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Summary Judgement ( Final)
Civil Procedure I (Multimedia University)
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Summary Judgement and its nature
SJ is an application/procedure in which the party (usually Plaintiff) applies to
Court for an early judgment under O14 ROC 2012;
O.14 allows the P to obtain a SJ without going for a full trial if he can prove his
case clearly, and if the D is unable to put up a bona fide defence or raise a triable
issue against the claim
Defendant can be the party to apply for SJ if he has counter-claim. In a counter-
claim, defendant becomes the plaintiff whom brings a claim against another.
Defences from the Defendant (in the Statement of Defence) :-
o Merely bare denial
o No triable issues
Jones v Stone
The objective of O14 is to obtain early judgment in cases where the
Defendant has no hopes of success and any defence he raises
would merely have the effect of delaying judgment.
Jacobs v Booths Distillery Co
Order 14 was intended to put an end to the state of things which
delay the judgement, defeat the rights of the other party & to
prevent sham defence.
Ng Hee Thoong & Anor v Public Bank Bhd
Order 14 should be used only in instances where there are no
authentic triable issue.
Hasil Bumi Perumahan Sdn Bhd v UMBC
To challenge Order 14, the applicant must show that:
His defence has some merits
His defence is not a sham defence but that is prima facie
The defence is bona fide and reasonable
There is serious issue to be tried
Non-availability of summary judgement
When proceedings begun with originating summons and not writ [Order 14 Rule
1(2)]
Action involves claims for defamation, malicious prosecution, false imprisonment,
seduction or breach of promise of marriage, and where the claim is based on an
allegation of fraud [Order 14 Rule 1(2)]
Where there are triable issues in the D’s defence
Where P’s claim falls under Order 81 i.e. specific performance
Where D is the government [Order 73 Rule 5(1)]
Procedure in obtaining summary judgement
Order 14 Rule 1(1): requirements to be fulfilled by P to apply for SJ:
o Statement of claim has been served on D;
o D had entered appearance in the action; and
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o P believes that D has no defence to the claim.
Order 14 Rule 2(1): the application must be supported by affidavit in Form 13
(=notice of application + affidavit) and must state:
o the facts of the claim; and
o deponent’s belief that D has no defence to that claim
Note: deponent = the one who made and signed the affidavit, usually lawyer
Order 14 Rule 2(2): affidavit must contain statements of information/belief
Order 14 Rule 2(3): notice of application + affidavit must be served on the D
within 14 days from the date of receipt of sealed notice of application by applicant
Order 62 Rule 1(1): where the specific rule is silent, the mode of service will be
governed by an order of general application, Order 62 Rule 6.
o Doc can be left at the proper address of the D
o Doc can be sent by registered post [not AR registered post]
o Doc can be sent by fax but must comply with O62 R6(3)
o Doc can be sent by any such manner as agreed by parties
o In any manner as the court may direct.
Preliminary Requirements of SJ
National Company for Foreign Trade v Kayu Raya Sdn Bhd, in an application
under Order 14, the considerations are:
o Whether the case comes within the Order;
A case is not within Order 14 if:
No statement of claim has been served on the D;
The indorsement on the writ includes a claim or claims outside the
scope of Order 14 as coming within Rule 1(2);
The affidavit in support of the application is defective (omitting to
state the deponent’s belief that there is no defence to the claim or
part to which the application relates;
The application is made in an action against the government.
o Whether the Plaintiff has satisfied the preliminary requirements for
proceeding under O14
For the purpose of an application under Order 14, preliminary
requirements are:
D must entered appearance
The statement of claim must have served on D
The affidavit in support of application must comply with
requirements under O 14 R 2.
Must be made by the P or any other person duly authorised
Must verify the facts on which the claim or part of a claim to
which the application relates is based
Must state the deponent’s belief that there is no defence to
that claim or part of or no defence except as to the amount of
damages claimed
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If the P fails to satisfy either of the considerations, the summons may be
dismissed.
However, if the considerations are satisfied, the P will have established a prima
facie case and he becomes entitled to a SJ.
o The burden then shifts to the D to satisfy the court why judgement should
not be given against him [O.14 R3 & 4(1)]
o Cempaka Finance Bhd v Ho Lai Ying
Once the conditions in an application under O.14 are fulfilled, the
burden then shifts to the D to raise triable issues.
The affidavit under Order 14 Rule 2
Chai Cheon Kam v Hua Joo etc Sdn Bhd
o In application under O 14, the affidavit must satisfy the following
requirements:
It must be made by P/any person duly authorised to make it
It must be verify the facts to which the application is based
It must state the deponent’s belief that there is no defence to that
claim
o If the Plaintiff fails to satisfy these requirements, the application may be
dismissed.
Sandilands Buttery & Co Ld v Marcus Knorpel
o An affidavit was filed which contained defects & irregularities. However,
the court held that:
The failure to comply with any technical requirements has in no way
prejudiced/embarrassed the D. Therefore, such defect does not
render the proceedings void.
Such defect may be cured by supplementary affidavit
The Court has power to adjourn the matter for the defect (in the
affidavit) to be remedied.
Chirgwin v Russell
o Affidavit may be made by the P or any person duly authorised by him.
Siong Eng Co v Malayan Insurance Co Inc
o The affidavit in support of SJ was affirmed by a branch manager & another
person from the P’s company.
o Held: As the persons who affirmed the affidavits were in the employ of the
P’s company and had stated that the facts were within their knowledge, it
was sufficient for the purpose of the order.
Ang Swee Chuan v Lim Teng Huan
o In an application for SJ, the absence of the words in applicant’s affidavit
stating that ‘in the deponent’s belief, there was no defence to the claim’ =
fatal.
o The words are mandatory. Without such words, the court has no discretion
to make any order under O 14.
DCB Bank Berhad v NS Bahtera Sdn Bhd & 2 Ors
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o The court held that the leave (permission) from the court is not necessary.
This case gives a formula as below on how the process in obtaining SJ
could be:
P establish a prima facie case and show there is no burden to his
claim → burden to D to show they still having triable issue → if the
D show triable issue, P is to be given rights to show it is irrelevant
Time to apply & Issue on delay
When to file SJ: McLardy v Slateum
o An application for SJ must be made promptly after D has entered
appearance. P need not wait until a statement of defence is filed.
o However, if statement of defence has been filed, the onus is on P to show
that the delay is justifiable under special circumstances of the case.
Krishnamurthy v Malayan Finance Corp
o An application can be made either before or after the delivery of defence
by the D. however, if it is made after the service of defence, the P must
explain the delay, and not doing so would cause a SJ to not be granted.
Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York
o If the D has no triable issue or defence against the P’s action, delay per se
cannot be raised as a ground to object the P’s application.
Controller General of Inland Revenue (CGIR) v Weng Lok Mining Ltd
o The P’s delay of 3 months in making an application due to the holidays
and the fasting month was a good reason which did not warrant a
dismissal of the application
Lee Wah Bank Ltd v Chee Kong Electrical Engineering Sdn Bhd & Ors
o It was stated that delay is not relevant in an application for summary
judgment. Irrespective of the delay, if there is no triable issue or no reason
otherwise for going to trial, the application must succeed but if there is a
triable issue, the application must fail. Justification for the delay, when the
application for the summary judgment is made after the defence is filed is
not required.
Technical objections
In making an application, the P must ensure that his documents are in order.
The D can raise substantive technical objections in the P’s application for non-
compliance with the rules such as defective service, defective affidavit, errors in
documents etc.
If the D succeeds in his objection, the court will dismiss the P’s application under
O14 R7. However, if the defect can be cured, the court may give leave to the P to
amend the application.
The courts are generally reluctant to allow mere technical errors to obstruct its
determination of the merits of the case.
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o If the errors are serious enough to warrant a dismissal of the application,
the P would be entitled to recommence new SJ proceedings.
UMW (Sarawak) Sdn Bhd v Kim Leong Timber Sdn Bhd & Ors
o A defective statement of claim cannot be cured by the affidavit supporting
the application
o To cure it, the P must apply to the court for an amendment to be made
Hearing of the Summons
Order 14 Rule 3: the court may order SJ in favour of P unless:
o The application is dismissed by the court; or
o D had satisfied the court that there is issue/question in dispute to be tried
in a trial
Means: if application of SJ failed, the parties will have to proceed to full trial
Objections that may be raised to set aside SJ
1. Triable issues
For the D to defeat the SJ he must at least show that there is an issue or
question in dispute in which ought to be tried
It is insufficient for the D to merely deny a fact, he must plead any cogent and
relevant facts which negative the existence of the P’s claim, or facts which show
that the claim is not maintainable.
Bank Negara Malaysia v Mohd Ismail & Ors
o It is a settled law that in O 14 application, D may raise defences over by
way of affidavit
o In the affidavit, the D must satisfy the court that there is a triable issue to
be tried
o Whether or not an issue is triable depends on the fact/law arising from the
case
o There is a duty for the judge to determine whether the issue are triable
Ng Yik Seng v Perwira Habib Bank
o This case involves matter of guarantee where appellant contended that he
did not sign the guarantee and that his signature was forged
o Held: there were triable issues. The appellant is given the leave to defend
Ngui Mui Khin v Gillespie Brothers
o The appellants gave a guarantee to the respondents with respect to
certain transactions whereby the respondents obtained judgement in the
Singapore HC against the appellants and sued the appellants on the
guarantee. The A in their defence contended that they were not liable on
the guarantee because the transactions between the R and the Singapore
company were in essence moneylending transactions. R were granted
with SJ under O14.
o Held: the learned judge was correct in holding that the A’s statement of
defence did not disclose any serious defence requiring trial as the
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confirming houses are a recognised institution in the promotion and
participation of export trade could not held to be moneylending
transactions.
o Hence, no triable issue and Order 14 right made.
Appaduray v Ananda
o P, in reliance of surveyor’s report, claimed that D had encroached his land.
D questioned the accuracy of surveyor’s report.
o Held: the challenge to the accuracy of the surveyor’s report = triable issue
Syarikat Kerjasama v Ghazali
o It is for D to show on merit that he has a good defence to the claim such
as when:
Difficult point of law is involved
There is disputed facts which are to be tried
Any other reasonable grounds of bona fide defence
Voo Min En & Ors v Leong Chung Fatt
o The A claimed possession of the ground floor and in his defence the R
alleged that there was an oral agreement for a new lease. The A applied
for final judgement but this was refused as the learned trial judge held that
there was a triable issue.
o Held: the point raised by the R as to the existence of the oral agreement to
renew the lease is not an arguable issue which requires a trial, as it is
nether effective nor admissible and therefore does not constitute a triable
issue. The A should therefore be allowed to sign final judgement against
the R.
2. Order 14 R3: there ought for some other reasons to be trial of that claim
Where the D fails to raise a triable issue, it is still available to him to argue that
the granting of a SJ would not be appropriate as there is ‘some other reason’
for trial.
Miles v Bull
o Husband & wife quarrelled, husband sold the property to 3 rd party. 3rd
party then sued the wife for the transfer of a property & now sought for
SJ. The wife said that if the matter proceeds to trial, she can get
additional information to discover and interrogate. And this is the ‘some
other reason to be a trial’ because everything so far was of the P’s
control.
o D was granted unconditional leave to defend.
Concentrate Engineering Pte Ltd v UMBC Bhd
o A case where the P’s clients commenced action against D for wrongful
payment of cheques. P applied for SJ. (the cheques were found to be
duplicate copies fraudulently printed with the same serial numbers as
the genuine and unused cheques supplied by the D)
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o Held: the circumstances called for further investigation. The
circumstances and audacity with which the fraud was carried out and
the absence of an explanation by the directors of the P constitute
‘some other reason’ for a trial in terms of O14 R3(1).
o If the D is not given opportunity to defend, there is real likelihood that P
would terminate their overdraft facility and withdraw their fixed deposit.
D was granted unconditional leave to defend.
3. Defendant raises set off or counterclaim
Order 14 Rule 3(2): the court may by order, and subject to such conditions, if
any, as may be just, stay the execution of any judgement given against a D under
this rule until after the trial of any counterclaim made or raised by the D in the
action.
Order 14 Rule 5: application for SJ on counterclaim
Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd
o A set off = cross claim for another sum of money by D against P’s claim for
a sum of money for which D is being sued
o A counterclaim = a claim made by D against P based on some course of
action and nature raised in P’s claim
o When D raised a counterclaim, P must first reply to the counterclaim failing
which, a judgement may be entered against P
o Hence, O 14 may also be applied.
Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [Order 14 R3(2)]
o If there is still exist counterclaim in the case, the execution of SJ will
pending first.
o The court allowed the P’s claim for SJ but stayed the execution of the
judgement pending the disposal of the D’s counterclaim
o In this case, the claim by the P was a sum of service rendered. The D
admitted a counterclaim and made a claim for a larger sum, that the P had
breached their contractual obligation and the D had suffered loss.
o The court said if there was a plausible counterclaim, the court will stay the
execution of the judgement pending the disposal of the counterclaim.
4. Other grounds that Defendant may raise:
Ng Hee Thoong & Anor v Public Bank Bhd (Gopal Sri Ram JCA)
o The respondent/plaintiff failed to file in affidavit in reply to the
appellant/defendant who is now subsequent a plaintiff to the respondent
due to their counter claim
Lin Securities v Noone & Co sdn Bhd
o Under O 14 R 4(1), D is entitled to show at the hearing that he has other
defences even if there are not mentioned in the SOD.
o Facts: the P claimed against the D for amount unpaid on the shares
received by D and filed an application for SJ. SAR granted SJ and hence
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this appeal. D sought to rely on a further point which had not been pleaded
in the statement of defence which is the governing law is Singapore’s law
hence not suitable for summary disposal.
o Held: D given unconditional leave to defence. O 14 R 4(1) provides that a
D may show cause against an application for SJ by affidavit or otherwise.
He is entitled to show at the hearing of the O14 application that over and
above what has been pleaded in the SOD he has other defences. The
issue at an O14 application is whether the D has a defence and not
whether the SOD provides him with a defence.
Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking Corp.
o In our view, in order to succeed in his application under these orders, the
applicant must show that he has a defence which has some merits and
which the court should try. To use common and plain language, the
applicant must show that his defence is not a sham defence but one that is
prima facie, raising serious issues as a bona fide reasonable defence that
ought to be tried because obviously if the defence is a sham defence,
there is no defence and the application must fail.
Special rules concerning cheques
If D has paid you by cheque, it means that he admits that he owes the P money
and he is satisfied with the goods received.
If the D later dishonours the cheque, P should not file an action for ‘goods sold &
delivered but not paid’. Instead, P should sue on the dishonouring of cheque. And
you can apply for SJ on the dishonoured cheque, where the court would not look
at the defences of unmerchantable quality etc.
Simply said, if you have made any payment by way of cheque, you cannot raise
defences like unmerchantable quality etc anymore unless there is illegality/total
failure of consideration/fraud.
Fielding and Platt Ltd v Najjar
o P contracted to export goods to D whereby the D reassured P that it would
be lawful for him to import the goods. P ceased the production and sued
on the notes when the D’s cheques were not honoured. P succeeded
summarily. D appealed.
o Held: the defence of illegality cannot be raised by D. To succeed in their
defence of illegality, the D had to show that the P was aware that
performance by importing the plant would be illegal, and had agreed to go
ahead notwithstanding that illegality.
Marina Sports Ltd v Alliance Richfield Pte Ltd
o D drew postdated cheque and delivered it to the P. The P issued a writ
against the D and attempted to obtain SJ. The D were given conditional
leave to defend and the P appealed.
o Held: the affidavits of the P provided only a bare outline of the transaction
which allowed the D to raise many issues. The D argued that there was a
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possibility fraud involved P. The D have raised triable issues and P’s
appeal should be dismissed.
More issues:
Disposal of case on point of law
Construction of documents/statute
Where the construction of documents or statute is involved, the D cannot merely
raise the issue of construction in order to prevent the hearing of the application:
Esso Standard Malaya v Southern Cross Airways (construction of documents)
o If one simply has a short matter of construction with a few documents, the
court should decide what the true construction is. There should be no
reason to go formally to trial where no further facts could emerge which
would throw any light upon the documents that have to be construed.
Carlsberg Bhd v Soon Heng Aw & Sons Sdn Bhd
o Question of interpretation of the instrument of guarantee. In the case
under appeal it is the document of guarantee which is the foundation of the
claim by the P & the rights and liabilities of the parties depend upon the
true construction of the guarantee.
o Held: on going through the guarantee, the court decided based on the
plain meaning of the words used, and an appreciation of this plain
meaning inevitably destroys the contention of the guarantors advanced in
this appeal.
Fadzil bin Mohamed Noor v UTM (construction of statute)
o The appellant, an assistant lecturer at UTM, was terminated from
university by University Council.
o The appellant filed a specially indorsed writ for a declaration that the
purported dismissal was ultra vires, illegal and void. He then applied for a
SJ. The application was dismissed by the HC and he appealed to the FC,
which held:
By virtue of the provisions of the University and University Colleges
Act 1971, the disciplinary powers under the Constitution of the
University are exercisable only by the Disciplinary Committee and
the purported exercise of jurisdiction by the University Council in
dismissing the appellant was ultra vires its powers.
Based on the principle enunciated in Esso Standard Malaya as to
the construction of the Act and the Constitution of the University,
UTM had an absolutely hopeless case. The only function of the
court is jus dicere (to declare the law) and to ascertain the intention
of Parliament from the words used in the statutes and nothing more.
No useful purpose would then be served to go formally to trial.
Ng Chin Swee & Ors v Koperasi Belia Bersatu Bhd
o P deposited money with D. Subsequently, P filed an action against D when
they did not receive their money as promised by D. The D’s defence was a
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bare denial coupled with a plea in the Bar. SAR found in favour of P. D
appealed.
o Held: appeal dismissed with costs. There is nothing in the Essential
(Protection of Depositors) Order 1986 or in the Regulations which
precludes third parties from filing claims against kosatu. The action was
properly filed.
o On the material before him, the Registrar very properly gave judgement
against Kosatu. In the absence of an appeal, merits and special reasons,
no stay of execution could be ordered.
Determination of Question of Law
European Asian Bank v Punjab & Sind Bank
o Even if the case involves difficult question of law, it is not a bar from
applying for SJ. If the case goes on to trial, the same arguments will be
‘rehearsed’ again at trial, which offends the very purpose of O14 – to
speedily dispose of a clear cut case.
Chong Ngam Sen v Yeoh Bah Chee
o Where therefore there is question of law raised and remained to be
determined, leave to defend should be given.
Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd
o 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 Order 14 and decide on the question
of law even if the issue of law raised is a difficult one. If the court after
considering the argument is satisfied that it is really unarguable then the
court should grant SJ.
Petroliam Nasional Berhad v Kerajaan Negeri Terengganu
o Even if the case appeared to be or was complicated, it did not mean that
the court must shun away from considering the applicability of O 14A and
O33 R2 of the RHC in relation to the question of law which were clear and
definite.
o The order enables the court to determine any question of law or
construction of document where it appears to the court that such question
is suitable for determination without the full trial of the action.
Order that the Court may make and the circumstances when they would be made
Dismissal of the summons:
Order 14 Rule 7: where the P makes an application for SJ knowing full well that
the D will be relying on a contention which entitle him to unconditional leave to
defend, the court may dismiss the application with costs & require the P to pay
the costs to the D.
Pocock v ADAC
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o If it is clear that the P knows that there was an arguable defence to the
claim, the proper course is to dismiss the summons with costs.
Dismissal of the action:
Diamond Peak Sdn Bhd v Tweedie
o A judge has no power in an application for SJ to dismiss the P’s action as
an application under O.14 is only interlocutory. He can only dismiss the
application for SJ and grant the D unconditional leave to defend.
o However, in Tan Soo Leng David v Wee, Sathu & Kumar Pte Ltd: the court
dismissed the summary application and the action on the ground that the
claim was plainly and obviously unsustainable.
Judgement for the plaintiff (O.14 R.3)
Order 14 Rule 3(1): Court may give judgement in favour of P unless:
o The court dismiss P application or;
o The defendant satisfied the court in respect to the claim meaning got
issued to be tried.
Leave (permission) to defend
Order 14 Rule 4: court allow D to defend on claim (can also defend only partly)
Order 14 Rule 6: court gives further instruction for further conduct
Order 14 Rule 7: order to pay cost
Unconditional leave: (cases can be referred above: triable issues & reason to be
trial)
If the defendant succeeds in showing to the court that there is a substantial
question of fact or law which ought to be tried, then leave to defend the action
must be given as right without any imposition of conditions.
The plaintiff’s application for SJ will be dismissed with costs and the D will be
given the unconditional leave to defend.
It is granted where the D can show that there is a triable issue or some other
reason for there to be a trial.
Conditional Leave:
If the court is not fully convinced with the argument of the defendant, but its
convinced by the plaintiff’s argument to a liability and part of the quantum of the
claim, then the court may give conditional leave to the defendant.
The court may impose such condition as payment of money into court or order
the defendant to furnish suitable security.
Fieldrank Ltd v Stein
o Conditional leave will be imposed where there is a good ground in the
evidence for believing that the defence set up is sham defence.
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o Court will usually order the D to pay a certain amount to the court when
the court is left with a real doubt about the D’s good faith, and would like to
protect the P though he cannot say for certain that there is a triable issue.
Alliance Malayan Engineering Co Sdn Bhd v San Development Sdn Bhd
o There was a considerable suspicion as to its bona fides as there was
clearly very little substance in the D’s claim to a right of set-off and
counter-claim in respect of the alleged damages for the delay in the
completion of the works.
QBE Supreme Ins v Syarikat Chemas
o A case of indemnity and guarantee.
o Held: the judge made a finding that the 2 nd D did in fact sign the indemnity
in his personal capacity as well and he therefore doubted the bona fide of
the 2nd D’s defence.
Coronation Electronics Ltd v Lalchand Mahtani
o The court refused to grant unconditional leave to defend when in all
circumstances of the case the defence was shadowy and there was
something suspicious in the D’s mode of presenting the case.
o The totality of the affidavit evidence of the P strongly suggests that the D
was fully aware of what was going on between the P and Tharoomals and
indeed had participated in all the relevant facets of the deal.
When a conditional leave is given in a hearing before a judge in chambers, can
the same judge hear the main action? YES.
Law Mun & Ors v Chua Lai Seng
o The contention that a judge who gives leave to defend upon terms should
thereafter not hear the case at the trial is not supported by any authority.
The contention is also not calculated to facilitate the efficient disposal of
cases but rather to delay the business of courts even further.
Appeals
Both the P & D have a right to appeal from any judgement or order made [O.56
R1(1)]
o If the application is heard by a judge in the HC, an appeal to the COA
would be made under O.56 R2, provided that leave from the COA is
obtained.
However, an appellate court is unlikely to interfere with the decision
of the judge where the triable issues concern issues of facts or
evidence.
o If the application is heard by a judge in a Subordinate Court, an appeal to
the HC would be made under O.55 R5.
Huo Heng Oil Co v Tang Tiew Yong
o Both P and D have a right to appeal to the judge in chambers from any
judgement or order made by the registrar.
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o “in opposing the application for SJ, the R must satisfy the court that with
respect to the A’s claim there is an issue or question in dispute which
ought to be tried or there ought for some other reason to be a trial of that
claim.
UMBC Bhd v Pembinaan KSY Sdn Bhd
o Where triable issue as a matter of fact or evidence (as opposed to law) “it
is most unlikely” that an appellate court would interfere with the discretion
of the judge.
Abdul Rahim bin Abdul Hamid & Ors v Perdana Merchant Bankers Bhd &
Ors
o The general principles established are that the plaintiff has to satisfy the
court that the defendant plainly and obviously has no defence to the
plaintiff's claim or part of the plaintiff's claim.
o If the plaintiff is able to satisfy the court, then summary judgment should
be entered in the plaintiff's favour.
o On the other hand, if the defendant can show that there is a serious
conflict of material facts as disclosed in the opposing affidavits, or there is
a triable issue, or there is an important and difficult point of law, summary
judgment should be refused.”
Summary judgement under Order 81
The provision is only to be applied when the action made is for specific
performance. Specific performance refers to the remedy of requiring exact
performance of a contract in the specific form it was made or according to the
precise terms agreed upon by the parties.
The plaintiff may on the ground that the defendant has no defence to the action
apply for the Court for judgment.
The special about this Order is the application could been made even though the
defendant not yet entered appearance.
O 81 R 1: application by plaintiff for SJ:
o a) The action must begin with writ and involving the claim for specific
performance of an agreement for the sale, purchase or exchange of any
property, or for grant or assignment of lease of any property, with or
without an alternative claim for damages.
o b) Or it begin with writ for rescission of such an agreement
o c) Or for the forfeiture of any deposit made under such an agreement.
O 81 R 2: an application shall be made by notice of application supported by an
affidavit
Masalam Sdn Bhd v Ngah bin Embong & Anor
o This is an appeal from a judgment granting the plaintiffs specific
performance of an agreement relating to the sale of a shop house. The
only ground advanced in this appeal was that there was a genuine
common mistake as to the purchase price and that severe hardship has
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been caused to the appellant by the grant of summary relief to the plaintiffs
under O. 81 of the Rules of the High Court 1980.
o The court held that since their case was common mistake, their remedy
was only to do rectification over the mistake. The specific performance
granting by trial court remained valid.
Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd
o In this case, the plaintiff sought an order for specific performance of an
agreement and alternatively the rescission of the agreement while claiming
for damages and costs. One of the preliminary objections raised by the
defendants was that the application had failed to comply with the
requirement set out in Order 81 rule 2(2).
o The court held that it was not mandatory for the plaintiff to attach the
minutes of judgment together with the summons although it was a normal
procedure. The court also added that failure to do so is not fatal as it can
be cured by invoking Order 2 rule1 of the Rules of the High Court.
Soon Kong Meng & Anor v Lee Thye & Ors
o In an application for specific performance, failure to depose belief that
there was no defence to the action is curable if other’s statements
demonstrate it.
Differences between O 81 and O 14, as stated in Halsbury’s law and Cotra
Enterprises Sdn Bhd v Pakatan Mawar:
o O 81 is confined to a limited scope of actions.
o SJ under O 81 may be made whether or not the D has entered an
appearance.
o There’s no specific requirement that a statement of claims must first be
served.
o An application under O 81 must relate to the whole action whilst an
application under O 14 may relate to a particular part of the claim.
o The summons under O 81 must be set out or have attached thereto
minutes of judgment sought.
The applicant must seek for remedies of specific performance.
Wong Tham Meng v Tiang Eng
o The P does not seek the remedies of specific performance or any other
relief under O 81, he is not obliged to employ the O 81 procedure.
Summary process for recovery of land
O 89 is for summary procedure in recovering land occupied by squatters who
have not paid any rent or any money to the landowner
Order 89 Rule 1: action can be commenced by originating summons to claim for
possession of land which is in wrongful occupation by trespassers without licence
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or consent, whether or not the owner knows the names of the
squatters/trespassers.
If the owner wishes to recover his land occupied by a tenant who has defaulted in
paying rent, the owner cannot apply under O 89. He must go by summons in the
subordinate court or by writ in the High Court and then apply for summary
judgment under O 14.
Yap Hong Thin v Seenevasam
o This procedure is meant primarily for the eviction of squatters or
trespassers whose identities are often unknown to the plaintiff
Bahari bin Taib & Ors v PTG Selangor
o For the purpose of the summary procedure under O 89 a distinction should
be made between squatters simpliciter who have no rights whatsoever and
occupiers with licence or consent, as well as tenants and licensees holding
over. This case should not be tried summarily under O 89 as the occupiers
were not squatters, they had been given TOL although it had expired.
Titular Roman Catholic Bishop of Penang v Stephen Ramachandran
o Where there are disputes of fact that cannot be resolved by affidavit
evidence alone, the action for possession of land should not be
commenced by way of summary possession under the repealed RHC O
89 (now RC O 89) but by way of a writ action. However, where the entry
upon the premises in the first instance is lawful, the party is not a
trespasser.
Ng Ben Thong v Krishnan a/l Arumugam
o Once the court finds that the occupation is illegal or that the person to be
evicted is a squatter, the plea of homelessness must not sway the court
from its duty to the owner of the land and the owner must be given the
right to eject and evict immediately the illegal occupiers
Hong v New Kim Eng
o The repealed RHC O 89 (now O 89) is designed to oust illegal occupiers
expeditiously and expressly does not apply to tenants or tenants holding
over.
Cheow Chew Khoon v Abdul Johari bin Abdul Rahman
o In order to determine what an application is all about, the court should look
at the substance of the application, where the court held that it was clear
that the OS was one under O 89.
o A summary procedure meant primarily for the eviction of squatters. It
frequently happens that land or even a building is occupied by persons
who are essentially trespassers whose identities are often unknown to the
P. To require a P, in those circumstances, to commence a write action and
name the D would constitute the imposition of an intolerable burden upon
him.
o That order is not meant to be, and, should not be, used for the recovery of
property occupied by tenants whose tenancies have come to an end.
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It is also applicable to a wrongful occupier who has entered into, or who has
remained in, occupation without licence or the consent of the owner.
Application for possession of land by summary proceedings:
o O 89 R 2: The application must be brought by originating summons by
Form 8A, and no acknowledgment of service is required.
o O 89 R 3: The plaintiff must file a supporting affidavit stating:
a) his interest in the land;
b) the circumstances in which the land has been occupied without
licence or consent and in which his claim to possession arises; and
c) that he does not know the name of any person occupying the
land who is not named in the summons.
O 89 R 4(1): The method of service of the originating summons differs somewhat
according to whether any wrongful occupier is named in it. Where any person in
occupation of the land is named in the originating summons, the originating
summons, together with a copy of the supporting affidavit, must be served on
him:
o a) personally or by sending it by prepaid AR registered post addressed to
his last known address or by serving it on his solicitor where he agrees to
accept service on behalf of the defendant and indorses a statement to that
effect;
o b) by leaving a copy of the originating summons and of the supporting
affidavit, or by sending them to him, at the premises;
o c) in such other manner as the court may direct
O 89 R 4(3): Every copy of an originating summons for possession of land for
service must be sealed with the seal of the court out of which it is issued.
O 89 R 7: The leave of the court is not required to issue a writ of possession to
enforce an order for possession under Order 89 proceedings.
