July 2023 Civil Procedure Paper

Question 2(a) - Service

The service of the writ on the defendants is as follows:

1st Defendant (Government Department)

The service of the writ on the 1st Defendant, a Government Department, is proper. Order 73, rule 3(2)
of the Rules of Court 2012 ("ROC 2012") states that personal service is not required for documents
served on the Government. Service can be effected on the Attorney General or an officer designated by
the Attorney General. In this case, serving the writ by AR registered post to the head office and
acknowledging it by the Director with his rubber stamp is considered proper service.

2nd Defendant (Individual)

The service of the writ on the 2nd Defendant is improper. Order 10, rule 1(1) of the ROC 2012 requires
personal service for a writ of summons. While Order 62, rule 6(1) allows for service by prepaid
registered post, the acknowledgment by a security guard does not constitute proper service as it does
not comply with the requirement of personal service.

3rd Defendant (Individual)

The service of the writ on the 3rd Defendant is improper. Order 64, rule 1 of the ROC 2012 states that a
party may change their solicitor without a court order, but the former solicitor is considered the solicitor
of record until a notice of change is filed and served. Serving the writ on the 3rd Defendant's solicitors
from a previous proceeding does not constitute proper service unless they are still the solicitor of record
or have been authorized to accept service in this matter.

Question 2(b) – Misjoinder

Chong can apply to the Court under Order 15 rule 6(2)(a) of the Rules of Court 2012 to cease to be a
party to the suit on the ground that he has been improperly or unnecessarily made a defendant.

The application can be made by way of notice of application.

Question 2(c) – Summary Judgement

Param can apply for summary judgment under Order 81 of the Rules of Court 2012.

Order 81, rule 1(1)(a) of the Rules of Court 2012 allows the plaintiff to apply for summary judgment in an
action for specific performance of an agreement for the sale, purchase, or exchange of any property.

The application must be made by way of notice of application supported by an affidavit verifying the
facts on which the claim is based and stating that in the deponent's belief there is no defense to the
action (Order 81, rule 2(1)).

If the Court is satisfied that the defendant has no defense to the action, it may give judgment for the
plaintiff (Order 81, rule 3). However, if the defendant can show that there is an issue or question in
dispute which ought to be tried, the Court may give the defendant leave to defend the action (Order 81,
rule 4).

This is the quickest mode of obtaining judgment as it allows the plaintiff to obtain judgment without
having to go through a full trial.
Question 3(a) – Substitute Service

The plaintiff can apply for substituted service under Order 62, rule 5 of the Rules of Court 2012.

To do so, the plaintiff should file a notice of application supported by an affidavit. The affidavit should
state the facts on which the application is founded, including the attempts made to serve the writ
personally and the reasons why personal service has been impracticable. The affidavit should also
specify the proposed mode of substituted service, such as by advertisement or by leaving the writ at the
defendant's last known address.

If the court is satisfied that it is impracticable to serve the writ personally, it may order substituted
service by the method proposed by the plaintiff or by any other method that it considers appropriate.
Once the order for substituted service is obtained, the plaintiff can then serve the writ on the 4th
Defendant in accordance with the terms of the order.

It is important to note that the application for substituted service should be made promptly, as the court
has directed that the writ will be struck out against the 4th Defendant if it is not served by the next case
management date.

Question 3(b) – Res Judicata

Peter can apply to strike out James' second claim under Order 18, rule 19(1)(a) of the Rules of Court
2012, on the ground that it discloses no reasonable cause of action.

Order 18, rule 19(1)(a) allows the court to strike out a pleading at any stage of the proceedings if it
discloses no reasonable cause of action or defense. This is a summary procedure that allows the court to
dispose of a claim without a full trial.

In this case, James' second claim is for the same subject matter as his first claim, which was dismissed
for failure to tender the relevant invoices and delivery orders as exhibits. This means that James' second
claim is res judicata, as the matter has already been decided by the court. Therefore, Peter can argue
that James' second claim discloses no reasonable cause of action and should be struck out.

This is the quickest way for Peter to dispose of James' second claim, as it avoids the need for a full trial.
Question 3(c) – Enforcement of Judgement

The Plaintiff can adopt the following modes of execution proceedings to enforce the judgment against
the Defendant:

Writ of Seizure and Sale (O. 45 r. 1(1)(a))

The Plaintiff may apply for a writ of seizure and sale of the Defendant's movable property, such as the
Defendant's shares in the private limited company.

Garnishee Proceedings (O. 45 r. 1(1)(b))

If there are debts owing to the Defendant, such as dividends from the private limited company, the
Plaintiff may initiate garnishee proceedings to attach these debts and have them paid to the Plaintiff in
satisfaction of the judgment.

Charging Order (O. 45 r. 1A(a))

The Plaintiff may apply for a charging order on the Defendant's shares in the private limited company.
This would create a charge over the shares to secure the judgment debt.

Appointment of a Receiver (O. 45 r. 1A(b))

The Plaintiff may apply for the appointment of a receiver over the Defendant's shares in the private
limited company. The receiver would then be responsible for realizing the value of the shares to satisfy
the judgment debt.

It is important to note that these are just some of the modes of execution proceedings available to the
Plaintiff. The most appropriate mode of execution will depend on the specific facts of the case. The
Plaintiff should seek legal advice to determine the best course of action.

Question 4a – Injunctions

An interim injunction is a temporary order granted by the court to restrain a party from doing or
continuing to do an act until the determination of the case. It is an equitable remedy that is granted at
the discretion of the court.

Ex Parte Application

An ex parte application is an application made to the court by one party without giving notice to the
other party. It is usually made in cases of urgency where there is a need to obtain an immediate order
from the court to prevent irreparable harm or damage.

Propriety of Hassan's Ex Parte Application

Based on the facts provided, Hassan's ex parte application for an interim injunction may not be proper.
Order 29 rule 1(2A) of the Rules of Court 2012 ("ROC 2012") states that an affidavit in support of an
application made ex parte must contain a statement of the facts relied on to justify the application ex
parte, including details of any notice given to the other party or, if notice has not been given, the reason
for not giving notice.

In this case, Hassan's lawyer did not give notice of the ex parte application to the President of the
Association. Neither did Hassan state in his affidavit in support of the ex parte application why the ex
parte application cannot be heard inter partes and why no notice was given to the President of the
Association. This is a non-compliance with Order 29 rule 1(2A) of the ROC 2012.

Appropriate Procedure and Legal Principles

The appropriate procedure for an ex parte application for an interim injunction is as follows:

The applicant must file a notice of application supported by an affidavit.

The affidavit must state the facts relied on to justify the application ex parte, including details of any
notice given to the other party or, if notice has not been given, the reason for not giving notice.

The applicant must serve the notice of application and the affidavit on the respondent.

The court will hear the application ex parte and may grant the interim injunction if it is satisfied that
there is a serious question to be tried and that the balance of convenience favors the grant of the
injunction.

The legal principles that the court will consider in deciding whether to grant an ex parte interim
injunction are as follows:

Serious question to be tried: The applicant must show that there is a serious question to be tried. This
means that the applicant must have a real prospect of success in the main action.

Balance of convenience: The court will consider the balance of convenience. This means that the court
will weigh the harm that the applicant will suffer if the injunction is not granted against the harm that
the respondent will suffer if the injunction is granted.

Irreparable harm or damage: The applicant must show that he will suffer irreparable harm or damage if
the injunction is not granted. This means that the harm or damage cannot be compensated by damages.

In conclusion, Hassan's ex parte application for an interim injunction may not be proper as it does not
comply with Order 29 rule 1(2A) of the ROC 2012. The appropriate procedure for an ex parte application
for an interim injunction is to file a notice of application supported by an affidavit that states the facts
relied on to justify the application ex parte. The court will then hear the application ex parte and may
grant the interim injunction if it is satisfied that there is a serious question to be tried and that the
balance of convenience favors the grant of the injunction.
Question 4(b)

As the lawyer for the Association, my submission to oppose the Inter-Parte Application would be as
follows:

Introduction

The ex-parte application filed by Hassan was improper as it did not comply with the requirements of
Order 29 rule 1(2A) of the Rules of Court 2012 ("ROC 2012"). The affidavit in support of the ex-parte
application failed to state the facts relied on to justify the application being made ex parte. It also did
not provide details of any notice given to the other party or the reasons for not giving notice.

Arguments

No Serious Issue to be Tried

Hassan has not shown that there is a serious issue to be tried. He has not provided any evidence to
support his claim that his removal from the Association was unlawful. In the absence of any evidence,
there is no reason for the Court to grant an interim injunction.

Balance of Convenience Does Not Favor Hassan

The balance of convenience does not favor Hassan. If the interim injunction is granted, the Association
will be prevented from holding the EGM, which will disrupt the Association's operations. On the other
hand, if the interim injunction is not granted, Hassan will not suffer any irreparable harm. He can still
challenge his removal from the Association in the main action.

No Irreparable Harm

Hassan has not shown that he will suffer irreparable harm if the interim injunction is not granted. He has
not provided any evidence to show that he will suffer any loss or damage that cannot be compensated
by damages.

Case Laws

In the case of American Cyanamid Co v Ethicon Ltd, the court held that the plaintiff must show that
there is a serious issue to be tried and that the balance of convenience favors the grant of the
injunction.

In the case of Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors, the court held that the
plaintiff must show that he will suffer irreparable harm if the injunction is not granted.

Conclusion

Based on the foregoing, it is submitted that the interim injunction should not be granted. Hassan has not
shown that there is a serious issue to be tried, that the balance of convenience favors the grant of the
injunction, or that he will suffer irreparable harm if the injunction is not granted.
Question 5(A) – Partners & Parties to Action

In the proposed writ action, the proper parties that should be named are as follows:

Plaintiff: ABC Trading Company (since it is a partnership carrying on business within the jurisdiction, it
can sue in the name of the firm under Order 77, rule 1 of the Rules of Court 2012).

Defendants:

Bukit Rusa Club (since it is a registered society, it can be sued in its own name).

The estate of Kumar, deceased (since no grant of probate or administration has been made, the action
may be brought against the estate of the deceased under Order 15, rule 6A(1) of the Rules of Court
2012).

It is important to note that the action against the estate of Kumar, deceased, is only temporary. During
the validity of the writ, Ahmed must apply to the Court for an order appointing a person to represent
the estate of Kumar or, if a grant of probate or administration is made, for an order that the personal
representative of Kumar be made a party to the proceedings (Order 15, rule 6A(4) of the Rules of Court
2012).
Question 5(b) Proceedings at trial

The judgment entered against Donald may be invalid and can be set aside.

Default Judgment in Defamation Cases

Order 78, rule 1 of the Rules of Court 2012 ("ROC 2012") states that the ROC 2012 applies to actions for
libel or slander, subject to the following rules of this Order. Order 19 of the ROC 2012, which deals with
default of pleadings, does not apply to defamation actions.

Setting Aside a Judgment

Order 35, rule 2(1) of the ROC 2012 allows the court to set aside any judgment or order obtained where
one party does not appear at the trial. The application to set aside the judgment must be made within
14 days after the date of the judgment or order sought to be set aside. The court has the power to
extend this period.

In considering an application to set aside a judgment, the court will consider the following factors:

the interest of justice;

whether the absence of the applicant or counsel was deliberate, or due to an accident or
mistake;

the prospects of success of the applicant at trial;

whether there is any delay in making the application;

whether the conduct of the applicant has caused prejudice to the other party which cannot be
compensated by an order of costs.

Advice to Donald

Donald should apply to the court to set aside the judgment. He should file a notice of application
supported by an affidavit explaining the reasons for his absence at the trial. He should also provide
evidence to show that he has a good defense to the action.

In this case, Donald has a strong argument that his absence was due to an accident or mistake, namely
the serious flooding that prevented him from reaching the court. He should also argue that he has a
good defense to the action, as the statement of claim was defective for quantifying the general
damages.

If the court is satisfied that Donald's absence was not deliberate and that he has a good defense to the
action, it is likely to set aside the judgment.
Question 5(c) –Appeals from Registrar

The Plaintiff may appeal the Registrar's decision to a Judge in Chambers pursuant to Order 56, rule 1 of
the Rules of Court 2012. The appeal must be made by serving a notice of appeal on all the other parties
to the proceedings. The notice of appeal must be filed within 14 days after the Registrar's decision was
given or made, and it must be served at least five days before the date fixed for the hearing of the
appeal.
Question 6(a) Amendments

The Plaintiff can successfully object to the amendments in all three (3) Defendants' respective Defences.

1st Defendant's Proposed Amendment

Order 20, rule 5(1) of the Rules of Court 2012 ("ROC 2012") allows amendments to pleadings with the
leave of court. However, the court will only allow amendments that are necessary to determine the real
question in controversy between the parties. Order 18, rule 7(1) of the ROC 2012 states that pleadings
should only contain material facts and not evidence to prove those facts.

The 1st Defendant's proposed amendment, alleging that the Plaintiff is a gambler, swindler, and
criminal, is not relevant to the breach of contract claim and does not raise any triable issue in the
present case. It is scandalous, frivolous, and vexatious. Therefore, the Plaintiff can object to this
amendment under Order 18, rule 19(1)(b) of the ROC 2012.

2nd Defendant's Proposed Amendment

Order 18, rule 13(1) of the ROC 2012 states that any allegation of fact made by a party in his pleading is
deemed to be admitted by the opposite party unless it is traversed by that party in his pleading. The 2nd
Defendant's original Defence admitted entering into a contract with the Plaintiff.

The 2nd Defendant's proposed amendment seeks to contradict his earlier admission, which is not
allowed under Order 18, rule 10(1) of the ROC 2012. This rule prohibits a party from making allegations
of fact or raising new claims inconsistent with a previous pleading. Therefore, the Plaintiff can object to
this amendment.

3rd Defendant's Proposed Amendment

Order 18, rule 8(1) of the ROC 2012 requires a party to specifically plead any matter, such as fraud or
breach of trust, that makes the opposite party's claim or defense unsustainable. Order 18, rule 12(1)
further mandates that every pleading must contain the necessary particulars of any claim, defense, or
other matter pleaded.

The 3rd Defendant's proposed amendment, alleging fraud and breach of trust, lacks the necessary
particulars. Therefore, the Plaintiff can object to this amendment under Order 18, rules 8(1) and 12(1) of
the ROC 2012.
Question 6(b) – summary proceedings for possession of land

XYZ Sdn Bhd can evict the occupants promptly by way of two separate actions:

Eviction of the occupants of the place of worship

Since the place of worship was erected in 1950 with the consent of a previous owner, the occupants
may have a legal right to remain on the land. XYZ Sdn Bhd should initiate a writ action for possession of
the land against the occupants of the place of worship. As this action is likely to involve a substantial
dispute of fact, a writ action is the appropriate mode of commencement under Order 5, rule 2 of the
Rules of Court 2012 ("ROC 2012").

Eviction of the occupants of the twenty (20) houses

As the occupants of the twenty (20) houses are not paying rent and are not connected to the previous
owners, they are considered squatters with no legal right to occupy the land. XYZ Sdn Bhd can initiate
summary proceedings under Order 89 of the ROC 2012 to recover possession of the land. This
procedure is specifically designed for cases where the land is occupied by squatters.

XYZ Sdn Bhd should file an originating summons in Form 8A, supported by an affidavit stating their
interest in the land, the circumstances of the unauthorized occupation, and that they do not know the
names of all the occupants. The originating summons, along with a copy of the affidavit, must be served
on the named defendants, if any, and also by affixing a copy to the main door or a conspicuous part of
the premises and, if possible, inserting a copy through the letterbox. Any unnamed occupant who wishes
to be heard can apply to be joined as a defendant.

By taking these two distinct legal actions, XYZ Sdn Bhd can address the different legal statuses of the
occupants and expedite the eviction process in accordance with the ROC 2012.
Question 6(c) Fresh evidence in appeal

At the hearing of the appeal, Bakar will not be allowed to adduce fresh evidence unless the Judge is
satisfied that:

at the hearing in the Sessions Court, the new evidence was not available to Bakar or that
reasonable diligence would not have made it so available; and

the fresh evidence, if true, would have had or would have been likely to have a determining
influence upon the decision of the Sessions Court.

This is provided for under Order 55, rule 7 of the Rules of Court 2012.

Bakar must therefore ensure that the fresh evidence he seeks to adduce satisfies both of these
requirements. He should be prepared to explain to the High Court why the evidence was not available at
the Sessions Court hearing and how it would have affected the decision of the Sessions Court.

If the High Court is satisfied that the fresh evidence meets these requirements, it will allow the evidence
to be admitted. However, if the High Court is not satisfied, it will not allow the evidence to be admitted.
Question 7(a) - Disability

Tony, as the husband of Pam and father of Andy, can commence legal proceedings against Roger for
negligence. However, due to Pam's permanent brain injuries and Andy's status as a minor, they cannot
sue in their own names.

Order 76, rule 2(1) of the Rules of Court 2012 ("ROC 2012") provides that a person under a disability,
such as a minor or a patient, may not bring or defend any proceedings except by his litigation
representative.

Plaintiffs in the Proposed Legal Proceedings

For Pam's Claim: Tony, as the husband of Pam, can act as her litigation representative and file the suit in
her name, as Pam is a person under disability due to her permanent brain injuries.

For Andy's Claim: Tony, as the father of Andy, can act as his litigation representative and file the suit in
Andy's name, as Andy is a minor.

Procedure to be Adopted

Consent to Act as Litigation Representative: Tony must file a written consent in Form 188 to act as the
litigation representative for both Pam and Andy.

Certificate by Solicitor: Tony's solicitor must file a certificate in Form 189 certifying that Tony has no
interest in the cause or matter in question adverse to that of Pam and Andy.

Filing of the Writ: Once the necessary documents are filed, Tony can file a writ of summons to
commence the legal proceedings against Roger.

It is important to note that the action must be commenced within the limitation period. The limitation
period for negligence actions in Malaysia is generally six years from the date on which the cause of
action accrued.
Question 7(b) – Interim payment

Tony may apply for an interim payment under Order 22A of the Rules of Court 2012. An interim
payment is a payment made to the plaintiff on account of any damages, debt or other sum (excluding
costs) which the defendant may be held liable to pay to or for the benefit of the plaintiff before the
conclusion of the trial.

Order 22A, rule 2(1) of the Rules of Court 2012 allows the plaintiff to apply for an interim payment at
any time after the writ has been served on a defendant and the time limited for him to acknowledge
service has expired.

The application for an interim payment must be made by way of notice of application in Form 33,
supported by an affidavit verifying the amount of the damages, debt or other sum to which the
application relates and the grounds of the application. The notice of application and a copy of the
affidavit in support must be served on the defendant against whom the order is sought not less than
fourteen clear days before the return day.

In this case, Tony can apply for an interim payment on behalf of Pam and Andy, as they are persons
under a disability. He should file a notice of application in Form 33, supported by an affidavit verifying
the amount of damages claimed and the grounds for the application. The affidavit should also highlight
Pam's need for full-time nursing care due to the permanent brain injuries suffered in the accident.

Order 22A, rule 3(1) of the Rules of Court 2012 states that the Court may order an interim payment if it
is satisfied that the defendant has admitted liability for the plaintiff's damages, or if the action
proceeded to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

As Roger's insurers are defending the writ action on his behalf, it can be inferred that there is an
admission of liability. Given the severity of Pam's injuries and the likelihood of substantial damages
being awarded at trial, the Court is likely to grant Tony's application for an interim payment.
Question 7(c) – Offer to Settle

Order 22B of the Rules of Court 2012 ("ROC 2012") provides the framework for Offers to Settle.

Acceptance of the Offer to Settle

If Tony wishes to accept the Offer to Settle, he should serve a Notice of Acceptance in Form 36 on Roger
or his insurers within the time stipulated in the Offer to Settle. If no time is specified, the offer can be
accepted anytime before the court disposes of the matter (Order 22B, rule 3(2) ROC 2012). The court
may then incorporate the terms of the settlement into a judgment.

Rejection of the Offer to Settle

If Tony wishes to reject the Offer to Settle, he does not need to take any action. If the offer specifies a
time for acceptance, it will be deemed to have been withdrawn upon the expiry of that time (Order 22B,
rule 3(1) ROC 2012). If no time is specified, the offer can be accepted anytime before the court disposes
of the matter.

However, Tony should be aware of the potential cost consequences of rejecting the Offer to Settle. If the
judgment obtained by Tony at the trial is not more favorable than the terms of the Offer to Settle, he
may be liable to pay Roger's costs from the date the offer was served (Order 22B, rule 9(2) ROC 2012).

Additional Considerations

As Tony is acting in the capacity of a litigation representative for Pam and Andy, who are persons under
a disability, any acceptance of the Offer to Settle will not be binding until the settlement has been
approved by the Court (Order 22B, rule 7 ROC 2012). Tony should seek legal advice to ensure that the
settlement is in the best interests of Pam and Andy before accepting the offer.