JUDGMENT

Wong Siong Tung J:

Introduction: Matters Arising For Appeal

[1] The appellant is the defendant in the Sessions Court , while the respondent is the plaintiff. For clarity and convenience, the Court will continue to refer to the parties as they were in the Sessions Court , with the appellant as the defendant and the respondent as the plaintiff.

[2] By a Notice of Appeal dated 2 December 2024, the defendant appeals against the decision of the Sessions Court in respect of the following three matters:

(a) the plaintiff's Notice of Application dated 24 June 2022 for summary judgment against the defendant, which was granted by the Sessions Court ;

(b) the defendant's Notice of Application dated 1 March 2024 to amend the Defence, which was dismissed by the Sessions Court ; and

(c) the defendant's Application dated 15 October 2024 for an extension or abridgment of time to file written submissions in respect of the plaintiff's summary judgment application.

[3] Three (3) Records of Appeal have been filed under encls 2, 3, and 4, containing several duplicated or identical documents previously submitted in the lower Court .

[4] The defendant's appeal is filed under O 55 r 5 of the Rules of 2012 and proceeds by way of a rehearing. The Court shall reconsider the matters de novo, as if they are being presented for the first time.

See: O 55 r 2 of the Rules of 2012, s 29 of the Courts of Judicature Act 1964 and Golden Quantum Acres Sdn Bhd v. SSU Management Services Sdn Bhd; [2014] 10 CLJ 320 at para 23.

Principles Of Law

[5] The Court will consider and deal with the plaintiff's Notice of Application dated 24 June 2022 for summary judgment under O 14 of the Rules of 2012, together with the defendant's application to amend their Statement of Defence, as well as the defendant's application for abridgment or extension of time to file written submissions.

[6] In a summary judgment application, once the plaintiff satisfies the preliminary requirements under Order 14 rr 1 and 2 of the Rules of 2012, the burden shifts to the defendant to show that there are triable issues or to provide reasons why judgment should not be granted. The defendant is not bound by their Statement of Defence if already filed.

See: Order 14 r 3 and r 4(1) of the Rules of 2012; National Company For Foreign Trade v. Kayu Raya Sdn Bhd; [1984] 2 MLJ 300; [1984] 1 CLJ (Rep) 283; Lin Securities Pte. v. Noone & Co. Sdn. Bhd. & Anor. (2); [1989] 1 MLJ 321; [1989] 2 CLJ 76; Woolley Development Sdn Bhd v. Mikien Sdn Bhd; [2008] 1 MLJ 585; [2008] 2 CLJ 303; Punca Klasik Sdn Bhd v. Seok Kim Leow; [1996] 5 MLJ 241; [1996] 4 CLJ 399 and Cempaka Finance Bhd v. Ho Lai Ying & Anor; [2006] 2 MLJ 685; [2006] 3 CLJ 544; [2007] 1 AMR 525 (FC)

See also: Malaysian Civil Procedure Vol I - 2024 edn., para 14/4/1 to 14/4/4

[7] The Rules of Court do not preclude the defendant from relying on the matters set out in the proposed amended Statement of Defence to establish triable issues and to oppose the plaintiff's summary judgment application.

[8] As the plaintiff has filed an application for summary judgment, it is for the defendant to raise any matters they intend to rely on, including those in the proposed amended Defence, to resist the application. If the proposed amendments disclose triable issues regarding the plaintiff's claim, the Court may grant leave to amend the Defence and allow the matter to proceed to trial.

[9] Conversely, if the proposed amendments do not raise any triable issues, there is no basis or justification for granting leave to amend the Defence.

[10] Filing an application to amend the Statement of Defence in these circumstances and expecting it to be heard before the plaintiff's summary judgment application appears to be a tactical maneuver to delay the plaintiff's summary judgment application, raising doubts about the bona fide nature of the amendment application.

[11] The defendant's application for abridgment or extension of time to file and serve written submissi