2019 Supp

Nov 2019 (Civil Procedure)

Question 1
Q1(a)
• Defamation action – ought to have substantial disputes of facts
• OTF, commence legal action by writ of summons against Hassan (O5 r2)

Q1(b)

• Amount of claim – in excess of millions

• OTF, commence in High Court in F2 (O6 r1) as Sessions Court only can try matters up to RM1mil
(s.65(1)(b) SCA 1948)

Q1(c)
Whether Hassan has defamed Abu
• Hassan shouted “You are the worst Chairman I have ever seen” – is this defamation?
o Defamation is an actionable tort
o Abu has to show Hassan did commit the act of defaming in the presence of third
parties
• Invoke O14A r1 or O33 r2 for court to determine if the aforesaid words shouted by Hassan
amounts to defamation
o If court decides the statement is defamatory, Abu can sue Hassan
• Apply by NOA + supporting affidavit or orally in an interlocutory application to court (O14A
r2)
• If O33 r2 invoked, apply before trial by NOA + supporting affidavit (O32 r1)

Whether Abu may apply for summary judgement

• O14 r1(2) – cannot apply for summary judgement in defamation claims

Whether Abu may obtain judgement where Hassan did not deny making the statement
• Hassan admitted he made the statement but claimed it was his duty to express his view =
Hassan admits making the statement (no denial)
• If court decides the statement is defamatory, Abu can apply to Court for judgement based on
Hassan’s admission
o Apply by NOA + supporting affidavit (O27 r3)
• Court will allow judgement if there is unequivocal admission of facts but not if there are triable
issues/defence

If Hassan has entered a defence, whether Abu may strike out Hassan’s defence
• If court decides the statement is defamatory, Abu may strike out Hassan’s defence and obtain
judgement under O18 r19(1)(a)
o Apply by NOA + supporting affidavit (O32 r1)
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Question 2
Q2(a)
• GR – no discovery against stranger (Norwich Pharmacal v Commissioners of Customs & Excise)
o OTF, GLC is stranger
• Norwich Pharmacal – OTF, if GLC is innocently mixed up with any tortious acts of a wrong
doer, he is under duty to assist Paul who have been wronged by disclosing the identity of the
wrongdoer & giving him full information
• Thus, Paul can request GLC to disclose the name of the wrongdoer who sold unauthorised
copies either by:
o Letter; or
o Failing which, by commencing legal action by OS
• If GLC refuses to disclose, Paul can now obtain discovery of the wrong doer from GLC (O24
r7A)
o Procedure – O24 r7A(1)-(7)

Q2(b)
• O55 r2 – an appeal is a re-hearing & notice must be given within 14d from date of decision
• GR – appellate court will be slow in interfering (Sundram v Arjunan) & court will consider all
factors
• Appellate court will interfere when:
o Fact is inconsistent with evidence given (Saminathan v Pappa)
o Relevant evidence is not considered
o Requirements to apply for an injunction are not satisfied
• OTF, to obtain interlocutory injunction (Anton Piller Order), Paul has to satisfy:
o Requirements under O29 r1(2) & (2A)
o Pre-conditions (in Anton Piller KG v Manufacturing Process):
▪ Prima facie case
▪ Incriminating evidence
▪ Destroy by D (real possibility)
▪ Serious damage to P
▪ Full & frank disclosure
▪ Undertaking as to damages
▪ Prompt application
• OTF, HC dismissed Paul’s application due to:
o Paul’s failure to make full & frank disclosure
▪ Injunction is an equitable remedy – for Paul to obtain the injunction, he must
come with clean hands
▪ Court will not grant injunction for failure to make full & frank disclosure (Noor
Jahan v Md. Yusoff)
o Doubts as to substantive merits of Paul’s case against DEF
▪ To obtain Anton Piller Order, there must be a strong case against D
▪ Thus, Paul must provide evidence that DEF infringed on his copyright & that
the incriminating evidence is in the premise
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Q2(c)
How can Paul protect his legal rights?
• Advise Paul to apply for Mareva injunction
• Procedure – O29 r1(1)
o Apply before issue of writ by ex-parte NOA + supporting affidavit (contents of affidavit
must comply with O29 r1(2A))
o Conditions (in Mareva Compania Naviera v International Bulk Carriers):
▪ Good arguable
▪ Amount of claim
▪ Full & frank disclosure
▪ Assets of D within jurisdiction
▪ Risk of D disposing assets
▪ Undertaking as to damages
▪ Prompt application

How can Paul recover the judgement sum against DEF

• DEF has a bank account with ABC Bank
o Advise Paul (garnishor) to apply by garnishee proceedings to recover money due to
DEF (judgement debtor) in the hands of the bank (garnishee) (O49 r1(1))
o Procedure – 2 stages – O49 r1 & 2, 4 & 5
▪ 1st stage – show cause order which attaches DEF’s money
▪ 2nd stage – hearing of further consideration – an order absolute may be given
o Note: Garnished sum must be exact & DEF might apply to set aside garnishee order
(HSBC v Goh Su Liat)
• DEF owns shares in Kaya & Rich S/B
o Advise Paul to obtain charging order for DEF’s shares (securities) in Kaya & Rich S/B
(O50 r2)
o Procedure – O50 r4-6
▪ 1st stage – show cause order which attaches DEF’s securities
▪ 2nd stage – hearing of further consideration – an order absolute may be given
o O50 r6 – sale of shares will be 6 months after show cause order is made
o Note: DEF might apply to discharge or vary the charging order (O50 r7)

Question 3
Q3(a)
• HC will decide whether to give adjournment or proceed with the trial
• Order for adjournment:
o O35 r3 – court has discretion to adjourn
o Practice Direction 1/2011 – adjournment not allowed unless agreed by both parties
o PD 1/2019 – application for adjournment should be made early + good reasons
• Order to proceed with trial:
o O35 r1(2) – court may proceed with trial/counterclaim or give judgement without trial
or dismiss action or makes any other order he thinks fit
▪ O35 r2(2) – if court gives JID, D may within 14d apply to set aside + give good
reasons
̵ Court will consider matters such as justice of case, prospects of
success, delay in application, prejudice to other party (O35 r2(3))
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▪ If D is absent but his solicitor is present, trial will proceed & D’s solicitor may
cross-examine P’s witnesses (Paul D’Cruz v Chow Tai Yaw)
o OTF, therefore, HC will not give default judgement to P but will proceed with trial

Q3(b)(i)
• O2 r3 – court cannot allow preliminary objection by any party to any cause/matter only on
grounds of non-compliance with the ROC unless there is substantial miscarriage of justice
• Purpose of preliminary objection – prevent surprise & to give opportunity for other party to
prepare his submissions
• BCR 2019 CH11.4 – notice of preliminary hearing should be given not later than 4d before
hearing
• Cases illustrating need to give notice of preliminary objection:
o Bukit Melita v Lam Geok Hee – party wishing to raise PO must give written notice to
other party & failure to do so amounts to waiver of the party’s right to raise objection
o Ooi Chew Seng v Ultratech – court held the requirement of notice was satisfied when
the notice of objection sent by fax 1d before hearing of appeal
• OTF, therefore, failure to give notice of preliminary objection would amount to waiver of P’s
right to raise objection

Q3(b)(ii)
• OTF, court will not allow D’s application to strike out P’s claim on the following grounds:
o D only sent a letter of offer to settle P’s claim for RM500,000 and did not serve the
offer to P in F34 as required in O22B r1
o P agreed to the offer by letter and did not serve the acceptance in F36 as required in
O22B r6(1)
o Thus, offer to settle by D is invalid and P’s acceptance is also invalid
• Thus, D can apply to strike out P’s claim (O18 r19)
• Application to strike out is by NOA + supporting affidavit (O32 r1)

Question 4
Q4(a)(i)

• Since YL owns 3 shopping malls in different states and the particulars given by Jack are not
clear for YL to prepare its defence, YL can request Jack to provide for further and better
particulars under O18 r12(1)
• Procedure
o Request by formal letter (O18 r12(6)) – must be specific & precise
o If request failed/refused – apply inter parte NOA + AIS for court order for RFFBP (O32
r1)
o If court thinks just, order further & better particulars be served to D in F31 (O18 r12(3),
(4))
o P shall serve details as ordered (O18 r12(7))
▪ However, Jack may refuse to provide the particulars on grounds of delay tactic
by YL, the particulars requested are irrelevant or unnecessary or on evidence
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Q4(a)(ii)
• YL may either:
o Apply to court to add EE as a co-defendant; or
o Take 3rd party proceedings to claim indemnity from EE
• Application to add EE as co-defendant
o O15 r4(1) & r6(1) – YL and EE can be joined where there arise some common question
of law or fact and the rights to relief arise from the same/series of transaction
o Hee Awa v Syed Muhammad – OTF, YL may apply to court to add EE as co-D
o Procedure – O15 r6(2)(b) – by NOA + supporting affidavit + leave of court
• rd
3 party proceedings (TPP)
o Defendant (YL) may bring TPP against a third party (EE) for any contribution,
indemnity, relief or any question to be determined under O16 r1(1)
o Procedure
▪ After YL entered appearance, YL may issue TP notice in F18 or F19 together a
copy of the writ & pleadings (O16 r3(2))
̵ Third party (EE) shall from time of service be a party to the action
▪ No leave required if YL issues TP notice before its defence
▪ EE must enter appearance in F21 (O16 r4(1))
▪ O16 r4 –
̵ If TP enters appearance, D must apply by NOA + supporting affidavit
for TP directions
̵ If D defaults in applying for TP directions, TP may apply after 7d by
NOA (F22) to set aside the TP notice
̵ On an application for direction, court may:
• Order judgment to D against TP if liability of TP is established
at hearing;
• Order any claim, question or issue to be tried as Court may
direct;
• Give TP leave to defend alone or jointly with any D and
appear at trial;
• Determine the extent to which TP is to be bound by any
judgement; or
• Dismiss the application for direction.
̵ Any order or direction made shall be in F23
▪ O16 r5 – if EE defaults in not entering appearance or in serving any pleadings
ordered, he is deemed to be bound by any judgement against the D
▪ Mat Abu bin Man v Govt of Malaysia – time begins to run against the TP when
D is found liable to P

Q4(b)
• GR – parties are bound by the four corners of their pleadings and are not allowed to raise
issues not pleaded (Chartered Bank v Yong Chan)
• Exception – point not pleaded but was raised without any objection at trial (OCBC v Philip
Wee)
• However, if point not pleaded is raised at trial & other party objects, then that point cannot
be allowed to be raised (Superintendent of Lands and Surveys v Hamit bin Matusin)
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Question 5
Q5(a)(i)
Whether service of writ is valid
• OTF, Hassan has served the writ on Ali & Ahmad by prepaid AR registered post pursuant to
O10 r1(1)
• However, OTF, writ was not duly served on:
o Ali as the acknowledgement was signed by one Mohan and not Ali
o Ahmad as the posting on him was unsuccessful

Next step to take

• Advise Hassan to apply for substituted service (SS)
• O62 r5(1) – court may make an order in F133 for SS if it appears to court that it is impractical
to serve in Ali & Ahmad
• Practice Note 1/68 – steps Hassan must take before applying for SS:
o Make at least 2 calls at reasonable times
o 2nd call/attempt is made either by:
▪ Sending AR registered letter stating when Hassan would come again; or
▪ During 1st call, giving letter to any occupant stating when Hassan would make
2nd call
• Following Re Nirmala –
o If Ali’s and Hassan’s whereabouts are known then PN 1/68 must be followed
o If their whereabouts are not known, then PN 1/68 is inapplicable
o Mere statement by Hassan that Ali and Ahmad are evading service is insufficient.
▪ Hassan’s affidavit must show:
(a) The facts that Hassan’s application is bona fide;
(b) The belief and reason for such belief that Ali and Ahmad are within or
outside jurisdiction;
(c) Proposals to effect substituted service.
• Application for SS – by ex-parte NOA + supporting affidavit in F134 stating the facts and
reasons (O62 r5(2))
• After order for SS is made, Hassan must follow the steps directed by court
o Leow Boke Chooi v Asia Motor – P did not comply with the terms in substituted order,
JID obtained was set aside

Q5(a)(ii)

• Enter JIDD against Ali & Ahmad (O19 r2(1)) in F75 (O42 r5)

Q5(b)
• O22A r1 & s25 CJA 1964 – definition – payment by D to P of any damages or debt (excluding
costs)
• Circumstances in interim payment – O22A r3:
o Court may order D to make interim payment not exceeding claim for damages if
satisfied:
▪ D has admitted liability
▪ P has obtained judgement against D for damages to be assessed
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▪ If the action proceeded to trial, P would obtain judgement for substantial

damages against D
o Court will make an order for interim payment against D if D is:
▪ Person insured in respect of P’s claim; or
▪ A public authority; or
▪ A person with means and resources to enable him to make interim payment
• Procedure – O22A r2:
o P may, after service of writ on D and after time for D to enter appearance, apply to
court for D to make an interim payment
o Application by NOA (F33) but may be included in an application for summary
judgement under O14
o Application must be supported by affidavit, which shall:
▪ Verify the amount of damages, debt or other sum;
▪ Exhibit any documentary evidence; and
▪ Contain the full particulars of the person represented and of the nature of the
claim (if P is claiming in a representative capacity)
o Serve on D the NOA & copy of affidavit not less than 14d before return day
o A 2nd or subsequent application for interim payment may be made
• O22A r7 – order for interim payment shall not be pleaded
• O22A r10 – the above rules shall apply to any counterclaim
• O22A r11 – no order of interim payment shall be made against Government
• Standard of proof – on balance of probabilities (Mediahouse v Koh Kim Suan)

Q5(c)
• SC has no jurisdiction on matters stated in
o O1 r8 – Orders under 30, 31, 43, 44, 50, 51 etc.
o s.69 SCA 1948 – immovable property where there is dispute to title, enforcement of
trust, accounts, declarations (except under s.65(5)(b)), grants of representation,
legitimacy, guardianship, divorce

Question 6
Q6(a)
• Chong may apply for:
o Ex-parte Anton Piller injunction – to enter the premises of PLC to inspect and remove
vital materials before an inter partes application for an injunction could be made (Lian
Keow Sdn Bhd v C Paramjothy)
o Report to relevant authorities to take criminal action under Copyrights Act and then
sue PLC
• Procedure to apply for Anton Piller Order (APO):
o O29 r1(1) – apply before trial
o OTF, case is urgent – must be certified by Chong’s solicitor
o Apply before filing of writ by ex-parte NOA + supporting affidavit
o Contents of affidavit – must comply with O29 r1(2A)
• Matters court will consider
o Court has discretion to grant APO
o Pre-conditions (in Anton Piller KG v Manufacturing Process):
▪ Prima facie case
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▪ Incriminating evidence
▪ Destroy by D (real possibility)
▪ Serious damage to P
▪ Full & frank disclosure
▪ Undertaking as to damages
▪ Prompt application
o If satisfied, court will grant order in F53
o O29 r1(2B) – validity of APO is 21d unless sooner revoked or set aside
o Chong must serve within 1w of the date of APO & court must fix a date for inter partes
hearing to be held before the expiry of 21 days (O29 r1(2BA))
• Enforcing APO
o It is an Order in personam to permit inspection & remove vital materials
o Non-compliance of the order is contempt
o Bhimji v Chatwani – OTF, D (PLC) has right to refuse entry for 2h to contact his lawyer.
If there is defect in the order, PLC can inform Chong that it is applying to set aside.
• Privileges of PLC against self-incrimination
o TV Broadcasts Ltd – under s.132 EA 1950 there is no privilege against self-
incrimination ie. Chong may seize any things or documents which are vital materials
o However, according to PMK Rajah (affirmed by Meridian Asset Management) and
Arjunan followed Rank Film Distributors and held that there is privilege against self-
incrimination ie. Chong cannot seize all other things and documents not related to
present case
• Thus, it is easier to proceed under Copyrights Act where PLC may also be charged with a
criminal offence

Q6(b)

• P is allowed to reopen his case:

o If both parties consent (Lim Ker v Chew Seok Teo)
o If D objects, it is for the just decision of the case & there is no surprise of prejudice to
D (Ong Yoke Eng v Lim Ah Yew)

Q6(c)
• s.33(4) & 35 GPA 1956 – no execution can be made against government
• s.19 Pensions Act 1980 – cannot attach pension
• s.35(1) BSN Act 1974 – cannot attach or garnish money in Bank Simpanan Nasional without
consent of the court.
• s.51 EPF Act 1991 – cannot attach or garnish money in EPF
• Raymond Michael v D&L Finance Bhd – cannot attach salary
• s.142 Merchant Shipping Ordinance 1952 – cannot attach wages
• s.11 Workmen’s Compensation Act 1952 – cannot attach lump sum or half-monthly payment
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Question 7
Q7(a)
• Perfected judgement (sealed by court) – court has no power to alter, vary or set aside because
court is functus officio unless it comes under the “slip rule” under O20 r11 (Hock Hua Bank v
Sahari)
• However, in Baddiadin Mohd Mahidin v AMF Bhd – held court has inherent powers under O92
r4 to set aside a perfected order which is:
o Made illegally; or
o Court lacks jurisdiction; or
o In the interest of justice where there is a serious defect
• A fresh action must be made to set aside a perfected judgement/order

Q7(b)
• Facts, not law should be pleaded
o Middlesex County Council v Nathan – If a statute is relied on as the foundation of a
claim or defence, the facts necessary to bring the case within the statute must be
pleaded
o Raising a point of law is allowed (O18 r11)
• Facts, not evidence should be pleaded (O18 r7(1))
• Only material facts should be pleaded:
o All material facts are to be stated clearly and briefly (O18 r7(1))
o Material facts are those –
▪ Which will put D on his guard (Re Estate of Lee Siew Kow)
▪ Necessary to formulate a complete cause of action (Bruce v Odhams Press)
• Documents/conversations – are not to be pleaded verbatim unless they are material (O18
r7(2))

• Matters which must be specifically pleaded:

o O18 r8(1) – performance, release, relevant statute of limitation, fraud, illegality
o Limitation period under s.2 PAPA 1948 or s.7(5) CLA 1956 need not be specifically
pleaded as it is absolute but the limitation period is not absolute under LA 1953 and
must be specifically pleaded (TASJA Sdn Bhd v Golden Aproach Sdn Bhd)
• Parties are bound by their pleadings and are not allowed to raise issues not pleaded
(Chartered Bank v Yong Chan)
• Exceptions where the issue was allowed to be raised even though not pleaded:
o Court has no jurisdiction to adjudicate (Muniandy v Mohd Abdul Kade)
o Ex facie illegality (Narayanan v Kannamah)
o Issue raised is covered under the issue pleaded (Wisma Punca Emas Sdn Bhd v Dr
Donal)
o Point not pleaded but was raised and deliberated without any objection (OCBC v Philip
Wee)
o However, if a point not pleaded is raised and the other party objects, then that point
cannot be allowed to be raised (Superintendent of Lands and Surveys v Hamit bin
Matusin & Ors)
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Q7(c)
(i) Plaintiff’s claim involves difficult questions of law
• Bakar’s objection is invalid because at the summary judgment hearing, court can
determine Qs of law under O14A r1
• Ahmad’s application for summary judgment will be allowed if Bakar has no defence or no
other reason that there ought to be a trial (O14 r1(1) and r3(1))

(ii) Plaintiff’s affidavit-in-support does not state that in the Plaintiff’s belief there is no defence to the
claim
• Bakar’s objection is valid because O14 r2(1) states that affidavit in F13 must verify the
facts and state that in the deponent’s belief there is no defence to that claim except as to
the amount of damages claimed
• Ahmad’s application for summary may be dismissed and his action may go to trial
(Diamond Peak Sdn Bhd v Tweedie)
• However, court may look at the merits of the case rather than on non-compliance of the
rules and allow Ahmad to file a supplementary affidavit which complies with O14 r2(1)

(iii) The application for summary judgment was filed about 12 months after defence was filed and
served
• Delay is not ground to dismiss Ahmad’s application for summary judgment but Ahmad has
to give good reasons for the delay (Krishnamurthy v Malayan Finance Corp)
• If Ahmad has good reasons for the delay and Bakar has no defence, then summary
judgment will be given to Ahmad (O14 r1(1))
• However, if Bakar has a good defence or some other reason that there ought to be a trial,
then the application for summary judgment will be dismissed (O14 r3(1)) and the action
will go to trial (Diamond Peak Sdn Bhd v Tweedie)