Recognition & Enforcement of Foreign Judgment

1. Where a party has obtained a judgment in a foreign country and intends to enforce
it in Malaysia – because the judgment debtor is within jurisdiction, or has assets in
the country.

2. Enforcement of a foreign judgment could be done by the application of either:

(a) Reciprocal Enforcement of Judgments Act 1958 (“REJA”)
(b) Common law


Reciprocal Enforcement of Judgments Act 1958 (“REJA”)

3. The reciprocating countries are set out in Schedule 1 of REJA:

Reciprocating country Superior courts
United Kingdom 1. The High Court in England;
2. The Court of Session in Scotland;
3. The High Court in Northern Ireland;
4. The Court of Chancery of the County Palatine of
Lancaster;
5. The Court of Chancery of the County Palatine of
Durham.
Hong Kong Special The High Court.
Administrative Region
of the People's Republic of China
Singapore The High Court.
New Zealand The High Court.
Republic of Sri Lanka 1. The High Court.
2. The District Courts.
India The High Court.
(excluding State of Jammu and
Kashmir,
State of Manipur, Tribal areas of
State of
Assam, Scheduled areas of the
States of
Madras and Andhra)
Brunei Darussalam The High Court.


4. A judgment issued by a superior court of a reciprocating country may be enforced
in Malaysia by registering the said judgment. Conditions for registration are:

(i) It is a final and conclusive judgment between the parties – s.3(3)(a)
(ii) It is a monetary judgment – s.3(3)(b)
(iii) It is a foreign judgment from the countries set out in Schedule 1 of REJA --
s.3(3)(c)

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(iv) The application for registration is made within 6 years from the time the
judgment was issued. If there has been an appeal, the date runs from the
date of the last judgment in those proceedings – s.4(1)

5. Final and conclusive – s.3(4): a judgment shall be deemed to be final and
conclusive notwithstanding that an appeal may be pending against it, or that it
may still be subject to appeal in the foreign country.

6. Procedures pertaining to registration of foreign judgment under REJA – O.67 RC
2012:

(a) r.2 – by way of originating summons (in practice, this is done ex-parte)
(b) r.3 – requirements of supporting affidavit; note especially r.3(2)
(c) r.4 – security for costs
(d) r.5 – Order in Form 143; note especially r.5(2)
(e) r.7 – notice of registration; note especially r.7(3)
(f)

7. S.4 sets out circumstances when registration of a foreign judgment will not be
allowed:

(a) If the said judgment has been wholly satisfied – s.4(1)(a)
(b) If the said judgment cannot be enforced by execution in the country of the
original court -- s.4(1)(b)

8. Grounds for setting aside of the registration of foreign judgment by the
registering court:

s.5(1)(a):
(i) The judgment was registered in contravention of the REJA
(ii) The original court had no jurisdiction in the case
(iii) The judgment debtor, being the defendant in the proceedings in the
original court, did not receive notice of the proceedings in sufficient time
to enable him to defend the proceedings and did not appear
(iv) The judgment was obtained by fraud
(v) The enforcement of the judgment would be contrary to public policy in
Malaysia
(vi) The rights under the judgment are not vested in the person who applied for
registration

s.5(1)(b) – registration may be set aside if there was another judgment on the same
subject matter issued in the original court


9. S.5(2) sets out the circumstances when the original court is deemed to have
jurisdiction:

(a) in the case of a judgment given in an action in personam—

(i) if the judgment debtor, being a defendant in the original court, submitted to
the jurisdiction of that court by voluntarily appearing in the proceedings

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otherwise than for the purpose of protecting, or obtaining the release of,
property seized, or threatened with seizure, in the proceedings or of contesting
the jurisdiction of that court;
(ii) if the judgment debtor was plaintiff in, or counterclaimed in, the
proceedings in the original court;
(iii) if the judgment debtor, being a defendant in the original court, had before
the commencement of the proceedings agreed, in respect of the subject matter
of the proceedings to submit to the jurisdiction of that court or of the courts of
the country of that court;
(iv) if the judgment debtor, being a defendant in the original court, was at the
time when the proceedings were instituted resident in, or being a body
corporate had its principal place of business in, the country of that court; or
(v) if the judgment debtor, being a defendant in the original court, had an
office or place of business in the country of that court and the proceedings in
that court were in respect of a transaction effected through or at that office or
place;


(b) in the case of a judgment given in an action of which the subject matter was
immovable property or in an action in rem of which the subject matter was
movable property, if the property in question was at the time of the proceedings in
the original court situate in the country of that court; and

(c) in the case of a judgment given in an action other than any such action as is
mentioned in paragraph (a) or (b), if the jurisdiction of the original court is
recognized by the law of Malaysia.


10. S.5(3) sets out the circumstance where the original court shall not be deemed have
had jurisdiction:

(a) if the subject matter of the proceedings was immovable property outside the
country of the original court;
(b) except in the cases mentioned in subparagraph (2)(a)(i), (ii), (iii) and paragraph
(c), if the bringing of the proceedings in the original court was contrary to an
agreement under which the dispute in question was to be settled otherwise than by
proceedings in the courts of the country of that court; or
(c) if the judgment debtor, being a defendant in the original proceedings, was a
person who under the rules of public international law was entitled to immunity
from the jurisdiction of the courts of the country of the original court and did not
submit to the jurisdiction of that court.


11. Application to set aside is made by a notice of application supported by affidavit –
O.67 r.9

q Commerzbank (South East Asia Ltd) v Tow Kong Liang [2002] 3 CLJ 95 – when
considering an application to set aside the registration of a foreign judgment,
the court will not review the decision of the foreign court in arriving at its
judgment

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12. Execution – O.67 r.10; note especially r.10(1)

13. Enforcing a judgment obtained in Malaysia in the court of a foreign country – s.10
and O.67 r.13

s.10 -- Where a judgment under which a sum of money is payable, not being a sum
payable in respect of taxes or other charges of a like nature or in respect of a fine or
other penalty, has been entered in the High Court against any person and the
judgment creditor is desirous of enforcing the judgment in a reciprocating country
to which Part II applies, the court shall, on an application made by the judgment
creditor and on payment of such fee as may be prescribed issue to the judgment
creditor a certified copy of the judgment, together with a certificate
containing such particulars with respect to the action, including the causes
of action, and the rate of interest, if any, payable on the sum payable under
the judgment, as may be prescribed:

Provided that, where execution of a judgment is stayed for any period pending an
appeal or for any other reason, an application shall not be made under this section
with respect to the judgment until the expiration of that period.


Common Law

14. Enforcement of foreign judgments from non-REJA countries is done by obtaining a
“fresh” judgment by filing the originating process:

(a) File a writ and then apply for summary judgment – See Hua Daily News Bhd
v Tan Thien Chin & Ors [1985] 1 LNS 131

(b) File an originating summons – Delta Design Décor LLC v Pembinaan SPK
Sdn Bhd [2015] 5 CLJ 509

§ However Sardul Singh s/o Kauda Singh lwn Man Mahan Singh s/o
Kauda Singh dan satu lagi [2017] MLJU 1945 – the proper originating
process is writ action

15. Conditions for recognition of a foreign judgment by the adjudicating court –
Sakuragawa Pump (S) Pte Ltd v Perkapalan Mesra Sdn Bhd [2007] 1 LNS 417:

(a) The foreign court must have exercised a jurisdiction which the courts will
recognize;
(b) The judgment must be final and conclusive; and
(c) If based on an action in personam, the judgment must be for a fixed debt


16. Defences in resisting an action for recognition of a foreign judgment – Supreme
Court in See Hua Daily News Bhd v Tan Thien Chin & Ors [1985] 1 LNS 131:

(a) The foreign court had no jurisdiction
(b) The judgment was obtained by fraud
(c) The judgment would be contrary to public policy, and

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(d) The proceedings in which the judgment was obtained were opposed to
natural justice

17. The Supreme Court in See Hua Daily News Bhd’s case also acknowledged that
similar defences were available under s.5 REJA, and remarked that REJA, just like
the UK’s Foreign Judgments (Reciprocal Enforcement) Act 1933 does not greatly
depart from the common law rules, and that its main advantage is procedural.



Q3(a) Nov 2016

Abu is advised that he could enforce the judgment by registering the judgment in
Malaysia.

(i) The HC of Singapore judgment falls within Schedule 1 of REJA
(ii) Application for registration – O.67 r.2, r.3, r.4
(iii) Registration will be allowed if the conditions in s.3(3) are satisfied
(iv) Leave to register will be given pursuant to O.67 r.5; note in particular r.5(2)
(v) Notice of registration must be served pursuant to O.67 r.7

Abu is further advised that:

(i) Registration may be set aside by the judgment debtor under certain
circumstances as per s.5 of REJA
(ii) He may not issue execution until the expiration of the period specified in the
order for the setting aside to be filed – O.67 r.10

Once the period expires, or the registration was not set aside, Abu may enforce the
judgment by obtaining a writ of seizure and sale in relation to the condominium in
Johor.

§ O.45 r.1(1)
§ O.46 r.1, r.4, r.6
§ O.47

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Q1(a)

Abu wishes to compel the directors of Liner Sdn. Bhd. to provide the current
financial status of the company, with a view to enforce the judgment

Judgment Debtor Summons – S4 Debtors Act 1957 and O.74 r.11A – 11D

1. S4 Debtors Act 1957-

(1) Where the judgment of a court is for the recovery or payment of money
whether by instalments or otherwise the party entitled to enforce it (hereinafter
called the judgment creditor) may, subject to and in accordance with any rules of
court, summon the judgment debtor, or if the judgment debtor is a corporation
an officer of that corporation, to be orally examined before the court respecting
the judgment debtor's ability to pay or satisfy the judgment debt, and for the
discovery of property applicable to such payment and to the disposal that the
judgment debtor has made of such property.

(2) The judgment debtor, or, where the judgment debtor is a corporation, the
officer thereof who has been summoned, shall, when called upon, produce all
books, papers or documents in his possession or power relating to such property.

(3) The judgment creditor may subpoena as a witness any person whom he
considers likely to be able to supply information respecting the judgment debtor's
ability to pay the judgment debt or respecting his property.

(4) Whether the judgment debtor, or, where the judgment debtor is a corporation,
the officer thereof, appears or not the judgment creditor and other witnesses may
be examined on oath respecting the matters aforesaid.

(5) If the judgment debtor, or, where the judgment debtor is a corporation, the
officer thereof having been duly served does not appear, the court may -

(a) order him to be arrested and brought before the court to be examined;
or

(b) make an order against the judgment debtor ex-parte.

(6) Upon such examination or non-appearance as aforesaid the court may order
the judgment debtor to pay the judgment debt either -

(a) in one sum whether forthwith or within such period as the court may
fix; or

(b) by such instalments payable at such times as the court may fix.

(7) If the judgment debtor makes default in payment according to any such order,
a notice in the form prescribed by rules of court may be issued, on the request of

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the judgment creditor, calling upon the judgment debtor to attend before the
court at a time therein stated and show cause why he should not be committed to
prison for such default.

(8) Any such notice shall be personally served upon the judgment debtor; and if,
on the day so named, or on any subsequent day to which the matter may be
adjourned, no sufficient cause is shown by the judgment debtor, the court may
commit him to the civil prison for a term which may extend to six weeks or until
earlier payment of any instalment or instalments or other sum due.

(9) A debtor shall not be committed to prison under this section unless it appears
that, since the date of the order directing payment, whether forthwith, or within a
specified period or by instalments, he has had sufficient means to comply with the
order.

2. If judgment debtor fails to attend court – he may be arrested and brought

before court for the examination – s4(5) Debtors Act 1957.

3. Procedure-
a. Filling a request in Form 174 signed by the applicant / his solicitor –
O.74 r.11A
b. A judgment debtor summons shall be in one of the forms in Form
177, and it shall be served personally on the person summoned at
least 7 days before the hearing date (unless the Court orders
otherwise) – O.74 r.11b

4. Upon examination of the directors of the company under this procedure,
the Court may order the company (judgment debtor) to pay the judgment
sum in lump sum or installment. Any default to such Court order is
punishable by contempt.

5. This is a similar procedure with examination of a judgment debtor in aid of
the execution of a judgment under O.48

Examination of Judgment Debtor – O.48

1. A procedure to gather information as to the means of the judgment debtor
for the purpose of determining the appropriate method of enforcement.

2. ‘Examination’ is not only intended to be an examination, but to be a cross-
examination, and that of the severest kind, United Overseas Bank v Thye
Nam Loong (S) (Suit No 413 of 1994). Thus, the judgment creditor or his
advocate should be knowledgeable and equipped with sufficient material in
order to effectively contradict any false responses to their questions.

3. Procedure:
a. Ex-parte Notice of Application supported by an affidavit in Form 95

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b. An order shall be in Form 96 and must be served personally on any
officer of a body corporate (the director of the company)


Q4(a)

o O.41 r.6 RC 2012

1. O.41 r.6 enables the court to strike out matters which are scandalous,
irrelevant or otherwise oppressive from any affidavit – MUI Bank v Alkner
Investments (Pte) Ltd [1990] 3 MLJ 385

2. 3 separate heads – the applicant must specify which part of the affidavit falls
under which heading - Wee Building Materials Sdn Bhd v Muhamed Bin
Maidin [1997] 3 AMR 2634

3. Matters of hearsay have been struck out under r.6 but the court did not set
out under which heading
NV Sumatra Tobacco Trading Co v. PT Sampoerna JL Sdn Bhd [1997] 3
CLJ 946

4. Scandalous has the same meaning as per O.18r.19(1)(b) – it means wholly
unnecessary and irrelevant and not just unpleasant allegations -- Kantan
Jaya Marine Services (PG) Sdn Bhd v RHB Bank [2001] 2 CLJ 738

a. AmInvestment Bank Bhd v Nep Holdings (M) Bhd [2014] 8 MLJ 271 –
evidence raised in the defendant’s affidavit was hearsay and
inadmissible. Eventhough r.5(2) provides for an exception in respect
of affidavits sworn for interlocutory proceedings, the present
application for summary judgment was not an interlocutory matter
but a final matter which would be decisive on the rights of the
parties. Thus the affidavit of the defendant should only contact facts
that he was able of his own knowledge to prove.

b. Repco (M) Sdn Bhd v Tan Tho Fatt [2003] 6 CLJ 478 :

By way of para. 5 of encl. 59, the plaintiff is seeking the leave of this
court to strike out an averment in para. 7 of encl. 58 on the grounds
that they are untrue and scandalous. The averment which the
plaintiff seeks to strike out reads as follows:
... it is the plaintiff who has been orchestrating the conduct of the case
from its commencement thus far by filing the various interlocutory
applications...

The law is quite clear on this matter. The court will only strike out a
matter that is scandalous, irrelevant and/or otherwise oppressive. The
court will not strike out a matter which is scandalous but not

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irrelevant, nor would the court strike out a matter which is
irrelevant, but not scandalous. Order 41 r. 6 of the RHC reads as
follows:

Scandalous etc, matter in affidavits (O. 41 r. 6)
The Court may order to be struck out of any affidavit any matter which
is scandalous, irrelevant or otherwise oppressive.

Thus, insulting remarks and offensive language should not find
its way in an affidavit. The affidavit too must be free from
scandalous or oppressive matter. The court is empowered to strike
out the offending part or parts of the affidavit if there is a failure to
comply with this rule (Osmaston v. Assn of Land Finances[1878] WN
101; Kernick v. Kernick [1864] 12 WR 335;Goddard v. Parr [1855] 24 LJ
Ch 783; Cracknall v. Janson [1879] 11 ChD 1; Rossage v. Rossage [1960] 1
WLR 249; and MUI Bank v. Alkner Investment (Pte) Ltd[1990] 1 LNS
74; [1990] 3 MLJ 385).

Should I strike out the averment as reproduced above? In my
judgment, that averment is relevant and it is not scandalous at
all. Neither is it oppressive in nature. The defendants' application
in encl. 50 is simply to set down the action herein for an early trial and
so the conduct of the plaintiff as alluded to in the averment as
reproduced above would be highly relevant in this regard. So, I refuse
to strike out that averment and I let that averment to remain in the
affidavit.

5. Irrelevant – EA 1950 does not apply for considerations under this heading

6. Oppressive – dictionary meaning – harsh or cruel or difficult to endure


Q5(b)

(A) First issue : Ali did not know about the hearing date, and he was not
present at the first hearing date:

1. A charge action within the scope of O.83 Rules of Court 2012 (RC 2012)
includes a legal and an equitable charge. The scope of O.83 is set out in r.1 –
it applies to any action where a chargee / chargor / any person having the
right to foreclose or redeem a charge is seeking for any of the reliefs set out
in r.1, including payment of moneys secured by the charge, sale of the
charged property, and foreclosure.

2. The object of O.83 is to identify clearly the facts relating to liability and
quantum under the charge. In an application for an order for sale under the
National Land Code (NLC) s.256, it should be noted that the procedure

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under the provision is meant to be speedy and summary in nature. The
court is concerned with:

(i) Whether the chargee has given the appropriate statutory notices in
accordance with the NLC / Code; and
(ii) Whether the procedural requirements prescribed by O.83 have been
complied with.

Charge Actions begun by Originating Summons, where the Plaintiff is
the chargee and claims delivery of possession or payments of moneys
secured by the charge or both – O.83 rr.2 & 3

3. Provisions of O.83 r.2 apply in a charge action begun by originating
summons claiming delivery of possession, payments of moneys secured by
the charge, or both.

4. After obtaining a date for the hearing of the originating summons, the
plaintiff must serve on the defendant the originating summons and a copy
of the affidavit in support of the summons, not less than four clear days
before the day fixed for the first hearing of the OS – r.2(2).
(i) The affidavit in support of the OS must be indorsed on the outside
fold with a notice informing the defendant that the plaintiff intends
at the hearing to apply for an order of possession of the charged
property and for such other relief, if any, claimed by the originating
summons – r.2(3);
(ii) If the hearing is adjourned and the defendant was absent from the
hearing, the plaintiff must serve a written notice of the adjourned
hearing, together with a copy of any further affidavit intended to be
used at the hearing- r.2(4)


5. The requirement of service of written notice of the adjourned hearing only
applies where the defendant was absent from the hearing – OCBC Bank (M)
Sdn Bhd v Lean Seng Pottery Factory Sdn Bhd [1999] 2 MLJ 402.

6. In Asia Commercial Finance (M) Bhd v Kimden Housing Development Sdn
Bhd [1993] 1 MLJ 283 the plaintiffs failed to issue and serve on the
defendants a notice of appointment for the adjourned hearing under r.2(4).
James Foong J held that this amounted to the deprivation of defendant’s
fundamental right to be heard and as such, the defendants were entitled to
an order to set aside the judgment ex debito justitiae.

7. r.2(4) is merely a statutory enunciation of the fundamental rule of natural
justice – the audi alteram partem rule which means to hear to other side –

q Muniandy Thamba Kaundan & Anor v Development & Commercial Bank
Berhad & Anor [1996] 1 MLJ 374 FC, per Edgar Joseph Jr. FCJ:

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§ In other words, in my view, O. 83, r. 2(4) is merely a statutory
enunciation of the fundamental rule of natural justice as expressed in
the Latin maxim audi alteram partem (hear the other side) so that
the obligation to serve notice of the adjourned hearing of the
originating summons remained even if O. 83 r. 2(4) did not apply.

It was said by Fortescue J in R. v. Chancellor of Cambridge University
[1723] 1 Stra 557 where Dr. Bentley had been deprived of his academic
degrees by decree that the principle goes back to the Garden of Eden.
This is how his Lordship put it:

The objection for want of notice can never be got over. The laws of
God and man both give the party an opportunity to make his
defence, if he has any. I remember to have heard it observed by a
very learned man, upon such an occasion, that even God himself
did not pass sentence upon Adam before he was called on to make
his defence. "Adam" (says God), 'where art thou? Hast thou not
eaten of the tree whereof I commanded thee that thou shouldest
not eat? And the same question was put to Eve also.

§ The third point I should like to take is the contention by Counsel for
the chargees that, in any event, inspection of the Court file showed
that there was in it a copy of a letter addressed to the chargors
stating that the originating summons had been adjourned for
hearing on 29 January 1992, which suggested that due notice of the
adjourned date of hearing had been sent to the chargors and, on this
basis, it was said that there was sufficient compliance with the
requirements of O. 83 r. 2(4).

§ It is obvious, that "sending" a notice is a far cry from "serving" a
notice, and I had, during the arguments, pointed this out to Counsel
for the chargees, and he readily agreed with this proposition. Indeed,
there was no proof of posting of this notice, and even if there had
been, this even if accompanied by the fact that it was not returned,
would not have sufficed as proof of service, in the absence of a
deeming clause in the contract of loan or the annexure to the charge,
bearing in mind especially the denial on oath by the chargors of
receipt of the notice of the adjourned date of hearing.


8. The FC in the case above held that ‘serving’ of the notice requires more than
simply sending the notice by post – and this was applied in Dayakuasa
Holdings Sdn Bhd v Kayaal Holdings Sdn Bhd [2003] 2 MLJ 263, which held
that transmission by post of a statutory demand does not constitute proper
service pursuant to the Companies Act 1964 s.218(2).

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9. A failure to serve notice in accordance with r.2(4) will generally be of such
fundamental importance as to render any orders obtained a nullity : Bank
Bumiputra Malaysia Bhd (Shah Alam) v Wee Chye Luan [2000] 1 AMR 700. If
orders are rendered null and void, then the principle of functus officio does
not apply -- Muniandy Thamba Kaundan & Anor v Development &
Commercial Bank Berhad & Anor [1996] 1 MLJ 374 FC

10. In Public Bank Bhd v Lee Kin Mio [2006] 3 MLJ 47, Low Hop Bing J (as he
then was) stated that-

For the purpose of ascertaining whether the plaintiff has fulfilled the
requirement of not less than two clear days under O. 83 r. 2(4), it is to be
noted that there has been no dispute that the notice of adjourned hearing was
dated 23 November 2003 and was sent by AR registered post. This service by
post is expressly authorised by O. 10 r. 1(1). Under s. 12 of the Interpretation
Acts 1948 and 1967, where a written law authorises postal service, then unless
the contrary is proved, service shall be presumed to have been effected at the
time when the letter (in this case, I would add, includes the said notice) would
have been delivered, in the ordinary course of post.

à The first hearing date was 21.8.2018 where Ali did not attend. It appears
that the hearing was then adjourned to 25.9.2018, where the court
granted the Order for Sale
à Written notice must be served pursuant to O.83 r.2(4)
à The order granted was thus a nullity

(B) Second issue : Ali was not aware of the amount remaining due under
the charge as at the hearing date

§ O.83 r.3

11. The affidavit in support of the OS shall comply with r.3:

(a) It must exhibit a copy of the charge;
(b) It must give particulars of every person who to the best of the
plaintiff’s knowledge is in possession of the charged property;
(c) It must show the circumstance under which the right to possession
arises and, except where the court otherwise directs, the particulars
of the amount remaining due under the charge as at the hearing of
the OS;
(d) Must prove that the money claimed is due and payable

12. The object of the requirement for the particulars to be stated in the affidavit
is to let the chargor know, at least by the date of the originating summons is
filed, the exact sum that he is bound to pay to the chargee. If the amount is
disputed, the court must be able to say precisely, when making its order ‘the
total amount due to the chargee at the date on which the order is made’ –

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these words are from s.257(1)(c) of the NLC and they are mandatory –
Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608, followed in Maimunah
bte Megat Montak v Mayban Finance Bhd [1996] 2 MLJ 422 SC.

13. Cases on contents of the affidavit in support:

q Bumiputra-Commerce Bank Bhd v Abu Kassim bin Saidin & Anor [2015] 3
MLJ 714 CA – the Court stated that the failure to exhibit the letter of
demand in the context of the agreement between the parties here was
not fatal to the claim, since the appellant had satisfied the requirements
of particulars required by r.3 in respect of the moneys as claimed

q Public Bank Bhd v Teck Huat Bricks and Tiles Factory Sdn Bhd [2004] 3
MLJ 88 – it was held that insofar as compliance with the procedural
requirements prescribed by RHC O.83 was concerned, all that the
plaintiff was required to state was-
(1) the amount of the advance;
(2) the amount of the repayments;
(3) the amount of any interest or instalment in arrears at the date of
issue of the originating summons and as at the date of the affidavit; and
(4) the amount remaining due under the charge

q OCBC Bank (M) Sdn Bhd v CTK Enterprise Sdn Bhd [2000] 6 MLJ 372 –
where there is non-compliance with the provisions of this rule, a
subsequent affidavit may be filed which will remedy the defect.


q Sathunavakey @ Kanagaratnam Sivajothy v Oriental Bank Bhd [2008] 1
MLJ 461, CA-
o The appellant claimed that the respondent failed to comply with
O.83, as the amounts of interest in arrears were calculated only up to
30 June 1997, and the same date was used for the amounts due and
owing under the charges, instead of the dates of issue of the OS on 2
Oct 1997 or of the supporting affidavit on 1 Oct 1997.
o The court held that the respondent was required to satisfy the
requirements of r.3(3) in that the OS and the affidavit must state the
amount of any interest or instalments in arrear as at the date of the
issue of the OS and the date of the affidavit. The supplementary
affidavits filed by the respondent thereafter failed to cure the defect in
the non-compliance.


14. The purpose of r.3 is to inform the defendant how much is being claimed.
Therefore, if the plaintiff merely indicates a lump sum without particular so
that it is unclear what the components of the sum are, the application is
very likely to faile – Lum Choon Realty Sdn Bhd v Perwira Habib Bank
Malaysia Bhd [2003] 4 MLJ 409, CA

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15. Consequences of non-compliance with r.3(3) and r.3(6) – while such failure
has been held to be serious omissions which warrant the dismissal of the
action, such as in Ambank (M) Sdn Bhd v Meridian Gardens Sdn Bhd [2008]
MLJU 245 – the ambiguities and uncertainties in the figures were evident so
as to constitute a failure on the part of the plaintiff to comply with the strict
and mandatory requirements of r.3(3); the following cases must also be
noted.

q Arab Malaysian Bank Bhd v Lian Yit Engineering Sdn Bhd [2000] 2 MLJ
51– a mere failure to give details and particulars under r.3 does not give
rise to “cause to the contrary”

q Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608 – Shanker J
suggested that r.3(3) gave the court the power to dispense with the
statutory particulars ‘in any case or class’, and failure to comply could be
cured under O.2 r.1.
− Shanker J’s opinion is supported by the SC in Maimunah bte
Megat Montak v Mayban Finance Bhd [1996] 2 MLJ 422 SC.

q Multi-Purpose Bank Bhd v Diamond Agreement Sdn Bhd [2000] 5 MLJ 576
– application need not be struck out for failure to fulfill r.3(3) to the
letter – it was sufficient that the sum of principal and interest owing be
stated and the defendant was not deprived of the opportunity to repay
the sum

q Standard Chartered Bank Malaysia Bhd v Ting Kah Kuong [2008] 7 MLJ
508 – the plaintiff’s omission to provide the particulars was minor
because the amount of the arrears for the overdraft as at the date of the
affirmation of the affidavit was the same as the amount owing at the
date on which the OS was issued. Further, the defendant had not
suffered any prejudice by the omission.


16. In Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd [2006] 5
MLJ 21, the majority of the Federal Court held that:

(i) It would be absurd for the requirements of r3(3) to be complied with
only in situations when it is for payment of moneys secured by a
charge or for delivery of possession but not for the foreclosure or sale
of the charged property.
(ii) There is no reason in reason and in law for the distinction
(iii) r.1(1)(a),(b),(c) and (d) read with r.3(3) has the same impact. It
concerns and protects the rights of a chargor who is on the brink of
having his property sold at an auction, to know exactly where he
stands in terms of, inter alia, the amount of advance, amount of
repayment and the amount of interest or instalments in arrears at

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the date of the issue of the OS, in order to have the opportunity for
repayment, before the fall of the hammer. This is as provided for in
the NLC s.266.
(iv) Their Lordships were of the opinion that from a legal and moral
standpoint it is incumbent for the chargee to provide particulars in
consonance with r.3(3) when the chargor is facing the prospect of
losing his property pursuant to r.1(1)(b) or (c).
(v) This is the legislative intent in enacting r.3
(vi) Since r.3(1) and (3) was not drafted well enough to reflect the true
intention of the legislature, the courts should therefore give effect to
the true intention of the legislature, even if a provision of a statute is
far from being happily enacted (Rugby Joint Water Board v Foottit
[1973] AC 202 HL referred)
(vii) Thus, the procedural requirements of r.3 must be complied with
strictly for the purpose of seeking an enforcement of a charge
registered under the NLC by way of an order for sale, regardless of
the reliefs sought.
(viii) Lapse of time is not a bar to an application to set aside an order for
sale that is so fundamentally flawed.
(ix) In the instant case, the charged property had yet to be sold by public
auction. Thus, no third party had suffered prejudice by reason fo the
respondent’s delay in apply to set aside an order for sale.
(x) Non-compliance with r.3(3) would render an order for sale defective
and liable to be set aside.

However, note the dissenting judgment of Abdul Hamid FCJ:

(i) The English land law system is not based on the Torrens System and the
concept of the English mortgage is not consistent with the Torrens
System
(ii) In a mortgage, the title passes from the mortgagor to the mortgagee
whereas a duly registered charge under the NLC only creates a legal
interest in the land
(iii) In a mortgage, the title passes to the mortgagee with the mortgagor
retaining the right of redemption, when the mortgagor defaults in the
payment of the mortgage debt, the mortgagor "forecloses" ie, bars the
mortgagor from exercising the right of redemption. On the other hand,
in a charge, the title remains with the chargor. If the chargor defaults in
the payment of the debt, the chargee may apply for an order of sale.
(iv) As a result, English land law terms are being used interchangeably but
erroneously with the terms used in the NLC: "mortgage" for "charge",
"foreclosure" for "order for sale", "redemption" for "discharge" etc.
leading to confusion as they have different legal meanings.
(v) To avoid confusion, it is better that we stick to the terms used in the
NLC and ignore those English land law terms even though they are used
in O.83

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(vi) Order 83 is not land law and it cannot override or add to the provisions
of the NLC regarding substantive land law.
(vii) There are two categories of remedies available to a mortgagee; one is a
personal action against the mortgagor for the recovery of the debt and
the other is by enforcement of the security that includes possession, sale
and foreclosure. On the other hand, the NLC provides only two
remedies to a chargee ie, sale and possession. The NLC does not talk
about action for recovery of debt because the NLC only refers to the
remedies of a chargee to enforce the charge. It does not refer to a
personal action, which is a separate matter based on the covenant to pay
under the agreement, which is quite properly provided for in O. 83 RHC
1980.
(viii) The order for sale applied for is specifically provided for by the NLC. The
NLC only requires three things to be stated in the notice: specifying the
breach, requiring the breach to be remedied and warning of the danger
of non-compliance with the notice - s. 254. When the order is made, the
order should specify the total amount due as on the date the order is
made - s. 257(1)(e). Under the NLC, that is all that is required to be
disclosed to a court regarding the amount due to enable the court to
specify the amount in the order.
(ix) Order 83 r. 3 RHC 1980 only applies to a charge action in which the
plaintiff is the chargee and claims delivery of possession (under Chapter
4, Part Sixteen of the NLC) or for payment of moneys secured by the
chargee or both. The rule says clearly that it applies to application for
delivery of possession and for payment of moneys secured by a charge,
but does not say that it is applicable to an application for an order of
sale. Effect must be given to it.
(x) The court agreed with Abdul Aziz Mohamad J's opinion in Perwira Affin
Bank Berhad v. Tan Tian Ser that O. 83 r. 3 RHC 1980 is not applicable to
an application for an order for sale pursuant to s. 257 NLC. It applies to a
claim for vacant possession and a claim for payment of moneys secured
by the charge, or both, as the rule clearly says.
(xi) Under s. 257(1)(c) NLC it is provided that the order for sale shall "specify
the total amount due to the chargee at the date on which the order is
made." That is all that is required to be stated by the NLC as far as the
amount due is concerned. The "total amount due" clearly includes
interest. So, the inclusion of the interest in the "total amount due" in the
order for sale is a requirement of the section. It has to be included. The
particulars mentioned in r. 3(3) RHC 1980 need only be given where the
chargee claims payment of moneys secured by the charge. This is an
application for an order for sale.
(xii) Order 83 r. 3(3)(c) and r. 3(7) RHC 1980 do not apply to an application
for an order for sale under s. 256 NLC. Therefore, the failure to comply
with the said rules does not render the order for sale defective and to be
set aside. Even if the said rule applies, the circumstances of this case do
not warrant the order for sale to be set aside.

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(xiii) If the Court of Appeal meant to say that failure to give notice to vary the
rate of interest amounts to "cause to the contrary", it would be contrary
to Low Lee Lian. Low Lee Lian did not decide whether O. 83 r. 3 RHC
1980 must be complied with. As such, it cannot be said whether non-
compliance thereof is in conflict with Low Lee Lian (supra) or not.

If the action by ANTI Bank was commenced by Writ O.83 r.4

17. The plaintiff may not sign judgment in default of appearance or of defence
without leave of court – r.4(1). The notice of application must be served on
the defendant notwithstanding O.62 r.10 – r.4(2)

18. The requirements of r.2(3),(4) and (5) will apply to the notice of application,
subject to the modification that references to the OS therein are references
to the notice of application – r.4(3)

19. Where a notice of application for leave is issued in an action to which r.3
would apply had the action been begun by originating summons, the
affidavit in support must contain the information required by that rule –
r.4(4)

à It is likely that Ali would be able to set aside the Order for Sale.


Q6(a)

1. The puchaser’s solicitors can apply for relief by way of interpleader – O.17
RC 2012

2. Stakeholder interpleader
− Whenever two or more persons make a claim for a sum of money, goods or
chattel held by a person, and this person is unsure as to the rightful owner.
− Eg: Lee Heng Moy (f) v John Hancock Life Insurance (M) Bhd [2010] 1 MLJ
624, CA – the first respondent insurance company was confronted with two
competing claims to the insured sum amounting to RM352,229.39. The first
respondent filed an interpleader summons under O.17

3. Rationale of stakeholder interpleader – Tong Lee Co Pte Ltd v Koh Chiow
Meng : interpleader proceedings are not, in the strictest sense, proceedings
against anybody, but are proceedings, the object of which is to extricate the
applicant from the embarrassment of being sued, or likely to be sued, by
more than one party in respect of the same subject matter, and also to put
the claimants in a position in which, if they are going to insist upon their
claims, they should do so when the application was made.

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 Civil Procedure – Nov 2018

− FC in Tetuan Teh Kim Teh, Salina & Co (a firm) v Tan Kau Tiah @ Tan
Ching Hai [2013] 4 MLJ 313 – stakeholders should be impartial and should
not play on the same side as one of the claimants.

4. In seeking interpleader relief, an applicant must genuinely face a potential
suit by one or more persons, in the sense that the applicant must have some
real expectation of being sued.

q Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd [2009] 7 MLJ
124 – the High Court held that the application did not meet this
requirement since the applicant was not faced with two or more
competing claims. Moreover, the applicant did not face any real
threat of litigation since the threats by the second and third
claimants in the instant case could not be construed as threats of
legal suit


5. Application to court is by way of originating summons [O.17 r.3]

− A stakeholder applicant must file and serve an affidavit in support in the
manner specified under r3(2), among others, stating that he claims no
interest in the subject matter in dispute (other than cost)

− The applicant may be said to have an interest in the subject matter if he
has a financial stake in the result of the proceedings – Murietta v South
American etc Co Ltd [1893] 62 LJQB 396

− If the stakeholder has already first been sued by one or more claimants,
he must proceed by way of a notice of application. In such a situation,
the court will stay all proceedings in the pending action (under r.7)
except for the interpleader summons so that the determination of the
respective adverse claims may be decided first

6. Power of Court:

(a) Dismiss the originating summon / notice of application if rr. 1 and 3
are not satisfied.

(b) Decide the merits of the application summarily [O.17 r.5(2)]

− Commonly adopted in clear and straightforward cases, for
example, where expedition is desirable in cases where goods are
likely to deteriorate if proceedings are delayed

q Ee & Lim Advocates v Gin Nam Development Corp Sdn Bhd &
Anor [1992] 3 CLJ 1575 – issue between the claimants involved
interpretation of the provision in a sale & purchase

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 Civil Procedure – Nov 2018

agreement. The facts are not in dispute and sufficiently set out
in the affidavit. Court decided the O.17 application summarily.

− Where the goods are of considerable value and there are difficult
questions of law, summary disposal of the matter will be
inappropriate – Fredericks and Pelhams Timber Buildings v
Wilkins (Read, Claimant) [1971] 3 All ER 545, CA (Eng)

(c) Trial of an interpleader issue – appropriate for cases requiring careful
and detailed investigation of the issues. The court may give
directions pertaining to discovery, inspection and interrogatories and
other interim steps to be taken prior to the full trial – rr 10 and 11
− A trial of interpleader is a trial proper, any order made is thus
final and subject to rules applicable to appeal

7. Orders which may be made

• There are some specific and incidental orders which may be made
pending the determination of the issue or pending the decision on the
issue:

i. Payment into court – the court may order one party to either make
payment into court of an amount representing the value of the goods
or give security before making an order to release the goods to him

ii. Sale of goods [rr 6 & 8] – if the goods are perishable, the court may,
for the sake of saving costs and charges on holding onto the goods,
order that the goods be sold under rr 6 and 8


8. In a stakeholder’s interpleader:

o The applicant is entitled to costs up to the date he brought into court the
amount claimed and this will be borne by the unsuccessful claimant –
Goodman v Blake[1887] 19 QBD 77

q Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd [2009] 7 MLJ 124
– generally, no costs should be ordered against an applicant in an
interpleader, unless:
i. where the application was unnecessary;
ii. the applicant had refused to withdraw the application when
given the opportunity to do so
iii. the application was made after an inordinate delay

o The court may also make order as to payment of the charges and
expenses incurred by the applicant

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 July 2018 (Civil Procedure)

Q2(a)

Stakeholder interpleader – see Q6(A) Nov 2018


Q3(iii)

Enforcement of monetary judgment – O.45 r.1
(it appears that the judgment is only for the sum of 150,000; no judgment was
obtained for delivery of movable property)

Foon owns a bungalow - Writ of Seizure & Sale of Immovable Property for the
bungalow

1. A judgment creditor must file an application in the High Court for an order
of prohibition to be registered against the land / an interest therein. Its
effect is set out in s336 NLC – the order will prohibit the judgment debtor
from transferring, charging or leasing property. This is known as a
prohibitory order.

2. S334 NLC - In this Chapter "prohibitory order" means, where land or an
interest in land held by a judgment-debtor is to be sold in execution
proceedings, an order made pursuant to rules of court by a court of
competent jurisdiction prohibiting the judgment-debtor from effecting any
dealing therewith or from effecting such dealing therewith as may be specified
in the order.

3. The judgment creditor may then proceed with execution by a writ of seizure
and sale.

q Keystart Sdn Bhd v Forgetech Sdn Bhd [1998] 2 AMR 1280 – there is
no necessity for a WSS to be taken out simultaneously with or before the
issuance of a prohibitory order.

4. In Peh Wee Lee & Anor v. Pendaftar Hakmilik Negeri Sembilan & Ors [2018] 5
CLJ 681, the Court of Appeal held that the Sessions Court has no jurisdiction
to issue a prohibitory order – since it falls within s.69(2) Subordinate Courts
Act 1948. The CA held that the word “court” in s.334 of the NLC means the
“High Court”
o An application for prohibitory order must be made by way of ex-
parte originating summons supported by affidavit
o The prohibitory order must be registered in the land office where the
land is situated – O.47 r.6(e)
o The prohibitory order is valid for 6 months – O.47 r.6(f)

5. Procedure as per writ of seizure and sale of movable property + O.47 r.6 (in
relation to the prohibitory order)

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6. Sale of immovable property as per O.47 r.7


1. Procedure

§ O.45 r.1 : judgment / order for payment of money
§ O.45 r.12 : forms
§ O.46 r.2 : leave
§ O.46 r.4 : issuing of writ
§ O.46 r. 6 : duration & renewal
§ O.46 r.7 : recovery of fees, expenses & commission
§ O.46 r.11 : deposit sum of money
§ O.47 r. 5: withdrawal and suspension of writ
O47 r.1 : power to stay execution

§ O.46 rr. 14 – 21 : duties of Sheriff / Bailiff during execution

− Sheriff / bailiff act in the interest of, and upon instructions by the
execution creditor
− But due regard must be given to the interest of judgment creditor
− Any third party dispute:
- resort to interpleader
- liability in trespass and conversion
- acting in excess of authority

O.46 rr. 22 & 23 : sale by auction


Q6(b)

1. Ah Kow can make an application for interim payment under O.22A

2. Purpose of O.22A Rules of Court 2012 is to allow the court to make an

order requiring the defendant to pay the plaintiff a certain sum of money
which the plaintiff is claiming from the defendant in the proceedings, to
alleviate the plaintiff’s hardship – ie the plaintiff will be awarded at earlier
stage of the proceedings what will become due to him at a later date.

3. The court is empowered to make an order for interim payment in respect

of damages (r.3) or in respect of sums other than damages (r.4)

i. Damages
ii. Sums other than damages, such as:

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 July 2018 (Civil Procedure)

§ order for account (O.43 – eg accounting on a claim for

monies accruing to a firm, monies received from the sale of
produce derived from land, accounting in relation to trust,
accounting between principal and agent)
§ claim for possession for land and money payable in respect of
that use
§ claim on a quantum meruit basis

4. "interim payment" means a payment on account of any damages, debt or

other sum (excluding costs) which a defendant may be held liable to pay to
or for the benefit of the plaintiff

q David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia

Technology Sdn Bhd [2005] 1 CLJ 589 CA

The plaintiff suffered serious head injuries as a result of being hit on the
head by a safety wheel which fell off a monorail train on a test run while he
was crossing the road. The plaintiff filed an action against the respondents
for their negligence in operating the monorail train and claimed general
damages in the sum of RM5,000,000 and special damages. The
respondents disputed the claim. Pending the trial, the appellant filed an
application for an interim payment of RM250,000 in respect of damages.
The High Court dismissed the claim.

The Court of Appeal allowed the appeal (and allowed the claim for an
interim payment), and held the following:

a. the purpose of O.22A interim payment is to alleviate a plaintiff’s

hardship before trial
b. there is no necessity for the Plaintiff to make out a case that his
condition had deteriorated so that an interim payment is needed to
meet a worsening medical condition
c. O.22A is available to any plaintiff and not limited only to those
whose condition is deteriorating
d. The statement of claim showed that if the appellant succeeds, he
would be entitled to substantial damages
e. The medical report showed that the appellant had suffered severe
brain damage as a result of the accident
f. The court noted that brain damage is generally recognized as giving
rise to ‘substantial damages’ or ‘substantial loss’
g. The court was also of the view that the appellant was a ‘conscious
sufferer’ who would suffer more than a victim who is brain-dead or
comatose
h. The High Court judge failed to appreciate that the present case falls
within the ‘substantial damages’ category and instead confined
himself to determining whether there has been deterioration in the
appellant’s condition since the accident
i. The High Court judge on the issue of liability also failed to have
regard to the type of accident by which the appellant suffered his
injuries

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 July 2018 (Civil Procedure)

j. It was a type of accident which clearly called for the respondents to

explain how the safety wheel could have dislodged and dropped on
the appellant, a res ipsa loquitur situation; where in the absence of
explanation by the respondents, negligence may be inferred
k. The respondents pleaded an act of an unknown third party as
responsible for the dislodgement of the safety wheel, but there was
no averment in respect of this third party intervention
l. The learned judge’s conclusion that the damages would be
substantially reduced because of novus actus inerveniens is wrong
– as the judge had concluded based on material which was not yet
tested at that stage
m. There was no basis in law for the trial judge to conclude that in the
event the respondents succeeded in their third party intervention
defence, the respondents would be absolved from liability altogether
or that damages would be substantially reduced.
n. However, the basis of the appellant's claim for RM250,000 interim
payment was that he would recover substantial damages at the trial
of his action for negligence. The respondents, however, contended
that any award to compensate the appellant if he succeeded at the
trial, would not exceed a sum in the region of RM50,000 to
RM60,000 based on the current trend of authorities. For that
reason the respondents suggested an interim payment of
RM20,000 to be a fair figure. In our view, the sum offered was too
low. Therefore, in the circumstances of this case and based on the
available evidence and the current authorities on comparable
damages, we are of the opinion that the appellant would be able to
recover substantial damages exceeding RM50,000 if the matter
proceeded to trial. However, in this case, the appellant's claim for
RM250,000 for an interim payment under O. 22A was rather
excessive. A sum of RM50,000 would be more reasonable. In the
exercise of our discretion, we made the orders accordingly.

5. Manner of making application is provided in r.2 – by a notice of

application in Form 33 supported by affidavit.

6. r.2(3) states that in the affidavit, the plaintiff must:

(a) verify the amount of the damages, debt or other sum to which the
application relates and the grounds of the application;

(b) exhibit any documentary evidence relied on by the plaintiff in support

of the application; and

(c) if the plaintiff's claim in connection with fatal accident and the claim is
on behalf of dependents or the estate of the deceased (made under Part III
of the Civil Law Act 1956), the affidavit must contain the full particulars of
the person for whom and on whose behalf the action is brought and of the
nature of the claim in respect of which damages are sought to be
recovered.

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 July 2018 (Civil Procedure)

7. The notice of application and the affidavit in support must be served on

the defendant not less than 14 clear days before the return day.

8. Grounds for contesting interim payment:

(a) By a technical objection – for example, that the claim is for personal
injuries and that he is not a person insured in respect of the
plaintiff’s claim; and that he is not a person whose means and
resources are such as to enable him to make an interim payment.

(b) On merits by showing there is a serious doubt as to whether plaintiff

will recover anything

§ The burden is on the plaintiff to prove on the balance of

probabilities that it is appropriate for the court to order an
interim payment to alleviate the plaintiff’s hardship

§ Mediahouse Sdn Bhd v Koh Kim Suan [1998] MLJU 300 – the
court set out the true nature of O.22A, stating that the court has
the jurisdiction to make an order for interim payment without
requiring the Plaintiff to satisfy the court either of his need for
an interim payment or that he would suffer prejudice if he did
not obtain it, since there was no restriction implicit in the rules
which would prevent an interim payment being made in the
absence of evidence of need or prejudice.

(c) On quantum – taking into account any relevant contributory

negligence, set off, cross claim or counterclaim

9. Grounds for application for interim payment in respect of damages under

r.3:

(a) The defendant has admitted liability

(b) The plaintiff has obtained judgment against the defendant for
damages to be assessed

(c) If the action proceeded to trial, the plaintiff would obtain judgment
for substantial damages against the defendant / defendants

q Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd

[1987] 2 All ER 181 CA Eng – the standard of proof required
is more than a mere prima facie case is required but not
proof beyond a reasonable doubt; it is a civil burden on the
balance of probabilities

10. r.3(2) states that an order for interim payment in an action for personal
injuries will not be made unless the defendant falls into one of the
following category:

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 July 2018 (Civil Procedure)

(a) the defendant is a person who is insured in respect of the plaintiff’s

claim
− as such, if it is a motor accident claim, since it is a requirement
in law that all motor vehicles must be insured, a plaintiff with a
personal injury claim will be able to make an application under
O.22A and the application may be allowed if the requirements of
this rule are met

(b) the defendant is a public authority

(c) the defendant is a person whose means and resources are such as to
enable him to make the interim payment

Further, r.11 states that an order for interim payment shall not be made
against the Government

§ Government is defined in O.1 r.4 as meaning the Federal Government

or the State Government or both

11. Stages for consideration:

(a) if either one of the grounds appearing under r. 4 or r.3 is satisfied –

if yes, then the court has the power to grant an order for interim
payment. The court then move on to consider,
(b) whether it is just to make the order for interim payment, and the
amount to be paid after taking into account any set off, cross claim
or counterclaim. Also, if the defendant’s lack of financial resources
may cause him irreparable harm which cannot be redressed by
repayment if an order for payment was made, the court must take
this factor into account when exercising its discretion

12. A second or subsequent application may be made under r.2(5) – made

upon cause being shown, such as due to unexpected delay in bringing the
case to trial, underestimation of the plaintiff’s needs, or some special
expenses incurred or likely to be incurred.

− The affidavit in support must deal with the chronology of steps already
taken until the present stage, and must refer to the original affidavit of
an earlier application
− The affidavit must specify any payments already received, if any, and
whether by order or voluntarily

13. Amount to be awarded – for personal injury claims, the sum will usually
include lost wages, medical expenses or other financial hardship assessed
up to the date of the anticipated trial.

Although r.9 enables the court to adjust the final award, the court should
not risk over-paying the plaintiff.

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 July 2018 (Civil Procedure)

14. Manner of payment is stipulated under r.5 – paid to the plaintiff, or paid
into court. The interim payment paid into court may be paid out to the
plaintiff in installments.