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Summary Judgement

O.26 A SCR

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 75A
verifying the facts on which the claim, or the
part of a claim to which the application relates
is based and stating in the deponents belief
ther is no defence to that claim or part, as the
case may be, or no defence except as to the
amount of any damages claimed.

Questions
1. When should judgment be given?
2. What should the defendant do to
stop or prevent the court from
giving the judgment?
3. What is the procedure that the
defendant has to follow?

When Should judgment be


given?
O.14 rule 3 RHC
O.81 rule 3 RHC
O.26A rule 3 SCR

O.14 rule 3 (1) RHC


Unless on the hearing of an application under rule 1
either the Court dismisses the application or the
defendant satisfies the Court with respect to the
claim, or the part of the claim, to which the
application relates that there is an issue or question
in dispute which ought to be tried or that ought for
some other reason to be a trial of that claim or
part, the Court may give such judgment for the
plaintiff against that defendant on that claim or
part as may be just having regard to the nature of
the remedy or relief claimed,

O.81 rule 3 RHC


Unless on the hearing of an application
under rule 1 either the Court dismisses
the application or the defendant satisfies
the 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, the
Court may give judgment for the plaintiff
in the action.

O.26A rule 3 SCR


Unless on the hearing of an application
under rule 1 must be in open Court,
either
the
Court
dismisses
the
application or the defendant satisfies the
court with respect to the claim, or part of
a claim, to which the application relates
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 that claim or part, the court may
give such judgment for the plaintiff..

Test
Whether the defendant has raised
an issue or question in dispute
which ought to be tried?
If yes Court should dismiss the
application for summary Judgment
by the plaintiff.
If no Court should give judgment

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

Defendant must:
Raise an issue or question in
dispute which ought to be tried i.e
triable issue, or
Raise an issue or dispute that ought
for some other reason to be a trial of
that claim
I.e there is a triable defence to the
action

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 1
by affidavit or otherwise to the
satisfaction of the Court

Case Law

SUMMARY JUDGMENT

TAN YIEN SIONG V TAN POI


MENG [2002] 6 CLJ 73
Facts related to S& P and transfer of land
whereby the plaintiff apply for SJ for
specific performance
The case highlighted the following:
The similarity & differences between the
application for SJ under O.14 and O. 81
The issue to be raised by the def must be
an arguable issue an not just an issue or
any issue.

Syed Ahmad Helmy JC


held
As to the similarities and differences:
Read the judgment

Issue
Are the various issues raised by the
defendants arguable issues which
merits a full trial when evaluated
against the evidence adduced by the
plaintiff
through
his
several
affidavit?
How to determine whether or not
there are arguable issue?

Bank Negara Malaysia v Mohd


Ismail Ali Johor & Ors
[1992] 1 CLJ 627
Mohd 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.

continue
Where such assertion, denial or dispute is
equivocal, or lacking in precision or is
inconsistent with undisputed contemporary
documents or other statements by the same
deponent or is inherently improbable in
itself, the judge has a duty to reject such
assertion or denial, thereby rendering the
issue not triable.

Continue
Unless this principle is adhered to, a judge
is in no position to exercise his discretion
judicially in an O.14 application.

MATRIX MOMENTUM SDN BHD


V SARATOGA SDN BHD
[2002] 6 CLJ 162
Facts:
Failure of the Defendant to deliver vacant
possession of a condominium purchase by
the 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 in
relation to the plaintiffs appliaction.

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?

Azhar Maah J held:


it is to be noted that nowhere in the rule
requires that the source of the deponents
belief 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 have
access to such records and documents.

CHEMSOURCE (M) SDN BHD V


UDANIS MOHAMMAD NOR
[2001] 6 CLJ 79
Facts:
The plaintiff applied for SJ when the
defendant failed to pay back the redemption
money as agreed between them. The
defendant raised an issue that he was
suffering from Parkinsons disease that
affected his mental capacity when he signed
the agreement.

Issue
Whether defendants parkinsons
disease a triable issue?

Abd Malik Ishak J


held
READ THE JUDGEMENT

Other Cases
1. JALLCON (M) SDN BHD V NIKKEN
METAL (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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