2 GOVERNING LAWS Order 14 High Court Rules 1980 Order 26A Subordinate Court Rules 1980
3 A. WHEN THE APPLICATION IS FILED / IN WHAT CIRCUMSTANCES 1. After Statement of Defence filed and Defendant enters defence.2. In circumstances where the Plaintiff has a clear cut case / plain & straightforward case.3. Must be filed promptly, if there is a delay, the delay must be explained.Societe Des Estains De Bayas Tudjuh v Wong Heng Mining Kongsi  2 MLJ 267Perkapalan Shamelin Jaya Sdn Bhd v Alphine Bulk Transport New York  1 CLJ 424- Delay is not an answer to defeat an application made under Order 14 RHC 1980 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  1 MLJ 108 (FC)Bank Negara Malaysia v Mohd Ismail & Ors  1 MLJ 400Kapital Raya Sdn Bhd v Bloomville Corporation Sdn Bhd  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  1 MLJ 139i) necessary that parties condescend to particularsii) not sufficient for there to be a bare assertion or bare denial of indebtednessiii) 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 constitute a defence.
5 Bank Bumiputra Bhd v Malek Joseph Au (A firm)  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.
6 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  1ML J 188
7 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 affidavitsPembinaan Jaya v Binawiswa  2 CLJ 446Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd  2 MLJ 3637. Sham DefencesGoh Swee Hoon & Anor v Ewings (Australia) Pty Ltd [ 1987] 2 MLJ 653Isume Co Pte Ltd v Ho Shing Constructions Co Pte Ltd  2 MLJ 571
8 8. To order a Trial would encourage delay Keppel Finance Ltd v Phoon Ah Lek  3 MLJ 26Cascade Shipping v Eka Jaya Agencies  1 SLR 1979.Where no further facts could emerge- Construction of few documentsEsso Standard Malaya Bhd v Southern Cross Airways (Malaysia) Bhd  1 MLJ 168Fadzil Bin Mohamad Noor v UTM  2 MLJ 19610.Breach of Fiduciary DutyAvel Consultants Sdn Bhd & Anor v Mohamed Zain Yusoff & Ors  2 MLJ 209
9 11.Declaratory Prayers / Specific Performance/ Injunction Fadzil bin Mohamad Noor v Universiti Teknologi Malaysia  2 MLJ 196Megnaway Enterprise Sdn Bhd v Soon Lian Hock  5 CLJ 10312. 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
10 B. TRIABLE ISSUESDefendant to satisfy Court that there is a triable issues or question or there ought to be a trial for some other reason.Hua Heng Oil Co (E.M) Sdn Bhd v Tan Tiew Yong  1 MLJ 139A complete defence need not be shown, the defence set up need only show that there is a triable issue.Tan Yaw Soon & Anor v Teng Sian Loong Enterprise Sdn Bhd  1 MLJ 239Bank Negara Malaysia v Mohd Ismail & Ors  1 MLJ 400Order 14 is not intended to shut out the DefendantMalayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd  2 MLJ 183
11 Categories Dispute on amount Ngai Heng Book Binders Pte Ltd v Syntax Computer Sdn Bhd  2 MLJ 205Contract Discount Corporation v Furlong  1 ALL ER 274ii) Points of law / construction requires determinationBrightside Mechnical & Electrical Services Group Ltd & Anor v Hyundai Engineering & Construction Co Ltd  1 MLJ 500Jaya Kumar v Subramaniam Mohana Krishnan & Anor  2 MLJ 432- If the issues of law are clear, there is no reason why there cannot be an immediate determination.
12 Malayan Insurance (M) Bhd v Asia Hotel Sdn Bhd  2 MLJ 183 American Express Sdn Bhd v Dato Wong Kee Tat & Ors  1 MLJ 91Keppel Finance Ltd v Phoon Ah Lek  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  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.
13 Conspiracy, Fraud and Corruption Conspiracy, Fraud and CorruptionP.T. International Nickel Indonesia v General Trading Corpn (M) Sdn Bhd  1 MLJ 1- the purchase price of timber was inflated because of conspiracy, fraud and corruptionUnited Asean Bank Bhd v Nagindas Karamchand Doshi s/o Karamchand Doshi 2 CLJ 721- evidence of fraud in respect of shipping documents and the shipment of goodsHua Heng Furniture v Yusuf Dor  3 CLJ 31- allegation of forgerySerious conflict of facts or real difficulty as to a matter of law arisesAmanah Merchant Bank Bhd v Sumikin Bussan Kaisha Ltd  2 MLJ 832
14 Intention of Parties could only be ascertained by oral evidence v) Assessment of Credibility of WitnessKam Seng Hotel and Coffee Shop v Chuah Teong Buan  1 MLJ 233Intention of Parties could only be ascertained by oral evidenceMashaha Navigation Sdn Bhd v Palm Oil Products (M) Sdn Bhd  2 CLJ 109 (Rep)Goods Supplied – lower quality [Sale of Goods Act]Cimaco Readymix Sdn Bhd v L.Hong Enterprise Sdn Bhd  2 CLJ 293 (Rep)
15 C. NO DEFENCE BUT VALID COUNTER CLAIM Societe Des Etrains De Bayas Tudjuh v Wong Heng Mining Kongsi  2 MLJ 267- where the Defendant set up a plausible counter claim for an amount not less than the Plaintiff’s claim, the order should not be for leave to defence but should be for judgment on the claim with a stay of execution until the trial of a counter claim.Invar Realty Pte Ltd v Kenzo Tange Urtec Inc & Anor  3 MLJ 388Note: If Counter Claim arose independently of the claim, Court unlikely to grant a stayRonald Quay Sdn Bhd v Maheswary Sdn Bhd  1 MLJ 322
16 D. PRACTICEFast Track Courts – usefulness of Summary Judgment applicationAbility of witnesses to withstand cross examination.Section 65 Contracts Act 1950 – Primary & Secondary EvidenceAvailability of witnessesForcing settlement early- enforcement