Chapter 8 - Summary Judgment, O.14

Question 1

SUMMARY JUDGMENT

Overview

Answer 1

1) General principles on SJ
2) Pre-requisites of SJ
3) Requirements to invoke jurisdiction to grant SJ
4) Other requirements to invoke SJ
5) Procedures to apply for SJ
6) Outcomes of SJ hearing
7) Issues in SJ
8) Dismissal, setting-aside or appeals against SJ

Question 2

GENERAL PRINCIPLES ON SUMMARY JUDGMENT

Overview

Answer 2

1) Nature of SJ
2) Jurisdiction to grant SJ
3) Relationship between O.14 & O.81
4) Test for SJ

Question 3

GENERAL PRINCIPLES ON SUMMARY JUDGMENT

Nature of SJ

Answer 3

Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd:

• Plaintiff: O.14 is a summary procedure that allows the court to grant judgment to P without a trial;
• Object: to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim.
• Defendant: This will effectively shut D from defending himself at trial;
• Nature: In this sense, it is draconian & must only be exercised in the clearest of cases.

Question 4

GENERAL PRINCIPLES ON SUMMARY JUDGMENT

Jurisdiction to grant SJ

Answer 4

Lee Teng Siong v Lee Kheng Lian & Ors:

• O.14(1) & O.81(1) are not merely procedural in nature - they are jurisdictional.
• Non-compliance with any of the pre-requisites under these Rules render any order made by the court pursuant to the rules are of without jurisdiction & a nullity.

Question 5

GENERAL PRINCIPLES ON SUMMARY JUDGMENT

Relationship between O.14 & O.81

Answer 5

Lee Teng Siong v Lee Kheng Lian & Ors:

• O.14 is mutually exclusive from O.81;
• O.14: P cannot apply for summary judgment until appearance has been entered & court cannot exercise its jurisdiction until then;
• O.81: P can apply for summary judgment even before appearance has been entered & O.81 concerns with the forms of specific relief or damages as an alternative.

Question 6

GENERAL PRINCIPLES ON SUMMARY JUDGMENT

Test for SJ

Answer 6

Bank Negara v Mohd Ismail:

• O.14 is for cases which are virtually uncontested or incontestable;
• A defendant ought to have a leave to defend where he shows that:

1) FAIR CASE: he has a fair case for defence; or
2) REASONABLE GROUNDS: reasonable grounds for setting up a defence; or
3) FAIR PROBABILITY: a fair probability that he has a bona fide defence.

Question 7

PRE-REQUISITES FOR SJ

Overview

Answer 7

1) The law & scope

2) Meaning of fraud under O.14

Question 8

PRE-REQUISITES FOR SJ

The law & scope

Answer 8

1) The law:

O.14, r.1

2) Scope:
i) Statement of Claim:
- P must have served SOC on D.
ii) Appearance:
- D must have entered appearance;
iii) Ground of application:
- P must apply on the grounds that D has no defence to the claim.
iv) Cause of action:

• O.14, r.1(2): must NOT involve libel, slander, malicious prosecution, false imprisonment, seduction, breach of promise to marry, any allegation of fraud;
• O.73, r.5(1): action must NOT against the government.

Question 9

PRE-REQUISITES FOR SJ

Meaning of fraud under O.14

Answer 9

Letchumanan Chettiar Alagappan (as executor) & Anor v Secure Plantations Sdn Bhd (FC)

• the term ‘fraud’ in r. 1(2)(b) was construed to take the meaning as used in Derry v Peek.
  1) Ref. Derry v Peek:
• when it is shown that a false representation has been made knowingly or without belief in its truth or recklessly, careless whether it be true or false.
  2) Ref. Vincent Tan See Yin v Noone & Company & Anor:
• a claim based on fraud not within Derry v Peek will not fall within r. 1(2)(b) and the entry of summary judgment in that situation is not prevented by that rule.

Question 10

REQUIREMENTS TO INVOKE JURISDICTION TO GRANT SJ

Overview

Answer 10

1) General requirements
2) For P & D
3) Meaning of burden
4) Recent case

Question 11

REQUIREMENTS TO INVOKE JURISDICTION TO GRANT SJ

General requirements

Answer 11

National Company for Foreign Trade v Kayu Raya:

1) Requirements:

• Whether the case comes within the Order, i.e. not the cause of action specified under r.1(2)(a) & (b) or action against Govt under O.73, r.5(1).
• Whether the P has satisfied the preliminary requirements for proceeding under O.14;

2) Preliminary requirements:

• APPEARANCE: D must have entered appearance;
• SOC: SOC must have been served;
• AFFIDAVIT: Affidavit in support of the application must comply with the requirements under r.2.

3) Effect of non-compliance:
- The summons may be dismissed.
4) Effect of fully-compliance:

• The plaintiff will have established a prima facie case and he becomes entitled to judgment.
• The burden shifts to the defendant to satisfy the Court why judgment should not be given against him, by virtue of O.14, r.3 & 4.

Question 12

REQUIREMENTS TO INVOKE JURISDICTION TO GRANT SJ

For P&D

Answer 12

Cempaka Finance Bhd v Ho Lai Ying & Anor:

• In an application under O.14, the burden is on the plaintiff to establish the following conditions:

1) D must have entered appearance;
2) SOC must have been served on the D;
3) that the affidavit in support must comply with O.14, r.2;
- i.e. it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim;

• Once these conditions are fulfilled, the burden then shifts to the D to raise triable issues.

Question 13

REQUIREMENTS TO INVOKE JURISDICTION TO GRANT SJ

Meaning of burden

Answer 13

Cempaka Finance Bhd v Ho Lai Ying & Anor:

• The burden of proof remains with P & the procedure in O.14 merely eases the discharge of that burden in straightforward cases.
• Once P has crossed the Kayu Raya threshold, burden is then for D to show why judgment should not be entered against him.
• This “burden” is commonly referred to as the evidential or tactical burden.

Question 14

REQUIREMENTS TO INVOKE JURISDICTION TO GRANT SJ

Recent

HC, 2020

Answer 14

CIMB Bank Bhd v Reliance Shipping & Travel Agencies Sdn Bhd:

• Whether the issues raised are triable or otherwise is essentially a question of facts as disclosed in the affidavit evidence.

Question 15

OTHER REQUIREMENTS TO INVOKE SJ

Overview

Answer 15

1) No defective affidavit
2) No delay
3) No defective SOC

Question 16

OTHER REQUIREMENTS TO INVOKE SJ

No defective affidavit

Answer 16

1) Tan Tik Sing v Gomez Development:

• The person making the affidavit in support must verify the cause of action and state that in his belief there is no defence to the action.
• Failure to do so is fatal to any application for summary judgment;
• OTF, the plaintiff had not complied with the affidavit requirements & application was dismissed in limine.

2) Chai Cheon Kam v Hua Joo Sdn Bhd:

• The affidavit that fell short of the requirement that P must verify “facts on which the claim or part of a claim to which the application relates is based” as set-out in Form 13;
• This ground alone renders O.14 application being dismissed.

Question 17

OTHER REQUIREMENTS TO INVOKE SJ

No defective affidavit - recent

Answer 17

Kerajaan Malaysia v Nooryana Najwa Najib (HC, 2020):

• the claim for summary judgment was made but the deponent’s affidavit-in-support did not state that in her belief, there is no defence to the claim but instead P averred that D “had no defence with merits”;
• HC held that natural & ordinary meaning of the averment was that D had a defence but the defence was without merits.
• claim for SJ was dismissed on the basis that whether a defendant’s defence is with or without merits, is a question that ought to be decided at trial and could not be decided summarily.

Question 18

OTHER REQUIREMENTS TO INVOKE SJ

No delay

Answer 18

Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York:

• Court may refuse to exercise its jurisdiction if the application is made too late in the day as that would defeat the very purpose of O.14.
• However, delay cannot be a bar to an O.14 application if there is no bona fide triable issue disclosed by D.

Question 19

OTHER REQUIREMENTS TO INVOKE SJ

No defective SOC

Answer 19

United Malayan Banking Corporation Bhd v Palm Vegetable Oils (M) Sdn Bhd:

• Any defect or omission in the Statement of Claim cannot be amended by supplementing affidavit evidence;
• if the defect is one of substance, the application for summary judgment will be dismissed.

Question 20

PROCEDURES TO APPLY FOR SJ

Overview

Answer 20

1) The law & scope
2) P’s duty as applicants
3) D’s burden as opponents & how
4) Scope & example of triable issues
5) Scope & example of defence
6) Scope & example of counterclaim
7) Scope & example of some other reasons
8) Court’s duty as trier of facts

Question 21

PROCEDURES TO APPLY FOR SJ

The law & scope to file for O.14

Answer 21

1) The law:
- O.14, r.2
2) Scope:

• Mode: NoA
• Affidavit: r.2(1)
• Service: r.2(3) - within 14 days

Question 22

PROCEDURES TO APPLY FOR SJ

P’s duty as applicants

Answer 22

1) The law:

O.14, r.1 & 2

2) Scope - Cempaka Finance Bhd v Ho Lai Ying & Anor:
- In an application under O.14, the burden is on the plaintiff to establish the following conditions:

1) D must have entered appearance;
2) SOC must have been served on the D;
3) that the affidavit in support must comply with O.14, r.2;
- i.e. it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim;

• Once these conditions are fulfilled, the burden then shifts to the D to raise triable issues.
  3) Recent - CIMB Bank Bhd v Reliance & Shipping Sdn Bhd:
• It is incumbent on an applicant seeking the same to prove the following -
• (a) the statement of claim has been served on the defendant;
• (b) the defendant has entered appearance; and
• (c) the applicant has affirmed an affidavit verifying the facts on which the statement of claim is based.
• (d) The applicant is also required to affirm his belief that the defendant has no defence to the statement of claim.

Question 23

PROCEDURES TO APPLY FOR SJ

D’s burden as opponents & how

Answer 23

1) The burden:

O.14, r.3(1) - show cause, i.e. raise a defence or triable issue or counterclaim or other reasons.

2) Meaning of burden - Cempaka Finance Bhd v Ho Lai Ying & Anor:

• Once P has crossed the Kayu Raya threshold, burden is then for D to show why judgment should not be entered against him.
• This “burden” is commonly referred to as the evidential or tactical burden.

2) How:

O.14 - by “affidavit or otherwise”:

e.g.

• relying on P’s own documents; or
• raising an objection, for example, that the case is not within O14; or
• demonstrating that the statement of claim or the affidavit is defective; or
• filing an affidavit setting out the facts giving rise to a triable issue; or
• serving a bona fide defence.

Question 24

PROCEDURES TO APPLY FOR SJ

Scope & example of triable issue

Answer 24

1) Scope of triable issue - Bank Negara v Mohd Ismail & Ors:

• D must show that he has a bona fide defence to P’s claim or that there are bona fide issues in the case that can only be determined at trial i.e. triable issues);
• It is however not sufficient to merely raise an issue - it must be an issue that is bona fide triable.
• However, a complete defence need not be shown & the defence set up need only show that there is a triable issue.

2) Example of triable issues:

• Question of law - Eushun Properties Sdn Bhd v MBF Finance Bhd:
  Court held that when an issue of law has been raised, the issue becomes triable & a full trial ought to be set down.
• “No defence on merits” - LHDN v Nooryana Najwa: whether a defence has merits or not is a triable issue; an applicant needs only state if D has a defence or not, not “defence on merits” or otherwise.
  3) How to determine whether the defence is triable - CIMB Bank Bhd v Reliance Shipping & Travel Agencies Sdn Bhd (HC, 2020):
• Whether the issues raised are triable or otherwise is essentially a question of facts as disclosed in the affidavit evidence.

Question 25

PROCEDURES TO APPLY FOR SJ

Scope & example of defence

Answer 25

Lin Securities v Noone & Co Sdn Bhd:

• In objecting the summary judgment application, D is entitled to show over and above what has been pleaded in his statement of defence;
• D may show that he has other defences than those pleaded.

Question 26

PROCEDURES TO APPLY FOR SJ

Scope & example of counterclaim

Answer 26

1) Meaning of counterclaim - Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd:
- a cross-claim which a defendant has against a plaintiff but in respect of which the defendant can bring a separate action against the plaintiff if he wishes to do so.
2) Meaning of plausible counterclaim - Sheppards & Co. v Wilkinson & Jarvis:

The test for plausible counterclaim is:

• Firstly, whether or not it is reasonably possible for the defendant to succeed if the counterclaim is brought to trial.
• Secondly, whether the counter-claim is frivolous or not.

3) Effect of counterclaim - Societe Des Estains De Bayas Tudjuh v Woh Heng Mining Kongsi:
- If the defendant sets up a plausible counterclaim for an amount not less than the plaintiff’s claim, the order should not be for leave to defend but should be for judgment for the plaintiff on the claim with a stay of execution until the trial of the counterclaim.
4) Example & application - Ronald Quay Sdn Bhd v Maheswary Sdn Bhd:
- Referring to Societe des Estains, court held that stay of execution pending the trial of the defendant’s counterclaim should be allowed provided that the counterclaim set out by the defend.

Question 27

PROCEDURES TO APPLY FOR SJ

Scope & example of some other reasons

Answer 27

1) Principle - Miles v Bull:
- When D cannot pinpoint to specific issue but the court is satisfied that there are circumstances that ought to be investigated.
2) Example:

Concentrate Engineering Pte Ltd v UMBC Bhd:

• The audacity with which the fraud was carried out and the absence of an explanation by the directors of the plaintiff constitute ‘some other reason’.

Ngai Heng Book Binder Pte Ltd v Syntax Computer Pte Ltd:

• Where liability is not denied but the specific sum is disputed, summary judgment may not be entered for the sum claimed or part thereof, and that leave to defend should have been given.
  3) Recent example - Cense Media Sdn Bhd v Permata Bumimas Properties Sdn Bhd (HC, 2019):
• “some other reasons” & the principle stated in Miles v Bull are wide enough to cover the circumstances of the present case.

Question 28

PROCEDURES TO APPLY FOR SJ

Duty of court as trier of facts

Answer 28

1) Syn Lee & Co Ltd v Bank of China:

• The court should not conduct a trial based on affidavit evidence.
• Court has to decide on affidavit evidence whether there is a moral improbability of a very high degree that the defendant can possibly succeed.

2) Bank Negara v Mohd Ismail & Ors:
- Whether the issues raised are triable or otherwise is essentially a question of facts as disclosed in the affidavit evidence.

Question 29

OUTCOMES OF SJ HEARING

Overview

Answer 29

1) Leave to defend - the law & scope
2) Unconditional leave to defend
3) Conditional leave to defend
4) Judgment or orders for P - interlocutory judgment with damages to be assessed
5) Judgment or orders for P - Injunctive relief
6) Judgment or orders for P - Stay of execution
7) Judgment or orders for P - Other orders

Question 30

OUTCOMES OF SJ HEARING

Leave to defend - the law & scope

Answer 30

O.14, r.4

Question 31

OUTCOMES OF SJ HEARING

Unconditional leave to defend

Answer 31

O.14, r.4(3)

1) When:
- D is given leave to defend if he manages to raise a bona fide triable issue or for some other reasons.
2) Scope - Bank Negara v Mohd Ismail:

A defendant ought to have a leave to defend where he shows that:

• FAIR CASE: he has a fair case for defence; or
• REASONABLE GROUNDS: reasonable grounds for setting up a defence; or
• FAIR PROBABILITY: a fair probability that he has a bona fide defence.

Question 32

OUTCOMES OF SJ HEARING

Conditional leave to defend - law & scope

Answer 32

O.14, r.4(3)

1) Scope - Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd:

• When the judge has decided that the defendant has raised a bona fide triable issue, the question which he had then to consider was whether he should grant the defendants unconditional or conditional leave to defend;
• Court should look at whether there is considerable suspicion as to its bona fides.

Question 33

OUTCOMES OF SJ HEARING

Conditional leave to defend - when

Answer 33

1) Test for conditional leave to defend - Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd:
- If there is a considerable suspicion, the judge should grant the defendants leave to defend conditional upon their paying into court the amount of the plaintiffs’ claim.
2) Test for conditional leave to defend - Fieldrank Ltd v Stein:

• When the judge is left with a real doubt about the defendant’s good faith;
• In protecting the P & when there is not grave hardship on the defendant, court may order D to pay money into court as a condition before giving leave to defend.

3) The condition - MV Yorke Motors (a firm) v Edwards:

• The sum imposed as a condition must not be the one that D would never be able to pay.
• If a D is in hardship for not being able to pay for the sum, the onus is on him to put sufficient & proper evidence & make a full and frank disclosure before the Court.
• D cannot complain because a financial condition is difficult for him to fulfil - rather, D can only complain if the financial condition imposed is impossible for him to fulfil (i.e. the amount is exorbitant) and that impossibility was known or should have been known to the Court by reason of the evidence placed before it.

4) Whether the same judge can hear the main action - Law Mun & Ors v Chua Lai Seng:

• Ref. R v Camborne Justices & Brassington v Brassington:
  The test is whether a real likelihood of bias has been shown.
• A mere apprehension of bias is not enough.
• A feeling of greater happiness with another judge must be even less so.

Question 34

OUTCOMES OF SJ HEARING

Judgment or orders for P - the law

Answer 34

O.14, r.3

Question 35

OUTCOMES OF SJ HEARING

Judgment or orders for P - interlocutory judgment with damages to be assed

Answer 35

1) Datuk Mohd Ali Hj Abdul Majid v Public Bank:

• a claimant claiming damages must prove that he has suffered the damage.
• The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed.

2) Akitek Timur v Tai Kian Cheong (FC, 2014):
- The High Court ordered, pursuant to O.14, r.3, that summary judgment be entered against D with damages to be assessed & the Federal Court affirmed the order.

Question 36

OUTCOMES OF SJ HEARING

Judgment or orders for P - injunctive relief

Answer 36

Binariang Communications Sdn Bhd v I&P Inderawasih Jaya Sdn Bhd (CA):

• Injunctive relief could be obtained in an O.14 application.

Question 37

OUTCOMES OF SJ HEARING

Judgment or orders for P - stay of execution

Answer 37

Societe Des Estains De Bayas Tudjuh v Woh Heng Mining Kongsi:

• when D raised a plausible counterclaim for amount not less than P’s claim.

Question 38

OUTCOMES OF SJ HEARING

Judgment or orders for P - other orders

Answer 38

• Dismissal with costs;
• Adjournment and leave to amend or file fresh affidavit but P to 
pay D costs thrown away;
• Unconditional leave to defend and costs in cause;
• Leave to defend on payment into court of whole or part of claim 
in x days to abide event with costs in cause; in default, final 
judgment and costs;
• Judgment for P with costs and execution stayed until trial of 
counterclaim;
• Judgment for P with costs.
• Declaratory relief.

Question 39

ISSUES ON SJ

Overview

Answer 39

1) Whether issue of construction of document is appropriate under O.14;
2) Whether bank is entitled for SJ;
3) Whether issue of interpretation of statute is appropriate under O.14;
4) Whether court can determine question of law under O.14

Question 40

ISSUES ON SJ

1) Whether issue of construction of document is appropriate under O.14;

Answer 40

1) Principle - Esso Standard Malaya v Southern Cross Airways:

• If one simply has a short matter of construction with a few documents, the court, on summary application, should decide what in its judgment is the true construction.
• There should be no reason to go formally to trial where no further facts could emerge which would throw any light upon the letters that have to be construed.

2) Application - Fadzil v University Teknologi Malaysia:

• If a point taken is quite obviously an unarguable point, and the court is satisfied that it is really unarguable, the court has precisely the same duty under Order 14 as it has in any other case, i.e. to apply the rule.
• Court applies principle in Esso Standard & held that the function of the court in the present case is just to ascertain the intention of Parliament from the words used in the statues and nothing more.
• Therefore, O.14 is appropriate since no useful purpose would then be served to go formally to trial.

Question 41

ISSUES ON SJ

Whether bank is entitled for SJ;

Answer 41

Lee Wah Bank v Joseph Eu:

• Bank is entitled for summary judgment provided that the matter of substance can be decided once & for all without going to trial.

Question 42

ISSUES ON SJ

Whether issue of interpretation of statute is appropriate under O.14;

Answer 42

Fadzil v Universiti Teknologi Malaysia:

• Court applies principle in Esso Standard & held that the function of the court in the present case is just to ascertain the intention of Parliament from the words used in the statues and nothing more.
• Therefore, O.14 is appropriate since no useful purpose would then be served to go formally to trial.

Question 43

ISSUES ON SJ

Whether court can determine question of law under O.14

Answer 43

1) Whether appropriate - European Asian Bank v Punjab & Sind Bank (CA, 1983):

• It will not hesitate, in an appropriate case, to decide questions of law under Order 14;
• This is so even if the question of law is at first blush of some complexity and therefore takes ‘a little longer to understand’.
• However, if the court cannot decide it by way of O.14, it will go for trial and the argument will be rehearsed all over again before a judge, with the possibility of yet another appeal.

cf. Eushun Properties Sdn Bhd v MBF Finance Bhd:
- Court held that when an issue of law has been raised, the issue becomes triable & a full trial ought to be set down.
2) Duty of court - Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd (1987):

• the court hearing an O.14 application should work within the framework of O.14 and not embark on an exercise under O.33, r.2.
• Where the issue raised is solely a question of law pure and simple without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O.14 as in any other cases and decide on the question of law.
• This is so even if the issue of law raised is a difficult one.

Question 44

DISMISSAL, SETTING-ASIDE & APPEALS AGAINST O.14

Overview

Answer 44

1) Dismissal
2) Setting-aside
3) Appeals

Question 45

DISMISSAL, SETTING-ASIDE & APPEALS AGAINST O.14

Dismissal

Answer 45

Diamond Peak Sdn Bhd v Tweedie:

• In an O.14 application, court has no power to dismiss P’s claim.
• OTF, P proceeds by way of Order 14 against D to enforce a contract.
• At the hearing, the court takes the view that there was no concluded contract.
• It was held that court has no power in an application for summary judgment to dismiss the action.

Question 46

DISMISSAL, SETTING-ASIDE & APPEALS AGAINST O.14

Setting-aside

Answer 46

1) The law:
- O.14, r.11
2) Scope - Tetracon Engineering Sdn Bhd v Manikan Sokan:

• O. 14, r. 11 ROC is clear & it merely states “any judgment …”, and did not specify the nature or type of judgment made.
• The provision therefore makes no distinction between a judgment obtained after hearing the merits and a judgment obtained without hearing the merits.
• What r. 11 means is that as long as the judgment was obtained in the absence of a party, the aggrieved party may apply to set aside the judgment pursuant to this rule.

3) Procedures to set-aside:

Question 47

DISMISSAL, SETTING-ASIDE & APPEALS AGAINST O.14

Appeals

Answer 47

1) The law:

O.56

2) Absence of D at appeal hearing - Asia Commercial Finance (M) Bhd v Pasadena Properties Development:

• The Court will only allow reinstatement if the appeal was struck out;
• Alternatively, the parties can appeal against the whole decision.

Question 48

DISMISSAL, SETTING-ASIDE & APPEALS AGAINST O.14

Approach of court on appeal

Answer 48

1) National Foreign Trade v Kayu Raya:

• where a Judge has decided there is a triable issue on a question of fact, the appellate court would be unlikely to interfere.
• h/ever, if appellate court l differed from the Judge on issues of law, the appellate should substitute its own view for that of the Judge and give judgment for the plaintiffs under O.14, r.3.
• In practice, appellate court will simply approach an appeal of this kind as a rehearing.

2) United Malayan Banking Corporation Bhd v Pembinaan Ksy Sdn Bhd:

• If the trial judge has dismissed the application & decided based on the evidence that there is a triable issue on a question of fact, appellate court will be unlikely to interfere with the decision & hold that there is no triable issue and thus allow P to enter summary judgment against D.
• i.e. O.14 application > trial judge dismissed on the ground that there is a triable issue on fact or evidence > P & D need to go to trial > P appealed to enter O.14 against D for summary proceeding > appellate court will unlikely to interfere > appeal dismiss > P&D need to go to trial;
• However, if the appeal raises a question of law, this court may be more ready to interfere.
• i.e. O.14 application > trial judge dismissed on the ground that there is a triable issue on law > P & D need to go to trial > P appealed to enter O.14 against D for summary proceeding > appellate court will interfere > appeal may be allowed > P& D do not need to go to trial if appeal is allowed.