MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
4.2 Early Judgment Applications A party can apply for early judgment on some or all of the issues in dispute through an application for summary judgment under Order 14 of the Rules of Court 2012. The court may enter judg- ment if there is no bona fide arguable defence and there are no triable issues. See National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300. The application can be made for all claims except for libel, slander, malicious prosecution, false imprisonment, seduction, breach of prom- ise of marriage and fraud. A party can apply to strike out the other par- ty’s claim or defence under Order 18 Rule 19. The whole or part of the claim or defence can be struck out if it does not establish a reason- able cause of action or defence, is scandalous, frivolous or vexatious, may prejudice or delay the fair trial of the action and/or is an abuse of the court’s process. The test is that the claim or defence should be obviously unsustainable. See Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. These applications are usually made through a notice of application with an affidavit in support, prior to or shortly after the close of pleadings. The applications will normally be disposed of three to five months after they were filed, during which time affidavits will be filed and submis- sions made. 4.3 Dispositive Motions Apart from summary judgment and striking out applications, applications can also be filed for the disposal of the suit based on preliminary points of law and/or fact.
Where the claim is for movable property, the plaintiff may apply for judgment for delivery of the property or for assessment of its value, while where the claim is for immovable property, the plaintiff may enter judgment for possession of the property. In the case of other claims, the plaintiff may proceed with the action as if the defendant had entered an appearance, and then apply for judg- ment in default of defence after the expiration of the period for filing the defence. 3.7 Representative or Collective Actions Representative actions are permitted under Order 15 Rule 12 of the Rules of Court 2012. The plaintiffs have to have the same interest, be members of the same class, have a common grievance and apply for relief beneficial to all members. See Vellasamy Pennusamy & Ors v Gurbachan Singh Bagawan Singh & Ors [2012] 2 CLJ 712. 3.8 Requirements for Cost Estimate There is no requirement to provide clients with a cost estimate of the potential litigation at the outset.
4. Pre-trial Proceedings 4.1 Interim Applications/Motions
Litigants may file interim applications before the trial or substantive hearing of a claim to obtain various remedies from the court, such as an interim injunction pending the disposal of the substantive claim, summary judgment, the dis- missal of a claim without a full trial, security for costs, discovery and the production of docu- ments.
882 CHAMBERS.COM
Powered by FlippingBook