Fastest Way to Get a Judgment in Debt Recovery Summary Judgment Best Practice Kuala Lumpur Malaysia
1 An application for a summary judgment in Kuala Lumpur, Malaysia is a civil procedure under the Rules of Court 2012 (hereinafter the “ROC”) to expedite an action begun by a Writ of Summons without going through the rigours of trial. The objective is so that the parties and the court need not waste unnecessary costs and time for actions with facts which are clear and straight forward.
A summary judgment application is a procedure typically resorted to when the Defendant does not have any defence to the claim against him. Hence, it is a cost-effective and efficient way to resolve disputes.
The applicant must comply with a number of requirements under Order 14 Rules of Court 2012. Failure to do so, would result in the application for summary judgment being dismissed. The Defendant can defend or show cause against the summary judgment application by raising triable issues, set-off, counter-claim, or showing some other reason that there ought to be a trial.
1.1 This is the ‘fastest’ way to obtain a judgment to expedite your Debt Recovery. Alternative you may commence a Companies Winding Up Petition against your Debtors.
Who can make a summary judgment application?
2 A Plaintiff in an action begun by a Writ of Summons may apply to court for a summary judgment on the grounds that the Defendant has no defence to the Plaintiff’s claim or part of the Plaintiff’s claim.
2.1 Similarly if a Defendant in an action begun by a Writ of Summons served a counterclaim on the Plaintiff. The Defendant may apply to court for a summary judgment on the grounds that the Plaintiff has no defence to the Defendant’s claim or part of the Defendant’s claim.
When is a summary judgment application made?
3 A summary judgment application is made after the Writ of Summons and the Statement of Claim is served on the Defendant, and the Defendant has entered his appearance.
3.1 In the case of a counterclaim, the Defendant may make a summary judgment application after the counterclaim is served on the Plaintiff.
4 The application for a summary judgment is governed by Order 14 and Order 81 of the ROC.
4.1 Order 14 and Order 81 are mutually exclusive. Accordingly, under Order 14, rule 1(3), actions which fall under Order 81 will not be applicable under Order 14.
Actions under Order 14
5 With respect to the above, Order 14 is applicable to every action begun by a Writ of Summons, except for those actions described under Order 14, rule 1(2)(a) and (b) which are:
5.1 claims by the Plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage (Order 14, rule 1(2)(a)); and
5.2 claims by the Plaintiff based on an allegation of fraud (Order 14, rule 1(2)(b)).
Actions under Order 81
6 Whereas Order 81 is only applicable to the specific actions listed under Order 81, rule 1(1) which are claims:
6.1 for specific performance of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages;
6.2 for rescission of such an agreement; or
6.3 for the forfeiture or return of any deposit made under such an agreement.
The belief that there is no defence to the action
7 Under both Order 14 and Order 81, the application for summary judgment must be supported by an affidavit stating, inter alia, the belief of the applicant that there is no defence to the claim or part of the claim.
7.1 Such belief is fundamental for a summary judgment application to be successful.
8 The court will only grant a summary judgment if the court is satisfied that there is no issue or question in dispute which should be tried (see Order 14, rule 3 and Order 81, rule 3)
9 If on other hand the court finds that there is an issue or question in dispute which should be tried, the court may instead dismiss the summary judgment application or direct that the Defendant may defend against the application.
9.1 Leave to defend may either be unconditional or conditional.
9.2 A conditional leave to defend is where the court requires the Defendant or Plaintiff in a counterclaim to enter into court some form of security (usually monetary) to defend the summary judgment application.
Considerations before applying for a summary judgment
10 Although the objective of Order 14 and Order 81 is to dispose an action expeditiously, it does not mean that the Plaintiff or a Defendant in a counterclaim may willfully make an application for a summary judgment.
10.1 The applicant must be careful to only make a summary judgment application if the applicant actually believes that the other party has no defence to the claim or part of the claim.
10.2 Otherwise, if it appears to the court that the applicant knew that the contention relied on the other party will entitle him to an unconditional leave to defend the summary judgment application.
10.2.1 Under Order 14, rule 7 and Order 18 rule 6, the court may dismiss the application for a summary judgment with costs to be paid by the applicant immediately.
Soong Hou Ming Danien