Civil Procedure Tutorial [13 Apr 2025]
Q6(a) Dec 2021
CM Corp is concerned that if Aru (Plaintiff)’s claims are dismissed, and costs is granted
to the Defendant (CM Corp), it will not be able to secure payment of cost, since Aru is
not regularly in Malaysia, and he has no asset or place of business sin Malaysia.
§ CM Corp may apply for security for cost pursuant to O.23 RC 2012, on the basis
that:
1. Aru is a foreign Plaintiff, who has no asset or place of business in
Malaysia, which makes it difficult for any costs against the Plaintiff to be
enforced if Plaintiff’s claims are dismissed
2. Aru admitted that he’s not in a great financial state due to the contract
with CM Corp
O.23
O.23 r.1 (a) – (d) explains the circumstances where the court may make an order
requiring the Plaintiff to give security for the defendant’s costs.
§ What are the factors that the court will consider in deciding on an application for
security for costs
The court is guided by the following in the exercise of such discretion, as per Sir Lindsay
Parkinson & Co Ltd v Triplan Ltd [1973] QB 609
“The court has a discretion which it will exercise considering all the
circumstances of the particular case .. Counsel for Triplan helpfully suggests
some of the matters which the court might take into account, such as whether
the company’s claim is bona fide and not a sham and whether the company
has a reasonably good prospect of success. Again it will consider whether
there is an admission by the defendants on the pleadings or elsewhere
that money is due .. The court might also consider whether the application
for security was being used oppressively — so as to try to stifle a genuine
claim. It would also consider whether the company’s want of means has
been brought about by any conduct of the defendants, such as delay in
payment or delay in doing their part of the work.”
Based on the case above, the relevant factors are:
§ Whether the claim is bona fide and not a sham
§ Strength of the parties’ case: prospect of success
§ Any admission by the defendants
§ Whether the application for SFC is genuine or used oppressively
§ Whether the Plaintiff’s financial situation is brought about by conduct of the
defendants
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Strength of the Defendant’s case
§ Collins J in Crozat v Brogden stated that if there is a strong prima facie
presumption that the D will fail in his defence, the court may refuse him
any security for costs.
§ Per Sir Nicolas Browne-Wilkinson VC in Porzelack KG v Porzelack (UK) Ltd
[1987] 1 All ER 1074
“This is the second occasion recently on which I have had a major hearing
on security for costs and in which the parties have sought to investigate
in considerable detail the likelihood or otherwise of success in the
action. I do not think that is a right course to adopt on an application for
security for costs. The decision is necessarily made at an
interlocutory stage on inadequate material and without any
hearing of the evidence. A detailed examination of the possibilities
of success or failure merely blows the case up into a large
interlocutory hearing involving great expenditure of both money
and time.
Undoubtedly, if it can clearly be demonstrated that the plaintiff is likely to
succeed, in the sense that there is a very high probability of success, then that is
a matter that can properly be weighed in the balance. Similarly, if it can be shown
that there is a very high probability that the defendant will succeed, that is a
matter that can be weighed. But for myself, I deplore the attempt to go into
the merits of the case unless it can be clearly demonstrated one way or
another that there is a high degree of probability of success or failure.”
This shows that while the strength of the parties’ case is one of the factors to be taken
into consideration, the court should generally refrain from going into detailed
analysis of the likelihood of success / failure of the Plaintiff or Defendant; save where
it can be clearly demonstrated that the Plaintiff or Defendant is likely to succeed.
à On our facts, it is not obvious that either Plaintiff or Defendant can be clearly
demonstrated to be likely to succeed
The Plaintiff is a foreigner / foreign entity – as per r.1(1)(a)
q Aeronave SPA & Anor v Westland Charters Ltd, Lord Denning MR said:
“...the rule does give a discretion to the court. In 1894 in Crozat v Brogden Lopes
LJ said that there was an inflexible rule that if a foreigner sued he should
give security for costs. But that is putting it too high. It is the usual
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practice of the courts to make a foreign plaintiff give security for costs.
But it does so, as a matter of discretion, because it is just to do so. After all
if the defendant succeeds and gets an order for his costs, it is not right that he
should have to go to a foreign country to enforce the order. ... The ordinary rule
still remains, that it is a matter of discretion ...”
While a foreign Plaintiff is a strong factor, the court would only order SFC where it is
right and just to do so, and not automatically.
Impecuniosity (poverty) / state of solvency of the Plaintiff
q Faridah Begum bte Abdullah v Dato’ Michael Chong [1995] 2 MLJ 404
“The authorities merely indicate that bankruptcy or impecuniosity should not
by itself be a ground for ordering security for costs, they do not say that in those
circumstances an order for security for costs could not be made .. I take it that O 23
applies to a bankrupt in the same way as it applies to other litigants. But as
established by several authorities, bankruptcy should not be a factor that should
prompt the court in making such an order ... I am for my part firmly of the
opinion that it is a matter which the court may, and in a proper case should,
consider in exercising a discretion where power to make an order is
established.”
q Ooi Meng Khin v Amanah Scotts Properties (KL) Sdn Bhd & Ors [2013] 5 MLJ 773
CA, where the CA dismissed an application for SFC of the appeal based on the
following:
o The sole ground advanced for the application for SFC was impecuniosity
o There was no prior application for SFC (during the course of the trial)
o There was inordinate delay in the SFC application
In particular, the CA relied on the FC decision in Menon v Abdullah Kutty [1974] 1
MLJ 130 :
“[The Act and the Rules] gives this court a discretion to order further security for
costs of an appeal 'at any time, in any case where it thinks fit', Thus this is a
discretionary remedy to be exercised in accordance with well known principles.
This court is not bound by any hard and fast rules, but has to look at all
the circumstances of the case .. Poverty of the defendant is a ground to
increase the security for costs but where it exists, the court must consider
other circumstances, whether in a particular case it will order further security
to be given .. The matter is therefore a question of discretion for the court.
It may well be that the defendant is in a state of doubtful solvency. But the matter
must be resolved at the earliest opportunity, ie when the notice of appeal was
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given .. In ordinary circumstances the respondent ought to confront the
defendant by letter to give security. If there is no adequate response, then the
respondent may apply to court .. Having regard to all the circumstances of the
case, I feel this is not a fit case to order further security for costs of the
appeal. There was no prior demand for security and the motion was not made
at the earliest opportunity.”
§ State of solvency or impecuniosity of the Plaintiff is a factor, although it is
ultimately a matter of discretion for the court.
§ Also relevant – whether the application for SFC is made promptly or after
inordinate delay
à On our facts, it appears that the state of impecuniosity of the Plaintiff is brought
about as a result of the contract with the Defendant – which would be a relevant
consideration as well
Other factors as per O.23 r.1:
§ Plaintiff is a nominal Plaintiff
§ Plaintiff’s address is not stated / incorrectly stated
§ Plaintiff has changed his address during the course of the proceedings with a
view of evading the consequences of the litigation
These are the factors which, objectively assessed, show that the Plaintiff is merely a
front, or is likely to be unduly difficult for the Defendant to enforce the costs should
the Defendant succeed
à These factors are not relevant to our facts
Manner of giving security – O.23 r.2
Conclusion:
• On the facts, it appears that Plaintiff’s want of means might have been
caused by Defendant’s action in asking the contract to be put on hold.
• On a balance of factors, it is likely that CM Corp will be granted security for
their cost.
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Civil Procedure Tutorial [13 Apr 2025]
Q7a Nov 2015
What is security for cost?
O.23 r.1 explains the circumstances where the court may make an order requiring the
Plaintiff to give security for the defendant’s costs.
The statement suggests that a major factor is the likelihood of the Plaintiff succeeding
– where Collins J in Crozat v Brogden stated that if there is a strong prima facie
presumption that the D will fail in his defence, the court may refuse him any security
for costs.
Does the above dicta overstate the weight to be placed on such likelihood of success
/ failure?
Per Sir Nicolas Browne-Wilkinson VC in Porzelack KG v Porzelack (UK) Ltd [1987] 1 All
ER 1074
“This is the second occasion recently on which I have had a major hearing on
security for costs and in which the parties have sought to investigate in
considerable detail the likelihood or otherwise of success in the action. I do
not think that is a right course to adopt on an application for security for
costs. The decision is necessarily made at an interlocutory stage on
inadequate material and without any hearing of the evidence. A detailed
examination of the possibilities of success or failure merely blows the case
up into a large interlocutory hearing involving great expenditure of both
money and time.
Undoubtedly, if it can clearly be demonstrated that the plaintiff is likely to
succeed, in the sense that there is a very high probability of success, then that is
a matter that can properly be weighed in the balance. Similarly, if it can be shown
that there is a very high probability that the defendant will succeed, that is a
matter that can be weighed. But for myself, I deplore the attempt to go into
the merits of the case unless it can be clearly demonstrated one way or
another that there is a high degree of probability of success or failure.”
This shows that while it is one of the factors to be taken into consideration, the court
should generally refrain from going into detailed analysis of the likelihood of
success of the P / failure of the D
What are the other relevant considerations in the granting of an order for SFC?
The court is guided by the following factors in the exercise of such discretion, as per Sir
Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609
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“The court has a discretion which it will exercise considering all the circumstances
of the particular case .. Counsel for Triplan helpfully suggests some of the matters
which the court might take into account, such as whether the company’s claim
is bona fide and not a sham and whether the company has a reasonably good
prospect of success. Again it will consider whether there is an admission by
the defendants on the pleadings or elsewhere that money is due .. The court
might also consider whether the application for security was being used
oppressively — so as to try to stifle a genuine claim. It would also consider
whether the company’s want of means has been brought about by any
conduct of the defendants, such as delay in payment or delay in doing their
part of the work.”
Based on the case above, the relevant factors are:
§ Whether the claim is bona fide and not a sham
§ Strength of the parties’ case: prospect of success
§ Any admission by the defendants
§ Whether the application for SFC is genuine or used oppressively
§ Whether the Plaintiff’s financial situation is brought about by conduct of the
defendants
1. The Plaintiff is a foreigner / foreign entity – as per r.1(1)(a)
In Aeronave SPA & Anor v Westland Charters Ltd, Lord Denning MR said:
“...the rule does give a discretion to the court. In 1894 in Crozat v Brogden Lopes
LJ said that there was an inflexible rule that if a foreigner sued he should give
security for costs. But that is putting it too high. It is the usual practice of the
courts to make a foreign plaintiff give security for costs. But it does so, as a matter
of discretion, because it is just to do so. After all if the defendant succeeds and
gets an order for his costs, it is not right that he should have to go to a foreign
country to enforce the order. ... The ordinary rule still remains, that it is a matter
of discretion ...”
o This is a strong factor
2. Impecuniosity – or poverty / state of solvency of the Plaintiff
§ Faridah Begum bte Abdullah v Dato’ Michael Chong [1995] 2 MLJ 404
“The authorities merely indicate that bankruptcy or impecuniosity should
not by itself be a ground for ordering security for costs, they do not say that
in those circumstances an order for security for costs could not be made .. I
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take it that O 23 applies to a bankrupt in the same way as it applies to other
litigants. But as established by several authorities, bankruptcy should not be
a factor that should prompt the court in making such an order ... I am for my
part firmly of the opinion that it is a matter which the court may, and
in a proper case should, consider in exercising a discretion where
power to make an order is established.”
§ Ooi Meng Khin v Amanah Scotts Properties (KL) Sdn Bhd & Ors [2013] 5 MLJ
773 CA, where the CA dismissed an application for SFC of the appeal based
on the following:
1. The sole ground advanced for the application for SFC was impecuniosity
2. There was no prior application for SFC (during the course of the trial)
3. There was inordinate delay in the SFC application
In particular, the CA relied on the FC decision in Menon v Abdullah Kutty
[1974] 1 MLJ 130 :
“[The Act and the Rules] gives this court a discretion to order further
security for costs of an appeal 'at any time, in any case where it thinks fit',
Thus this is a discretionary remedy to be exercised in accordance with well
known principles. This court is not bound by any hard and fast rules, but
has to look at all the circumstances of the case .. Poverty of the defendant
is a ground to increase the security for costs but where it exists, the court
must consider other circumstances, whether in a particular case it will
order further security to be given .. The matter is therefore a question of
discretion for the court.
It may well be that the defendant is in a state of doubtful solvency. But the
matter must be resolved at the earliest opportunity, ie when the notice of
appeal was given .. In ordinary circumstances the respondent ought to
confront the defendant by letter to give security. If there is no adequate
response, then the respondent may apply to court .. Having regard to all the
circumstances of the case, I feel this is not a fit case to order further security
for costs of the appeal. There was no prior demand for security and the
motion was not made at the earliest opportunity.”
§ State of solvency or impecuniosity of the Plaintiff is a factor, although it is
ultimately a matter of discretion for the court.
§ Also relevant – whether the application for SFC is made promptly or after
inordinate delay
3. Other factors as per O.23 r.1:
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§ Plaintiff is a nominal Plaintiff
§ Plaintiff’s address is not stated / incorrectly stated
§ Plaintiff has changed his address during the course of the proceedings with a
view of evading the consequences of the litigation
Q6 July 2015
The various ways for a Defendant to bring a quicker ending to a writ action without full trial:
1. O.14A
2. O.33 r.2 & r.5
3. Striking out – O.18 r.19
4. Want of prosecution
- O.34 r.1(3)
o Default of statement of claim - O.19 r.1
o Discovery - O.24 r.16
o Interrogatories - O.26 r.7
o Pre-trial case management directions – O.34 r.2(3)
O.14A
A few considerations of whether O.14A is suitable:
1. Whether all the material facts are in dispute
2. Whether such determination will dispose of a substantial part of the action.
q Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] - the Court of Appeal held
that for the purpose of O14A, the whole case does not have to be disposed of. It is sufficient
if substantial matters can be disposed of.
The ultimate question is whether “the Court be able to dispose of the case or the
major part of the case or the most significant issue in the case under Order 14A.”
q Low Chee & Songs Sdn Bhd v Extreme System Sdn Bhd – the CA in applying both the above
requirements held that:
(a) All the materials facts must not be in dispute – ie must be admitted. If the factual
allegations are denied by D – O.14A cannot be invoked. The CA disagreed with the HC
that the facts in statement of claim could be assumed to be true in the same way as
application under O.18 r.19 would – the Court cannot make a determination under
O.14A based on assumed or hypothetical facts
(b) The purpose of O.14A is saving in costs and time – if there are remaining causes
of action that are still good notwithstanding the issue determined under O.14A,
where evidence still needs to be led for them notwithstanding a favourable
determination of O.14A for the applicant – O.14A is not suitable.
O.33 rr.2 & 5
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q Federal Insurance Co v Nakano Singapore [1992] CA (Sing)
where the determination of a preliminary point..may make it unnecessary for other
more complex issues of fact or law to be decided, thus resulting in a saving of time and
expense of a protracted trial on those issues.
q Chan Kum Loong v Hii Sui Eng [1980] FC
the court has to consider whether the question of law or fact is significant to substantially
dispose of the matter altogether
q Krishnan Rajan a/l N Krishnan v Bank Negara Malaysia [2003]
1. The rule conferred upon the court a wide discretionary power to order any question or
issue in a cause or matter, whether of fact or law or partly of fact and partly of law to be
tried before, at or after the trial of the cause or matter
2. The application under the rule may not be appropriate where the facts are in dispute or
where extrinsic evidence is required to be adduced
3. The overriding consideration, when taken in its correct perspective, is whether the
application would result in a substantial saving of time and expenditure
4. The court should be wary and warn itself against the abuse of the process under this rule
Relationship between O.33 rr.2&5 with O.14A?
§ The court’s power under O.33 r.2 is wider in scope than O.14A
§ Cases have shown that applications have been made under both provisions, as seen
in
o Savant-Asia Sdn Bhd v Sunway PMI Pile Construction Sdn Bhd [2007] CA
o Yeoh Cheng Han v PPH Resorts (Penang) Sdn Bhd [2011]
§ Dayapi Holdings Sdn Bhd v Arab-Malaysian Finance Bhd [2009] Hishamudin J:
“In my judgment, when the proceeding has reached such an advanced stage of the
proceeding or had practically reached the trial stage, as has happened in the present
case, the appropriate course to adopt, should any party be of view that the cause
could be disposed of without the need of a normal trial, is not to invoke Order
14A, but to invoke Order 33 rule 2, rule 3 (2) and rule 5 of the RHC.”
O.18 r.19
§ Explain the various grounds for striking out under O.18 r.19(1)
§ Striking out may be ordered against the whole statement of claim, or just parts of it
Want of prosecution
O.34 r.1(3) RC 2012
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If the Plaintiff fails to comply with any order made in relation to:
o Default of statement of claim - O.19 r.1
o Discovery - O.24 r.16
o Interrogatories - O.26 r.7
o Pre-trial case management directions – O.34 r.2(3)
q SYED OMAR SYED MOHAMED v. PERBADANAN NASIONAL BHD [2012] 9 CLJ
557 FC
Facts:
§ Initially, the respondent ('plaintiff') had filed an action against the appellant
('defendant') in the High Court vide suit no. D1-22-270-2006 ('the 2006 suit').
§ Pursuant to an application by the defendant for discovery of documents, an order was
issued against the plaintiff to file an affidavit to disclose all documents in its possession
within a stipulated time.
§ However, the court on its own volition had issued a notice to show cause to the
plaintiff since (i) it failed to comply with the order for discovery; and (ii) it did
not lodge any appeal against the order.
§ The Deputy Registrar then proceeded to strike out the 2006 suit holding that the
plaintiff's delay in proceeding with the further prosecution of the suit was an intentional
and contumelious default.
§ The plaintiff's appeal was dismissed by the High Court judge.
§ However, the plaintiff did not file any appeal against the said decision but chose
to file the present action ('the 2010 suit') based on the same facts and relief as set
out in the 2006 suit since no statutory limitation had set in. The defendant's application
to strike out the 2010 suit was allowed by the High Court holding that pursuant to O. 34
of the Rules of the High Court 1980 ('RHC') and its inherent jurisdiction, the court
had the power to dismiss an action for want of prosecution.
§ However, the Court of Appeal allowed the plaintiff's appeal and decided that the
default on the plaintiff's part in not complying with the discovery order within
the specified time bore no relationship to the default on the plaintiff's part to
comply with O. 34 r. 2(1) of the RHC.
§ Aggrieved by the said decision, the defendant appealed to this court and the questions
that arose for consideration, inter alia, were: (i) whether the Birkett v. James principle
was applicable where the High Court acts on its own motion to strike out an action
under O. 34 of the RHC; and (ii) whether the 2010 suit was an abuse of the process of the
court.
Held (allowing appeal with costs)
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Per Zulkefli Makinudin CJ (Malaya) delivering the judgment of the court:
(1) The principle in Birkett v. James had no application for O. 34 of the RHC purposes on pre-
trial case management where the court no longer left it to the parties to move the litigation
at their own pace but assumed the role of setting the time table for progress of the case.
Further, O. 34 of the RHC was a new addition to the RHC made in 2000 (PU(A) 342/2000) and
was amended again in 2009 (PU(A) 237/2009). It provided for a radical change in approach
to the prosecution of a case in court (Tan Geok Lan v. La Kuan; refd). Thus, the Birkett v.
James principle was no longer suitable for the new regime under O. 34 of the RHC. (paras 8, 9
& 13)
(2) Under O. 34 of the RHC, it requires the High Court to take into account all the breaches and
non-compliances by the plaintiff at the time of evaluation of its failure to progress the case
before deciding whether to dismiss the action. The Court of Appeal was wrong in deciding
that the plaintiff could re-file and maintain the 2010 suit in spite of holding that the
2006 suit was rightfully dismissed for delay in failing to progress with the case. (para 16
)
(3) There was clearly an abuse of the process of the court and the 2010 suit ought to be
struck out. It was not in dispute that the discovery order in the 2006 suit was a
peremptory order and that the plaintiff had not complied with the order but proceeded
to file the second suit in identical terms. Further, there was no affidavit filed by the plaintiff
to explain the failure to comply with the discovery order or to explain the delay in progressing
with the case. It was important for an affidavit to explain the non-compliance or delay to be
filed in order for the court to evaluate the case. (paras 18, 19 & 26)
(4) The plaintiff's failure to appeal against the decision of the learned judge in striking
out the 2006 suit meant that the plaintiff had accepted the correctness of the decision
to dismiss its suit. Besides, the failure to appeal has itself been recognised as an abuse
of process because the 2010 suit would be construed as an attempt to circumvent the
appeal procedure. (para 20)
(5) The fundamental mistake made by the Court of Appeal was that it seemed to have ignored
the terms of the discovery order wherein the 2006 suit was stayed until discovery was given and
the plaintiff could only take further steps in the suit with leave of the court. Thus, the discovery
order had made the progress of the 2006 suit conditional upon the plaintiff giving
discovery. The Court of Appeal failed to appreciate this fact and therefore drew an artificial
distinction between striking out for delay (the delay factor) and striking out for disobedience of
the discovery order (the disobedience factor). (paras 22 & 23)
(6) The Court of Appeal was thus wrong in taking the restricted view of the High Court's
jurisdiction under O. 34 of the RHC. Once the High Court is seized with jurisdiction under O.
34, it will be required to consider all the factors causing delay. On the facts, the continuing
breach of the peremptory order to give discovery resulted in the action remaining stagnant and
not progressing (Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn Bhd v. ASM Development Sdn
Bhd; dist). (para 24)
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