Summary Judgment Applications in Malaysia – A Cheat Sheet

Can I get a judgment against the Defendant without going through full trial? Especially when the Defendant practically has no defence or a really weak defence against your claim?

The answer is Yes, but depends.

Introduction

Civil litigation can be a long and tenuous process. There are multiple stages from pleadings to interlocutories, trials, appeals and even enforcements. Trials in particular can sometime extend a civil suit by five months depending on the availability of the Court.

A summary judgment application or as it is widely referred as, O.14 Application is a common method in which civil cases are disposed of at a faster rate. On average, a summary judgment application is decided within three months from the filing of the Notice of Application or Summons in Chamber.

However, it is important to remember that not all cases are suitable for a summary judgment application. They very much depend on the facts of the claim and the defence pleaded.

A summary judgment will be awarded to the Plaintiff where the Court is of the opinion that Defendant has no triable issues in his defence and in cases where to proceed to full trial would merely have the effect of delaying judgment.

O.14 of the Rules of Court 2012 provides for the procedure (which are also deemed as the preliminary requirements) in making a summary judgment application which can be summarized as follows:

• The statement of claim must have been served onto the Defendant;

• The Defendant must have entered an appearance in the action; and

• An affidavit in support in accordance with O.14, r.2 of the ROC must have been filed (which is an affidavit in Form 13, verifying the facts of the claim and stating that the Plaintiff believes there is no defence to the claim).

A Defendant has to raise a “Triable Issue” in order to avoid having a summary judgment entered against him. A triable issue can be briefly described as an issue in the statement of defence which would require a full trial for evidence and oral testimonies to be considered and evaluated before a judgment can be passed.

The following principles are important for both the Plaintiff’s and Defendant’s solicitors to consider in approaching Summary Judgment Applications.

Cheat Sheet

1. After the Plaintiff has fulfilled the requirements in Order 14 rule 1 and 2, ROC 2012, the burden is on the Defendant to adduce triable issue.

Concrete Engineering Products Berhad v. Greengroup Eng Sdn Bhd [2017] 1 LNS 1903 (HC)

“[14] That is the correct approach to follow in a summary Judgment application under O. 14 r. 1 (1) ROC 2012. The Plaintiff had established a prima facie case against both the Defendants and becomes entitled to judgment. The burden then shifted to the Defendants to satisfy this Court why judgment should not be given against them and the Defendants, in opposing the Plaintiff’s applications for summary judgment, must satisfy this Court on affidavit evidence or otherwise that they had raised a triable issue or bona fide arguable defence which ought to be tried in full trial or that there ought for some other reason to be a trial.” as per Lee Swee Seng J (current JCA)

2. The Court will peruse both the affidavit evidence and statement of defence to determine whether there are any triable issues.

Bank Negara Malaysia v. Mohd Ismail [1992] 1 CLJ (Rep) 14 (SC)

In our view, basic to the application of all those legal propositions, is the requirement under O. 14 for the Court to be satisfied on affidavit evidence that the defence not only has raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the law arising from each case as disclosed in the affidavit evidence before the Court.

3. A Defendant need not show a complete or strong defence but merely that he has an issue that ought to be tried. Even a single issue would suffice.

Alloy Automotive Sdn. Bhd v. Perusahaan Ironfield Sdn. Bhd. [1986] CLJ 45 (Rep) (SC)

“A defendant ought not to be shut out from defending unless it is very clear that he has no case in the action. A complete defence need not be shown. The defence set up need only show that there is a triable issue or question or that for some reason there ought to be a trial.” as per Lee Hun Hoe CJ

South East Asia Insurance Bhd v. Kerajaan Malaysia [1998] 1 CLJ 1045 (COA)

“It is well settled that if a defendant in an O. 14 application succeeds in raising even a single triable issue, it will not be a fit case and proper case to order summary judgment. It is only in plain and obvious cases where there are no issues to be tried should recourse be had to O. 14.”. as per Shaik Daud Ismail JCA

4. Bare denials and bare averments are bad defence and will not give rise to a triable issue.

Abd Rahim Abd Rahman & 2 Ors V. DMD Industries Sdn Bhd [2008] 1 LNS 229 (HC)

“Having scuritized the proposed Statement of Defence of the 5th Defendant as annexed in his affidavit in support of Encl. 112, 1 noticed that the 5th Defendant’s defence revolved mostly on denials, no knowledge, seeking strict proof thereof, not in the country, not bound by agreements between the parties, only a sleeping partner, not in receipt of the relevant documents and so forth of the like nature. It seems to me that the defence proffered is a sham defence.” as per Dato Ahmadi bin Haji Asnawi (current JCA)

5. Documentary evidence is important to support the averments in the defence. Absence of which can lead the Court to infer otherwise.

Ashby Construction Sdn Bhd V. Cheng Thiam Seng [1999] 3 CLJ 829 (HC)

“Penilaian saya secara kritikal terhadap perenggan 6 afidavit defendan yang telah dipetik di atas tidak membawa saya kepada kesimpulan bahawa ada isu yang perlu dibicarakan di dalam kes ini. Dakwaan yang dibuat di dalam perenggan itu tidak disokong oleh apa-apa dokumen yang boleh sekurang-kurangnya menunjukkan bahawa defendan sebenarnya telah membuat perbelanjaan untuk membina premis,…. ….Dakwaan seperti ini adalah senang sekali dibuat dan jika mahkamah ini menerimanya secara bulat-bulat, tanpa bergantung kepada sedikit keterangan bebas yang lain pun, maka akan timbul satu keadaan di mana dakwaan kosong sebegini boleh dijadikan asas bagi mengecewakan sesuatu permohonan untuk penghakiman terus di bawah A. 14 KMT. as per Abdull Hamid Embong H J (current FCJ)

Conclusion

Courts especially lower courts would typically decide on this matter based on the written submission of parties with very VERY few cases requiring oral submission.

As such, it is very important to understand key principles of summary judgment in order to avoid having a summary judgment entered against your Client.