Topic: Third Party Proceeding (pg 267green)

Introduction
→ An action is brought by the plaintiff against the defendant and where the defendant’s
defence is that there is another person who had contributed to events stated by the
plaintiff, then the defendant may want to bring this third party as a party to the action.
→ Third party proceedings are brought by the defendant against an outsider by adding him
into the suit. This outsider would now known as the third party in the suit between the
plaintiff and the defendant.
→ It is to prevent multiplicity of proceedings (all of the issues will be determined in one
single suit- no need to file so many proceedings in one case)

A. Sue B B add/bring C as a third party

→ C will not liable against A but C will only indemnify or liable to B for any payments
made by B to A.
When can the defendant file a third-party application?
→ Order 16 r 1 : Requires the defendant who intends to commence third party
proceedings to have entered appearance.
→ The defendant may only bring action against the third party after he had entered
into appearance
→ Order 16 r 1(a) : The defendant must intend to claim for contribution or indemnity
from the third party.
→ The defendant is claiming from the third party either for contributing to the defendant
liability in which case liability will be apportioned or the defendant seeks indemnity
from a third party.
→ Order 16 r 1(b) : Allows a defendant who is facing from claim from a plaintiff, to
bring in a third party where the claim made by the plaintiff against the defendant is
connected with the third party and the relief which is claimed by the plaintiff will be
substantially the same as claimed by the defendant against the third party.
→ Eg : C is the manufacturer who sell defect equipment to B. When A sues B for selling
defect equipment, B may file a suit against C for selling defect equipment. The defect
equipment is connected with the manufacturer and the relief claimed by the plaintiff
against the defendant is same as the defendant would claim against the third party.
 → Order 16 r 1(c): The defendant may bring a suit against third party where the question
before court should be determined not only between the plaintiff and defendant but also
the third party as the third party connected with the original subject matter.
→ Eg: The third party is so connected with the question to be determine by the court
Procedure
1. Order 16 r 1(1) : Defendant must first enter into appearance.
2. Defendnat may issue a third party notice in Form 18 or Form 19.
3. Form 18:
a. Where the defendant claims against the third party any contribution or
indemnity;
b. Where the defendant claims against the third party any relief or remedy relating
to or connected with the original subject matter of the action and substantially
the same as some relief or remedy claimed by the plaintiff
Form 19:
Where the defendant requires that any question or issue relating to or connected with
the original subject matter of the action should be determined not only as between the
plaintiff and the defendant but also as between either or both of them and the third party.
4. Order 16 r 1(2): No leave is required where defendant issues the third party notice
before defendant serve his defence
5. Leave is required to issue a third party notice where
a. Order 16 r 1(2): Defendant issues the notice after serving his defence
b. O73 r8: Third party is the government
Dato' Seri Dr Mahathir bin Mohamad v Derek Davies
The court has a general discretionary power whether or not to allow a third party notice to
be issued.
6. Order 16 r 3(2) Defendant must served the third party notice on every third party
personally with a copy of the writ and of the pleadings
7. Order 16 r 4(1): Third party must enter appearance using Form 21 within 14 days after
being served with the notice.
* The third party notice must be accompanied by a copy of the writ or originating
summons by which the action was begun and of the pleadings, if any, served in the
action
 8. Order 16 r 5(1) If third party fails to enter into appearance or defence, then judgment
may be entered against him in default of appearance or defence
Where leave is required to issue third party notice
1. Defendant must file an application for leave to issue a third-party notice under O16
r2(1) if it is taken out after service of defence on plaintiff
2. This application is filed by way of an ex parte notice of application in Form 20 but the
court may direct the application to be served. This application must be supported with
affidavit.
3. Order 16 r 2(2): requires this application for leave to issue a third party notice
filed by the defendant to be supported with an affidavit stating the following:
a) The nature of the claim made by the plaintiff
b) The stage which proceedings in the action have reached
c) The nature of the claim made by the applicant or particulars of the question or issue
required to be determined
d) The name and address of the person against whom the third party notice is to be
issued
4. Once the court grants leave to issue a third party notice, the defendant must file a third
party notice
5. Once is issued by court, the defendant must serve this notice on the third party. Together
with this notice, the defendant must also serve on the third party, a copy of pleadings
provided under O16 r 3(2). This would encompass the writ, statement of claim and
statement of defence.
6. Order 16 r 4(1): The defendant must apply for directions by filing a notice of
application into court in Form 22 within 7 days after TP has entered into appearance
7. Order 16 r 4(2): If defendant fails to serve an application seeking directions on the
third party, the third party may apply using Form 22 to set aside the third party notice
8. The notice may be dismissed if :
a. The action does not fall under O16r1(1)(a)-(c)
b. Plaintiff or third party can show special circumstances why the directions
should not be given
 Pacific Asia Leasing (M) Sdn Bhd v Senanti Motors Sdn Bhd (YM Tunku Kamil
Ikram, Third Party)
The court held that a delay in taking out third party proceedings by defendant may
constitute special circumstances for third party to apply to dismiss defendant’s summons
for third party directions.
Lee Kuan Yew v Devan Nair & Anor
The court stated that the principles applicable to set aside the third party notice are the same
as applicable to strike out under o18 r19 or under the inherent jurisdiction of the court. The
applicant in addition must show special circumstances as to why the proceedings should
not continue. Delay in taking out third party proceedings may constitute special
circumstances.
9. Order 16 r 4(3): When the defendant applies for direction, the court may give
a) If liability against the third party is established at the hearing, then judgment may
be entered against the third party
b) That any claim made by the defendant in the third party notice to be tried in such
manner as the court may direct ( if the court make this order, the third party would
have to file a third party defence)
c) Dismiss the third party application and terminate the proceedings.
10. If plaintiff wishes to obtain judgment against TP, he must apply under O15 r 6 to add
TP as co-defendant. If TP wishes to counterclaim against Plaintiff, TP must himself
apply to do so.
11. Order 16 r 5: If the third party does not enter into appearance or does not file a third
party defence, the third party shall be deemed to admit the claim and judgment shall be
entered against the third party
12. Order 16 r 7: where there is a third party notice, when the court gives judgment, the
court would consider the liability of the third party and makes an order accordingly
which will encompass the liability or otherwise of the third party.
13. The court has very wide powers to give such directions as may appear proper 'for
having the rights and liabilities of the parties most conveniently determined and
enforced'. Under Tan See Yin Vincent v Noone & Co
Position of Third Party
→ The third party may thus counterclaim against the defendant.
→ The third party and the defendant may interrogate each other.
→ A third party notice creates a separate action, independent of the original action.
– If the original action is settled or otherwise disposed of, the third party
proceedings may continue.
– Conversely, the third party proceedings may be dismissed for want of
prosecution even though the original action is still proceeding.
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Third Party Proceedings ( Final)

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Third Party Proceedings

Nature of 3rd Party Proceeding
 Definition: Third party proceedings is a procedure where the Defendant applies to
bring another person into the court proceedings as a third party.
 Scenario: P & D is already involving in a proceeding. Then, a 3rd party
proceeding is filed by D to shift the burden/liability to 3rd party. The condition is
that the 3rd party must be related to the cause of action brought by P.
 A third party proceedings is a separate action from the main action between P
and D. In third party proceedings, D becomes P and the third party becomes D.
 Third party proceedings and the main action between plaintiff and defendant may
be heard together to avoid multiplicity of suits.
 The 3rd party proceeding will be heard first. The 3rd party is required to enter his
memorandum of appearance (MOA) and statement of defence.
 As usual, the 3rd party is to enter MOA within 14 days (O 12 R 4), failing which, D
may apply for JID.
 On the other hand, if the 3rd party has no good defence & only bare denial, D
may file SJ
When can a 3rd party proceeding be filed?
 Order 16 Rule 1(1): where in an action, D who has entered appearance:
o Claim contribution/indemnity against a person who is not a party to the
action
o Claim against such person any relief/remedy relating to subject matter
which substantially the same as what claimed by P; or
o Requires any question/issue relating to subject matter to be determined
not only between P and D but also between a 3 rd party.
 Then, D may issue a 3rd party notice, containing a statement of claim & grounds
of claim/questions required to be determined.
Defendant claims contribution: O.16 R.1(1)(a)
 Defendant may claim contribution from TP where:
o (i) One of several trustees is sued in breach of trust: the trustee sued (D)
may claim contribution from the other trustees (TP); or
o (ii) There are joint tortfeasors: where one tortfeasor (D) is sued, he may
claim contribution from the other tortfeasors (TP); or
o (iii) Two insurers have issued policies covering the same assured and the
same peril: where one insurer (D) is sued, he may claim contribution from
the other insurer (TP).
 Stott v West Yorkshire Road Car Co Home Bakeries Ltd and Another
o TP proceeding had been initiated to seek for contribution.
o This case involved a road traffic collision between a motorcycle (P), an
oncoming bus (D) and a parked van (TP). The P who was injured in the

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accident brought an action against the D. The D in turn brought third party
proceedings against the parked van, seeking contribution.
Defendant claims indemnity: O.16 R.1(1)(a)
 Defendant may claim indemnity from TP in cases of:
o (a) Surety and principal debtor: e.g. where the banker goes after the
guarantor (TP) for a loan
o (b) Insured and insurer: where the insured (D) goes after the insurer (TP)
 A right to indemnify may arise from express or implied contract; it may be implied
from some principle of law other than contract; or it may arise from some statute.
 Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd
o The Privy Council held that P, who had shipped the goods, was entitled to
judgement against D who was the carrier of the goods. In turn, D was
entitled to be indemnified by the TPs who were the consignee and the
bank.
 Eastern Shipping Co Ltd v Quah Beng Kee
o It exists where there is an obligation either at law or in equity upon one
party to indemnify the other.
Defendant claims any relief or remedy: O.16 R.1(1)(b)
 Defendant may claim any relief or remedy from TP which is substantially the
same as the relief or remedy claimed by P against D.
 E.g. “P is injured by a falling roof tile in D’s house. The roof was repaired the
previous day by T, a contractor (i.e. third party). P is suing D.” D can claim
damages against T by TP proceedings.
 Tan Chong & Sons Co Sdn Bhd v Arumugam s/o Packirisamy
o where the original subject matter of the action is a claim in tort for
damages in respect of personal injuries involving a motor accident and the
claim against the third party is a claim for breach of an oral agreement to
purchase a third party insurance policy for the car that was involved in the
accident and is founded on contract, the relief or remedy claimed against
the third party cannot be regarded as 'substantially the same as some
relief or remedy claimed by the plaintiff'.
Defendant requires any question or issue related to the original subject matter to be
determined
 For example, “A’s car was stolen by B. B sold the car to C. C sold the same car
to D. The car is in D’s possession. A is now suing D for its return.”
 D make take TP proceedings to require C to determine the ownership of the car.
C in turn can require B to determine ownership.
 Amanah Scotts Properties (KL) Sdn Bhd v Ooit Meng Khin & Ors (No 2)
o P are seeking reliefs relating to breach of duty and negligence against the
D.

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o The D alleged that his signature has been forged on certain document,
allowing monies from the P’s account to be released.
o He therefore wishes to apply for the bank to be named as a third party to
the proceeding for negligent in releasing such unauthorized payments
from the P’s accounts.
o Court held that the application shall fail because D did not show how the
reliefs claimed against the banks were related to with the subject matter of
the P’s claim.
 Public Bank Bhd v Ng Chee Ping
o it was stated that the defendant's claim against the third party must be
premised on a cause of action, and a party must not be joined as a third
party merely to elicit evidence, which can be obtained by issuing a
subpoena.
Procedure to bring in third party

Issuance of third party notice

 O 16 R 1(2): D may not issue a 3rd party notice in Form 18 or Form 19 without
the leave of court unless he issues the notice before serving his defence to P
 Means: if 3rd party notice is issued before a statement of defence is served to P,
no need to obtain leave of court
 O 16 R 2(1): application for leave to issue 3rd party notice may be made ex parte
via notice of application in Form 20. The court may direct the application to be
served
 O 16 R 2(2): application must be supported by affidavit stating contain a
statement by the defendant of the nature of the claim made against him and
either of the nature and grounds of the claim made by him against the third party
or of the question or issue required to be determined.
 O 16 R 3(2): Third party procedure applies in an action begun by originating
summons as well as in an action begun by writ
 O 16 R 11: It also applies to any counterclaim by a defendant as if the subject
matter of the counterclaim were the original subject matter of the action, and as if
the person making the counterclaim were the plaintiff and the person against
whom it is made were a defendant
 Thus the plaintiff on whom a counterclaim is served may issue a third party notice
against a person who is not a party to the action.
Third party directions / appearance and set aside

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 O 16 r 4(1): If the third party enters an appearance in Form 21, the defendant
who issued the third party notice shall, by a notice of application to be served on
all the other parties to the action, apply to the Court for directions.
 O 16 r 4(2): If no application is served on the third party under paragraph (1), the
third party may, not earlier than seven days after entering an appearance, by a
notice of application in Form 22 to be served on all the other parties to the action,
apply to the Court for directions or for an order to set aside the third party notice.
Directions to be given (by Court)
 O 16 r 4 (3)(a): Order judgment to the Defendant against 3rd Party
 O 16 r 4 (3)(b): Order that any claim or issue to be tried
 O 16 r 4 (3)(c): Dismiss application
o The application may be dismissed if the action does not fall within O16
R1(1)(a) – (c) or if the P or the third party can show special circumstances
why the directions should not be given.
o Effect: dismissal of the application for directions has the result of
terminating the third party proceedings.
 O16 R 4 (4): 3rd Party’s leave to defend
o Kayla Beverly Hills (M) Sdn Bhd & Anor v Quantum Far East Ltd &
Ors (Uma Devi d/o Balakrishnan, third party)
 Order 16 Rule 4(4) of the RHC allows the court to give such
directions to the 3rd party to defend the suit whether alone or jointly
with any D.
 The necessary consequence of Order 16 Rule 4(4) of the RHC is
that the 3rd party can, at the trial, cross-examine the P and seek
discovery against and interrogate the P.
 What if there is default by the third party?
o Order 16 Rule 5 (1)(a)
o If a third party does not enter an appearance or, having been ordered to
serve a defence, fails to do so, he shall be deemed to admit any claim
stated in the third party notice and shall be bound by any judgement or
decision in the action so far as it is relevant to any claim, question or issue
stated in that notice.
Limitation against third party
 The rules on limitation period apply to defendant as well as to third party. For
example, for contract or tort, the limitation is 6 years to bring an action against
defendant or third party
 Mat Abu b Man v Government of Malaysia
o The court held that time does not begin to run until defendant is made
liable to plaintiff. Also, a third party claim is between defendant and third
party and is a separate action from the main action between plaintiff and
defendant.

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Procedure of Third Party Proceeding

 Governed by Order 16 of Rules of Court
 Defendant may or may not require leave from court to issue third party
proceeding:
o Leave not required:
 When action begun by writ of summon but defendant not yet serve
his defence
 Defendant issues third party notice before defendant serves his
defence according to Rule 1(2)
o Leave required:
 When action begun by originating summons
 Defendant issues the notice after serving his defence according to
Rule 1(2)
 Third party is government (Order 73 Rule 8)
 Third party notice must be served to every third party personally together with a
copy of the writ and any of the pleadings served (if any) as Rule 3(2) is
concerned.
Procedure to apply leave
 By ex-parte application based on Form 20 support with affidavit
 Affidavit must consist of:
o Nature of the claim made by P
o The stage of the proceedings which has been reached
o Nature of the claim by D against third party
o The name and address of third party
 Court had power to grant or not the application
 Third party must enter appearance in Form 21 within 14 days after being served
with the third party notice R 4(1)
 If third party fails to enter appearance or defence, then judgement may be
entered against him in default of appearance or defence.
 D must apply for directions by way of notice in Form 22 within 7 days after third
party has entered appearance and serve the application to all parties of
proceeding (R 4(1))
 If D has not served within 7 days, third party may apply to the court for an order
to set aside the third party notice according to Order 16 Rule 4(2).
 The notice may be dismissed if:
o The action does not fall under Order 16 Rule 1(1)(a) – (c); or
o Plaintiff or third party can show special circumstances why the directions
should not be given.
o Pacific Asia etc v Senanti Motors Sdn Bhd
 The court held that delay in taking out third party proceedings by D
may constitute special circumstances to dismiss it.

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The extent to which the 3rd party is to be bound by any judgement:

Plaintiff and Third Party:
 P obtain judgement against the 3rd party:
o The P must apply under Order 15 Rule 6 to add the latter as a co-
defendant (alter TP’s status). P cannot claim against a TP.
o Fullji Realty Sdn Bhd v Lim Yong Meng
 P claimed against D because of an imposter who purported to be
the registered proprietor, and for whom the D had acted as solicitor.
The D took out a TP claim for indemnity and contribution against
the 3rd party, the P’s solicitor.
 Held: a TP proceeding is essentially an independent proceeding
between the D and the 3rd party. If the P intends to obtain
judgement against the 3rd party, it would have to apply to add the 3 rd
party as a D under Rules of High Court 1980 O 15 R 6.
Third party counterclaim against the P:
 The third party must himself apply to court to alter his status to co-defendant
 A third party who has been given leave to defend the action pursuant to Order 16
R4(4) may, at the trial, cross-examine the P and seek discovery against and
interrogate the P.
 Kayla Beverly Hills (M) Sdn Bhd & Anor v Quantum Far East Ltd & Ors (Uma
Devi d/o Balakrishnan, third party)
o Order 16 r 4(4) of the RHC allows the court to give such directions to the
third party to defend the suit whether alone or jointly with any defendant.
o The necessary consequence of O 16 r 4(4) of the RHC is that the third
party can, at the trial, cross-examine the plaintiffs and seek discovery
against and interrogate the plaintiffs.

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Interpleader Proceedings
Nature of interpleader:
 Proceedings commenced by any person who is in possession of any goods,
money, or chattel, to which he has no interest or claim but that property is being
claimed by 2 or more other persons, and the first person, who is in possession of
the property, is unsure as to who is the proper claimant.
 The person in possession of the property may apply to court and ask the court to
decide who the proper claimant of that property is.
 The person who applies = interpleader, the proceedings = interpleader
proceeding
 Watson v Park Royal Caterers Ltd
o It is essential that before the applicant is granted relief, he is, or genuinely
expects to be, sued by 2 or more persons, and there must be some real
foundation for the said expectation. A mere anticipation, without any
intimation having been received is not sufficient.
 Order 17 Rule 1: Generally relief for interpleader summons is available in two
classes of cases known traditionally as stakeholder's and sheriff's interpleader.

Types of interpleader:
o Order 17 Rule 1(1)(a) (stakeholder’s interpleader)
 For stakeholder's interpleader, it’s where relief is available in a
situation where the applicant is under a liability in respect of a debt,
or in respect of any money, goods or chattels, and he is, or expects
to be, sued for in respect of that debt or money, or those goods or
chattels by two or more persons making adverse claims thereto.
o Order 17 Rule 1(1)(b) (sheriff’s interpleader)
 In a sheriff's interpleader relief is available to a sheriff (The
Registrar of the High Court is a Sheriff. Other officers of like nature
appointed include bailiffs, process servers and subordinate officers)
where a claim is made by any person, other than the person against
whom the process is issued, to any money, goods or chattels taken,
or intended to be taken, by a sheriff in execution under any process
or to the proceeds or value of any such goods or chattels.

Procedure (stakeholder’s interpleader):

 Where D is sued by P claiming property held by D in which D has no interest but
which is also claimed by a third party, D may take out and serve a summons on

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both claimants for an order that the issue as to ownership be decided between
them.
 Conditions:
o Used when the applicant has no claim to the property
o Applicant do not side with either party
o Applicant let the court made decision
o Applicant want cost to be borne by the parties
 Order 17 Rule 3(1): the application shall be made by OS. If it is a pending action,
the application shall be made by notice of application in Form 27 or Form 28.
(ROC 2012 does not mention on appearance)
 Three conditions must be fulfilled- O 17 r 3(2): the OS (unless the applicant is a
Sheriff) shall be supported by an affidavit containing that the applicant
o a. claims no interest in the subject matter in dispute other than for charges
or costs;
o b. does not collude with any of the claimants to that subject matter; and
o c. is willing to pay or transfer that subject matter into Court or to dispose of
it as the Court may direct.
 Order 17 Rule 4(1): the OS / notice of application that is in one of the forms in
Form 29 shall be served at least 7 days before return day.
 Order 17 Rule 4(2): OS must be served personally.
 Order 17 Rule 4(3): the notice of application need not be served personally
unless ordered by court.
 Hong Leong Bank Bhd v Manducekap Hi-Tec Sdn Bhd & Ors
o Applicant maintained a current account for 1st claimed (C1). C1 dispute
with C2 (current BOD), C3 (former BOD) and C4 (shareholders) over
control and management of the account. C2 given control. Applicant faced
several threats of litigation and competing claims concerning the control
and management of the account. The applicant thus applied for
interpleader relief, requesting the High Court to determine and/or clarify
the control and/or management of the account.
o Held: In seeking interpleader relief under O 17 r 1 RHC, an applicant must
genuinely face a potential suit by one or more persons. There must exist a
real conflict between the claimants. Mere anticipation of a legal suit is not
sufficient.
o Further, C1 was an incorporated company having its own legal entity. The
moneys in the account belonged to C1. No shareholder or board had any
claim to such moneys. Therefore, there could not be any competing claim
to the account between the first claimant's shareholders or the board of
directors. The application did not meet the first requirement under O 17 r 1
of the RHC since the applicant was not faced with two or more competing
claims. The applicant did not also face any real threat of litigation since the
threats by the C2 and C3 in the instant case could not be construed as
threats of legal suit.
 Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd

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o On the issue of whether at the hearing of an interpleader summons, the

respondent judgment creditor has to lead evidence to show that the goods
seized are the properties of the judgment debtor.
o The court held that the burden of proof was on the claimant unless the
judgment creditor has been made the plaintiff.
 Lee Heng Moy (f) v John Hancock Life Insurance (M) Bhd & Anor
o Deceased took life insurance policy with R1, and named R2 (whom he
described as his wife in the policy) as beneficiary. Appellant claimed the
sum insured on grounds that she was the lawful wife of the deceased. R1
filed instant interpleader summons order. Trial judge held R2 = lawful
beneficiary, since Insurance Act does not limit beneficiary to a wife.
Deceased nominated R2 = lawful beneficiary. Hence this appeal by the
appellant.
o Held: The first respondent could have decided on their own and release
the insured sum to the second respondent. But they did not want to take
the risk. So they decided to take a safer course by filing an interpleader
summons under O 17 RHC requesting both claimants to come to court
and state the circumstances and particulars of their respective claims to
the insured sum and that they be bound by whatever order that the court
may make.

Procedure (Sheriff’s interpleader):

 Order 17 Rule 2(1): applicant shall give notice of his claim in Form 24 to the
Sheriff charged and shall include in his notice a statement of his address, and
that address must be his address for service.
 Order 17 Rule 2(2): On receipt of a claim made under this rule, the Sheriff shall
forthwith give notice thereof in Form 25 to the execution creditor and the
execution creditor shall, within four days after receiving the notice, give notice in
Form 26 to the Sheriff informing him whether he admits or disputes the claim.
 Order 17 Rule 2(3): where Sheriff receives a notice from EC disputing a claim, or
EC fails within the period mentioned to give required notice and the claim is not
withdrawn, the Sheriff may apply to Court for relief under this Order
 Order 17 Rule 2(4): Sheriff who receives a notice from EC admitting a claim shall
withdraw from possession of the money, goods or movable property claimed
 Hup Cheong Motor Co v Saong Jonathan & Anor
o From the facts deposed in the affidavits and the various exhibits annexed
thereto, the court had no reason to doubt that the deed of assignment was
an absolute assignment. The claimant had acted in accordance with the
deed and therefore the ownership of the property was with the claimant at
the time of the seizure and would appear not to be available to the plaintiff
as judgment creditor for seizure thereof.

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o In the circumstances, the court was of the opinion that the assignment was
an absolute assignment and not a sham.
 Overseas Investments Pte Ltd v Anthony William O’Brien & Anor
o There was a summary judgment against the defendant. During the
execution where the sheriff purported to sell the goods of Defendant, the
wife of the Defendant alleged that some of the goods were bought jointly
by them though the wife cannot produce any receipts as proof. The goods
were sold anyway and the wife now appeal
o Held: Where one party gives sworn uncontradicted testimony to prove a
fact, that evidence must be accepted because there is nothing in the other
end of the scales. The plaintiff had produced no evidence whatsoever.
o The doctrine of harta sepencarian applied to all property acquired in the
course of a marriage out of the joint resources or the joint efforts of the
spouses. In the absence of clear evidence that the property was the sole
property of one spouse, both have an equal share.
o Where a wife is in possession of chattels in the matrimonial home and she
gives sworn testimony that they were hers, an execution creditor cannot
be held to have displaced her claim merely by producing evidence that the
husband was living in the same home and is in receipt of good income.
o Such wrongful seizure is an actionable trespass and the remedy is in
damages.
Hearing of the application (court may direct)
 Order 17 Rule 5(1): Where on the hearing of the originating summons or a notice
of application under this Order all persons making the adverse claims to the
subject matter in dispute ("claimants") appear, the Court may order-
o (a): that any claimant be made a defendant in any action pending with
respect to the subject matter in dispute in substitution for or in addition to
the applicant for relief under this Order; or
o (b): that an issue between the claimants be stated and tried and may direct
which of the claimants is to be plaintiff and which is to be defendant.
 Meaning: The OS/NoA will fix a hearing date, so all parties will be required to
attend court on that hearing date.
One claimant does not appear:
 Order 17 Rule 5(3): If a party does not attend court on the date fixed for hearing,
the party is deemed to have waived his claim, and he is barred from prosecuting
his claim.
If all parties appear:
 The Court will have to decide whether to have a summary disposal or trial.
a. Summary disposal

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(Summary hearing) is something like SJ, where there will be a hearing in

chambers before a Registrar and the Registrar makes a decision. There will be a
summary hearing in 2 situations:
o i. All parties consent to have a summary hearing; or
o ii. If the case involves disputes on law only, none as to facts

b. Trial
i. There will be a trial if the case involves substantial disputes as to facts
ii. If there’s going to be a trial at this hearing, the court will issue certain directions
to ensure the smooth running of the trial, which include:
o One of the claimants will named the Plaintiff, and the other will be named
the Defendant. The interpleader will no longer be involved, can step out of
the proceedings.
o Filing of a Statement of Claim, Defence, etc.
o Court will also decide on issues to be tried at the tria

Costs – who bears the costs of the interpleader proceedings?

 The losing claimant will pay the costs of the interpleader and the winning
claimant, where it will not borne by the applicant.
Court’s Power to Grant Relief
 Tan Kau Tiah @ Tan Ching Hai v Tetuan Teh Kim Teh, Salina & Co (a firm) &
Anor
o For the purpose of adjudication, the Court is provided with a number of
powers. See O 17 r 5.
o The Court is also provided with other powers which include the following:
 Power to order sale of goods taken in execution (O 17 r 6);
 Power to stay proceedings (O 17 r 7); and
 Power to make such order as to costs or any other matter as it think
just (O 17 r 8).
o Provision for discovery and inspection of documents as well as
interrogatories is also provided under O 17 [see r 10]. There is also
provision for trial of interpleader issue [see r 11].
o However, what is clear is that under O 17 RHC there is no provision to
enable a counterclaim to be made against a person who applies for
interpleader relief.

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3rd Pary Proccedings

Civil Procedure I (Multimedia University)

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3rd Party Proceedings

Nature of 3rd party proceeding
 P & D is already in a proceeding. Then, a 3 rd party proceeding is filed by D to shift the
burden -> 3rd party. The condition is that 3rd party must be related to the cause of
action brought by P
 Therefore, the position in 3 rd party proceeding is that D will become P now and the
3rd party will become D
 The 3rd party proceeding will be heard first and required to enter his memorandum
of appearance (MOA) & statement of defence.
 As usual, the 3rd party is to enter MOA within 14 days – o12 r4, failing which, D may
apply for JID.
 If 3rd party has no good defence & only bare denial, D may file SJ.

When can a 3rd party proceeding be filed? (3rd party notice)

 O16 r(1) : where in action, D who has entered appearance :
(a) Claim contribution/indemnity against a person who is not a party to the
action
(b) Claim against such person any relief/remedy relating to subject matter which
substantially the same as what claimed by P; or
(c) Requires any question/issue relating to subject matter to be determined not
only between P and D but also between a 3rd party
- Then, D may issue a 3rd party notice, containing a statement of claim &
grounds of claim/questions required to be determined.
 Sze Hai Tong Bank Ltd v Ramble Cycle Co Ltd
- H : P who has shipped the goods, was entitled to judgment against D who
was the carrier of the goods. In turn, D was entitled to be indemnified by
the TPs who were the consignee & the bank.
- Note : under o.16 r1(1) – D must first entered appearance to file a 3 rd
party proceeding.
 O16 r1(2) : D may not issue a 3 rd party notice in Form 18/ Form 19 w/o the leave of
court unless he issues the notice before serving his defence to P.
 (= if 3rd party notice is issued before statement of defence is served to P, no need to
obtain leave of court)
3rd party notice
 The D in any action who has entered appearance may issue an appropriate 3rd party
notice in the prescribed form (Form 18/19) against a person not already a party to
the action
 Such person is called as 3rd party
 Leave is required to issue 3rd party notice unless:
- D has issued defence (o16, r1(2))
- 3rd party notice is sought to serve on the government (o73, r8(1) & (2))

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 Circumstances for issuance of 3rd party notice (Form 18) – only D in action to 3 rd
party
- Where the D claims against 3rd party any constibution or indemnity;
- Where the D claims against the 3rd party any relief/ remedy relating to or
connected with the original subject matter of the action & substantially
the same as some relief or remedy claimed by the P

 Circumstances for issuance of 3rd party notice (Form 19)

- Where the D requires that any question or issue relating to/connected
with the ori subject matter of the action should be determined not only
as between either or both of them & the 3rd party
Issue of 3rd party notice
 O16 r1(2) : except in an action against the gov, the D may issue a 3 rd party notice w/o
the leave of court provided he does so before serving his defence on the P
 O73 r8(1) : a 3rd party notice for service on the Gov shall not be issued w/o the leave
of court and the application for the grant of such leave must be made by notice of
application, and must be served on the Pf and the Government.
 Leave is also necessary where it is desired to issue a 3 rd party notice after the D has
served his defence
 Dato Seri Dr Mahathir bin Mohamad v Derek Davies
- The ct has general discretionary power whether or not to allow a 3 rd party
notice to be issued

Procedure to obtain leave to issue 3rd party notice

 O16 r2(1) : an application for leave to issue a 3 rd party notice may be made by way of
ex parte NOA in Form 20
 O16 r2(2) : an application for leave to issue a 3 rd party notice shall be supported by
an affidavit stating
(a) The nature of the claim made by the P in action;
(b) The stage which proceedings in action hv reached;
(c) The nature of the claim made by the applicant or particulars of the question or
issue required to be determined, as the case may be, and the facts on which the
proposed third party notice is based; and
(d) the name and address of the person against whom the third party notice is to be
issued
 note : application to be supported by affidavit & contains certain info. The affidavit
must satisfy o16 r2(2)
 O73 r8(1) : a 3rd party notice for service on the Gov shall not be issued w/o the leave
of court and the application for the grant of such leave must be made by notice of
application, and must be served on the Pf and the Government.
 Punca Klasik S/B v Liza James & Ors

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- H : an application for leave to issue a 3 rd party notice was dismissed as

failed to comply w provisions under O16 r2(2)(a),(b),(c)
 O16 r3(1) : The court may give directions as to the period within which the notice is
to be issued
 O16 r3(3) : the issue of a 3rd party notice is assimilated for all practical purposes as if
it were a writ & the proceedings begun by it were an action & as if the D issuing the
notice were a P and the 3rd party a D in that action
Service of & Entry of Appearance to 3rd party notice
 A 3rd party notice must be served as if it were a writ
 The 3rd party notice must be accompanied by a copy of the writ/OS by which the
action was begun & of the pleadings, if any, served in the action.
 O16 r4(1) (Form 21)
- The 3rd party must upon receipt of the notice enter appearance
Position of 3rd party
 As from the time of the service on him of the 3 rd party notice, the 3rd party becomes
a party to the action.
 The 3rd party has the same rights in respect of his defence against any claim made
against him in the notice.
 This is as if the 3rd party had been duly sued in the ordinary way by the D
 The 3rd party may thus counterclaim against the D. The 3rd party & the D may
interrogate each other.
 A 3rd party notice creates a separate action, independent of the original action
- If the ori action is settled or otherwise disposed of, the 3 rd party
proceedings may continue
- Conversely, the 3rd party proceedings may be dismissed for want of
prosecution even though the ori action is still proceeding
3rd party directions
 O16 r4(1) : if the 3rd party enters an appearance in Form 21, the D who issued the 3rd
party notice, by a NOA to be served on all the other parties to the action, apply to
the Court for directions.
 O16 r4(2) : If no application is served on the third party under paragraph (1), the
third party may, not earlier than seven days after entering an appearance, by a
notice of application in Form 22 to be served on all the other parties to the action,
apply to the Court for directions or for an order to set aside the third party notice.
 The 3rd party may apply to set aside 3 rd party notice if Summons for Direction has not
filed against him by D in Form 22
 The application also can be set aside if :
 Does not fall within o16 r1(a)(b)(c)
 P and TP can show special circumstances why the directions should not be given
(to the D)
 If the D does not serve the notice for 3rd party directions, the 3rd party may :

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- Do so, but not earlier than 7 days after entering an appearance or

- Apply for an order to set aside the 3rd party notice
o Pacific Asia Leasing (M) S/B v Senanti Motors S/B
- H : o16 permits a 3rd party who has been served w a 3 rd party notice to
make an application to set aside if 7 days after he had entered an
appearance. D has failed to take out a 3rd party summons for directions.
- In this case, the 3rd party’s application to set aside was premature as it has
been filed before 7 days period expired.
Note : can only apply to set aside after 7 days
Directions to be given by the Court
 The court has very wide powers to give such directions as may appear proper ‘for
having the rights & liabilities of the parties most conveniently determined &
enforced’
 O16 r4(3)
 O16 r4(4) : on an application for directions under this rule, the Ct may give the 3 rd
party leave to defend the action
 O16 r5

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