ABDUL MALIK ISHAK J

A preliminary objection was raised by Mr Azad Basher, learned counsel for the second defendant, to the effect that proceedings in which an alternative allegation of fraud is involved must be begun by writ and not by way of originating summons. Mr Sowaran Singh, learned counsel for the plaintiff, argued to the contrary and he said that the procedure was perfectly in order and was not fatal to the continuance of the action.

Order 5 r 2(b) of the Rules of the High Court 1980 (‘the RHC’) provides (the relevant part material to this judgment) that proceedings in which a claim made by the plaintiff is based on an allegation of fraud must be begun by writ. In Re 462 Green Lane, Ilford Gooding v Borland Re Engall's Agreement [1953] 2 All ER 503:

In those circumstances, therefore, in this case there must be pleadings; there must be discovery; the action must be at least continued as though it had begun by writ. This is not a technicality; it is a most important matter of substance because it is only by this means that the parties can see perfectly clearly what are the serious issues involved and be sure of having made available to them by discovery all the relevant documentary evidence which generally plays such an important part in these cases. Commencing the proceedings by writ would in the circumstances of this case involve only the very small additional expenditure of issuing the writ, and on the rules as they stand it seems to me that the requirement does exist that, whereas here there is an allegation of fraud, the proceedings must be so started and cannot be continued as though commenced by writ when in fact commenced by originating summons.

Seah Choon Chye v Saraswathy Devi

However, the affidavits contain questions of facts which are disputed and involve allegations of fraud and implied misconduct not only against the respondent but against a third party. Where fraud is alleged it has long been the practice in countries where the English system of law operates for the courts, in civil cases, to require proof of a high standard (per Azmi CJ (as he then was) in Ratna Ammal v Tan Chow Soo Nederlandsche Handel-Maat-schappij NV (Netherlands Trading Society) v Koh Kim Guan

In E'singam v Dr Sundram & Ors

The granting of interlocutory injunctions is provided for under O 50 r 6 of the Rules of the Supreme Court. It is quite impossible to have an interlocutory injunction unless there is a suit pending nor is it possible for the court to decide the other issues in the notice of the motion.

The relief that the applicant is asking for in these proceedings can only be decided after the calling of evidence to establish whether or not the annual general meeting was lawfully constituted and whether or not the election of the officers was in accordance with the constitution of the club. These are pure matters of fact.

Later, Adams J concluded in these words (at the same page):

What the applicant should have done in this case was to have taken out a writ and if he wished to ask for an interlocutory injunction to have served notice of motion asking for an interim injunction with the service of a writ. For the above reasons, I decided that the procedure adopted in this matter was misconceived and I therefore dismissed the application with costs.

The question raised in the appeal before the Federal Court in Yap Hong Thin & Anor v Seenevasam s 16(1) of the Control of Rent Act 1966

These cases and many more which need not be discussed here singularly lay down a basic principle that where a gross irregularity exists the court is not bound to condone it by granting costs to the defaulting party. I have said elsewhere that the RHC has the force of law and it should not be ignored or overlooked. The observance of the RHC is therefore of considerable importance in litigation and it is the mark of a skilful and experienced lawyer to know how best to employ the rules for the practical and tactical advantage of his client. The general purpose of t