Topics Sub-topics Provisions + Cases + Elaborations

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INTRODUCTION

Background ● Summary
judgment
● Interpleader
● Injunctions
*************************
● Third party
● Trial
● Costs
● Enforcement
● Appeals

SUMMARY JUDGMENT

O.14 ROC 2012 Nature and ● The normal course of a civil action:
Importance ○ To commence, P must file originating process (writ or OS).
○ If writ, P will file and serve writ & SOC. D must enter
appearance to writ and SOC, and D must enter defence
(failing to enter appearance or defence would result in
judgment in default of appearance or defence).
○ After D file defence, P may want to reply.
○ Exchange of pleadings - once closed, may be interlocutory
application, e.g. amend SOC/SOD, apply for discovery,
injunction etc.
○ Case management - prepare bundle of documents, witness
statements, etc. Trial date will be fixed.
○ Trial – attend court, call witness etc. Pronounce judgment.
○ Appeal against decision of trial court.
● Time consuming nature (delay and long process) of a civil action is
unfair to a Plaintiff if the Defendant has no defense, or if there is a
sytraightforward case.
○ P must go through long trial process.
● To overcome this, Rules have devised a procedure where P can
get judgment quickly without having to go for trial – this is called
Summary Judgment.
○ Judgment is obtained summarily based on affidavit
evidence.
● The policy and rationale behind Summary Judgment:
○ Prevent delay to P in cases D has no defence (clear-cut
case).
● Governed by O 14 Rules of Court 2012.
● Only in writ actions
 ○ Why? Because only civil action actions begin by writ will
have a trial.
● See: UNP Plywood Sdn Bhd v HSBC Bank Malaysia Bhd [2010] 5
MLJ 323 at 337, CA
○ Summary judgment procedure is a procedural device for
prompt and expeditious disposition of an action by P
without a trial when there is no dispute on the facts and
law.
○ Only if P can show that
■ D has no defence
■ Preliminary requirements are fulfilled

Summary Judgment Summary judgment is not available in the following situations:

not available ● O 14 r 1(2) – matters excluded – libel, slander, false imprisonment,
malicious prosecution, seduction, breach of promise to marry,
fraud;
○ If apply for summary judgment, will be dismissed with costs
- even if there is a clear-cut case
○ Rationale:
■ Based on old English ROC, whereby for these
matters, D could elect for a jury trial. Malaysia never
amended the rule, hence it remains.
■ Involve substantial dispute of facts – better to call
witnesses etc.
○ *If any part of the P’s claim deals with the excluded matter,
P cannot apply for SJ, e.g. 1 case with multiple issues and
only one deals with excluded matter – still cannot
● O 43, O 81 and O 89 – the rules provide for special procedure
regarding summary judgment, so cannot apply summary judgment
under O 14;
● O 73 r 5(1) – no SJ against Government; and
○ Covers Federal and State
○ If the Government is a defendant; but if Government is a
plaintiff, can
○ Jepak Holdings Sdn. Bhd. v Ministry of Education Malaysia
■ P tried to argue O 73 r 5(1) unconstitutional –
restrict court’s powers from hearing an application
against a party
■ HC eventually held O 73 r 5(1) is not
unconstitutional – merely bar in a procedural step.
● Other grounds – D raises triable issue (issue which has to be
resolved at a trial)

Procedural ● Before applying for SJ, P must be eligible to apply, i.e settle
requirements preliminary requirements under O 14 r 1(1):
○ Writ and SOC issued and served on the D
○ D has entered appearance to P’s claim
○ National Company for Foreign Trade v Kayu Raya (FC)
● Application via 2 documents
○ Notice of application (Form 57)
○ Affidavit in Support (Form 13)
● Time to file application (earlier cases indicate that SJ must be
applied before D enter defense and delay must be explained, until
Shamelin case)
 ○ Once eligible, P must apply promptly. Delay may bar his
application.
○ Rule devised by court – P should file application for
Summary Judgment before D enters Defence
■ If P file application after D enter Defence, P is
deemed to delay. So, he must explain the reason
for the delay.
○ Krishnamoorthy v Malaysian Finance (Supreme Court)
■ If P delays, it is for P to explain to the court the
reason for delay. If unacceptable, P cannot proceed
with summary judgment application.
○ CGIR v Weng Lok Mining
■ CGIR filed SJ application 3 months after D entered
Defence. Court asked P, and reason given was
during the 3 months, there were many festivals.
Fasting month (close at 2), Hari Raya, Deepavali,
Christmas – Gov Department was shorthanded.
Court accepted the reason, and therefore, the
application.
○ British American Life & General Insurance Bhd v.
Pembinaan Fal Bhd & Ors
■ Reason for delay: Change for solicitor – rejected
○ MBSB v Ghazi Abdullah
■ It is ultimately for the court to decide – discretion
○ Perkapalan Shamelin v Alpine Bulk Transport (CA)
■ Nothing in ROC requires P to apply for SJ before D
enters defence. ROC also does not say that P must
explain delay.
○ Capasia Solar One Ltd v Sun Energy Ventures Holdings
(Labuan) [2021] 12 MLJ 296
■ Follows Perkapalan Shamelin
○ Pengurusan Danaharta Nasional Bhd v Miri Salamjaya
Sdn Bhd
■ Delay is not fatal or defeat application of SJ
○ Matter is unresolved, but in practice, P’s lawyer will include
in affidavit the reason for delay just to be on the safe side.
■ Trend: Unlikely to reject due to mere delay
● Service of application – mode and time limit to serve (After file to
court, P must serve sealed copy of Notice and copy of Affidavit to
D)
○ Mode (how to serve) – O 14 provides no specific mode, so
O 62 r 6 applies
■ (a) Leaving at proper address
■ (b) Prepaid registered post
■ (c) Fax
■ (cc) Electronic communications in accordance with
any practice direction issued for the purpose
■ (d) Manner agreed between parties
■ (e) Other manner as the Court direct
○ Time limit (when to serve) – O 14 r 2(3) – 14 days from
the date of receipt of sealed copy
■ Sealed copy: Same document filed by P, but
processed by the court (signed, dated by Court
Registrar, seal or “cop” of the Court)
 ○ Defective service - in relation to mode or time limit
■ D may raise objection at hearing and court has the
discretion to:
● Dismiss application (as per Chai Cheon
Kam v Hua Joo Development Co Sdn Bhd)
- but very highly unlikely, due to tendency to
shy away from technical objection
● Adjourn SJ application hearing to a new
date to allow P to serve according to the
rules
● Affidavit requirements (affidavit is heart and core of SJ application,
because court will decide to give SJ depending on what is stated
on the affidavit - outline and enumerate details of P’s claim and
why they are entitled to SJ)
○ Affidavit must comply with O 14 r 2(1):
■ Must comply with Form 13
■ Must state 2 important matters:
● Verify facts of P’s claim - detailed account of
why P bring action against D
● State clearly that in P’s belief, D has no
defence to P’s claim: “I verily believe that …”
■ Note: Non-compliance with O 14 r 2(1) may result
in:
● Court dismiss application for SJ because
affidavit is defective; or
○ Chai Cheon Kam v Hua Joo
Development Co Sdn Bhd
■ Mandatory for AIS to comply.
Since did not comply, court
dismissed applicationf or SJ.
● Adjourn SJ proceedings to allow P to amend
affidavit and serve a fresh affidavit
○ Who makes the affidavit
■ Person who makes an affidavit is a deponent
■ Generally, P would be the deponent. However, for
SJ under O 14, not necessary to be made by P
themselves, could be by another person on behalf
of P – “affidavit may contain statement of
information and belief”
○ Defective affidavit

Hearing of the ● Hearing is before the High Court Judge

Summary Judgment ● D may raise Technical Objections
application ● D raises Triable Issue
● Other matters which may arise at the hearing

Summary D raises technical 6 possible technical objections –

Judgment objections (there were ● Case excluded by O14 r1(2), i.e. certain causes of action
Hearing – To procedural non- ○ If the objection is validly brought and accepted, court will
decide whether P compliance / dismiss P’s application with costs
is entitled to a SJ irregularities when P ● Short service
(Issues which applied SJ) ○ Application was not served within time-limit prescribed in
may arise:) the rules.
○ 2 possibilities on the outcome:
 ■ Court may dismiss with costs (highly unlikely), or
■ Court will adjourn SJ hearing and allow P to serve
afresh
● Defective service
○ Application for SJ was not served with the prescribed mode
of service.
○ 2 possibilities on the outcome:
■ Court may dismiss with costs (highly unlikely), or
■ Court will adjourn SJ hearing and allow P to serve
according to the rules
● Defective affidavit
○ Refer to requires of affidavit under O.14
○ 2 possibilities on the outcome:
■ Court may dismiss with costs (highly unlikely), or
■ Court will adjourn SJ hearing and allow P to file
afresh
● Defective SOC
○ SOC does not disclose a complete cause of action
○ 2 possibilities on the outcome:
■ Court may dismiss with costs (less likely), or
■ Court will adjourn SJ hearing and allow P to amend
● Delay
○ Refer previous lecture – delay may not be as successful
today
*Note:
● Only technical objection which is effective to dismiss SJ
application is the first one, as court will dismiss. The others can be
cured.
● As such, the other grounds are just used as a “delay tactic” or
“time-saving device”.
● If D wants to effectively dismiss SJ application, D needs to raise a
triable issue.
○ Remember rationale of SJ

D raises triable issues ● O14 r3: There is an issue or question in dispute which ought to be
tried, or issue that can only be resolved through a trial
Bank Negara ● Appaduray v Ananda [1982] 1 MLJ 292
Malaysia v Mohd ○ Facts: A boundary dispute - P & D occupied a piece of land
Ismail & Ors [1992] 1 each occupying a side of a boundary. P brought action
MLJ 400 against D for encroaching P’s land. P applied for SJ. P
Just because an relied on affidavit of surveyor to support P’s claim. At the
issue was raised, it SJ hearing, D questioned surveyor’s report as it did not
does not necessarily consider certain factors.
mean that that D had ○ Issue: By challenging the accuracy of surveyor’s report,
raised a triable issue. has D raised a triable issue?
It is for the court to ○ Held: Yes. Surveyor should be called to explain why the
decide whether the court should accept his report.
issue should be ● If D successfully raises triable issue, what is the outcome of the SJ
dealth with at a trial. hearing?
○ Orders the court may make if D raises triable issues –
depends on P’s knowledge concerning the triable issue:
■ If P knew, or could have anticipated that D would
raise the triable issue, court will dismiss with costs
(P has to pay costs, because having known about
 the triable issue, P should not have applied for SJ).
■ If P did not know or could not have reasonably
anticipated, court will give the defendant
unconditional leave to defend (D allowed leave to
bring his defence with no conditions attached) with
cost in the cause (at the end of SJ hearing, neither
P nor D required to pay cost for SJ application; at
the end of the trial, party who lost will have to pay
the cost)
○ TLDR: The difference is on the aspect of costs, but SJ
application will be dismissed
● If D already filed defence at the point of SJ hearing, can D raise
triable issues over and above the issues stated in his SOD?
○ D not restricted to defences in Statement of Defence - Lin
Securities v Noone & Co Sdn Bhd [1989] 1 MLJ 321
● Is summary judgment possible if no triable issues on D’s liability,
but there are on the quantum of damages?
○ If P want to prove damages, P must show 2 things:
■ Liability; and
■ Quantum
● Sometimes, at SJ hearing, D cannot raise triable issues as to
liabilities; but D can raise triable issues as to the quantum. So, if D
can raise triable issues on damages, what should the court do?
○ Avel Consultants Sdn Bhd v Mohd Zain [1985] 2 MLJ 209
■ Clear that D liable for breach of fiduciary duties.
But, they could raise triable issue on quantum.
● Should SJ be allowed or refused?
■ In SJ hearing, court is only concerned with D’s
liability. Fact that they are triable issues are
irrelevant, as quantum can be assessed by Court
Registrar in a separate hearing.
○ Datuk Mohd Ali b Hj Abdul Majid v Public Bank Bhd [2014]
4 MLJ 465
■ Affirmed Avel Consultants

D raises set-off or ● Sometimes, at SJ hearing, D may raise set-off or counterclaims

counterclaim (both known as crossclaims) - brought to defeat P’s claim in whole
or in part
○ Set-off - valid defence
○ Counterclaims - not a defence, but something not related to
P’s claim - but there will be stay of execution
● Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1
MLJ 157 – difference between set off and counterclaim
○ Both set-off and counterclaim are crossclaims, but
different as:
○ Set-off
■ Crossclaim closely connected to Ps claim and
arise’s from the same claim/transaction
pertaining to P’s claim
● E.g. P sue D for work done. D may bring
set-off: There is money owed to P, but there
has also been damage done by the P.
■ If validly raised, set-off can be a defence to defeat
P’s claim in whole or in part
 ○ Counterclaim
■ A crossclaim which is not closely connected to
P’s claim, but it is a separate and independent
claim – can actually be brought as separate action
● E.g. P sue D for work done. Then, D want to
bring action for slander against P as P went
around saying bad things about D.
■ If validly raised, not a defence
● Effect of set-off & counterclaim on SJ application
○ If D manage to raise set-off:
■ If P knew or could have reasonably anticipated the
set-off, SJ application will be dismissed with costs
■ If P did not know or could not have reasonably
anticipated, court will give the defendant
unconditional leave to defend with cost in the cause
○ If D manage to raise counterclaim:
■ P’s knowledge on the counterclaim is irrelevant
■ If D only raises counterclaim and cannot raise
triable issue, court will give SJ to P
● But, cases indicate that court will grant stay
of execution until counterclaim is heard and
disposed of; i.e. D cannot enforce SJ until
counterclaum heard and disposed of by the
court
● Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ 322
○ Talks about effect of raising a counterclaim
*Note: In Singapore, they have a different approach to effect of set-off and
counterclaim
● Kim Seng Orchid Pte Ltd v Lim Kah Hin (trading as Yik Zhuan
Orchid Garden) [2017] SGHC 4
○ Approach taken?
○ How different?
○ Which one is better?

Special rules ● Fielding and Platt Ltd v Najjar [1969] 2 All E.R. 150;
concerning cheques ● Marina Sports Ltd v Alliance Richfield Pte Ltd [1990] 3 MLJ 5

Order 14 r 3: “there ● Sometimes, at SJ hearing, D cannot raise triable issues, set-off, or

ought for some other technical objections
reason to be a trial of ○ Generally, court would grant SJ to P. But, court has
that claim” discretion to not allow SJ even though D cannot raise …
● Miles v Bull [1968] 3 All E.R. 632 –
○ Concerned a farmhouse owned by Mr A. Mr and Mrs A
were separated. Mr A owned the house, but occupied by
Mrs A. Mrs A sold farmhouse to B. Mr B wanted vacant
possession and asked Mrs A to get out. Mr B sent eviction
notice to Mrs A, which she refused. Mr B sued Mrs A and
wanted vacant possession.
○ At the hearing, Mrs A cannot raised triable issue; but kept
saying that the transaction was a sham (suspicious
circumstances), with the sole reason to evict her.
○ D is at a disadvantaged situation, does not have the facts
of the sale and only knows that she is asked to leave.
Given trial to allow Mrs A to ask for discovery of documents
 and cross-examine witnesses, among others.
○ “If the defendant cannot point to a specific issue which
ought to be tried, but nevertheless satisfies the court that
there are circumstances that ought to be investigated, then
I think those concluding words are invoked. There are
cases when the plaintiff ought to be put to strict proof of his
claim and exposed to the full investigation possible at a
trial; and in such cases it would, in my judgment, be wrong
to enter summary judgment for the plaintiff.”
● Concentrate Engineering Pte Ltd v UMBC Bhd [1990] 3 MLJ 1

D’s defence arouses ● Sometimes, it is obvious that D’s defence is not genuine or is a
suspicion sham
● Possibilities:
○ If the court is convinced as such, court will grant SJ to P.
○ If the court thinks that the defence is genuine, court will
give D conditional leave to defend:
■ If court thinks that it is genuine, court will give
unconditional leave
■ If P know, court will dismiss application for SJ with
costs
○ If the court’s suspicion is aroused but unsure, court can
grant specific order: Conditional leave to defend with
payment into court of the whole or part of P’s claim in a
certain numbers of day; if D defaults, SJ will be granted to
P with costs
○ TLDR:
■ Court is allowing D to defend himself, with
conditions:
● D has to pay into court: either whole or part
of P’s claim in a certain number of days
● If D does not pay, court will grant SJ with
costs
● Fieldrank Ltd v Stein [1961] 3 All ER 681
● Yorke Motors v Edwards [1982] 1 All ER 1024
○ Where D is aksed to pay money, if he says that he does
not have the financial means, how can the court proceed?
○ Guidelines: XXX

Cases of construction ● Documents: See Esso Standard Malaya v Southern Cross

or interpretation of Airways [1972] 1 MLJ 168.
documents / ○ Dispute about payment, and court has to determine
questions of law whether there was a concluded contract: court has to
scrutinise 3 letters.
○ If case deals purely on interpretation, is it suitable to be
determined via SJ or should there be a trial?
○ Azlan Shah J: Generally, SJ for short and simple cases –
not complex ones. But, still suitable for SJ if involve short
matter of construction involving only a few documents.
Since this case only relates to 3 letters, can.
○ Held: Has concluded contract and decided in favour of P.
● Statute: See Fadzil v Universiti Teknologi Malaysia [1981] 2 MLJ
196 (FC)
○ P sued UiTM and applied for summary judgment - on the
 interpretation of AUKU.
○ Azlan Shah FCJ: Followed principle in Esso Standard
Malaya - yes if short matter of construction regarding a few
statutory provisions.
● Questions of law: See European Asian Bank v Punjab & Sind
Bank [1983] 2 All ER 508 (CA)
○ If the question is difficult, this by itself is not a bar to SJ as
long as the case can be finally determined without the need
of a trial.
○ Uphold by Malaysia in Chong Ngam Sen v Yeoh Bah Chee
[1981] 1 MLJ 161 & Malayan Insurance (M) Sdn Bhd v
Asia Hotel Sdn Bhd [1987] 2 MLJ 183.
● Present position: O 14 A Rules of Court 2012
○ Provides for a summary procedure for cases on points of
law and construction of documents
○ Kerajaan Negeri Kelantan v Petroliam Nasional Bhd and
other appeals [2014] 6 MLJ 31 (FC)

Can a P apply for an ● Binariang etc Sdn Bhd v I & P Sdn Bhd [2000] 3 AMR 3198 (CA)
injunction in a SJ ○ P applied for SJ against D, and one of the relief sought was
application for an injunction. D raised procedural point that P cannot
obtain injunction under Order 14 application – must use
Order 29 instead.
○ CA: Perfectly proper for P to ask injunction in a summary
proceeding under Order 14, provided certain conditions are
satisfied:
■ D must have entered appearance
■ SOC must have been served on D
■ Application for SJ must be supported by affidavit
■ Application for SJ must be heard before a judge
● Binariang applied in Microsoft Corporation v Yong Wai Hong
[2008] 3 MLJ 309 (CA)

Can the court at SJ ● Diamond Peak Sdn Bhd v Tweedie [1980] 2 MLJ 31
hearing dismiss P’s ○ At a SJ hearing, court can only dismiss application for SJ.
action if the main Even if court found main action is defective, court can only
action is defective dismiss SJ application and not the main action – the
function of the court at SJ hearing is to decide whether SJ
should be given to P. To dismiss main action is not court’s
function at SJ hearing. If D want to dismiss P’s main action,
should apply to strike out under Order 18 r 19.

Setting Aside ● Many reasons for not appearing

Order 14 ● If D does not appear, court could proceed by just hearing P and
Judgment Against enter SJ against D.
a Party Who ○ What can D do?
Does Not Appear ■ O 14 r 11 - may be varied or set aside as per
at the Hearing conditions that the court demed fit

O14 SJ Hearing - ● Notice of application for SJ dismissed with costs

Orders that the ○ P’s claim excluded under O 14 r1(2)
court may make ○ SJ against the government
and when they ○ Traiable issue known to P or could have been anticipated
will be made by P
 ○ Set off known to P or could have been anticipated by P
○ Technical objections
● Adjournment and leave to amend or file or serve afresh affidavit
but P to pay D costs thrown away
○ Defective affidavit
○ Defective service
● Unconditional leave to defend and costs in the cause
○ D raises triable issue and/or set off which P had no
knowledge of, or P could not have anticipated
○ Court exercises its discretion under O 14 r 3 and states
‘there ought for some other reason to be a trial of the claim’
● Conditional leave to defend on payment into court of whole or part
of claim in x days to abide event with costs in cause; in default,
final judgment to P and costs
● Judgment for P with costs
○ When D cannot raise any technical objection, triable issue,
set off, counterclaim
○ No reason to exercise discretion under O14 r 3
● Judgment for P with costs execution stayed until trial of
counterclaim
○ When D raises a counterclaim

Summary ORDER 14 ● General application

Processes in the ● Procedure for SJ under Order 14 applied to all types of cases –
ROC 2012 unless excldued by Order 14
*Orders providing
for procedures ORDER 14A ● Cases involving point of law and construction of documents
where P can
obtain judgment ORDER 81 ● Cases involving the subject matter and remedy stated in Order 81
against D without r1(1)
having to prove
his claim at trial ORDER 89 ● Cases involving recovery of possession of land from unidentified
persons

ORDER 43 ● Accounts (not in syllabus)

SJ under Order When is Order 81 ● O 81 r 1(1): Actions begun by a writ

81 applicable? ● P’s claim must fulfill 2 components under Order 81 r 1(1):
 ○ Subject matter (P’s claim involves an agreement on:); and
■ sale, purchase or exchange of any property; or
■ the grant or assignment of a lease of any property
○ Remedy - P is seeking either
■ specific performance,
■ rescission or
■ forfeiture or return of a deposit
*Note: For the remedy part, if one remedy falls under Order 81 but
another does not, Order 81 is still applicable: O 81 r 1(1)(a): “with or
without an alternative claim for damages”

Procedure for ● Preliminary requirements

Obtaining Summary ○ the writ and SOC must be served on D.
Judgment ○ (no need to wait for D to enter appearance O 81 r1(2) –
unlike Order 14)
● Manner of application (O 81 r 2(1))
○ Notice of application supported by an affidavit
○ Notice of application must have minute of judgment (a draft
judgment) attached – O 81 r 2(2)
■ (Failure to comply not fatal – Sova Sdn Bhd v Kasih
Sayang Realty) – attach minute
● Service on D
○ Mode: Not prescribed under Order 81, so refer to O 62 r 6
○ Time limit: O 81 r 2(3)
■ Within 14 days of the date of issue of Notice of
Application
● Affidavit requirements (O 81 r 2(1))
○ must verify the facts of P’s claim - must have a detailed
account of the nature, how it came about and what P is
claiming from D
○ contain a statement that in the deponent’s belief D has no
defence
○ deponent must ‘swear positively’ as to the facts - must be
someone who has personal knowledge about the facts of
the case
■ Unlike Order 14, which is anyone who can make
statement of information and belief (not necessarily
be the person who know the facts personally)

Hearing ● Same as Order 14

Differences between ● O 14 is of general application.

O 14 & O 81 ○ O 81 applies if subject-matter and remedy falls within O 81
r 1(1).
● O 14 has 2 preliminary requirements.
○ O 81 has one preliminary requirement – no appearance
requirement
● O 81 application must be accompanied by a minute of the
judgment sought.
○ No such requirement in O 14.
● Time limits for service are different.
○ Order 14 - 14 days from P’s receipt of sealed copy
○ Order 81 - Within 14 days of the date of issue of Notice of
Application
 ● O 14 affidavit may contain statements of information and belief –
any responsible person can affirm
○ O 81 affidavit deponent must swear positively as to the
facts.

Appeals Against a decision ● Previously, both P & D may appeal - Huo Heng Oil Co v Tang
made in summary Tiew Yong [1987] 1 MLJ 139 (appeal is a rehearing)
judgment applications ● Now, S. 28 & 68 CoJA 1964 - amended via CoJA (Amendments)
Act 2022 which can into force from 1st October 2022.
○ New position: No appeal against refusal of summary
determination by Court.
○ TLDR:
■ If SJ application is dismissed, P cannot appeal –
matter has to go to trial
■ If SJ application is allowed, D can appeal
○ Rationale: To speed up

SJ under O 89 Nature and scope Nature

● O 89 provides the procedure for a summary process for the
recovery of possession of land.
● The procedure enables a Plaintiff to recover possession of land
without having to prove the matter at a trial.
● The procedure under O 89 is unique as the process can be used
against persons (defendants) whose identities not known.
● In essence, the procedure was tailored to deal with the problem of
squatters on a piece of land.

Scope
● The procedure for summary judgment under O 89 cannot be used
to recover possession of land against
○ (i) tenants
○ (ii) tenants holding over (tenants who remain in occupation
of the land after the tenancy has expired) or,
○ (iii) persons who entered or occupies P’s land with P’s
consent or license.

Procedure ● 1. Commencement (O 89 rr 1,2)

○ The procedure is commenced by a special form of
Originating Summons in Form 8A.
○ The OS must be supported by an affidavit.
○ The OS must include a Note: see O 89 r 2(1).
○ The affidavit must comply with the requirements stated in O
89 r 3. See O 89 r 3(1)(a),(b) (c) and r 3(2).
○ The OS will fix a hearing date.

● 2. Service on D (O 89 r 4) Service of the OS and affidavit depends

 on whether the Defendants are named or not.
○ If D is named, service is to be effected in any the following
ways
■ in accordance with O 10 r 5
■ leaving a copy of the OS and affidavit on the
premises, or
■ any other manner as the court may direct
● If D is not named, service is to be effected in the following ways
○ affix a copy of the OS and affidavit on main door or some
conspicuous part of premises, and
○ if practicable, insert the documents in a sealed envelope
addressed to “the Occupiers” and put in the letterbox

Hearing ● Hearing is before the Judge.

● If P proves his case, the court will make an order for immediate
possession in Form 195.

INTERPLEADER PROCEEDINGS

Background ● Two types

○ Stakeholder Interpleader (O 17 r 1(1)(a))
○ Sheriff Interpleader (O 17 r 1(1)(b))
● Definition
○ Proceedings commenced by a person who is in possession
of property to which he himself has no claim, but which
property is being claimed by two or more persons and he is
unsure as to who is the proper claimant.
○ Persons holding the property applies to court and asks the
court to decide who is the proper claimant.
○ The one who applies is called the interpleader and the
proceedings are called interpleader proceedings.

Procedure Commencement
● 1. Commencement O 17 r 3(1)
○ Two ways in which interpleader proceedings can be
commenced
○ Interpleader may commence by way of an originating
summons in Form 7; OR
○ If there is a pending action, interpleader may commence by
filing a notice of application in Form 27 and 28.
● 2. Affidavit
○ OS or NOA must be supported by an affidavit. Affidavit
must comply with O 17 r 3(2).
● 3. Service
○ Mode – O17 r 4(2) and O 17 r 4(3)
○ Time Limit – O 17 r 4(1)

Hearing At the hearing –

● 1. If any of the claimants does not appear, he is deemed to have
waived his claim and is barred from prosecuting his claim (O 17 r
5(3))
● 2. If the parties appear, the court will decide whether the
proceedings should be dealt with summarily or whether to go for
trial. (O 17 r 5(3))
 ○ Summary procedure is only possible where the (i) the
parties consent or (ii) the case involves only questions of
law and there are no disputes as to facts. (O 17 r 5(2))
○ If there are disputes as to facts, then the court will order for
a trial.
○ The court will make certain directions if a trial is ordered –
purpose of the directions is to ensure that the trial runs
smoothly and efficiently (O 17 r 5(1))

Trial At the trial –

● If any of the claimants does not appear, he is barred from
prosecuting his claim.
● If any party does not comply with any direction which was made at
the previous hearing, he will also be barred from prosecuting his
claim.
● If all the parties are present at the trial, the court will go through
the trial process and deliver its judgement accordingly. (O 17 r 11)

Costs
● Costs of the interpleader proceedings will usually be borne by the
losing party who will pay the costs of the interpleader as well as
the costs of the other successful parties. (O 17 r 8)
● Excel Champ Automobile Sdn Bhd v Bermaz Motor Trading Sdn
Bhd & Anor [2019] 8 CLJ 650 - interpleader was asked to pay cost
– usually claimant or losing party would pay - even under O 17 r 8,
court has discretion to make order as it seem just
● Tetuan WY Chan Roy v. Modular Techcorp Holdings Bhd & Anor
[2015] 5 CLJ 1105 - duty of the court in interpleader proceedings
(followed Tetuan Teh Kim Teh, Salina & Co v. Tan Kau Tiah &
Anor [2013] 5 CLJ 161
● Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd & Ors
[2009] 7 MLJ 124

INJUNCTIONS

Background Equitable remedy ● An injunction is a remedy in the form of a court order directed to a
specific party to do an act or to refrain from doing an act. The
remedy of injunction is based on principles of equity.

Classifications Prohibitory (negative ● S.52 SRA 1950

in nature) ● Prohibits a person from doing an act

Mandatory (positive) ● S.53 SRA

● Compels a person to do an act or require a person to undo an act
that he has done
● Gibb & Co v Malaysia Building Society [1982] 1 MLJ 271 and
Victory Enterprise v Chin Wei Yoon [2005] 2 MLJ 743

Perpetual, a.k.a. final ● If granted, binds the parties forever – unless the injunction is lifted
injunction ● Will only be granted by court after a full trial has been held

Interlocutory, a.k.a. ● Lasts during the period while the trial is pending
temporary or interim ○ From date granted by court until end of trial
● Purpose: Maintain status quo between parties during trial
 Ex parte ● Actually a subset of interlocutory
● Features:
○ Granted after the court only hears the applicant – happens
in very urgent cases
○ Duration: Only lasts for 21 days – expires after that

Quia timet (because ● Granted when P’s right is threatened, but not yet infringed
he fears) ● Very rarely granted
● When P applies for injunction, P suffered no damage and had no
violation to his rights – but P fears that his right will be infringed

Special forms ● Created by English case laws

● Mareva, Anton Pillar, Erinford, Ad interim

Can an S.29(2) Government ● Suggests cannot

injunction be Proceedings Act ○ Lim Kit Siang v UEM
applied against ● But, case of Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku
the Ampuan Rahimah & Ors [2005] 3 MLJ 325 CA:
government? ○ Suggests that injunction can be obtained against servants
and officers of the government – name the officer
○ Suggest S.29(2) GPA does not prohibit a temporary or
interlocutory injunction – only prohibits perpetual

Procedure for Case not urgent (O 1. Plaintiff commences main action in court by issuing the originating
interlocutory 29 r 2(2)) process and serving it on the Defendant.
injunction 2. After commencing action, Plaintiff applies for an interlocutory
injunction by a notice of application supported by an affidavit (O 29
r 1(2)).
3. Notice of application (sealed copy) will fix a hearing date (date for
hearing of application for injunction) for the application.
a. The sealed copy of the application is to be served on the
Defendant.
4. On the hearing date, the Plaintiff and the Defendant will attend
court. Upon submissions by the parties, the court will decide
whether to grant an interlocutory injunction to last until the
conclusion of the trial.
a. At the end of trial, court willd ecide whether it would give a
perpetual injunction.
5. The interlocutory injunction will maintain the status quo between
the parties until the end of the trial.
6. At the conclusion of the trial, the court will decide whether to grant
a perpetual injunction.

Case urgent (O 29 r 1 1. Plaintiff does not need to commence main action in court.
(2A) – (3)) 2. Plaintiff can immediately apply for an ex parte interlocutory
injunction by an ex parte notice of application supported by an
affidavit.
3. The affidavit in support must comply with O 29 r 1 2A. There are 7
requirements that must be complied with. Non-compliance with O
29 r 1 2A will result in the application for an ex parte injunction
being dismissed.
4. A hearing date will be fixed for the application.
5. Only the Plaintiff attends court on the hearing date and will be
heard by the court. After hearing the Plaintiff, the court may grant
 an ex parte injunction or may dismiss the application.
6. If the court grants an ex parte injunction, the ex parte injunction
will last for 21 days from the date it is granted (O 29 r 1(2B)). At
the expiry of 21 days, the ex parte injunction will automatically
lapse.
7. If the ex parte injunction is granted, the Plaintiff must serve the ex
parte injunction on the Defendant within seven (7) days of the date
of the order (O 29 r 1 (2BA)).
a. Serve the copy is to notify
8. Further, the Court when granting the ex parte injunction, must fix a
hearing date to hear the application inter partes within fourteen
days (14) from the date of the order (O 29 r 1 (2BA)).
a. Fixing the date for inter partes hearing is so that the court
could here both sides – to decide whether the ex parte
injunction should be dismissed
9. The purpose of the inter partes hearing is to bring both the Plaintiff
and Defendant to court and for the court to decide whether to
a. (i) dismiss the ex parte injunction or
b. (ii) grant an interlocutory injunction to last until the end of
the trial

Factors court American Cyanamid

will consider v Ethicon
when deciding
whether to grant
injunction

Ad interim ● Closely related to ex parte

injunction ● May be granted where there is a successful ex parte injunction in
place and the matter is now pending the hearing on an inter partes
basis.
● Under O 29 r 1(2B), an ex parte injunction lasts for 21 days from
the date it is granted. Upon the expiry of the 21 days, the ex parte
injunction automatically lapses.
● Further, under O 29 r 1(2BA), when the court grants an ex parte
injunction, the court must fix a date for the inter partes hearing
within 14 days from the date of the grant of the ex parte injunction.
● The purpose of the inter partes hearing is for the court to hear both
the Plaintiff and the Defendant and to determine whether the court
should –
○ dismiss the ex parte injunction that was granted; or
○ grant an interlocutory injunction to last till the conclusion of
the trial.
● Sometimes the court may unable to hold the inter partes hearing
within the 21 days of the ex parte injunction. The inter partes
hearing may be fixed after 21 days, ie after the ex parte injunction
had lapsed.
○ This may cause prejudice to the Plaintiff as the ex parte
injunction has lapsed and the Plaintiff’s rights may be
unprotected.
● In such a situation, the Plaintiff may ask the court for an ad interim
injunction. If the court grants the ad interim injunction, it will take
effect from the date the ex parte injunction lapses up to the date of
the inter partes hearing.
 ● Note: The ad interim injunction is not an extension of the ex parte
injunction, it is a fresh order made by the court.

● Jakob Renner (an infant suing by his father and next friend, Gilbert
Renner) v Scott King Chairman of the Board of Directors of
International School KL [2000] 3 CLJ 569 – first Malaysian case
which granted ad interim injunction

Erinford *Application orally or ● It originates from the case Erinford Properties Ltd v Cheshire
injunction NOA + Affidavit County Council [1974] 2 All ER 448.
*Made to same trial ● It is a limited type of injunction because it only operates during the
judge or COA pendency of an appeal.
● It is granted to an applicant whose application for an injunction
was dismissed and he has filed an appeal in respect of the
dismissal of the injunction application.
● The Erinford injunction takes effect from the date the application
was dismissed until the appeal is heard and disposed by the
appeal court.

● Cocoa Processors v UMBC [1989] 1 CLJ 183 – An Erinford

injunction will not be granted if damages would be an adequate
remedy for the temporary damage suffered by the applicant
between the date of the dismissal of the injunction and the date of
the appeal.
● Jawi Ak Landu v Sunny Inspiration Sdn Bhd And Anor [2007] 8
MLJ 38
Fortuna ● Order from Court to prohibit or restrain a creditor from filing and
injunction presenting a winding-up petition after a threat to do so has been
issued by the creditor (usually in the form of a s.466 Notice).

Injunctions - Undertaking as to ● In all applications for an interlocutory injunction, P/A must give an
other issues damages undertaking as to damages to D
● If at the conclusion of the case D wins and the injunction is set
aside, P will pay damages to D for any losses suffered as a result
of the interlocutory injunction (D suffered losses due to the
interlocutory injunction that ought to have been granted in the first
place)
● TLDR: If P wants an injunction, he has to make an undertaking
that he would pay D damages if D wins and D suffered losses –
would be stated in the affidavit

Failure to comply with ● Amounts to contempt of court and committal proceedings may be
an injunction brought against the D
● O.52 ROC 2012 – talks about committal proceeding

Injunction in ● Court will generally not grant an injunction in defamation cases if D

defamation matters states that he is relying on the defence of justification or fair
comment – Woodward v Hutchins
● This is to uphold freedom of speech

Grounds for ● D can apply to discharge or set aside an interlocutory injunction on

discharge the following grounds:
○ P made a non-disclosure or suppression of material facts
○ Facts of P’s case do not justify ex-parte relief
○ Injunction that was granted is oppressive to D
○ Injunction unreasonably interferes with the rights of third
parties
○ There has been a material change in circumstances since
P’s application for the injunction
○ Non-compliance with procedural requirements

Case updates Injunction against the

government

Ex parte injunction

Ad interim injunction

Mareva Introduction ● Definition

Injunction ○ Also known as a “freezing” injunction/order
○ In England, called as freezing order, in Malaysia we still
call Mareva injunction
○ Restrains a defendant from removing from the jurisdiction,
or disposing of or dealing with or concealing his assets that
will be necessary to meet the Plaintiff’s claim
○ Aim: Freezing the defendant’s assets so that the Defendant
is prevented from removing, disposing or concealing those
assets
■ So that there will be assets against which the
Plaintiff can execute his judgement if he wins the
case against the Defendant
 ● Origins in English Law
○ Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093 –
first case ordering the injunction
○ Mareva Compania Naviera SA v International Bulkcarriers
SA
○ Third Chandris Shipping Corporation & Ors v Unimarine
S.A. [1979] 2 All E.R. 972
■ Lord Denning: MI is an established feature in
English law
● Application in Malaysia - YES
○ S & F International Limited v Trans-Con Engineering Sdn
Bhd [1985] 1 MLJ 62
■ Abdoolcader F.J.: “The order known as a Mareva
injunction – so named after the case of Mareva
Compania Naviera SA v International
Bulkcarriers SA decided in June, 1975 and the
second case in which the English Court of
Appeal granted this form of relief – is a species
of interlocutory injunction which restraints a
defendant by himself or by his agents or
servants or otherwise from removing from the
jurisdiction or disposing of or dealing with those
of his assets that will or may be necessary to
meet a plaintiff’s pending claim …the sole
purpose of a Mareva injunction was to prevent
a plaintiff being cheated out of the proceeds of
an action, should he be successful, by a
defendant transferring his assets abroad or
dissipating his assets within the jurisdiction.”
● Jurisdiction to grant
○ Zainal Abidin bin Haji Abdul Rahman v Century Hotel Sdn
Bhd [1982] 1 MLJ 260 (FC)
■ Para 6 of Schedule of CJA gives HC jurisdiction to
grant Mareva injunction

Procedure ● Speed and secrecy is essential

○ P has to move quickly and quietly – important because if D
finds out P may apply for Mareva injunction, D might take
actions to transfer his assets out of the country or conceal
them
● Ex parte notice of application supported by an affidavit
● Affidavit MUST comply with O 29 r 1(2A). Non-compliance will
result in Mareva injunction not granted.
● Draconian order, almost like a pre-trial enforcement
○ Allows D’s assets to be frozen and cannot deal with his
assets – P obtained order even before he has won
○ Court will be very vigilant in deciding whether to give
● Bank Mellat v Nikpour [1985] FSR 87 described Mareva Injunction
as “one of the law’s two nuclear weapons” – other one being
Anton Piller order

Legal Requirements ● P must have a good arguable case

 ● 4 requirements in the Third Chandris Shipping Corp v Unimarine
○ full and frank disclosure by P – in affidavit
○ grounds of P’s claim set out with particularity
■ also show the points or defences D may raise
against him … helps the court to assess the
strength of P’s case
○ show that D has assets within the jurisdiction
■ Normally P will show list
○ real risk that D will remove, conceal or dispose the assets
■ Difficult to prove, but must be proven
■ Issue was discussed in S & F International Ltd v
Trans-Con Engineering [1985] 1 MLJ 62
● Facts: D was a Thai company with an office
in Malaysia. All of D’s shareholders were
foreigners and did not reside in Malaysia. D
only had 1 asset in Malaysia (money held by
third party). It had office in Kota Bharu, but
was closed.
● Issue: Is there real risk …
● Held: Yes, moment P serves writ on D’s
company, there is a risk D will … granted
● If all these requirements are satisfied, court will grant the Mareva
injunction.

Other Issues ● Real risk - S & F International Ltd v Trans-Con Engineering [1985]
1 MLJ 62
● Orders for provision
○ Not aim to cripple a D. Normally, when court grants a
Mareva injunction, it will make allowances or provisions for
D’s living expenses and ordinary debts.
● Plaintiff obtains no priority (P does not get priority over person that
that has a prior interest in the asset frozen under Mareva
injunction) - Iraqi Ministry v Arcepey [1980] 1 All ER 480.
○ P obtained injunction over monies (asset) under an
insurance policy. Before injunction obtained, D assigned
the monies under the policy to an X.
○ Who has priority over the monies?
○ Since money assigned to X before injunction obtained, X
had priority.
● Protection of third party rights (when court imposes injunction, a lot
of cases, it does not only affect D but also third parties related to
D, e.g. family members and creditors)
○ Rule: If injunction unreasonably interferes with third parties’
rights, court have discretion to:
■ Set aside; or
■ Vary the injunction to remove hardship on third
parties
○ Galaxia Maritime v Mineralimporriexport [1982] 1 All ER
796
■ A had claim against B. B had a large amount of coal
(asset) which was on board a ship. The ship
belonged to C. A obtained MI to freeze the coal.
This prevented ship from sailing. This caused
hardship to C.
 ■ Held: Court would not allow MI to cause
unreasonable hardship to third parties.
○ Ace King Pte v Circus Americano Ltd [1985] 2 MLJ 75
■ Money belonging to circus was frozen under MI.
Circus artists were consequently unpaid. Circus
animals which were on hire from England cannot be
sent to the UK.
■ Held: Court varied the MI to allow sufficient funds to
be released to pay the artists and transportation of
animals.
● Foreign assets
○ Most cases involve asking the court to freeze asset within
jurisdiction.
○ Issue: Can court grant MI for assets outsidethe jurisdiction?
Unsettled:
■ Most English courts say can and it depends on D to
comply, non-compliance might cause D to be held
liable for contempt.
■ But some cases say cannot and even if yes, in very
rare circumstances.
○ Metrowangsa Assets Management Sdn Bhd v Ahmad B Hj
Hassan [2005] 1 MLJ 654
■ HC granted MI to freeze accounts in New York and
Chicago.
■ It appears can, though the case does not discuss in
detail

Grounds to Set Aside ● 6 grounds

○ Non-disclosure or suppression of material facts by P (relate
*File affidavit in reply to requirement of “full and frank disclosure by P”)
to the claimant’s ○ Case unsuitable for Mareva relief (D convince court of no
application & state the real risk …)
grounds to be relied ○ D provides security to lift MI (usually after order, D provides
on security to lift MI … pay money into court)
○ Delay to press on with the actions (Maxim: Delay defeats
equity)
○ Unreasonable interference with rights of third parties
○ P is guilty of unfair conduct (Maxim: … clean hands)

Fairly recent ● Whether MI can be obtained against an unknown person

development ○ Yes

THIRD PARTY PROCEEDINGS

Introduction ● Scenario
 ● 2 options:
○ Option 1: Dan may join Tom as a co-defendant.
■ Leave of court is required to join a party as a co-
defendant.
● Dan must apply to court by way of notice
of application under Order 15 rule 6 Rules
of Court 2012.
■ Further, the Plaintiff (Pam) may object to Dan’s
application to add Tom as a co-Defendant.
● Permitted as seen in the Tajjul Ariffin case.
○ Option 2: Dan may join Tom as a third party under Order
16 Rules of Court 2012.
■ Generally, to join a third party, leave of court is
not required, except in 2 circumstances (which will
be discussed later).
■ Further, the plaintiff’s consent is irrelevant. In
other words, the plaintiff may not object to Dan
joining a third party.
○ Analysis:
■ Option 2 (add Tom as a third party) is better as
● leave of court is not required (unless 2
circumstances apply); AND
● the plaintiff cannot object to the application

Background ● Third party proceedings are governed by Order 16 of the Rules of

Court 2012.
● Third party proceedings are:
○ commenced by a Defendant
○ against a “person” who is not a party to the civil suit
commenced by the Plaintiff.
● Purpose:
○ Bring in or add in that “person” into the civil suit.
● This person would be known as the “third party” in the civil suit
between the Plaintiff and the Defendant.
○ For example, as in the scenario above, Dan (the
Defendant) will bring third party proceedings against Tom,
who is not a party to the civil suit commenced by Pam (the
Plaintiff).
○ The purpose of the third party proceedings is to bring in
Tom into the civil suit. Tom will be known as the third party
 in the civil suit between Pam and Dan.
● Rationale: Prevent multiplicty of proceedings

Requirements Before any person ● If the Defendant’s claim against the third party does not fall
can be joined as a under any one of the four categories in Order 16 rule 1(1)(a) to
third party, the (c), the third party cannot be joined into the proceedings.
Defendant’s claim Four categories:
against the third ● Order 16 rule 1(1)(a) - the Defendant claims for contribution from
party MUST fall the third party
under one of the ○ Contribution: D asserts that the third party contributed to
categories in Order the loss suffered by P; if D is made liable to pay any
16 rule 1(1)(a) to (c). damages to P, the third party is liable to pay some or a
part of it.
○ Examples:
■ Joint tortfeasors (ie 2 people committed a tort but
only one tortfeasor was sued like in the scenario on
page 1)
■ One of several trustees sued for breach of trust (the
trustee who was sued may want to bring in the
other trustees as third party)
● Order 16 rule 1(1)(a) - the Defendant claims for indemnity from
the third party
○ Indemnity: D is asserting that if he is made liable to pay
any damages to the Plaintiff, the third party is liable to
pay the whole/all of it.
○ Examples of a claim in indemnity
■ Suretyship/guarantor
■ Insured/Insurer
● O 16 r 1(1)(b) – “claims against such a person any relief or remedy
relating to or connected with the original subject-matter of the
action and substantially the same as some relief or remedy
claimed by the plaintiff.”
○ This is where the Defendant is claiming against the third
party substantially the same relief as that the Plaintiff is
claiming from the Defendant.
○ Examples
■ P is injured by a falling roof in D’s house. The roof
was repaired the previous day by T, a contractor. P
is now suing D.
● O 16 r 1(1)(c) - “requires that any question or issue relating to or
connected with the original subject-matter of the action should be
determined not only as between the plaintiff and the defendant but
also as between either or both of them and a person not already a
party to the action.”
○ This is where there is a common issue between the
Defendant and the third party, as between the Plaintiff
and the Defendant.
○ Examples
■ A’s car was stolen by B. B sold the car to C. C sold
the same car to D. The car is in D’s possession. A
is now suing D for its return.
Note:
● The last 2 categories are fairly wide and can encompass a
variety of situations.
 ● Remember:
○ If a Defendant wants to bring third party proceedings and
add a person as a third party, he must show that his claim
against the person falls within either one of the categories
in Order 16 rule 1(1)(a) to (c).

Procedures Appearance by the ● Defendant must have entered an appearance to the Plaintiff’s
Defendant action (Order 16 r 1(1).

Is leave required? ● The Defendant must determine whether the leave of court is
required to join the third party into the proceedings.
● The leave of court is required in two situations:
○ where the defendant has already served his Defence
(Order 16 r1(2)), or
○ where the intended third party is the Government of
Malaysia (Order 73 r 8)
● If either one of these two instances are applicable, the Defendant
must first obtain the leave of court to join in the third party.
● If leave is required, the procedure for the leave application is in
Order 16 rule 2(1).
● The Defendant must apply by ex parte notice of application in
Form 20, supported by an affidavit.
○ Note: The court may direct the application to be served.
● The affidavit must comply with four (4) requirements
mentioned in Order 16 r 2(2):
○ the nature of the claim made by the plaintiff in the action;
○ the stage which proceedings in the action have reached;
○ the nature of the claim made by the applicant or particulars
of the question or issue required to be determined, as the
case may be, and the facts on which the proposed third
party notice is based; and
○ the name and address of the person against whom the
third party notice is to be issued.

Commencement of ● If leave of court is necessary, it must be obtained first before

third party the Defendant can commence the third party proceedings.
proceedings ● If leave is not necessary, the Defendant can immediately
commence the third party proceedings.
● This is done by the Defendant issuing a Third Party Notice on
the intended third party.
● *Take note of the form of the Third Party notice –
○ If the Defendant is seeking contribution, indemnity or same
relief, use Form 18
○ If the Defendant is seeking common issue, use Form 19.
● A copy of the writ or originating summons of the main action will be
attached together with to the Third Party Notice. (Order 16 rule
3(1))

Service ● Once the Third Party Notice is issued, it must be served on the
intended third party.
● Service of a Third Party Notice is in accordance with Order 10 r 1,
ie the same as service of a writ or originating summons. (Order 16
rule 3(3)).
*Not interlocutory, no only has one aspect (mode), no time limit
Appearance by third ● Once the intended Third Party Notice has been served on the
party third party, the third party must enter an appearance in Form
21.
● The time limits to enter an appearance is the same as the time
limits to enter an appearance to a writ under Order 12 rule 4,
namely
○ 14 days in West Malaysia
○ 14 or 20 days in East Malaysia.
● If the third party fails to enter appearance within the prescribed
time limit, the third party is in default and he is deemed to admit
to the Defendant’s claim against him – Order 16 rule 5.

Application for third ● Once the third party has entered appearance , the Defendant is
party directions under a duty to apply a third party direction
○ How? – By filing a notice of application for third party
directions in Form 22.
○ Must be issued and served on all parties
● The Defendant must apply for directions within 7 days after third
party has entered appearance. (Order 16 rule 4(1) and (2).
● This notice of application for third party directions must be served
on all parties to the action ie the Plaintiff(s), the other defendants
(if any) and the third party.
● Purpose:
○ To bring all parties before the court so that the court can
now make necessary directions for the smooth flowing of
the trial.
● What if the Defendant fails to apply for third party directions?
○ Two possible consequences mentioned in Order 16 rule
4(2):
■ third party himself may apply for third party
directions; or
■ third party may apply to have the third party
notice issued against him to be set aside.

Hearing of the notice ● At this hearing, the application for directions may be dismissed
of application for third if the third party can show the Defendant’s claim does not fall
party directions within Order 16 rule 1(1)(a) – (c).
● If the hearing proceeds, the court may make certain orders and
directions.

Orders that the court ● The Court has wide power in deciding what directions to make.
may make at the They include the power to make the following orders:
hearing of third party ○ order the Defendant to serve a Statement of Claim on
directions the third party within a certain number of days (see Form
22 and Form 23)
○ order the third party to serve a Statement of Defence on
the Defendant within a certain number of days.
● Note: If the third party is ordered to serve a Defence on the
Defendant, and the third party fails to do so, the third party is
deemed to admit to the Defendant’s claim against and the third
party will be bound by any decision made by the court – (Order
16 rule 5(1)).
● Order judgment to the defendant against the third party
○ If the liability of the third party is established at the
 hearing (Order 16 rule 4(3)(a);
● Order any claim, question or issue to be tried as the Court may
direct (Order 16 rule 4(3)(b));
● Give the third party leave to defend alone or jointly with any
defendant and appear at the trial (Order 16 rule 4(4)) – see Kayla
Beverly Hills (M) Sdn Bhd & Anor v Quantum Far East Ltd & Ors
(Uma Devi d/o Balakrishnan, third party) [2003] 6 MLJ 703;
● Determine the extent to which the third party is to be bound by
any judgment; or
○ Not in RoC 2012, but can make
● Dismiss the application for directions (Order 16 rule 4(3)(c)).
○ Dismissal of the application for directions has the result of
terminating the third party proceedings.

Relationship ● When a civil action commences, there are usually 2 parties,

between P and namely the Plaintiff and the Defendant.
Third Party ● If a third party is joined, there are now 3 parties.
● When a third party is joined, the Plaintiff may now want to bring a
claim against the third party.
● The third party may also want to counter-claim against the Plaintiff.

Scenarios
● Plaintiff wishes to claim against the third party
○ A Plaintiff can only claim against a Defendant.
○ A third party is not a defendant. Therefore, a Plaintiff
cannot claim against him.
○ If a Plaintiff intends to claim against the third party, the
Plaintiff must apply to court under Order 15 rule 6 to
alter the status of the third party to a co-Defendant.
● Third Party wishes to counter-claim against the Plaintiff
○ Only a Defendant can counter-claim against the
Plaintiff.
○ A third party is not a defendant. Therefore, a third party
cannot bring a counter-claim against the Plaintiff.
○ If a third party intends to counter-claim against the
Plaintiff, the third party must apply to court under Order
15 rule 6 to alter his status from a third party to a co-
Defendant.

Limitation ● When a Defendant’s claim against the third party for an indemnity
between P and or contribution, time does not run for purposes of limitation
Third Party between the Defendant and the third party until the Defendant is
made liable to the Plaintiff.
● See Mat Abu bin Man v Medical Superintendent, General Hospital,
Taiping, Perak & Ors [1989] 1 MLJ 226
○ Limitation period between P & D does not apply to D &
third party
○ Time does not run for purposes of limitation between the
Defendant and the third party until the Defendant is made
liable to the Plaintiff

TRIAL

Background Relevant Orders ● Mode

 pertaining trial: ● Preliminary Point
Orders 33 to 42 ● Absence of Parties
● Adjournment
● Course of Trial
● Evidence at Trial
● Judgment & Orders
● Judgment Interest

Mode ● 3 modes – O.33 r.1

○ By judge alone
■ Most common mode for trials in Malaysian courts
■ A single judge presides over a trial
○ By judge with assessors
■ Very rare
■ Assessor is someone with skill and expertise in a
specialised area or field
■ Sometimes, an issue at trial may involve a highly
specialised or technical area and the judge may not
have the knowledge or expertise in the area
■ Someone with skills, expertise and experience in
this area may be able to assist the judge in dealing
with the matter; i.e. assessor
■ Trial with the assistance of assessors is governed
by O.33 r.4
○ By registrar
■ Fairly uncommon
■ Governed by O.36
■ Nature of claim is straightforward, no substantial
dispute on facts, simple question of law
■ Court has the power to order a trial by a Registrar if
● Any party applies for it; or
● The court orders it on its own
■ Having regard to the nature of the case (on grounds
of expedition, economy, or convenience) and the
interest of the parties – O.36 r.1
■ Court may also order a trial by the Registrar with
the consent of the parties – O.36 r.2

Preliminary ● A point which substantially disposes of the cause or matter or a

point point which renders the trial of the cause or matter unnecessary
(O.33 r.5)
● May be a point of law, fact, or partly of law and partly of fact (O.33
r.2)
● Briefly, it is a point – if raised by a party and determined by court –
may conclude the whole suit
● Can be by any party raised before, during or after the trial (O.33
r.2)
● Example:
○ No locus standi
○ Limitation period has lapsed
○ Illegality

Absence of ● When a trial commences, parties are supposed to be present in

parties (O.35 r.1) court
● What happens if
○ Both parties are absent
■ Court may dismiss or strike off the Plaintiff’s action
■ What can Plaintiff do?
● Re-instate the action under O.35 r.2(1)
● Application of re-instatement must be made
within 14 days from the date of dismissal
(O.35 r.2(2))
● In considering the application, court will
regard the matters stated in O.35 r.2(3)
● If application is unsuccessful, Plaintiff may
appeal to a higher court
● If the appeal to the higher court is
unsuccessful, Plaintiff can file a fresh action
again in court provided the limitation period
has not set in
○ Defendant is absent
■ Court may give judgment to the Plaintiff
■ Court may also dismiss the Defendant’s
counterclaim, if any
■ What can the Defendant do?
● Defendant can apply to set aside the
judgment and re-instate the counterclaim (if
any) under O.35 r.2(1)
● The same principles as above will apply
● Hup San Timber Trading v Tan Ah Lan
[1979] 1 MLJ 238
○ D was absent
○ Plaintiff is absent
■ Court may dismiss the Plaintiff’s action
■ If Defendant has a counterclaim, court may enter
judgment against the Plaintiff in respect of the
counterclaim
■ What can the Plaintiff do?
● Can apply to re-instate under O.35 r.2(1)
● Application for re-instatement must be made
within 14 days from the date of dismissal
● Matters court will consider in determining
the application O.35 r.2(3)
● If application is unsuccessful, Plaintiff may
appeal to a higher court
● If the appeal to the higher court is
unsuccessful, Plaintiff can file a fresh action
again in court provided the limitation period
has not set in
● Plaintiff may set aside the counterclaim
(O.35 r.2(1))
■ Dismissal for non-appearance is not res judicata
(not heard on its merits, so parties cannot resist the
trial not going on again) – New India Assurance v
Karam Singh [1972] 2 MLJ 26 (FC)
■ Tee Ha Leong v Messrs Low & Lim [2005] 4 MLJ
426
Adjournment ● When a trial begins, one of the parties may ask the court for a
(O.35 r.3) postponement or adjournment of the trial
● O.35 r.3: a trial can be adjourned for a maximum of 3 times unless
the Court is of the opinion that any further adjournment would be
for the interest of justice
● Case law illustrate that parties must give good reasons to justify
adjournment, e.g.
○ Important witness cannot be traced
○ Counsel is too ill
○ Important witness is too ill
● If no good reason given, court will refuse
● Go Pak Hoong Tractor v Syarikat Pasir Perdana [1982] 1 MLJ 77
○ Matter fixed for trial at Kota Bharu HC. On the day, P was
present, but not D and his counsel. D’s counsel asked P’s
counsel to request for adjournment due to D’s counsel
could not get a flight ticket.
○ Court refused, not a good reason because D’s counsel was
aware of the trial date long before the trial and D’s lawyer
should have made arrangements earlier. Court proceeded
with trial and entered judgment against D.
● When a judge decides to refuse, he must come to that decision
very carefully because a refusal of adjournment may have serious
consequences to the party who requested for it.
○ Maxwell v Keun [1928] 1 K.B. 645
■ Cannot make an order “as would defeat the rights
of a party and destroy them altogether unless he is
satisfied that the absent or requesting party is guilty
of such conduct and justice can only be properly
done to the other party by coming to the conclusion”
○ Adjouenment should only be refused if the judge is
satisfied that the absent or requesting party is guilty of
misconduct and justice can only be done by refusing the
adjournment
● If a judge refused to grant adjournment, the requesting party may
appeal against the judge’s decision to a higher court. However, an
appellate court will be slow to interfere with the judge’s discretion.
○ Examples of interference: Dick v Piller [1943] 1 K.B. 497
(important witness was too ill to attend, but court refused
anyway), Hup San Timber Trading v Tan Ah Lan [1979] 1
MLJ 238
● Appellate courts would be slow to interfere with trial judge’s
discretion
○ MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun [1995]
2 MLJ 493: Unless it can be demonstrated that the refusal
resulted in the deprivation of essential justice
■ Whether appellate court should interfere
■ Held: Only interfere if it can be demonstrated that
the refusal resulted in the deprivation of essential
justice
○ Mariya Stephen @ Fredolin Milis v Lee Guat Toh [2014] 1
MLJ 809

Course of trial: ● Right to begin

O.35 r.4 ○ Judge has discretion to decide who should begin (O.34
 r.4(1))
○ Normally, P will begin by opening his case and calling
evidence (O.35 r.4(2))
○ However, where the burden of proof of all issues are on D,
D is entitled to begin (O.35 r.4(6))
■ Kulandi v Subramaniam [1983] 1 CLJ 302
● Order of speeches – depends on whether:
○ D elects to adduce evidence
■ D intends to call witnesses and adduce evidence
via witnesses or documents through witnesses
■ Situation where P begins and D elects to adduce:
O.35 r.4(4)
● P opens his case by making his opening
statement (set out facts of his case and
claim against D)
● After P opens, P calls his evidence. Each of
PW will be subjected to EIC, XE by D and
RE by P (if necessary)
● After all PW called, P rests his case
● Then, D opens his case
● D calls his evidence. Each of DW will be
subjected to EIC, XE by D and RE by P (if
necessary)
● After all DW called, D makes his closing
speech and close his case
● P makes his closing speech in reply
● Trial ends
■ After P’s closing, if D wants to reply, is that
allowed?
● Generally not allowed, however there is
exception in O.35 r.4(7): If P raises a new
point of law or cites a new authority not cited
before.
● Even so, D can only reply to that point or
authority
○ D elects not to adduce evidence
■ Situation where P begins and D elects not to
adduce: O.35 r.4(3)
● P opens his case by making opening
statement
● After P opens, P calls PW
● Each PW will be subjected to EIC, XE, RE
(if necessary)
○ Note: Even if D elects not to give
evidence, D may XE PW and even
adduce documents
● After all PW called, P makes his closing
speech
● D makes his closing speech
● Trial ends
■ After P’s closing, if D wants to reply, is that
allowed?
● Generally not allowed, however there is
exception in O.35 r.4(7): If P raises a new
 point of law or cites a new authority not cited
before.

Evidence at trial ● Attendace of witnesses: O.38 rr.14-33

● Evidence by deposition: O.39
● Affidavits: O.41 (not common for trials, more for hearings)
● Application of Hollington v Hewthorn in Malaysia - see [2001] 2 ML
1iii
● Application to recall witnesses - Muhammad Hafizam bin Nordin &
Anor v Muhammad Amirul Azhar bin Razali (an infant claiming
through his father or litigation representative, Razali bin Mohd
Noh) & Anor [2020] 11 MU 685.
● Documentary evidence: Agreed and disputed bundles of
documents and Statement of Agreed
○ Practice Note 2 of 1977 - how to prepare the bundles
○ Henry Trading Co Ltd v Harun [1966] 2 M.L.J. 281; Yap
Choo v Tahir b. Yasin [1970] 2 M.L.J. 138; Goh Yu Tian v
Tan Song Gou & Ors [1981] 2 M.L.J. 317 [Affirmed [1983]
1 M.L.J 60 (C.A.)I;
○ Chong Khee Sang v Phang Ah Chee [1984) 1 M.L.. 377;
Borneo Housing Mortgage Finance Bhd v P.R. of the
Estate of Lee Lun Wah & Anor (1994] 1 M.L.J. 209 ;
Melawangi San Bhd v Tiow Weng Theong [2020] 3 ML 677
(FC)

Judgment and ● Judgment after a trial

orders: O.42 ● Generally, judgment has 2 stages
○ Pronouncement: A judgment after a trial is pronounced
(orally delivered) in open court
○ Perfection: Printed, signed, sealed
● If a judgment has been pronounced but not yet perfected, can the
judge change his mind?
○ Yes, the judge may recall P & D counsel and ask to hear
further arguments: Tan Ah Yeo v Seor Teck Ming [1989] 2
MLJ 3
● Consent judgments and orders
○ Is a judgment upon a compromise
○ P & D may reach a compromise and may ask the court to
record their compromise in the form of consent judgment
○ Once a consent judgment is recorded by the court, it is
valid and enforceable
○ P may execute the consent judgment like any other
judgment of the court
○ After consent judgment has been recorded, can D set
aside the consent judgment?
■ Lau Ming Hing Richard v Bank Pembangunan
Malaysia Bhd [1994] 2 ML 323
● The court held that since a consent
judgment arises from a consent or a
compromise, setting aside a consent
judgment is akin to rescinding a contract.
● If a person wants to rescind a contract for
lack of consent, the person will have to
show that there were vitiating factors such
 as fraud, misrepresentation, duress,
coercion or undue influence (lack of free
consent)
● To set aside a consent judgement, these
same principles would apply.
■ Other factors to set aside a consent judgment - lack
of jurisdiction, illegality.
■ Procedure - A perfected consent judgment can only
be set aside in a fresh action filed for that purpose.
● SR Rajah:
● Interest
○ 2 types:
■ Pre-judgment: O.42 r.12 RoC 2012
■ Post-judgment: S.11 Civil Law Act
○ New Zealand Insurance Co.

COSTS

Background 2 possible meanings ● Remuneration that a litigant pays to his counsel (lawyer’s fees)
○ Called “solicitor and client” costs
○ Contractually agreed between the parties
● The sum one litigant pays to another litigant to compensate the
latter for expenses that he has incurred in the litigation.
○ Called “party and party” costs
○ To be entitled to “party and party” costs, an order as to
costs must be given by the court.
○ If no order as to costs was made by court, a litigant
cannot claim “party and party” costs
■ “Plaintiff’s claim is allowed with costs”
■ Another example is in interlocutory proceedings: At
the end of hearing, court will make order “P’s
application is allowed with costs”

Order for costs ● No party is entitled to decide as to costs.

is essential ● To be entitled to party and party costs, the court must make an
order as to costs. This is expressly stated in O 59 r 3(1) as follows,
○ Subject to the following provisions of this Order, no party
shall be entitled to recover any costs of or incidental to
any proceedings from any other party to the proceedings
except under an order of the Court. (emphasis added)

Discretion of the ● Party and party costs are entirely at the discretion of the courts. O
court 59 r 2(2) confirms this because it states,
*golden or ○ Subject to the express provisions of any written law and of
fundamental these Rules, the costs of and incidental to proceedings in
rule on costs the Court, shall be in the discretion of the Court, and the
Court shall have full power to determine by whom and
to what extent the costs are to be paid. (emphasis
added)

General rule ● As a general rule, when making an order for costs at the end of a
trial or proceedings, the courts follow the rule “costs shall follow
the event”.
● The general rule “costs shall follow the event” means –
 ○ the losing party pays winning party’s costs; and
○ the losing party bears his own costs.
● However, in certain circumstances, the court will depart from this
general rule. These are knowns as exceptions to the rule “costs
shall follow the event”.
● In judgments:
○ P’s claim allowed with costs - D pay P’s costs
○ P’s claim disallowed with costs - P pay D’s costs

Departure from ● These matters are confirmed in O 59 r 3(2), which states -

general rule ○ If the Court in the exercise of its discretion sees fit to make
any order as to the costs of or incidental to any
proceedings, the Court shall, subject to this Order, order
the costs to follow the event (general rule), except when
it appears to the Court that in the circumstances of the
case some other order should be made as to the whole
or any part of the costs.
● The recognised exceptions to the rule ‘costs shall follow the
event’ are as follows –
○ costs awarded up to a stage of the proceedings/only a
proportion of costs awarded (O 59 r 4, O 22B , see
specifically O 22B r 9(2))
■ Any prudent or good litigator will tell that it’s the
best to settle out of court … when you negotiate
and parties cannot agree, matter will go to trial.
● Liability
● Damages
● Costs - where negotiations can come into
function
■ D encouraged to make genuine offer because can
avoid cost of trial. If judgment is bigger than the
offer, D can say P could have accepted D’s offer to
negotiate – wasted everyone’s time.
■ If judgment sum is less that D’s iffer, P would say
they should’ve taken offer.
○ no order as to costs (each party bears his own costs)
(see O 59 r 5)
■ Sometimes, P win case but: “P’s claim allowed, no
order as to costs”
■ Why did the court not allow losing party to pay
losing part’s costs?
● Winner has been guilty of misconduct –
delay, misconduct etc.
○ winner pays loser’s costs (see O 59 r 5)
■ Very rare
■ Severe misconduct
○ solicitor to pay costs (see O 59 r 6) – But before court
makes this order, court must allow solicitor to explain
himself
■ Solicitor incurred costs improperly
■ Solicitor incurred cost without reasonable cause
■ Costs wasted by solicitor’s delay or misconduct
● Case law examples where the courts departed from the rule costs
shall follow the event.
○ Claim under an illegal contract
■ Cheng Mun Siah v Tan Nam Sui [1980] 2 MLJ 269.
● P brought action against D for breach of
contract … S&P of land. At trial, found that
the contract was illegal and cannot be
enforced. Therefore, P’s claim was
disallowed and P lost the case.
● If the Plaintiff claims under an illegal
contract and at the trial, illegality is
established, the Plaintiff will lose the case.
Technically, the Defendant is the “winning
party”. If the general rule “costs shall follow
the event” is adhered to, the Defendant
should be awarded costs of the
trial/proceedings.
● However, it may not be proper to award
costs the Defendant (even though he has
won technically), because he was also a
party to the illegal contract. Therefore, in
this scenario, the court may depart from the
rule “costs shall follow the event” and make
“no order as to costs”. This means each
party bears his own costs.
○ Misconduct or neglect
■ If a party is guilty of gross misconduct or neglect but
he wins the case, the court may make “no order as
to costs” or in exceptional circumstances, the court
may order “the winner to pay the loser’s costs”.
■ See Chen Chow Lek v Tan Yew Lai [1983] 1 MLJ
170 (FC) as per Tun Salleh Abas
● Though D won the case, but D was very
uncooperative. This whole trial and action
could have been avoided if D was
cooperative, but he was uncooperative and
unreasonable.
● Court ordered wining party to pay the losing
party’s cost – highly exceptional
○ Successful on a point not raised below
■ Scenario:
● A party loses a case in a lower court. On
appeal to a higher court, he wins the case
on a new point or argument which was not
raised at the lower court. The new point or
argument should have been raised at the
lower court.
● In such a situation, the court may make “no
order as to costs” in relation to the costs of
the appeal. This is because if the winning
party had raised the new point at the lower
court, the appeal would have been
unnecessary. Therefore, the winning party
does not get costs of the appeal, and each
party bears his own costs.
● Anna Jong Yu Hiong v Government of
 Sarawak [1972] 2 MLJ 244 (FC)
○ AJ sued GoS for a pension matter
and lost at the lower court. On
appeal, AJ won the case but on a
new argument which she did not
raise at the lower court. That point
should have been raised at the lower
court.
○ If winning party had raised the new
point at the court below, the appeal
would have been unnecessary.
○ So, each party had to bear their own
costs.
○ Relevant authorities not cited
■ Same scenario as (iii) above but on appeal, the
party wins by raising a new case or authority which
was not raised at the lower court and should have
been raised at the lower court.
■ Again, court may make no order as to costs
because if the party had raised the case or authority
at the lower court, the appeal would have been
unnecessary.
■ Re Syed Alsagoff, Decd. (1961) 27 MLJ 150
● Lost at lower court, but won upon raising a
new authority (compared to AJ, AJ raised
new point. RSA raised new authority). If the
authority was cited at the court below, the
appeal would have been unnecessary.
● In this appeal case it was discovered that
the appellant had not referred two “very
relevant” cases to the learned judge at the
trial. Although the appeal was allowed no
order as to costs was made for both the
appeal and trial stages.

Costs against ● See O. 59 r. 6 and Karpal Singh v Atip bin Ali [1987] 1 MLJ 291.
advocate and
solicitor
personally or a
non-party

Sub-topics not ● Taxation of costs

covered this ● Mechanics of taxation
semester

Several parties ● Sometimes a Plaintiff is compelled to sue 2 Defendants.

● Possible Outcome:
○ Plaintiff obtain judgment against one Defendant; and
○ Plaintiff’s claim against the other Defendant may be
dismissed
■ *In other words, the Plaintiff wins against one
defendant and loses against the other Defendant.
 ● In a situation like the above – what would be the order as to
costs?
● As a general rule, the courts will follow the rule “costs shall follow
the event”. This means –
○ Plaintiff pays costs of the winning defendant
○ Plaintiff gets costs from losing defendant
● However, this order above may not be fair where the Plaintiff
was compelled to sue 2 defendants, e.g.
○ where Plaintiff did not know who are the proper defendants
to be sued, and
○ the potential defendants refused to admit liability.
● For example,
○ Assume P is a passenger in a vehicle driven by D which
collides with a vehicle driven by E. P is injured.
○ P wants to claim for his injuries but does not know who is
responsible for the collision.
○ D and E blame each other for the collision and refuse to
admit liability. So P, sues both D and E.
○ At the trial, only D is held to be solely liable.
○ Therefore, P has won against D (the losing defendant) and
P has lost against E (the winning defendant).
○ (See Muniandy v Tan Lian Hock (1963) 29 MLJ 230).

*In such cases, the court may make either a Bullock order or a Sanderson
order.
Bullock Order
● Bullock order (see Bullock v London General Omnibus [1907] 1
K.B. 264) – (Assume D1 is losing defendant and D2 is winning
defendant)
○ Judgment for P against D1 with costs
○ P’s claim against D2 dismissed; P to pay D2’s costs
○ D1 to pay P costs so paid by P to D2
● Functions when P had no choice but to sue D2, even if he knows
that he does not have a sustainable case against D2 – maybe to
force discovery of documents.
● In a Bullock order, Plaintiff gets costs from the losing Defendant
(D1). Plaintiff pays the costs of the winning Defendant (D2).
○ Plaintiff then claims reimbursement of costs paid to winning
Defendant (D2), from the losing Defendant (D1).
● “Judgment for the P against D1 with costs, and P’s claim against
D2 dismissed with costs”
● Difference between Bullock order and “costs shall follow the event”
is P can claim from losing D for reimbursement which P paid to
winning D.
○ Roundabout way for losing D to pay winning D’s costs

Sanderson Order
 ● Sanderson order (see Sanderson v Biyth Theatre [1903] 2 K.B.
533) – (Assume D1 is losing defendant and D2 is winning
defendant)
○ Judgment for P against D1 with costs
○ Plaintiff’s claim against D2 dismissed; D1 to pay D2’s costs
● In a Sanderson order, the losing Defendant (D1) is ordered to pay
the winning Defendant’s (D2) costs.

*End result of Bullock and Sanderson orders are the same, so why bother
having 2 different orders?

Reasons for the 2 different orders

● To protect winning D and winning D gets costs
○ If the losing defendant is insolvent, the court should
make a Bullock order and not the Sanderson order.
○ If the plaintiff is insolvent, the court should make the
Sanderson order and not the Bullock order.
● The reason is to protect the winning Defendant so that the winning
Defendant gets his costs.
○ If both parties insolvent, unfortunate
● See the following cases:
○ Bullock v London General Omnibus [1907] 1 K.B. 264
○ Sanderson v Biyth Theatre [1903] 2 K.B. 533

● For an example of a Bullock order see Federal Flour Mills Ltd. v

“Ta Tung” [1971] 2 MLJ 201 Per Abdul Hamid J as he was then)
○ “In this case, I am quite satisfied that in view of the
circumstances of this particular case, the plaintiffs were
quite justified in bringing in the second defendants as co-
defendants.Nevertheless, what the court has to consider is
this. If costs of the second defendants are ordered to
be paid direct by the first defendants, it might amount
to completely depriving the second defendants of their
costs. The only asset of the first defendants prior to
instituting the action was the ship which was arrested by
the plaintiffs. It was later released on a bank guarantee to
the extent of $190,000 which sum in actual fact
represented the only sum available to satisfy the claim
including interest and costs. The plaintiffs’ claim excluding
interest at 6% and costs amounts to $169,291.34. The
amount guaranteed is therefore quite insufficient to cover
even the plaintiffs’ claim.
○ In view of these circumstances, I am of the opinion that the
proper order as to costs of the second defendants is to
order the plaintiffs to pay the second defendants’
costs. The costs of the second defendants paid by the
plaintiffs shall be included in the costs to be paid by this
first defendants to the plaintiffs.”

Costs of Background ● There are many ways in which a court may deal with costs of the
interlocutory many interlocutory stages of action.
proceedings
Reserved costs ● Question of the incidence and amount of costs is postponed
to the end of the trial.
 ● This is the questions as to which party is to pay costs and the
amount of cause to be paid is postponed to the end of the trial.

Costs in cause: Lord Denning M.R. in J.T. Stratford & Son Ltd. v Lindley No. 2 [1969] 1
Plaintiff’s costs in the W.L.R. 1547 described these orders:
cause, Plaintiff’s costs ● “There is no definition in any law book of the words `costs in the
in any event, cause.’ But every pupil on his first day in chambers is told what it
Plaintiff’s costs means.
● `Costs in the cause’ means that the
○ costs of those interlocutory proceedings are to be
awarded according to the final award of costs in the
action.
● If the plaintiff wins and gets an order for his costs, he gets
those interlocutory costs as part of his costs of the action
against the defendant.
○ Vice-versa, if the defendant wins and gets an order for his
costs, he gets those interlocutory costs as part of his costs
of the action against the plaintiff ...
● `Plaintiff’s costs in the cause’ means that
○ if the plaintiff wins, he gets the costs of the
interlocutory proceedings: but, if he loses, he does not
have to pay the other side’s costs of them.
● `Plaintiff’s costs in any event’ means that,
○ no matter who wins or loses, when the case is decided,
or settled, the plaintiff is to have the costs of those
interlocutory proceedings.
● `Plaintiff’s costs’ means that the
○ plaintiff is to have the costs of the interlocutory
proceedings without waiting for a decision.”

Defendants costs in ● These have corresponding meanings to above..

the cause, defendants
costs in any event,
defendants costs

Costs thrown away ● The order “costs thrown away” is often made on a successful
application to set aside a judgment obtained in default of
appearance or defence, and indicates that the defendant must
pay all the plaintiff’s costs which have been reasonably
incurred ...
● If, however, the judgment set aside was obtained irregularly, so
that the defendant was entitled to have it set aside, the
defendant will be awarded the “costs thrown away.”

Costs of the day ● Costs awarded against a party who makes a successful
application for the postponement of a hearing.

Security for Purpose ● Where a Plaintiff files an action against a Defendant, the
costs (O. 23) Defendant may be of the view that
○ (i) the Plaintiff does not have a strong case and
○ (ii) if the Defendant wins the case, the Plaintiff will be
unable to pay the Defendant’s costs.
*In such a situation, the Defendant may apply for security for costs
against the Plaintiff.
 ● Essentially, the Defendant is requesting for the Plaintiff to pay
some money as a security for the Defendant’s costs (which will
be payable in the event the Defendant wins the case).
● *The same principle applies with a Plaintiff who is faced with a
counterclaim from the Defendant. The plaintiff may also apply
for security for costs against the Defendant.
○ Kasturi Palm Products v Palmex Industries Sdn Bhd [1986]
2 MLJ 310
○ Faridah Begum v Dato’ Michael Chong [1995] 2 MLJ 404
○ Badrul Zaman bin P.S. Md. Zakariah v Mohd Aris bin
Chonin and Others [2006] MLJU 340
○ Haidakota v Tan Tiam Chai & another appeal [2009] 1 CLJ
699

The grounds to apply ● P ordinarily resident out of the jurisdiction

for security for costs ● P nominal plaintiff and there is reason to believe that he will be
are stated in O. 23 r. unable to pay
1: ○ Nominal plaintiff: a person who is named as a plaintiff in a
lawsuit, but they don't really have any control over the case
and won't be affected by the outcome. They are just
included in the lawsuit to avoid any problems with the legal
process.
● P’s address not stated or is incorrectly stated (unless mis-
statement innocently made)
● P changed address during proceedings to evade
consequences of litigation.

Matters to be ● Is P’s claim bona fide? Has he reasonably good prospects of

considered in the success?
exercise of court’s ● Is there an admission by D?
discretion on whether ● Is the application oppressive e.g. to stifle a genuine claim?
to grant security for ● Has P’s want of means been brought about by D?
costs. ● Stage of the proceedings at which application is made (should
be made as early as possible) (see A. Co. v K. Ltd [1987] 3 All
E.R. 377).
*See also Porzelack KG v Porzelack (U.K) Ltd. [1987] 1 All E.R. 1074;
Skrine & Co. v MBF Capital Bhd & Anor [1998] 3 MLJ 649
*cost shall follow event: losing party pays winning party’s costs, and that
of its own
*sounds like course chall follow the event, but twist is P can claim cost
from losing defendant
 ENFORCEMENT OF JUDGMENTS

Introduction Scenario ● In 2018, P sued D in the High Court.

○ In 2019, P obtained a judgment in the sum of RM500,000
against D.
○ To date, D has not paid the judgment to P and the
judgment sum remain unsettled.
● What steps can P take?
○ P can commence execution proceedings against D to
enforce the judgement. This is called enforcement of
judgment.
○ There are various modes (or methods) of enforcement
of a judgment such as writ of seizure and sale (D’s assets
are seized and sold, then the proceeds are paid to P to
satisfy judgment sum), garnishee proceedings etc.
○ Enforcement/execution proceedings are separate
proceedings from the main action between the Plaintiff
and the Defendant.
○ In enforcement/execution proceedings, the parties are not
known as Plaintiff and Defendant, but as:
■ Judgment Creditor/Pemiutang Kehakiman (JC),
– person who is seeking to enforce the judgment;
and
■ Judgment Debtor/Penghutang Kehakiman (JD) –
person against whom the judgment was
obtained/person who has to pay the judgment sum

Time limit ● The limitation period for actions to enforce a judgment is 12 years
from the date of the judgment, 6 years for arrears of interest -
see s. 6(3) Limitation Act 1953; (Sabah) Limitation Ordinance
(Cap. 72) – see Part V of the Schedule; (Sarawak) Limitation
Ordinance (Cap. 49) – see Part V of the Schedule.
○ Daud v Ibrahim (1961) 27 MLJ 43
● Where the enforcement/execution proceedings is by any of the
writs of execution (3 types: seizure & sale, delivery, possession),
leave is necessary to commence the proceedings if 6 years has
passed after the date of judgment - see O. 46 r. 1 and r. 2(1)(a)
 ○ Tio Chee Hing v Chung Khiaw Bank [1981] 1 MLJ 227;
Affin Bank v Wan Abdul Rahman [2003] 2 MLJ 509
○ Pacific Sanctuary Holdings Sdn Bhd (formerly known as
Ideal Prestige Sdn Bhd) v Masaland Construction Sdn Bhd
[2020] 3 MLJ 692 (CA)

No execution ● Generally, execution/enforcement proceedings cannot be

against the commenced against the Government.
Government ● In other words, if the Government fails to satisfy a judgment sum,
its assets cannot be seized to settle the judgment sum – see
s. 33(4) Government Proceedings Act 1956.
○ See also s. 35 of the same Act (discussed under
garnishment below) – exceptions subject to conditions
○ Minister of Finance, Government of Sabah v Petrojasa Sdn
Bhd [2008] 5 CLJ 321

Enforcement of Money judgment: ● Before commencing enforcement of judgment proceedings, it is

money Judgment given by crucial for the Judgment Creditor to find out the type of
judgments court is a sum of assets that the Judgment Debtor has.
under Rules of money to be paid ● Only when the Judgment Creditor knows the type of assets that
Court 2012 the Judgment Debtor has, can the Judgement Creditor determine
Non-monetary the appropriate mode of enforcement proceedings to
judgment: Injunction, commence against the Judgment Debtor.
declaration, specific ● Modes of Enforcement of a Money Judgment
performance ○ writ of seizure and sale
■ (O 46, 47)
■ Assets of the JD are in the form of movable and
immovable property
○ garnishee proceedings
■ (O 49)
■ Assets of the JD is in the form of “money or debt”
due to the JD which is in the hands of a third
party
● E.g. in savings bank, insurance policy, an
individual who owed the JD money
○ charging order
■ (O 50)
■ Assets of the JD is in the form of securities such
as shares, stocks, bonds, debentures
● Allows shares to be frozen and sold
○ appointment of receiver
■ (O 30)
■ Assets of the JD is in the form of varying income
such as royalties, business profits
● Uncertain amounts, uncertain periods
● Authors, artists, filmmakers
○ where O. 45 r. 5 applies, an order of committal
■ (O 45 r 5)
■ JD failed to obey an injunction or a direct order of
the court to do or to abstain from doing an act

Discovery in aid Before ascertaining ● There are 2 mechanisms to facilitate discovery in aid of
of execution: the mode of execution:
*procedure or execution, it will be ○ Examination of Judgment Debtor under O. 48; and
mechanism to necessary to ○ Judgment Debtor Summons (JDS) under s. 4 Debtors
discover the determine the Act 1957 read together with O 74 r 11A.
Judgment Judgment Debtor’s ● Note the similarities and differences between the two mechanisms:
Debtor’s assets assets. ○ In both the examination of JD and JDS, the JD will be
personally summoned to court.
■ While in court, the JD will be examined under oath
and will be asked to disclose the nature and
whereabouts of his assets.
○ However, note that the procedure under O. 48 is merely
to discover JD’s assets.
■ No order can be made by the court to compel the
JD to pay the judgment sum, whether in whole or
part.
○ In contrast, under the JDS procedure (method to
doscovery and a method of enforcement), the court can
make an order compelling the JD to pay the judgment
sum either in one lump sum or by instalments – see s 4(6),
(7) and (8) of the Debtors Act 1957.
■ If during JDS court order JD to pay and he fails, he
may be imprisoned up to 6 weeks

Writ of Seizure ● Applicable both in respect of movable property and immovable

and Sale property
● See forms 84 (movable property) and 85 (immovable)

Procedure ● Procedure for application and issue of writ of seizure and sale – O.
46 r. 1-6
○ where leave is required
■ leave is required if O 46 r 2(1) applies – 5
circumstances
■ JC apply for leave by filling ex parte notice of
application in form 88 supported by affidavit (O 46
r 3(2))
■ after leave is obtained, writ of seizure and sale can
be issued
○ where leave is not required or if required, leave already
obtained
■ writ of seizure and sale can straightaway be issued
■ issuance of writ of seizure and sale is merely
administrative ie there is no need to make an
application to court to issue it.
■ JC needs to complete Form 89 and file it
together with required documents (see O 46 r 4).
● Court will then issue the writ of seizure and
sale, sealed by the Court.
■ Once issued, the writ of seizure and sale is valid
for 12 months beginning with its date of issue
(O 46 r 6(1)).
● Movable property
○ For movables, the execution is done by the Sherriff (O
46 r 14 – 21).
■ Not conducted by JC. In practice, Sheriff is the
Court Bailiff.
○ Seizure of movables subject to s. 3 Debtors Act 1957.
 ○ Execution (seizing of assets) must take place between
9.00am and 4.00pm (r 15).
○ After seizure, Sheriff will sell the items at a value to be
determined by the Registrar.
■ Where the value of the items exceed RM10,000,
the sale must be conducted by a licensed
auctioneer (r. 24).
○ For appointment, powers and duties of Sheriff see
■ Section 12 C.J.A. 1964
■ O. 46 r. 14-26
● Immovable property
○ Procedure – O. 47 r. 6 and 7
■ When court issues writ of S&S under Form 85, JC
must apply for a prohibitory order from the Court
(TLDR: must have these 2 documents)
■ Once PO obtained, PO must be registered at the
appropriate land authority
■ PO must be served on JD (PO has a lifespan of 6
months, so registration, service, and application for
order for sale of land must be done within this 6
months)
■ Registrar will draw particulars for OFS, and will be
submitted to judge for approval
■ Will have hearing date to determine whether OFS
should be granted. Notice must be given at least 2
days before the hearing (under ROC 2012, not
strictly required anymore)
■ If given, Registrar will carry out the sale and
proceeds will be given to JC.
○ Writ of seizure and sale, prohibitory order: issue,
registration, service and duration of validity
■ (6 months – subject to renewal)
○ Sale of land – r. 7

What if the house is ● The bank is known as “secured creditor”. Even if the house is sold,
charged? secured creditor will be put in higher priority and proceeds will be
paid to him first.
● So, a charged house might not be the best asset to go after.

Garnishee Recovery by creditor ● See Kedah Kelang Papan v Hansol [1988] 1 MLJ 434 and Capital
Proceedings (O. of money “due or Insurance Bhd v Cheong Heng Loong Goldsmith (KL) Sdn Bhd
49) accruing due” to a [2005] 6 MLJ 593
judgment debtor in
the hands of a third
party (garnishee).

Conditions ● Sum the JC wants to garnishe must be capable of being calculated

with precision
● The sum to be money must be already due or accruing due to the
JC – cannot garnish money which is due in the future
● Money must be within jurisdiction – bank, insurance

Parties ● Garnisher: JC, person taking steps to garnish the amount due
● Garnishee: Persons holding money which is due to the JC (third
 party)
● Judgment Debtor

garnishee must be ● The sum to be garnished be must be capable of being calculated

within jurisdiction – r. with precision.
1(1).

Procedure ● First stage: application for order to show cause – r. 1(2)

○ See form 98/affidavit form 99
○ Procedure for application – r. 2
○ Order will specify time and place for further consideration
○ Service of the order – r. 3(1)
○ Effect of the order – r. 3(2)
● Second stage: Further consideration
○ Garnishee does not attend or does not dispute the debt
due – order absolute (r. 4(1))
■ See Form 100
○ Garnishee disputes liability
■ summary disposal;
● Sykt Long Lian Trading v Roxy Malaysia
[1978] 1 MLJ 221
■ trial of issue
Garnishee Proceedings Procedure
2 stages

Show cause stage Further consideration stage

● Garnisher/JC applies for ● On the date fixed for
show cause order (Form hearing, all parties
97) (JC/garnisher, garnishee
● Application for show and JD) will appear in court
cause order is by ex parte ● Purpose of the hearing is
notice of application for court to consider
supported by an affidavit. whether an order
Affidavit must comply with absolute should be
Form 98 (O 49 r 2) made.
● Once obtained, the show ● An order absolute means
cause order will fix a the money in the hands
hearing date for the next of the garnishee must be
stage, the further paid to the garnisher/JC
consideration stage ● Possibilities at the hearing:
● The show cause order ○ If garnishee does
must be served not attend or does
personally on the not dispute the
garnishee and JD, seven debt, an order
days before the hearing absolute will be
date (O 49 r 3(1)) made (O 49 r 4(1))
● Effect of service of the ○ If the garnishee
show cause order – the attends and
money in the hands of objects, the court
the garnishee is ‘frozen’ must decide
(O 49 r 3(2)) whether the
○ Garnishee cannot objection can be
pay JD or deal with disposed off
 the money for other summarily or the
purposes matter needs to be
resolved at a trial
(O 49 r 5)
○ A third party may
also attend and
object by claiming
he has an interest
in the money to be
garnished. In such
a case, the court
must also decide
whether the
objection can be
disposed off
summarily or the
matter needs to be
resolved at a trial
(O 49 r 6)
● Right of set off
○ Garnishee can set
off against JD
○ Garnishee cannot
set off against JC

Can garnishee ● If the government owes money to a JD to is holding money due to

proceedings be JD, can garnishee proceedings be commenced against the
commenced against government? – Government is not JD, but the intended garnishee.
the government? ● General rule (refer above)
● Exception: S.35 Government Proceedings Act suggest that
garnishee proceedings against the government is allowed subject
to conditions:
○ If money to be garnished in the Federal Government, must
obtain consent of Minister of Finance
○ If in the hand of State Government, must obtain consent of
Chief Minister

Claims of third ● See r. 6

persons ● See also Abdul Samad v Public Bank [1985] 1 MLJ 150
● (See also Behn Meyer etc v Agropharm etc [1988] 2 MLJ 636
(intervener cannot set aside an order absolute (George J.)).

Garnishee cannot set- ● (Sampson v Seaton Railway Co (1875) L.R. 10 Q.B. 28).
off debt owing to him Garnishee can avail himself of a set-off against judgment debtor
by garnisher (see Saw Swan Kee v Sim Lim Finance [1985] 1 MLJ 221).
(judgment creditor).

Money payable by the ● Under s. 35, Government Proceedings Act can be attached only
Government to with the consent of the Minister of Finance in the case of the
another Federal Government or the Chief Minister in the case of a State
Government.

Statutes forbidding ● Pensions: Section 19 of the Pensions Act 1980, EXCEPT for the
 attachment of debts purpose of satisfying
○ a debt due to the Government or
○ an order of Court for the maintenance of the pensioner’s
wife or former wife or minor child.
● Section 142(1)(1) of the Merchant Shipping Ordinance 1952, as
regards wages due or accruing to a seaman or apprentice to
the sea service.
● Payment of compensation for workmen’s injuries suffered
during the course of employment under the WCA Act: Section
11 of the Workmen’s Compensation Act 1952 provides that save
as provided by the Act, no lump sum or half-monthly payment
payable under the Act shall in any way be capable of being
assigned or charged or liable to attachment or pass to any person
other than the workman by operation of law nor shall any claim be
set off against the same.
● Section 51 Employees Provident Fund Act 1991 – money in EPF
cannot be garnished.

Charging Orders ● Applies only to securities which includes stocks, shares,

(O. 50) debentures, government bonds etc - r. 2(3)
● First stage:
○ Procedure – r. 3
■ JC apply for show cause order in Form 102 – ex
parte NOA supported by affidavit
● At hearing, court will hear JC only (ex parte)
■ Show cause order will specify time and place of
further consideration
○ Service – r. 4
■ On JD & company where the shares are held
○ Effect of show cause order – r. 5
■ Shares are frozen and no dealings can be
performed on the shares
● Further consideration – r. 6
○ All parties must be present - JC, JD, representative from
company
○ Order absolute: If the court grants OA, the shares will be
charged in favour of JC
○ Possibilities:
■ If objection raised by JD or company or third party,
court will have to decide (summarily or via trial)
■ If no objection or objection dismissed, court will
grant an order absolute
○ Effect of OA is just charge the shares in favour of JD. If JD
wants to sell the shares, need to obtain another order from
the court (O 50 r.6)
● Sale of securities charged

Equitable Equitable execution ● A Judgment Debtor may be receiving income which varies in
execution by by appointment of a amount and in time. In such a case, an application can be made
appointment of receiver (O. 30) to a appoint a receiver.
a receiver (O. ● Examples of income which varies in amount and time – royalties
30) from books, records, etc, profits of a business, profits of a
partnership.
● Purpose of receiver: Receive JD’s income as it comes in. When
 sufficient amount is collected, pay to JC

On appointment of ● The receiver is appointed to receive the income of the Judgment

receivers (O 30) Debtor, sufficient to settle the judgement sum. This income
received will then be passed to the Judgment Creditor as
satisfaction of the judgement sum.

When is this mode of ● when JD’s income is future income, received in uncertain
enforcement amounts and over uncertain periods;
applicable? ● no other mode of execution is possible/applicable.

Factors that will be ● Is there some other mode of execution available?

taken into ● What are the costs involved?
consideration ○ Costly application

Procedure O. 30 r. 1 ● Once the receiver is appointed, he will take steps to receive the
– notice of JD’s income. The income received will be passed to the Judgment
application either ex Creditor in satisfaction of the judgement sum.
parte or inter partes

Security normally ● The court will usually require security from the receiver (to prevent
required (O. 30 r. 2) absconding by receiver)

Enforcement of Generally, there are 2 ● Writ of possession (O. 45 r. 3)

a Non-money modes of ○ This form of enforcement is used where the Plaintiff has
judgment enforcement of a non- obtained a judgment or order giving him possession of
money judgment ie, immovable property
the writ of possession ● See Leong Ah Weng v Neoh Thean Soo [1983] 2 MLJ 119
and writ of delivery ● If Defendant does not deliver possession of the land to the
Plaintiff, the Plaintiff may issue a writ of possession in Form 87 or
87A. This is an command for the Sheriff to enter the land and to
take possession of it. See Form 87 and 87A.
● The procedure is governed by O 45 r 3. To issue writ of
possession, the leave of court is required. [Please read the Order
on your own].

● Writ of Delivery (O. 45 r. 4)

● This form of enforcement is used where the Plaintiff has obtained
a judgment for the delivery of movable property ie the judgment is
an order by the court directing the Defendant to deliver movable
property to the Plaintiff.
● If Defendant does not deliver the movable property to the Plaintiff,
the Plaintiff may issue a writ of delivery in Form 86 or 86A. This is
an command for the Sheriff to seize the movable property
concerned and to deliver it to the Plaintiff. See Form 86 and 86A.
● The procedure is governed by O 45 r 4. [Please read the Order on
your own].

Enforcement of Scenario ● The Judgment Creditor (JC) obtains a judgment against the
Foreign Judgment Debtor (JD) in a foreign country and wants to enforce
Judgments the judgment in Malaysia.
● For example: A sued B in the Singapore. A obtained a judgment
against B in the Singaporean court. A wants to enforce this
judgment in Malaysia because B has assets in Malaysia.
● Question: Can the foreign judgment be enforced in Malaysia
 against B’s assets in Malaysia?
● Answer: Yes. Generally, there are two procedural modes of
enforcing a foreign judgement in Malaysia, namely, (1)
enforcement under common law and (2) enforcement under the
Reciprocal Enforcement of Judgement Act 1958.

Enforcement of a ● Under common law, a JC with a foreign judgment has to

Foreign Judgment commence a fresh action in the Malaysian courts to sue the JD on
under Common law the foreign judgment, treating the judgment sum as a debt owed
by the JD. This is commonly referred to as an action upon a
judgement.
● In other words, the foreign JC commences a local action against
the JD and the cause of action is that the foreign judgment sum is
a debt due from the JD to the JC.
● In Malaysia, the bringing of a fresh action on a foreign judgement
is a common and important mode of enforcing foreign judgements.
This may be done by the JC filing a writ action in the Malaysian
courts and then proceeding to apply for summary judgment
against the JD.
● Certain conditions must be fulfilled before a JC can sue on a
foreign judgment in the Malaysian courts, as follows-
○ the foreign court must have had jurisdiction;
○ the foreign judgment must be a final judgment and not an
interlocutory judgment; and
○ if it was a personal action, the judgment must be for a fixed
sum of money.
● It is to be noted that there are certain defences that a
JD/defendant may raise in an action upon a judgement, namely:-
○ the foreign court that delivered the judgment had no
jurisdiction;
○ the foreign judgment was not a final and conclusive
judgment;
○ the foreign judgment was obtained by fraud;
○ the foreign court proceedings had breached the rules of
natural justice; or
○ the foreign judgment obtained was against public policy.
● Once the JC obtains a judgment from the Malaysian court against
the JD, that judgment can be enforced like a local judgment.

Enforcement under ● Money judgments granted by courts of some foreign jurisdictions

the Reciprocal are enforceable in Malaysia under the Reciprocal Enforcement of
Enforcement of Judgments Act 1958 (hereafter REJA 1958).
Judgement Act 1958 ● The REJA 1958 provides for the enforcement of the foreign
judgement by way of registration of the foreign judgement in the
Malaysian High Court. Once the foreign judgement is registered in
the Malaysian High Court, it may be enforced in Malaysia as if the
judgment had originally been given in a Malaysian Court. This
means such foreign judgments can be directly executed in
Malaysia procedurally without further litigation.
● Presently, the REJA 1958 only applies to judgments obtained from
the United Kingdom, Hong Kong, Singapore, New Zealand, Sri
Lanka, India and Brunei Darussalam.
● It is to be noted that there are several grounds under which a JD
can apply to set aside the registration of a foreign judgment,
 namely-
○ the REJA does not apply to the judgment;
○ the foreign court had no jurisdiction;
○ the foreign judgment was obtained by fraud; or
○ the foreign judgment was contrary to public policy.
● See “The Recognition & The Enforcement of Foreign Judgments”
by L. Marasinghe [1985] JMCL 197-223 and Ritz Carlton Casino
Ltd v Datuk Seri Osu Haji Sukam [2005] 6 MLJ 760
● REJA 1958 recognises strict reciprocity, which means the
registration is only permitted to a foreign judgment if that foreign
country concerned also allows a Malaysian judgment to be
registered in the same manner in that country. Hence there must
be a ‘reciprocal’ arrangement between Malaysia and the country
concerned.