Sources of civil procedure

civil procedure means procedure to be followed in civil cases.

Applicability of the Laws of the United Kingdom
s. 3 Civil Law Act
(CLA) 1956

Subject to any written law in force, the court shall apply the common law of England
and the rules of equity.

s. 5 Civil Law Act

(CLA) 1956

Subject to any written law in force, English law shall be applied in commercial
matters.

Therefore, we can come to a conclusion that:- Any written Malaysian law which provides for
the civil procedure will prevail over common law. However, if common law and equity conflict,
then equity will prevail.
Case : SA Andavan v Registrar of Titles Negeri Sembilan & Ors [1977] 2 MLJ 220
Held: litigation is governed by the rules of procedure. Parties in civil suit should observe the
rules of procedure with meticulous care.
Order 1A regards chall be to justice
- The court has discretion to prevent injustice by mere non-compliance of ROC
Case: DYAM Tunku Ibrahim Ismail Ibni Sultan Iskandar v Datuk Captain Hamzah bin Mohd Noor
and Another Appeal [2009] 4 MLJ 149
Held : intentional disregard of ROC, order 1A in applicable
Sources of CP
Statutes : Courts of Judicature Act 1964, Subordinate Courts Act 1948, Civil Law Act 1956,
Specific Relief Act 1950, Evidence Act 1950
Rule: ROC, Subordinate Courts Rules 1980, Rules of the Federal Court 1995,Rules of the Court of
Appeal
Order 2 : effect of non-compliance
Shall be treated as irregularity instead of nullity
Case: Pusavathy v MP Klang [2008] 6 MLJ 672
Held: Order of sale irregular shall not nullify the proceedings
noncompliance that does not occasioned any injury & caused no injustice & where they can be
sufficiently compensated by the court, the court has a constitutional duty to hear the matter

O2 R1(3)- courts discretion to allow amendments to cure irregularity

Exceptions:
1. Plaintiff not in existence of the date of writ
2. Failure to renew writ
3. Entering default in judgment in an action for specific performance
4. Failure to include an intitulement (heading) of ROC/ statute which court is moved
There are some irregularities which cannot be cure by court,
1. Failure to renew wirt
2. Default judgment entered prematurely
3. Failure to comply with prescribed forms
4. Action which does not comply with requirement of existence of a party
Case : Shell Malaysia Trading Sdn Bhd v Leong Yuet Yeng & Ors [1990] 3 MLJ 254,
held :JID which is wrongly entred
case: Dynacost (S) Pte Ltd v Li Meng Siang & Ors [1989] 3 MLJ 45
held: an affidavit which does not comply with the requirements of Order 41
O2 R2- set aside irregularities
-By way of notice of application
-any fresh steps after aware of the irregularities amounts to waiver or allow suit to proceed
waiver of right to object
Case: Abdul Khalid v Party Islam Semenanjung Msia [2002] 1 MLJ 10
Held : within reasonable time
Case EG Tan Co v Tan Ching San [193] 1 LJ 256
Held : an application to set aside irregularities after 5 years was rejected
Preliminary matters
-Phrases are defined in Or1 R4
-O1 r7 - forms in appendix A, must be strictly complied. Permissible variation to forms
Interpretation of statutes
S54(1)(a) of interpretation act the day act is done is excluded
O3R2(4) clear days the day the act is done & it happenend
O3R4- applies to work in registry, weekend does not count, serving in opponent not included
O3R5 extension discretion
Factors : delay in application, cogent reason, likelihood of injustice
Procedure orally / nature of application
Application of time at be allowed after expirer of time