Chapter 14 - Interim Payment, O.22A

Question 1

INTERIM PAYMENT

Overview

Answer 1

1) The law & scope
2) Purpose & rationale to order interim payment
3) Refund of interim payment
3) Powers of HC to order for interim payment
4) Procedures for application of interim payment
5) Outcomes of hearing
6) Recent application

Question 2

INTERIM PAYMENT

The law & scope of interim

Answer 2

1) The law:

O.22A

2) What is interim payments - Jamil bin Harun v Yang Salbiah:

• Interim payment is a payment on account of any damages, debt or other sum excluding costs;
• which a party may be held liable to pay to or for the benefit of other party to the proceedings;
• if a final judgment or order of the court in proceedings is given or made in favour of the other party.

3) What is interim payment - Josu Engineering Construction Sdn Bhd v TSR Bina Sdn Bhd:

• payment paid to a plaintiff on account of final damages, that is before the assessment of damages has been completed.
• They are paid primarily to overcome financial difficulties which a plaintiff might experience pending final assessment.

Question 3

INTERIM PAYMENT

Purpose & rationale to order for interim payment

Answer 3

Josu Engineering Construction Sdn Bhd v TSR Bina Sdn Bhd:

• to alleviate hardship or prejudice to the plaintiff during the period from the institution of the proceedings up to the date of trial.
• OTF, liability is awarded in favour of P but the assessment of damages could not be proceeded expeditiously due to two applications for discovery of documents filed by the defendant.
• Application for interim payment is allowed.

Question 4

INTERIM PAYMENT

Refund of interim payment

Answer 4

New Hampshire Insurance Co Ltd:

• After the determination of the suit;
• if the Plaintiff is found that he is not entitled to the payment;
• The sum has to be refunded & may have to pay with interest.

Question 5

INTERIM PAYMENT

Powers of HC to order for interim payment

Answer 5

1) The law:
- S.25A CJA
2) Discretion of court - Shearson Lehman Bros Inc v Maclaine Watson & Co:

• The court has a discretion to make order for interim payments;
• It depends on the justice of the case as well as admission of liability of a party.
• Under S.25A CJA, High Court is vested with powers to make orders for interim payments.

Question 6

INTERIM PAYMENT

Procedures for application

Answer 6

1) Procedures - O.22A:

Mode:
Affidavit contents:
Service:

2) P’s standard & burden of proof - Josu Engineering Construction Sdn Bhd v TSR Bina Sdn Bhd:

English position - Ref. Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd & Ricci Burns Ltd v Toole:

• the standard of proof required is more than a mere prima facie case is required but not proof beyond a reasonable doubt;
• it is a civil burden on the balance of probabilities.
• P has to show a very strong claim against the defendant, where liability is often easily established.
• It has to be shown that the claimant will win on the balance of probabilities, but at the upper end of the scale, the burden being a high one.
• Being likely to succeed at trial is not enough.

3) Example - David Chelliah v. Monorail Malaysia Technology Sdn Bhd & Anor:

• there is no necessity for the plaintiff to show that he would suffer prejudice if he did not obtain an interim payment;
• no necessity to show that a particular sum is required to cover a need.
• In awarding an interim payment, the court is not concerned with how the money is to be spent.

Question 7

INTERIM PAYMENT

Objection of interim payments

Answer 7

Grounds for objection:

• On merits, i.e. serious doubt that P will recover anything.
• On quantum, i.e. contributory negligence.
• Technical objection, i.e. application is pre-mature.

2) Example - Josu Engineering Construction Sdn Bhd v TSR Bina Sdn Bhd:

• D objects on the ground that application is pre-mature since application for assessment of damages have been filed.
• Court overruled the contention, O.22A ordered.

Question 8

INTERIM PAYMENT

Outcomes of hearing

Answer 8

1) Order for interim payment in respect of damages - O.22A, r.3;
2) Order for interim payment in respect of sums other for damages - O.22A, r.4;
3) Manner of payment - O.22A, r.5;
4) Directions as to further conduct - O.22A, r.6;
5) Order for non-disclosure - O.22A, r.7;
6) Adjustment on final judgment or order of discontinuance - O.22A, r.9:

Question 9

INTERIM PAYMENT

Recent application

HC, 2019

CA, 2016

Answer 9

1) Josu Engineering Sdn Bhd v TSR Bina Sdn Bhd (CA, 2016):

• the applicant had shown hardship in the circumstances & had proved that if the action proceeded to trial (or for assessment of damages) it would obtain judgment for substantial damages against the respondent in respect of the performance bond money within the meaning of O. 22A.
• application for interim payment is allowed.

2) Soo Hoi Ling & Ors v Khoh Keow Bok (Sued as co-administrator) (HC, 2019):

• Applying the principles to the facts, HC held that plaintiffs have failed to demonstrate that liability in this case is easily established or that they have a very strong claim against the defendants or that they will win on the balance of probabilities.
• A careful consideration of the facts shows that there are serious disputes of facts.
• Application for interim payment is dismissed.