Chapter 10 - Disposal of Case on Point of Law, O.14A

Question 1

DISPOSAL OF A CASE ON A POINT OF LAW

Overview

Answer 1

1) General principles on O.14A
2) Requirements for O.14A
3) Procedures to file for O.14A
4) Examples of O.14A application

Question 2

GENERAL PRINCIPLES ON O.14A

Overview

Answer 2

1) Prior to O.14A

2) Principles of O.14A

Question 3

GENERAL PRINCIPLES ON O.14A

Prior to O.14A

Answer 3

Carl-Zeiss-Stiftung v Herbert Smith:

• Where there is a point of law which is going to be decisive of the litigation, advantage ought to be taken of the facilities afforded by the rules of court to have it disposed of at the close of pleadings or very shortly afterwards.

Question 4

GENERAL PRINCIPLES ON O.14A

Principles of O.14A & difference with O.33, r.2

Answer 4

1) Principles - Jansi Rani @ Indrani v Kumpulan Wang Simpanan Pekerja (HC, 2020):

An issue is only suitable for determination under Order 14A in the following circumstances:

(i) points of law have been stated in clear and precise terms; and the facts disclosed by the pleadings and affidavit evidence are sufficient for the Court to make such determination (see Seloga Jaya Sdn Bhd v. UEM Genisys Sdn Bhd [2008] 2 CLJ 686); and
(ii) the facts involved in the determination of the said issues must not be in dispute and would not require further adjudication (see Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337)
2) Difference with O.33, r.2 - Dayapi Holdings Sdn Bhd v Arab-Malaysian Finance Bhd:

• When the trial is at earlier stage, O.14A is more appropriate;
• O.33, r.3 is more appropriate if the trial is already at advanced stage.

Question 5

GENERAL PRINCIPLES ON O.14A

Principles of O.14A

Answer 5

Petroleum Nasional Bhd v Kerajaan Negeri Terengganu (CA):

1) GOVERNING PRINCIPLES:
- the principles that govern an application under O.33 r.2 apply equally to O.14A.

2) HARDSHIP & DIFFICULTY:
- even if the case appears to be or is complicated, the court must not shun away from considering the applicability of O.14A and O.33 r.2.

Question 6

REQUIREMENTS O.14A

Overview

Answer 6

1) Duty of court;
2) The test to invoke O.14A;
3) Requirements for the facts of the case.

Question 7

REQUIREMENTS OF O.14A

Duty of court

Answer 7

Petroleum Nasional Bhd v Kerajaan Negeri Terengganu (CA):

In dealing with O.14A application, court ought to consider:

• (a) Whether the action is suitable to be disposed of by way of O. 14A
  application.
• (b) Whether the material facts relating to the subject-matter of the claim are not in dispute.

Question 8

REQUIREMENTS OF O.14A

The test to invoke O.14A

Answer 8

1) Low Chee & Sons Sdn Bhd v Extreme System Sdn Bhd (CA):
- SUBSTANTIAL: O.14A procedure must dispose of a substantial part of the action.
2) Petroleum Nasional Bhd v Kerajaan Negeri Terengganu (CA):

• the whole case does not have to be disposed of - it is sufficient if substantial matters can be disposed of.
• The ultimate question is whether “the Court be able to dispose of the case or the major part of the case or the most significant issue in the case under O.14A.”

Question 9

REQUIREMENTS OF O.14A

The requirements on the facts of the case

Answer 9

1) Low Chee & Sons Sdn Bhd v Extreme System Sdn Bhd (CA):

• NO DISPUTE: all material facts relating to the subject matter of the claim must be undisputed or admitted.
• NO ASSUMPTION: O.14A cannot be invoked on the basis of assumed facts & there is no question of “assuming all the facts were true for the purpose of an O.14A application.
• NO HYPOTHETICAL FACTS: a determination under O.14A should not be based on assumed or hypothetical facts.
• SUBSTANTIAL: O.14A procedure must dispose of a substantial part of the action.

2) Lembaga Pembangunan Industri Pembinaan Malaysia v Konsortium JGC Corporation (FC):

• In an O.14A application, it is crucial that all the necessary and material facts relating to the subject matter of the question have been duly proved or admitted.
• There must be no substantial factual disputes left to be resolved.

Question 10

APPLICATION FOR O.14A

Procedures to file for O.14A

Answer 10

O.14A, r.2:

• Mode: NoA;
• May also be made orally during any interlocutory applications.

Question 11

EXAMPLES OF O.14A

Where O.14A is appropriate

Answer 11

Savant-Asia Sdn Bhd v Sunway OMI-Pile Construction Sdn Bhd (2007):

• The advertisement of the petition was a mandatory requirement in the winding-up proceeding and could not be dispensed with, therefore the advertisement was absolutely privileged.
• Accordingly, this was a fit and proper case to be decided under O.14A;
• i.e. on the issue of the application of the relevant provisions of the Companies Act 1965 and the Winding-up Rules to the facts, which were not in dispute.

Question 12

EXAMPLES OF O.14A

Where O.14A is inappropriate

Answer 12

1) Jansi Rani @ Indrani v Kumpulan Wang Simpanan Pekerja (HC, 2020):

• The issues raised cannot be resolved by way of affidavit evidence, as it would require viva-voice evidence from witnesses.
• The Plaintiff also had raised complex issues of law, for example as to whether SPF being a trust established under a statute or there being a constructive trust.
• This Court also found that parties are in constant disagreement with each other, regarding the SPF and the circulars.
• Application for O.14A is dismissed.

2) SU’OT TEBARI v. LAND CUSTODY AND DEVELOPMENT AUTHORITY (LCDA) & ANOTHER APPEAL
(CA, 2020):

• The present action was not suitable for disposal by way of O. 14A of the ROC.
• The relevant facts were clearly in dispute and it was not appropriate to determine the questions of law by relying on affidavit evidence alone.