The court's standard for interim payment is based on the likelihood of the claimant obtaining damages, emphasizing the importance of alleviating hardship pending full assessment.

Introduction

[1] The appeal arose out of the Seremban High COURT's decision dated 23 May 2014 dismissing the appellant's application for interim payment under O 22A of the Rules of 2012 ("RC 2012").

[2] There are no written grounds of judgment of the High COURT. We do not, therefore, have the benefit of the High COURT's reasoning for dismissing the application.

Facts Of The Case

[3] The facts giving rise to this appeal may be summarised as follows:

(a) On 5 January 2014, the appellant commenced an action against the respondent for breach of contract. The respondent in turn filed its defence and counter-claim against the appellant also for breach of contract.

(b) On 6 February 2007, the High COURT allowed the appellant's application to strike out the respondent's defence and counter-claim pursuant to O 34 of the Rules of the High 1980 and entered judgment on liability in favour of the appellant.

(c) On 2 March 2007, the respondent filed an appeal to the COURT of Appeal against the decision of the High COURT dated 6 February 2007 (the 1st appeal).

(d) On 4 April 2007, the respondent filed an application to set aside the judgment dated 6 February 2007 and to reinstate the defence and counter-claim. Following thereto, the respondent withdrew the 1st appeal.

(e) On 3 February 2008, the respondent's application was dismissed by the High COURT on the ground that the proper cause of action should have been by way of appeal to the COURT of Appeal.

(f) On 4 February 2009, the respondent filed an appeal to the COURT of Appeal against the decision dated 3 February 2009 (the 2nd appeal).

(g) On 16 August 2011 the 2nd appeal was dismissed by the COURT of Appeal.

(h) The respondent then applied for leave to appeal to the Federal COURT. The leave application was dismissed on 14 February 2012.

(i) On 30 August 2012, the appellant filed an application for assessment of damages; and

(j) On 28 May 2013, the appellant filed an application under O 22A of the RC 2012 for an order for interim payment. As stated earlier, the High COURT dismissed the appellant's application. Hence, this appeal.

The Appeal

[4] The appellant assailed the impugned decision on various grounds. However, we find that the appeal can be disposed of on the following two key issues:

(a) whether the appellant's application for interim payment is pre-mature; and

(b) whether the circumstances of this instant appeal do not warrant an order for the interim payment to be made.

[5] Learned counsel for the respondent submitted that the appellant's application for an interim payment is pre-mature. In support of his submission, reliance was placed on the decision of the High COURT in Loy Teck Chye v. Antah Sedgwick Chartered Insurance Brokers Sdn Bhd , where Mohamed Apandi Ali J (as he then was) said:

"Since the Plaintiff has already filed an application for assessment of damages vide encl 59, the Plaintiff's application for an interim payment is pre-mature and should be refused. If is only upon assessment that the COURT can determine what sum that can properly be said to be due to the appellant.".

[6] With respect, on the factual matrix of this instant appeal, we are unable to agree with the submission.

[7] At the outset, it is important to have the term "interim payment" clearly defined. "Interim payment" is 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 (See N