Civil Law - Summary Judgment

Under the Rules of the High Court, a provision has been enacted with regards to the procedure of summary judgment. Summary judgment refers to a procedural device available for quick and swift disposition of action by the plaintiff or a counterclaim by the defendant without having a trial. This can happen when there is no dispute as to the fact of law. There are two provisions in the Rules of High Court with regards to summary judgment, namely Order 14 and Order 81 of the Rules of High Court. Although these two provisions look alike, the substances of the provisions are different. Under Order 14 of the Rules of the High Court, in particular Order 14 rule 1(2), the provision is only applicable in a writ action when the plaintiff’s claim is not for libel, slander, malicious prosecution, false imprisonment, seduction, breach of promise to marry or when the claim by the plaintiff is based on fraud allegation. It is also to be noted that the application under Order 14 cannot be made if the action is made under Order 81. However, under Order 81 of the Rules of the High Court, the provision is only to be applied when the action made is for specific performance. Specific performance refers to the remedy of requiring exact performance of a contract in the specific form it was made or according to the precise terms agreed upon by the parties. This includes specific performance of an agreement for the sale and purchase or exchange of any property or for the grant or assignment of a lease of any property. Rescission of such agreement and forfeiture or return of any deposit made under such an agreement also falls under this provision. Under Order 14 rule 1(1) of the Rules of the High Court, after the statement of claim has been served to the defendant, the plaintiff may apply for a summary judgment against the defendant after the defendant has entered an appearance on the ground that the defendant has no defence to a claim included in the writ. This means that the summary judgment may only be applied if the defendant had entered into appearance. If the defendant did not enter into an appearance, the court will deem the application to be filed prematurely.

In the case of Renofact Builder (M) Sdn. Bhd. v Chase Perdana,1 the plaintiff had filed summary application when conditional appearance of the defendant was still subsisting. The court held that the application made under Order 14 was filed prematurely. This is due to the fact that according to Order 14 rule 1(1), the application can only be made after the defendant has entered an appearance subsequent to the serving of statement of claim by the plaintiff. On the other hand, according to Order 81 rule 1(2), the application can be made against the defendant even though the defendant had not entered an appearance. So, in comparison with Order 14 of the Rules of the High Court, the application can be made notwithstanding that the defendant had not entered appearance. Next, according to Order 14 rule 2(1), it is sufficient if the deponent in the affidavit is a person who is able to verify the facts laid down in the claim. The deponent must also states that in his belief, there is no defence to that claim by the defendant. In the case of Siong Eng Co. v Malayan Insurance Co. Inc,2 the affidavit in support of the summary judgment was affirmed by branch manager and another person from the plaintiff company. It was held that as the persons who affirmed the affidavit was employee of the plaintiff’s company and had stated that the facts were within their knowledge, it was sufficient for the purpose of the Order. In Ang Swee Chuan v Lim Peng Huang,3 it was held that if in an application for summary judgment, the deponent did not insert the words asserting that in his belief the was no defence to the claim, the failure to do so would be fatal to the application. This is due to the fact that the words are mandatory and the court has no discretion to make any order under Order 14 if such words are absent. Nevertheless, under Order 81 rule 2(1), the summons must be supported by an affidavit made by a person who can swear positively to the facts verifying the cause of action. So, it can be seen that Order 14 rule 2(1) only requires a person to verify the facts laid down in a claim and no swearing is needed. As such, by applying Siong Eng 1

[1999] 3 AMR 2867. [1964] MLJ 65. 3 [1998] 3 MLJ 471. 2

Co. v Malayan Insurance Co. Inc, as long as the facts were within their knowledge, it was deemed to be sufficient. In contrast, under Order 81 rule 2(1), the person must be able to swear positively. Needless to say, the requirement for the deponent to state that in his belief, there is no defence to that claim by the defendant is still the same as required under Order 14 rule 2(1). Another difference between Order 14 and Order 81 is with regards to the requirement to attach minutes of the judgment sought by the plaintiff. While Order 14 has no such requirement, for an application made under Order 81, there is a requirement that the summons must be attached together with the minutes of judgment (Order 81 rule 2(2)). However, it was held in Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd4 that this requirement is not mandatory. In that case, the plaintiff sought an order for specific performance of an agreement and alternatively the rescission of the agreement while claiming for damages and costs. One of the preliminary objections raised by the defendants was that the application had failed to comply with the requirement set out in Order 81 rule 2(2). The court held that it was not mandatory for the plaintiff to attach the minutes of judgment together with the summons although it was a normal procedure. The court also added that failure to do so is not fatal as it can be cured by invoking Order 2 rule 1 of the Rules of the High Court. In conclusion, Order 14 and Order 81 deal with the same aspect of civil procedure, which is summary judgment. However, as has been discussed above, there are several differences with regards to these two provisions especially on its contents and its procedural aspect.

4

[1998] 2 MLJ 268.