment v Tan Chor Ting [1993] 3 SLR 170

- Even if the matter involves several triable issues of law and a decision on the legal issues would finally decide the rights of the parties, Court can hear arguments on the issues of law and decide on them.

  

iii)Conspiracy, Fraud and Corruption

P.T. International Nickel Indonesia v General Trading Corpn (M) Sdn Bhd [1978] 1 MLJ 1- the purchase price of timber was inflated because of conspiracy, fraud and corruption

United Asean Bank Bhd v Nagindas Karamchand Doshi

s/o Karamchand Doshi[1990] 2 CLJ 721 - evidence of fraud in respect of shipping documents and the shipment of goods

Hua Heng Furniture v Yusuf Dor [1993] 3 CLJ 31- allegation of forgery

iv)Serious conflict of facts or real difficulty as to a matter of law arises

Amanah Merchant Bank Bhd v Sumikin Bussan Kaisha Ltd [1992] 2 MLJ 832

v) Assessment of Credibility of Witness

Kam Seng Hotel and Coffee Shop v Chuah Teong Buan [1971] 1 MLJ 233

vi)Intention of Parties could only be ascertained by oral evidence

Mashaha Navigation Sdn Bhd v Palm Oil Products (M) Sdn Bhd [1989] 2 CLJ 109 (Rep)

vii)Goods Supplied – lower quality [Sale of Goods Act]

Cimaco Readymix Sdn Bhd v L.Hong Enterprise Sdn Bhd [1992] 2 CLJ 293 (Rep)

Societe Des Etrains De Bayas Tudjuh v Wong Societe Des Etrains De Bayas Tudjuh v Wong Heng Mining Kongsi [1978] 2 MLJ 267Heng Mining Kongsi [1978] 2 MLJ 267

- - where the Defendant set up a plausible counter claim where the Defendant set up a plausible counter claim for an amount not less than the Plaintiff’s claim, the for an amount not less than the Plaintiff’s claim, the order should not be for leave to defence but should be order should not be for leave to defence but should be for judgment on the claim with a stay of execution until for judgment on the claim with a stay of execution until the trial of a counter claimthe trial of a counter claim..

Invar Realty Pte Ltd v Kenzo Tange Urtec Inc Invar Realty Pte Ltd v Kenzo Tange Urtec Inc & Anor [1990] 3 MLJ 388& Anor [1990] 3 MLJ 388

Note: If Counter Claim arose Note: If Counter Claim arose independently of the independently of the claim, Court claim, Court unlikely to grant a stayunlikely to grant a stay

Societe Des Etrains De Bayas Tudjuh v Wong Societe Des Etrains De Bayas Tudjuh v Wong Heng Mining Kongsi [1978] 2 MLJ 267Heng Mining Kongsi [1978] 2 MLJ 267

Ronald Quay Sdn Bhd v Maheswary Sdn Bhd Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ 322[1987] 1 MLJ 322

Fast Track Courts – usefulness of Summary Judgment application

Ability of witnesses to withstand cross examination.

Section 65 Contracts Act 1950 – Primary & Secondary Evidence

Availability of witnesses

Forcing settlement early- enforcement

Prepared by Prepared by

S.RAMESHS.RAMESH