summary judgement(def)

8/10/2019 Summary Judgement(DEF)

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Summary Judgement

O.26 A SCR


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Application

O.26A r 2 (1) SCR

An application under rule 1 must be made by

notice in Form 65 ( Notice of Application)supported by an affidavit in Form 75Averifying the facts on which the claim, or thepart of a claim to which the application relatesis based and stating in the deponents beliefther is no defence to that claim or part, as thecase may be, or no defence except as to theamount of any damages claimed.


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When Should judgment be

given?O.14 rule 3 RHC

O.81 rule 3 RHC

O.26A rule 3 SCR


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O.14 rule 3 (1) RHC

Unless on the hearing of an application under rule 1either the Court dismisses the application or thedefendant satisfies the Court with respect to theclaim, or the part of the claim, to which theapplication relates that there is an issue or questionin dispute which ought to be tried or that ought forsome other reason to be a trial of that claim or

part, the Court may give such judgment for theplaintiff against that defendant on that claim orpart as may be just having regard to the nature ofthe remedy or relief claimed,


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O.81 rule 3 RHC

Unless on the hearing of an application

under rule 1 either the Court dismisses

the application or the defendant satisfiesthe Court that there is an issue or

question in dispute which ought to be

tried or that there ought for some other

reason to be a trial of the action, theCourt may give judgment for the plaintiff

in the action.


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O.26A rule 3 SCR

Unless on the hearing of an applicationunder rule 1 must be in open Court,either the Court dismisses theapplication or the defendant satisfies thecourt with respect to the claim, or part ofa claim, to which the application relatesthat there is an issue or question in

dispute which ought to be tried or thatthere ought for some other reason to be atrial of that claim or part, the court maygive such judgment for the plaintiff..


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What should the defendant do

to stop or prevent the court

from giving the judgment?

O.14 rule 3 RHC

O.81 rule 3 RHC

O.26A rule 3 SCR


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Defendant must:

Raise an issue or question indispute which ought to be tried i.e

triable issue, orRaise an issue or dispute that oughtfor some other reason to be a trial ofthat claim

I.e there is a triable defence to theaction


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How or where to raise such

Issue ?O.14 rule 4 RHC } in

O.81 rule 4 RHC } Affidavit in reply

O.26A rule 4 SCR}

A defendant may show cause

against an application under rule 1by affidavit or otherwise to thesatisfaction of the Court


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Case Law

SUMMARY JUDGMENT


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TAN YIEN SIONG V TAN POI

MENG [2002] 6 CLJ 73Facts related to S& P and transfer of landwhereby the plaintiff apply for SJ forspecific performance

The case highlighted the following:

The similarity & differences between the

application for SJ under O.14 and O. 81The issue to be raised by the def must bean arguable issue an not just an issue orany issue.


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Syed Ahmad Helmy JC

heldAs to the similarities and differences:

Read the judgment


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Issue

Are the various issues raised by the

defendants arguable issues which

merits a full trial when evaluatedagainst the evidence adduced by the

plaintiff through his several

affidavit?How to determine whether or not

there are arguable issue?


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Bank Negara Malaysia v Mohd

Ismail Ali Johor & Ors

[1992] 1 CLJ 627Mohd Azmi SCJ states:

Under an order 14 application the duty of a

judge does not end as soon as a fact is

asserted by one party, and denied or

disputed by the other in an affidavit.


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continue

Where such assertion, denial or dispute is

equivocal, or lacking in precision or is

inconsistent with undisputed contemporarydocuments or other statements by the same

deponent or is inherently improbable in

itself, the judge has a duty to reject suchassertion or denial, thereby rendering the

issue not triable.


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MATRIX MOMENTUM SDN BHD

V SARATOGA SDN BHD

[2002] 6 CLJ 162Facts:

Failure of the Defendant to deliver vacant

possession of a condominium purchase bythe plaintiff. Plaintiff applied for SJ & granted

judgment. The defendant appealed on the

judgment and raised preliminary objection on

the ground of non compliance with form 18 inrelation to the plaintiffs appliaction.


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Issue

The source of the deponents belief

Q: From Where should the deponent

get or form his belief that the def has

no defence to the claim?


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Azhar Maah J held:

it is to be noted that nowhere in the rule

requires that the source of the deponentsbelief should be his personal knowledge. The

deponents belief can also derive from

records or documents that are in his custody

or also from advice of solicitors who haveaccess to such records and documents.


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CHEMSOURCE (M) SDN BHD V

UDANIS MOHAMMAD NOR

[2001] 6 CLJ 79Facts:

The plaintiff applied for SJ when the

defendant failed to pay back the redemptionmoney as agreed between them. The

defendant raised an issue that he was

suffering from Parkinsons disease that

affected his mental capacity when he signedthe agreement.


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Issue

Whether defendants parkinsons

disease a triable issue?


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Abd Malik Ishak J

held

READ THE JUDGEMENT


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Other Cases

1. JALLCON (M) SDN BHD V NIKKENMETAL (M) SDN BHD (NO.2)

[2001] 6 CLJ 23 - SJ by Def on Counterclaim

2. RENOFAC BUILDER (M) SDN BHD V

CHASE PERDANA BHD

[2001] 5 CLJ 371

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