Introduction
Often, we find ourselves compelled to initiate legal proceedings to recover owed funds. Although these proceedings can be both expensive and time-consuming, there is a positive aspect: the option to expedite the case without a trial. This process is called an application for Summary Judgment.
Summary Judgement under the Rules of Court 2012 (“ROC”)
Summary Judgment is typically provided under Order 14 and Order 81 of the Rules of Court (ROC).
There are several prerequisites to fulfill before making a summary judgment application under Order 14:
i. The Statement of Claim must be served on the Defendant;
ii. The Defendant must have entered an Appearance; and
iii. Order 14 does not apply to claims for libel, slander, malicious prosecution, false imprisonment, or claims based on allegations of fraud.
It is also important to note that Order 14 does not apply to actions where Order 81 is applicable. Summary judgment under Order 81 specifically applies to the following situations:
i. Specific performance of an agreement for the sale, purchase, or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages;
ii. Rescission of such an agreement; or
iii. Forfeiture or return of any deposit made under such an agreement.
An application for summary judgment under Order 81 can be made even if the Defendant has not entered an appearance.
The principle governing the application of Order 14 and Order 81 is outlined in Mawar Awal (M) Sdn Bhd v Kepong Management Sdn Bhd & Anor [2005] 6 MLJ 132, where the High Court stated:
“[15] Order 81 of the RHC relates to the procedure for summary judgment … It has the same procedural objective as Order 14 of the RHC in that it provides for a speedy mechanism for obtaining summary judgment without proceeding to a trial …”
Application of the principle of summary judgement in Malaysian Courts
It is well-established that a summary judgment application should only be granted in clear and straightforward cases where the Defendant has no defence. If there is a triable issue or other matters in dispute that require investigation by the court, the application will be dismissed.
This principle is illustrated in the landmark case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, where it was reaffirmed that summary judgment should only be granted in plain and straightforward cases.
The Court of Appeal in Woolley Development Sdn Bhd v Mikien Sdn Bhd [2008] 1 MLJ 585 also emphasized that the party applying for summary judgment must demonstrate to the court that they are prima facie entitled to it:
“[46] The plaintiff in a summary judgment application first needs to establish a prima facie case that ‘he is entitled to judgment’. The burden then shifts to the defendant to satisfy the court why judgment should not be given against him …”
This principle was further applied by the High Court in the recent case of Tunas Gagah Sdn Bhd v Ramly Bin Zahari [2018] 1 LNS 1297, where the High Court reiterated:
“[27] … this Court must determine whether there are triable issues which would defeat the Plaintiff’s assertion that the case is suitable for summary disposal.”
Therefore, it is clear that a summary judgment application will only be granted by the court in straightforward cases where the Defendant cannot present any triable issues or circumstances that warrant a trial.
So, a summary judgement application has been made against you. How do you resist such an application?
As mentioned above, summary judgment should not be granted if the Defendant can demonstrate that there is a triable issue in the dispute. What constitutes a triable issue can vary from case to case.
The High Court in the case of Tunas Gagah Sdn Bhd stated:
“[19] … a complete defence need not be shown. The defence need only show that there is a triable issue.
…
[27] … if a defendant shows that he has a fair case for a defence, reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to be given leave to defend.”
The Court of Appeal in UNP Plywood Sdn Bhd v HSBC Bank Malaysia Berhad [2010] 5 MLJ 323 cited the High Court case of Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v Ghazali Bin Ibrahim [1985] 2 MLJ 225 as follows:
“[36] … This means the defendant must show on merits that he has a good defence to the claim, a difficult point of law is involved, or the dispute is as to fact which is to be tried, or any other circumstances showing reasonable grounds of a bona fide defence.”
The High Court in the recent case of Pustaka Yakin Pelajar Sdn Bhd v Penerbitan Inspirasi Sdn Bhd [2021] 10 MLJ 79 cited Bank Negara Malaysia v Mohd Ismail, stating that to determine if a triable issue exists, the court would only need to look at the Defendant’s affidavit and must be satisfied that there are inherently probable disputes which would render the issue triable.
However, even if the Defendant cannot show a triable issue, a summary judgment application can be resisted if the Defendant shows that there are matters or circumstances which ought to be investigated by the court.
Megarry J, in the landmark case of Miles v Bull [1968] 3 All ER 632, stated:
“There are cases where the plaintiff ought to be put to strict proof of his claim and exposed to the full investigation possible at a trial; in such cases, it would be wrong to enter summary judgment for the plaintiff.”
This position was affirmed by the Federal Court in United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657, where an appeal against a summary judgment was allowed on the ground that there are circumstances showing that ‘there ought for some reason to be a trial’.
Thus, a court will not exercise its discretionary power to grant a summary judgment as long as the Defendant can show that a triable issue exists or that there are circumstances that warrant investigation by the court.
Conclusion
A summary judgment undoubtedly provides a quicker method to secure a judgment against a Defendant, provided that certain parameters are met. However, a Plaintiff must bear in mind that in the event the Defence opts not to comply with or disregards the summary judgements, the Plaintiff must endure the additional burden of executing the judgement through various means of enforcement.
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