PROCEDURE & PRINCIPLES: ORDER 26A: ORDER 14 & ORDER 14A

Transcription

1 PROCEDURE & PRINCIPLES: ORDER 26A: ORDER 14 & ORDER 14A ISBN Author: Nasser Hamid Binding: Softcover/Extent: 650 pp Publication Price: MYR The law is stated as of July 1, 2004 Chapter 1 ORDER 26A SCR 1980 Summary judgment under Order 26A of the SCR Bars to Summary Relief under Order 26A r 1 of the Subordinate Court Rules Claim of Plaintiff based on an allegation of Fraud... 1 Claims against the Government... 2 Claim by the Government... 2 Claim against Several Defendants... 4 Compliance with Rules of Court... 4 Application for Summary Judgment... 5 Procedural Requirements... 5 Principles Governing Application for Summary Judgment under Order 26A... 6 Time for Application - Delay in Application... 6 Manner in which Application under Rule 1 to be made Procedure - Service of Summons Service of Summons and Affidavit Service of Notice of Application, Affidavit and Exhibits Notice of Application Pleadings Defective Pleadings Amendment of Pleadings Delay in Application to Amend Pleadings Delay in Application to Amend Pleadings Date of Amendment 14 Raising New Issues Amendment inconsistent with the Original Pleading Amendment adding an Allegation of Fraud 16 Statement of Claim - Summary Form of the Material Facts Defective Statement of Claim Affidavit in Support Jurats Affidavit to Condescend to Particulars Affidavit in Support - Locus Standi of Deponent Affidavit in Support Made by more than one Deponent Error in Affidavit... 20

2 Affidavit to be Signed Defective Affidavit The Affidavit-in-Reply Failure by Plaintiff to Reply to Allegations of Defendant Applicability of Order 26A Rule 2(3) of the SCR Affidavit in Reply Time for Filing Filing Affidavit out of Time Service of Affidavit in Reply Delay Venue of Hearing Duty of Defendant Defences - Alternative Claims Triable Issues Inconsistencies between Affidavit in Opposition and Statement of Defence 26 Application to Strike out Defence Orders of Court Dismissal of Application Granting Conditional Leave Varying or Amending Order Setting Aside Judgment - Judgment given in Absence of Party Setting Aside of Judgment Effect on Execution Proceedings Application for Summary judgment on Counterclaim Counterclaim Leave to Defend Plausible Counterclaim Relief against Forfeiture Stay Of Execution pending Appeal Appeals Notice of Appeal Endorsement of Notice of Appeal Appeal against Whole or Part of Decision Appeal to Judge in Chambers of the High Court Record of Appeal Appeals Admission of Fresh Evidence Costs Chapter 2 ORDER 14 Introduction Jurisdiction of Court Rules of Court Amendments - Technical Objections Prejudice to the due Adminsitration of Justice Summary Judgment Interpretation of Rules of Court General Principles Purpose of Order Scope of Order Bars to Summary Relief under Order 14 of the Rules of the

3 High Court Fraud Allegation of Fraud Conspiracy to Defraud Some Other Reason for a Trial - Fraud Evidence Fraud Fraud - Foreign Judgment Fraud - Agency - Knowledge of Solicitor Action under Order 81 of the RHC Statutory Debt Actions against the Government Disputed Damages Presumptions - Statutory Presumptions Claims Within the Scope of Order Admiralty Actions - Admiralty Actions in Rem Declaratory Relief Employment Foreign Judgments Injunctions Perpetual Injunctions Copyright Infringement Passing Off Action Negligence Actions Time for Application Delay Explanation for Delay Commencement of Action Service of Summons Frivolous Applications Debtor Company under Receivership - Leave to Commence Application Sealed Summons and the Supporting Affidavit Proceeding on part of Claim Part of Claim based on Interim Certificates Preliminary Procedural Requirements for an Order 14 Application Defendant to have entered Appearance Prima Facie Case Evidence Without Prejudice Negotiations The Rule as to Privilege Public Policy Continuing Privilege Absence of Negotiations Lifting of Without Prejudice Veil Waiver of Privilege Evidence Judicial Notice Hearing of Application Absence of Defendant at Hearing Third Party

4 Application for Summary Judgment - Alternative Prayers Chapter 3 STATEMENT OF CLAIM Object of Pleadings Pleadings & Evidence - Rationale for Pleading Material Facts Statement of Claim Material Facts Defective Statement of Claim Non-Disclosure of Facts Cause of Action Presenting a case on Instalments Abuse of Process Particulars of Claim Defective Statement of Claim Date of Accrual of Action Amendment of Statement of Claim Amendment of Statement of Claim after grant of Summary Judgment Renewal of Application Chapter 4 AFFIDAVITS Affidavit Evidence Approach of Courts Evaluating Affidavit Evidence Optimum Evaluation Approach Conflicting Affidavit Evidence Affidavit Condescending into Particulars Form of affidavits Language of Affidavits Cross Examination Affidavits Irregularities Admissibility Defective Affidavits Supplementary Affidavits Defect in Substance Affidavit in Support-Validity of -Unsealed Summons Affidavit in Support - Prima Facie Evidence Affidavit in Support - Form Affidavit in Support-Procedural Requirements Non-Compliance Verification of Facts Swearing of Affidavit Omission of Deponent s Name

5 Affidavits deposed by Solicitors Belief that there is No Defence Affidavit in Support Jurat Non-Compliance with Order 41 r 1(7) and (8) of the RHC Affidavit in Reply cannot improve the Statement of Defence Filing and Service of Affidavits Affidavit in Opposition Bare Assertions Affidavit filed out of Time Postponement of Application Chapter 5 DEFENCES & TRIABLE ISSUES Introduction Statutory Exclusion of Defences Defendant to Show Cause Opportunity to be Heard Pleadings Defendant bound by Pleadings Failure to file Statement of Defence Failure to Reply to Statement of Defence - Joinder of Issues Bad Defence in Law Statement of Defence Denials Failure to Reply to Statement of Defence Application to Amend Defence By Affidavit or Otherwise Can Documents be tendered as Exhibits through Written Submissions Triable Issues Affidavits raising Triable Issues Triable Defences Triable Issues Duty of Judge Triable Issues Affidavit Evidence Duty of Judge Conflict of Evidence Dispute as to Issue of Fact - Duty of Judge 179 Controversial Issues There ought to be some other reason for trial Arbitration Assignment Statutory Assignment Nature of Assignment - Locus Standi of Plaintiff Notice of Assignment Fraud - Assigment Estoppel Estoppel - Pleadings Estoppel by Convention Issue Estoppel

6 Res Judicata Every Point Which Clearly Belonged to Subject of Litigation Estoppel Acceptance of Settlement from Third Party Evidence - Expert Opinion Whether Challenge could be disposed off summarily Jurisdiction Ouster of Jurisdiction Jurisdiction - Civil Jurisdiction of Courts Insurance - Motor Accident Knowledge of Existence of Co-Insurers Partnership - Dissolution of Partnership Rights of Partners Signature Chapter 6 BUILDING CONTRACTS Introduction Evidence Supporting Application for Summary Judgment in Building Contract Claims Affidavit in Support Certificates of Payment - Progress or Interim Certificates Final Certificate Validity of Certificate of Payment Back to Back or Pay When Paid Conditions Precedent- Absence of Architects Certificate Defective Works Delay Illegality Liquidated and Ascertained Damages Past Consideration Privity of Contract - Failure to Plead Privity of Contract Set-Off and Counterclaim - Right of Set-Off Chapter 7 CONTRACT Independent Causes of Action Claim based on Money Had And Received v Action in Contract 237 Unjust Enrichment Existence of Contract Existence of Valid & Enforceable Contract Factual Matrix of the Case Construction of Documents to determine Existence of Contract 247 Construction of Contract Parole Evidence Rule - Whether extrinsic evidence can be

7 allowed into the construction of a Contract Collateral Contract Extrinsic Evidence Construction of Admission Letter Extrinsic Evidence Informal Agreement Application of Parole Evidence Rule Exceptions- Where Extrinsic Evidence is Permissible Condition Precedent Contingent Contract Damages Prove of Damages Doctrine of Frustration Frustration - Injunction obtained by Third Party Illegality Illegality - Pleadings Laches - Defence of Laches- Principles which govern the operation of the Plea of Laches Mental Incapacity Mitigation of Damages Repudiation Right of Rescission- Communication of Rescission Contract Right to Rescind Right of Rescission- Communication of Rescission Undue Influence Chapter 8 CHEQUES Introduction Principles Applicable The Cheque Contract Dishonour of Cheque Due Presentment Refer to Drawer Dishonour of Cheque Defences Failure of Consideration Failure of Consideration Presumption under Section 30 of the Bills of Exchange Act Onus of Proof of Lack of Consideration Defence Documents against acceptance - Whether Cheque Conditional and Unenforceable Counterclaim Forgeries Conversion Liability of Collecting Bank - Collecting Bank banker receives the proceeds of a cheque for a customer who has no title to the cheque

8 Chapter 9 GUARANTEES Construction of Guarantee Nature of Guarantee Whether A Mere Guarantee Or An On Demand Guarantee? Guarantor s Obligation - Co-extensive with those of the Principal Debtor 307 Liability of Guarantor - Construction of Guarantee Liability of Guarantor Accrued Liability Continuing Guarantee Difference between Guarantee & Indemnity Triable Issues Action Premature by reason of Other Securities Breach of Contract Certificate of Indebtedness Certificate of Indebtedness - Manifest Error Conclusive Evidence Clause Consideration Forbearance to Sue Past Consideration - Consideration for Guarantee Interest Interest - Compound Interest Interest - Penalty Interest Liability Dispute as to Extent of Liability Limitation Limitation Doctrine of Estoppel Non-Explanation Of Guarantee and Mistake Notice of Demand Notice of Demand Proof of Posting Release of Guarantee Undue Influence Variation of Agreement Chapter 10 GOODS SOLD & DELIVERED Contract of Sale Cause of Action Supported by Contemporaneous Documents Duty of Buyer Delivery of Wrong Quantity Defence of Non-Acceptance of Goods Failure to Deliver Goods in conformity with the specifications of Quantity, Time of Delivery and Price Claim expressed in Foreign Currency Defence Replacement of Payment

9 Termination Notice of Demand Counterclaim Interest - Late Payment Interest Corporate Veil - Lifting the Corporate Veil Chapter 11 HIRE PURCHASE Triable Issues Arrears - Claim for Debt above Arrears -Whether Claim for Liquidated Sum Fourth Schedule Notice - Denial of Receipt of Interest Breach of Contract - Repudiation Mitigation of Damages Moneylending Whether Hire Purchase Agreement in breach of Moneylenders Act Ownership of Machinery- Validity of Hire Purchase Agreement 356 Settlement Conflict of Evidence Notice of Termination - Failure to Issue Notice of Termination prior to instituting Action Chapter 12 LOANS Certificate of Indebtedness Conclusiveness of Debt Burden of Proof - Certificate of Indebtedness Certificate of Indebtedness Uncertainty of Debt Failure to State Parties in Certificate of Indebtedness Certificate of Indebtedness-Error Collateral Contract Defences excluded by Statute Disbursement of Monies Mere Evidence Of Disbursement Of Moneys Does Not Give Rise To A Presumption Of A Loan Or Advancement Execution of Loan Agreement Limitation Mitigation of Damages Moneylending Presumption of Moneylending Notice of Demand - General Rules Denial of Receipt of Notice of Demand Service of Notices of Demand - General Principles Service by Post

10 Notices of Demand Proof of Posting Evasion of Service Usual or Last Known Place of Business or Residence Illegality Interest Interest Variation of Interest Interest Whether Agreement Void for Uncertainty Performance of Contract Contract performed by Third Party - Section 42 of the Contracts Act Public Policy Illegality Recall of Loan Premature Recall Chapter 13 COUNTERCLAIM Exclusion of Counterclaim Principles Applicable Nature of Counterclaim Application for Summary Judgment on Counterclaim Bona Fide Counterclaim - Rights of a Defendant who sets up a legitimate counter-claim 405 Claim & Counterclaim - Same Subject Matter Leave to Defend Summary Judgment on Counterclaim against Co-Defendant Plausible Counterclaim Reply to Counterclaim Guarantors and Counterclaim Set- Off Verbal Agreement for Set Off Ouster or Exclusion of the Common Law Right of Set-Off Chapter 14 ORDERS OF COURT Judgment for the Plaintiff Grant of Summary Judgment - Proper Procedure Unconditional Leave to Defend Fresh Summons Conditional Leave to Defend Conditions to be Imposed Summons for Directions Consequences of Failure to apply for Summons for Directions Summons for Directions in respect of Interrogatories Want of Prosecution Dismissal of Plaintiff s Action Dismissal of Action for Want of Prosecution The Law

11 Power of Dismissal - Principles Applicable Compliance with Order 25 r 1(4) of the RHC The Delay & Prejudice Setting Aside Judgment Setting Aside - Principles Applicable Summary Judgment entered in hearing of O 18 r 19 Application - Application to Set aside 453 Whether Application should be to Set Aside under O 14 r 11 or appeal under O Mistake in Setting Aside Application for Summary Judgment Chapter 15 STAY General Principles Discretion of Court Nature of Judgment and the Application for Stay Special Circumstances Special Circumstances Test v Nugatory Effect Test Special Circumstances Appeal Money Judgment Merits of Judgment or Appeal Permanent Deprivation of Monies Prejudice Solvency of Creditor Status of Defendants Special Circumstances Nugatory Effect The Defendant cannot be Restored to its Former Position Application for Stay v Application for Summary Judgment Consent Judgment Winding Up Stay Of Proceedings Unconditional Appearance Chapter 16 APPEALS Introduction Appeals from Decision of Judge in Chambers Further Argument Appeal to Federal Court Nature of Appeal to Judge in Chambers Principles of Interference

12 Discretion of SAR Appeal to Judge in Chambers - Nature of the Hearing Admisson of Fresh Evidence in appeal against decision of SAR 505 Further Evidence Further Affidavit filed after Application for Summary Judgment 508 Point of Law Decision under Application for Summary Judgment Whether a Decision under Section 3 of the CJA Preliminary Objections Appeal against Preliminary Objection Notice of Appeal Order 49 r 6(2) of the SCR Notice of Appeal Filed out of Time Issued Ex Parte Order of Judge in Chambers Payment of Judgment Sum Pending Appeal Failure to Extract Order Effect on Appeal Failure to Include Decision Appealed From Application to Reinstate Chapter 17 ORDER 14A Determination of Questions of Law or Construction Application under Order 14A of the RHC Application under Order 33 r 2 of the RHC Rule 5 of Order 33 of the RHC The Scope of Order 14A and Order 33 r 2 of the RHC Purpose & Objective of Order 14A Disposal of Entire Cause or Matter Complex Questions of Law Determination of Questions of Law Defamation - Defence of Qualified Privilege Section 12 of the Defamation Act Fraud Limitation Whether the Plaintiff s Action was Time Barred Fraudulent Concealment 580 Locus Standi Estoppel - Res Judicata Stay- Agreement to Arbitrate