A Summary Judgement is an application/procedure in which the party (usually plaintiff but either party can apply) applies to the court for an early judgement under Order 14 of the Rules of Court 2012. A party usually applies for a Summary Judgement when they intend to shortcut the proceeding without going for a full trial. The condition to apply is there must be no dispute of fact or law.
Can The Defendant Apply for Summary Judgement?
The defendant can apply for Summary Judgement if he has entered appearance beforehand and has a counter-claim against the plaintiff. He must then include in his statement of defence:
- His defences are mere denials
- There are no triable issues
Situations Where Summary Judgements are Unavailable:
As per Order 14 Rule 1(2) Rules of Court 2012, in the following situations a Summary Judgement cannot be obtained:
Libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, fraud allegation.
Why? Because a Summary Judgement can only be taken when the applicant believes that their opponent has no defence (i.e. there are no triable issues).
However, these types of claims are generally considered too complex for summary judgment due to the nuanced and sensitive nature of the allegations, which often require a full examination of evidence and witness testimonies.
TIME TO APPLY & ISSUE ON DELAY
McLardy v Slateum: An application for Summary Judgement must be made promptly after the Defendant has entered appearance. The Plaintiff need not wait until a statement of defence is filed. However, if statement of defence has been filed, the onus is on the Plaintiff to show that the delay is justifiable under special circumstances of the case.
Lee Wah Bank Ltd v Chee Kong Electrical Sdn Bhd: It was stated that delay is not relevant in an application for summary judgment. Irrespective of the delay, if there is no triable issue or no reason otherwise for going to trial, the application must succeed but if there is a triable issue, the application must fail.
OBJECTIONS THAT MAY BE RAISED BY THE DEFENDANT AGAINST A SUMMARY JUDGEMENT
1) Triable Issues:
Ng Yik Seng v Perwira Habib Bank [1980] 2. MLJ 83
Fact: this case involves a matter of guarantee where the appellant contended that he did not sign the guarantee and that his signature was forged.
The Court held that there were triable issues and the appellant was given leave to prepare a defence.
2) Set-Off/Counterclaim:
RONALD QUAY SDN BHD v MAHESWARY SDN BHD [1987] 1 MLJ 322
The court allowed the plaintiff’s claim for summary judgment but stayed the execution of the judgment pending the disposal of the defendant’s counterclaim.
In this case, the claim by the plaintiff was a sum of service rendered. The defendant admitted a counterclaim and made a claim for a larger sum, that the P had breached their contractual obligation and the defendant had suffered loss.
SUMMARY JUDGEMENT UNDER ORDER 81 ROC 2012 (SPECIFIC PERFORMANCE)
This provision is only to be applied when the action made is for specific performance. Specific performance refers to the remedy of requiring exact performance of a contract in the specific form it was made or according to the precise terms agreed upon by the parties.
The plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for summary judgment.
Interestingly, an application under thi order can been made even though the defendant has not yet entered appearance.
WHAT IS THE DIFFERENCE BETWEEN ORDER 81 AND ORDER 14 ROC 2012?
The differences between Order 81 and Order 14, as stated in Halsbury’s law and Cotra Enterprises Sdn Bhd v Pakatan Mawar: Order 81 is confined to a limited scope of actions. Summary Judgement under Order 81 may be made whether or not the Defendant has entered an appearance. There’s no specific requirement that a statement of claims must first be served.
Besides that, an application under Order 81 must relate to the whole action whilst an application under Order 14 may relate to a particular part of the claim.
Lastly, the summons under Order 81 must be set out or have attached thereto minutes of judgment sought. The applicant must seek remedies of specific performance.
