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Question 1

In order for the defendant to challenge the application for the summary judgement defendant

may show that there is a triable issue. Defendant is required to show that there is an issue or

question in dispute which ought to be tried

In Jacobs v Booths Distiller Co, the courts role at the hearing of an application is not to

delve into the merits of the issues raised by the defendant. The court is merely required to

determine whether an issue has been raised which should be adjudicated upon at trial. Once a

triable issue has been raised, it is not for the court to consider whether the defendant is likely

to succeed or fail on it.

The court will not find a triable issue for the purpose of granting leave to defend on the basis

of the defendants allegation alone. Triable issue is depending on the facts or law arising from

each case.

The circumstance that may amount to Triable Issue depends on the facts or law arising from

each case as disclosed in the affidavit evidence. In NguiMuiKhin v Gillespie Bros [1980] 2

MLJ 9, the defendant guarantors raised the issue that guarantees in question were

moneylending transaction and thus unenforceable against the defendants. It was held that the

plaintiff did not operate a money lending business so that the defendants statement or

defence actually did not disclose any serious defence warranting a trial at all. Therefore there

is no triable issue and theplaintiffs application for summary judgements was allowed.

Furthermore, in Ng YikSeng v PerwiraHabib [1980] 2 MLJ 83, the defendant raised the issue

of the genuineness, as to their signature in a guarantee document. Therefore the court heldthat there is a triable issue. In SM Appaduray v R Ananda [1982] 1 MLJ 292, the defendant

was challenging to the accuracy of the survey in respect of a land encroachment. Therefore

the court held there was a triable issue.

In UNP Plywood SdnBhd v HSBC Malaysia [2010] 5 MLJ 323, the defendant raised the

issue with regard to the illegality of the foreign exchange contracts, issue of estoppel and the

plaintiff did not suffer any damage. Therefore, the court held there was triable issue.

However as referring to the question, oftentimes the defendant is unable to challenge the

application of order 14 of summary judgement as failed to show any triable issue. There areought to be some other reason to challenge. Eventhough the defendant may not be able raise a

triable issue defence, he can argue that granting summary judgement may not be appropriate.

In Miles v Bull [1969] 1 QB, the word there ought for some other reason to be a trial If all

the relevant facts are under control of the plaintiff and the defendant would have to seek to

elicit by discovery, interrogatories and cross-examination those who will aid her.

Therefore the word there ought for some other reason to be a trial seems to give the court

adequate powers to confine Order 14 to be a good servant and prevent it from being a bad

master and order 14 is for the plain and straightforward, not for the devious and crafty.

When the judge is not entirely satisfied that there is a genuine defence, but believe that the

defendant should have the benefit of the doubt because it cannot be certain that the case is

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entirely devoid of any triable issue, therefore the court will give conditional leave. Lord

Devlin in Fieldfrank Ltd v Stein [1961] 3 ALL ER I think that any judge, who has sat in

chambers in Order 14 summonses had had the experience of a case in which, although he

cannot say for certain that there is not a triable issue, nevertheless he is left with a real doubt

about the defendants good faith and would like to protect the plaintiff, especially if there isnot grave hardship on the defendant in being made to pay money into court.

In MV Yorke v Edwards [1982] 1 ALL ER 1024, the house of lord accepted the contention

that a financial condition which the defendant would find impossible to fulfil would be

tantamount to giving judgement for the plaintiff. Conditional leave would not be appropriate

in such circumstances because it would deprive the defendant of a trial notwithstanding that

the court has determined that there is or may be an issue or question which ought to be treid.

However the house make it clear the onus was on the defendant to put sufficient and proper

evidence before the court as to why he will not be able to comply with the conditions. He

cant complain that a financial condition is difficult to fulfil but must show that it isimpossible for him to fulfil.

Therefore in a simpler word if the defendant can show that there is a question which ought to

be tried, the court will grant him leave to defend the action. However, the court cannot

impose condition that is impossible for the defendant.

As conclusion, if the defendant failed to prove a triable issue to challenge the application of

order 14 but still if the defendant can show that there is a question ought to be tried, the court

will proceed to the trial.