Basic about Summary judgment

Example: I would like to obtain judgment from the court without trial because the defendant has no defence and there is no triable issues.

The summary judgment provided in Order 14 of the Rules of The High Court 1980. The procedure is to enable plaintiff to obtain early judgment in cases where the defendant has no hope of success and any defence he raises would merely have the effect of delaying judgment (Jones v Stone). The summary judgment must file when the defendant has enter the appearance.

Reasons for summary judgment:
1. such defence is just a mock defence (pembelaan olok-olok)
2. that defence only a mere denial
3. there is no triable issues

What is 'triable issues' ?
It is an issue that the court cannot decided without hearing the disputes (defences and evidences) from both parties and if made, it will causes injustice to the other parties.

When to file the summary judgment?

If has been seen in the brief that the defendant cannot defend themselves. For example, in civil action (summon) by bank, where the debtor failed to pay the debts within the promised period. So, the plaintiff will file the summon in chamber for summary judgment. So, now, the summary judgment has to be heard by judge (in chamber), not in open court.

So, in that situation, the plaintiff must prove the case on the probability (must prove that the defendant has no defence). The plaintiff must prove it by supporting an affidavit that the defendant has no defence. Examples, all below should be exhibits:
1. the loan agreement become exhibit of affidavit
2. attach/show the receipt of loan payments
3. attach the reminders from the bank
4. attach the notice of demand

So, the plaintiff will show to the court that there is a cause of action to sue the defendant. ( the cause of action is the plaintiff has right to sue the defendant because the defendant failed to pay the credit).

When the summon in chamber has been submitted, the judge will read all the document, so, if there is the triable issue, or for example if the defendant has the reason that the bank has give him the re-schedule of the loan, the plaintiff cannot obtain the summary judgment. ( the court will set a side the summary judgment, but it does not mean that the plaintiff has lost the case, but the judgment will be given after the trial of the case. However, if the court held that the defendant has no defence, plaintiff will obtain the summary judgment after the court hearing the case in chamber.

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Basic about Notice of appearance

Order 12 Rule 4 of Rules of High Court 1980 provided about the notice of appearance. It is the rule about writ. It provides if the defendant failed to file the notice of appearance, the plaintiff will obtain the judgment in default (JID). Meanwhile, "notice of conditional appearance" is an indication that the defendant will objection to the jurisdiction of the court before the case start (in condition that the objection is going to be overruled by the court. In the case of Bank Negara v Gerald Glpsy the court held that plaintiff must file the appearance although defendant disagree that the courts has not have jurisdiction. But, the defendant will filed in the notice " notice of conditional appearance". It must file within 8 days. So, if there is not submitted within the day, the plaintiff will obtain JID. The short services only in two days. Moreover, if the defendant did not file the notice of defence, the plaintiff can file the JID.

How to file JID?
Plaintiff can file the JID when the other parties does not file the appearance within 8 days. So, the plaintiff will file the draft order of JID and the registrar must file in the JID to the defendant. But before that, the certificate of non-appearance also have to file in. Meanwhile, the defendant will file the summon in chamber to set aside the JID.


* this is only for basic understanding, for more info's please refer the books and ask your lecturer.

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How to build up the cause of action?

In easy words, the cause of action (COA) is a set of circumstances which brings the P to sue the D and the P is going to win. How to build up the cause of action? (without fabrication).

(1) get the evidence
(2) prove the fact
(lawyers should be able to take up the case, confident and win the case)
(3) Client: full story A to Z (whether there is a COA or not)

Example:

~what is the law to be applied? - Law Reform (Marriage and Divorce) Act
~Under section? Cases? What the remedies? (divorce or damages(money) )

~ Is there any gaps of facts that the client didn't tell? (if so, persuade client)

So, for the brief :

(1) summary

(2) structure frame

(3) fact

(4) evidence

(5) relevant Acts

(6) cases

(7) remedies

At the end of the brief, is there a cause of action or not? If no COA, forget the divorce! haha.. (because the court cannot provide any remedy if there is no COA).

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Civil Procedure: Cause of Action

Cause of Action means the cause or the set of circumstances which leads up to an action in court. Cause of action also refers to every fact, which is necessary to the plaintif to prove in order to entitle him to an order or judgment in an action. It is in other words a bundle of essential facts, which was necessary for the plaintif to prove before he can succeed in an action.
The cause of action is a condition precedent to the commencement of an action and every claim must disclose a cause of action before the court will be able to proceed to adjudicate the dispute. If there is no cause of action, the court cannot provide any remedy. In the case of Government of Malaysia v Lim Kit Siang,Lord President, Tun Salleh Abas observed that " cause of action is a statement of facts alleging that a plaintif's right, either by law or by statue, has, in someway or another, been adversely affected or prejudiced by the act of defendant in an action".
In Letang v Cooper, the judge defined 'a cause of action' mean a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. Meanwhile, in Hock Hua Bank Bhd v Leong Yew Chin, Syed Agil Barakbah SCJ, observed that " a cause of action is simply a factual situation the existence of which entitle plaintif to obtain from the court a remedy against the defendant". A cause of action founded on contract accrues on its breach. In the case Board of Trade v Cayzer, Irvine & Co., the judge describe the cause of action as that which makes action possible. What makes possible an action founded on a contract is its breach. In other words, a cause of action founded on a contract accrues on its breach. In the case of actions founded on contract, therefore, time runs from breach. In the case of actions founded on any other right, time runs from the date on which right is infringed or there is a threat of infringement.

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