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2023 MarsdenLR 419
HIGH COURT MALAYA KOTA BHARU
TUAN KHAIRUL ANNUAR TUAN YUSUF – Appellant
Versus
AZAHAR MOHD SHARIFF & ORS – Respondent
[Civil No: DA-22NCVC-64-11/2019]
Particulars must be provided to ensure transparency in pleadings and prevent trial ambush, as mandated by the Rules of Court.
Headnote:(A) Rules of Court 2012 - Order 18 Rule 12 - Application for further and better particulars - The Plaintiff sought particulars regarding alleged misappropriation and breach of trust in Defendants' Defence - Court emphasized that particulars are necessary to inform the other side of the case they have to meet and prevent surprise at trial (Paras 5, 8, 19).
(B) Discretion of Court - The Court has discretion to order particulars and must ensure parties disclose material facts to avoid injustice (Paras 11, 13).
(C) Distinction between particulars and evidence - The Court clarified that particulars are primary facts relied upon to prove disputed facts, while evidence is what proves those facts (Paras 15, 20).
Facts of the case:
The Plaintiff alleged Defendants restricted access to premises and claimed misappropriation and breach of trust. Defendants claimed entry was justified as tenants and denied misappropriation claims.
Findings of Court:
The Court found Defendants' Defence lacking in particulars and mandated disclosure to ensure fairness.
Issues: The main issues were whether the particulars sought were necessary and the distinction between particulars and evidence.
Ratio Decidendi: The Court ruled that particulars must be provided to ensure transparency in pleadings and prevent trial ambush, emphasizing the necessity of full disclosure.
Result: Plaintiff's application granted; Defendants ordered to provide particulars.
Key Points: - (!) (!) : Law on O 18 r 12(3) ROC 2012; discretionary power to order particulars. - (!) - (!) : Principles from Ling Liong Sik v Krishna Kumar; purposes of particulars (informing opponent, preventing surprise, guiding evidence, limiting pleadings). - (!) - (!) : Plaintiff's contention that misappropriation/breach of trust require particulars; Defence lacking particulars. - (!) - (!) : Parties bound by pleadings; pleadings define the case and to be disclosed; no trial ambush. - (!) - (!) : Distinction between facts (particulars) and evidence. - (!) : Trial must involve full and frank disclosure; no trial by ambush. - (!) - (!) : Court's stance on distinction between evidence and particulars; discovery/interrogatories as tools to check authenticity and prepare; applicability to avoid surprise. - (!) : Conclusion.
Question 1?
What is the scope and necessity of providing further and better particulars under Order 18 Rule 12 ROC 2012?
Question 2?
What distinguishes particulars from evidence, and how should Courts treat requests for particulars versus seeking evidence?
Question 3?
What are the consequences for a party bound by its pleadings in relation to disclosing material facts and avoiding trial ambush?
| Table of Content |
|---|
| 1. application for further particulars in defense. (Para 1 , 2 , 3 , 4) |
| 2. law on further and better particulars. (Para 5 , 6 , 7) |
| 3. plaintiff's need for particulars due to serious allegations. (Para 8 , 9 , 10) |
| 4. parties bound by their pleadings. (Para 11 , 12 , 13) |
| 5. distinction between particulars and evidence. (Para 14 , 15 , 16 , 17 , 18) |
Introduction
[1] This is an application by Plaintiff vide E 55 pursuant to O 18 Rule 12 Rules of Court 2012 ( ROC 2012) for an order that the 1st, 2nd, 3rd and 5th Defendants to serve to the Plaintiff further and better particulars on their Defence dated 3 February 2020 in accordance with the request served on the said Defendants by way of the Plaintiff's solicitor dated 19 October 2020 annexed as Annexure A.
[2] In general, in Annexure A, it can be divided into 2 parts. The first part is in regards to para 3 which involved alleged misappropriation, breach of trust and wrongdoings. While the second part is in regards to paragraph 6 which involved alleged tenancy. The learned counsel for the Plaintiff informed this Court that due to the amendment of Defence, the second part of the Annexure A is no longer relevant.
[3] This application emanates from the Writ of Claim and Statement of Claim filed by the Plaintiff against the Defendants for an alleged act by the Defendants denying and restricting the Plaintiff access into the premise and had depriving the Plaintiff's rights to quiet and exclusive possession and enjoyment of the premise.
[4] In their defence, the Defendants pleaded that they had entered the premises in the capacity as tenant of the premises. It was also pleaded that the entry was justified by virtue of misappropriation, breach of trust and wrongful acts allegedly done by the Plaintiff.
Law On O 18 R 12
[5] The law on further and better particulars is stipulated in O 18 Rule 12 Rules of Court 2012 as follows:
Order 18 - Pleadings
Rule 12 - Particulars of pleading
(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words-
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.
(1A) No party shall quantify any claim or counterclaim for general damages.
(2) Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed three folios, they shall be set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been served and, if so, when, or is to be served with the pleading.
(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.
(4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party-
(a) where he alleges knowledge, particulars of the facts on which he relies; and
(b) where he alleges notice, particulars of the notice.
(5) An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.
(6) Where the applicant for an order under this rule did not apply by letter for the particulars he requires, t
