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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