Pleadings

(LECTURE 11)
Objective
 To understand the importance of pleading in civil
proceedings, its contents and format.
Introduction
 What are pleadings?
◦ The pleadings define the issue between the parties.
◦ Statements in writing, drawn up and filed by each party to an action stating
his case/defence.
◦ A generally endorsed writ of summons is not a pleading, but a statement of
claim specially endorsed on a writ is.
◦ Order 1 rule 4 defines pleading does not include notice of application or
preliminary act.
◦ It is in the form of Statement of Claim, Statement of Defence, Counter-claim
etc.
 Pleadings:-
◦ Must contain facts only;
◦ Only material facts; and
◦ Must be as brief as possible.
The main purpose is to define and limit the scope the issues
in the action.

In Asia Hotel Sdn Bhd v Malayan Insurance (M) Sdn Bhd
[1992] 2 MLJ 615, the court said that pleadings operate to
define and delimit with clarity and precision, the real matters in
controversy between the parties upon which they can present
and prepare their respective cases, and upon which the court
will be called upon to adjudicate between them. A fundamental
rule of natural justice is the right to be informed and any
adverse point so that one has the opportunity of stating the
answer.
Significance of pleadings
 According to Bullen and Leake’s Precedent of
Pleadings, 10th Edition, p 1:
◦ To define issues of fact and questions of law to be decided
between the parties;
◦ To give to each of them distinct notice of the case intended to
be set up by the other and thus to prevent either party from
being taken by surprise in trial later; and
◦ To provide brief summary of the case of each party. from
which the nature of the claim and the defence may be easily
apprehended so as to prevent future litigation upon matters
already adjudicated upon between the litigants.
Duty and power of court pertaining to
pleadings
 It is the duty of courts to observe function of pleadings and the follow rules
of procedure and practice.
 The trial of a suit should be confined to the pleas on which the parties are at
variance.
 The court is not entitled to decide a suit on a matter on which no issue has
been raised by the parties.
 In Janagi v Ong Boong Liat [1971] 2 MLJ 196, it was held that the court is
not entitled to decide a suit on a matter on which no issue has been raised
by the parties. It is not the duty of the court to make out a case for one of
the parties when the party concerned does not raise or wish to raise the
point.
 In Lee Ah Chor v Southern Bank [1991] 1 MLJ 428- where a vital issue
was not raised in the pleadings, it could not be allowed to be argued and to
succeed on appeal.
Parties bound by pleadings
 The court is not entitled to decide suit on matter which is not
pleaded. Hence, the trial of the suit is confined to pleadings.
 In Ch’ng Kheng Phong v Chung Keng Huat [2011] 8 MLJ
32
◦ Facts: in the defendant’s Statement of Defence (SOD), it was pleaded
that the 1st Defendant had found the second will among some
photograph. No other facts was pleaded and no evidence was led as
to when and where he had found it. The 1 st Defendant was attempting
to say he found the second will in Canada but this fact was not
pleaded.
◦ The Court held: it is trite that any unpleaded fact ought to be rejected
as the trial should be confined to the pleadings.
As a general rule, the court should not decide a case on unpleaded
issues.

Otherwise the other party would be taken by surprise and would have
lost the opportunity to rebut the issue of evidence.

Therefore,when evidence represented a departure from the pleadings,

it should be objected to when and where it was adduced, and it would
be too late when it was only objected to later on, as in the final
submission at the close of evidence. See, Superintendent of Lands
and Surveys v Hamit Matusin [1994] 3 MLJ 185.

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Departure (O 18 r. 10)
 However, court may permit a litigant to argue an unpleaded claim if it is in the
interests of justice to do so having regard to all the circumstances of the case,
including any prejudice that may be caused by the affected party being taken
by surprise. Boustead Tradings v Arab Malaysian Merchant [1995] 3 MLJ
331.

 Gopal Sri Ram JCA in Boustead Tradings v Arab Malaysian Merchant [1995] 3
MLJ 331, he said the followings:
◦ When setting down material facts not essential to state ‘any special formula in staccato’ which
represent those facts i.e. Not vital to plead estoppel if facts giving rise to this legal doctrine
are established in the pleading, thereby giving notice to the opposing party sufficient notice to
it;
◦ Even where a party failed to set out the material facts in his pleadings, but did not cause
surprise to his opponent, the court in the interest of justice, permit the point to be taken;
◦ If evidence is admitted on an unpleaded point without objection and argument is directed on
the matter, the court has a duty to consider such evidence and submission on the issue.
Cont..
 In Chai Hoon Seong v Wong Meng Heong [2010] 8 MLJ 104, the respondent
brought a claim against the appellant dentist for negligence in respect of some dental
work carried out on her. The High Court held that although the respondent had not
pleaded negligence in respect of some root canal work carried out on the tooth by
another dentist, there was no prejudice and surprise caused to the appellant. The
appellant’s counsel had in cross-examination of the respondent posed several
questions regarding the issue of the root canal treatment. The case was one where the
evidence given at the trial would overcome the defects in the pleadings.

 In Suzana bt Md Aris (claiming as administrator of the estate and a dependant of

Mohd Anuar bin Sharip, decd) v DSP Ishak bin Hussain [2011] 1 MLJ 107, Lee
Swee Seng JC held that although the plaintiff had not specifically pleaded aggravated
damages, the plaintiff had pleaded general damages which covered aggravated
damages as well. The court may award aggravated damages where the facts as
pleaded and proved at the trial are such that the negligent acts of the defendant justify
the award.
Trial without pleadings
 O18 r22(1): Where in an action to which this rule
applies a defendant has entered an appearance in the
action, the plaintiff or the defendant may apply to the
Court by a notice of application for an order that the
action shall be tried without pleadings or further
pleadings, as the case may be.
 O 18 r 22(2) If, on the hearing of an application under this
rule, the Court is satisfied that the issues in dispute between the
parties can be defined without pleadings or further pleadings,
or that for any other reason the action can properly be tried
without pleadings or further pleadings, as the case may be, the
Court shall order the action to be so tried, and may direct the
parties to prepare a statement of the issues in dispute or, if the
parties are unable to agree to such a statement, may settle the
statement itself.

 O 18 r 22(3) Where the Court makes an order under paragraph

(2) or where it dismisses an application for such an order, it
may give such directions as to the further conduct of the action
as may be appropriate and Order 34 shall apply.
 The court can in only certain cases hear a case without pleadings.
 It can be used where there is no dispute as to primary facts or where
the parties have agreed on the facts and no oral evidence needs to be
called.
 Example where the court may order a trial without pleading is
accident cases where the dispute is only on damages and liability has
been determined.
 The application should be made promptly upon filing writ of
summon.

 Trial without pleadings cannot be used for cases like libel, slander,
malicious prosecution, false imprisonment, seduction, breach of
promise of marriage and based on allegation of fraud.
 L’Escargot Café Restaurant (M) Sdn Bhd v Far
East Consortium (M) Ltd & Anor [2008] 1 LNS 81
◦ The suit involves only the construction of a clause in the
Tenancy Agreement which the plaintiff had entered into with
the defendants respecting a space to be used as a restaurant at
the defendants' condominium.
◦ The parties agreed that in the interest of expediency the trial be
proceeded with without pleading pursuant to Order 18 rule 22
based on the agreed facts.
Stages of pleadings
Order 18 ROC governs on pleadings which comprised
of :-
(i) Statement of Claim
(ii) Defence and/or counter-claim by the defendant
(iii) Reply by plaintiff
(iv) Plaintiff’s defence to defendant’s counter claim
(v) Further pleadings subsequent to reply and defence to
counter claim
Statement of Claim
 The purpose of SOC is to put the defendant on notice of the
exact nature of the plaintiff’s claim, the grounds/facts on
which the claim is based and also the relief(s) sought by the
plaintiff.
 Order 18 r1 requires an indorsed statement of claim be served to
the defendant before the expiration of 14 days after the defendant
has entered appearance.
 If the plaintiff fails to serve the SOC, the defendant may apply to
dismiss the action pursuant to Order 19 r1.
 O 18 r 15(1) A statement of claim shall state specifically the
relief or remedy which the plaintiff claims; but costs need not
be specifically claimed.
Defence & Defence to counter-claim
 Purpose of statement of defence is to notify the plaintiff
the exact nature of the defendant’s defence to the
statement of claim.
 The defendant has 2 options:-
◦ Raise a set-off
◦ Counter-claim
 Pursuant to Order 18 r2(1)- a defendant who had entered
appearance must serve a defence on the plaintiff within 14
days.
 Failure to serve defence will entitle the plaintiff to enter
judgment in default of defence (Order 19 rule 2-7).
 A counter-claim is a claim by the defendant against the plaintiff
which is brought in the plaintiff’s action against the defendant.
 The counterclaim is treated as a separate action. As such the person
making it (the defendant) is treated as the plaintiff and the person
against whom it is made (the plaintiff) is treated as the defendant.
 Therefore, it is necessary for the plaintiff to file and serve a defence
to the counterclaim, otherwise he is deemed to admit the facts
alleged in it.
 Counter-Claim is a separate action by defendant, which the law
allows to be joined to the plaintiff’s action in order to avoid
multiplicity or circuity of suits. See, Permodalan Plantations Sdn
Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157.
Reply to defence
 Reply to defence is a statement made by the plaintiff in a
civil action in answer to the defence.
 Not in all cases will the plaintiff is required to prepare a
reply to defence. A reply is necessary where the plaintiff
wishes to raise any specific matters in answer to the
defence.
 There is no need to reply to defence which consists of
mere denials.
 The plaintiff will usually serve a reply to defence when it
is necessary to clarify the facts/issues between the parties.

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 There are three situations that may give rise to the need to
reply to defence:
◦ Where the defence has raised a new point
◦ Where some new matter has arisen as a result of the defence
◦ Where there may be certain issues to which admissions can be made
in order to delimit the extent of contention at the trial.

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 Defence to Counter-claim
◦ The defendant file and serve his Statement of Defence and
Counterclaim, then, the Plaintiff must file his Reply and
Defence to counterclaim (but the different part should be
clearly separated by sub-heading ‘Reply’ and ‘Defence to
Counterclaim’).
◦ The defence to counter-claim must be filed within 14 days of
the counter-claim being served on him.
◦ Order 19 r8- if no defence to counter-claim is filed, the
defendant may obtain judgment in default to a counter-claim.
Close of Pleadings and Joinder of Issues
 Order 18 r14(2) provides that if no reply is served, the
pleadings are deemed to be closed after the service of
the defence and there is an implied joinder of issue on
the defence.
 O 18 r 20(1) The pleadings in an action are deemed to
be closed—
(a) at the expiration of fourteen days after service of the reply or,
if there is no reply but only a defence to a counterclaim, after
service of the defence to the counterclaim; or
(b) if neither a reply nor a defence to the counterclaim is served,
at the expiration of fourteen days after service of the defence.
Formal Requirement of Pleadings
 Order 18 rule 6(1)- every pleading in action shall bear
on its face:
◦ The year in which the writ in the action was issued and the
number of the action;
◦ The title of the action; and
◦ The description of the pleading
 O18 r6(2)-(5) ROC
◦ It must contain the description of the pleadings. i.e. statement
of claim, statement of defence, counter-claim etc.
◦ Each pleading must be numbered in paragraph. This also make
it easy for the other party to rebut certain points in the
pleadings.
◦ All date, sums and other number must be in figures and not in
words (i.e. three days, two thousands ringgit)
◦ The parties must be referred as the plaintiff or defendant.
◦ The writ must be indorsed whether the person is acting in his
individual capacity or whether being represented by a solicitor,
with the name and address.
◦ The writ must be signed by the solicitor or by the party himself
(if he sues or defends in person).
Rule on pleadings
 The pleading must contain facts (only material facts
(O18 r7) and;
◦ Not law
◦ Not evidence;
 Must state present facts and not to anticipate possible
defence.
 Matters must be specifically pleaded (O18 r8, O18

r12(1)
 Must contain the necessary particulars of any claim, defence
or other matter pleaded. See, O 18 r 12(1), O 18 r 12(3)
• Answer opponent’s allegations. See, O 18 r 13, O 18 r 14

• Must state specifically specifically the relief or remedy claimed.

See, O 18 r 15(1), contrast O 18 r 12(1A).

• Wong Yew Kwan v Wong Yu Ke [2009] 2 MLJ 672, [2010] 2 CLJ

703, the Court of Appeal held that RC O 18 r 7(1) required a party to
state the material facts necessary for his defence and counterclaim. A
defence which is irrelevant may be struck out, as when the defendant
raises facts which are not connected to the alleged libel
Plead facts, and not law
 Rationale: Law is for the court to decide and not the parties themselves.
 Not necessary to state principle contained in the law. For e.g. never
mention the principle of Hadley v Baxendale, or Carbolic Smoke Ball.
 If the party’s claim depends upon a statute, then he should plead all the
facts necessary to bring him within that statute or it is sufficient to just
state the statute and the relevant section, without quoting the provisions
verbatim.
 For example:
◦ The plaintiff action was barred by limitation and is not maintainable as
the plaintiff’s action was not brought within six years of the accrual of
the alleged cause of action.
◦ Based on the doctrine of privity, the plaintiff has no locus standi to file
this action against the defendant.
 Instead, the party can raise a point of law whereby it does not
contain details of the law/ should be brief (O18 r11),
 For e.g. plead lack of consideration, or plead the plaintiff had
suffered negligence due to the breach of defendant’s duty of
care.

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Plead Facts and not evidence
 O18 r7
 Evidence can be only adduced during trial.
 Where evidence has been pleaded, the court can strike out the
offending sections in the pleading.
 Never plead law of evidence or rules of evidence in pleading e.g.
admissibility.
 For e.g. the hearsay of defendant’s conduct prior to the
negligence act.
 In Dato' Hamzah bin Abdul Majid v Omega Securities Sdn
Bhd [2015] 6 MLJ 725, FC, the Federal Court held that there is
an important exception to the rule that evidence though not
pleaded is admissible if not objected to. 
Facts and only material facts
 This means those facts which are necessary for the purpose of
formulating a complete cause of action.
 Words which are defined by statute are not material facts which
require pleading.
 It is necessary to plead all the material facts as the parties cannot
adduce evidence in support of unpleaded facts at the trial.
 In Phillips v Phillips (1878) 4 QBD 127, the pleading should
state those facts which will put the defendants on their guard and
tell them what they have to meet.
 Omission of fundamental and material facts will render the writ
and statement of claim defective as such omission cannot be
made good by affidavit evidence.
Cont..
 A party may rely on the material fact even if it has not been
pleaded if the opposing party is aware of the facts and has
referred to it in the course of his case
 Md Hamid Merican bin Abdul Kader Merican v Abdul Razak
bin Hussain [2010] 9 MLJ 1.
◦ In the instant case, the issue of estoppel, bad faith and quantum meruit
raised by the plaintiff was not pleaded and were raised for the first time
during submissions. It was also not part of the list of issues to be tried
agreed between the parties.
◦ Held: estoppel a matter which is required to be pleaded under the rules of
the court, as exemplified by O18 r7(1) & 8(1). However, the requirement
of these rules is sufficiently met if material facts giving rise to estoppel
are sufficiently pleaded without actually using the term ‘estoppel’.
Must state present facts and not to
anticipate possible defence

 The pleadings must state present on its own and the

party should not draft pleading in anticipation of
possible defence.
 For e.g. it is anticipated that the defendant will put up a

defence of intoxication (in negligence case).

 Thus, the plaintiff’s pleading should not state “the

defendant’s possible defence of intoxication shall fail

because…”
Matters must be specifically pleaded
 Order 18 rule 8 provides that a party must in any pleading
subsequent to the statement of claim plead specifically any
matter, for example, performance, release, limitation, fraud
etc.
 Such matters must be asserted before the court can consider
the relevant remedy for the seeking party.
 To avoid surprise.
 Other matter which can be pleaded: Non est
factum, estoppel, res ipsa liquitor
 Case: Tengku Ali v Kerajaan Negeri Terenggau [1994] 2
MLJ 83 where it was held that PAPA1948 must be specifically
pleaded in the pleading if the party seeking remedy for
limitation.
 In Tan Ah Tong v Parveen Kaur [2011] 5 MLJ 428, the
Defendant had to raise and prove the existence of 5
elements of coercion, undue influence, fraud,
misrepresentation or mistake to prove that she had not
consented to the signing of the sale and purchase
agreement. She did not plead this in her pleading.
 Held: failure to plead those elements means that the

defendant could not rely on any one of those 5

evidence to negate her consent to enter into the SPA.
Examples of matters which must be specifically
pleaded in pleading (among others)
 Illegality – Dato' Hamzah bin Abdul Majid v Omega Securities Sdn
Bhd [2015] 6 MLJ 725, FC, the Federal Court held that a court might
act on ex facie illegality in the absence of a plea. But other than ex
facie illegality, any radical departure from the pleaded case must be
pleaded to avoid surprise at the trial.
 Lim Ker Phang v Tia & Noordin (sued as a firm) [2014] 11 MLJ
728, HC the court held that the defendant's submission that the
transaction was tainted with illegality was an unpleaded point. Hence
the point was vexatious and without merit. Illegality need not be
specifically pleaded and the court can take cognisance of the issue
and the parties relying on it may make submissions on it at the end of
the trial if the facts supporting the evidence of illegality in the
transaction is sufficiently adduced
Cont..
 Fraud- In Ikram Megah v Pantiga Resources Sdn Bhd
[2010] 7 MLJ 131, the High Court held that it is trite law
that allegations of fraud must be specifically pleaded. The
court found that the plaintiff failed to plead the allegations
of fraud with sufficient particularity. The plaintiff did not
plead explicitly the acts on the part of the fourth, fifth and
sixth defendants that were alleged to constitute fraud or
collusion with the third defendant. The lack of particulars
prejudiced the defendants. The plaintiff had also omitted
to state the basis and quantum of the respective losses
allegedly caused by each of the defendants to the plaintiff.
Cont..
 Pembinaan Teris Sepakat Sdn Bhd v Kumpulan Ikram Sdn Bhd & Anor
(Mohd Rozi bin Salleh & Anor, third party) [2015] 10 MLJ 764, the High
Court found that the plaintiff’s expert witness testified that the first defendant
was dishonest and cheated in the carrying out of the works. This assertion was
equivalent to fraud having been committed by the first defendant and that had
to be specifically pleaded. However, the plaintiff did not however do so.

 In Wee Kok Bin v Aseambankers Malaysia Bhd [2012] 5 MLJ 778, the High
Court held that the allegations of conspiracy (in the context of an alleged
acting in concert to depress the share price of Liqua, which was essentially a
case grounded on fraudulent conduct in the context of the securities laws) had
not been properly taken in the plaintiff’s pleadings. The plaintiff had to
specifically plead fraud. A general allegation was insufficient; full particulars
had to be pleaded.
Cont..
 Limitation-  party wishing to rely on a statute of limitation must specifically
plead it, failing which he is not entitled to rely on limitation to defeat the claim
 The Federal Court in Tasja Sdn Bhd v Golden Approach Sdn Bhd [2011] 3 CLJ
751, FC, held that in an application for striking out under RHC O 18 r 19(1) on
the ground of limitation to bring an action, a distinction must be made as to
which provision of the law is used to ground such application. If it is based on
the Public Authorities Protection Act 1948 (s 2(a)) or the Civil Law Act 1956 (s
7(5)), where the period of limitation is absolute then in a clear and obvious case
such application should be granted without having to plead such a defence.
However, in a situation where limitation is not absolute, like in a case under the
Limitation Act 1953, such application for striking out should not be allowed
until and unless limitation is pleaded as required under the Limitation Act 1953
(s4).

 K Kaliamal v RG Manickam [1952] MLJ 162

Cont..
 Equitable defences.

 Derivative actions. It is imperative that a derivative action

should be so pleaded: Abdul Rahim bin Aki v Krubong
Industrial Park (Melaka) Sdn Bhd [1995] 3 MLJ 417.

 Exclusion clauses. Where the defendant wishes to rely on

an exclusion clause, he should plead it and the material
facts establishing his reasonable reliance on that clause.
Cont..
 Accord and satisfaction. For an example of the application of the
defence of ‘accord and satisfaction’ in a defamation suit.
◦ In Soo Boon Siong @ Saw Boon Siong v Saw Fatt Seong and Soo Hock Seang
(as estate representative Soo Boon Kooi @ Saw Boon Kooy (decd)) [2008] 1
MLJ 27 (referred Gimstern Corporation (M) Sdn Bhd v Global Insurance Co Sdn
Bhd [1987] 1 MLJ 302), where the Supreme Court had held that parties are not
entitled to raise issues not specifically pleaded and that issues raised in
contravention of RC O18 r8 should not be entertained.

 Acknowledgement. A plaintiff suing for a debt is not precluded from

raising the defendant’s acknowledgment of that debt even though that
fact is not pleaded: Hicom Carriage Engineering Sdn Bhd v Kerajaan
Malaysia [2002] MLJU 782 (applying Oversea-Chinese Banking
Corporation Ltd v Philip Wee Kee Puan [1984] 2 MLJ 1, PC).
Ng Swee Kin v Ng Tian Hock & Other Appeals [1992] 1
SLR 701
◦ The issue is whether interest needs to be specifically pleaded to be
awarded?
◦ On the present state of law and practice, it is not necessary to
specifically plead interest for the court to exercise its discretion to award
it.
◦ Therefore, the plaintiffs were not precluded from asking for interest to
be awarded, although it had not been pleaded.

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Answering opponent’s pleadings
 Pleading must answer opponent’s allegation (O18 r13).
 The rule is 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 pleadings or
joinder of issue (Order 18 r14).
 Perwira Habib Bank (M) Bhd v Penerbitan ASA Sdn
Bhd [1998] 5 MLJ 297. it was held that the ‘deemed
admitted’ provision only applies to a defence to a statement
of claim or to a counterclaim. Allegations of fact not
specifically traversed in a reply to a defence are not
‘deemed admitted’ as r 14(4) provides for joinder of issue
Damages
 New Order 18 rule 12(1A) states that general damages
must not be quantified in the statement of claim or
counterclaim. It is for the court to determine the
quantum of damages. The court may do so based on the
evidence adduced at trial or make an order that
damages be assessed under O 37. 
 But special damages must be specifically pleaded and

quantified.
Cont…
 Special damages;
◦ Evidence of special damages cannot be led at the trial unless it
is specifically pleaded;
◦ Even if pleaded, it must be adequately particularised;
◦ Particulars of facts which make the calculation of damages
possible should also be pleaded; and
◦ Where the facts relied on do not support the claim for
damages, the claim may be struck out
Further and better particulars
 This is where the plaintiff does not provide all the
required information to enable the defendant to prepare
his statement of defence (particulars may only be
sought of matters arising from the pleadings).
 Thus, the defendant may request for further and better

particulars (O18 r12).

Cont…
 In Dato’ Seri Dr Ling Liong Sik v Krishna Kumar s/o Sivasubramaniam [2002] 2
MLJ 278 , Arifin Zakaria J (as he then was), at 286, referred to the Supreme Court
Practice (1997) Vol 1 p 308 which sets out the function of particulars as follows:

◦ to inform the other side of the nature of the case that they have to meet as distinguished from the
mode in which that case is to be proved;  

◦ to prevent the other side from being taken by surprise at the trial;

◦ to enable the other side to know with what evidence they ought to be prepared and to prepare for
trial;

◦ to limit the generality of the pleadings or of the claim or the evidence;

◦ to limit and define the issues to be tried, and as to which discovery is required; and

◦ to tie the hands of the party so that he cannot without leave go into any matters not included. But
if the opponent omits to ask for particulars, evidence may be given which supports any material
allegation in the pleadings.
 Orders
 Finally, the pleading may include orders that is prayed

from the court.

 Striking Out Pleadings under O18 r19

◦ A pleading or endorsement may be struck out on the following
grounds:
 It discloses no reasonable cause of action or defence;
 It is scandalous, frivolous and vexatious;
 It may prejudice, embarrass or delay the fair trial of the action; or
 It is otherwise an abuse of the process of the court