In our previous chapters, we discussed the general process of initiating a suit and the rules on pleadings in Part 1, and Judgment in Default (“JID”) and the setting aside of the same in Part 2, and the Pre Trial and Trial stages in Part 3. In this chapter, we continue our discussion on the Malaysian Litigation Process by discussing interlocutory applications.
After the commencement of an action, parties may file various interlocutory applications to achieve various different objectives in the action. Drawing an analogy, one may consider an interlocutory application as the “add-ons” in a budget flight. There are numerous interlocutory applications that can be filed, however for the purpose of this article, focus will be placed on applications for summary judgment, striking out of pleadings and amendment of pleadings.
Summary Judgment
Under Order 14 rule 1 (1) of the Rules of Court 2012 (“ROC 2012”), a Plaintiff may, after the Defendant enters into appearance, apply to the Court for an order for Summary Judgment against the Defendant on the ground that the Defendant has no defence to a claim or any part thereof except as to the amount of any damages claimed.
A summary judgment will be awarded by the Court in situations where the case is plain and obvious and there are no serious issues to be tried, and proceeding to trial will only be delaying the judgment.
In order to defend the Plaintiff’s application, the Defendant must show that there are issues to be tried which require a full trial for evidence taking and testimonies to be presented before the Court can deliver its judgment.
This principle was established in the case of Ng Hee Thong & Anor v Public Bank Bhd [2000] 2 MLJ 29 wherein the Court of Appeal held that “the effect of O 14 is to shut the defendant from having his day in the witness box. It is a very special jurisdiction and is only to be invoked in cases where there is no bona fide triable issue.”
The Court of Appeal (who was of the opinion that our Order 14 is in pari materia with British Columbia, Canada’s r 18) cited the case of Bank of British Columbia v Anglo-American Cedar Products (1985) 57 BCLR 350 wherein the Supreme Court of British Columbia explained that “…a litigant is not to be deprived of a trial under r 18 unless it is manifestly clear that he is without a defence that deserves to be tried or that his case discloses no facts which could provide him with a defence. The question, under r 18, is whether there is a bona fide triable issue.”
Striking Out
Pursuant to Order 18 rule 19 (1) of the ROC 2012, parties may, at any stage of the proceedings, make an application to the Court to strike out pleadings on grounds that the pleadings (a) discloses no reasonable cause of action or defence, as the case may be; (b) is scandalous, frivolous or vexatious; (c) may prejudice, embarrass or delay the fair trial of the action; or (d) is otherwise an abuse of the process of the Court. The Court may then order the action to be stayed or dismissed or judgment to be entered accordingly.
The Supreme Court in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Berhad [1993] 3 MLJ 36 held that:
“The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see AG of Duchy of Lancaster v L & NW Rly Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors ). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.
An application to strike out pleadings is generally carefully / strictly granted, and only in cases where it is plain and obvious that the cause of action or defence is unsustainable. This is due to the fact that an order for striking out means that the party will no longer be allowed to rely on such pleadings, and may effectively bring the proceedings to an end.
Amendments
Under Order 20 rule 1 (1) of the ROC 2012, a party may amend any pleading once at any time before the close of pleadings without the leave of the Court. However, where the amendments are made after the close of pleadings, leave of Court is required.
The Federal Court in the case of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 2 CLJ 428 (“the case of Yamaha Motor”) ruled that amendments of pleadings are discretionary and the Court will take into consideration whether: (i) the application is bona fide; (ii) the prejudice caused to the other side can be compensated by costs; and (iii) the amendments would not in effect turn the suit from one character into a suit of another.
However, it is worth noting that the High Court in the recent case of Sharmini Nair v Narendran a/l Yahambaram [2020] MLJU 2340 made reference to the case of Hong Leong Bank v Low Thiam Hoe & Another Appeal [2015] 8 CLJ wherein the Federal Court further developed the law on amendment of pleadings by stating that under the new case management regime, in cases of amendment applications during the later stages of the case, “the principles in the case of Yamaha Motor ought not to be the sole consideration as an order for compensation by payment of costs in such a case may not be an adequate remedy”.
As much as it is important for the pleadings to be set out clearly and adequately at the first instance, circumstances may change that warrants an amendment be sought for in the parties’ respective pleadings. A granting of an application to amend by the court does not mean that the court agrees that the amended pleadings are the truth. It merely means that the court is satisfied that the amendment is relevant and can be considered in the trial. In any event, the other party is always at liberty to amend its own pleadings after an amendment order is given.
Conclusion
In a nutshell, the nature of interlocutory applications, seemingly like a secondary tool to the main suit, are an important element in the litigation process. In the circumstances of the interlocutory applications discussed above, they serve to inter-alia :-
a) ensure that straightforward cases are disposed off speedily,
b) irrelevant points be struck out; and
c) allow parties to be heard on the changes of circumstances
All in all, it is for the Court to help ensure an efficient and fair trial occurs to protect the rights of parties, and to save the Court’s time and/or resources.
For further information, please contact:
Darren Lai, Partner, Richard Wee
dl@richardweechambers.com
