“summary judgment”

GOVERNING LAWS Order 14 High Court Rules 1980 Order 26A Subordinate Court Rules 1980

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 [1978] 2 MLJ 267 Perkapalan Shamelin Jaya Sdn Bhd v Alphine Bulk Transport New York [1998] 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.

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 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 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 Pembinaan Jaya v Binawiswa [1987] 2 CLJ 446 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

B. TRIABLE ISSUES Defendant 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 [1987] 1 MLJ 139 A 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 [1994] 1 MLJ 239 Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 Order 14 is not intended to shut out the Defendant Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183

Categories Dispute 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) Points 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.

Conspiracy, Fraud and Corruption     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 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

Intention of Parties could only be ascertained by oral evidence v) Assessment of Credibility of Witness Kam Seng Hotel and Coffee Shop v Chuah Teong Buan [1971] 1 MLJ 233 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) Goods Supplied – lower quality [Sale of Goods Act] Cimaco Readymix Sdn Bhd v L.Hong Enterprise Sdn Bhd [1992] 2 CLJ 293 (Rep)

C. NO DEFENCE BUT VALID COUNTER CLAIM Societe Des Etrains De Bayas Tudjuh v Wong Heng Mining Kongsi [1978] 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 [1990] 3 MLJ 388 Note: If Counter Claim arose independently of the claim, Court unlikely to grant a stay Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ 322

D. PRACTICE 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

THE END Prepared by S.RAMESH