SBC's Notes on Changes to Rules - The Selangor Bar

SELANGOR BAR COMMITTEE’S NOTES ON CHANGES TO

THE

INTRODUCTION

1. These notes have been prepared to assist members

Rules. These notes highlight the changes

Court 1980. However only the substantial changes are highlighted.

1.1 Changes such as rephrased text

notes.

1.2 Changes to some Orders have corresponding changes to certain rules

(e.g. ‘Summons in Chambers’ in O32 has been changed to ‘Notice of Application’;

thus all rules which

‘Notice of Application’).

(e.g. O25 has been deleted and replaced by directions under O34; thus all rules

which previously referred to directions under O25 have either been deleted or

changed to refer to O34)

Such changes to the rules are not

the Orders which lead to

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THE RULES OF COURT 2012

have been prepared to assist members and pupils take note of the

These notes highlight the changes by comparing the new Rules

However only the substantial changes are highlighted.

hanges such as rephrased text and re-worded terms are not highlighted in

Changes to some Orders have corresponding changes to certain rules

ns in Chambers’ in O32 has been changed to ‘Notice of Application’;

which previously referred to ‘Summons’ automatically changes to

‘Notice of Application’).


ich previously referred to directions under O25 have either been deleted or

changed to refer to O34)

Such changes to the rules are not highlighted in these notes, though the changes

the Orders which lead to these corresponding changes in the rules are.


take note of the changes to

by comparing the new Rules to the Rules of High

not highlighted in these

Changes to some Orders have corresponding changes to certain rules.

ns in Chambers’ in O32 has been changed to ‘Notice of Application’;

previously referred to ‘Summons’ automatically changes to


ich previously referred to directions under O25 have either been deleted or

in these notes, though the changes to

in the rules are.

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2. Please note that these notes are the analysis of the changes as understood by the Selangor

Bar Committee and may differ with the views of others. Members are encouraged to read

the Rules for themselves to understand and determine their effect.

ORDER 1 - CITATION, APPLICATION, INTERPRETATION AND FORMS

� Rules come into force on 1st August 2012.

• Exception – Order 91(revised filing fees).

� Rules apply to both High Court & Sub Court.

• Exception – proceedings where specific rules have been made.

• Exception – criminal proceedings.

� Note that Rule 4 introduces some new definitions.

� Rule 8 spells out Orders which only apply to High Court. These are Orders which

traditionally only applied to High Court.

ORDER 1A - COURT OR JUDGE SHALL HAVE REGARD TO JUSTICE

� No material changes

• Previously Court shall have regard to justice.

• Changed to Court shall have regard to the overriding interest of justice.

ORDER 2 - EFFECT OF NON-COMPLIANCE

� Rule 1(2) amended to stress that rules are procedural & overriding objective is to enable

courts to deal with cases justly.

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� Rule 1(2) further states that parties must assist court to achieve this objective.

� Rule 1(3) removes court’s discretion to set aside proceedings due to irregularity on its

own.

• Therefore now court may only allow proceedings to be amended to cure irregularity.

� Rule 2 – additional condition introduced for applications to set aside proceedings due to

irregularity.

• Non-compliance must have occasioned injustice/prejudice which cannot be cured by

amendment/costs.

• Notice of irregularity must be given before application filed.

ORDER 3 – TIME

� Rule 3 deleted – court vacation period no longer excluded when computing time for

service of pleadings.

� Rule 6 deleted – no longer need to give notice of intention to proceed after a year’s

delay.

ORDER 4 - CONSOLIDATION OF PROCEEDINGS

� No material changes.

ORDER 5 - MODE OF COMMENCEMENT OF PROCEEDINGS

� All proceedings commenced by Writ or Originating Summons.

• No more Petitions & Originating Motions.

• No more Summons in Sub Court.

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� Exceptions in O94 r2 (Appendix C)

• Bankruptcy, Winding up, Criminal proceedings, Election Offences, Matrimonial

proceedings, Land reference, Admission to Bar.

� Deciding whether Writ or OS.

• Substantial dispute of facts – file Writ.

• Proceedings under written law – file Originating Summons.

• Sole/principal question involves construction of law/deed/contract etc. OR unlikely

to be substantial dispute of fact – file Originating Summons, unless plaintiff wants to

file summary judgment or have an appropriate reason to begin by Writ.

ORDER 6 - WRITS OF SUMMONS: GENERAL PROVISIONS

� Rule 1 – only one form for Writ. Minor changes to the form of Writ.

• Teste no need name & titles of Chief Judge.

• Appearance to writ – 14 days (no more 8 & 12 days).

� Rule 2 – summarizes the old rules 2, 3 & 4 on items to be endorsed on the writ.

� Rule 6(1) deleted – relates to writs for service outside jurisdiction. Under O11, notice of

writ to be served out of jurisdiction still requires leave.

ORDER 7 - ORIGINATING SUMMONS: GENERAL PROVISIONS

� Rule 1 deleted – this order now applies to all OS.

� Rule 2 – only two forms for OS (no more OS which requires appearance).

� Rule 4 deleted – no more concurrent OS.

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ORDER 8 - ORIGINATING AND OTHER MOTIONS

� Order Deleted.

ORDER 9 – PETITIONS

� Order Deleted.

ORDER 10 - SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS


ORDER 11 - SERVICE OF PROCESS OUT OF JURISDICTION

� Rule 1 - added two new scenarios where permissible to serve writ outside jurisdiction

with leave of court.

• Action brought under laws relating to carriage by air; &

• Claim to enforce judgment or award.

� Rule 9 (7) – deletes application of Order 6 to OS (service through judicial authorities,

Malaysian consuls etc.).

ORDER 12 - ENTRY OF APPEARANCE TO WRIT

� Rule 2(4) – if appearance does not state address or appears address stated is not genuine,

besides setting aside the appearance Court may now

• direct party to provide address/genuine address; and

• direct that the appearance is valid.

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� Rule 3 – provision for Court to serve appearance for defendant has been deleted.

� Rule 4 – time limit for entering appearance is 14 days regardless of jurisdiction (no more

8 day, 12 day or 10 day time limit).

� Further – also 14 days to enter appearance for writ served outside jurisdiction.

� Rule 8 deleted – new Rule 12 states no appearance required for Originating Summons.

� Rules 6 & 7 deleted – no more conditional appearance.

� New rules 9, 10 & 11 added.

• Appearance not a waiver of irregularity.

• Defendant who intends to dispute proceedings shall enter normal appearance and

file application accordingly. Application must be filed within time limited for filing

of defence. If application dismissed – file defence within 14 days.

• Rule 11 - Defendant may also apply to be served.

ORDER 13 - DEFAULT OF APPEARANCE TO WRIT


ORDER 14 - SUMMARY JUDGMENT


� Note – Sub Court Affidavit in Reply must be served within 14 days of receipt of

application and not 4 clear days before return date.

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ORDER 14A - DISPOSAL OF CASE ON POINT OF LAW


ORDER 15 - CAUSES OF ACTION, COUNTERCLAIMS AND PARTIES

� New rule 13A.

• Applies to actions relating to estate of deceased person or actions relating to trust

property.

• Court may direct that notice of the action be served on persons who are not party to

proceedings, but will/may be affected by any judgment given.

• Notice is a new form – Form 17.

• Persons served may enter appearance and become a party. If no appearance, persons

will be bound by any judgment given.

� Rules 18 to 26 deleted – provisions relating to actions by paupers.

ORDER 16 - THIRD PARTY AND SIMILAR PROCEEDINGS


ORDER 17 – INTERPLEADER

� Rule 4 – although OS for interpleader must still be served personally, the interlocutory

application for interpleader no longer need not be served personally.

� Rule 7A introduced – where claimant withdraws claim or creditor admits claim – court

will proceed as if no claim made and make such orders as to costs/fees/expenses.

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ORDER 18 – PLEADINGS

� Rule 5 deleted – pleadings can now be served during court vacation.

� Rule 12(1A) introduced – general damages cannot to be quantified in pleadings.

� Rule 22 – trial without pleadings now apply to all actions (previously claims for

defamation, false imprisonment, fraud etc. excluded).

ORDER 19 - DEFAULT OF PLEADINGS


ORDER 20 – AMENDMENTS

� Rule 6 deleted – can now amend during court vacation.

� Rule 12 introduced – parties can amend pleadings by agreement before trial.

• Agreement should be in writing

• No need to apply to court

• Simply file amended pleading and serve within 14 days

• Rule does not apply to addition / omission / substitution of parties

ORDER 21 - WITHDRAWAL AND DISCONTINUANCE


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ORDER 22 - PAYMENT INTO AND OUT OF COURT

� Order deleted. Note new Order 22B.

ORDER 22A - INTERIM PAYMENTS


ORDER 22B - OFFER TO SETTLE

� New Order.

� Any time before Court disposes of matter, a party may serve on any other party – an

offer to settle (Form 34).

� Party may withdraw offer before acceptance (Form 35).

� Offer is accepted by serving acceptance of offer (Form 36).

• If accept offer and do not pay – party may either apply for judgment on the

acceptance OR proceed to trial

� Offer is deemed to be made without prejudice save as to costs.

� Offer is not filed and cannot be disclosed in Court. Offer can only be disclosed when all

issues, except costs, have been determined.

� Where plaintiff obtains judgment which is not better than offer, plaintiff only entitled to

costs up to date of offer & defendant entitled to costs from that date.

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� Note provisions on two or more defendants where there is joint & several liability as

well as offer to contribute between them.

ORDER 23 - SECURITY FOR COSTS

� Rules 2A, 2B & 2C introduced – allows for security of costs against non-parties.

• where a non-party has assigned the right to claim to plaintiff to avoid costs OR

• where non-party has contributed/agreed to contribute to plaintiff’s costs in return for

share in plaintiff’s claim

• Court may order non-party to give security for the defendant’s costs, if it is just to do

so

• Application must be served on non-party personally

ORDER 24 - DISCOVERY AND INSPECTION OF DOCUMENTS

� Rules 1 & 2 deleted – no mutual discovery & discovery without order. Discovery only

through court order.

� Rule 3 has been simplified and further describes the documents which may be subject to

discovery.

• Court may order any party to serve list of documents in his

possession/custody/power

• Court may also order party to file affidavit verifying list of documents

� Documents which may be ordered to discover are

• Documents which the party relies or will rely AND

• Documents which adversely affect his case / another party’s case or which support

another party’s case

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� New rule 7(3) describes documents which may be subject to order for discovery of

particular document.


• Documents which adversely affect or support a party’s case

• Documents which may lead to information that may affect or support a party’s case

� Rule 7(4) introduced – cannot seek discovery of particular document unless order for

general discovery obtained first (unless court thinks it necessary)

� Rule 7A introduced – procedure for discovery before commencement of proceedings &

discovery against non-party

• Purpose is to identify possible parties to proceedings

� Rule 8A introduced – party ordered to give discovery shall remain under continuous

duty to give discovery until proceedings conclude.

� Rule 12 describes documents which may be subject to an order to produce.


• Documents which adversely affect or support a party’s case

• Documents which may lead to information that may affect or support a party’s case

� Rule 16 (2), (3) & (4) deleted – no more committal in event of failure to comply.

� Rule 16 (5) introduced – party who fails to comply with order for discovery or order to

produce, may not rely on those documents.

ORDER 25 - SUMMONS FOR DIRECTIONS

� Order deleted.

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ORDER 26 – INTERROGATORIES

� Rule 1 (1) amended – party must answer interrogatories within 14 days from date of

service (previously Court prescribed time).

� Rule 6 (2) introduced –party who fails to answer interrogatories sufficiently may be

asked to give further and better particulars.

ORDER 27 – ADMISSIONS


ORDER 28 - ORIGINATING SUMMONS PROCEDURE

� Rule 1 amended – Order applies to all OS.

� Rules 2, 3 & 6 deleted – no more OS requiring appearance.

� Rule 3A introduced – OS to be heard in chambers unless expressly provided by

Rules/law/practice direction.

� Rule 3B introduced for defendant to dispute jurisdiction, service, order extending

validity, order for service outside jurisdiction, Malaysia not proper forum etc.

• Must apply to court within 21 days of service of OS

� Rule 3C introduced to regulate time limit for service of Affidavits.

• Affidavit in Support (if not served with OS) – within 7 days of service of OS (ex parte

OS must serve together)

• Affidavit in Reply – within 21 days

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• Subsequent Affidavits – within 14 days

� Rule 4 amended – where order given because defendant does not appear, court may re-

hear OS if satisfied it is just to do so (previously may vary/revoke by subsequent order)

ORDER 29 - INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF

PROPERTY

� Rule 1 (2) amended – allows defendant to make ex-parte application (previously only

plaintiff could apply)

� Rule 1 (2BA) amended – court must fix inter partes date within 14 days of ex parte order

(previously 21 days)

� Rule 3 amended – where injunction granted before issue of originating process, and

originating process is not issued within 2 days of injunction, court may discharge the

injunction

ORDER 30 – RECEIVERS


� rule 6 (2) - interest changed from ‘8%’ to ‘as Chief Judge may direct’.

ORDER 31 – SALE OF IMMOVABLE PROPERTY BY ORDER OF COURT

� No material changes

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ORDER 32 – APPLICATIONS & PROCEEDINGS IN CHAMBERS

� Form for all interlocutory applications changed. All applications in chambers are to be

done by Notice of Application in Form 57. No more Summons In Chambers.

� Rule 7 deleted - No more writ of subpoena for purposes of compelling witness to attend

proceedings in Chambers

� Notice Of Application shall be heard in Chambers.

� Affidavit in Reply – file/served within 14 days from the date of receipt of the sealed

application and supporting affidavit (21 days if deponent outside Malaysia).

ORDER 33 – MODE OF TRIAL

� For trials with assistance of assessors, specific rules have been introduced which

regulate appointment of assessor, objections to such appointments, their qualifications,

remuneration etc.

ORDER 34 – PRE TRIAL CASE MANAGEMENT

� This Order has been revamped substantially.

� Rule 1 – empowers court with wide powers to give directions for just, expeditious and

economic disposal of cases (similar with current practice in NCvC and NCC courts).

Failure to comply - court can dismiss the action, strike out the defence or counterclaim

or make such other order.

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� Rule 2 – powers to give pre-trial directions on conduct of proceedings, including

mediation, filing of Bundle Of Pleadings, Common Bundle Part A, Bundle Of

Documents involving Part B & C, Agreed Facts & Issues, time to file & exchange list of

witness, time to file & exchange Witness Statements etc. Failure to comply or attend case

management – court may dismiss the action, strike out the defence or counterclaim,

enter judgment or make such order.

� Rule 7 – court shall endeavor to secure admissions and agreements on conduct of

proceedings.

� Rule 8 – parties shall give all information and documents as required by court during

case management (except privileged documents).

� Rule 9 – parties who want to apply for certain interlocutory orders (e.g. consolidation,

transfer, amendment, security for costs, discovery, interrogatories etc.) need not file a

separate application and can instead apply at case management date for such

interlocutory orders or directions in Form 60.

• must serve Form 60 notice 7 days before case management date

• after case management and before trial, parties can still seek similar orders but need

to file notice of application

� Rule 10 – introduces automatic directions for personal injury cases.

• does not apply to personal injury cases of admiralty action (collision) and medical &

dental negligence cases

• specific time limits provided for discovery, expert reports, sketch plan etc., as well

as time period to set down for trial

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ORDER 35 – PROCEEDINGS AT TRIAL

� Rule 2 – in relation to applications to set aside Order which was given in absence of a

party.

• application must be filed within 14 days from date of Order or such time as the

court may allow (previously 7 days after trial)

• lays down the factors court shall take into account when hearing such applications

ORDER 35A – WITNESS STATEMENT

� Order has been deleted. Witness Statements now dealt with under Order 34.

ORDER 36 – TRIALS & INQUIRIES BY REGISTRAR


ORDER 37 – ASSESSMENT OF DAMAGES

� Rule 1 amended - Application for assessment shall be made by successful party within 1

month of judgment to registrar for directions and Order 34 shall apply. Registrar then

shall give necessary directions including filing of notice of appointment.

� Subject to such directions, the notice of appointment shall be filed within 6 months of

judgment (but cannot file until directions complied with).

� If successful party don’t apply for directions or file notice of appointment within time,

other party can apply.

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� Registrar can compel attendance of witnesses & production of documents and Order 35

shall apply.

ORDER 38 – EVIDENCE : GENERAL

� Rule 2 – evidence in chief shall be given by way of witness statements (though court has

discretion to dispense). However if said witness fails to attend trial and cannot be cross

examined, his witness statement shall not be received by court.

� Witness Statement – to be filed & served 7 days before trial.

� Rules 4 & 6 deleted – on experts & accident.

� ‘Writ of subpoena’ now known as ‘subpoena’.

ORDER 39 – EVIDENCE BY DEPOSITION : EXAMINERS OF THE COURT


ORDER 40 – COURT EXPERT


ORDER 40A – EXPERT OF PARTIES

� New Order introduced – regulates expert evidence.

� Expert’s duty is to court and not to party appointing him.

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� Evidence must be given in a report and report must state expert’s qualifications, state

any literature or material he relied on when making the report, contain a statement on

what issues he is asked to comment on and the basis of his statement, state reasons of his

opinion etc.

� Other party may seek clarification of report by seeking leave and putting written

questions to expert. Expert’s answers must be in writing and shall form part of his

report.

� Court may direct two or more experts to discuss and agree on any issue; as well as

prepare a report on reasons for disagreeing on an issue. However such discussion and

agreement shall not bind parties, and will not be referred to by court unless parties

agree.

ORDER 41 - AFFIDAVITS

� New Rule 13 - affidavit of deponent affirmed overseas may be filed in English and –

unless the Court otherwise orders – need not have BM translation.

ORDER 42 – JUDGMENT AND ORDERS

� Rule 1 summarizes and simplifies the previous rules 1 to 3.

� New Rule 1A – judgment in proceedings heard in camera not available for public

inspection unless Court allows.

� New Rule 2A – subject to 1A, all judgments available for public inspection for a fee.

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� Rule 12 – interest on judgment debt shall be at rate determined by CJ unless agreed by

parties (previously 8%).

� Rule 12A – regulates late payment charge on judgment debts for Islamic finance matters.

ORDER 43 – ACCOUNTS & INQUIRIES

� Rule 1(2) – Order now applies to defendant with a counterclaim.

� Rules 3 (3) – (6) – introduces directions on account taking.

� Rule 5A – introduced to regulate filing of documents before taking of accounts and

inquiries.

ORDER 44 – PROCEEDINGS UNDER JUDGMENTS AND ORDERS ON EQUITY SIDE


� Rule 18 (2) - interest changed from ‘8%’ to ‘as Chief Judge may direct’.

ORDER 45 – ENFORCEMENT OF JUDGMENTS AND ORDERS

� Rule 1 amended to clarify that enforcement by charging order and appointment of

receiver can only be done in High Court.

� Rule 11A – new rule introduced whereby after the commencement of execution

proceedings, the court may direct any party to appear before the court for the purposes

of just & expeditious disposal of the execution proceedings including striking out of any

writ of execution.

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ORDER 46 – WRITS OF EXECUTION : GENERAL

� Rule 6 (2A) – defines what is meant by ‘wholly executed’ to explain situations where a

writ has not been wholly executed.

� Rule 26A – provides Form for order suspending or staying execution. Court also has

power to order person subject to execution to pay expenses/costs incurred before

suspension.

ORDER 47 – WRITS OF SEIZURE AND SALE

� Rule 6 amended to state application may be made ex parte as well as state required

contents of the affidavit in support. Rule further amended to state court may order

release of property seized if sufficient cause shown.

� Rule 7 amended to introduce various new conditions for the sale of immovable

property.

� Rules 8 & 9 newly introduced to regulate seizure of stock and securities.

ORDER 48 – EXAMINATION OF JUDGMENT DEBTOR


ORDER 49 – GARNISHEE PROCEEDINGS

� New Rule 1(3) – explains that ‘any debt due or accruing debt’ includes current and

deposit accounts in Bank.

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ORDER 50 – CHARGING ORDERS, STOP ORDERS ETC.


ORDER 51 – RECEIVERS : EQUITABLE EXECUTION


ORDER 51A – RATEABLE DISTRIBUTION

� Rule 4(d) changed – prohibitory order shall cease to affect property after 12 months

(previously 6 months).

ORDER 52 – COMMITTAL


ORDER 53 – APPLICATION FOR JUDICIAL REVIEW

� Rule 3(6) – application for judicial review shall be made within 3 months from date

grounds of application arose or decision communicated (previously 40 days).

• note that any application to extend time must now be heard inter partes

� Rule 6 amended – applications for discovery, interrogatories and cross examination of

deponent can be made anytime during proceedings (previously limited to 14 days after

leave granted).

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ORDER 54 – deleted

� There is no Order 54

ORDER 55 – APPEALS TO HIGH COURT FROM SUBORDINATE COURTS

� This Order only applies to appeals from Subordinate Courts (previously also applied to

appeals from Statutory Bodies, which is now governed by O55A)

� Substantial changes to appeal procedure.

� All appeals shall be by way of re-hearing.

� Rules 3 & 4 - Appeals after trial.

• Notice of Appeal (Form 111) – filed/served within 14 days of decision. File only

in Sub Court

• Pay RM1,000 as security for costs of appeal – within same 14 days

• Apply for notes & grounds – within same 14 days

• Record of Appeal – filed/served within 1 month of filing Notice of Appeal

(irrespective of whether notes & grounds available)

• Rule 4(1) stipulates contents of Record. No need to include Notes, Grounds &

sealed Judgment if not ready

• Notes, Grounds, sealed Judgment & amended Memorandum of Appeal can be

filed as Supplementary Record without leave

• Absence of Grounds shall not prevent appellant from proceeding with appeal

• Note requirement to forward and secure approval of draft index for Record

before filing

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� Rule 5 - Appeals other than from trial (include interlocutory appeals).

• Notice of Appeal (Form 111A) – filed/served within 14 days of decision. File in

Sub Court, extend copy to High Court

• Record of Appeal – filed/served within 1 month of filing Notice of Appeal

• Rule 5(3) stipulates contents of Record. No Notes & Grounds

� Rule 8 – notice of cross appeal to be filed within 14 days of service of Record of Appeal

(previously 7 days from service of memorandum of appeal).

� Besides these, no other material changes. Therefore no changes relating to restriction on

fresh evidence, amendments, cases where a party fails to appear etc.

ORDER 55A – APPEALS TO HIGH COURT UNDER WRITTEN LAW

� New Order governing appeals to High Court under any written law (e.g. would apply

to decisions of the Labour Office).

� Appeal by Originating Summons stating grounds and supported by Affidavit.

• Affidavit must exhibit all documents parties consider relevant

• Affidavit to exhibit Notes, Grounds & Decision (if available)

• Must file within 1 month of date of decision or date decision was notified

ORDER 56 – APPEALS FROM REGISTRAR OF HIGH COURT TO JUDGE IN CHAMBERS

� Rule 3 – Appeal must be filed within 14 days from date of decision (previously 10 days).

ORDER 57 – TRANSFER OF PROCEEDINGS

� New Order regulating transfer of proceedings between courts.

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� For transfer of proceedings between courts of co-ordinate jurisdiction, any court can

make such order on application of party.

� For transfer of proceedings between High Court and Sub Court, only High Court can

make such order on application of party.

� For transfer of proceedings between Sessions Court and Magistrates Court, only

Sessions Court can make such order on application of party.

� In determining whether to transfer, must consider whether Court to hear matter is

located/located near cause of action arose, defendant’s address, facts occurred, land

where dispute situated or any other reasons which is in interest of justice.

� Rules 2 to 4 regulate the procedure on transfer.

• states the documents, cause papers and notices to be sent

• empowers new Court to give such directions as are required


� There is no Order 58.

ORDER 59 – COSTS

� Substantial changes to this Order. Court now award costs without having costs taxed.

Taxation of bill of costs has been removed.

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� Rule 1 contains definitions and explanation of certain words. Rule 1(3) explains the

meaning and effect of various ‘costs’ terminology e.g. meaning of costs in any event,

costs here & below, costs thrown away etc.)

� Rule 2 and Rule 3 (1) & (2) are maintained.

� Rule 4 – Court will take into account offer of contribution and offer of settlement (Order

22B) when deciding on costs.

� Rule 5 – maintains previous Rule 7 (1) & (2) in relation to costs arising from misconduct

or neglect.

� Rule 6 – maintains previous Rule 8 but with some amendments, in relation to personal

liability of solicitor.

� Rule 7 – provides Court may deal with costs at any stage of proceedings or after

conclusion of proceedings; though costs only to be paid after conclusion of proceedings

unless order to contrary.

• At conclusion of proceedings, Court to hear submissions on costs and order such

costs as deem fit

• Submissions may be part of substantive submissions or separately on costs alone

• Submission of costs shall enclose bill of costs (Form 117) which will include

particulars of getting up for work done and disbursements

• Court hearing appeal can determine costs for appeal, costs of proceedings below

and costs of any connected proceedings

• Where costs determined in respect of High Court, allocatur certificate shall be issued

by Registrar upon payment of allocatur fee (4% of costs)

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� Rule 8 – provides special matters to be taken into consideration in determining costs.

• offer of contribution or settlement (O22B)

• conduct of parties

• conduct in relation to attempts to resolve matter

• extent parties followed directions

� Rule 9 - maintains previous Rule 6 in relation to restriction of discretion.

� Rule 10 – where party has failed to establish a claim or issue which was unnecessarily

raised, Court can make appropriate order of costs against said party.

� Rule 11 – where plaintiff without leave discontinues action or withdraws claim,

defendant may ask that costs be granted to him or be entitled to costs of Sub Court

action; and if costs not paid within 7 days, he can sign judgment for them. Same effect

for appeals withdrawn under O56.

� Rule 12 – maintains previous Rule 12 but with some amendments, in relation to powers

of Registrar to determine costs.

� Rule 13 – maintains previous Rule 16 but with some amendments, in relation to set off

where party liable to pay costs also entitled to receive costs.

� Rule 14 – maintains previous Rule 19 in relation to fees for more than one counsel, but

removes the stipulated time limit.

� Rule 15 – maintains previous Rule 27 but with amendments, in relation to costs payable

by another or out of fund.

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� Rule 16 – stipulates basis for assessment for costs.

• In assessing costs, Court shall have regard to all relevant circumstances,

particularly:

� complexity of matter, difficulty or novelty of questions involved

� skill, knowledge, responsibility of counsel as well as time and labour

expended

� number and importance of documents

� place and circumstances business transacted

� importance of matter to client

� value of claim

� fees payable to counsel in respect of other items in same matter which has

reduced work here

• Costs shall be determined on a standard basis, unless Court considers appropriate

for costs to be on indemnity basis

• When assessing on standard basis – Court shall allow reasonable amount of all

costs reasonably incurred. Doubts resolved in favour of paying party

• When assessing on indemnity basis – Court shall allow all costs unless unreasonable

amount or unreasonably incurred. Doubts resolved in favour of paying party

• If Court does not indicate basis, costs shall be determined on standard basis

• If Sub Court matter brought in High Court, party only entitled to costs as if

proceedings filed in Sub Court, unless Judge certifies that action justified to be filed

in High Court


to solicitor by own client.


to trustee out of trust fund.

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� Rule 19 – Costs payable for High Court trial – at discretion of Court and shall be

determined at conclusion of trial. Factors in Rule 16 relevant.

� Rule 20 – Costs payable for Sub Court interlocutory applications – Magistrates Court not

exceeding RM2500 & Sessions Court not exceeding RM8000.

� Rule 21 – Costs payable for High Court interlocutory applications which are outside

ambit of Rule 22 - at discretion of Court and factors in Rule 16 relevant.

� Rule 22 – provides scale costs for interlocutory judgment in all three courts

• Where defendant pays on receipt of writ – first scale in Appendix Part 1

• Where judgment in default entered – second scale in Appendix Part 1

• Where application for summary judgment, judgment after striking out, judgment on

disposal of point of law, judgment on admission, judgment for failure to comply

directions etc. – third scale in Appendix Part 1

• Also entitled to additional costs as allowed in Appendix Part 2

• Where costs on indemnity basis, further entitled to additional costs as allowed in

Appendix Part 3

• However this Part does not apply to judgment where damages are to be assessed as

well as relief for charge actions

� Appendix Part 4 allows for further costs in certain designated cases.

� Rule 23 - Costs payable for Sub Court trial – according to fixed scale of costs.

• Attendance in open court for mention, JDS etc. – additional RM100 each attendance

• Judgment by admission – no advocacy costs

• Where after matter fixed for trial; claim withdrawn, matter settled etc. – only half

advocacy costs allowed

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• Where on trial date but before trial begins; claim withdrawn, judgment given, action

dismissed etc. – only half advocacy costs allowed

• Where after trial begins; claim withdrawn, judgment given, action dismissed etc. –

full advocacy costs allowed

• Trial adjourned at request of a party; party may be required to pay costs not

exceeding ¼ of advocacy costs

• Witnesses may be allowed a reasonable fee and travelling allowance

� Rule 24 – An award for costs shall carry such interest rate as provided under O42, from

date of award until full payment.

ORDER 60 – THE REGISTRY


ORDER 61 – SITTINGS, VACATION AND OFFICE HOURS


ORDER 62 - SERVICE OF DOCUMENTS

� Rule 6(1) – ordinary service now includes service by facsimile or in manner agreed

between parties.

� Rule 6(3) - regulates service by facsimile

• the party serving the document and the party on whom the document is served

must be represented by solicitor

• solicitor on whom document is served has indicated that he is willing to accept

service by facsimile at a specified number (inscription of fax number on

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solicitor’s writing paper shall be deemed to show willingness to accept service

by fax); the document must be transmitted to this number

• the hard copy of the document is served within 3 days after the day of service by

facsimile.

ORDER 63 - PAPER, PRINTING, NOTICES AND COPIES

� Rule 1 – cause papers may now be printed on both sides of paper.

ORDER 63A - ELECTRONIC FILING

� New Order – provides rules regulating implementation of e-filing system, service

bureaus & online filing.

� Rule 7(4) – Registrar may allow document to be filed other than by e-filing.

� Rules 9(1) and (2) - Document is deemed filed upon successful payment into the Court’s

computer system. Document is deemed to be sealed and issued upon successful

payment into the Court’s computer system.

� Rule 9(3) - If upon application the Registrar is satisfied for any reason that a document

should be treated as filed at some earlier date and time, he may order the document to

be amended to reflect such earlier date and time.

� Rule 10 – when time begin to run for service

• Document not requiring seal of court filed online – from time Registrar’s notification

is received

• Document not requiring seal of court filed at service bureau – from successful

payment of prescribed fee

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• Document requiring seal of court – from time sealed document is received in

computer system of solicitor (if received on holiday – deemed received on next

working day

� Rules 11 to 13 regulate notifications, amendments and affidavits.

� Rules 14 to 16 prescribes presumptions on application of e-filing system, prevailing

information is event of discrepancy and interpretations.

ORDER 64 – CHANGE OF SOLICITOR


ORDER 65 - SERVICE OF FOREIGN PROCESS

� New Rule 2A - service of foreign legal process may be effected by methods of service in

these Rules.

ORDER 66 – OBTAINING EVIDENCE FOR FOREIGN COURT


ORDER 67 – RECIPROCAL ENFORCEMENT OF JUDGMENTS



� There is no Order 68.

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ORDER 69 – ARBITRATION PROCEEDINGS

� Order has been completely re-drafted

• Makes references to claims under the 2005 and 1952 Acts

• Provides procedure on commencement of claim, applications to set aside award,

applications to refer questions of law, preliminary questions of law, enforcement

of awards, registration of foreign awards, stay of proceedings, extension of time,

service out of jurisdiction and others

ORDER 70 - ADMIRALTY PROCEEDINGS

� Order has substantial changes

• Rule 2 (1A) provides for admiralty action in personam (previously only actions in

rem).

• New rules in relation to issue of writ & appearance, proceedings relating to

International Oil Pollution Compensation Fund, service out of jurisdiction,

warrant of arrest, service of writ, execution of warrant of arrest, service on ships

and many more

ORDER 71 - NON-CONTENTIOUS PROBATE PROCEEDINGS

� Rule 5(1) – application for a grant must be by originating summons in Form 5 and shall

be supported by an affidavit setting out the information in Form 159.

• information in Form 159 is the same as those set out in the Petition (Form 168) of

RHC.

� The word ‘petition’ has been replaced with ‘originating summons’.

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� New Rule 47A replaces old 46A, 46B & 46C– relating to deposit & inspection of original

wills in Court.

� Rule 48 deleted – relating to power of Registrar to require applications be made.

� New Rule 49 – Memorandum and Notice of resealing of Grant shall be in Forms 168 &

169.

ORDER 72 – CONTENTIOUS PROBATE PROCEEDINGS

� Rule 11 – service of Statement of Claim 14 days after filing of rule 9 Affidavit (previously

8 days).

� Rule 17 deleted – relating to applications by motion.

ORDER 73 – PROCEEDINGS BY AND AGAINST THE GOVERNMENT


ORDER 74 - DEBTORS ACT 1957

� New Rule 3A – adopts O37 r3 Sub Court Rules, relating to issue of judgment debtor

summons not preventing application for order of arrest.

� New Rules 11A to 11D - adopts O37 r13 - r16 Sub Court Rules, relating to judgment

debtor summons.

� New Rule 23 - adopts O37 r23 Sub Court Rules, relating to costs.

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ORDER 75 – DISTRESS ACT 1951


ORDER 76 – DISABILITY

� Rule 1 - refers to the Mental Health Act 2001 instead of Mental Disorders Ordinance

1952 & refers to minor instead of infant.

� New Rule 1A – jurisdiction of the High Court to grant leave pursuant to the Mental

Health Act 2001 to bring proceedings against a person.

� The terms “guardian ad litem” and “next friend” are replaced with “litigation

representative”.

� Rule 4(9) deleted.

ORDER 77 – PARTNERS


ORDER 78 – DEFAMATION ACTIONS


ORDER 79 – MONEYLENDERS’ ACTIONS

� Rule 3 – additional particular to be pleaded in statement of claim i.e. the form in which

the money was lent.

35

� Rule 5 deleted – presumably cannot proceed by Originating Summons.

ORDER 80 – ADMINISTRATION AND SIMILAR ACTIONS


ORDER 81- ACTIONS FOR SPECIFIC PERFORMANCE, SUMMARY JUDGMENT


ORDER 82 – DEBENTURE HOLDERS’ ACTION : RECEIVER’S REGISTER


ORDER 83 - CHARGE ACTIONS

� Amended to reflect that Originating Summons used does not require appearance and

therefore no more notice of appointment.

• Rule 2(1) – references to appearance deleted

• Rule 2(2) – references to notice of appointment deleted. OS (not notice of

appointment) to be served 4 days before hearing

• Rule 2(4) — references to notice of appointment deleted. Where hearing

adjourned, then the plaintiff must serve a written notice of the adjourned hearing

(instead of notice of appointment) 2 days before adjourned hearing. However

this requirement only necessary where defendant was absent from the earlier

hearing

• Rule 2(5) codifies requirement to prove service by affidavit of service

36

� Rule 3(3) amended – affidavit need only state amount due under charge as at date of

hearing (previously must state loan sum, repayment sum, installment in arrears etc.).

� Rule 3(7) deleted – affidavit no longer need to state sum of daily interest.

ORDER 84 – PROCEEDINGS RELATING TO INFANTS


ORDER 85 – BILLS OF SALE ACT 1950

� References in Order to summons ex parte amended to ex parte originating

summons.

� Rule 3 deleted – refers to appearance for OS (now irrelevant).

ORDER 85A - PROCEEDINGS ARISING OUT OF HIRE-PURCHASE AGREEMENTS

� Adopts Order 46 Sub Court Rules.

ORDER 86 – INHERITANCE (FAMILY PROVISION) ACT 1971


ORDER 86A - EMPLOYMENT ACT 1955

� Adopts Order 39 Sub Court Rules.

37

ORDER 87 – TRADE MARKS ACT 1976


ORDER 88 – COMPANIES ACT 1965

� Rule 2 amended – except for proceedings relating to winding up and capital reduction,

all other proceedings shall be commenced by Originating Summons.

� Rules 3 to 6 deleted – relating to actions to commence by petition and motion as well as

entitlement of proceedings.

� Rule 7(1) to (3) deleted – relating to summons for directions. Note Rule 7(4) & (5) still

applies on directions to be given.

ORDER 89 – SUMMARY PROCEEDINGS FOR POSSESSION OF LAND

� Rule 2 – introduces a Note which shall be included at the end of the Originating

Summons.

� New Rule 3 (2) – where plaintiff unable to identify occupant, he must state in supporting

affidavit the reasonable steps taken to identify occupants.

ORDER 90 – LODGMENT IN COURT AND PAYMENT TO SHERIFF

� New Rule 6 (3) – parties may apply to court for monies lodged in court to be deposited

in an interest bearing account in a bank.

38

� New Rule 8 (3) – applications with respect funds in court which do not exceed RM50,000

may be made to Registrar (previously RM5,000).

� Rule 11 (5) deleted – no notice to collector of estate duty.

� Rule 18 (3) deleted – provision that interest not payable for monies deposited with

sheriff deleted.

ORDER 91 – COURT FEES


ORDER 92 – MISCELLANEOUS

� Rule 1(3) - An affidavit in a foreign language shall be filed with translation by annexing

the affidavit and translation as exhibits to translator’s affidavit.

� Rule 1(4) - In urgent cases, proceedings may be commenced in English is allowed,

provided that a certificate of urgency is filed copies of BM version filed within 2 weeks.

� Rule 2A – Where document filed with insufficient fees, Registrar shall accept document

and give notice to solicitor to make good shortfall within 7 days, failing which document

is rejected. If excess fees paid, there is no refund.

� Rule 3 deleted – Registrar can no longer reject document for non-compliance with rules.

ORDER 93 - SMALL CLAIMS PROCEDURE

� Adopts Order 54 Sub Court Rules

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ORDER 94 - REPEAL, SAVING AND TRANSITIONAL PROVISIONS

� Rule 1 – repeals Rules of High Court & Sub Court Rules.

� Order 5 rule 1 do not apply to proceedings in Appendix C, which are proceedings

provided under any written law. Any other proceedings provided under written law

shall be commenced by OS and in accordance with these rules.

� Actions commenced by Petition, Originating Motion or Motion before commencement

of these rules, shall proceed under old rules.

APPENDIX C

LIST OF EXEMPTED LAWS

(1)

Item

(2)

Proceedings

(3)

Written Law

1. Bankruptcy proceedings Bankruptcy Act 1967

2. Proceedings relating to the winding up

of companies and capital reduction

Companies Act 1965

3. Criminal proceedings Criminal Procedure Code [Act 593]

4. Proceedings under the Elections Offences

Act 1954

Elections Offences Act 1954 [Act 5]

5. Matrimonial proceedings Law Reform (Marriage and Divorce) Act

1976 [Act 164]

6. Land reference Land Acquisition Act 1960 [Act 486]

40

7. Admission to the Bar Legal Profession Act 1976 [Act 166]

Advocates Ordinance of Sabah [Sabah Cap.

2]

Advocates Ordinance of Sarawak [Sarawak

Cap. 110]

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