What is it?
A Summary Judgment application can be filed by:
(i) A Plaintiff in a civil suit begun by writ, pursuant to Order 14 Rule 1 of the Rules of Court 2012;
(ii) A Defendant in a civil suit begun by writ whereby the Defendant has filed a counterclaim, pursuant to Order 14 Rule 5 of the Rules of Court 2012.
[For the purposes of this article, the Plaintiff or Defendant applying for a Summary Judgment application will be referred to as the “Applying Party” and the Defendant or Plaintiff opposing a Summary Judgment application will be referred to as the “Opposing Party”.]
Such applications are decided by the Court after considering affidavits exchanged (and documents exhibited to those affidavits) as well as oral and/or written submissions by the lawyers for the Applying Party and the Opposing Party.
If the application is successful, the Applying Party would have a judgment against the Opposing Party without the need for a trial.[1]
This would save the time and costs of the Applying Party as well as the Court.
Preliminary requirements (where the Plaintiff is the Applying Party)
The burden is on the Plaintiff to establish the preliminary requirements for a Summary Judgment application, namely that:
“(i) the defendant must have entered an appearance;
(ii) the statement of claim must have been served on the defendant; and
(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14.”[2]
Once the preliminary requirements are met, the Plaintiff would have established a prima facie case in its favour.[3]
The burden is then on the Defendant to show merits in its Defence.[4]
How to defeat it?
In the event any of the preliminary requirements are not met (where the Plaintiff is the Applying Party), the Defendant has a strong technical ground for opposing the Summary Judgment application.[5]
The Courts have made it clear that Summary Judgment applications should only be allowed in plain and obvious cases.[6]
The existence of even a single triable issue would suffice to defeat a Summary Judgment application.[7]
[1] See Order 14 Rule 3(1) of the Rules of Court 2012
[2] National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 (FC), at p. 301
[3] National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 (FC), at p. 302
[4] Ibid.
[5] See e.g. Noh Hyoung Seok v Perwira Affin Bank Bhd [2004] 2 MLJ 203 (CA), at paragraph 51
[6] See e.g. South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642 (CA)
[7] Ibid.