lex borneo high court rules

92. Miscellaneous.

2007-09-09T02:41:00.001-07:00

92. Miscellaneous.
ORDER 92
MISCELLANEOUS
1. Language of documents. (O. 92 r. 1)
Any document required for use in pursuance of these rules shall be in the national language, and may be accompanied by a translation thereof in the English language except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) must be prepared in accordance with rule 6(5) of that Order; [Am. PU(A)342/2000 w.e.f.22 Sept 2000];
Provided that any document in the English language may be used as an exhibit, with or without a translation thereof in the national language.
2. Seal of the Court. (O. 92 r. 2)
Every document issued by the Registry for which Form marked with the word "seal" as prescribed in Appendix A must bear the seal of the Court
3. Rejection of irregular documents. (O. 92 r. 3)
The Registrar, or any officer charged with the duty of receiving and filing any document, may reject it if it does not substantially comply with these rules.
3A. Transfer of proceedings. (O. 92, r. 3A) .
(1) An order to transfer any proceedings from a High Court to another shall be made with the approval of the Chief Judges.
(2) An order to transfer any proceedings from a Judge of a High Court to another Judge of that High Court shall be made with the approval of the Chief Judge of that High Court.
(3) Before making any order to transfer any proceedings from a subordinate court to a High Court or from a High Court to a subordinate court or from a subordinate court to another subordinate court, the Chief Judge shall take into consideration whether the High Court or subordinate court which shall hear the case is located at or nearest to the place where-
(a) the cause of action arose;
(b) the defendant, or one of the several defendants, resides or has his place of business;
(c) the facts on which the proceedings are based exist or are alleged to have occurred; or
(d) for other reasons it is desirable in the interests of justice that the proceedings should be had.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
3B. Practice directions. (O. 92, r. 3B) .
The Chief Judge after consulting the Chief Justice may issue such practice directions as may be necessary for the better carrying out or giving effect to the provisions of these rules, and those of the Subordinate Courts Rules 1980.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
4. Inherent powers of the Court. (O. 92 r. 4)
For the removal of doubts it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.

91. Court Fees

2007-09-09T02:38:00.001-07:00

91. Court Fees
Order 91
1. The fees and percentages in Appendix B shall be taken and paid in all causes and matters in the High Court.
Provided that nothing herein shall affect any fees fixed by any written law not by these rules expressly or impliedly repealed.
2. And provided that in proceedings by or against a Government or a department of a Government, the Government or the department of the Government, as the case may be, shall not be required to pay any Court fees, but in any case any decree, order or judgment shall provide that costs be paid by any party to the proceeding to such Government or such department of the Government, as the case may be, the amounts which would have been payable as fees but which for this proviso have not been paid, shall be payable by such party, have not been paid, shall be payable by such party, as, when recovered, shall be paid to the Registry of the Court at which such decree, order or judgment was given.

90. Lodgment in Court and Payment to Sheriff 91.

2007-09-09T02:35:00.001-07:00

90. Lodgment in Court and Payment to Sheriff 91.
ORDER 90
LODGMENT IN COURT AND PAYMENT TO SHERIFF
1. Interpretation. (O. 90 r. 1)
In this Order
"bank" means a bank approved by the Accountant-General;
"carry over", in relation to a fund in Court, means to transfer the fund or any part thereof from one account to another in the books of the Accountant-General;
"funds" or "funds in Court" means any money, securities, or other investments standing or to be placed to the account of the Accountant-General and includes money placed on deposit;
"interest" means the dividends and interest on all the funds referred to in the heading thereof;
"ledger credit" means the title of the cause or matter and the separate account opened or be opened under an order or otherwise in the books of the Accountant-General to which any funds are credited or to be credited;
"lodge in Court" means pay or transfer into Court, or deposit in Court;
"order" means an order or judgment of the High Court or Supreme Court, whether made in Court or in Chambers.
Lodgment in Court
2. Payment into Court under Trustees Act, 1949. (O. 90 r. 2)
(1) Subject to paragraph (2), any trustee wishing to make a payment into Court under section 62 of the Trustee Act 1949 (Act 208), must apply by summons supported by an affidavit setting out
(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose;
(b) the names of the persons interested in or entitled to the money or securities to be paid into Court with their addresses so far as known to him;
(c) his submission to answer all such inquiries relating to the application of such money or securities as the Court may make or direct; and
(d) an address where he may be served with any summons or order, or notice of any proceedings, relating to the money or securities paid into Court.
(2) Where the money or securities represents a legacy, or residue or any share thereof, to which an infant or a person resident outside Malaysia is absolutely entitled, no affidavit need be filed under paragraph (1).
3. Notice of lodgment. (O. 90 r. 3)
Any person who has lodged money or securities in Court must forthwith give notice of the lodgment to every person appearing to be entitled to, or to have an interest in, the money or securities lodged.
4. Funds how lodged. (O. 90 r. 4)
(1) Money to be lodged in Court must be lodged by means of a direction to the Accountant-General in form (a) in Form 131.
(2) Securities issued by a company or by any body corporate constituted under any written law, being fully paid up and free from liability, may be transferred to the Accountant-General in his official name.
(3) The person lodging under paragraph (2) must execute a transfer thereof, and send such transfer together with the authority in Form 193 to the registered office of the company or body corporate in whose books the securities are to be transferred.
(4) Such company or body corporate must, after registering such transfer, forward the authority to the Accountant-General with a certificate in Form 193, that the securities have been transferred as therein authorized.
(5) Securities, other than those described in paragraph (2), may be placed in a box or packet and lodged with a direction in form (a) Form 131 with the Accountant-General.
(6) After inspecting the contents in the box or packet in the presence of the person lodging the same, and seeing that such box or packet is properly marked and secured, the Accountant-General shall receive the same and give the person lodging a receipt.
(7) The Accountant-General must, after receiving the money or securities, send to the Registrar a duplicate of the receipt that had been issued to the person lodging the same, to be filed in the Registry.
5. Crediting lodgment and dividends. (O. 90 r. 5)
Any principal money or dividends received by the Accountant-General in respect of securities in Court must be placed in his books, in the case of principal money, to the credit to which the securities whereon such money arose were standing at the time of the receipt thereof, and in the case of dividends, to the credit to which the securities whereon such dividends accrued were standing at the time of closing of the transfer books of such securities previously to the dividends becoming due.
6. Interest on money lodged in Court. (O. 90 r. 6)
(1) Money lodged in Court to the credit of any account shall be deemed to be placed on deposit, and shall be credited with interest at such rate as is from time to time fixed by the Minister for Finance, not being greater than the highest rate of interest which for the time being can be obtained by the Government on current account from any bank in the State except
(a) when money is paid into Court under Order 14, 22, 23 or 70; or
(b) when the amount is less than one hundred ringgit.
(2) Money on deposit shall be deemed to be withdrawn from deposit when the amount is reduced below one hundred ringgit.
7. Computation of interest. (O. 90 r. 7)
(1) Interest upon money on deposit must not be computed on a fraction of one ringgit.
(2) Interest upon money on deposit accrues by calendar months, and must not be computed by any less period.
(3) Such interest begins on the first day of the calendar month next succeeding that in which the money is placed on deposit, and ceases from the last day of the calendar month next proceeding the day of the withdrawal of the money from deposit.
(4) Interest which has accrued for or during the half-year ending on the thirtieth day of June and thirty-first day of December in every year, on money than on deposit must, on or before the fifteen days of the months respectively following, be placed by the Accountant-General to the credit to which such money is standing on every such half-yearly day.
(5) When money on deposit is withdrawn from deposit, the interest thereon which has accrued and has not been credited must be placed to the credit to which the money is then standing.
(6) When money on deposit consists of sums which have been placed on deposit at different times, and an order is made dealing with the money, and part of such money has to be withdrawn from deposit for the purpose of executing such order, the part of parts of the money dealt with by such order last placed and remaining on deposit at the time of such withdrawal must, for the purpose of computing interest, be treated as so withdrawn unless the order otherwise directs.
(7) Unless otherwise directed by an order, interest credited on money on deposit must, when or so soon as it amount to or exceeds one hundred dollars, be placed on deposit and, for the purpose of computing interest upon it, must be treated as having been placed on deposit on the last half-yearly day on which any such interest became due.
8. Applications with respect to funds in Court. (O. 90 r. 8)
(1) Where an application to the High Court
(a) for the payment or transfer to any person of any funds in Court standing to the credit of any cause or matter or for the transfer of any such funds to a separate account or for the payment to any person of any dividend of or interest on any securities or money comprised in such fund;
(b) for the investment, or change of investment, of any funds in Court;
(c) for payment of the dividends of or interest on any funds in Court representing or comprising money or securities lodged in Court under any written law; or
(d) for the payment or transfer out of Court of any such funds as are mentioned in subparagraph (c),
is made, the application may be disposed of in Chambers.
(2) Subject to paragraph (3), any such application must be made by summons, and unless the application is made in a pending cause or matter or an application for the same purpose has previously been made by petition or originating summons, the summons must be an originating summons.
(3) Where an application under paragraph 1(d) is required to be made by originating summons, then, if the funds to which the application relates do not exceed $5,000 in value, and subject to paragraph (4), the application may be made to the Registrar.
(4) This rule does not apply to any application for an order under Order 22.
9. Payment out of funds in Court. (O. 90 r. 9)
(1) Money paid under Order 14, 22 or 23 must be paid out on a direction to the Accountant-General in form (b) in Form 131.
(2) In all other cases the person entitled to withdraw the funds must lodge with the Accountant-General a copy of the order authorizing withdrawal, and the Accountant-General must act in accordance with such order.
(3) When an order directs any sums to be ascertained by the certificate of the Registrar, both the order and the certificate in form (c) in Form 131 must be sent to the Accountant-General.
(4) When an order directs payments out of a fund in Court of any costs directed to be taxed, the Registrar must state in his certificate, the name and address of the person to whom such costs are payable.
10. Name of payee to be stated in order. (O. 90 r. 10)
(1) Every order which directs funds in Court to be paid, transferred, or delivered out must state in full the name of every person to whom such payment, transfer, or delivery is to be made, unless the name is to be stated in a certificate of the Registrar.
(2) In the case of payment to a firm it is sufficient to state the business name of such firm.
(3) When money in Court is by an order directed to be paid to any persons described in the order, or in a certificate of the Registrar, as co-partners, such money may be paid to any one or more of such co-partners, or to the survivor of them.
11. Payment out on death of payee. (O. 90 r. 11)
(1) When funds in Court are by an order directed to be paid, transferred, or delivered to any person named or described in an order, or in a certificate of the Registrar, except to a person therein expressed to be entitled to such funds as trustee, executor, or administrator, or otherwise than in his own right, or for his own use, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, unless the order otherwise directs, on proof of the death of such person, whether on or after or, in the case of payment directed to be made to a creditor as such, before the date of such order, be paid, transferred, or delivered to the legal personal representatives of such deceased person, or to the survivors or survivor of them.
(2) If no administration has been taken out to the estate of such deceased person who has died intestate, and whose assets do not exceed the value of ten thousand dollars, including the amount of the funds directed to be so paid, transferred or delivered to him, such funds may be paid, transferred, or delivered to the person who, being widower, widow, child, father, mother, brother, or sister of the deceased, would be entitled to take administration to his or her estate, upon a declaration by such person in accordance with Form 194.
(3) When funds in Court are by an order directed to be paid, transferred, or delivered to any persons as legal personal representatives, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, upon proof of the death of any such representatives, whether on or after the date of such order, be paid, transferred, or delivered to the survivors or survivor of them.
(4) No funds shall under this rule be paid, transferred, or delivered out of Court to the legal personal representatives of any person under any probate or letters of administration purporting to be granted at any time subsequent to the expiration of two years from the date of the order directing such payment, transfer, or delivery, or, in case such funds consist of interest or dividends, from the date of the last receipt of such interest or dividends or such order.
(5) When any application for an order such as is referred to in paragraphs (1) and (3) is made, notice thereof must be given to the Collector of Estate Duty who shall be entitled to attend and be heard on the matter.
12. Transfer or investment of funds in Court. (O. 90 r. 12)
(1) When funds in Court are by an order directed to be transferred or carried over, the party having the carriage of the order must lodge with the Accountant-General a copy of the order, and the Accountant-General must act in accordance with such order.
(2) When funds in Court are by an order directed to be invested, the party having the carriage of the order must lodge with the Accountant-General a copy of the order and the Accountant-General must thereupon invest such funds in the manner directed by the order.
(3) The Court may direct that any money in Court, other than money under Orders 14, 22, 23 and 70, may be invested in any of the securities in which trustees are by law permitted to invest trust money in their hands, or it may order such money to be deposited in the Post Office Savings Bank, provided that it exceeds ten dollars and does not exceed the highest sum which may be deposited therein.
13. Proof to Accountant-General before payment. (O. 90 r. 13)
When any person is entitled under an order or direction to receive any payment from the Accountant-General, and the Accountant-General requires evidence of life, or of the fulfilment of any conditions affecting such payment, such evidence may be furnished by a statutory declaration made by a solicitor acting on behalf of such person, or by the person entitled to such payment.
14. Copy of order or certificate to be sent to Auditor-General. (O. 90 r. 14)
An office copy of every order of Court and certificate to be acted upon by the Accountant-General, and of every direction to the Accountant-General, must be forwarded by the Registrar to the Auditor-General.
15. Accountant-General to give certificate of funds in Court. (O. 90 r. 15)
(1) the Accountant-General, upon a request signed by or on behalf of a person claiming to be interested in any funds in Court standing to the credit of an account specified in such request, must, unless there is good reason for refusing, issue a certificate of the amount and description of such funds, such certificate shall have reference to the morning of the day of the date thereof, and shall not include the transactions of that day.
(2) The Accountant-General must notify on such certificate the dates of any orders restraining the transfer, sale, delivery out, or payment of other dealing with the funds in Court to the credit of the account mentioned in such certificate, and whether such orders affect principal or interest, and any charging orders affecting such funds, of which respectively he has received notice and the names of persons to whom notice is to be given, or in whose favour such restraining or charging orders have been made.
(3) The Accountant-General may re-date any such certificate, provided that no alteration in the amount or description of funds has been made since the certificate was issued.
(4) When a cause or matter has been inserted in the list referred to in rule 16, that fact shall be notified in the certificate relating thereto.
16. Publication of list of funds in Court. (O. 90 r. 16)
In the month of January in every year the Accountant-General shall cause to be published in the Gazette a list of accounts not dealt with for a period of ten years or more and must give the title and number of the cause or matter and the title of the ledger credit in which funds are outstanding, and the balance of the funds in each account.
17. Unclaimed funds in Court with Accountant-General. (O. 90 r. 17)
(1) The funds in Court appearing from the books and accounts to have been in the custody with the Accountant-General for a period of fifteen years and upwards, without any claim having been made and allowed thereto during that period, must be transferred and paid to the Government for the general purposes of the State.
(2) If any claim is made to any part of the funds in Court which are transferred and paid to the Government under paragraph (1), and if such claim is established to the satisfaction of the Court, the Government must pay to the claimant the amount of the principal so transferred and paid as aforesaid, or so much thereof as appears to be due to the claimant.
(3) Nothing in this rule shall authorize the transfer of any funds standing to the separate credit of an infant, or held in an infants account pending the coming of age of such infant, until such infant comes of age or dies.
Payment to Sheriff
18. Sheriff to keep an account book. (O. 90 r. 18)
(1) The sheriff must keep an account of all sums of money paid or deposited with him and of all sums of money paid out by him in an account book in Form 195.
(2) All money paid or deposited with the sheriff must be kept in a bank or with the Accountant-General.
(3) No interest shall be payable in respect of any money paid or deposited with the sheriff.
19. How money paid to Sheriff. (O. 90 r. 19)
Money paid or deposited with the sheriff under these rules or a judgment or order of a Court must be paid to the proper officer in the Registry who must give a receipt for every sum of money received by him.
20. Payment in under judgment or order. (O. 90 r. 20)
Where any payment is made under a judgment or order the person making the payment must produce a copy of the judgment or order and he must give notice to the person entitled to the money.
21. Money not required for making payments on day of receipt. (O. 90 r. 21)
Any money paid or deposited with the sheriff that it is not required for making payments on that day must be paid into the bank or to the Accountant-General, as the case may be:
Provided that where the payment to the bank or to the Accountant- General, as the case may be, cannot be made on the day of receipt, it must be made on the morning of the next working day.
22. Accountant-General to grant an imprest. (O. 90 r. 22)
(1) Where the money is kept by the Accountant-General, he must grant an imprest to the sheriff and the imprest must be kept by the sheriff in a bank.
(2) All cheques in respect of the bank account must be signed by the sheriff and another officer appointed by the Registrar.
23. Cash book for imprest. (O. 90 r. 23)
(1) The sheriff operating the imprest must maintain a Cash Book in which must be entered all sums received under the imprest (including reimbursements from the Accountant-General) and all payments made from the imprest.
(2) A supervisory officer must be made personally responsible for making (at least once a week) surprise checks of the Cash Book, for comparing all the entries with receipted vouchers and other relevant documents and for ensuring that the balance of cash agrees with the balance shown in the Cash Book, and the officer must also satisfy himself that cash is not drawn from the bank in excess of normal requirements.
(3) A record of all surprise inspections must be made in the Cash Book.
24. How payments from imprest to be made. (O. 90 r. 24)
(1) All payments from the imprest must be made by cheques and an acknowledgment received or a receipt obtained from the person to whom the cheque is paid.
(2) When the balance of the imprest reaches a figure sufficient for 7 days anticipated requirements, the Cash Book must be balanced and the sums paid from the imprest recovered from the Accountant-General.
(3) The receipts must be attached to a bill showing the total amount of the payments; if the receipts are numerous, the receipts and a machine-list of the amounts only may be attached to the bill.
(4) This bill and attachments must be sent to the Accountant-General at least 7 days before the money is actually required.
25. Proof before payment out. (O. 90 r. 25)
Before any money is paid out to any person, the sheriff must require proof to his satisfaction that the person applying for payment is the person entitled or authorized to receive it.
26. Where money due to Government under any law. (O. 90 r. 26)
Before any money is paid out under any order directing the payment out of any money paid or deposited with the sheriff, the sheriff must satisfy himself that any money due to Government under any written law of which he has notice has been paid or deducted.
27. When payment to be made by cheque. (O. 90 r. 27)
(1) All payments by the sheriff of an amount exceeding fifty ringgit must be made by cheque payable to the person entitled to receive the payment and marked "payable only within 30 days from date".
(2) If the payment is to be made to
(a) any Government department;
(b) any body corporate
(c) an advocate and solicitor; or
(d) a moneylender under the Moneylenders Ordinance, 1951. (42/51)
the cheque must be crossed to the payees account and marked "not negotiable".
(3) Where a cheque has not been cashed within 30 days of its date a fresh cheque may be issued to replace it.

89. Summary Proceedings for Possession of Land.

2007-09-09T02:31:00.001-07:00

89. Summary Proceedings for Possession of Land.
ORDER 89
SUMMARY PROCEEDINGS FOR POSSESSION OF LAND [Ins. P.U. (A) 114/84]
1. Proceedings to be brought by originating summons. (O. 89 r. 1)
Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.
2. Forms of originating summons. (O. 89 r. 2)
The originating summons shall be in Form No. 8A and no acknowledgment of service shall be required.
3. Affidavit in support. (O. 89 r. 3)
The plaintiff shall file in support of the originating summons an affidavit stating
(a) his interest in the land;
(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and
(c) that he does not know the name of any person occupying the land who is not named in the summons.
4. Service of originating summons. (O. 89 r. 4)
(1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him
(a) personally or in accordance with Order 10, rule 5; or
(b) by leaving a copy of the summons and of the affidavit or sending them to him, at the premises; or
(c) in such other manner as the Court may direct.
(2) The summons shall, in addition to being served on the named defendants, if any, in accordance with paragraph (1) be served, unless the Court otherwise directs, by
(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises; and
(b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to "the occupiers".
(3) Every copy of an originating summons for service under paragraph (1) or (2) shall be sealed with the seal of the Court out of which the summons was issued.
(4) Order 28, rule 3 shall not apply to proceedings under this Order.
5. Application by occupier to be made a party. (O. 89 r. 5)
Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.
6. Order for possession. (O. 89 r. 6)
(1) A final order shall not be made on the originating summons except by a Judge in person and shall, except in case of urgency and by leave of the Court, not be made less than 5 clear days after the date of service.
(2) An order for possession in proceedings under this Order shall be in Form No. 193A.
(3) Nothing in this Order shall prevent the Court from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action begun by writ.
7. Writ of possession. (O. 89 r. 7)
(1) Order 45, rule 3(2), shall not apply in relation to an order for possession under this Order but no writ of possession to enforce such an order shall be issued after the expiry of three months from the date of the order without the leave of the Court.
8. Setting aside order. (O. 89 r. 8)
The Judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order.

88. Companies Act 1965.

2007-09-09T02:28:00.001-07:00

88. Companies Act 1965.
ORDER 88
COMPANIES ACT 1965
1. Interpretation. (O. 88 r. 1)
In this Order "Act" means the Companies Act 1965 (Act 125).
2. Applications to be made by originating summons. (O. 88 r. 2)
(1) Unless otherwise provided in the Act, and except in the case of the applications mentioned in rules 3, 4 and 5, every application under the Act must, in accordance with Order 5, rule 3, be made by originating summons.
(2) No appearance need be entered to an originating summons under this rule unless the application made by the summons is
(a) an application under section 173 of the Act for an order to make provision for all or any of the matters mentioned in subsection (1) of that section where an order approving the compromise or arrangement to which the application relates has previously been made; or
(b) an application under section 192 of the Act for an order directing a receiver or manager of a company to make good any such default as is mentioned in subsection (1) of that section; or
(c) an application under section 12 of the Act for an order directing a company and any officer thereof to make good any such default as is mentioned in that section.
(3) An application under section 357 of the Act may be made by ex parte originating summons.
3. Application to be made by originating summons or motion. (O. 88 r. 3)
(1) An application under section 162 of the Act for rectification of the register of members of a company may be made by originating summons or originating motion.
(2) No appearance need be entered to an originating summons under this rule.
4. Applications to be made by originating motion. (O. 88 r. 4)
The following applications under the Act must be made by originating motion, namely, applications
(a) under section 27 of the Act for an order that a company be relieved from the consequences of default in complying with conditions constituting the company a private company;
(b) under section 63 of the Act for an order validating the issue or allotment of shares improperly issued or confirming the terms of issue or allotment thereof;
(c) under section 88(5) of the Act for an order to confirm, set aside or vary a direction of the holders of the interests;
(d) under section 95(4) of the Act for an order to confirm a winding up resolution;
(e) under section 200(5) of the Act for an inquiry into any such case as is mentioned therein;
(f) under section 307 of the Act for an order declaring a dissolution of a company which has not been wound up to have been void.
5. Applications to be made by petition. (O. 88 r. 5)
The following applications under the Act must be made by petition, namely, applications
(a) under section 28 of the Act to cancel the alteration of a companys objects;
(b) under section 59 of the Act to confirm the issue by a company of shares at a discount;
(c) under section 60 of the Act to confirm a reduction of the share premium account of a company;
(d) under section 61 of the Act to confirm a reduction of the capital redemption reserve fund of a company;
(e) under section 64 of the Act to confirm a reduction of the share capital of a company;
(f) under section 65 of the Act to cancel any variation or abrogation of the rights attached to any class of shares in a company;
(g) under section 176 of the Act to approve a compromise or arrangement between a company and its members or any class of them;
(h) under section 181 of the Act for relief in cases of oppression;
(i) under section 308(5) of the Act for an order restoring the name of a company to the Register;
(j) under section 354 of the Act for relief from liability of an officer of a company or any other person to whom this section applies.
6. Entitlement of proceedings. (O. 88 r. 6)
(1) Every originating summons, notice of originating motion and petition to which this Order relates and all affidavits, notices and other documents in those proceedings must be entitled in the matter of the company in question and in the matter of the Act.
(2) The originating summons by which an application for leave under section 130(1) of the Act is made must be entitled in the matter of the company (if any) in relation to which the applicant was convicted and in the matter of the Act.
7. Summons for directions. (O. 88 r. 7)
(1) After presentation of a petition by which any such application as is mentioned in rule 5 is made, the petitioner, except where his application is one of those mentioned in paragraph (2), must take out a summons for directions under this rule.
(2) The application referred to in paragraph (1) are
(a) an application under section 59 of the Act to confirm the issue by a company of shares at a discount;
(b) an application under section 176 of the Act to approve a compromise or arrangement unless there is included in the petition for such approval an application for an order under section 178 of the Act; and
(c) an application under section 308(5) of the Act for an order restoring the name of a company to the register.
(3) On the hearing of the summons the Court may by order give such directions as to the proceedings to be taken before the hearing of the petition as it thinks fit including in particular, directions for the publication of notices and the making of any inquiry.
(4) Where the application made by the petition is to confirm a reduction of the share capital, the share premium account, or the capital redemption reserve fund, of a company, then, without prejudice to the generality of paragraph (3), the Court may give directions
(a) for an inquiry to be made as to the debts of, and claims against the company or as to any class or classes of such debts or claims;
(b) as to the proceedings to be taken for settling the list of creditors entitled to object to the reduction and fixing the date by reference to which the list is to be made;
and the power of the Court under section 64(3) of the Act to direct that section 64(2) thereof shall not apply as regards any class of creditors may be exercised on any hearing of the summons.
(5) Rules 8 to 13 shall have effect subject to any directions given by the Court under this rule.
8. Inquiry as to debts: Company to make list of creditors. (O. 88 r. 8)
(1) Where under rule 7 the Court orders such an inquiry as is mentioned in paragraph (4) thereof, the company in question must, within 7 days after the making of the order, file in the Registry an affidavit made by an officer of the company competent to make it verifying a list containing
(a) the name and address of every creditor entitled to any debt or claim to which the inquiry extends;
(b) the amount due to each creditor in respect of such debt or claim or, in the case of a debt or claim which is subject to any contingency or sounds only in damages or for some other reason does not bear a certain value, a just estimate of the value thereof; and
(c) the total of those amounts and values.
(2) the deponent must state in the affidavit his belief that at the date fixed by the Court as the date by reference to which the list is to be made there is no debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, other than the debts or claims set out in the list and any debts or claims to which the inquiry does not extend, and must also state his means of knowledge of the matters deposed to.
(3) The list must be left at the Registry not later than one day after the affidavit is filed.
9. Inspection of list of creditors. (O. 88 r. 9)
(1) Copies of the list made under rule 8 with the omission, unless the Court otherwise directs, of the amount due to each creditor and the estimated value of any debt or claim to which any creditor is entitled, shall be kept at the registered office of the company and at the office of that companys solicitor.
(2) Any person shall be entitled during ordinary business hours, on payment of a fee of fifty cents, to inspect the said list at any such office and to take extracts therefrom.
10. Notice to creditors. (O. 88 r. 10)
Within 7 days after filing the affidavit required by rule 8 the company must send by post to each creditor named in the list exhibited to the affidavit, at his last known address, a notice stating
(a) the amount of the reduction sought to be confirmed;
(b) the effect of the order directing an inquiry as to debts and claims;
(c) the amount or value specified in the list as due or estimated to be due to that creditor; and
(d) the time fixed by the Court within which, if he claims to be entitled to a larger amount, he must send particulars of his debt or claim and the name and address of his solicitor, if any, to the companys solicitor.
11. Advertisement of petition and list of creditors. (O. 88 r. 11)
After filing the affidavit required by rule 8 the company must insert, in such newspapers and at such times as the Court directs, a notice stating
(a) the date of presentation of the petition and the amount of the reduction thereby sought to be confirmed;
(b) the inquiry ordered by the Court under rule 7;
(c) the places where the list of creditors may be inspected in accordance with rule 9; and
(d) the time within which any creditor not named in the list who claims to be entitled to any debt or claim to which the inquiry extends must send his name and address, the name and address of the solicitor, if any, and particulars of his debt or claim to the companys solicitor.
12. Affidavit as to claims made by creditors. (O. 88 r. 12)
Within such time as the Court directs the company must file in the Registry an affidavit made by the companys solicitor and an officer of the company competent to make it
(a) proving service of the notices mentioned in rule 10 and advertisement of the notice mentioned in rule 11;
(b) verifying a list containing the names and addresses of the persons (if any) who in pursuance of such notices sent in particulars of debts or claims, specifying the amount of each debt or claim;
(c) distinguishing in such list those debts or claims which are wholly, or as to any and what part thereof, admitted by the company, disputed by the company or alleged by the company to be outside the scope of the inquiry; and
(d) stating which of the persons named in the list made under rule 8, and which of the persons named in the list made under this rule, have been paid or consent to the reduction sought to be confirmed.
13. Adjudication of disputed claims. (O. 88 r. 13)
If the company contends that a person is not entitled to be entered in the list of creditors in respect of any debt or claim or in respect of the full amount claimed by him in respect of any debt or claim, then, unless the company is willing to secure payment of that debt or claim by appropriating the full amount of the debt or claim, the company must, if the Court so directs, send to that person by post at his last known address a notice requiring him
(a) within such time as may be specified in the notice, being not less than 4 clear days after service thereof, to file an affidavit proving his debt or claim or, as the case may be, so much thereof as is not admitted by the company; and
(b) to attend the adjudication of his debt or claim at the place and time specified in the notice, being the time appointed by the Court for the adjudication of debts and claims.
14. Certifying list of creditors entitled to object to reduction. (O. 88 r. 14)
The list of creditors entitled to object to such reduction as is mentioned in rule 7(4), as settled by the Court under section 64(2) of the Act, shall be certified and filed by the Registrar and his certificate shall
(a) specify the debts or claims (if any) disallowed by the Court;
(b) distinguish the debts or claims (if any) the full amount of which is admitted by the company, the debts or claims (if any) the full amount of which, though not admitted by the company, the company is willing to appropriate, the debts or claims (if any) the amount of which has been fixed by adjudication of the Court under section 64(2) of the Act and other debts or claims;
(c) specify the total amount of the debts or claims payment of which has been secured by appropriation under the said section 64(2);
(d) show which creditors consent to the reduction and the total amount of their debts or claims;
(e) specify the creditors who sought to prove their debts or claims under rule 13 and state which of such debts or claims were allowed.
15. Evidence of consent of creditor. (O. 88 r. 15)
The consent of a creditor to such reduction as is mentioned in rule 7(4) may be proved in such manner as the Court thinks sufficient.
16. Time, etc., of hearing of petition for confirmation of reduction. (O. 88 r. 16)
(1) A petition for the confirmation of any such reduction as is mentioned in rule 7(4) shall not, where the Court has directed an inquiry pursuant to that rule, be heard before the expiration of at least 8 clear days after the filing of the certificate mentioned in rule 14.
(2) Before the hearing of such a petition, a notice specifying the day appointed for the hearing must be published at such times and in such newspapers as the Court may direct.
17. Restriction on taking effect of order under section 59. (O. 88 r. 17)
Unless the Court otherwise directs, an order under section 59 of the Act confirming the issue of shares at a discount shall direct that an office copy of the order be delivered to the Registrar of Companies within 10 days after the making of the order or such extended time as the Court may allow and that the order shall not take effect until such copy has been so delivered.

87. Trade Marks Act 1976.

2007-09-09T02:24:00.001-07:00

87. Trade Marks Act 1976.
ORDER 87
TRADE MARKS ACT 1976
1. Interpretation. (O. 87 r. 1)
In this Order:
"Act" means the Trade Marks Act 1976 (Act 175).
"Registrar" means the Registrar of Trade Marks appointed under section 3 of the Act.
2. Application by notice of motion. (O. 87 r. 2)
Applications to the Court under the Act may be made by notice of motion.
3. Appeals by notice of motion. (O. 87 r. 3)
Appeals to the Court under the Act shall be given by notice of motion within one calendar month from the date of decision appealed against.
4. Service of Application on Registrars. (O. 87 r. 4)
All applications to the Court under the Act whether by way of appeal or otherwise shall be served on the Registrar.
5. Time for application. (O. 87 r. 5)
Whether the Registrar decides to refer an application or appeal to the Court, the applicant or appellant shall apply to the Court within one calendar month from the date of the decision so to refer, and unless he so applies he shall be deemed to have abandoned the application or appeal.
6. Notice of intention to withdraw application. (O. 87 r. 6)
Where under section 19(5) or section 27(8) of the Act an applicant becomes entitled and intends to withdraw his application, he shall give notice of the intention in writing to the Registrar and to the other parties, if any, to the appeal within one month after the leave referred in those subsections has been obtained.
7. Counterclaim for rectification of registrar. (O. 87 r. 7)
A defendant in an action for infringement may, in regard to any registered trade mark in issue, counterclaim for the rectification of the register and shall within the time limited for the delivery of the counterclaim serve the Registrar with the same, and the Registrar shall be entitled to take such part in the action as he may think fit without delivering a defence or other pleading.
8. Extension of time. (O. 87 r. 8)
The times specified in rules 3 and 5 of this Order may be extended by the Court or Registrar upon the application of any party interested and notwithstanding that the time so specified has expired.
9. Proceeding for infringement of registered trade mark: Validity of registration disputed. (O. 87 r. 9)
(1) Where in any proceedings a claim is made for relief for infringement of the right to the use of a registered trade mark, the party against whom the claim is made may in his defence put in issue the validity of the registration of that trade mark or may counterclaim for an order that the register of trade marks be rectified by cancelling or varying the relevant entry or may do both those things.
(2) A party to any such proceedings who in his pleading (whether a defence or counterclaim) disputes the validity of the registration of a registered trade mark must serve with the pleading particulars of the objections to the validity of the registration on which he relies in support of the allegation of invalidity.
(3) A party to any such proceedings who counterclaims for an order that the register of trade marks be rectified must serve on the Registrar of Trade Marks a copy of the counterclaim together with a copy of the particulars mentioned in paragraph (2); and the Registrar of Trade Marks shall be entitled to take such part in the proceedings as he may think fit but need not serve a defence or other pleading unless ordered to do so by the Court.

86. Inheritance (Family Provision) Act 1971.

2007-09-09T02:22:00.001-07:00

86. Inheritance (Family Provision) Act 1971.
ORDER 86
INHERITANCE (FAMILY PROVISIONS) ACT 1971
1. Interpretation. (O. 86 r. 1)
In this Order "Act" means the Inheritance. (Family Provisions) Act 1971 (Act 39).
2. Powers of Courts as to parties. (O. 86 r. 2)
(1) Without prejudice to its powers under Order 15, the Court may at any stage of proceedings under the Act by order direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any person.
(2) Order 15, rule 13, shall apply to proceedings under the Act as it applies to the proceedings mentioned in paragraph (1) of that rule.
3. Affidavit in support to be filed. (O. 86 r. 3)
An affidavit in support of an originating summons by which an application under section 3 of the Act is made must be filed before the first hearing of the summons and Order 28, rule 3(3), shall apply accordingly.
4. Disposal of application in Chambers, etc. (O. 86 r. 4)
Any application under the Act in which it appears to the Court that the interests of an infant or other person under disability are affected may, if the Court thinks fit so direct, be disposed of in Chambers, but any order under section 3 or 6 of the Act shall be made by the Judge in person.
5. Applications in proceedings under section 3 of the Act. (O. 86 r. 5)
Where an order has been made on an application under section 3 of the Act, any subsequent application, whether made by a party to the proceedings in which such order was made, or by a person on whom notice of the application for the order was served or by or on behalf of such person as is mentioned in section 6(2) of the Act, must be made by summons in those proceedings.
6. Indorsement of memorandum on probate, etc. (O. 86 r. 6)
(1) The personal representatives of the deceased to whose estate an application under section 3 or 6 of the Act relates must produce in Court at the hearing of the application the probate or letters of administration under which the estate is being administered; and if the Court makes an order under the Act or an order dismissing the application the probate or letters of administration shall remain in the custody of the Court until section 5(3) of the Act has been complied with.
(2) the memorandum of the order required by section 5(3) of the Act to be indorsed or annexed as therein mentioned must set out the title of the proceedings in question and the operative part of the order in full.

85. Bills of Sale Ordinance 1950.

2007-09-09T02:19:00.001-07:00

85. Bills of Sale Ordinance 1950.
ORDER 85
BILLS OF SALE ORDINANCE 1950*
1. Rectification of register. (O. 85 r. 1)
(1) Every application to the Court under section 15 of the Bills of Sale Ordinance 1950 (30/50) (hereafter in this Order referred to as "the Ordinance") for an order
(a) that any omission to register a bill of sale or an affidavit of renewal thereof within the time prescribed by that Ordinance be rectified by extending the time for such registration; or
(b) that any omission or mis-statement of the name, residence or occupation of any person be rectified by the insertion in the register of his true name, residence or occupation,
must be made by summons ex parte to the Registrar.
(2) Every application for such an order as is described in paragraph (1) shall be supported by an affidavit setting out particulars of the bill of sale and of the omission or mis-statement in question and stating the grounds on which the application is made.
2. Entry of satisfaction. (O. 85 r. 2)
(1) Every application under section 16 of the Ordinance to the Registrar for an order that a memorandum of satisfaction be written on a registered copy of a bill of sale must
(a) if a consent to the satisfaction signed by the person entitled to the benefit of the bill of sale can be obtained, be made ex parte;
(b) in all other cases, be made by originating summons.
(2) An ex parte application under paragraph (1)(a) must be supported by
(a) particulars of the consent referred to in that paragraph; and
(b) an affidavit by a witness who attested the consent verifying the signature on it.
(3) An originating summons under paragraph (1)(b) must be served on the person entitled to the benefit of the bill of sale, and must be supported by evidence that the debt (if any) for which the bill of sale was made has been satisfied or discharged.
(4) No appearance need be entered to an originating summons under paragraph (1)(b).
3. Restraining removal on sale of goods seized. (O. 85 r. 3)
No appearance need be entered to an originating summons by which an application to the Court under section 8(3) of the Ordinance must be made.
4. Search of register. (O. 85 r. 4)
The Registrar shall, on a request in writing giving sufficient particulars, and on payment of the prescribed fee, cause a search to be made in the register of bills of sale and issue a certificate of the result of the search.

84. Proceedings Relating to Infants.

2007-09-09T02:15:00.001-07:00

84. Proceedings Relating to Infants.
ORDER 84
PROCEEDINGS RELATING TO INFANTS
1. Applications under Guardianship of Infants Act. (O. 84 r. 1)
Where there is pending any action or other proceeding by reason of which an infant is a ward of Court, any application under the Guardianship of Infants Act 1961 (13/61) (hereafter in this Order referred to as "the Act") with respect to that infant may be made by summons in the proceeding, but except in that case any such application must be made by originating summons.
2. Defendants to summons. (O. 84 r. 2)
(1) Where the infant with respect to whom an application under the Act is made is not the plaintiff, he shall not, unless the Court otherwise directs, be made a defendant to the summons or, if the application is made by ordinary summons, be served with the summons, but, subject to paragraph (2), any other person appearing to be interested in, or affected by, the application shall be made a defendant or be served with the summons, as the case may be.
(2) The Court may dispense with service of the summons (whether originating or ordinary) on any person and may order it to be served on any person not originally served.
3. Applications as to guardianship, maintenance, etc. (O. 84 r. 3)
(1) Applications as to the guardianship, maintenance or advancement of infants may be disposed of in Chambers.
(2) A guardians account must be verified and passed in the same manner as that provided by Order 30 in relation to a receivers account or in such other manner as the Court may direct.

83. Charge Actions.

2007-09-09T01:06:00.002-07:00

83. Charge Actions.
ORDER 83
CHARGE ACTIONS
1. Application and interpretation. (O. 83 r. 1)
(1) This Order applies to any action (whether begun by writ or originating summons) by a or chargee or chargor or by any person having the right to foreclose or redeem any charge, being an action in which there is a claim for any of the following reliefs namely
(a) payment of moneys secured by the charge;
(b) sale of the charge property;
(c) foreclosure;
(d) delivery of possession (whether before or after foreclosure or without foreclosure) to the chargee by the chargor or by any other person who is or is alleged to be in possession of the property;.
(e) redemption;
(f) reconveyance of the property or its release from the security;
(g) delivery of possession by the chargee.
(2) In this Order "charge" includes a legal and an equitable charge.
(3) An action to which this Order applies is referred to in this Order as a charge action.
(4) These rules apply to charge actions subject to the following provisions by this Order.
2. Claims for possession: Non-appearance by a defendant. (O. 83 r. 2)
(1) Where in a charge action begun by originating summons, being an action in which the plaintiff is the chargee and claims delivery of possession or payments of moneys secured by the charge or both, any defendant fails to enter an appearance, the following provisions of this rule shall apply, and references in those provisions to the defendant shall be construed as references to any such defendant.
This rule shall not be taken as affecting Order 28, rule 3, or rule 5(2) in so far as it requires any document to be served on, or notice given to, a defendant who has entered an appearance in the action.
(2) Not less than 4 clear days before the day fixed for the first hearing of the originating summons the plaintiff must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the affidavit in support of the summons.
(3) Where the plaintiff claims delivery of possession there must be indorsed on the outside fold of the copy of the affidavit served on the defendant a notice informing the defendant that the plaintiff intends at the hearing to apply for an order to the defendant to deliver up to the plaintiff possession of the charged property and for such other relief (if any) claimed by the originating summons as the plaintiff intends to apply for at the hearing.
(4) Where the hearing is adjourned, then, subject to any directions given by the Court, plaintiff must serve notice of the appointment for the adjourned hearing, together with a copy of any further affidavit intended to be used at the hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.
A copy of any affidavit served under this paragraph must be indorsed in accordance with paragraph (3).
(5) Service under paragraph (2) or (4), and the manner in which it was effected, may be proved by a certificate signed by the plaintiff, if he sues in person, and otherwise by his solicitor.
The certificate may be indorsed on the affidavit in support of the summons or, as the case may be, on any further affidavit intended to be used at an adjourned hearing.
(6) A copy of any exhibit to an affidavit need not accompany the copy of the affidavit served under paragraph (2) or (4).
(7) Where the plaintiff gives notice to the defendant under Order 3, rule 6, of his intention to proceed, service of the notice, and the manner in which it was effected, may be proved by a certificate signed as mentioned in paragraph (5).
3. Action for possession or payment. (O. 83 r. 3)
(1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.
This rule applies to a charge action begun by originating summons in which the plaintiff is the chargee and claims delivery of possession or payment of moneys secured by the charge or both.
(2) The affidavit must exhibit a true copy of the charge and the original charge or, in the case of a registered charge, the charge certificate must be produced at the hearing of the summons.
(3) Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class otherwise directs, the state of the account between the chargor and chargee with particulars of
(a) the amount of the advance;
(b) the amount of the repayments;
(c) the amount of any interest or instalments in arrear at the date of issue of the originating summons and at the date of the affidavit; and
(d) the amount remaining due under the charge.
(4) Where the plaintiff claims delivery of possession, the affidavit must give particulars of every person who to the best of the plaintiffs knowledge is in possession of the charged property.
(5) If the charge creates a tenancy other than a tenancy at will between the chargor and chargee, the affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.
(6) Where the plaintiff claims payment of moneys secured by the charge, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (3).
(7) Where the plaintiffs claim includes a claim for interest to judgment, the affidavit must state the amount of a days interest.
4. Action by writ: Judgment in default. (O. 83 r. 4)
(1) Notwithstanding anything in Order 13 or Order 19, in a charge action begun by writ judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.
(2) An application for the grant of leave under this rule must be made by summons and the summons must, notwithstanding anything in Order 62, rule 10, be served on the defendant.
(3) Where a summons for leave under this rule is issued, rule 2(2) to (7) shall apply in relation to the action subject to the modification that for references therein to the originating summons, and for the reference in paragraph (2) to the notice of appointment, there shall be substituted references to the summons.
(4) Where a summons for leave under this rule is issued in an action to which rule 3 would apply had the action been begun by originating summons, the affidavit in support of the summons must contain the information required by that rule.
5. Foreclosure in redemption action. (O. 83 r. 5)
Where foreclosure has taken place by reason of the failure of the plaintiff in a charge action for redemption to redeem, the defendant in whose favour the foreclosure has taken place may apply by motion for an order for delivery to him of possession of the charged property, and the Court may make such order thereon as it thinks fit.

82. Debenture Holder Action: Receivers Register.

2007-09-09T01:04:00.000-07:00

82. Debenture Holders Action: Receivers Register.
ORDER 82
DEBENTURE HOLDERS ACTION: RECEIVERS REGISTER
1. Receivers register. (O. 82 r. 1)
Every receiver appointed by the Court in an action to enforce registered debenture or registered debenture stock shall, if so directed by the Court, keep a register of transfers of, and other transmissions of title to, such debentures or stock (in this Order referred to as the "receivers register").
2. Registration of transfers, etc. (O. 82 r. 2)
(1) Where a receiver is required by rule 1 to keep a receivers register, then, on the application of any person entitled to any debentures or debenture stock by virtue of any transfer or other transmission of title, and on production of such evidence of identity and title as the receiver may reasonably require, the receiver shall, subject to the following provisions of this rule, register the transfer or other transmission of title, and on production of such evidence of identity and title as the receiver may reasonably require, the receiver shall, subject to the following provisions of this rule, register the transfer or other transmission of title in that register.
(2) Before registering a transfer the receiver must, unless the due execution of the transfer is proved by affidavit, send by post to the registered holder of the debentures or debenture stock transferred at his registered address a notice stating
(a) that an application for the registration of the transfer has been made; and
(b) that the transfer will be registered unless within the period specified in the notice the holder informs the receiver that he objects to the registration,
and no transfer shall be registered until the period so specified has elapsed.
The period to be specified in the notice shall in no case be less than 7 days after a reply from the registered holder would in the ordinary course of post reach the receiver if the holder had replied to the notice on the day following the day when in the ordinary course of post the notice would have been delivered at the place to which it was addressed.
(3) On registering a transfer or other transmission of title under this rule the receiver must indorse a memorandum thereof on the debenture or certificate of debenture stock, as the case may be, transferred or transmitted, containing a reference to the action and to the order appointing him receiver.
3. Application for rectification of receivers register. (O. 82 r. 3)
(1) Any person aggrieved by anything done or omission made by a receiver under rule 2 may apply to the Court for rectification of the receivers register, the application to be made by summons in the action in which the receiver was appointed.
(2) The summons shall in the first instance be served only on the plaintiff or other party having the conduct of the action but the Court may direct the summons or notice of the application to be served on any other person appearing to be interested.
(3) The Court hearing an application under this rule may decide any question relating to the title of any person who is party to the application to have his name entered in or omitted from the receivers register and generally may decide any question necessary or expedient to be decided for the rectification of that register.
4. Receivers register evidence of transfers, etc. (O. 82 r. 4)
Any entry made in the receivers register, if verified by an affidavit made by the receiver or by such other person as the Court may direct, shall in all proceedings in the action in which the receiver was appointed be evidence of the transfer or transmission of title to which the entry relates and, in particular, shall be accepted as evidence thereof for the purpose of any distribution of assets, notwithstanding that the transfer or transmission has taken place after the making of a certificate in the action certifying the holders of the debentures or debenture stock certificates.
5. Proof of title of holder of bearer debenture, etc. (O. 82 r. 5)
(1) This rule applies in relation to an action to enforce bearer debentures or to enforce debenture stock in respect of which the company has issued debenture stock bearer certificates.
(2) Notwithstanding that judgment has been given in the action and that a certificate has been made therein certifying the holders of such debentures or certificates as are referred to in paragraph (1), the title of any person claiming to be such a holder shall (in the absence of notice of any defect in the title) be sufficiently proved by the production of the debenture or debenture stock certificates, as the case may be, together with a certificate of identification signed by the person producing the debenture or certificate identifying the debenture or certificate produced and certifying the person giving his name and address who is the holder thereof.
(3) Where such a debenture or certificate as is referred to in paragraph (1) is produced in the chambers of the Judge, the solicitor of the plaintiff in the action must cause to be indorsed thereon a notice stating
(a) that the person whose name and address is specified in the notice (being the person named as the holder of the debenture or certificate in the certificate of identification produced under paragraph (2)) has been recorded in the chambers of the Judge as the holder of the debenture or debenture stock certificate, as the case may be; and
(b) that that person will, on producing the debenture or debenture stock certificate, as the case may be, be entitled to receive payment of any dividend in respect of that debenture or stock unless before payment a new holder proves his title in accordance with paragraph (2); and
(c) that if a new holder neglects to prove his title as aforesaid he may incur additional delay, trouble and expense in obtaining payment.
(4) The solicitor of the plaintiff in the action must preserve any certificate of identification produced under paragraph (2) and must keep a record of the debentures and debenture stock certificates so produced and of the names and addresses of the persons producing them and of the holders, thereof, if the Court requires it, must verify the record by affidavit.
6. Requirements in connection with payments. (O. 82 r. 6)
(1) Where in an action to enforce any debentures or debenture stock an order is made for payment in respect of the debentures or stock, the Accountant-General shall not make a payment in respect of any such debenture or stock unless either there is produced to him the certificate for which paragraph (2) provides or the Court has in the case in question for special reason dispensed with the need for the certificate and directed payment to be made without it.
(2) For the purpose of obtaining any payment the debenture or debenture stock certificate must be produced to the solicitor of the plaintiff in the action or to such other person as the Court may direct and that solicitor or person must indorse thereon a memorandum of payment and must make and sign a certificate certifying that the statement set out in the certificate has been indorsed on the debenture or debenture stock certificate, as the case may be, and send the certificate to the Accountant-General.

81. Actions for Specific Performance, etc., Summary Judgment.

2007-09-09T00:48:00.001-07:00

81. Actions for Specific Performance, etc., Summary Judgment.
ORDER 81
ACTIONS FOR SPECIFIC PERFORMANCE, ETC.,
SUMMARY JUDGMENT
1. Application by plaintiff for summary judgment. (O. 81 r. 1)
(1) In any action begun by writ indorsed with a claim
(a) for specific performance of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages; or
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such an agreement,
the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.
(2) An application may be made against a defendant under this rule whether or not he has entered an appearance in the action.
2. Manner in which application under Rule 1 must be made. (O. 81 r. 2)
(1) An application under rule 1 must be made by summons supported by an affidavit made by some person who can swear positively to the facts verifying the cause of action and stating that in his belief there is no defence to the action.
(2) The summons must set out or have attached thereto minutes of the judgment sought by the plaintiff.
(3) The summons, a copy of the affidavit in support and of any exhibit referred to therein must be served on the defendant within 14 days from the date of issue of the summons. [Am. PU(A)342/2000 w.e.f. 22 Sept 2000]
2A. Affidavits. (O. 81, r. 2A) .
Order 32 rule 13(2) shall apply mutatis mutandis to all affidavits in respect of an application under this Order.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
3. Judgment for plaintiff. (O. 81 r. 3)
Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action.
4. Leave to defend. (O. 81 r. 4)
(1) A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.
(2) The Court may give a defendant against whom such an application is made leave to defend the action either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.
(3) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity
(a) to produce any document;
(b) if it appears the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.
5. Directions. (O. 81 r. 5)
Where the Court orders that a defendant have leave to defend the action, the Court shall give directions as to the further conduct of action, and, if the Court so directs, Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modification apply as if the application under rule 1 were a summons for directions.
6. Costs. (O. 81 r. 6)
If the plaintiff makes an application under rule 1 where the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to Order 59, and, in particular, to rule 4(1) thereof, the Court may dismiss the application with costs and may, if the plaintiff is not an assisted person, require the costs to be paid by him forthwith.
7. Setting aside judgment. (O. 81 r. 7 )
Any judgment given against a defendant who does not appear at the hearing of an application under rule 1 may be set aside or varied by the Court on such terms as it thinks just.

80. Administration and Similar Actions.

2007-09-09T00:42:00.002-07:00

80. Administration and Similar Actions.
ORDER 80
ADMINISTRATION AND SIMILAR ACTIONS
1. Interpretation. (O. 80 r. 1)
In this Order "administration action" means an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.
2. Determination of questions, etc., without administration. (O. 80 r. 2)
(1) An action may be brought for the determination of any question or for any relief which could be determined or granted, as the case may be, in an administration action and a claim need not be made in the action for the administration or execution under the direction of the Court of the estate or trust in connection with which the question arises or the relief is sought.
(2) Without prejudice to the generality of paragraph (1), an action may be brought for the determination of any of the following questions
(a) any question arising in the administration of the estate of a deceased person or in the execution of a trust;
(b) any question as to the composition of any class of persons having a claim against the estate of a deceased person or a beneficial interest in the estate of such a person or in any property subject to a trust;
(c) any question as to the rights or interests of a person claiming to be a creditor of the estate of a deceased person or to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust.
(3) Without prejudice to the generality of paragraph (1) an action may be brought for any of the following reliefs
(a) an order requiring an executor, administrator or trustee to furnish and, if necessary, verify accounts;
(b) an order requiring the payment into Court of money held by a person in his capacity as executor, administrator or trustee;
(c) an order directing a person to do or abstain from doing a particular act in his capacity as executor, administrator or trustee;
(d) an order approving any sale, purchase, compromise or other transaction by a person in his capacity as executor, administrator or trustee;
(e) an order directing any act to be done in the administration of the estate of a deceased person or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed, as the case may be, under the direction of the Court.
3. Parties. (O. 80 r. 3)
(1) All the executors or administrators of the estate or trustees of the trust, as the case may be, to which an administration or such an action as is referred to in rule 2 relates must be parties to the action, and where the action is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff must be made a defendant.
(2) Notwithstanding anything in Order 15, rule 4(2) and without prejudice to the powers of the Court under that Order, all the persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, to which such an action as is mentioned in paragraph (1) relates need not be parties to the action; but the plaintiff may make such of those persons whether all or any one or more of them, parties as, having regard to the nature of the relief or remedy claimed in the action, he thinks fit.
(3) Where, in proceedings under a judgment or order given or made in an action for the administration under the direction of the Court of the estate of a deceased person, a claim in respect of a debt or other liability is made against the estate by a person not a party to the action, no party other than the executors or administrators of the estate shall be entitled to appear in any proceedings relating to that claim without the leave of the Court, and the Court may direct or allow any other party to appear either in addition to, or in substitution for, the executors or administrators on such terms as to costs or otherwise as it thinks fit.
4. Grant of relief in action begun by originating summons. (O. 80 r. 4)
In an administration action or such an action as is referred to in rule 2, the Court may make any certificate or order and grant any relief to which the plaintiff may be entitled by reason of any breach of trust, wilful default or other misconduct of the defendant notwithstanding that the action was begun by originating summons, but the foregoing provision is without prejudice to the power of the Court to make an order under Order 28, rule 8, in relation to the action.
5. Judgments and orders in administration actions. (O. 80 r. 5)
(1) A judgment or order for the administration or execution under the direction of the Court of an estate or trust need not be given or made unless in the opinion of the Court the questions at issue between the parties cannot properly be determined otherwise than under such a judgment or other.
(2) Where an administration action is brought by a creditor of the estate of a deceased person or by a person claiming to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust, and the plaintiff alleges that no or insufficient accounts have been furnished by the executors, administrators or trustees, as the case may be, then, without prejudice to its other powers, the Court may
(a) order that proceedings in the action be stayed for a period specified in the order and that the executors, administrators, or trustees, as the case may be, shall within that period furnish the plaintiff with proper accounts;
(b) if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled as aforesaid, give judgment or make an order for the administration of the estate to which the action relates and include therein an order that no proceedings are to be taken under the judgment or order, or under any particular account or inquiry directed, without the leave of the Judge in person.
6. Conduct of sale of trust property. (O. 80 r. 6)
Where in an administration action an order is made for the sale of any property vested in executors, administrators or trustees, those executors, administrators or trustees, as the case may be, shall have the conduct of the sale unless the Court otherwise directs.

79. Moneylenders Actions.

2007-09-09T00:40:00.002-07:00

79. Moneylenders Actions.
ORDER 79
MONEYLENDERS ACTIONS
1. Application and interpretation. (O. 79 r. 1)
(1) These rules apply to a moneylenders action subject to the following rules of this Order.
(2) In these rules
"moneylender" has the meaning assigned to it by section 2 of the Moneylenders Ordinance, 1951 (42/51)*;
"moneylenders action" means an action for the recovery of money lent by a moneylender or for the enforcement of any agreement or security relating to money so lent, being an action brought by the lender or an assignee.
2. Indorsement of writ. (O. 79 r. 2)
Before a writ beginning a moneylenders action is issued it must be indorsed with a statement that at the time of the making of the loan or contract or the giving of the security in question the lender was licensed as a moneylender.
3. Particulars to be included in statement of claim. (O. 79 r. 3)
Every statement of claim in a moneylenders action (whether indorsed on the writ or not) must state
(a) the date on which the loan was made;
(b) the amount actually lent to the borrower;
(c) the rate per cent per annum of interest charged;
(d) the date when the contract for repayment was made;
(e) the fact that a note or memorandum of the contract was made and was signed by the borrower;
(f) the date when a copy of the note or memorandum was delivered or sent to the borrower;
(g) the amount repaid;
(h) the amount due but unpaid;
(i) the date upon which such unpaid sum or sums became due; and
(j) the amount of interest accrued due and unpaid on every such sum.
4. Judgment in default of appearance or of defence. (O. 79 r. 4)
(1) In a moneylenders action judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.
(2) An application for the grant of leave under this rule must be made by summons, and the summons must, notwithstanding any thing in Order 62, rule 10, be served on the defendant.
(3) If the application is for leave to enter judgment in default of appearance, the summons shall not be issued until after the time limited for appearing.
(4) On the hearing of such an application, whether the defendant appears or not, the Court
(a) may exercise the powers of the Court under section 21(2) of the Moneylenders Ordinance 1951 (42/51);
(b) where it refuses leave under this rule to enter judgment on a claim or any part of a claim, may make or give any such order or directions as it might have made or given had the application been an application under Order 14, rule 1, for judgment on the claim.
5. Particulars to be included in originating summons. (O. 79 r. 5)
Where a moneylenders action is begun by originating summons, the summons must contain a statement of the matters specified in rules 2 and 3.

78. Defamations Actions.

2007-09-09T00:38:00.000-07:00

78. Defamations Actions.
ORDER 78
DEFAMATION ACTIONS
1. Application. (O. 78 r. 1)
These rules apply to actions for libel or slander subject to the following rules of this Order.
2. Indorsement of claim in libel action. (O. 78 r. 2)
Before a writ in an action for libel is issued it must be indorsed with a statement giving sufficient particulars of the publications in respect of which the action is brought to enable them to be identified.
3. Obligation to give particulars. (O. 78 r. 3)
(1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in respect of such sense.
(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.
(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.
(4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.
4. Provisions as to payment into Court. (O. 78 r. 4)
(1) Where in an action for libel or slander against several defendants sued jointly the plaintiff, in accordance with Order 22, rule 3(1), accepts money paid into Court by any of those defendants, in satisfaction of his cause of action against that defendant, then, notwithstanding anything in rule 3(4) of that Order, the action shall be stayed as against that defendant only, but
(a) the sum recoverable under any judgment given in the plaintiffs favour against any other defendant in the action by way of damages shall not exceed the amount (if any) by which the amount of the damages exceeds the amount paid into Court by the defendant as against whom the action has been stayed; and
(b) the plaintiff shall not be entitled to his costs of the action against the other defendant after the date of the payment into Court unless either the amount of the damages awarded to him is greater than the amount paid into Court and accepted by him or the Judge is of the opinion that there was reasonable ground for him to proceed with the action against the other defendant.
(2) Where in an action for libel a party pleads the defence for which section 10(2) of the Defamation Ordinance 1957*, provides, Order 22, rule 7, shall not apply in relation to that pleading.
5. Statement in open Court. (O. 78 r. 5)
(1) Where a party accepts money paid into Court in satisfaction of a cause of action for libel or slander, the plaintiff or defendant, as the case may be, may apply to a Judge in Chambers by summons for leave to make in open Court a statement in terms approved by the Judge.
(2) Where a party to an action for libel or slander which is settled before trial desires to make a statement in open Court, an application must be made to the Court for an order that the action be set down for trial, and before the date fixed for the trial the statement must be submitted for the approval of the Judge before whom it is to be made.
6. Interrogatories not allowed in certain cases. (O. 78 r. 6)
In an action for libel or slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendants sources of information or grounds of belief shall be allowed.
7. Evidence in mitigation of damages. (O. 78 r. 7)
In an action for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless 7 days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.
8. Fulfilment of offer of amends under section 7 of Defamation Ordinance 1957. (O. 78 r. 8)
(1) An application to the Court under section 7 of the Defamation Ordinance 1957, to determine any question as to the steps to be taken in fulfilment of an offer of amends made under that section must, unless the application is made in the course of proceedings for libel or slander in respect of the publication to which the offer relates, be made in Chambers, but only a Judge may determine such question.
(2) No appearance need be entered to an originating summons by which such an application is made.

77. Partners.

2007-09-09T00:34:00.000-07:00

77. Partners.
ORDER 77
PARTNERS
1. Actions by and against firms within jurisdiction. (O. 77 r. 1)
Subject to the provisions of any written law, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued.
2. Disclosure of partners names. (O. 77 r. 2)
(1) Any defendant to an action brought by partners in the name of a firm may serve on the plaintiffs or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with the Court may order in Form 191 the plaintiffs or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the action be stayed on such terms as the Court may direct.
(2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1), the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as plaintiffs in the writ.
(3) Paragraph (1) shall have effect in relation to an action brought against partners in the name of a firm as it has effect in relation to an action brought by partners in the name of a firm but with the substitution, for references to the defendant and the plaintiffs, of references to the plaintiff and the defendants respectively, and with the omission of the words "or may order" to the end.
3. Service of writ. (O. 77 r. 3)
(1) Where by virtue of rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served
(a) on any one or more of the partners; or
(b) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there;
and where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction.
(2) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an action against the firm is begun, the writ by which the action is begun must be served on every person within the jurisdiction sought to be made liable in the action.
(3) Every person on whom a writ is served under paragraph (1) must at the time of service be given a written notice in Form 192 stating whether he is served as a partner or as a person having the control or management of the partnership business or both as a partner and as such a person; and any person on whom a writ is so served but to whom no such notice is given shall be deemed to be served as a partner.
4. Entry of appearance in an action against firm. (O. 77 r. 4)
(1) Where persons are sued as partners in the name of their firm, appearance may not be entered in the name of the firm but only by the partners thereof in their own names, but the action shall nevertheless continue in the name of the firm.
(2) Where in an action against a firm the writ by which the action is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may enter an appearance in the action and state in the memorandum of appearance that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time.
An appearance entered in accordance with this paragraph shall, unless and until it is set aside, be treated as an appearance for the defendant firm.
(3) Where an appearance has been entered for a defendant in accordance with paragraph (2) then
(a) the plaintiff may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage of the proceedings;
(b) the defendant may either apply to the Court to set aside the service of the writ on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the plaintiff denying in respect of the plaintiffs claim either his liability as a partner or the liability of the defendant firm or both.
(4) The Court may at any stage of the proceedings in an action in which a defendant has entered an appearance in accordance with paragraph (2), on the application of the plaintiff or of that defendant order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner and at such time as the Court directs.
(5) Where in an action against a firm the writ by which the action is begun is served on a person as a person having the control or management of the partnership business, that person may not enter an appearance in the action unless he is a member of the firm sued.
5. Enforcing judgment or order against firm. (O. 77 r. 5)
(1) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6, issue against any property of the firm within the jurisdiction.
(2) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6 and to the next following paragraph, issue against any person who
(a) entered an appearance in the action as a partner; or
(b) having been served as a partner with the writ of summons, failed to enter an appearance in the action; or
(c) admitted in his pleading that he is a partner; or
(d) was adjudged to be a partner.
(3) Execution to enforce a judgment or order given or made against a firm may not issue against a member of the firm who was out of the jurisdiction when the writ of summons was issued unless he
(a) entered an appearance in the action as a partner; or
(b) was served within the jurisdiction with the writ as a partner; or
(c) was, with the leave of the Court given under Order 11, served out of the jurisdiction with the notice of the writ, as a partner;
and, except as provided by paragraph (1) and by the foregoing provisions of this paragraph, a judgment or order given or made against a firm shall not render liable, release or otherwise affect a member of the firm who was out of the jurisdiction when the writ was issued.
(4) Where a party who has obtained a judgment or order against a firm claims that a person is liable to satisfy the judgment or order as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to issue execution against that person, the application to be made by summons which must be served personally on that person.
(5) Where the person against whom an application under paragraph (4) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (3), give leave to issue execution against that person and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue or question in an action may be tried and determined.
6. Enforcing judgment in action between partners, etc. (O. 77 r. 6)
(1) Execution to enforce a judgment or order given or made in
(a) an action by or against a firm in the name of the firm, against or by a member of the firm; or
(b) an action by a firm in the name of the firm against a firm in the name of the firm where those firms have one or more members in common,
shall not issue except with the leave of the Court.
(2) The Court hearing an application under this rule may give such directions including directions as to the taking of accounts and the making of inquiries as may be just
7. Attachment of debts owed by firm. (O. 77 r. 7)
(1) An order may be made under Order 49, rule 1, in relation to debts due or accruing due from a firm carrying on business within the jurisdiction notwithstanding that one or more members of the firm is resident out of the jurisdiction.
(2) An order to show cause under the said rule 1 relating to such debts as aforesaid must be served on a member of the firm within the jurisdiction or on some other person having the control or management of the partnership business.
(3) Where an order made under the said rule 1 requires a firm to appear before the Court, an appearance by a member of the firm constitutes a sufficient compliance with the Order.
8. Actions begun by originating summons. (O. 77 r. 8)
Rules 2 to 7 shall, with the necessary modifications, apply in relation to an action by or against partners in the name of their firm begun by originating summons as they apply in relation to such an action begun by writ.
9. Application to person carrying on business in another name. (O. 77 r. 9)
An individual carrying on business within the jurisdiction in a name or style other than his own name may be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.
10. Applications for orders charging partners interest in partnership property, etc. (O. 77 r. 10)
(1) Every application to the Court by a judgment creditor of a partner of an order under section 25 of the Partnership Act 1961 (Act 135) (which authorizes the High Court or a Judge thereof to make certain orders on the application of a judgment creditor of a partner including an order charging the partners interest in the partnership property), and every application to the Court by a partner of the judgment debtor made in consequence of the first mentioned application must be made by summons.
(2) The Registrar may exercise the powers conferred on a Judge by the said section 25.
(3) Every summons issued by a judgment creditor under this rule, and every order made on such a summons, must be served on the judgment debtor and on such of his partners as are within the jurisdiction.
(4) Every summons issued by a partner of a judgment debtor under this rule, and every order made on such a summons, must be served
(a) on the judgment creditor; and
(b) on the judgment debtor; and
(c) on such of the other partners of the judgment debtor as do not join in the application and are within the jurisdiction.
(5) A summons or order served in accordance with this rule on some only of the partners of a partnership shall be deemed to have been served on all the partners of that partnership.

76. Disability.

2007-09-09T00:31:00.000-07:00

76. Disability.
ORDER 76
DISABILITY
1. Interpretation. (O. 76 r. 1)
In this Order
"Ordinance" means the Mental Disorders Ordinance 1952 (31/52);
"patient" means a mentally disordered person within the meaning of the Ordinance.
"person under disability" means a person who is an infant or a patient.
2. Person under disability must sue, etc., by next friend or guardian ad litem. (O. 76 r. 2)
(1) A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem.
(2) Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings is required or authorized by a provision of these rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.
(3) A next friend or guardian ad litem of a person under disability must act by a solicitor.
3. Appointment of next friend or guardian ad litem. (O. 76 r. 3)
(1) This rule shall not apply in relation to a probate action.
(2) Except as provided by paragraph (4) or (5) or by rule 6, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary.
(3) Where a person is authorized under the Ordinance to conduct legal proceedings in the name of a patient or on his behalf, that person shall be entitled to be next friend or guardian ad litem, as the case may be, of the patient in any proceedings to which his authority extends unless, in a case to which paragraph (4) or (5) or rule 6 applies, some other person is appointed by the Court under that paragraph or rule to be next friend or guardian ad litem, as the case may be, of the patient in those proceedings.
(4) Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.
(5) Where, after any proceedings have been begun, a party to the proceedings becomes a patient, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party.
(6) Except where the next friend or guardian ad litem, as the case may be, of a person under disability has been appointed by the Court
(a) the name of any person shall not be used in a cause or matter as next friend of a person under disability;
(b) an appearance shall not be entered in a cause or matter for a person under disability; and
(c) a person under disability shall not be entitled to appear by his guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on him,
unless and until the documents listed in paragraph (7) have been filed in the Registry.
(7) The documents referred to in paragraph (6) are the following
(a) a written consent in Form 189 to be next friend or guardian ad litem, as the case may be, of the person under disability in the cause or matter in question given by the person proposing to be such friend or guardian;
(b) where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorized under the Ordinance to conduct the proceedings in the cause or matter in question in the name of the patient or on his behalf, an office copy, sealed with the seal of the Court, of the order or other authorization made or given under the Ordinance by virtue of which he is so authorized; and
(c) except where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorized as mentioned in sub-paragraph (b), a certificate in Form 190 made by the solicitor for the person under disability certifying
(i) that he knows or believes, as the case may be, that the person to whom the certificate relates is an infant or a patient, giving (in the case of a patient) the grounds of his knowledge or belief; and
(ii) where the person under disability is a patient, that there is no person authorized as aforesaid; and
(iii) that the person so named has no interest in the cause or matter in question adverse to that of the person under disability.
4. Probate action: Appointment of next friend or guardian ad litem. (O. 76 r. 4)
(1) This rule applies in relation to a probate action to which a person under disability is a party or in which he intervenes or is cited under Order 72, rule 5.
(2) Where the person under disability is a patient and a person is authorized under the Ordinance to conduct legal proceedings in the name of the patient or on his behalf, the person so authorized shall be entitled to be next friend of the patient in any probate action to which his authority extends.
(3) Where the person under disability is an infant who is not a patient and he has a statutory guardian or a testamentary guardian who is qualified to be his next friend by virtue of paragraph (8), that guardian shall be entitled to be next friend of the infant in a probate action.
(4) Where the person under disability is an infant who has attained the age of 16 years and is not a patient, and there is no person qualified by virtue of paragraph (3) to be his next friend, the infant may appoint as his next friend a person who is qualified to be such friend by virtue of paragraph (8) and who is one of his next of kin or, where the infant is a married woman, one of her next of kin or her husband.
(5) Where an infant appoints a person under paragraph (4) to be his next friend in a probate action, the person so appointed may be next friend of any other infant in that action provided that the other infant is under 16 years of age, is not a patient and his interest in the action is the same as that of the infant making the appointment.
(6) Where there is no person qualified by virtue of paragraph (2) or (3) as the case may be, to be next friend of a person under disability in a probate action and that person is either not entitled under paragraph (4) to appoint a person to be his next friend or, being so entitled, makes no appointment thereunder, the next friend of the person under disability in the action shall be such one of his next of kin or other person as the Court may appoint.
(7) An application under paragraph (6) for the appointment of a next friend of a person under disability may be made ex parte by summons and must be supported by an affidavit showing
(a) that there is no person entitled to be such friend by virtue of paragraph (2) or (3), or appointed as such under paragraph (4), as the circumstances require; and
(b) if such be the case, that the person proposed as next friend is a next of kin of the person under disability; and
(c) that the person proposed as next friend is willing and a proper person to act as such and has no interest in the action adverse to that of the person under disability.
(8) A person is qualified to be next friend of a person under disability if he is competent and willing to act as such and has no interest in the action in question adverse to that of the person under disability.
(9) Paragraph (2) to (8) shall apply for the purpose of determining who shall be guardian ad litem of a person under disability in a probate action as they apply for the purpose of determining who shall be next friend of such a person and references in those paragraph to a next friend shall be construed accordingly:
Provided that a person authorized as mentioned in paragraph (2) shall not be entitled by virtue of that paragraph to be guardian ad litem of a patient in a probate action if in a case to which rule 6 applies some other person is appointed by the Court under that rule to be guardian ad litem of the patient in that action.
5. Probate action: Further provisions. (O. 76 r. 5)
(1) Where a party to a probate action is a person under disability, then, unless the next friend or guardian ad litem, as the case may be, of that person has been appointed such friend or guardian by the Court, the writ beginning the action (where that person is a plaintiff) shall not be issued, and an appearance shall not be entered for him in the action (where he is a defendant, intervener, or person cited under Order 72 rule 5) without the consent of the Registrar.
(2) On the making of an application for a consent under paragraph (1) in relation to an infant who is not a patient, there must be produced to the Registrar
(a) where the next friend or guardian ad litem of the infant is his statutory guardian or testamentary guardian, an affidavit deposing to the guardianship and age of the infant and showing that the guardian has no interest in the action adverse to that of the infant;
(b) where the next friend or guardian ad litem of the infant is a person appointed under rule 4(4), or under rule 4(4) as applied by rule 4(9)
(i) the appointment; and
(ii) a written consent to act as next friend or guardian ad litem as the case may be, given by the person so appointed; and
(iii) an affidavit deposing to the age of the infant and containing the evidence which would be required by rule 4(7), or by rule 4(7) as so applied, to be contained in an affidavit in support of an application for the appointment of that person as next friend or guardian ad litem, as the case may be, by the Court.
(3) On the making of an application for consent under paragraph (1) in relation to a patient, there must be produced to the Registrar an office copy, sealed with the seal of the Court, of the order or other authorization made or given under the Ordinance by virtue of which the next friend or guardian ad litem of the patient, as the case may be, is authorized to conduct legal proceedings in the probate action in question in the name of the patient or on his behalf.
6. Appointment of guardian where person under disability does not appear. (O. 76 r. 6)
(1) Where
(a) in action against a person under disability begun by writ, or by originating summons to which an appearance is required to be entered, no appearance is entered in the action for that person; or
(b) the defendant to an action serves a defence and counterclaim on a person under disability who is not already a party to the action, and no appearance is entered for that person,
an application for the appointment by the Court of a guardian ad litem of that person must be made by the plaintiff or defendant, as the case may be, after the time limited (as respects that person) for appearing and before proceeding further with the action or counterclaim.
(2) Where a party to an action has served on a person under disability who is not already a party to the action a third party notice within the meaning of Order 16 and no appearance is entered for that person to that notice, an application for the appointment by the Court of a guardian ad litem of that person must be made by that party after the time limited (as respects the person) for appearing and before proceeding further with the third party proceedings.
(3) Where in any proceedings against a person under disability begun by petition or motion, or by originating summons to which no appearance need be entered, that person does not appear by a guardian ad litem, at the hearing of the petition, motion or summons, as the case may be, the Court hearing it may appoint a guardian ad litem of that person in the proceedings or direct that an application be made by the petitioner or applicant, as the case may be, for the appointment of such a guardian.
(4) At any stage in the proceedings under judgment or order, notice of which has been served on a person under disability, the Court may, if no appearance is entered for that person, appoint a guardian ad litem of that person in the proceedings or direct that an application be made for the appointment of such a guardian.
(5) An application under paragraph (1) or (2) must be supported by evidence proving
(a) that the person to whom the application relates is a person under disability;
(b) that the person proposed as guardian ad litem is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability;
(c) that the writ, originating summons, defence and counterclaim or third party notice, as the case may be, was duly served on the person under disability; and
(d) subject to paragarph (6), that notice of the application was, after the expiration of the time limited for appearing and at least 7 days before the day named in the notice for hearing of the application, so served on him.
(6) If the Court so directs, notice of an application under paragraph (1) or (2) need not be served on a person under disability.
(7) An application for the appointment of a guardian ad litem made in compliance with a direction of the Court given under paragraph (3) or (4) must be supported by evidence proving the matters referred to in paragraph (5)(b).
7. Application to discharge or vary certain orders. (O. 76 r. 7)
An application to the Court on behalf of a person under disability served with an order made ex parte under Order 15, rule 7, for the discharge or variation of the order must be made
(a) if a next friend or guardian ad litem is acting for that person in the cause or matter in which the order is made, within 14 days after the service of the order on that person;
(b) if there is no next friend or guardian ad litem acting for that person in that cause or matter, within 14 days after the appointment of such a friend or guardian to act for him.
8. Admission not to be implied from pleading of person under disability. (O. 76 r. 8)
Notwithstanding anything in Order 18, rule 13(1), a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleadings of the opposite party by reason only that he has not traversed it in his pleadings.
9. Discovery and interrogatories. (O. 76 r. 9)
Order 24 and 26 shall apply to a person under disability and to his next friend or guardian ad litem.
10. Compromise etc., by person under disability. (O. 76 r. 10)
Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into Court, whenever entered into or made, shall so far as it relates to that persons claim be valid without the approval of the Court.
11. Approval of settlement. (O. 76 r. 11)
(1) Where, before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjunction with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the Courts approval to the settlement, then notwithstanding, anything in Order 5, rule 2, the claim may be made in proceedings begun by originating summons and in the summons an application may also be made for
(a) the approval of the Court to the settlement and such orders or directions as may be necessary to give effect to it or as may be necessary or expedient under rule 12; or
(b) alternatively, directions as to the further prosecution of the claim.
(2) Where in proceedings under this rule a claim is made under section 7 of the Civil Law Act 1956 (Act 67) the originating summons must include the particulars required under the said Act.
(3) No appearance need be entered to an originating summons under this rule.
(4) In this rule "settlement" includes a compromise.
12. Control of money recovered by person under disability. (O. 76 r. 12)
(1) Where in any proceedings
(a) money is recovered by or on behalf of, or adjudge or ordered or agreed to be paid to, or for the benefit of, a person under disability; or
(b) money paid into Court is accepted by or on behalf of a plaintiff who is a person under disability,
the money shall be dealt with in accordance with directions given by the Court.
(2) Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into Court and invested or otherwise dealt with.
(3) Without prejudice to the foregoing provisions of this rule, directions given under this rule may include any general or special directions that the Court thinks fit to give and, in particular, directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into Court, to the plaintiff, or to the next friend in respect of moneys paid or expenses incurred for or on behalf or for the benefit of the person under disability or for his maintenance or otherwise for his benefit or to the plaintiffs solicitor in respect of costs.
(4) Where in pursuance of directions given under this rule money is paid into Court to be invested or otherwise dealt with, the money (including any interest thereon) shall not be paid out, nor shall any securities in which the money is invested, or the dividends thereon, be sold, transferred or paid out of Court, except in accordance with an order of the Court.
(5) The foregoing provisions of this rule shall apply in relation to a counterclaim by or on behalf of a person under disability, and a claim made by or on behalf of such a person in an action by any other person for relief under section 361 of the Merchant Shipping Ordinance 1952 (70/52) as if for references to a plaintiff and a next friend there were substituted references to a defendant and to a guardian ad litem respectively.
13. Proceedings under Civil Law Act 1956: Apportionment by Court. (O. 76 r. 13)
(1) Where a single sum of money is paid into Court under Order 22, rule 1, in satisfaction of causes of action arising under the Civil Law Act 1956 (Act 67) and that sum is accepted, the money shall be apportioned between the different causes of action by the Court either when giving directions for dealing with it under rule 12 (if that rule applies) or when authorising its payment out of Court.
(2) Where, in an action in which a claim under the Civil Law Act 1956 (Act 67) is made by or on behalf of more than one person, a sum in respect of damages is adjudged or ordered or agreed to be paid in satisfaction of the claim, or a sum of money paid into Court under Order 22, rule 1, is accepted in satisfaction of the cause of action under the Civil Law Act, it shall be apportioned between those persons by the Court.
The reference in this paragraph to a sum of money paid into Court shall be construed as including a reference to part of a sum so paid, being the part apportioned by the Court under paragraph (1) to the cause of action under the Civil Law Act 1956.
14. Service of certain documents on person under disability. (O. 76 r. 14)
(1) Where in any proceedings a document is required to be served personally on any person and that person is a person under disability this rule shall apply.
(2) Subject to the following provisions of this rule and to Order 24, rule 16(3), and Order 26, rule 7(3), the document must be served
(a) in the case of an infant who is not also a patient on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;
(b) in the case of a patient, on the person (if any) who is authorized under the Ordinance to conduct in the name of the patient or on his behalf the proceedings in connection with which the document is to be served or, if there is no person so authorized, on the person with whom he resides or in whose care he is;
and must be served in the manner required by these rules with respect to the document in question.
(3) Notwithstanding anything in paragraph (2), the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability.
(4) A judgment or order requiring a person to do, or refrain from doing, any act, a notice of motion or summons for the committal of any person, and a writ of subpoena against any person, must if that person is a person under disability, be served personally on him unless the Court otherwise orders.
This paragraph shall not apply to an order for interrogatories or for discovery or inspection of documents.

75. Distress Act 1951 (Act 255).

2007-09-09T00:28:00.003-07:00

75. Distress Act 1951 (Act 255).
ORDER 75
DISTRESS ORDINANCE 1951*
1. Application and interpretation. (O. 75 r. 1)
(1) These rules apply to proceedings under the Distress Ordinance 1951 subject to the following rules of this Order.
(2) In this Order
"Ordinance" means the Distress Ordinance 1951);
"landlord" and "tenant" have the respective meanings assigned to them by section 2 of the Ordinance.
2. Application for writ of distress. (O. 75 r. 2)
(1) Every application for a writ of distress must be made ex parte by originating summons supported by affidavit in Form 185.
(2) Where the application is made by a duly authorized agent of the landlord, he must produce his written authority in Form 186.
3. Writ of distress. (O. 75 r. 3)
A writ of distress must be in Form 187.
4. Notice of seizure. (O. 75 r. 4)
A notice of seizure under section 9 of the Ordinance must be in Form 94.
5. Applications under section 10 or 16. (O. 75 r. 5)
(1) An application under section 10 or 16 of the Ordinance for the discharge or suspension of the writ or for the release of any part of the property distrained shall be made by summons within 7 days of the seizure supported by affidavit stating the grounds on which the application is made.
(2) A copy of the application and the affidavit must be served on the landlord or his agent, as the case may be, before the hearing thereof.
6. Sale by public auction. (O. 75 r. 6)
Order 46, rules 23 and 24 shall apply to all sales under the Ordinance.
7. Return of property unsold. (O. 75 r. 7)
(1) As soon as the amount recoverable under the writ of distress has been realised by the sale of any of the movable property seized, the balance of the property seized must be released and, if it had been removed, returned to the premises at which the seizure was made.
(2) The amount recoverable under the writ shall for the purposes of this rule be deemed to include the rent in respect of which the writ was issued, the expenses of the sale and of execution of the writ, the Court fees and all costs due to the landlord.
8. Procedure in cases under section 20. (O. 75 r. 8)
(1) In such cases as are provided for in section 20 of the Ordinance, the sheriff must, unless he is already in possession under a writ of execution, deliver a copy of the writ of distress to the officer in possession under the writ of execution, and inform him by notice of the amount due to the landlord for the last six months rent, or any less period for which rent is due, and the amount of all fees and costs due in respect of the issue and execution of the writ of distress.
(2) An application under section 20(3) of the Ordinance to discharge or suspend the writ of distress shall be made within the time and in the manner prescribed by rule 5.
9. Officer in possession to notify Sheriff of intended release. (O. 75 r. 9)
Where the property seized under a writ of execution is to be released, the officer in possession under such writ must, before giving up possession, notify the sheriff his intention so to do.
10. Application under section 21. (O. 75 r. 10)
(1) An application by the sheriff under section 21(1) of the Ordinance must be supported by affidavit of a person having knowledge of the facts stating the circumstances of the alleged removal.
(2) An authority to the sheriff under this section must be in Form 188.
11. Application under section 22(2). (O. 75 r. 11)
An application under section 22(2) of the Ordinance must be supported by affidavit, and notice of the application must be served on the landlord or his agent, as the case may be, at his address for service at least 2 clear days before the hearing thereof.
12. Address for service. (O. 75 r. 12)
Any person making any application to a Court under this Ordinance must give an address for service.
13. Suspension of execution of writ. (O. 75 r. 13)
Whenever the execution of a writ of distress is ordered to be suspended, unless the Court otherwise orders, any property already seized thereunder shall remain under seizure and in the possession of the Sheriff or other officer in possession; but the sale thereof under the writ of distress shall be postponed till the expiration of the period for which the execution of the writ is suspended.
14. Costs. (O. 75 r. 14)
The costs of all proceedings taken under the Ordinance shall be in the discretion of the Court.

74. Debtors Act 1957 (Act 256).

2007-09-09T00:25:00.000-07:00

74. Debtors Act 1957 (Act 256).
ORDER 74
DEBTORS ORDINANCE 1957*
1. Application and interpretation. (O. 74 r. 1)
(1) These rules apply to proceedings under the Debtors Ordinance 1957 subject to the following rules of this Order.
(2) In this Order
"Ordinance" means the Debtors Ordinance 1957 (71/57);
"judgment" includes any order for the payment of money.
Arrest of Judgment Debtor
2. Application under section 6. (O. 74 r. 2)
An application for an order of arrest under section 6 of the Ordinance must be made ex parte by summons supported by an affidavit to a Judge in Chambers, unless the Court otherwise orders.
3. Form of order of arrest. (O. 74 r. 3)
An order for arrest under section 6 of the Ordinance must be in Form 178.
4. Conveyance and subsistence money. (O. 74 r. 4)
(1) Before any arrest is made under section 6 of the Ordinance, the judgment creditor must, unless the Registrar otherwise orders, deposit in the Registry a sufficient sum of money to defray the cost of bringing the debtor before the Court and detaining him in custody pending his appearance.
(2) Before an order of commitment made under of Ordinance is executed, the judgment creditor must deposit in the Registry a sufficient sum of money to provide for the subsistence of the debtor for the period of imprisonment at such rate as may be prescribed by the Minister by notification in the Gazette.
(3) Order 46, rules 12 and 13 shall apply with the necessary modifications to the sums of money deposited under this rule.
Arrest or Attachment before judgment
5. Applications for arrest and attachment before judgment under section 15 or 19. (O. 74 r. 5)
(1) An application under section 15 or 19 of the Ordinance must be made ex parte by summons supported by an affidavit to a Judge in Chambers, unless the Court otherwise orders.
(2) An affidavit under paragraph (1) and any order made thereon, must be served on the defendant as soon as possible.
6. Indorsement and form of order. (O. 74 r. 6)
(1) An order of arrest or attachment of property before judgment must state the amount of claim and costs in respect of which it is issued, and before delivery to the Sheriff, be indorsed with the plaintiffs address for service.
(2) An order under paragraph (1) must be in one of the forms in Form 179.
7. Plaintiff to provide defendants subsistence. (O. 74 r. 7)
Rule 4 shall with the necessary modifications apply to a plaintiff at whose instance a defendant is arrested or committed under part IV of the Ordinance.
8. Mode of seizure before judgment. (O. 74 r. 8)
Any property liable to seizure under Part V of the Ordinance shall be seized in the same manner as a seizure under a writ of seizure and sale.
9. Deposit against costs of attachment. (O. 74 r. 9)
(1) Before any order of attachment of property is executed, the plaintiff must deposit in the Registry a sufficient sum of money to defray the cost of the attachment and of keeping possession of the property,
(2) Order 46, rules 12 and 13, shall apply with the necessary modification to the sums of money deposited under this rule.
10. Release on payment of claim and costs. (O. 74 r. 10)
Where any property attached under an order of attachment is released by the sheriff on the defendant paying to the sheriff the sum stated in the order of attachment as the amount claimed by the plaintiff and costs as stated therein together with the costs of the execution up to the time of such payment, or under section 20 of the Ordinance the proper officer must give a receipt and keep the monies in such place as directed by the sheriff to abide the order of the Court.
11. Claims by third party. (O. 74 r. 11)
Any claim by a third party to property seized under part V of the Ordinance shall be dealt with in the manner relating to interpleader proceedings.
Judgment Notice
12. Application for judgment notice under section 8. (O. 74 r. 12)
Every application for a notice (thereinafter called a "judgment notice") under section 8 of the Ordinance must be by praecipe in Form 180 verified by the oath of the applicant.
13. Judgment notice (O. 74 r. 13)
A judgment notice must be in Form 181 and must be served personally, not less than 4 clear days before the day appointed for the debtors attendance unless the Court otherwise orders.
14. Hearing of judgment notice. (O. 74 r. 14)
(1) On the hearing of a judgment notice the Court may make an order of commitment or vary the instalment order as it thinks just.
(2) If an order of commitment is made, the Court may direct the execution of such order to be suspended to enable the debtor to pay the amount in respect of which the order is made.
Commitment
15. Order of commitment under section 7 or 17. (O. 74 r. 15)
An order of commitment under section 7 or section 17 of the Ordinance must be in Form 182.
16. Payment by debtor. (O. 74 r. 16)
Where an order of commitment for non-payment of money is made the debtor any, at any time, either to the sheriff or, if he is in prison, to the officer in charge of the prison, pay the amount stated in the order and obtain his discharge.
17. Certificate of satisfaction. (O. 74 r. 17)
(1) Where any judgment debt, in respect of which a debtor is imprisoned under the Ordinance, is satisfied by payment or otherwise, the judgment creditor must lodge with the Registrar a certificate of satisfaction signed by him in Form 183.
(2) If the judgment creditor makes default in lodging such certificate as aforesaid, the debtor, or any person on his behalf, may apply to the Court for an order for his discharge, and the Court in making such order may direct that the costs of the application be paid by the judgment creditor
(3) An order under this rule must be in Form 184.
Miscellaneous
18. Security, how given. (O. 74 r. 18)
(1) Where an order is made requiring a defendant to give security under the Ordinance the security shall be given in such manner, at such time, and on such terms (if any) as the Court may direct.
(2) when security has been given as ordered, the defendant, if he is in custody must be released.
19. Discharge of surety. (O. 74 r. 19)
Whenever the Court discharges a surety under section 16 of the Ordinance, it may at the same time order the defendant to be taken into custody and committed to prison for a term which may extend to six weeks unless he sooner gives fresh security.
20. Control or the Court. (O. 74 r. 20)
The money deposited, if any, and the security and all proceedings thereon shall be subject to the order and control of the Court.
21. Bankruptcy or administration order against debtor. (O. 74 r. 21)
Where at the hearing of any proceedings under the Ordinance the debtor satisfies the Court that a receiving order or an order of adjudication in bankruptcy or an administration order under section 106 of the Bankruptcy Act 1967 (55/67) has been made against him and that the debt was provable in the bankruptcy or in the administration, no order shall be made:
Provided that where an order of commitment has been made, the order if not executed shall be recalled and cancelled, and if the debtor is in prison, he shall be discharged.
22. Date of order of arrest. (O. 74 r. 22)
Any order of commitment or arrest of a judgment debtor under the Ordinance, shall bear the date of the day on which it was made, and shall continue in force for one year from and including such date and no longer, but it may be renewed subject to the conditions and in the manner prescribed for the renewal of writs of execution.
23. Costs. (O. 74 r. 23)
Unless in any case it is otherwise ordered, the costs of and incidental to orders for arrest, commitment and attachment under the Ordinance, and any amount spent by the plaintiff under rules 5 and 10, shall be the plaintiffs costs in the cause.

73. Proceedings by and against the Government.

2007-09-09T00:22:00.000-07:00

73. Proceedings by and against the Government.
ORDER 73
PROCEEDINGS BY AND AGAINST THE GOVERNMENT
1. Application and interpretation. (O. 73 r. 1)
(1) These rules apply to civil proceedings to which the Government is a party subject to the following rules of this Order.
(2) In this Order
"civil proceedings by the Government"; "civil proceedings against the Government"; and "civil proceedings by or against the Government" have the same respective meanings as in Part III of the Government Proceedings Ordinance, 1956 (58/56);
"civil proceedings to which the Government is a party" has the same meaning as it has for the purposes of Part V of the Government Proceedings Ordinance, 1956 (58/56), by virtue of section 2(3) of that Ordinance;
"order against the Government" means any order (including an order for costs) made in any civil proceedings by or against the Government or in connection with any arbitration to which the Government is a party, in favour of any person against the Government or against a Government department or against an officer of the Government as such;
"order" includes a judgment, decree, rule, award or declaration.
2. Particulars to be included in indorsement of claim. (O. 73 r. 2)
(1) In the case of a writ which begins civil proceedings against the Government the indorsement of claim required by Order 6, rule 2, shall include a statement of the circumstances in which the Governments liability is alleged to have arisen and as to the Government department and officers of the government concerned.
(2) If in civil proceedings against the Government a defendant considers that the writ does not contain a sufficient statement as required by this rule, he may before the expiration of the time limited for appearing, apply to the plaintiff by notice for a further and better statement containing such information as may be specified in the notice.
(3) Where a defendant gives a notice under this rule, the time limited for appearing shall not expire until 4 days after the defendant has notified the plaintiff in writing that the defendant is satisfied with the statement supplied in compliance with the notice or 4 days after the Court has, on the application of the plaintiff by summons served on the defendant not less than 7 days before the return day, decided that no further information as to the matters referred to in paragraph (1) is reasonably required.
3. Service on the Government. (O. 73 r. 3)
(1) Order 10, Order 11 and any other provision of these rules relating to service out of the jurisdiction shall not apply in relation to the service of any process by which civil proceedings against the Government are begun.
(2) Personal service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings is not requisite; but where the proceedings are by or against the Government service on the Government must be effected
(a) in the case of proceedings by or against the Federal Government, on the Attorney General or such other officer as may be designated in that behalf, either generally or specially, by the Attorney General by notification in the Gazette, and
(b) in the case of proceedings by or against the Government of a State, on the State Secretary of such State.
(3) In relation to the service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government, Order 62, rules 6 and 10, shall not apply, and Order 62, rule 8, shall apply as if the reference therein to rules 3 and 6(1)(a) of that order were a reference to paragraph (2)(a) of this rule.
4. Counterclaim and set off. (O. 73 r. 4)
(1) Notwithstanding Order 15, rule 2, and Order 18 rules 17 and 18, a person may not in any proceedings by the Government make any counterclaim or plead a set-off if the proceedings are for the recovery of, or the counterclaim or set-off arises out of a right or claim to repayment in respect of, any taxes, duties or penalties.
(2) Notwithstanding Order 15, rule 2, and Order 18 rules 17 and 18, no counterclaim may be made or set-off pleaded, without the leave of the Court by the Government in proceedings against the Government or by any person in proceedings by the Government
(a) if the Government is sued or sues in the name of a Government department and the subject-matter of the counterclaim or set-off does not relate to that department; or
(b) if the Government is sued or sues in the name of the Attorney General.
(3) Any application for leave under this rule must be made by summons.
5. Summary judgment. (O. 73 r. 5)
(1) No application against the Government shall be made under Order 14, rule 1, or Order 81, rule 1, in any proceedings against the Government nor under Order 14, rule 5, in any proceedings by the Government.
(2) Where an application is made by the Government under Order 14, rule 1, Order 14, rule 5, or Order 81, rule 1, the affidavit required in support of the application may be made by
(a) the solicitor acting for the Government; or
(b) an officer duly authorized by the solicitor so acting or by the department concerned;
and the affidavit shall be sufficient if it sates that in the deponents belief the applicant is entitled to the relief claimed and there is no defence to the claim or part of a claim to which the application relates or no defence except as to the amount of any damages claimed.
6. Summary applications to the Court in certain revenue matters. (O. 73 r. 6)
(1) This rule applies to applications under section 19 of the Government Proceedings Ordinance, 1956.
(2) An application to which this rule applies must be made by originating summons.
(3) The person from whom any account or information or payment is claimed or by whom any books are required to be produced must be made defendant to the application,
(4) An originating summons under this rule
(a) must be entitled in the matter or matters out of which the need for the application arises and in the matter or the Government Proceedings Ordinance, 1956; and
(b) must refer to the written law under which the account or information or payment or the production of books is claimed and, where information is claimed, must show (by appropriate questions or otherwise) what information is required.
(5) Upon any application to which the rule applies an affidavit by a duly authorized officer of the Government department concerned setting out the state of facts upon which the application is based and stating that he has reason to think that those facts exist shall be evidence of those facts; and if evidence is filed disputing any of those facts further evidence may be filed, and the Court may either decide the matter upon the affidavits (after any cross-examination that may have been ordered) or may direct that it be decided by oral evidence in Court.
(6) An order in favour of the Government on an application to which this rule applies shall, unless the Court otherwise determines, name a time within which each of its terms is to be complied with.
(7) Nothing in this rule shall, in relation to any case in which the only relief claimed by the Government is the payment of money, be construed as requiring the Government to proceed by way of an application to which this rule applies or as preventing the Government from availing itself of any other procedure which is open to it under these rules.
7. Judgment in default. (O. 73 r. 7)
(1) Except with the leave of the Court, no judgment in default of appearance or of pleading shall be entered against the Government in civil proceedings against the Government or in third party proceedings against the Government.
(2) Except with the leave of the Court, Order 16 rules 5(1)(a), shall not apply in the case of third party proceedings against the Government,
(3) An application for leave under this rule must be made by summons and the summons must be served not less than 7 days before the return day.
8. Third party notice. (O. 73 r. 8)
(1) Notwithstanding anything in Order 16, a third party notice (including a notice issuable by virtue of Order 16, rule 9) for service on the Government shall not be issued without the leave of the Court, and the application for the grant of such leave must be made by summons, and the summons must be served on the plaintiff and the Government.
(2) Leave to issue such a notice for service on the Government shall not be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned,
9. Interpleader Application for order against Government. (O. 73 r. 9)
No order shall be made against the Government under Order 17, rule 5(3), except upon an application by summons served not less than 7 days before the return day.
9A. Interim orders against the Government. (O. 73 r. 9A) [Ins. P.U. (A) 192/93]
No application against the Government shall be made under Order 22A, rule 2 in any proceedings against the Government not under Order 22A, rule 10 in any proceedings by the Government.
10. Discovery and interrogatories. (O. 73 r. 10)
(1) Order 24, rules 1 and 2, shall not apply in civil proceedings to which the Government is party,
(2) In any civil proceedings to which the Government is a party any order of the Court made under the powers conferred by section 36(1) of the Government Proceedings Ordinance 1956*, shall be construed as not requiring the disclosure of the existence of any document the existence of which it would, in the opinion of a Minister be injurious to the public interest to disclose.
(3) Where in any such proceedings an order or the Court directs that a list of documents made in answer to an order for discovery against the Government shall be verified by affidavit, the affidavit shall be made by such officer of the Government as the Court may direct.
(4) Where in any such proceedings an order is made under the said section 36 for interrogatories to be answered by the Government the Court shall direct by what officer of the Government the interrogatories are to be answered.
(5) In any proceedings by the Government for the enforcement of any right for the enforcement of which proceedings by way of information might have been taken if the Government Proceedings Ordinance 1956 (58/56) had not passed, the Government may serve interrogatories or further interrogatories (except any third or subsequent set of interrogatories) under Order 27 without the leave of the Court.
11. Evidence. (O. 73 r. 11)
For the avoidance of doubt it is hereby declared that any powers exercisable by the Court in regard to the taking of evidence are exercisable in proceedings by or against the Government as they are exercisable in proceedings between subjects.
12. Execution and satisfaction of orders. (O. 73 r. 12)
(1) Nothing in Order 45 to 52 shall apply in respect of any order against the Government.
(2) An application under the proviso to subsection (1) of section 33 of the Government Proceedings Ordinance 1956, for a direction that a separate certificate shall be issued under that subsection with respect to the costs (if any ) ordered to be paid to the applicant may be made to the Court ex parte by summons.
(3) Any such certificate must be in Form 177.
13. Attachment of debts, etc. (O. 73 r. 13)
(1) No order
(a) for the attachment of debts under Order 49; or
(b) for the appointment of a receiver under Order 30 or 51,
shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Government.
(2) Every application to the Court for an order under section 35(1) of the Government Proceedings Ordinance 1956, restraining any person from receiving money payable to him by the Government and directing payment of the money to the applicant or some other person must be made by summons served at least 4 days before the return day on the Government and, unless the Court otherwise orders, on the person to be retained or his solicitor; and the application must be supported by an affidavit setting out the facts giving rise to it, and particular identifying affidavit setting out the facts giving rise to it, and in particular identifying the particular debt from the Government in respect of which it is made.
(3) Order 49, rules 5 and 6, shall apply in relation to such an application as is mentioned in paragraph (2) for an order restraining a person from receiving money payable to him by the Government as those rules apply to an application under Order 49, rule 1, an order for their attachment of debt owing to any person from a garnishee, except that the Court shall not have power to order execution to issue against the Government.
14. Applications under sections 21, 22, 27 and 37 of Government Proceedings Ordinance 1956. (O. 73 r. 14)
(1) Every application to the Court under sections 21(2), 22(2) and 27 of the Government Proceedings Ordinance 1956 (58/56), may be made by summons.
(2) An application such as is referred to in section 37(2) of the Government Proceedings Ordinance 1956, may be made to the Court at any time before trial by summons, or may be made at the trial of their proceedings.

72. Contentious Probate Proceedings.

2007-09-09T00:20:00.000-07:00

72. Contentious Probate Proceedings.
ORDER 72
CONTENTIOUS PROBATE PROCEEDINGS
1. Application and interpretation. (O. 72 r. 1)
(1) This Order applies to probate causes and matters and the other provisions of these rules apply to those causes and matters subject to the provisions of this Order.
(2) In these rules "probate action" means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for a revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious.
(3) In this Order "will" includes a codicil.
2. Requirements in connection with issue of writ. (O. 72 r. 2)
(1) A probate action must be begun by writ, and the writ must be issued out of the Registry.
(2) Before a writ beginning a probate action is issued it must be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates.
(3) A writ beginning an action for the revocation for the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under rule 7 has been issued or the probate or letter of administration, as the case may be, has or have been lodged in the Registry.
3. Service of writ out of the jurisdiction. (O. 72 r. 3)
(1) Subject to paragraph (2), service out of the jurisdiction of a notice of writ, by which a probate action is begun is permissible with the leave of the Court.
(2) Order 11, rules 3 and 4, shall apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 to 2 of that Order.
4. Intervener in probate action. (O. 72 r. 4)
(1) A person not a party to a probate action may apply to the Court for leave to intervene in a probate action.
(2) An application under this rule must be made by summons supported by an affidavit showing the interest of the applicant in the estate of the deceased.
(3) An applicant who obtains leave to intervene in a probate action shall not be entitled to be heard in the action unless he enters an appearance therein.
(4) Where the Court grants leave under this rule, it may give such directions as to the service of pleadings, the filing of an affidavit of testamentary scripts or other matters as it thinks necessary.
5. Citation to see proceedings. (O. 72 r. 5)
(1) On the application of the plaintiff, or of any other party who has pleaded in a probate action, a citation may be issued against any person not a party to the action who has an adverse interest to the applicant notifying him that if he does not enter an appearance in the action judgment may be given therein without further notice to him.
(2) Where a person on whom a citation under this rule is served fails to enter an appearance in the action, the party on whose application the citation was issued shall not be entitled to be heard at the trial of the action without the leave of the Court unless he has filed an affidavit proving due service of the citation on that person.
6. Entry of appearance. (O. 72 r. 6)
(1) The office for entry of appearance in a probate action is in all cases the Registry and Order 12, in its application to such an action, shall have effect accordingly.
(2) Without prejudice to paragraph (1), Order 12, rules 1, 2 and 3 shall apply to the entry of appearance by a person authorized to intervene in a probate action, and by a person cited under rule 5, as if
(a) that person were a defendant; and
(b) the parties to the action (in the case of an intervener) or the party at whose instance the citation was issued (in the case of the person cited) were the plaintiff.
7. Citation to bring in grant. (O. 72 r. 7)
In an action for the revocation of the grant of probate of the will, or letters of administration of the estate of a deceased person, a citation against the person to whom the probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Registry the probate or letters of administration, as the case may be, may be issued on the application of the plaintiff.
8. Citations. (O. 72 r. 8)
(1) A citation under rule 5 or 7 must be issued out of the Registry and must be settled by the Court before it is issued.
(2) Before such a citation is issued an affidavit verifying the statements of fact to be made in the citation must be sworn by the person applying for it to be issued:
Provided that the Court may in special circumstances allow the affidavit to be sworn by that persons solicitor.
(3) Issue of a citation takes place upon its being sealed by an officer of the Registry.
(4) Without prejudice to Order 62, rule 5, a citation under rule 5 of 7 must be served personally on the person cited.
(5) Service out of the jurisdiction of a citation under rule 5 or 7 is permissible but, in the case of a citation under rule 7, only with the leave of the Court.
(6) Order 11, rule 4, shall apply in relation to an application for the grant of leave under paragraph (5) as they apply in relation to an application for the grant of leave under rule 1 or 2 of the Order.
(7) An order granting leave to serve a citation under rule 7 out of the jurisdiction must limit a time within which the person to be served with the citation must comply with it.
(8) Order 11, rules 5, 6 and 8, shall apply in relation to a citation under rule 7 as they apply in relation to notice of a writ.
9. Affidavit of testamentary scripts. (O. 72 r. 9)
(1) Unless the Court otherwise directs, the plaintiff and every defendant who has entered an appearance in a probate action must swear an affidavit
(a) describing any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and
(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person; and any such script which is in the possession or under the control of the deponent must be annexed to his affidavit.
(2) An affidavit required by this rule (together with any testamentary script) must be filed within 14 days after the entry of appearance by a defendant to the action or, if no defendant enters an appearance therein and the Court does not otherwise direct, before the action is set down for trial.
(3) Where any testamentary script required by this rule to be filed or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be filed and the words which appear in pencil in the original must be underlined in red ink in the copy.
(4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed under this rule by any other party to the action, or any testamentary script annexed thereto, unless and until an affidavit sworn by him containing the information referred to in paragraph (1) has been filed.
(5) In this rule "testamentary script" means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.
10. Default of appearance. (O. 72 r. 10)
(1) Order 13 shall not apply in relation to a probate action.
(2) Where any of several defendants to a probate action fails to enter an appearance, the plaintiff, upon filing an affidavit proving due service of the writ, or notice of the writ, on that defendant may, after the time limited for appearing, proceed with the action as if that defendant had entered an appearance.
(3) Where the defendant, or all the defendants, to a probate action, fails or fail to enter an appearance, and none of the persons (if any) cited under rule 5 has entered an appearance, then, unless on the application of the plaintiff the Court orders the action to be discontinued, the plaintiff may after the time limited for appearing by the defendant apply to the Court for leave to set down the action for trial.
(4) Before making an application for the grant of leave under paragraph (3) the plaintiff must file an affidavit proving due service of the writ, or notice of the writ, on the defendant and of the citation, if any.
(5) Where the Court grants leave under paragraph (3), it may order the plaintiff to file an affidavit of testamentary scripts under rule 9.
11. Service of statement of claim. (O. 72 r. 11)
The plaintiff in a probate action must, unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, serve a statement of claim on every defendant who enters an appearance in the action and must do so before the expiration of 6 weeks after entry of appearance by that defendant or of 8 days after the filing by him of an affidavit under rule 9, whichever is the later.
12. Counterclaim. (O. 72 r. 12)
Notwithstanding anything in Order 15, rule 2(1), a defendant to a probate action who alleges that he has any claim or is entitled to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person which is the subject of the action must add to his defence a counterclaim in respect of that matter.
13. Contents of pleadings. (O. 72 r. 13)
(1) Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant.
(2) In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved the would be entitled to an interest in the estate.
(3) Without prejudice to Order 18, rule 7, any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say
(a) that the will was not duly executed;
(b) that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and
(c) that the execution of the will was obtained by undue influence or fraud,
shall be made by that party unless that other plea is also pleaded.
14. Default of pleadings. (O. 72 r. 14)
(1) Order 19 shall not apply in relation to a probate action.
(2) Where any party to a probate action fails to serve on any other party a pleading which he is required by these rules to serve on that other party, then, unless the Court orders the action to be discontinued, that other party may, after the expiration of the period fixed by or under these rules for service of the pleading in question, apply to the Court for leave to set down the action for trial.
15. Discontinuance. (O. 72 r. 14)
(1) Order 21 shall not apply in relation to a probate action.
(2) At any stage of the proceedings in a probate action the Court may, on the application of the plaintiff or of any party to the action who has entered an appearance therein, order the action to be discontinued on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will, or letters of administration of the estate, of the deceased person, as the case may be, which is the subject of the action be made to the person entitled thereto.
(3) An application for an order under this rule may be made by summons or by notice under Order 25, rule 7.
16. Compromise of action. (O. 72 r. 16)
Where whether before or after service of the defence in a probate action the parties to the action agree to a compromise, the action may, with the leave of the Court, be set down for trial.
17. Case for motion. (O. 72 r. 17)
(1) Where an application in a probate cause or matter is to be made to the Court by motion, the applicant must
(a) not less than 7 clear days before the day on which the motion is to be heard, file a case for motion in the Registry, together with an affidavit verifying the statements of fact made in the case; and
(b) not less than 5 clear days before that day, serve a copy of the case and of every affidavit in support of the motion on any person entitled to be heard in opposition to the motion.
(2) A case for motion must
(a) set out the proceedings already had in the cause or matter with the dates thereof;
(b) set out the relevant facts in a summary form; and
(c) state the relief or remedy sought by the motion.
18. Application to Court by summons. (O. 72 r. 18)
Except where these rules otherwise provide, any application to the Court in a probate cause of matter may be made by summons.
19. Form of judgments and orders. (O. 72 r. 19)
(1) Every judgment of the Court in a probate cause or matter shall be signed by the Registrar.
(2) Every order made in such a cause or matter shall be entered by an officer of the Registry in a book for the purpose.
20. Administration Pendente Lite. (O. 72 r. 20)
(1) An application under section 19 of the Probate and Administration Act for the grant of administration may be made to the Registrar by petition.
(2) An administrator to whom a grant is made under the said section 19 must at the time when he begins proceedings for taxation of his costs, or at such other time as the Registrar may direct, produce at the Registry an account (verified by affidavit) of the moneys and other property received or paid or otherwise dealt with by him in his capacity as such an administrator.
(3) Unless the Court otherwise directs, the account shall referred to the Registrar for examination and Order 59, rules 21, 22 and 25 shall with the necessary modifications apply in relation to proceedings for the examination of the administrators costs.
(4) Except where the remuneration of the administrator has been fixed by a Judge, the Registrar shall, on the completion of the examination of the administrators account, and taxation of his costs, assess and provide for the administrators remuneration.

71. Non-Contentious Probate Proceedings.

2007-09-09T00:15:00.001-07:00

71. Non-Contentious Probate Proceedings.
ORDER 71
NON-CONTENTIOUS PROBATE PROCEEDINGS
1. Applications. (O. 71 r. 1)
These rules apply to non-contentious probate proceedings subject to the following rules of this Order.2. Interpretation. (O. 71 r. 2)
In these rules, unless the context otherwise requires–
"Act" means the Probate and Administration Act, 1959 (Act 97).
"Collector" means a Collector of Land Revenue and includes any officer acting under the provisions of the Small Estates (Distribution) Act, 1955;
"District Registry" means the respective office of any Assistant Registrar as provided for by section 77A(2) of the Act;"
"gross value" in relation to any estate means the value of the estate without deduction for debts, incumbrances, funeral expenses or estate duty;
"personal applicant" means a person other than a trust corporation who seeks to obtain a grant without employing a solicitor, and "personal application" has a corresponding meaning;
"Principal Registry" means the Principal Registry in Kuala Lumpur or the Principal Registry in Kuching, as the case may require;
"Registrar" means the Registrar and any Deputy Registrar, Senior Assistant Registrar and Assistant Registrar (including any Assistant Registrar qualified under section 77A(2) of the Act) of the High Court;
"Registrar of the Principal Registry" means the Registrar of the High Court and does not include any other Registrar.
"Statutory guardian" means a guardian of an infant appointed by the High Court under section 6, 9 or 13 of the Guardianship of Infants Act 1961 (13/61);
"testamentary guardian" means a person as defined in section 7 of the Guardianship of Infants Act 1961;
"trust corporation" means a company registered as a trust company under the Trust Companies Act 1949 (Act 100) and includes the Public Trustee;
"will" includes a nuncupative will and any testamentary document or copy or reconstruction thereof.3. Personal applications. (O. 71 r. 3)
(1) A personal applicant may apply for a grant at the Registry.
(2) A personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.
(3) No personal application must be received or proceeded with if–
(a) it becomes necessary to bring the matter before the Court by action;
(b) an application has already been made by a solicitor on behalf of the applicant and has not been withdrawn;
(c) the Registrar otherwise directs.(4) After a will has been deposited in the Registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the Registrar directs.
(5) A personal applicant must produce a certificate of death of the deceased or such other evidence of the death as the Registrar may approve.
(6) Every oath, affidavit or bond required on a personal application (other than a bond given by a corporation in accordance with rule 34) must be sworn or executed by all deponents or obligors before a Commissioner for Oaths.4. Duty of Registrar on receiving application for grant. (O. 71 r. 4)
(1) The Registrar must not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.
(2) The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the petition.
(3) Except with the leave of the Registrar, no grant of probate or of administration with the will annexed shall issue within 7 days of the death of the deceased and no grant of administration shall issue within 14 days thereof.
(4) When an application for a grant is filed, the Registrar must give notice in Form 167 to the Registrar of the Principal Registry and notify the serial number of the Probate to the latter, who must enter that number in the Probate Book.
(5) The Registrar must notify the Registrar of the Principal Registry of all grants made under the Act and the rules of this Order.5. Application for grant by petition. (O. 71 r. 5)
(1) Every application for a grant must be by petition in one of the forms in Form 168 and the petition must be verified by oath which must be contained in an affidavit sworn by the applicant, and supported by such other papers as the Registrar may require.
(2) On an application for a grant of administration the petition must state whether, and if so, in what manner all persons having a prior right to a grant have been cleared off, and whether any minority or life interest arises under the will or intestacy.
(3) Where the deceased died domiciled outside Malaysia, the petition must state where the deceased died domiciled.
(4) If the petition states where the deceased died domiciled (whether in or outside Malaysia) a statement as to the country in which he died domiciled may be included in the grant.
(5) In every petition–
(a) where any person is named as a relative of the deceased, he must, if a lawful relative, be so described, and where the legality of any such relationship is alleged by virtue of any law or custom, such law or custom must be stated;
(b) where it is alleged that any person is entitled to share in the distribution of an intestate’s estate, it must be stated how such person is related to the deceased, and whether he is the only or one of the next-of-kin and by what law or custom so entitled.(6) Where an application for a grant is, for the first time, made after the lapse of 3 years from the death of the deceased, the reason for the delay in making the application must be set out in the petition.6. Grant in additional name. (O. 71 r. 6)
Where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant must state in the petition the true name of the deceased and must depose that some part of the estate, specifying it, was held in the other name, or as to any other reason that there may be for the inclusion of the other name in the grant.7. Marking of wills. (O. 71 r. 7)
(1) Every will in respect of which an application for a grant is made must be exhibited to the petition and a certified true copy of the will must be annexed thereto.
(2) Where the will is not in the English language there must also be annexed to the application under paragraph (1) a translation certified by a Court Interpreter or a translation verified by the affidavit of a person qualified to translate it.8. Engrossments for purposes of record. (O. 71 r. 8)
(1) Where the Registrar considers that in any particular case a photographic copy of the original will would not be satisfactory for purposes of record, he may require an engrossment suitable for photographic reproduction to be filed.
(2) Where a will contains alterations which are not admissible to proof, there must be filed an engrossment of the will in the form in which it is to be proved.
(3) Any engrossment filed under this rule must reproduce the punctuation, spacing and division into paragraphs of the will and, if it is one to which paragraph (2) applies, it must be on durable paper.
(4) Where any pencil writing appears on a will, there must be filed a copy of the will or of the pages or sheets containing the pencil writing, in which there must be underlined in red ink those portions which appear in pencil in the original.9. Evidence as to due execution of will. (O. 71 r. 9)
(1) Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the will, he shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed.
(2) If no affidavit can be obtained in accordance with paragraph (1), the Registrar may, if he thinks fit having regard to the desirability of protecting the interest of any person who may be prejudiced by the will, accept evidence on affidavit from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the execution of the will.
(3) If the Registrar, after considering the evidence–
(a) is satisfied that the will was not duly executed, he shall refuse probate and shall mark the petition accordingly;
(b) is doubtful whether the will was duly executed, he may refer the matter to the Court.10. Execution of will of blind or illiterate testator. (O. 71 r. 10)
Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason gives rise to doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the Registrar must satisfy himself that the testator had such knowledge.11. Evidence as to terms, conditions and date of execution of will. (O. 71 r. 11)
(1) Where there appears in a will any obliteration, interlineation, or other alteration which is not authenticated in the manner prescribed by section 15 of the Wills Ordinance 1959 (38/59)* or by the reexecution of the will or by the execution of a codicil, the Registrar shall require evidence to show whether the alterations was present at the time the will was executed and shall give directions as to the form in which the will is to be proved:
Provided that this paragraph shall not apply to any alteration which appears to the Registrar to be of no practical importance.
(2) If from any mark on the will it appears to the Registrar that some other document has been attached to the will, or if a will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the Registrar may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may think fit.
(3) Where there is a doubt as to the date on which a will was executed, the Registrar may require such evidence as he thinks necessary to establish the date.12. Attempted revocation of will. (O. 71 r. 12)
Any appearance of attempted revocation of a will by burning, tearing or otherwise, and every other circumstance leading to a presumption or revocation by the testator, must be accounted for to the Registrar’s satisfaction.13. Affidavit as to due execution, terms, etc. of will. (O. 71 r. 13)
The Registrar may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 10, 11 and 12, and in any such affidavit sworn by an attesting witness or other person present at the time of the execution of a will the deponent must depose to the manner in which the will was executed.14. Wills not proved under section 6 of Wills Ordinance. (O. 71 r. 14)
Nothing in rule 9, 10, 11 or 12 shall apply to any will which it is sought to establish otherwise than by reference to section 5 of the Wills Ordinance 1959 but the terms and validity of any such will must be established to the Registrar’s satisfaction.15. Wills of persons on military service and seamen. (O. 71 r. 15)
If it appears to the Registrar that there is prima facie evidence that a will is one to which section 26 of the Wills Ordinance 1959 applies the will may be admitted to proof if the Registrar is satisfied that it was signed by the testator or, if unsigned, that it is in the testator’s handwriting.16. Evidence of foreign law. (O. 71 r. 16)
Where evidence of the law of a country outside Malaysia is required on any application for a grant, the affidavit of any person who practises, or has practised, as a barrister or advocate in that country and who is conversant with its law may be accepted by the Registrar unless the deponent is a person claiming to be entitled to the grant or his attorney, or is the spouse of any such person on attorney:
Provided that the Registrar may in special circumstances accept the affidavit of any other person who does not possess the qualifications required by this rule if the Registrar is satisfied that by reason of such person’s official position or otherwise he has knowledge of the law of the country in question.17. Order of priority for grant where deceased left a will. (O. 71 r. 17)
The person or persons entitled to a grant of probate or administration with the will annexed must be determined in accordance with the provisions of sections 3 and 16 of the Act.18. Grants to attesting witnesses, etc. (O. 71 r. 18)
Where a gift to any person fails by reason of section 9 of the Wills Ordinance 1959 (38/59) (which provides that gifts to attesting witnesses or their spouses shall be void), such person shall not have any right to a grant as a beneficiary named in the will, without prejudice to his right to a grant in any other capacity.19. Order of priority for grant in case of intestacy. (O. 71 r. 19)
Where the deceased died wholly intestate, the person entitled to a grant of administration must be determined in accordance with the provisions of section 30 of the Act.20. Right of assignee to a grant. (O. 71 r. 20)
(1) Where all the persons entitled to the estate of the deceased (whether under a will or on intestacy) have assigned their whole interest in the estate to one or more persons, the assignee or assignees shall replace, in the order of priority for a grant of administration, the assignor or, if there are two or more assignors, the assignor with the highest priority.
(2) Where there are two or more assignees, administration may be granted with the consent of the others to any one or more (not exceeding four) of them.
(3) In any case where administration is applied for by an assignee, a copy of the instrument of assignment must be lodged in the Registry.21. Additional personal representatives. (O. 71 r. 21)
(1) An application under section 4(2) of the Act to add a personal representative must be made by summons to the Registrar and must be supported by affidavit by the applicant, the consent of the person proposed to be added as personal representative and such other evidence as the Registrar may require.
(2) A summons under paragraph (1) must be served on all persons entitled in the same degree as the applicant.
(3) On any such application the Registrar may direct that a note shall be made on the original grant of the addition of a further personal representative, or he may impound or revoke the grant or make such other order as the circumstances of the case may require.22. Grants where two or more persons entitled in same degree. (O. 71 r. 22)
(1) A grant may be made to any person entitled thereto without notice to other persons entitled in the same degree.
(2) A dispute between persons entitled to a grant in the same degree must be brought by summons before the Registrar.
(3) Unless the Registrar otherwise directs, administration shall be granted to a living person in preference to the personal representative of a deceased person who would, if living, be entitled in the same degree and to a person not under disability in preference to an infant entitled in the same degree.
(4) If the issue of a summons under this rule is known to the Registrar, he shall not allow any grant to be extracted until such summons is finally disposed off.23. Exceptions to rules as to priority. (O. 71 r. 23)
(1) Nothing in rule 17, 19 or 22 shall operate to prevent a grant being made to any person to whom a grant may or may require to be made under any written law.
(2) The rules mentioned in paragraph (1) shall not apply where the deceased died domiciled outside Malaysia, except in a case to which the proviso to rule 25 applies.24. Grants to persons having spes succession. (O. 71 r. 24)
When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant and has consented to adminstration being granted to the person or persons who would be entitled to his estate if he himself had died intestate, adminstration may be granted to such person or one of more (not exceeding four) of such persons.25. Grants where deceased died domiciled outside Malaysia. (O. 71 r. 25)
Where the deceased died domiciled outside Malaysia, an application may be made to the Registrar for an order for a grant–
(a) to the person entrusted with the adminstration of the estate by the Court having jurisdiction at the place where the deceased died domiciled;
(b) to the person entitled to administer the estate by the law of the place where the deceased died domiciled;
(c) if there is no such person as is mentioned in subparagraph (a) or (b) or if in the opinion of the Registrar the circumstances so require to such person as the Registrar may direct;
(d) if, by virtue of section 4 of the Act, a grant is required to be made to, or if the Registrar in his discretion considers that a grant should be made to, not less than two adminstrators, to such person as the Registrar may direct jointly with any such person as is mentioned in subparagraph (a) or (b) or with any other person:Provided that without any such application as aforesaid–
(a) probate of any will which is admissible to proof may be granted–
(i) if the will is in the English language, to the executor named therein;
(ii) if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person;(b) where the whole of the estate in Malaysia consists of immovable property, a grant limited thereto may be made in accordance with the law which would have been applicable if the deceased had died domiciled in Malaysia.26. Grants to attorneys. (O. 71 r. 26)
Where a person entitled to a grant resides outside Malaysia, adminstration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the Registrar may direct:
Provided that the attorney must file a certified true copy of the power of attorney with the petition or prove that he has deposited it or a certified copy of it in the Registry of the High Court in the manner provided by section 4 of the Powers of Attorney Ordinance 1949 (64/49);
And provided that where the person so entitled is an executor, adminstration shall not be granted to his attorney without notice to the other executors, if any, unless such notice is dispensed with by the Registrar.27 Grants on behalf of infants. (O. 71 r. 27)
(1) Where the person to whom a grant would otherwise be made is an infant, administration for his use and benefit until he attains the age of majority shall, subject to paragraphs (3) and (5) be granted–
(a) to both parents of the infant jointly or to the statutory or testamentary guardian of the infant or to any guardian appointed by a Court of competent jurisdiction; or
(b) if there is no such guardian able and willing to act and the infant has attained the age of sixteen years, to any next-of-kin nominated by the infant or where the infant is a married woman, to any such next-of-kin or to her husband if nominated by her.(2) Any person nominated under subparagraph (b) of paragraph (1) may represent any other infant whose next-of-kin he is, being an infant below the age of sixteen years entitled in the same degree as the infant who made the nomination.
(3) Notwithstanding anything in this rule, administration for the use and benefit of the infant until he attains the age of majority may be granted to any person assigned as guardian by order of the Registrar in default of, or jointly with, or to the exclusion of, any such person as is mentioned in paragraph (1); and such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the Registrar, an affidavit of fitness sworn by a responsible person.
(4) Where by virtue of section 4 of the Act, a grant is required to be made to not less than two administrators and there is only one person competent and willing to take a grant under the foregoing provisions of this rule, administration may, unless the Registrar otherwise direct, be granted to such person jointly with any other person nominated by him as a fit and proper person to take the grant.
(5) Where an infant who is sole executor has no interest in the residuary estate of the deceased, administration for the use and benefit of the infant until he attains the age of twenty-one years shall, unless the Registrar otherwise directs, be granted to the person entitled to the residuary estate.
(6) An infant’s right to administration may be renounced only by a person assigned as guardian under paragraph (3) and authorized to renounce by the Registrar.28. Grants where infant co-executor. (O. 71 r. 28)
(1) Where one of two or more executors is an infant, probate may be granted to the other executor or executors not under disability, with power reserved of making the like grant to the infant on his attaining the age of majority, and administration for the used and benefit of the infant until he attains the age of majority may be granted under rule 27 if and only if the executors who are not under disability renounce or, on being cited to accept or refuse a grant fail to make an effective application therefor.
(2) An infant executor’s right to probate on attaining the age of majority may not be renounced by any person on his behalf.29. Grants in case of mental or physical incapacity. (O. 71 r. 29)
(1) Where the Registrar is satisfied that a person entitled to a grant is by reason of unsoundness of mind or physical incapacity in-capable of managing himself or his affairs, administration for his use and benefit, limited during his incapacity or in such other way as the Registrar may direct, may be granted–
(a) in the case of unsoundness of mind, to the person authorized by the High Court; or
(b) Where there is no person so authorized, or in the case of physical incapacity–
(i) if the person incapable is entitled as executor, to the person entitled to the residuary estate of the deceased:
(ii) if the person incapable is entitled otherwise than as an executor, to the person who would be entitled to a grant in respect of his estate if he had died intestate;or to such other person as the Registrar may by order direct.
(2) Unless the Registrar otherwise directs, no grant of administration shall be made under paragraph (1) unless all persons entitled in the same degree as the person incapable have been cleared off.
(3) In the case of physical incapacity, notice of intended application for a grant under paragraph (1) shall, unless the Registrar otherwise directs, be given to the person alleged to be so incapable.30. Grants to trust corporations and other corporate bodies. (O. 71 r. 30)
(1) Where a trust corporation applies for a grant through one of its officers, such officer must file a certified copy of the resolution authorizing him to make the application and must depose in the petition that the corporation is a trust corporation, and that it has power to accept a grant:
Provided that it shall not be necessary to file a certified copy of the resolution where the officer through whom the application is made is included in a list of persons authorized to make such applications kept by the Registrar.
(2) Where a trust corporation applies for a grant of administration otherwise than as attorney for some person, there must be filed with the petition the consents of all persons entitled to a grant and of all persons interested in the residuary estate of the deceased, unless the Registrar directs that such consents be dispensed with on such terms, if any, as he may think fit.
(3) Where a corporation (not being a trust corporation) would, if an individual, be entitled to a grant, administration for its use and benefit, limited until further representation is granted, may be granted to its nominee or, if the corporation has its principal place of business outside Malaysia, its nominee or lawfully constituted attorney, and a copy of the resolution appointing the nominee or, as the case may be, the power of attorney, sealed by the corporation or otherwise authenticated to the Registrar’s satisfaction must be filed with the petition for the grant, and the petition must state that the corporation is not a trust corporation.31 Renunciation of probate and administration. (O. 71 r. 31)
(1) Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.
(2) Unless the Registrar otherwise directs, no person who has renounced administration in one capacity may obtain a grant thereof in some other capacity.
(3) A renunciation of probate or administration may be retracted at any time by leave of the Court in accordance with the provisions of section 10 of the Act:
Provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree.
(4) A written renunciation of a right to a grant under section 3 of the Act must be in one of the forms in Form 169.32. Notice to Attorney General of intended application for grant. (O. 71 r. 32)
In any case in which it appears that the State is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant must be given by the applicant to the Attorney General, and the Registrar may direct that no grant shall issue within a specified time after the notice has been given.33. Administration oath. (O. 71 r. 33)
An administration oath must be in Form 170 and must be attested by a Commissioner for Oaths.34. Administration bonds. (O 71 r. 34)
(1) An administration bond under section 35 of the Act must be in Form 171 and the signature of the administrator and any surety (not being, in either case, a corporation) must be attested by a Commissioner for Oaths.
(2) Except in a case to which paragraph (3) applies or where the Registrar otherwise directs, there must be two sureties to every administration bond.
(3) No surety shall be required on an application for a grant of administration–
(a) by a trust corporation, whether alone or jointly with an individual;
(b) by a servant of the Government acting in his official capacity;
(c) where the deceased left no estate.(4) The Registrar must so far as possible satisfy himself that every surety to an administration bond is a responsible person.
(5) Unless the Registrar otherwise directs, no person shall be accepted as a surety unless he is resident in Malaysia.
(6) No officer of the Registry shall become a surety without the leave of the Registrar.
(7) Where the proposed surety is a corporation (other than a trust corporation), there must be filed an affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has executed the bond in the manner prescribed by its constitution, and containing sufficient information as to the financial position of the corporation to satisfy the Registrar that its assets are sufficient to satisfy all claims which may be made against it under any administration bond in respect of which it is or is likely to become a surety:
Provided that the Registrar may, instead of requiring an affidavit in every case, accept an affidavit made not less often than once in every year together with an undertaking by the corporation to notify the Registrar forthwith in the event of any alteration in its constitution affecting its power to become surety to administration bonds.
(8) An application under section 37 of the Act for an order to assign an administration bond must be made by summons to the Registrar and the summons must be served on the administrator and on every surety.35. Forms of grant. (O. 71 r. 35)
A grant made under the Act and the rules of this Order must be in one of the forms in Form 172.36. Amendment and revocation of grant. (O. 71 r. 36)
(1) If the Registrar is satisfied that a grant should be amended or revoked he may make an order accordingly:
Provided that except in special circumstances no grant shall be amended or revoked under this rule except on the application or with the consent of the person to whom the grant was made.
(2) The Registrar must notify the Registrar of the Principal Registry of any amendment or revocation of a grant under paragraph (1).37. Caveats. (O. 71 r. 37)
(1) Any person who wishes to ensure that no grant is made without notice to himself may enter a caveat.
(2) When a caveat is entered, the Registrar must forward a copy of the caveat and give notice in Form 167 to the Registrar of the Principal Registry.
(3) Any person who wishes to enter a caveat (in this rule called "the caveator") may do so by filing the caveat Form 173 in the Registry and obtaining an acknowledgment of entry from the proper officer, or by sending through the post at his own risk the caveat to the Registry.
(4) Where the caveat is entered by a solicitor on the caveator’s behalf, the name of the caveator must be stated.
(5) Except as otherwise provided by this rule, a caveat shall remain in force for 6 months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further caveat or caveats.
(6) The Registrar of the Principal Registry shall maintain an index of caveats entered in all Registries and on receiving a notice of an application for a grant made in any Registry or to a Collector he shall cause the index to be searched and shall notify the appropriate Registrar or Collector in the event of a caveat having been entered against the sealing of a grant for which application has been made in the Registry or to the Collector.
(7) The Registrar must not make any grant if he has knowledge of an effective caveat in respect thereof:
Provided that no caveat shall operate to prevent the making of a grant on the day on which the caveat is filed.
(8) A caveat may be warned by the issue from Registry of a warning in Form 174 at the instance of any person interested (in this rule called "the person warning") which must state his interest and, if he claims under a will, the date of the will, and must require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased; and every warning or a copy thereof must be served on the caveator and the Registrar of the Principal Registry.
(9) A caveator who has not entered an appearance in Form 175 to a warning may at any time withdraw his caveat by giving notice at the Registry and serving a copy of it on the Registrar of the Principal Registry and the caveat shall thereupon cease to have effect and, if he has been warned, the caveator must give notice of withdrawal of the caveat to the person warning.
(10) A caveator having an interest contrary to that of the person warning may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under paragraph (12), enter an appearance in Form 175 in the Registry, and must serve on the person warning and the Registrar of the principal Registry a copy if it sealed with the seal of the Court.
(11) A caveator having no interest contrary to that of the person warning but wishing to show cause against the making of a grant to that person may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under paragraph (12), issue and serve a summons for directions, which must be returnable before the Registrar.
(12) If the time limited for appearance in Form 175 has expired and the caveator has not entered an appearance, the person warning may file in the Registry an affidavit showing that the warning was duly served and that he has not received a summons for directions under paragraph (11), and thereupon the caveat shall cease to have effect.
(13) Except with leave of the Registrar, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under paragraph (12) or rule 40.
(14) Upon an appearance being entered in answer to the warning of a caveat, the matter shall be deemed to be contested and the expenses of entry of such caveat and the warning thereof shall be considered as costs in the cause.
(15) In this rule "grant" includes a grant by any Court outside Malaysia which is produced for resealing by the High Court.38. Contested matters. (O. 71 r. 38)
(1) Every contested matter must be referred to a Judge who may dispose of the matter in dispute in a summary manner or direct that the provisions of Order 72 shall apply.
(2) Where a matter is directed to be disposed of summarily the petition (if any) shall ordinarily be adjourned into open Court for hearing and the Court may on such adjourned hearing either grant or refuse the petitioner’s prayer or make such other order as may be just.39. Notice of commencement of probate action. (O. 71 r. 39)
Upon the commencement of a probate action, the Registrar shall, in respect of each caveat then in force (other than a caveat entered by a party to the probate action), give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveat at any time when the action is pending, shall likewise notify the caveator of the existence of the action.40. Effect of caveat etc. upon commencement of probate action. (O. 71 r. 40)
Unless the Registrar by order made on summons otherwise directs–
(a) any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to paragraph (9) of rule 37, remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect;
(b) any caveat in respect of which an appearance to a warning had been entered shall remain in force until the commencement of a probate action;
(c) the commencement of a probate action shall, whether or not any caveat has been entered, operate to prevent the sealing of a grant (other than a grant under section 19 of the Act) until application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under rule 39, shall cease to have effect.41. Citations. (O. 71 r. 41)
(1) Every citation in one of the forms in Form 176 must issue from the Registry.
(2) Every averment in a citation, and such other information as the Registrar may require, must be verified by an affidavit sworn by the person issuing the citation (in these rules called "the citor") or, if there are two or more citors, by one of them:
Provided that the Registrar may in special circumstances accept an affidavit sworn by the citor’s solicitor.
(3) The citor must enter a caveat before issuing a citation.
(4) Every citation must be served personally on the person cited unless the Registrar, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.
(5) Every will referred to in a citation must be filed in the Registry before the citation is issued, except where the will is not in the citor’s possession and the Registrar is satisfied that it is impracticable to require it to be filed.
(6) A person who has been cited to appear may, within 8 days of service of the citation upon him inclusive of the day of such service, or, at any time thereafter if no application has been made by the citor under rule 42(5) or 43(2), enter an appearance in Form 175 in the Registry, and must thereafter serve on the citor a copy of it sealed with the seal of the Court.42. Citation to accept or refuse or to take a grant. (O. 71 r. 42)
(1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
(2) Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the will or of the executors of the last survivor of deceased executors who have proved.
(3) A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of 6 months from the death of the deceased:
Provided that no citation to take a grant must issue while proceedings as to the validity of the will are pending.
(4) A person cited who is willing to accept or take a grant may apply ex parte by summons to the Registrar for an order for a grant on filing an affidavit showing that he has entered an appearance in Form 175 and that he has now been served by the citor with notice of any application for a grant to himself.
(5) If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may–
(a) in the case of a citation under paragraph (1) apply to the Registrar for an order for a grant to himself;
(b) in the case of citation under paragraph (2), apply to the Registrar for an order that a note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights in respect of the executorship have wholly ceased;
(c) in the case of a citation under paragraph (3), apply to the Registrar by summons (which must be served on the person cited) for an order requiring such person to take a grant within a specified time or for a grant to himself or some other person specified in the summons.(6) An application under paragraph (5) must be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.
(7) If the person cited has entered an appearance but has not applied for a grant under paragraph (4), or has failed to prosecute his application with reasonable diligence, the citor may–
(a) in the case of a citation under paragraph (1), apply by summons to the Registrar for an order for a grant to himself;
(b) in the case of a citation under paragraph (2), apply by summons to the Registrar for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in subparagraph (b) of paragraph (5);
(c) in the case of a citation under paragraph (3), apply by summons to the Registrar for an order requiring the person cited to take a grant within a specified time or for a grant to himself or some other person specified in the summons,
and the summons must be served on the person cited.43. Citation to propound a will. (O. 71 r. 43)
(1) A citation to propound a will must be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.
(2) If the time limited for appearance has expired and no person cited has entered an appearance, or if no person who has appeared proceeds with reasonable diligence to propound the will, the citor may apply on motion for an order for a grant as if the will were invalid.44. Address for service. (O. 71 r. 44)
All caveats, citations, warnings and appearances must contain an address for service within the jurisdiction.45. Application for order to bring in a will or to attend for examination. (O. 71 r. 45)
An application under section 41 of the Act, for an order requiring a person to bring in a will or to attend for examination must be made to a Judge by summons, which must be served on every such person as aforesaid.46. Applications in respect of nuncupative of copies of wills. (O. 71 r. 46)
(1) An application for an order admitting to proof a nuncupative will, or a will contained in a copy, a completed draft, a reconstruction or other evidence or its contents where the original will is not available, may be made to the Court by summons:
Provided that where a will is not available owing to its being retained in the custody of a foreign Court or official, a duly authenticated copy of the will may be admitted to proof by virtue of section 27 of the Act without any such order as aforesaid.
(2) The application must be supported by affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to–
(a) the due execution of the will;
(b) its existence after the death of the testator; and
(c) the accuracy of the copy of other evidence of the contents of the will,together with any consents in writing to the application given by any persons not under disability who would be prejudiced by the grant.46A. Deposit of wills. (O. 71 r. 46A)
When any will or other testamentary document has been proved or resealed in the High Court the will or document (or, where it is in a foreign language, an official translation thereof) and a copy thereof shall be deposited in such place of safe custody as the Chief Justice may appoint, and the original will or document shall not be taken therefrom or inspected without the order of a Judge.46B. Assistant Registrars to transmit wills to the Registrar. (O. 71 r. 46B)
A District Registrar shall transmit to the Registrars of the State where he exercises jurisdiction the original of any will or testamentary document admitted to probate.46C. Receipt for wills. (O. 71 r. 46C)
Upon any person bringing into the Registry any will or document purporting to be testamentary, the Registrar shall give him a receipt thereof.47. Issue of office copies of will etc. (O. 71 r. 47)
(1) An official copy of the whole or any part of a will, may, on payment of the prescribed fee, be obtained from the Registry.
(2) Where copies are required of original wills or other documents such copies may be photographic copies certified under the hand of the Registrar to be true copies and sealed with the seal of the Court.
(3) Copies, not being photographic copies, of original wills or other documents must be examined against the documents of which they purport to be copies only if so required by the person demanding the copy, and in such case the copy shall be certified under the hand of the Registrar to be a true copy and sealed with the seal of the Court.48. Power to require application to be made by summons. (O. 71 r. 48)
The Registrar may require any application made to him to be brought before him by summons.49. Small estates. (O. 71 r. 49)
(1) In the case of any petition for letters of administration to the estate of a person who died intestate–
(a) if the petition discloses that the assets of the estate include immovable property in any State the Registrars shall before fixing a date for a hearing of the petition require the petitioner to satisfy him that the estate is not a small estate as defined under the Small Estates (Distribution) Act, 1955, and may make such further and other inquiries regarding the value of the estate as he deems proper and unless so satisfied he shall transfer the petition to a Collector having jurisdiction under the Small Estates (Distribution) Act, 1955;
(b) if it appears to the Registrar that proceedings are already pending before a Collector then–
(i) if the Registrar is satisfied that the estate is a small estate he shall transfer the petition to the Collector, but
(ii) if the Registrar is satisfied that the estate is not a small estate he shall so inform the Collector and shall not proceed to hear the petition until the Collector has had an opportunity of referring to him the proceedings before the Collector.(2) When any petition for probate or letters of administration with will annexed is filed in the High Court and it appears to the Registrar that proceedings relating to the same estate are pending before a Collector the Registrar shall request the Collector not to take any further step in the proceedings before him until the validity or otherwise of the alleged will is established and shall furnish to the Collector all necessary particulars regarding the proceedings in the High Court.
(3) In any case in which a caveat has been entered before any petition for probate or letters of administration has been filed in the High Court and the Registrar is satisfied that an application to a Collector is pending relating to the same estate he shall inform the caveator of the application to the Collector and the Collector of the caveat.
(4) In any case in which a petition under the provisions of the Small Estates (Distribution) Act, 1955, is referred to the High Court under the provisions of section 8(7) thereof the Registrar to whom such petition is referred may require the petition to be amended so as to comply with the provisions of these rules and the payment of fees which would have been payable if the petition had been filed in the High Court but in all other respects the petition shall be proceeded with as though it had originally been filed in the High Court.

70. Admiralty Proceedings.

2007-09-09T00:10:00.001-07:00

70. Admiralty Proceedings.
ORDER 70
ADMIRALTY PROCEEDINGS
1. Application and interpretation (O. 70 r. 1)
(1) This Order applies to Admiralty causes and matters, and the other provisions of these rules apply to those causes and matters subject to the provisions of this Order.
(2) In this Order
"action in rem" means an Admiralty action in rem;
"caveat against arrest" means a caveat entered in the caveat book under rule 5;
"caveat against release and payment" means a caveat entered in the caveat book under rule 13;
"caveat book" means the book kept in the Registry in which caveats issued under this Order and entered;
"limitation action" means an action by ship owners or other persons under the Merchant Shipping Ordinance 1952 for the limitation of the amount of their liability in connection with a ship or other property;
"ship" includes any description of vessel use in navigation.
2. Issue of writ and entry of appearance (O. 70 r. 2)
(1) An action in rem must be begun by writ; and the writ must be in Form 155.
(2) Order 6, rule 6, and Order 12 shall apply in relation to such an action.
3. Service out of jurisdiction of notice of writ. (O. 70 r. 3)
(1) Subject to the following provisions of this rule, service out of the jurisdiction of a notice of a writ, containing any such claim as is mentioned in Order 11, rule 1(1)(i), (ii) and (iii) is permissible with the leave of the Court if, but only if
(a) the defendant has his habitual residence or a place of business in Malaysia; or
(b) the cause of action arose within inland waters of or within the limits of a port in Malaysia, or
(c) an action arising out of the same incident or series of incidents is proceeding in the High Court or has been heard and determined in the High Court; or
(d) the defendant has submitted or agreed to submit to the jurisdiction of the High Court.
(2) Order 11, rule 4, shall apply in relation to an application for the grant of leave under this rule as it applies in relation to an application for the grant of leave under rule 1 or 2 of that Order.
(3) Paragraph (1) shall not apply to an action in rem.
(4) The proviso to rule 6(1) of Order 6 and Order 11, rule 1(2), shall not apply to a writ by which any Admiralty action is begun or to notice of any such writ.
4. Warrant of arrest. (O. 70 r. 4)
(1) After a writ has been issued in an action in rem a warrant in Form 156 for the arrest of the property against which the action or any counterclaim in the action is brought may, subject to the provisions of this rule, be issued at the instance of the plaintiff or of the defendant, as the case may be.
(2) A party applying for the issue out of the Registry of warrant to arrest any property shall procure a search to be made in the caveat book for the purpose of ascertaining whether there is a caveat against arrest in force with respect to that property.
(3) A warrant of arrest shall not be issued until the party applying for it has filed a praecipe in Form 157 requesting issue of the warrant together with an affidavit made by him or his agent containing the particulars required by paragraphs (6), (7) or (8) so, however, that the Court may, if it thinks fit, allow the warrant to issue notwithstanding that the affidavit does not contain all those particulars.
(4) Except with the leave of the Court, a warrant of arrest shall not be issued in an action in rem against a foreign ship belonging to a port of a State having a consulate in Malaysia, being an action for possession of the ship or for wages, until notice that the action has been begun has been sent to the consul.
(5) Except with the leave of the Court, a warrant of arrest shall not be issued in an action in rem in which there is a claim arising out of bottomry until the bottomry bond and, if the bond is in a foreign language, a notarial translation thereof is produced to the Registrar.
(6) Every affidavit must state
(a) the name, address and occupation of the applicant for the warrant;
(b) the nature of the claim or counterclaim in respect of which the warrant is required and that it has not been satisfied; and
(c) the nature of the property to be arrested and, if the property is a ship, the name of the ship and the port to which she belongs.
(7) Every affidavit in an action in rem brought against a ship must state
(a) whether the ship against which the action is brought is the ship in connection with which the claim in action arose;
(b) that in the belief of the deponent the person who would, be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer, or in possession or control, of the ship in connection with which the claim arose and was also, at the time of the issue of the writ, the beneficial owner of all the shares in the ship against which the action is brought; and
(c) the grounds of the deponents belief.
(8) Every affidavit in an action in rem for possession of a ship or for wages must state the nationality of the ship against which the action is brought and that the notice (if any) required by paragraph (4) has been sent.
A copy of any such notice must be annexed to the affidavit.
(9) An affidavit in such an action as is referred to in paragraph (5), must have annexed thereto a certified copy of the bottomry bond, or of the translation thereof.
5. Caveat against arrest. (O. 70 r. 5)
(1) A person who desires to prevent the arrest of any property must file in the Registry a praecipe, in Form 158, signed by him or his solicitor undertaking
(a) to enter an appearance in any action that may be begun against the property described in the praecipe; and
(b) within 3 days after receiving notice that such an action has been begun, to give bail in the action in a sum not exceeding an amount specified in the praecipe or to pay the amount so specified into Court,
and on the filing of the praecipe a caveat against the issue of a warrant to arrest the property described in the praecipe shall be entered in the caveat book.
(2) The fact that there is a caveat against arrest in force shall not prevent the issue of a warrant to arrest the property to which the caveat relates.
6. Remedy where property protected by caveat is arrested (without good and sufficient reason) (O. 70 r. 6)
Where any property with respect to which a caveat against arrest is in force is arrested in pursuance of a warrant of arrest, the party at whose instance the caveat was entered may apply to the Court by motion for an order under this rule and, on the hearing of the application, the Court, unless under it is satisfied that the party procuring the arrest of the property had a good and sufficient reason for so doing, may by order discharge the warrant and may also order the last mentioned party to pay to the application damages in respect of the loss suffered by the applicant as a result of the arrest.
7. Service of writ in action in rem (O. 70 r. 7)
(1) Subject to paragraph (2), a writ by which an action in rem is begun must be served on the property against which the action is brought except
(a) where the property is freight, in which case it must be served on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried; or
(b) where the property has been sold and the proceeds of sale paid into Court, in which case it must be served on the Registrar.
(2) A writ need not be served on the property or Registrar mentioned in paragraph (1) if the writ is deemed to have been duly served on the defendant by virtue of Order 10, rule 1 (2) or (3).
(3) Where by virtue of this rule a writ is required to be served on any property, the plaintiff must leave the writ and a copy thereof at the Registry and file therein a praecipe in Form 159; and where he does so the sheriff or his officer shall serve the writ on the property described in the praecipe.
The expenses incurred by the sheriff or his officer in affecting service shall be paid to the sheriff on demand by him.
(4) Where the plaintiff in an action in rem, or his solicitor, becomes aware that there is in force a caveat against arrest with respect to the property against which the action is brought, he must serve the writ forthwith on the person at whose instance the caveat was entered.
(5) Where a writ by which an action in rem is begun is amended under Order 20, rule 1, after service thereof, Order 20, rule 1 (2), shall not apply and, unless the Court otherwise directs on an application made ex parte, the amended writ must be served on any defendant who has entered an appearance in the action or, if no defendant has entered an appearance therein, on the property or Registrar mentioned in paragraph (1) of this rule.
8. Committal of solicitor failing to comply with undertaking. (O. 70 r. 8)
Where the solicitor of a party to an action in rem fails to comply with a written undertaking by him to any other party or his solicitor to enter an appearance in the action, give bail or pay money into Court in lieu of bail, he shall be liable to committal.
9. Execution, etc., of warrant of arrest. (O. 70 r. 9)
(1) A warrant of arrest is valid for 12 months beginning with the date of its issue.
(2) A warrant of arrest may be executed only by the sheriff or his officer.
(3) A warrant of arrest shall not be executed until an undertaking to pay on demand the fees of the sheriff and all expenses incurred by him or on his behalf in respect of the arrest of the property and the care and custody of it while under arrest has been lodged in the sheriffs office or, where the action is proceeding in a district registry, in that registry.
(4) A warrant of arrest shall not be executed if the party at whose instance it was issued lodges a written request to that effect with the sheriff.
(5) A warrant of arrest issued against freight may be executed by serving the warrant on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried or on both of them.
(6) Subject to paragraph (5), a warrant of arrest must be served on the property against which it is issued.
(7) No instrument except a warrant of arrest shall be served on a weekly holiday.
(8) Within 7 days after the service of a warrant of arrest, the warrant must be filed by the sheriff.
10. Service on ships, etc.: How effected. (O. 70 r. 10)
(1) Subject to paragraph (2), service of a warrant of arrest or writ in an action in rem against a ship, freight or cargo shall be effected by
(a) affixing the warrant or writ for a short time on any mast of the ship or on the outside of any suitable part of the ships superstructure; and
(b) on removing the warrant or writ, leaving a copy of it affixed (in the case of the warrant) in its place or (in the case of the writ) on a sheltered, conspicuous part of the ship.
(2) Service of a warrant of arrest or writ in an action in rem against freight or cargo or both shall, if the cargo has been landed or transhipped, be effected
(a) by placing the warrant or writ for a short time on the cargo and, on removing the warrant or writ, leaving a copy of it on the cargo; or
(b) if the cargo is in the custody of a person who will not permit access to it, by leaving a copy of the warrant or writ with that person.
11. Applications with respect to property under arrest. (O. 70 r. 11)
(1) The sheriff may at any time apply to the Court for directions with respect to property under arrest in an action and may, or, if the Court so directs, shall, give notice of the application to any or all of the parties to every action against the property.
(2) The sheriff shall send a copy of any order made under paragraph (1) to all the parties to every action against the property to which the order relates.
12. Release of property under arrest. (O. 70 r. 12)
(1) Except where property arrested in pursuance of a warrant of arrest is sold under an order of the Court, property which has been so arrested shall only be released under the authority of an instrument of release (in this rule referred to as a "release"), in Form 160, issued out of the Registry.
(2) A party at whose instance any property was arrested may, before an appearance is entered in the action, file a notice withdrawing the warrant of arrest and, if he does so, a release shall, subject to paragraphs (3) and (5), be issued with respect to that property.
(3) Unless the Court otherwise orders, a release shall not be issued with respect to property as to which a caveat against release is in force.
(4) A release may be issued at the instance of a party interested in the property under arrest if the Court so orders, or, subject to paragraph (3), if all the other parties to the action in which the warrant of arrest was issued consent.
(5) Before a release is issued the party entitled to its issue must
(a) if there is a caveat against release in force as to the property in question, give notice to the party at whose instance it was entered or his solicitor requiring the caveat to be withdrawn; and
(b) file a praecipe in Form 161 requesting issue of a release.
(6) Before property under arrest is released in compliance with a release issued under this rule, the party at whose instance it was issued must, in accordance with the directions of the sheriff, either pay the costs, charges and expenses due in connection with the care and custody of the property while under arrest or give a written undertaking to do so.
(7) The Court, on the application of any party who objects to directions given to him by the sheriff under paragraph (6), may vary or revoke the directions.
13. Caveat against release and payment. (O. 70 r. 13)
(1) A person who desires to prevent the release of any property under arrest in an action in rem and the payment out of Court of any money in Court representing the proceeds of sale of that property must file in the Registry a praecipe in Form 162, and the filing of praecipe a caveat against the issue of a release with respect to that property and the payment out of Court of that money shall be entered in the caveat book.
(2) Where the release of any property under arrest is delayed by the entry of a caveat under this rule, any person having an interest in that property may apply to the Court by motion for an order requiring the person who procured the entry of the caveat to pay to the applicant damages in respect of the loss suffered by the applicant by reason of the delay, and the Court, unless it is satisfied that the person procuring the entry of the caveat had a good and sufficient reason for so doing, may make an order accordingly.
14. Duration of caveats. (O. 70 r. 14)
(1) Every caveat entered in the caveat book is valid for 6 months beginning with the date of its entry but the person at whose instance a caveat was entered may withdraw it by filing a praecipe in Form 163.
(2) The period of validity of a caveat may not be extended but this provision shall not be taken as preventing the entry of successive caveats.
15. Bail. (O. 70 r. 15)
(1) Bail on behalf of a party to an action in rem must be given by bond in Form 164; and the sureties to the bond must enter into the bond before a Commissioner for Oaths, not being a Commissioner, who, or whose partner, is acting as solicitor or agent for the party on whose behalf the bail is to be given, or before the Registrar.
(2) Subject to paragraph (3), a surety to a bail bond must make an affidavit stating that he is able to pay the sum for which the bond is given.
(3) Where a corporation is a surety to a bail bond given on behalf of a party, no affidavit shall be made under paragraph (2) on behalf of the corporation unless the opposite party requires it, but where such an affidavit is required it must be made by a director, manager, secretary or other similar officer of the corporation.
(4) The party on whose behalf bail is given must serve on the opposite party a notice of bail containing the names and addresses of the persons who have given bail on his behalf and of the Commissioner or Registrar before whom the bail bond was entered into; and after the expiration of 24 hours from the service of the notice (or sooner with the consent of the opposite party) he may file the bond and must at the same time file the affidavits (if any) made under paragraph (2) and an affidavit proving due service of the notice of bail to which a copy of that notice must be exhibited.
16. Interveners. (O. 70 r. 16)
(1) Where property against which an action in rem is brought is under arrest or money representing the proceeds of sale of that property is in Court, a person who has an interest in that property or money but who is not a defendant to the action may, with the leave of the Court, intervene in the action.
(2) An application for the grant of leave under this rule must be made ex parte by summons supported by an affidavit showing the interest of the applicant in the property against which the action is brought or in the money in Court.
(3) A person to whom leave is granted to intervene in an action must enter an appearance therein in the Registry within the period specified in the order granting leave; and Order 12, rules 1 to 4, shall, with the necessary modifications, apply in relation to the entry of appearance by an intervener as if he were a defendant named in the writ.
(4) The Court may order that a person to whom it grants leave to intervene in an action shall, within such period as may be specified in the order, serve on every other party to the action such pleading as may be so specified.
17. Preliminary acts. (O. 70 r. 17)
(1) In an action to enforce a claim for damage, loss of life or personal injury arising out of a collision between ships, unless the Court otherwise orders, the plaintiff must, within 2 months after issue of the writ, and the defendant must, within 2 months after entering an appearance in the action, and before any pleading is served lodge in the Registry a document (in these rules referred to as a "preliminary act") containing a statement of the following particulars:
(i) the names of the ships which came into collision and their ports of registry;
(ii) the date and time of the collision;
(iii) the place of the collision;
(iv) the direction and force of the wind;
(v) the state of the weather;
(vi) the state, direction and force of the tidal or other current;
(vii) the course steered and speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier;
(viii) the lights (if any) carried by the ship;
(ix) (a) the distance and bearing of the other ship if and when her echo was first observed by radar;
(b) the distance, bearing and approximate heading of the other ship when first seen;
(x) what light or combination of lights (if any) of the other ship was first seen;
(xi) what other lights or combination of lights (if any) of the other ship were subsequently seen before the collision, and when;
(xii) what alterations (if any) were made to the course and speed of the ship after the earlier of the two times referred to in article (vii) up to the time of the collision, and when, and what measures (if any), other than alterations of course or speed, were taken to avoid the collision, and when;
(xiii) the parts of each ship which first came into contact and the approximate angle between the two ships at the moment of contact;
(xiv) what sound signals (if any) were given, and when;
(xv) what sound signals (if any) were heard from the other ship, and when.
(2) Every preliminary act shall be sealed by the Registrar and shall be filed in a closed envelope (stamped with an official stamp showing the date of filing) and, unless the Court otherwise orders, no envelope shall be opened until the pleadings are closed and a consent signed by each of the parties or his solicitor to the opening of the preliminary acts is filed with the Registrar.
(3) Where the Court orders the preliminary acts to be opened, the Court may further order the action to be tried without pleadings but, where the Court orders the action to be so tried, any party who intends to rely on the defence of compulsory pilotage must give notice of his intention to do so to the other parties within 7 days after the opening of the preliminary acts.
(4) Where the Court orders the action to be tried without pleadings, it may also order each party, within such period as may be specified in the order, to file a statement of the grounds on which he charges any other party with negligence in connection with the collision and to serve a copy thereof on that other party
(5) Order 18, rule 1, shall not apply to an action in which preliminary acts are required but, unless the Court orders the action to be tried without pleadings, the plaintiff must serve a statement of claim on each defendant within 14 days after the latest date on which the preliminary act of any party to the action is filed.
18. Failure to lodge preliminary act: Proceedings against party in default. (O. 70 r. 18)
(1) Where in such an action as is referred to in rule 17(1) the plaintiff fails to lodge a preliminary act within the prescribed period, any defendant who has lodged such an act may apply to the Court by summons for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just.
(2) Where in such an action, being an action in personam, a defendant fails to lodge a preliminary act within the prescribed period, Order 19, rules 2 and 3, shall apply as if the defendants failure to lodge the preliminary act within that period were a failure by him to serve a defence on the plaintiff within the period fixed by or under these rules for service thereof, and the plaintiff, if he has lodged a preliminary act may, subject to Order 73, rule 7, accordingly enter judgment against that defendant in accordance with the said rule 2 or the said rule 3, as the circumstances of the case require.
(3) Where in such an action, being an action in rem, a defendant fails to lodge a preliminary act within the prescribed period, the plaintiff, if he has lodged such an act, may apply to the Court by motion for judgment against that defendant, and it shall not be necessary for the plaintiff to file or serve a statement of claim or an affidavit before the hearing of the motion.
(4) On the hearing of a motion under paragraph (3) the Court may make such order as it thinks just, and where the defendant does not appear on the hearing and the Court is of opinion that judgment should be given for the plaintiff provided he proves his case, it shall order the plaintiffs preliminary act to be opened and require the plaintiff to satisfy the Court that his claim is well founded.
The plaintiffs evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction in that behalf.
(5) Where the plaintiff in accordance with a requirement under paragraph (4) satisfies the Court that his claim is well founded, the Court may give judgment for the claim with or without a reference to the Registrar and may at the same time order the property against which the action is brought to be appraised and sold and the proceeds to be paid into Court or make such order as it thinks just.
(6) The Court may, on such terms as it thinks just, set aside any judgment entered in pursuance of this rule.
(7) In this rule references to the prescribed period shall be construed as references to the period within which by virtue of rule 17(1) or of any order of the Court the plaintiff or defendant, as the context of the reference requires, is required to lodge a preliminary act.
19. Special provisions as to pleadings in collision, etc., actions. (O. 70 r. 19)
(1) Notwithstanding anything in Order 18, rule 3, the plaintiff in any such action as is referred to in Order 11 rule 1(1)(i), (ii) and (iii) may not serve a reply or a defence to counterclaim on the defendant except with the leave of the Court.
(2) If in such an action there is a counterclaim and no defence to counterclaim by the plaintiff, then, notwithstanding Order 18, rule 14(3), but without prejudice to the other provisions of that rule, there is an implied joinder of issue on the counterclaim, and the joinder of issue operates as a denial of every material allegation of fact made in the counterclaim.
20. Judgment by default. (O. 70 r. 20)
(1) Where a writ is served under rule 7(4) on a party at whose instance a caveat against arrest was issued, then if
(a) the sum claimed in the action begun by writ does not exceed the amount specified in the undertaking given by that party or his solicitor to procure the entry of the caveat; and
(b) that party or his solicitor does not within 14 days after service of the writ fulfil the undertaking given by him as aforesaid,
the plaintiff may, after filing an affidavit verifying the facts on which the action is based, apply to the Court for judgment by default.
(2) Judgment given under paragraph (1) may be enforced by the arrest of the property against which the action was brought and by committal of the party at whose instance the caveat with respect to that property was entered.
(3) Where a defendant to an action in rem fails to enter an appearance within the time limited for appearing, then, on the expiration of 14 days after service of the writ and upon filing an affidavit proving due service of the writ, an affidavit verifying the facts on which the action is based and, if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default.
Where the writ is deemed to have been duly served on the defendant by virtue of Order 10, rule 1(2), or was served on the Registrar under rule 7 of this Order, an affidavit proving due service of the writ need not be filed under this paragraph, but the writ indorsed as mentioned in the said rule 1(2) or indorsed by the Registrar with a statement that he accepts service of the writ must be lodged with the affidavit verifying the facts on which the action is based.
(4) Where a defendant to an action in rem fails to serve a defence on the plaintiff, then, after the expiration of the period fixed by or under these rules for service of the defence and upon filing an affidavit stating that no defence was served on him by that defendant during that period, an affidavit verifying the facts on which the action is based and, if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default.
(5) Where a defendant to a counterclaim in an action in rem fails to serve a defence to counterclaim on the defendant making the counterclaim, then, subject to paragraph (6), after the expiration of the period fixed by or under these rules for service of the defence to counterclaim and upon filing an affidavit stating that no defence to counterclaim was served on him by the first-mentioned defendant during that period, an affidavit verifying the facts on which the counterclaim is based and a copy of the counterclaim, the defendant making the counterclaim may apply to the Court for judgment by default.
(6) No application may be made under paragraph (5) against the plaintiff in any such action as is referred to in Order 11, rule 1(1)(i), (ii) and (iii).
(7) An application to the Court under this rule must be made by motion and if, on the hearing of the motion, the Court is satisfied that the applicants claim is well founded it may give judgment for the claim with or without a reference to the Registrar and may at the same time order the property against which the action or, as the case may be, counterclaim is brought to be appraised and sold and the proceeds to be paid into Court or may make such other order as it thinks just.
(8) In default actions in rem evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction in that behalf.
(9) The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this rule.
(10) Order 13 and Order 19 (except rule 1) shall not apply to actions in rem.
21. Order for sale of ship: Determination of priority of claims. (O. 70 r. 21)
(1) Where in an action in rem against a ship the Court has ordered the ship to be sold, any party who has obtained or obtains judgment against the ship or proceeds of sale of the ship may
(a) in a case where the order for sale contains the further order referred to in paragraph (2), after the expiration of the period specified in the order under paragraph (2)(a); or
(b) in any other case, after obtaining judgment,
apply to the Court by motion for an order determining the order of priority of the claims against the proceeds of sale of the ship.
(2) Where in an action in rem against a ship the Court orders the ship to be sold, it may further order
(a) that the order of priority of the claims against the proceeds of sale of the ship shall not be determined until after the expiration of 90 days, or of such other period as the Court may specify, beginning with the day on which the proceeds of sale are paid into Court;
(b) that any party to the action or to any other action in rem against the ship or the proceeds of sale thereof may apply to the Court in the action to which he is a party to extend the period specified in the order;
(c) that within 7 days after the date of payment into Court of the proceeds of sale the sheriff shall send for publication in the Gazette and such newspaper or publication, if any, as the Court may direct, a notice complying with paragraph (3).
(3) The notice referred to in paragraph (2)(c) must state
(a) that the ship (naming her) has been sold by order of the High Court in an action in rem, identifying the action;
(b) that the gross proceeds of the sale, specifying the amount thereof, have been paid into Court;
(c) that the order of priority of the claims against the said proceeds will not be determined until after the expiration of the period (specifying it) specified in the order for sale; and
(d) that any person with a claim against the ship or the proceeds of sale thereof, on which he intends to proceed to judgment should do so before the expiration of that period.
(4) The sheriff must lodge in the Registry a copy of each newspaper or publication in which the notice referred to in paragraph (2)(c) appeared.
(5) The expenses incurred by the sheriff in complying with an order of the Court under this rule shall be included in his expenses relating to the sale of the ship.
(6) An application to the Court to extend the period referred to in paragraph (2)(a) must be made by motion, and a copy of the notice of motion, must, at least 3 days before the day fixed for the hearing thereof, be served on each party who has begun an action in rem against the ship or the proceeds of sale thereof.
(7) In this rule "Court" means the Judge in person.
22. Appraisement and sale of property. (O. 70 r. 22)
(1) A commission for the appraisement and sale of any property under an order of the Court shall not be issued until the party applying for it has filed a praecipe in Form 165.
(2) Such a commission must, unless the Court otherwise orders, be executed by the sheriff and must be in Form 166.
(3) A commission for appraisement and sale shall not be executed until an undertaking in writing satisfactory to the sheriff to pay the fees and expenses of the sheriff on demand has been lodged in the sheriffs office.
(4) The sheriff shall pay into Court the gross proceeds of the sale of any property sold by him under a commission for sale and shall bring into Court the account relating to the sale (with vouchers in support) for taxation.
(5) On the taxation of the sheriffs account relating to a sale any person interested in the proceeds of the sale shall be entitled to be heard, and any decision of the Registrar made on the taxation to which objection is taken may be reviewed in the same manner and by the same persons as any decision of a Registrar made in taxation proceedings under Order 59, and rules 34 to 36 of that Order shall apply accordingly with the necessary modifications.
23. Payment into and out of Court. (O. 70 r. 23)
(1) Order 22 (except rules 3, 4, 5 and 12) shall apply in relation to an Admiralty action as it applies to an action for debt or damages.
(2) Subject to paragraph (3), money paid into Court shall not be paid out except in pursuance of an order of the Judge in person.
(3) The Registrar may, with the consent of the parties interested in money paid into Court, order the money to be paid out to the person entitled thereto in the following cases, that is to say
(a) where a claim has been referred to the Registrar for decision and all the parties to the reference have agreed to accept the Registrars decision and to the payment out of any money in Court in accordance with that decision;
(b) where property has been sold and the proceeds of sale thereof paid into Court, and the parties are agreed as to the persons to whom the proceeds shall be paid and the amount to be paid to each of those persons;
(c) where in any other case there is no dispute between the parties.
24. Summons for directions. (O. 70 r. 24)
(1) Unless a Judge in person otherwise directs, the summons for directions shall be heard by a Judge in person but, subject to that, Order 25 shall apply to the Admiralty actions (other than limitation actions) as it applies to other actions.
On the day on which any party serves on any other party a notice under Order 25, rule 7, he must lodge two copies of the notice in the Registry.
(2) An order made on the summons for directions shall determine whether the trial is to be without assessors or with one or more assessors, nautical otherwise.
(3) An order may be made on the summons for directions, or a direction may be given at the trial, limiting the witnesses who may be called at the trial, whether they are expert witnesses or not.
(4) Any such order or direction as is referred to in paragraphs (2) and (3) including an order made on appeal may be varied or revoked by a subsequent order or direction made or given at or before the trial by the Judge in person or, with the Judges consent, by the Registrar.
25. Fixing date for trial, etc. (O. 70 r. 25)
(1) The Court may at any stage of an action, either on an application made by summons by any party or by order made by virtue of rule 33, fix a date for the trial and vacate or alter any such date.
(2) Not later than 7 days after a date for the trial of the action has been fixed, the action must be set down for trial
(a) where the date was fixed on an application made under paragraph (1), by the applicant;
(b) where the date was fixed by order made by virtue of rule 33, by the plaintiff.
Where the applicant or plaintiff does not, within the period fixed by this paragraph, set the action down for trial, any other party may set it down or an application may be made to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court may order the action to be dismissed accordingly or make such other order as it thinks just.
(3) Not less than 7 days before the date fixed for the trial, or such other period before that date as may be specified in general directions given by the Chief Justice, the party by whom the action was set down for trial must, unless the Court otherwise orders, file in the Registry
(a) if trial with one or more assessors has been ordered, a praecipe for his or their attendance; and
(b) three copies or in the case of a trial with one or more assessors, four copies (if with one assessor) and five copies (if with two) of any pleadings, preliminary acts, notices given under rule 17(3) and statements filed under rule 17(4).
(4) If an action which has been set down for trial is settled or withdrawn it shall be the duty of all the parties to notify the Registry of the fact without delay and take such steps as may be necessary to vacate the date fixed for the trial.
(5) Order 21, rule 2(4), Order 33, rule 3, and Order 34 (except rule 6) shall not apply to Admiralty actions.
26. Stay of proceedings in collision, etc., actions until security given. (O. 70 r. 26)
Where an action in rem, being an action to enforce any such claim as is referred to in Order 11, rule 1(1)(i), (ii) and (iii), is begun and a cross action in rem arising out of the same collision or other occurrence as the first mentioned action is subsequently begun, or a counterclaim arising out of that occurrence is made in the first mentioned action, then
(a) if the ship in respect of or against which the first mentioned action is brought has been arrested or security given to prevent her arrest; but
(b) the ship in respect of or against which the cross action is brought or the counterclaim made cannot be arrested and security has not been given to satisfy any judgment given in favour of the party bringing the cross action or making the counterclaim,
the Court may stay proceedings in the first mentioned action until the security is given to satisfy any judgment given in favour of that party.
27. Inspection of ship, etc. (O. 70 r. 27)
Without prejudice to its powers under Order 29, rules 2 and 3, and Order 35, rule 5, the Court may, on the application of any party, make an order for the inspection by the assessors (if the action is tried with assessors), or by any party or witness, of any ship or other property, whether movable or immovable, the inspection of which may be necessary or desirable for the purpose of obtaining full information or evidence in connection with any issue in the action.
28. Shorthand note of oral evidence etc. (O. 70 r. 28)
(1) An official shorthand note shall, if the Court so directs be taken of the proceedings in Court of any cause or matter.
The reference in this paragraph to a shorthand note shall be construed as including a reference to a record of the proceedings made by mechanical means.
(2) The Court may appoint official Admiralty shorthand writers who shall be paid such fees as may be fixed by the Court.
29. Examination of witnesses and other persons. (O. 70 r. 29)
(1) The power conferred by Order 39, rule 1, shall extend to the making of an order authorising the examination of a witness or person on oath before a Judge sitting in Court as if for the trial of the cause or matter, without the cause or matter having been set down for trial or called on for trial.
(2) The power conferred by the said rule 1 shall also extend to the making of an order, with the consent of the parties, providing for the evidence of a witness being taken as if before an examiner, but without an examiner actually being appointed or being present.
(3) Where an order is made under paragraph (2), it may make provision for any consequential matters and, subject to any provision so made, the following provisions shall have effect
(a) the party whose witness is to be examined shall provide a shorthand writer to take down the evidence of the witness;
(b) any representative, being an advocate or a solicitor, of either of the parties shall have authority to administer the oath to the witness;
(c) the shorthand writer need not himself be sworn but shall certify in writing as correct a transcript of his notes of the evidence and deliver it to the solicitor for the party whose witness was examined, and that solicitor shall file it in the Registry;
(d) unless the parties otherwise agree or the Court otherwise orders, the transcript or a copy thereof shall, before the transcript is filed, be made available to the counsel or other persons who acted as advocates at the examination, and if any of those persons is of opinion that the transcript does not accurately represent the evidence he shall make a certificate specifying the corrections which in his opinion should be made therein, and that certificate must be filed with the transcript.
(4) In actions in which preliminary acts fall to be filed under rule 17, an order shall not be made under Order 39, rule 1, authorizing any examination of a witness before the preliminary acts have been filed, unless for special reasons the Court thinks fit so to direct.
(5) Order 39 shall apply in relation to an Admiralty cause or matter.
30. Issue of writ of subpoena. (O. 70 r. 30)
Order 38, rule 14, shall apply in relation to the issue of a writ of subpoena ad testificandum.... or subpoena duces tecum in an Admiralty cause or matter.
31. Proceedings for apportionment of salvage. (O. 70 r. 31)
(1) Proceedings for the apportionment of salvage the aggregate amount of which has already been ascertained shall be begun by originating motion.
(2) The notice of such motion, together with the affidavits in support thereof, must be filed in the Registry 7 days at least before the hearing of the motion, unless the Court gives leave to the contrary, and a copy of the notice and of the affidavits must be served on all the other parties to the proceedings before the originals are filed.
(3) On the hearing of the motion the Judge may exercise any of the jurisdiction conferred by section 402 of the Merchant Shipping Ordinance.
32. Filing and service of notice of motion. (O. 70 r. 32)
(1) Notice of a motion in any action, together with the affidavits (if any) in support thereof, must be filed in the Registry 3 days at least before the hearing of the motion unless the Court gives leave to the contrary.
(2) A copy of the notice of motion and of the affidavits (if any) in support thereof must be served on all the other parties to the proceedings.
33. Agreement between solicitors may be made order of Court. (O. 70 r. 33)
Any agreement in writing between the solicitors of the parties to a cause or matter, dated and signed by these solicitors, may, if the Registrar thinks it reasonable and such as the Judge would under the circumstances allow, be filed in the Registry, and the agreement shall thereupon become an order of Court and have the same effect as if such order had been made by the Judge in person.
34. Originating summons: Procedure. (O. 70 r. 34)
(1) Order 12 shall apply in relation to an originating summons in Admiralty proceedings to which appearance is required to be entered.
(2) Order 28, rule 2, shall apply in relation to Admiralty proceedings begun by originating summons.
(3) Rule 25 (except paragraph (3)) shall, with any necessary modifications, apply in relation to an Admiralty cause or matter begun by originating summons, and Order 28, rule 9, shall not apply to such a cause or matter.
35. Limitation action: Parties. (O. 70 r. 35)
(1) In a limitation action the person seeking relief shall be the plaintiff and shall be named in the writ by his name and not described merely as the owner of, or as bearing some other relation to, a particular ship or other property.
(2) The plaintiff must make one of the persons with claims against him in respect of the casualty to which the action relates defendant to the action and may make any or all of the others defendants also.
(3) At least one of the defendants to the action must be named in the writ by his name but the other defendants may be described generally and not named by their names.
(4) The writ must be served on one or more of the defendants who are named by their names therein and need not be served on any other defendant.
(5) In this rule and rules 36, 37 and 38 "name" includes a firm name or the name under which a person carries on his business, and where any person with a claim against the plaintiff in respect of the casualty to which the action relates has described himself for the purposes of his claim merely as the owner of, or as bearing some other relation to, a ship or other property, he may be so described as defendant in the writ and, if so described, shall be deemed for the purposes of the rules aforesaid to have been named in the writ by his name.
36. Limitation action: Summons for decree or directions. (O. 70 r. 36)
(1) Within 7 days after the entry of appearance by one of the defendants named by their names in the writ, or, if none of them enters an appearance, within 7 days after the time limited for appearing, the plaintiff, without serving a statement of claim, must take out a summons returnable in Chambers before the Registrar asking for a decree limiting his liability or, in default of such a decree, for directions as to the further proceedings in the action.
(2) The summons must be supported by an affidavit or affidavits proving
(a) the plaintiffs case in the action; and
(b) if none of the defendants named in the writ by their names has entered an appearance, service of the writ on at least one of the defendants so named.
(3) The affidavit in support of the summons must state
(a) the names of all the persons who, to the knowledge of the plaintiff, have claims against him in respect of the causalty to which the action relates, not being defendants to the action who are named in the writ by their names; and
(b) the address of each of those persons, if known to the plaintiff.
(4) The summons and every affidavit in support thereof must, at least 7 clear days before the hearing of the summons, be served on any defendant who has entered an appearance.
(5) On the hearing of the summons the Registrar, if it appears to him that it is not disputed that the plaintiff has a right to limit his liability, shall make a decree limiting the plaintiffs liability and fix the amount to which the liability is to be limited.
(6) On the hearing of the summons the Registrar, if it appears to him that any defendant has not sufficient information to enable him to decide whether or not to dispute that the plaintiff has a right to limit his liability, shall give such directions as appear to him to be appropriate for enabling the defendant to obtain such information and shall adjourn the hearing.
(7) If on the hearing or resumed hearing of the summons the Registrar does not make a decree limiting the plaintiffs liability, he shall give such directions as to the further proceedings in the action as appear to him to be appropriate including, in particular, a direction requiring the taking out of a summons for directions under Order 25.
(8) Any defendant who, after the Registrar has given directions under paragraph (7), ceases to dispute the plaintiffs right to limit his liability must forthwith file a notice to that effect in the Registry, as the case may be, and serve a copy on the plaintiff and on any other defendant who has entered an appearance.
(9) If every defendant who disputes the plaintiffs right to limit his liability serves a notice on the plaintiff under paragraph (8), the plaintiff may take out a summons returnable in Chambers before the Registrar asking for a decree limiting his liability; and paragraphs (4) and (5) shall apply to a summons under this paragraph as they apply to a summons under paragraph (1).
37. Limitation action: Proceedings under decree. (O. 70 r. 37)
(1) Where the only defendants in a limitation action are those named in the writ by their names and all the persons so named have either been served with the writ or entered an appearance, any decree in the action limiting the plaintiffs liability (whether made by the Registrar or on the trial of the action)
(a) need not be advertised; but
(b) shall only operate to protect the plaintiff in respect of claims by the persons so named or persons claiming through or under them.
(2) In any case not falling within paragraph (1), any decree in the action limiting the plaintiffs liability (whether made by the Registrar or on the trial of the action)
(a) shall be advertised by the plaintiff in such manner and within such time as may be provided by the decree;
(b) shall fix a time within which persons with claims against the plaintiff in respect of the casualty to which the action relates may enter an appearance in the action (if they have not already done so) and file their claims, and, in cases to which rule 38 applies, take out a summons if they think fit, to set the order aside.
(3) The advertisement to be required under paragraph (2)(a) shall, unless for special reasons the Registrar or Judge thinks fit otherwise to provide, be a single advertisement in each of three newspapers specified in the decree, identifying the action, the casualty and the relation of the plaintiff thereto (whether as owner of a ship involved in the casualty or otherwise as the case may be), stating that the decree has been made and specifying the amounts fixed thereby as the limits of the plaintiff's liability and the time allowed thereby for the entering of appearances, the filing of claims and the taking out of summonses to set the decree aside.
The plaintiff must within the time fixed under paragraph (2) (b) file in the Registry a copy of each newspaper in which the advertisement required under paragraph (2)(a) appears.
(4) The time to be allowed under paragraph (2) (b) shall, unless for special reasons the Registrar or Judge thinks fit otherwise to provide, be not less than 2 months from the latest date allowed for the appearance of the advertisements; and after the expiration of the time so allowed, no appearance may be entered, claim filed or summons taken out to set aside the decree except with the leave of the Registrar or, on an appeal, of the Judge.
(5) Save as aforesaid, any decree limiting the plaintiffs liability (whether made by a Registrar or on the trial of the action) may make any such provisions as is authorized by section 361 of the Merchant Shipping Ordinance 1952 (70/52).
38. Limitation action: Proceedings to set aside a decree. (O. 70 r. 38)
(1) Where a decree limiting the plaintiffs liability (whether made by a Registrar or on the trial of the action) fixes a time in accordance with rule 37(2), any person with a claim against the plaintiff in respect of the casualty to which the action relates, who
(a) was not named by his name in the writ as a defendant to the action; or
(b) if so named, neither was served with the writ nor entered an appearance,
may, within that time, after entering an appearance, take out a summons returnable in Chambers before the Registrar asking that the decree be set aside.
(2) The summons must be supported by an affidavit or affidavits showing that the defendant in question has a bona fide claim against the plaintiff in respect of the casualty in question and that he has sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given him by the decree.
(3) The summons and every affidavit in support thereof must, at least 7 clear days before the hearing of the summons, be served on the plaintiff and any defendant who has entered an appearance.
(4) On the hearing of the summons the Registrar, if he is satisfied that the defendant in question has a bona fide claim against the plaintiff and sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given him by the decree, shall set the decree aside and give such directions as to the further proceedings in the action as appear to him to be appropriate including, in particular a direction requiring the taking out of a summons for directions under Order 25.
39. References to Registrar. (O. 70 r. 39)
(1) Any party (hereafter in this rule referred to as the "claimant") making a claim which is referred to the Registrar for decision must, within 2 months after the order is made, or, in a limitation action, within such other period as the Court may direct, file his claim and, unless the reference is in such an action, serve a copy of the claim on every other party.
(2) At any time after the claimants claim has been filed or, where the reference is in a limitation action, after the expiration of the time limited by the Court for the filing of claims, but, in any case, not less than 28 days before the day appointed for the hearing of the reference, any party to the cause or matter may apply to the Registrar by summons for directions as to the proceedings on the reference, and the Registrar shall give such directions, if any, as he thinks fit including, without prejudice to the generality of the foregoing words, a direction requiring any party to serve on any claimant, within such period as the Registrar may specify, a defence to that claimants claim.
(3) The reference shall be heard on a day appointed by the Registrar and, unless the reference is in a limitation action or the parties to the reference consent to the appointment of a particular day, the appointment must be made by order on an application by summons made by any party to the cause or matter.
(4) An appointment for the hearing of a reference shall not be made until after the claimant has filed his claim or, where the reference is in a limitation action, until after the expiration of the time limited by the Court for the filing of claims.
(5) Not later than 7 days after an appointment for the hearing of a reference has been made the claimant or, where the reference is in a limitation action, the plaintiff must enter the reference for hearing by lodging in the Registry a praecipe requesting the entry of the reference in the list for hearing on the day appointed.
(6) Not less than 14 days before the day appointed for the hearing of the reference the claimant must file
(a) a list, signed by him and every other party, of the items (if any) of his claim which are not disputed, stating the amount (if any) which he and the other parties agree should be allowed in respect of each such item; and
(b) such affidavits or other documentary evidence as is required to support the items of his claim which are disputed.
and, unless the reference is in a limitation action, he must at the same time serve on every other party a copy of every document filed under this paragraph.
(7) If the claimant fails to comply with paragraph (1) or (6)(b), the Court may, on the application of any other party to the cause or matter, dismiss the claim.
40. Hearing of reference. (O. 70 r. 40)
(1) The Registrar may adjourn the hearing of a reference from time to time as he thinks fit.
(2) At or before the hearing of a reference, the Registrar may give a direction limiting the witnesses who may be called, whether expert witnesses or not, but any such direction may, on sufficient cause being shown, be revoked or varied by a subsequent direction given at or before the hearing.
(3) Subject to paragraph (2), evidence may be given orally or by affidavit or in such other manner as may be agreed upon, and the evidence may, on the application of either party, but at the expense in the first instance of the party on whose behalf the application is made, be taken down by the official shorthand writer, if any, and in such case a transcript of the shorthand writers notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses on an objection to the Registrars decision.
(4) When the hearing of the reference has been concluded, the Registrar shall
(a) reduce to writing his decision on the question arising in the reference (including any order as to costs) and cause it to be filed;
(b) cause to be filed either with his decision or subsequently such statement (if any) of the grounds of the decision as he thinks fit; and
(c) send to the parties to the reference notice that he has done so.
(5) Where no statement of the grounds of the Registrars decision is filed with his decision and no intimation has been given by the Registrar that he intends to file such a statement later, any party to the reference may, within 14 days after the filing of the decision, make a written request to the Registrar to file such a statement.
41. Objection to decision on reference. (O. 70 r. 41)
(1) Any party to a reference to the Registrar may, by motion in objection, apply to a Judge in Court to set aside or vary the decision of the Registrar on the reference, but notice of the motion, specifying the points of objection to the decision, must be filed within 14 days after the date on which notice of the filing of the decision was sent to that party under rule 40(4) or, if a notice of the filing of a statement of the grounds of the decision was subsequently sent to him thereunder, within 14 days after the date on which that notice was sent.
(2) The decision of the Registrar shall be deemed to be given on the date on which it is filed, but unless he or the Judge otherwise directs, the decision shall not be acted upon until the time has elapsed for filing notice of a motion in objection thereto, or while such a motion is pending or remains undisposed of.
(3) A direction shall not be given under paragraph (2) without the parties being given an opportunity of being heard, but may, if the Registrar announces his intended decision at the conclusion of the hearing of the reference, be incorporated in his decision as reduced to writing under rule 40 (4).
42. Drawing up and entry of judgments and orders. (O. 70 r. 42)
Every judgment given or order made in an Admiralty cause or matter shall be drawn up and shall be entered by an officer of the Registry in the book kept for the purpose.
43. Inspection of document filed in Registry. (O. 70 r. 43)
(1) Order 60, rule 4, shall apply in relation to documents filed in the Registry.
(2) For the purpose of the said rule 4, as applied by paragraph (1), a decree made in Chambers in a limitation action shall be deemed to have been made in Court.

69. Arbitration Proceedings.

2007-09-09T00:06:00.001-07:00

69. Arbitration Proceedings.
ORDER 69
ARBITRATION PROCEEDINGS
1. Interpretation (O. 69 r. 1)
In this Order "Act" means the Arbitration Act 1952 (Act 93).
2. Matters for a Judge in Court. (O. 69 r. 2)
(1) Every application to the Court
(a) to remit an award under section 23 of the Act; or
(b) to remove an arbitrator or umpire under section 24(1) of that Act; or
(c) to set aside an award under section 24(2) thereof, must be made by originating motion to a single Judge in Court.
(2) A special case stated for the decision of the High Court by an arbitrator or umpire under section 22 of the Act shall be heard and determined by a single Judge.
(3) An application for a declaration that an award made by an arbitrator or umpire is not binding on a party to the award on the ground that it was made without jurisdiction may be made by originating motion to a single Judge in Court, but the foregoing provision shall not be taken as affecting the Judge power to refuse to make such a declaration in proceedings begun by motion.
3. Matters for Judge in Chambers or Registrar. (O. 69 r. 3)
(1) Subject to the foregoing provisions of this Order, the jurisdiction of the High Court or a Judge thereof under the Act may be exercised by a Judge in Chambers or the Registrar.
(2) An application for an order under section 22 of the Act directing an arbitrator or umpire to state a case must be made by originating summons and the summons must be served on the arbitrator or umpire and the other party to the reference.
(3) No appearance need be entered to an originating summons by which an application under the said Act is made.
4. Special provisions as to applications to remit or set aside an award. (O. 69 r. 4)
(1) An application to the Court
(a) to remit an award under section 23 of the Act; or
(b) to set aside an award under section 24(2) of that Act or otherwise,
may be made at any time within 6 weeks after the award has been made and published to the parties.
(2) In the case of every such application, the notice of motion must state in general terms the grounds of the application; and, where the motion is founded on evidence by affidavit, a copy of every affidavit intended to be used must be served with that notice.
5. Service out of the jurisdiction of summons, notice, etc. (O. 69 r. 5)
(1) Service out of the jurisdiction
(a) of an originating summons for the appointment of an arbitrator or umpire or for leave to enforce an award; or
(b) of notice of an originating motion to remove an arbitrator or umpire or to remit or set aside an award; or
(c) of any order made on such a summons or motion as aforesaid,
is permissible with the leave of the Court provided that the arbitration to which the summons, motion or order relates is to be, or has been held within the jurisdiction.
(2) An application for the grant of leave under this rule must be supported by an affidavit stating the ground on which the application is made and showing in what place or country the person to be served is, or probably may be found; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this rule.
(3) Order 11, rules 5, 6 and 8, shall apply in relation to any such summons, notice or order as is referred to in paragraph (1) as they apply in relation to notice of a writ.
6. Registration in High Court of foreign awards. (O. 69 r. 6)
Where an award is made in proceedings on an arbitration in any part of the British Commonwealth or other territory to which the Reciprocal Enforcement of Judgments Act 1958 extends, shall in relation to that part of the British Commonwealth have effect, then, if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a Court in that place, Order 67 shall apply in relation to the award as it applies in relation to a judgment given by that Court, subject, however, to the following modifications:
(a) for references to the country of the original Court there shall be substituted references to the place where the award was made; and
(b) the affidavit required by rule 3 of the said Order must state (in addition to the other matters required by that rule) that to the best of the information or belief of the deponent the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a Court in that place.

67. Reciprocal Enforcement of Judgments.

2007-09-09T00:03:00.000-07:00

67. Reciprocal Enforcement of Judgments.
ORDER 67
RECIPROCAL ENFORCEMENT OF JUDGMENTS
1. Powers under relevant acts exerciseable by Judge or Registrar. (O. 67 r. 1)
The powers conferred on the High Court by the Reciprocal Enforcement of Judgments Act, 1958 (in this Order referred to as "the Act"), may be exercised by a Judge in Chambers and the Registrar.
2. Application for registration. (O. 67 r. 2)
(1) An application under section 4 of the Act in respect of a judgment obtained in a superior Court of a country in the First Schedule thereto to have the judgment registered in the High Court must be made by an originating summons.
(2) No appearance need be entered to an originating summons under this rule.
3. Evidence in support of application. (O. 67 r. 3)
(1) An application for registration must be supported by an affidavit
(a) exhibiting the judgment or a certified or certified or otherwise duly authenticated copy thereof, and where the judgment is not in the English language, a translation thereof in that language certified by a notary public or authenticated by affidavit;
(b) stating the name, trade or business and the usual or last known place of abode or business of the judgment creditor and the judgment debtor respectively, so far as known to the deponent;
(c) stating to the best of the information or belief of the deponent
(i) that the judgment creditor is entitled to enforce the judgment;
(ii) as the case may require, either that at the date of the application the judgment has not been satisfied, or the amount in respect of which it remains unsatisfied;
(iii) where the application is made under the Act, that the judgment does not fall within any of the case in which a judgment may not be ordered to be registered under section 4(2) of the Act;
(iv) where the application is made under the Act, that at the date of the application the judgment can be enforced by execution in the country of the original Court and that, if it were registered, the registration would not be, or be liable to be, set aside under section 5 of that Act;
(d) specifying, where the application is made under the Act, the amount of the interest, if any, which under the law of the country of the original Court has become due under the judgment up to the time of registration.
(2) Where the sum payable under a judgment sought to be registered is expressed in a currency other than the currency of Malaysia, the affidavit must also state the amount which that sum represents in the currency of Malaysia calculated at the rate of exchange prevailing at the date of the judgment.
(3) Where a judgment sought to be registered under the Act is in respect of different matters, and some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments, those judgments could properly have been registered, the affidavit must state the provisions in respect of which it is sought to register the judgment.
(4) In the case of an application under the Act, the affidavit must be accompanied by such other evidence with respect to the enforceability of the judgment by execution in the country of the original Court, and of the law of that country under which any interest has become due under the judgment, as may be required having regard to the provisions of the Order under the Act extending that Act to that country.
4. Security for costs. (O. 67 r. 4)
Save as otherwise provided by any notification made under section 5 of the Act or any relevant Order under the Act, the Court may order the judgment creditor to give security for the cost of the application for registration and of any proceedings which may be brought to set aside the registration.
5. Order for registration. (O. 67 r. 5)
(1) An order in Form 145 giving leave to register a judgment must be drawn up by, or on behalf of, the judgment creditor and served on the judgment debtor.
(2) Every such order shall state the period within which an application may be made to set aside the registration and shall contain a notification that execution on the judgment will not issue until after the expiration of that period.
(3) The Court may, on an application made at any time while it remains competent for any party to apply to have the registration set aside, extend the period (either as originally fixed or as subsequently extended) within which an application to have the registration set aside may be made.
6. Register of judgments. (O. 67 r. 6)
(1) There shall be kept in the Registry a register of the judgments ordered to be registered under the Act.
(2) There shall be included in such register particulars of any execution issued on a judgment ordered to be so registered.
7. Notice of registration. (O. 67 r. 7)
(1) Notice of the registration of a judgment must be served on the judgment debtor and, subject to paragraph (2), must be served personally unless the Court otherwise orders.
(2) Service of such a notice out of the jurisdiction is permissible without leave, and Order 11, rules 5, 6 and 8, shall apply in relation to such a notice as they apply in relation to notice of a writ.
(3) The notice of registration must state
(a) full particulars of the judgment registered and the order for registration.
(b) the name and address of the judgment creditor or of his solicitor on whom, and at which, any summons issued by the judgment debtor may be served;
(c) the right of the judgment debtor to apply to have the registration set aside; and
(d) the period within which an application to set aside the registration may be made.
8. Indorsement of service. (O. 67 r. 8)
(1) Within 3 days after service of the notice of registration or within such longer period as the Court may, in special circumstances, allow, the notice or a copy thereof must be indorsed by the person who served it with the day of the week and date on which it was served; and, if the notice is not so indorsed within the period aforesaid the judgment creditor may not issue execution on the judgment to which the notice relates without the leave of the Court.
(2) Every affidavit of service of any such notice must state the date on which the notice was indorsed under this rule.
9. Application to set aside registration. (O. 67 r. 9)
(1) An application to set aside the registration of a judgment must be made by summons supported by affidavit.
(2) The Court hearing such application may order any issue between the judgment creditor and the judgment debtor to be tried in any manner in which an issue in an action may be ordered to be tried.
(3) Where the Court hearing an application to set aside the registration of a judgment registered under the Act is satisfied that the judgment falls within any of the cases in which a judgment may not be ordered to be registered under section 3(2) of that Ordinance or that it is not just or convenient that the judgment should be enforced in Malaysia or that there is some other sufficient reason for setting aside the registration, it may order the registration of the judgment to be set aside on such terms as it thinks fit.
10. Issue of execution. (O. 67 r. 10)
(1) Execution shall not issue on a judgment registered under the Act until after the expiration of the period which, in accordance with rule 5(3), is specified in the order for registration as the period within which an application may be made to set aside the registration or, if that period has been extended by the Court, until after the expiration of that period as so extended.
(2) If an application is made to set aside the registration of a judgment, execution on the judgment shall not issue until after such application is finally determined.
(3) Any party wishing to issue execution on a judgment registered under the Act must produce to the sheriff an affidavit of service of the notice of registration of the judgment and any order made by the Court in relation to the judgment.
11. Determination of certain questions. (O. 67 r. 11)
If, in any case under the Act, any question arises whether a foreign judgment can be enforced by execution in the country of the original Court, or what interest is payable under a foreign judgment under the law of the original Court, that question shall be determined in accordance with the provisions in that behalf contained in the Order extending that Act to that country.
12. Rules to have effect subject to orders of the Government. (O. 67 r. 12)
The foregoing rules shall, in relation to any judgment registered or sought to be registered under the Act, have effect subject to any such provisions contained in the Order extending that Act to the country of the original Court as are declared by the Order to be necessary for giving effect to the agreement made between the Government and that country in relation to matters with respect to which there is power to make those rules.
13. Certified copy of High Court judgment. (O. 67 r. 13)
(1) An application under section 10 of the Act for a certified copy of a judgment entered in the High Court must be made ex parte by summons to the Registrar supported by affidavit.
(2) The affidavit in support of the application under section 10 of the Act must give particulars of the judgment, show that the judgment debtor is resident in the territory to which that Act extends and state the name, trade or business and the usual or last known place of abode of the judgment creditor and the judgment debtor respectively, so far as known to the deponent.
(3) The affidavit in support of the application under section 10 of the Act must
(a) give particulars of the proceedings in which the judgment was obtained;
(b) have annexed to it a copy of the writ or originating summons by which the proceedings were begun, the evidence of service thereof on, or appearance by, the defendant, copies of the pleadings, if any, and a statement of the grounds on which the judgment was based;
(c) state whether the defendant did or did not object to the jurisdiction, and, if so, on what grounds;
(d) show that the judgment is not subject to any stay of execution;
(e) state that the time for appealing has expired or, as the case may be, the date on which it will expire and in either case whether notice of appeal against the judgment has been entered; and
(f) state the rate at which the judgment carries interest.
(4) The certified copy of the judgment shall be an office copy sealed with the seal of the High Court and indorsed with a certificate in Form 146 signed by the Registrar certifying that the copy is a true copy of a judgment obtained in the High Court in Malaysia and that it is issued in accordance with section 4 of the Act or section 10 as the case may be.
(5) Where the application is made under section 10 of the Act, there shall also be issued a certificate in Form 147 (signed by the Registrar and sealed with the seal of the High Court) having annexed to it a copy of the writ or originating summons by which the proceedings were begun, and stating
(a) the manner in which the writ or such summons was served on the defendant or that the defendant appeared thereto;
(b) what objections, if any, were made to the jurisdiction;
(c) what pleadings, if any, were served;
(d) the grounds on which the judgment was based;
(e) that the time for appealing has expired or, as the case may be, the date on which it will expire;
(f) whether notice of appeal against the judgment has been entered; and
(g) such other particulars as it may be necessary to give to the Court in the foreign country in which it is sought to obtain execution of the judgment,
and a certificate (signed and sealed as aforesaid) stating the rate at which the judgment carries interest.

66. Obtaining Evidence for Foreign Courts, etc.

2007-09-08T23:59:00.001-07:00

66. Obtaining Evidence for Foreign Courts, etc.
ORDER 66
OBTAINING EVIDENCE FOR FOREIGN COURTS, ETC.
1. Jurisdiction of Registrar to make order. (O. 66 r. 1)
(1) Subject to paragrpah (2), the power of the High Court or a Judge thereof to make, in relation to a matter pending before a Court or tribunal in a place outside the jurisdiction, orders for the examination of witnesses and for attendance and for production of documents and to give directions may be exercised by the Registrar.
(2) The Registrar may not make such an order if the matter in question is a criminal matter.
2. Application for order. (O. 66 r. 2)
(1) Subject to paragraph (3) and rule 3, an application for an order under rule 1 must be made ex parte by a person duly authorized to make the application on behalf of the Court or tribunal in question and must be supported by affidavit.
(2) There must be exhibited to the affidavit in support the letter of request, certificate or other document evidencing the desire of the Court or tribunal to obtain for the purpose of a matter pending before it the evidence of the witness to whom the application relates or the production of any documents and, if that document is not in the English language, a translation thereof in that language.
(3) After an application for such an order as is mentioned in paragraph (1) has been made in relation to a matter pending before a Court or tribunal, an application for a further order or directions in relation to the same matter must be made by summons.
3. Application by Attorney General in certain cases. (O. 66 r. 3)
Where a letter of request, certificate or other document requesting that the evidence of a witness within the jurisdiction in relation to a matter pending before a Court or tribunal in a foreign country be obtained
(a) is received by the Minister and sent by him to the Registrar with an intimation that effect should be given to the request without requiring an application for that purpose to be made by the agent in Malaysia of any party to the matter pending before the Court or tribunal; or
(b) is received by the Registrar in pursuance of a Civil Procedure Convention providing for the taking of the evidence of any person in Malaysia for the assistance of a Court or tribunal in the foreign country, and no person is named in the document as the person who will make the necessary application on behalf of such party,
the Registrar shall send the document to the Attorney General and
the Attorney General may make an application for an order and take
such other steps as may be necessary, to give effect to the request.
4. Person to take and manner of taking examination. (O. 66 r. 4)
(1) Any order made in pursuance of this Order for the examination of a witness may order the examination to be taken before any fit and proper person nominated by the person applying for the order or before the Registrar or before such other qualified person as to the Court seems fit.
(2) Subject to any special directions contained in any order made in pursuance of this Order for the examination of any witness, the examination shall be taken in the manner provided by Order 39, rules 5 to 10 and 11(1) to (3), and an order may be made under Order 39, rule 14, for payment of the fees and expenses due to the examiner, and those rules shall apply accordingly with any necessary modifications.
5. Dealing with deposition. (O. 66 r. 5)
Unless any order made in pursuance of this Order for the examination of any witness otherwise directs, the examiner before whom the examination was taken must send the deposition of that witness to the Registrar and the Registrar shall
(a) give a certificate sealed with the seal of the High Court for use out of the jurisdiction identifying the documents annexed thereto, that is to say, the letter of request, certificate, or other document from the Court or tribunal out of the jurisdiction requesting the examination, the order of the Court for examination and the deposition taken in pursuance of the order; and
(b) send the certificate with the documents annexed thereto to the Minister, or, where the letter of request, certificate or other document was sent to the Registrar by some other person in accordance with a Civil Procedure Convention to that other person, for transmission to that Court or tribunal.

65. Service of Foreign Process

2007-09-08T23:57:00.001-07:00

65. Service of Foreign Process
ORDER 65
1. Definition In this order 'process' includes a citation.
2. Service of foreign legal process. (1) This rule applies in relation to the service of any process required in connection with civil proceedings pending before a court or other tribunal of a foreign country where a letter of request from such a tribunal requesting service on a person in Malaysia of any such process sent with the letter is received by the Minister and is sent by him to the High Court with an intimation that it is desirable that effect should be given to the request.
(2) In order that service of the process may be effected in accordance with this rule the letter of request must be accompanied by a translation thereof in English, by 2 copies of the process to be served and by 2 copies of a translation of the process in English. (3) Subject to paragraph (4) and to any written law which provides for the manner in which documents may be served on bodies corporate, service of the process shall be effected by leaving a copy of it and of the translation with the person to be served.
Service shall be effected by the process server.
(4) Where an application in that behalf is made by the Attorney General, the Court may make an order for substituted service of the process, and, where such an order is made, service of the process shall be effected by taking such steps as the court may direct to bring the process to the notice of the person to be served.
(5) After service of the process has been effected or (if such be the case) attempts to effect service of it have failed, the process server shall file a copy of the process, an affidavit made by the person who served, or attempted to serve, the process stating when, were and how he did or attempted to do so, a copy of the affidavit and a statement of the costs incurred in effecting, or attempting to effect service.
(6) The Registrar shall give a certificate in Form 144- (a) identifying the documents annexed thereto, that is to say, the letter of request for service, a copt of the process received with the letter and copy of the affidavit referred to in paragraph (5); (b) certifying that the method of service of the process and the proof of service are such as are required by the rules of the High Court regulating the service of process of that Court in Malaysia or, if such be the case, that service of the process could not be effected for the reason specified in the certificate; and (c) certifying that the cost of effecting, or attempting to effect, service is the amount so specified.
(7) The certificate given under paragraph (6) shall be sealed with the seal of the High Court for use out of the jurisdiction and shall be sent to the Minister.
3. Service of Foreign legal process under Civil Procedure Convention.
(1) This rule applies in relation to the service of any process required to in connection with civil proceedings pending before a court or other tribunal of foreign country, being a country with which there subsists a Civil Procedure Convention providing or service in Malaysia of process of the tribunals of that country, where a letter of request from a consular or other authority of that country requesting service on a person in Malaysia of any such process sent with the letter is received by the Registrar.
(2) In order that service of the process may be effected in accordance with this rule the letter of request must be accompanied by a copy of a translation of the process to be served in English.
(3) Subject ot any written law which provides for the manner in which documents may be served on bodies corporate and to any special provisions of the relevant Civil Procedure Convention, service of the process shall be effected by leaving the original process or a copy of it, as indicated in the letter of request, and a copy of the translation with the person to be served. Service shall be effected by the process server.
(4) After service of the process has been effected or (if such be the case) attempts to effect service of it have failed, the process server shall file an affidavit made by the person who served, or attempted to serve, the process stating when, where and how he did or attempted to do so, and a statement of the costs incurred in effecting, or attempting to effect, service.
(5) The Registrar shall give a certificate certifying- (a) that the process or a copy thereof, as the case may be, was served on the person, at the time, and in the manner, specified in the certificate or, if such be the case, that that service of the process could not be effected for reason so specified; and (b) that the cost of effecting, or attempting to effect, service is the amount so specified.
(6) The certificate given under paragraph (5) shall be sealed with the seal of the High Court for use out of jurisdiction and shall be sent to the consular or other authority by whom the request for service was made.
4. Costs of service, etc, to be certified by Registrar. A statement of the costs incurred in effecting, or attempting to effect, service under rule 2 or rule 3 shall be submitted to the Registrar who shall certify the amount properly payable in respect of those costs.

64. Change of Solicitor

2007-09-08T23:08:00.001-07:00

64. Change of Solicitor
ORDER 64
CHANGE OF SOLICITOR
1. Notice of change of solicitor. (O. 64 r. 1)
(1) A party to any cause or matter who sues or defends by a solicitor may change his solicitor without an order for that purpose but, unless and until notice of the change is filed and served in accordance with this rule, the former solicitor shall, subject to rules 4 and 5, be considered the solicitor of the party until the final conclusion of the cause or matter, in the High Court.
(2) Notice of a change of solicitor in Form 138 must be filed in the Registry.
(3) The party giving the notice must serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former solicitor a copy of the notice.
(4) The party giving the notice may perform the duties prescribed by this rule in person or by his new solicitor.
2. Notice of appointment of solicitor. (O. 64 r. 2)
Where a party, after having sued or defended in person, appoints a solicitor to act in the cause or matter on his behalf, the change may be made without an order for that purpose and rule 1(2), (3) and (4) shall, with the necessary modifications, apply in relation to a notice of appointment of a solicitor in Form 138 as they apply in relation to a notice of change of solicitor.
3. Notice of intention to act in person (O. 6 r. 3)
Where a party, after having sued or defended by a solicitor intends and is entitled to act in person, the change may be made without an order for that purpose and rule 1 shall, with the necessary modifications, apply in relation to a notice of intention to act in person as it applies in relation to a notice of change of solicitor except that the notice of intention to act in person in Form 139 must contain an address for service of the party giving it.
4. Removal of solicitor from record at instance of another party. (O. 64 r. 4)
(1) Where
(a) a solicitor who has acted for a party in a cause or matter has died or become bankrupt or cannot be found or has failed to take out a practising certificate or has been struck off the roll of solicitors or has been suspended from practising or has for any other reason ceased to practise; and
(b) the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the foregoing provisions of this Order.
any other party to the cause or matter may apply to the Court or, it an appeal to the Supreme Court is pending in the cause or matter, to the Supreme Court for an order declaring that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the cause or matter, and the Court or the Supreme Court, as the case may be, may make an order accordingly.
(2) An application for an order under this rule must be made be summons in Form 140 or, in the case of an application to the Supreme Court by motion, and the summons or notice of motion must unless the Court or the Supreme Court as the case may be, otherwise directs, be served on the party to whose solicitor the application relates. The application must be supported by an affidavit stating the grounds of the application.
(3) Where an order in Form 141 is made under this rule the party on whose application it was made must serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order.
(4) An order made under this rule shall not affect the right of the solicitor and the party for whom he acted as between themselves.
5. Withdrawal of solicitor who has ceased to act for party. (O. 64 r. 5)
(1) Where a solicitor who has acted for a party in a cause or matte has ceased so to act and the party has not given notice of change in accordance with rule 1, or notice of intention to act in person in accordance with rule 3, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter, and the Court, or the Supreme Court, as the case may be, may make an order accordingly, but unless and until the solicitor serves on every party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order, he shall, subject to the foregoing provisions of this Order, be considered the solicitor of the party till the final conclusion of the cause or matter, whether in the High Court or the Supreme Court.
(2) An application for an order under this rule must be made by summons in Form 142 or, in the case of an application to the Supreme Court by motion, and the summons or notice of motion must, unless the Court or the Supreme Court, as the case may be, otherwise directs, be served on the party for whom the solicitor acted.
The application must be supported by an affidavit stating the grounds of the application.
(3) An order in Form 143 made under this rule shall not affect the rights of the solicitor and the party for whom he acted as between themselves.
(4) Notwithstanding anything in paragraph (1), where the legal aid certificate of an assisted person within the meaning of the Legal Aid Act 1971 (Act 26) is revoked or discharged, the solicitor who acted for the assisted person shall cease to be the solicitor acting in the cause or matter; and if the assisted person whose certificate has been revoked or discharged desires to proceed with the cause or matter without legal aid and appoints that solicitor or another solicitor to act on his behalf, the provisions of rule 2 shall apply as if that party had previously sued or defended in person.
6. Address for service of party whose solicitor is removed, etc. (O. 64 r. 6)
Where
(a) an order is made under rule 4; or
(b) an order is made under rule 5, and the applicant for that order has complied with rule 5 (1); or
(c) the legal aid certificate of an assisted person within the meaning of the Legal Aid Act 1971 (Act 26) is revoked or discharged,
then unless and until the party to whose solicitor or to whom, as the case may be, the order or certificate relates either appoints another solicitor and complies with rule 2 or, being entitled to act in person, gives notice of his intention so to do and complies with rule 3, his last known address or, where the party is a body corporate, its registered or principal office shall, for the purpose of the service on him of any document not required to be served personally, be deemed to be his address for service.

63. Paper, Printing, Notices and Copies.

2007-09-08T23:06:00.002-07:00

63. Paper, Printing, Notices and Copies.
ORDER 63
PAPER, PRINTING, NOTICES AND COPIES
1. Quality and size of paper. (O. 63 r. 1)
Unless the nature of the document renders it impracticable, every document prepared by a party for use in the High Court must be on paper of durable quality, approximately 11.69 inches (297 mm.) long, by 8.27 inches (210 mm.) wide, having a margin, not less than 1 inch wide to be left blank on either side of the paper.
2. Regulations as to printing, etc. (O. 63 r. 2)
(1) Except where these rules otherwise provide, every document prepared by a party for use in the High Court must be produced by one of the following means, that is to say, printing, writing (which must be clear and legible) and typewriting otherwise than by means of a carbon, and may be produced partly by one of those means and partly by another or others of them.
(2) For the purpose of these rules a document shall be deemed to be printed if it is produced by type lithography or stencil duplicating.
(3) Any type used in producing a document for use as aforesaid must be such as to give a clear and legible impression and must be not smaller than 11 point type for printing or elite type for type lithography, stencil duplicating or typewriting.
(4) Any document produced by a photographic or similar process giving a positive and permanent representation free from blemishes shall, to the extent that it contains a facsimile of any printed, written or typewritten matter, be treated for the purposes of these rules as if it were printed, written or typewritten as the case may be.
(5) Any notice required by these rules may not be given orally except with the leave of the Court.
3. Copies of documents for other party. (O. 63 r. 3)
(1) Where a document prepared by a party for use in the High Court is printed the party by whom it was prepared must, on receiving a written request from any other party entitled to a copy of that document supply him with a copy, and on payment of the proper charges, supply him with such number of further copies thereof, not exceeding 10, as may be specified in the request.
(2) Where a document prepared by a party for use in the High Court is written or typewritten, the party by whom it was prepared must supply and other party entitled to a copy of it, not being a party on whom it has been served, with one copy of it and, where the document in question is an affidavit, of any document exhibited to it.
The copy must be ready for delivery within 48 hours after a written request for it, together with an undertaking to pay the proper charges, is received and must be supplied thereafter on payment of those charges.
4. Requirements as to copies. (O. 63 r. 4)
(1) Every copy of a document, whether an office copy or a copy supplied to a party under these rules, must show on the indorsement the number of folios it contains.
(2) Before a copy of a document is supplied to a party under these rules, it must be indorsed with the name and address of the party or solicitor by whom it was supplied.
(3) The party by whom a copy is supplied under rule 3, or, if he sues or appears by a solicitor, his solicitor, shall be answerable for the copy being a true copy of the original or of an office copy, as the case may be.
5. (Deleted) [P.U.(A)223/80].

62. Service of Documents.

2007-09-08T23:04:00.000-07:00

62. Service of Documents.
ORDER 62
SERVICE OF DOCUMENTS
1. When personal service required. (O. 62 r. 1)
(1) Any document which be virtue of these rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these rules or by order of the Court is required to be so served.
(2) Paragraph (1) shall not affect the power of the Court under any provision of these rules to dispense with the requirement for personal service.
(3) No service of writ shall be required where the defendant or his solicitor undertakes in writing to accept service and enter an appearance.
2. (There is no rule 2.)
3. Personal service: How effected. (O. 62 r. 3)
Personal service of a document is effected by leaving a copy of the document with the person to be served and, if so requested by him at the time when it is left, showing him
(a) in the case where the document is a writ or other originating process, the sealed copy; and
(b) in any other case, an office copy.
4. Service on corporations. (O. 62 r. 4)
(1) Where an action is against a corporation, the writ may be served
(a) by leaving a copy of it at the registered office (if any) of the corporation; or
(b) by sending a copy of it by registered post addressed to the corporation at the office, or, if there be more offices than one at the principal office of the corporation, whether such office be situated within Malaysia or elsewhere; or
(c) by handing a copy of it to the secretary or to any director or other principal office of the corporation; or
(d) in the case of a foreign company registered under Part XI of the Companies Act 1965 (Act 125) by handing a copy of it to, or sending the same by registered post to, a person authorized to accept service of process on behalf of the foreign company.
(2) The rule does no restrict the operation of the provisions of any written law as to service on any particular person or authority.
(3) Where service is effected under this rule, the person served shall be entitled on demand to inspect the original writ.
4A. [Deleted] [P.U. (A) 223/80].
5. Substituted service. (O. 62 r. 5)
(1) If, in the case of any document which by virtue of any provision of these rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 135 for substituted service of that document.
(2) An application for an order for substituted service must be made by summons supported by an affidavit in Form 136 stating the facts on which the application is founded.
(3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.
6. Ordinary service: How effected. (O. 62 r. 6)
(1) Service of any document, not being a document which by virtue of any provision of these rules is required to be served personally, may be effected
(a) by leaving the document at the proper address of the person to be served; or
(b) by prepaid registered post; or
(c) in such other manner as the Court may direct.
(2) For the purposes of this rule, and of section 2 of the Interpretation Act 1967 (23/67), in its application to this rule, the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purposes aforesaid shall be
(a) in any case, the business address of the solicitor (if any) who is acting for him in the proceedings in connection with which service of the document in question is to be effected; or
(b) in the case of an individual, his usual or last known address; or
(c) in the case of individuals who are suing or being sued in the name of a firm, the principal or last known place of business of the firm within the jurisdiction; or
(d) in the case of a body corporate, the registered or principal office of the body.
(3) Nothing in this rule shall be taken as prohibiting the personal service of any document or as affecting any written law which provides for the manner in which documents may be served on bodies corporate.
7. Service on Minister. etc. in proceedings which are not by or against the Government. (O. 62 r. 7)
Where for the purpose of or in connection with any proceedings in the High Court, not being civil proceedings by or against the Government within the meaning of Part III of the Government Proceedings Ordinance 1956 (58/56), any document is required by any written law or these rules to be served on the Minister of a Government department which is an authorized department for the purposes of that Ordinance, or on such a department or on the Attorney General, section 20 of the said Ordinance of 1956 and Order 73, rule 3, shall apply in relation to the service of the document as they apply in relation to the service of the documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government.
8. Effect of service after certain hours. (O. 62 r. 8)
Any document (other than a writ of summons or other originating process) service of which is effected under rule 3 or under rule 6(1)(a) after 12 noon on a day preceding the weekly holiday or after 4 in the afternoon on any other weekdays, shall, for the purpose of computing any period of time after service of that document, be deemed to have been served on the day following that day preceding the weekly holiday or on the day following that other weekday, as the case may be.
9. Affidavit of service. (O. 62 r. 9)
An affidavit of service of any document must state by whom the document was served, the day of the week and date on which it was served, where it was served and how and must be in one of the forms in Form 137.
10. No service required in certain cases. (O. 62 r. 10)
Where by virtue of these rules any document is required to be served on any person but is not required to be served personally, and at the time when service is to be effected that person is in default as to entry of appearance or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these rules otherwise provides.
11. Service of notices from High Court. (O. 62 r. 11)
Notices sent from any office of the High Court may be sent by post; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof, and the posting thereof shall be a sufficient service. But nothing in this rule shall prevent any party from establishing, if such be the case, that he has not been so served.
12. Service where no appearance an address for service. (O. 62 r. 12)
Where no appearance has been entered for a party, or where a party or his solicitor, as the case may be, has omitted to give an address for service, all writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings, and written communications in respect of which personal service is not requisite may be served by filing them with the proper officer.
13. Service upon solicitor or party formerly, appearing in person. (O. 62 r. 13)
Where a party after having sued or appeared in person has given notice in writing to the opposite party or his solicitor, through a solicitor, that such solicitor is authorized to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, orders, warrants, and other documents, proceedings, and written communications which ought to be delivered to or served upon the party on whose behalf the notice is given shall thereafter be delivered to or served upon such solicitor.

61. Sittings, Vacation and Office Hours.

2007-09-08T23:01:00.001-07:00

61. Sittings, Vacation and Office Hours.
ORDER 61
SITTINGS, VACATION AND OFFICE HOURS
1. Vacation Judge. (O. 61 r. 1)
A Judge of the High Court shall be available during every vacation to act as a vacation Judge.
2. Hearing of applications, etc. in vacation (O. 61 r. 2)
All such applications as required to be immediately or promptly heard shall be heard in vacation by the vacation Judge.
3. High Court Registry: Days on which open and office hours. (O. 61 r. 3)
(1) The Registry of the High Court shall be open on every day of the year except on a weekly holiday or a public holiday.
(2) The hours during which the Registry of the High Court shall be open to the public shall be such as the Chief Justice may from time to time direct.*
*1. The Chief Justice, Malaya direct that the hours during which the Registry of the High Court in Malaya shall be open to the public shall be as follows:
(i) on days other that days preceding weekly holidays, between the hours of nine in the forenoon and quarterto one in the afternoon:
Provided that in States where Friday are working days, on Fridays, between the hours of nine in the forenoon and twelve noon, and between the hours of two and half-past three in the afternoon.
(ii) on days preceding weekly holidays between the hours of nine in the forenoon and twelve noon.
2. This direction shall not apply during Court vacation.
3. This direction shall come into force on the 1st March 1981.
[P.U. (A) 101/81]

60. The Registry.

2007-09-08T22:30:00.001-07:00

60. The Registry.
ORDER 60
THE REGISTRY
1. Distribution of business. (O. 60 r. 1)
The Registry shall be divided into such departments, and the business performed in the Registry shall be distributed among the departments in such manner, as the Chief Justice may direct.
2. Books to be kept in the Registry. (O. 60 r. 2)
The Registrar shall cause to be kept in Forms 119 to 134 the following:
(a) a Cause Book;
(b) an Originating Summons Book;
(c) an Originating Motion Book;
(d) an Interpleader Summons Book;
(e) a Summons in Chambers Book;
(f) a Judgment Book;
(g) Writs of Execution Book;
(h) a Distress Book;
(i) a Probate Book;
(j) a Caveat Book;
(k) a Service Book;
(l) an Adoption Book;
(m) an Accountant-Generals Direction Book;
(n) an Index of Wills;
(o) a Register of Appeals to the Supreme Court;
(p) a Register of Appeals from the Subordinate Courts and statutory bodies; and
(q) such account books and other books as are prescribed or required to be kept by these rules and such other books as may from time to time be found necessary.
3. Date of filing to be marked, etc. (O. 60 r. 3)
(1) Any document filed in the Registry in any proceedings must be sealed with a seal showing the date on which the document was filed and any document not required by these rules to be sealed must show the date on which it was filed.
(2) Particulars of the time of delivery at the Registry of any document for filing, the date of the document and the title of the cause or matter of which the document forms part of the record shall be entered in books kept in the Registry for the purpose.
4. Right to inspect, etc. certain documents filed in Registry. (O. 60 r. 4)
(1) Any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Registry, namely
(a) the copy of any writ of summons or other originating process;
(b) any judgment or order given or made in Court or the copy of any such judgment or order; and
(c) with the leave of the Registrar any other document.
(2) Nothing in the foregoing provision shall be taken as preventing any party to a cause or matter searching for, inspecting and taking or bespeaking a copy of any affidavit or other document filed in the Registry in that cause or matter or filed therein before the commencement of that cause or matter but made with a view to its commencement.
5. Deposit of document. (O. 60 r. 5)
Where the Court orders any documents to be lodged in Court, then, unless the order directs that the documents be so lodged by being deposited with the Accountant-General, the documents must be deposited in the Registry.
6. Filing of instruments creating powers of attorney. (O. 60 r. 6)
(1) An instrument creating a power of attorney which is presented for deposit in the Registry under
(a) section 30 of the Trustee Act, 1949 (Act 208), or
(b) section 4 of the Powers of Attorney Ordinance 1949 (Ord. 64/69),
shall not be deposited therein unless the execution of the instrument has been verified in accordance with rule 7 and the instrument is accompanied
(i) except where rule 7(b) applies, by the affidavit, declaration, certificate or other evidence by which the execution was verified;
(ii) in the case of an instrument presented for filing under the said section 30, by the statutory declaration required by subsection 4 of that section.
(2) Without prejudice to the said section 4, a certified copy of an instrument creating a power of attorney which is presented for deposit in the Registry under the said section shall not be deposited therein unless
(a) the execution of the instrument has been verified in accordance with rule 7;
(b) the signature of the person who certified the copy is sufficiently verified; and
(c) except where rule 7(b) applies and subject to paragraph (3), the copy is accompanied by the affidavit, declaration, certificate or other evidence by which the execution was verified.
(3) If the affidavit, declaration, certificate or other evidence verifying the execution of the instrument is so bound up with or attached to the instrument that they cannot conveniently be separated, it shall be sufficient for the purpose of paragraph (2) to produce and show to the proper officer in the Registry the original affidavit, declaration, certificate or other evidence and to file a certified or office copy thereof.
7. Verification of execution of power of attorney. (O. 60 r. 7)
The execution of such an instrument or statutory declaration as is referred to in rule 6(1) may be verified
(a) by an affidavit or statutory declaration sworn or made by the attesting witness or some other person in whose presence the instrument was executed, or, if no such person is available, by some impartial person who knows the signature of the donor of the power of attorney created by the instrument; or
(b) if the instrument was attested by a Commissioner for Oaths, by the signature of the Commissioner as attesting witness; or
(c) by such other evidence as, in the opinion of the Registrar is sufficient.
8. Inspection, etc. of powers of attorney. (O. 60 r. 8)
(1) An index shall be kept in the Registry of all instruments and certified copies to which rule 6 relates deposited in the Registry and of the names of the donors of the powers of attorney created by such instruments.
(2) Any person shall, on payment of the prescribed fee, be entitled
(a) to search the index;
(b) to inspect any document filed or deposited in the Registry in accordance with rule 6; and
(c) to be supplied with an office copy of any such document; and a copy of any such document may be presented at the Registry to be marked as an office copy.
9. Restriction on removal of documents. (O. 60 r. 9)
No document filed in or in the custody of the Registry shall be taken out of it without the leave of the Court unless the document is to be sent to a Subordinate Court.

56. Appeals from Registrar and Judge.

2007-09-08T22:26:00.000-07:00

56. Appeals from Registrar and Judge.
order 56
Appeals from Registrar and Judge
1. Appeals from certain decisions of Registrar to Judge in Chambers. (O. 56 r. 1)
(1) An appeal shall lie to a Judge in Chambers from any judgment, order or decision of the Registrar.
(2) The appeal shall be brought be serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice in From 114 to attend before the Judge on a day specified in the notice.
(3) Unless the Court otherwise orders, the notice must be issued within 10 days after the judgment, order or decision appealed against was given or made, and must be served not later than 5 days before the date fixed for the hearing of the appeal. [Subs. PU(A)342/2000 w.e.f. 22 Sept 2000]
(3A) At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that [Ins. P.U. (A) 192/93]
(a) at the hearing before the Registrar the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
(b) the fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the Registrar.
(4) Except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in which the appeal is brought.
2. Appeal from Judge. (O. 56 r. 2) [Subs. P.U. (A) 192/93]
Subject to the provisions of section 68 of the Act, a party may appeal against any judgment, order or decision made by a Judge in Chambers.

55. Appeals to High Court from Subordinate Courts and Statutory Bodies.

2007-09-08T22:16:00.001-07:00

55. Appeals to High Court from Subordinate Courts and Statutory Bodies.
order 55.
Appeals to High Court from Subordinate Courts and Statutory Bodies
1. Entry of Appeal. (O. 55 r. 1)
On receiving an appeal record under Order 49 of the Subordinate Courts Rules, 1980, the Registrar shall enter the appeal in a list of appeals from Subordinate Courts.
2. Memorandum of Appeal. (O. 55 r. 2) [Sub. P.U. (A) 462/90]
(1) The appellant shall, within fourteen days from the date of service on him of the notice in Form 141 under Order 49, rule 2 sub-rule (4) or rule 3 sub-rule (2) of the Subordinate Courts Rules 1980 (as the case may be), file in the High Court in duplicate a memorandum of appeal in Form 113A.
(2) The appellant shall within the like period serve each respondent with a copy of such memorandum and a copy of the appeal record.
3. Notice of Cross-appeal. (O. 55 r. 3)
A respondent to an appeal may, within seven days from the date of service on him of the memorandum of appeal, file in the High Court and serve upon the appellant a notice in Form 113B that he intends to contend on the hearing of the appeal that the decision of the Court below should be varied.
4. Amendments. (O. 55 r. 4)
(1) The High Court may at any time allow amendment of the memorandum of appeal or notice of cross-appeal or other part of the record of appeal on such terms as it thinks fit.
(2) If the memorandum of appeal is not drawn up in the prescribed manner, the appeal may be dismissed.
(3) If the memorandum of appeal is not filed or is not served within the prescribed time and no sufficient ground is shown for the delay the appeal may be dismissed.
5. Appellant not appearing. (O. 55 r. 5)
(1) If, on any day fixed for the hearing of an appeal, the appellant does not appear in person or by an advocate, the appeal may be dismissed but any cross-appeal may be hear.
Respondent not appearing.
(2) If the appellant appears, and any respondent fails to appear either in person or by an advocate, the appeal shall proceed in the absence of such respondent, unless the High Court for any sufficient reason sees fit to adjourn the hearing thereof.
(3) Where any appeal is dismissed or allowed under the provisions of sub-rule (1) or (2) of this rule the party who was absent may apply to the High Court for the re-hearing of the appeal and where it is proved that there was sufficient reason for the absence of such party the High Court may order that the appeal be restored for hearing upon such terms as to costs or otherwise as it thinks fit.
(4) The provisions of sub-rule (3) of this rule shall apply mutatis mutandis to the hearing of any cross-appeal.
5A. Restriction on fresh evidence. (O. 55, r. 5A) .
At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that-
(a) at the hearing before the subordinate court the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
(b) the fresh evidence; if true, would have had or would have been likely to have had a determining influence upon the decision of the subordinate court.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
6. Withdrawal of appeal. (O. 55 r. 6)
(1) An appellant may at any time before his appeal is called on for hearing serve on the parties to the appeal a notice to the effect that he does not intend further to prosecute the said appeal.
(2) A copy of such notice shall at the same time be filed by the appellant in the Registry of the High Court.
(3) If all parties to the appeal consent to the intended withdrawal of the appeal, the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their solicitors, and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar. In such event any sum lodged in Court as security for costs of the appeal shall be paid out to the appellant.
(4) If all the parties do not consent to the intended withdrawal of the appeal, the appeal shall remain on the list, and shall come on for hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of the appeal.
7. Notice of appeal by respondent where notice of appeal, withdrawn of appeal not entered. (O. 55 r. 7)
Where an appeal is withdrawn under the preceding rule, or where an appeal of which notice has been given is not entered within the time limited, any respondent who has not given notice of cross-appeal may give notice of appeal and proceed therewith in the manner prescribed by the foregoing rules; but in any such case the time limited for giving notice of appeal, entering the appeal furnishing security for costs, and filing and serving the record of appeal and the memorandum of appeal may, on application to the High Court or, if the appeal has not been entered, to the Court appealed from, be extended so far as is reasonably necessary in all the circumstances of the case.
8. High Court may direct service of notice on person not served. (O. 55 r. 8)
When an appeal is called on for hearing or at any previous time on the application of any person interested, the High Court may direct that the record of appeal, or any notice of cross-appeal, be served on any party to the cause or matter who has not been served therewith, or on any person not already a party to the cause or matter, and may, for the purpose of such service, adjourn the hearing upon such terms as are just, and may give such judgment and make such order as might have been given or made if the parties served with such record or notice had been originally parties.
9. Interest. (O. 55 r. 9)
On any appeal, interest, for such time as execution has been delayed by the appeal, shall be allowed, unless the High Court otherwise orders.
10. Pronouncement of judgment. (O. 55 r. 10)
The judgment of the High Court shall be pronounced in open Court, either on the hearing of the appeal or at any subsequent time of which notice shall be give to the parties to the appeal.
11. Decision on appeal to be sent to Court below. (O. 55 r. 11)
A certified copy of the judgment of the High Court on the appeal shall be sent to the Court from whose decision the appeal was brought.
12. Stay of execution. (O. 55 r. 12)
An appeal shall not operate as a stay of execution under the decision appealed against except in so far as the Court appealed from or the High Court may order, and any application for stay shall be made in the first instance to the Court appealed from.
13. Appeal from person or body of persons. (O. 55 r. 13)
(1) Where under any written law an appeal lies from any decision of any person or body of person to the High Court such appeal shall be made to the High Court in the State where the decision was given by motion setting out the grounds of appeal, supported by affidavit and, if the Court so directs at the hearing, by oral evidence.
(2) Unless otherwise provided by any written law, such appeal shall be made within one month from the date on which the decision was given or the date on which such decision was notified to the person appealing, whichever is the later date.
(3) Unless otherwise provided by any written law, notice of the motion shall be served on the respondent in such appeal or where the respondent is a body of person, on the secretary, registrar or such other officer of that body of persons.
14. (Deleted) [P.U. (A) 12/81]

53. Application for Judicial Review.

2007-09-08T22:14:00.001-07:00

53. Application for Judicial Review.
Order 53
Application for Judicial Review
1. Scope. (O. 53, r. 1) .
(1) This Order shall govern all applications seeking the relief specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 and for the purposes therein specified.
(2) This Order is subject to the provisions of Chapter VIII of Part 2 of the Specific Relief Act 1950.
2. Applications. (O. 53, r. 2) .
(1) An application for any of the reliefs specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (other than an application for an order of habeas corpus) shall be in Form 111A.
(2) An application for judicial review may seek any of the said reliefs, including a prayer for a declaration, either jointly or in the alternative in the same application if it relates to or is connected with the same subject matter.
(3) Upon the hearing of an application for judicial review, the Court shall not be confined to the relief claimed by the applicant but may dismiss the application or make any orders, including an order of injunction or monetary compensation:
Provided always that the power to grant an injunction shall be exercised in accordance with the provisions of section 29 of the Government Proceedings Act 1948 and section 54 of the Specific Relief Act 1950.
(4) Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.
3. Leave. (O. 53, r. 3) .
(1) No application under this Order shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.
(3) The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General's Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits.
(4) The Judge may, in granting leave, impose such terms as to costs and as to the giving of security as he thinks fit.
(5) The grant of leave under this rule shall not, unless the Judge so directs, operate as a stay of the proceedings in question.
(6) An application for judicial review shall be made promptly and in any event within 40 days from the date when grounds for the application first arose or when the decision is first communicated to the applicant provided that the Court may, upon application and if it considers that there is a good reason for doing so, extend the period of 40 days.
4. Notice. (O. 53, r. 4) .
(1) Where leave has been granted under this rule, the applicant shall, within 14 days after the grant of such leave, file a notice in Form 111B.
(2) Upon extraction of the sealed copy of Form 111B the applicant shall serve a copy of the same together with a copy of the statement and all affidavits in support on all persons directly affected by the application not later than 14 days before the date of hearing specified in the said Form.
5. Damages. (O. 53, r. 5) .
(1) On an application for judicial review the Court may, subject to paragraph (2) , award damages to the applicant if-
(a) he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
(2) Order 18, rule 12, shall apply to a statement relating to a claim for damages as it applies to a pleading.
6. Discovery, etc. (O. 53, r. 6) .
Within 14 days after leave has been granted, any party to an application for judicial review may apply to the Judge for discovery and inspection of documents pursuant to Order 24, to administer interrogatories pursuant to Order 26, or to cross-examine the deponent of any affidavit filed in support of or in opposition to the application pursuant to Order 38.
7. Amendment. (O. 53, r. 7) .
(1) The Judge may allow the statement to be amended, and may allow further affidavits to be used if they deal with new matters arising out of any affidavit of any other party to the application, and where the applicant intends to amend his statement or use further affidavits, he must immediately give notice of his intention and of any proposed amendment of his statement to every other party.
(2) Every party to the application must supply to any other party copies of the affidavits which he proposes to use at the hearing.
8. Other persons who may be heard. (O. 53, r. 8) .
(1) Upon the hearing of an application for judicial review, any person who desires to be heard in opposition to the application and appears to the Judge to be a proper person to be heard may be heard notwithstanding that he has not been served with the cause papers in the matter.
(2) Where on application for judicial review, an order of certiorari is made in any such case the order shall direct that the proceedings shall be quashed forthwith on their removal to the High Court.
9. No setting aside of order. (O. 53, r. 9) .
No application to set aside any order made by the Judge shall be entertained, but the aggrieved party may appeal to the Court of Appeal.
[Subs. PU(A)342/2000 w.e.f. 22 Sept 2000]

52. Committal.

2007-09-08T22:09:00.001-07:00

52. Committal.
order 52
Committal
1. Committal for contempt of Court. (O. 52 r. 1)
(1) The power of the High Court to punish for contempt of Court may be exercised by an order of committal in Form 110.
(2) Where contempt of Court
(a) is committed in connection with
(i) any proceedings before the High Court; or
(ii) criminal proceedings, except where the contempt is committed in the face of the Court or consists of disobedience to an order of the Court or a breach of an undertaking to the Court; or
(iii) proceedings in a Subordinate Court; or
(b) is committed otherwise than in connection with any proceeding,
then, subject to paragraph (4), an order of committal may be made by the High Court.
(3) Where contempt of Court is committed in connection with any proceedings in the High Court, an order of committal may be made by a Judge of the High Court.
(4) Where by virtue of any written law the High Court has power to punish or take steps for the punishment of any person charged with having done anything in relation to a Court, tribunal or person which would, if it had been done in relation to the High Court, have been a contempt of that Court, an order of committal may be made by a Judge of the High Court.
1A. Contempt committed in the face of the Court. (O. 52, r. 1A) .
(1) If a contempt is committed in the face of the Court, it shall not be necessary to serve formal notice to show cause, but the Court shall ensure that the person alleged to be in contempt understands the nature of the offence alleged against him and has the opportunity to be heard in his own defence, and the Court shall make a proper record of the proceedings.
(2) Where a Judge is satisfied that a contempt has been committed in the face of the Court, the Judge may order the contempt nor to appear before him on the same day at the time fixed by the Court for the purpose of purging his contempt.
(3) Where such person has purged his contempt, by tendering his unreserved apology to the Court, and the Judge considers the contempt to be not of a serious nature, the Judge may excuse such person and no further action shall be taken against him.
(4) Where such person declines or refuses to purge his contempt, then the Judge shall sentence him.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
1B. Other cases of contempt. (O. 52, r. 1B) .
In all other cases of contempt of Court, formal notice to show cause why he should not be committed to the prison or fined shall be served personally.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
2. Application to Court. (O. 52 r. 2)
(1) No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.
(2) An application for such leave must be made ex parte to the Court, except in vacation when it may be made to a Judge in Chambers, and must be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.
3. Application for order after leave to apply granted. (O. 52 r. 3)
(1) When leave has been granted under rule 2 to apply for an order of committal, the application for the order must be made by motion to the Court and, unless the Court or Judge granting leave has otherwise directed, there must be at least 8 clear days between the service of the notice of motion and the day named therein for the hearing.
(2) Unless within 14 days after such leave was granted the motion is entered for hearing the leave shall lapse.
(3) Subject to paragraph (4), the notice of motion, accompanied by a copy of the statement and affidavit in support of the application for leave under rule 2, must be served personally on the person sought to be committed.
(4) Without prejudice to the powers of the Court or Judge under Order 62, rule 5, the Court or Judge may dispense with service of the notice of motion under this rule if it or he thinks it just to do so.
4. Saving for power to commit without application for purpose. (O. 52 r. 4)
Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the High Court to make an order of committal of its own motion against a person guilty of contempt of Court.
5. Provisions as to hearing. (O. 52 r. 5)
(1) Subject to paragraph (2), The Court hearing an application for an order of committal may sit in private in the [Ins. PU(A)342/2000 w.e.f. 22 Sept 2000] following cases, that is to say
(a) where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;
(b) where the application arises out of proceedings relating to a person suffering or appearing to be suffering from mental disorder within the meaning of the Mental Disorders Ordinance, 1952 (31/52);
(c) where the application arises out of proceedings in which a secret process, discovery or invention was in issue;
(d) where it appears to the Court that in the interests of the administration of justice or for reasons of national security the application should be heard in private,
but, except as aforesaid, the application shall be heard in open Court.
(2) If the Court hearing an application in private by virtue of paragraph (1) decides to make an order of committal against the person sought to be committed, it shall in open Court state
(a) the name of that person;
(b) in general terms the nature of the contempt of Court in respect of which the order of committal is being made; and
(c) if he is being committed for a fixed period, the length of that period.
(3) Except with the leave of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under rule 2.
The foregoing provisions is without prejudice to the powers of the Court under Order 20, rule 8.
(4) If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf, he shall be entitled to do so.
5 A. Contempt committed by corporation. (O.52 r.5A)
If a corporation is guilty of contempt of Court, the Court may fine the corporation or punish any officer of the corporation who caused or wilfully permitted or contributed to the contempt of Court or fine the corporation and punish the officer.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
6. Power to suspend of committal order. (O. 52 r. 6)
(1) The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.
(2) Where execution of an order of committal is suspended by an order under paragraph (1), the applicant for the order of committal must, unless the Court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that paragraph.
7. Discharge of person committed. (O. 52 r. 7)
(1) The Court may, on the application of any person committed to prison for any contempt of Court, discharge him.
(2) Where a person has been committed for failing to comply with a judgment or order requiring him to deliver any thing to some other person or to deposit it in Court or elsewhere, then, if the thing is in the custody or power of the person committed, the sheriff may take possession of it as if it were the property of that person and, without prejudice to the generality of paragraph (1), the Court may discharge the person committed and may give such directions for dealing with the thing taken by the sheriff as it thinks fit.
8. Saving for other powers. (O. 52 r. 8)
Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of Court, or a person punishable by virtue of any written law in like manner as if he had been guilty of contempt of the High Court, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with the necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal.
9. Form of warrant of committal. (O. 52 r. 9)
A warrant for committal must be in Form 111.

51A. Rateable Distribution.

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51A. Rateable Distribution.
order 51A
Rateable Distribution
1. Proceeds of execution sale to be distributed rateably among judgment creditors. (O. 51A r. 1)
(1) Where assets are realised by sale or otherwise in execution of an order or judgment and more persons than one have, prior to the realisation, attached the property from which such assets have been realised in execution of orders or judgments for the payment of money against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of the realisation, shall be distributed rateably among all such persons:
Provided as follows
(a) where any property is sold subject to a charge, the chargee shall not as such be entitled to share in any surplus arising from such sale;
(b) where any property liable to be sold in execution of an order or judgment is subject to a charge, the Court may, with the consent of the chargee, order that the property be sold free from the charge, giving to the chargee the same right against the proceeds of the sale as he had against the property sold;
(c) where any immovable property is sold in execution of an order or judgment ordering its sale for the discharge of an incumbrancer thereon, the proceeds of sale shall be applied
first, in defraying the expenses of the sale;
secondly, in discharging the interest and principal money due on subsequent incumbrances (if any);
thirdly, in discharging the interest and principal money due on subsequent incumbrances (if any);
fourthly, rateably among the holders of orders or judgment for the payment of money against the judgment-debtor who have, prior to the sale of the said property, applied to the Court which passed the order or judgment ordering such sale for execution of such orders or judgments and have not obtained satisfaction thereof; and
(d) where the property from which such assets have been realised has prior to realisation been attached by the High Court and also by one or more of the Subordinate Courts, no holder of a decree passed by a Subordinate Court shall be entitled to share in the distribution of such assets unless he shall prior to realisation have given notice in writing to the Registrar of the attachment at his instance of such property by such Subordinate Court.
(2) Where all or any of the assets liable to be rateably distributed under this rule are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.
(3) Nothing in this rule shall operate to defeat or postpone any claim which under the provisions of any written law ought to be paid in priority.
2. Method of subsequent attachment. (O. 51A r. 2)
(1) Any property attached by way of execution by any Court whether physically taken into the Courts custody or not, shall be deemed to have been seized by the Court and shall not thereafter be seized at the instance of any other person, but any subsequent order or warrant for the attachment or seizure of the same property by the same Court or any other Court, whether in the same or another place, or a certified copy thereof, may be delivered to the sheriff or the bailiff by whom the property was seized and shall thereupon operate and have effect as an attachment for the purpose of this Order.
(2) In the case of any property which cannot be taken into the physical custody of the bailiff or other officer of the Court, any prohibitory order or similar document for the purpose of protecting the interests of a subsequent attaching creditor may be served or registered and shall have effect in accordance with the provisions of paragraph (1) of this rule.
(3) If the property is released from the prior attachment, it shall be deemed to have been attached and seized under the subsequent order or warrant.
(4) If the property remains under the prior attachment and no order for sale thereof has been made within two months after such attachment, the property shall be deemed to have been released from the prior attachment and the provisions of paragraph 3 of this rule shall apply.
3. Property attached in execution of order or judgment of several Courts. (O. 51A r. 3)
Where property not in the custody of any Court is under attachment in execution of orders or judgments of more Courts than one, the Court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or where there is no difference in grade between such Courts, the Court under whose order of judgment the property was first attached.
4. Immovable property. (O. 51A r. 4)
Where the property to be seized consists of immovable property or any registered interest therein the following provisions shall apply:
(1) Seizure shall be made by an order prohibiting the judgment-debtor from transferring, charging or leasing such property or interest. For the purpose of this rule "charging" shall include the creation of a lien by deposit of a document of title;
(2) A copy of the order shall be served on the judgment-debtor and one or more copies, as the case may require, shall be issued to the judgment-creditor in order that he may present the same, in compliance with the provisions of any written law relating to such land, for registration at the Registry of Titles or Land Office whereat the land or interest in land specified in such order is registered;
(3) No prohibitory order issued under this rule shall affect any immovable property or registered interest therein and no immovable property or registered interest therein shall be deemed to have been seized until such prohibitory order shall have been registered as provided by any written law relating to such land;
(4) Subject to the provisions of sub-rule (5) of this rule any prohibitory order shall upon the expiration of six months from the date thereof cease to affect the immovable property or registered interest therein specified in such order.

51. Receivers: Equitable Execution.

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51. Receivers: Equitable Execution.
order 51
Receivers: Equitable Execution
1. Appointment of receivers by way of equitable execution. (O. 51 r. 1)
(1) Where an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that the appointment should be made shall have regard to the amount claimed by the judgment creditor, to the amount likely to be obtained by the receiver and to the probable costs of his appointment and may direct an inquiry on any of these matters or any other matter before making the appointment.
(2) Where on an application for the appointment of a receiver by way of equitable execution it appears to the Court that the judgment creditor is resident outside the scheduled territories, or is acting by order or on behalf of person so resident, then, unless the permission of the Controller required by the Exchange Control Act, 1953 (Act 17), has been given unconditionally or on conditions that have been complied with, any order for the appointment of a receiver shall direct that the receiver shall pay into Court to the credit of the cause or matter in which he is appointed any balance due from him after deduction of his proper remuneration.
2. Registrar may appoint receiver. etc. (O. 51 r. 2)
Subject to any directions given by the Court under Order 32, rule 9, the Registrar shall have power to make an order for the appointment of a receiver by way of equitable execution and to grant an injunction if, and only so far as, the injunction is ancillary or incidental to such an order.
3. Application of rules as to appointment of receiver. etc., (O. 51 r. 3)
(1) An application for the appointment of a receiver by way of equitable execution may be made in accordance with Order 30, rule 1, and rules 2 to 6 of that Order shall apply in relation to a receiver appointed by way of equitable execution as they apply in relation to a receiver appointed for any other purpose.
(2) The summons for the appointment of a receiver must be in Form 108 and an order for the appointment of receiver by way of equitable execution must be in one of the forms in Form 109.

50. Charging Orders, Stop Orders, etc.

2007-09-08T22:01:00.002-07:00

50. Charging Orders, Stop Orders, etc.
order 50
Charging Orders, Stop Orders, etc
1. (There is no rule 1). (O. 50 r. 1)
2. Order imposing charge on securities. (O. 50 r. 2)
(1) The Court may for the purpose of enforcing a judgment or order for the payment of an ascertained sum of money to a person by order in Form 104 impose on any interest to which the judgment debtor is beneficially entitled in such of the securities to which this rule applies as may be specified in the order a charge for securing payment of the amount due under the judgment or order and interest thereon.
(2) Any such order shall in the first instance be an order to show cause, in Form 105 specifying the time and place for further consideration of the matter and imposing the charge until that time in any event.
(3) The securities to which this rule applies are
(a) any government stock, and any stock of any company registered under any written law, including any such stock standing in the name of the Accountant-General; and
(b) any dividend of or interest payable on such stock.
(4) In this Order "government stock" means any stock issued by the Government or any funds of or annuity granted by the Government, and "stock" includes shares, debentures and debenture stock.
3. Application for order under rule 2. (O. 50 r. 2)
An application for an order under rule 2 must be made ex parte by summons supported by an affidavit
(a) identifying the judgment or order to be enforced, stating the amount unpaid under it at the date of the application, and showing that the applicant is entitled to enforce the judgment or order;
(b) specifying the securities on the judgment debtors interest in which it is sought to impose a charge and in whose name they stand;
(c) stating that to the best of the information or belief of the deponent the judgment debtor is beneficially entitled to an interest in the securities in question, describing that interest, and stating the sources of the deponents information or the grounds for his belief.
4. Service of notice of order to show cause. (O. 50 r. 4)
(1) Unless the Court otherwise directs, a copy of the order under rule 2 to show cause must, at least 7 days before the time appointed thereby for the further consideration of the matter, be served on the judgment debtor, and if he does not attend on such consideration proof of service must be given.
(2) Notice of the making of the order to show cause, with a copy of that order, must as soon as practicable after the making of the order be served
(a) where the order relates to government stock, on the Accountant-General;
(b) where the order relates to other stock, on the company concerned;
(c) where the order relates to stock standing in the name of the Accountant-General, on the Accountant-General.
5. Effect of order to show cause. (O. 50 r. 5)
(1) No disposition by the judgment debtor of his interest in any securities to which an order under rule 2 to show cause relates made after the making of that order shall, so long as that order remains in force, be valid as against the judgment creditor.
(2) Until such order is discharged or made absolute the Accountant-General or, as the case may be, a company shall not permit any transfer of any such stock as is specified in the order, or pay to any person any dividend thereof, or interest payable thereon, except with the authority of the Court.
(3) If after notice of the making of such order is served on the Accountant-General or a company the Accountant-General or company permits any transfer or makes any payment prohibited by paragraph (2), it shall be liable to pay the judgment creditor the value of the stock transferred or, as the case may be, the amount of the payment made or, if that value or amount is more than sufficient to satisfy the judgment or order to which such order relates, so much thereof as is sufficient to satisfy it.
6. Making and effect of charging order absolute. (O. 50 r. 6)
(1) On the further consideration of the matter the Court shall, unless it appears that there is sufficient cause to the contrary, make the order absolute with or without modifications.
(2) Where on the further consideration of the matter it appears to the Court that the order should not be made absolute it shall discharge the order
(3) A charge imposed by an order under rule 2 made absolute under this rule shall have the same effect, and the judgment creditor in whose favour it is made shall, subject to paragraph (4), have the same remedies for enforcing it, as if it were a valid charge effectively made by the judgment debtor.
(4) No proceedings to enforce a charge imposed by an order made absolute under this rule shall be taken until after the expiration of 6 months from the date of the order to show cause.
7. Discharge, etc., of charging order. (O. 50 r. 7)
The Court, on the application of the judgment debtor or any other person interested in the securities to which an order under rule 2 relates, may at any time, whether before or after the order is made absolute, discharge or vary the order on such terms (if any) as to costs as it thinks just.
8. Money in Court: Charging order. (O. 50 r. 8)
(1) The Court may for the purpose of enforcing a judgment or order for the payment of an ascertained sum of money to a person by order impose on any interest to which the judgment debtor is beneficially entitled to any money in Court identified in the order a charge for securing payment of the amount due under the judgment or order and interest thereon.
(2) Any such order shall in the first instance be an order to show cause, specifying the time and place for the further consideration of the matter and imposing the charge until that time in any event.
(3) Rules 3 and 4(1) shall, with the necessary modifications, apply in relation of an application for an order under this rule and to the order as they apply in relation to an application for an order under rule 2 and to such order.
(4) Notice of the making of an order under this rule to show cause, with a copy of that order, must, as soon as practicable after the making of the order, be served on the Accountant-General.
(5) Rules 5(1), 6(1) and (2) and 7 shall, with the necessary modifications, apply in relation to an order under this rule as they apply in relation to an order under rule 2.
9. Registrar. etc., may grant injunction ancillary to charging order. (O. 50 r. 9)
The Registrar shall have power
(a) to appoint a receiver to enforce a charge imposed by an order under rule 1; or
(b) to grant an injunction if, and only so far as, it is ancillary or incidental to an order under rule 1, 2 or 8.
and an application for the appointment of a receiver or an injunction under this rule may be joined with the application for the order under rule 2 or 8 to which it relates.
10. Securities not in Court: Stop notice. (O. 50 r. 10)
(1) Any person claiming to be beneficially entitled to an interest in any securities to which rule 2 applies, other than securities in Court, who wishes to be notified of any proposed transfer of payment of those securities may avail himself of the provisions of this rule.
(2) A person claiming to be so entitled must file in the Registry
(a) an affidavit identifying the securities in question and describing his interest therein by reference to the document under which it arises; and
(b) a notice in Form 106 signed by the deponent to the affidavit, and annexed to it, addressed to the Accountant-General or, as the case may be, the company concerned,
and must serve an office copy of the affidavit, and a copy of the notice sealed with the seal of the High Court, on the Accountant-General or that company.
(3) There must be indorsed on the affidavit filed under this rule a notice stating the address to which any such notice as is referred to in rule 11(1) is to be sent and, subject to paragraph (4), that address shall for the purpose of that rule be the address for service of the person on whose behalf the affidavit is filed.
(4) A person on whose behalf an affidavit under this rule is filed may change his address for service for the purpose of rule 11 by serving on the Accountant-General or, as the case may be, the company concerned, a notice to that effect, and as from the date of service of such a notice the address stated therein shall for the purpose of that rule be the address for service of that person.
11. Effect of stop notice. (O. 50 r. 11)
(1) Where a notice under rule 10 has been served on the Accountant-General or a company, then, so long as the notice is in force, the Accountant-General or company shall not register a transfer of any stock or make a payment of any dividend or interest, being a transfer or payment restrained by the notice, without serving on the person on whose behalf the notice was filed at his address for service a notice informing him of the request for such transfer or payment.
(2) Where the Accountant-General or a company receive a request for such a transfer or payment as is mentioned in paragraph (1) made by or on behalf of the holder of the securities to which the notice under rule 10 relates, the Accountant-General or company shall not by reason only of that notice refuse to register the transfer or make the payment for longer than 8 days after receipt of the request except under the authority of an order of the Court.
12. Amendment of stop notice. (O. 50 r. 12)
If any securities are incorrectly described in a notice filed under rule 10 the person on whose behalf the notice was filed may file in the Registry an amended notice and serve on the Accountant-General or, as the case may be, the company concerned a copy of that notice sealed with the seal of the High Court, and where he does so the notice under rule 10 shall be deemed to have been served on the Accountant-General or company on the day on which the copy of the amended notice was served on it.
13. Withdrawal, etc., of stop notice. (O. 50 r. 13)
(1) The person on whose behalf a notice under rule 10 was filed may withdraw it by serving a request for its withdrawal on the Accountant-General or, as the case may be, the company on whom the notice was served.
(2) Such request must be signed by the person on whose behalf the notice was filed and his signature must be witnessed by a practising solicitor.
(3) The Court, on the application of any person claiming to be beneficially entitled to an interest in the securities to which a notice under rule 10 relates, may by order discharge the notice.
(4) An application for an order under paragraph (3) must be made by originating summons, and the summons must be served on the person on whose behalf the notice under rule 10 was filed.
No appearance need be entered to the summons.
14. Order prohibiting transfer. etc., of securities. (O. 50 r. 14)
(1) The Court, on the application of any person claiming to be beneficially entitled to an interest in any government stock or any stock of any company registered under any written law, may by order in Form 107 prohibit the Accountant-General or, as the case may be, that company from registering any transfer of such part of that stock as may be specified in the order or from paying any dividend thereof or interest thereon.
The name of the holder of the stock to which the order relates shall be stated in the order.
(2) An application for an order under this rule must be made by summons.
(3) The Court, on the application of any person claiming to be entitled to an interest in any stock to which an order under this rule relates, may vary or discharge the order on such terms (if any) as to costs as it thinks fit.

49. Garnishee Proceedings.

2007-09-08T21:57:00.001-07:00

49. Garnishee Proceedings.
order 49
Garnishee Proceedings
1. Attachment of debt due to judgment debtor. (O. 49 r. 1)
(1) Where a person (in this Order referred to as "the judgment creditor") has obtained a judgment or order for the payment by some other person (in this Order referred to as "the judgment debtor") of money, not being a judgment or order for the payment of money into Court, and any other person within the jurisdiction (in this Order referred to as "the garnishee") is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any written law, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.
(2) An order in Form 98 under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in paragraph (1), or so much thereof as may be specified in the order, to answer the judgment or order mentioned in that paragraph and the costs of the garnishee proceedings.
2. Application for order. (O. 49 r. 2)
An application for an order under rule I must be made ex parte by summons supported by an affidavit in Form 99
(a) identifying the judgment or order to be enforced and stating the amount remaining unpaid under it at the time of the application; and
(b) stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponents information or the grounds for his belief.
3. Service and effect of order to show cause. (O. 49 r. 3)
(1) An order under rule 1 to show cause must, at least 7 days before the time appointed thereby for the further consideration of the matter, be served
(a) on the garnishee personally; and
(b) unless the Court otherwise directs, on the judgment debtor.
(2) Such an order shall bind in the hands of the garnishee as from the service of the order on him any debt specified in the order or so much thereof as may be so specified.
4. No appearance or dispute of liability by garnishee. (O. 49 r. 4)
(1) Where on the further consideration of the matter the garnishee does not attend or does not dispute the debt due or claimed to be due from him to the judgment debtor, the Court may, subject to rule 7, make an order absolute in one of the forms in Form 100 under rule 1 against the garnishee.
(2) An order absolute under rule 1 against the garnishee may be enforced in the same manner as any other order for the payment of money.
5. Dispute of liability by garnishee. (O. 49 r. 5)
Where on the further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the Court may summarily determine the question at issue or order in Form 101 that any question necessary for determining the liability of the garnishee be tried in any manner in which any question or issue in an action may be tried, without, if it orders trial before the Registrar, the need for any consent by the parties.
6. Claims of third persons. (O. 49 r. 6)
(1) If in garnishee proceedings it is brought to the notice of the Court that some other person than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge or lien upon it, the Court may order that person to attend before the Court and state the nature of the claim with particulars thereof.
(2) After hearing any person who attends before the Court in compliance with an order under paragraph (1), the Court may summarily determine the questions at issue between the claimants or make such other order as it thinks just, including an order that any question or issue necessary for determining the validity of the claim of such other person as is mentioned in paragraph (1) be tried in such manner as is mentioned in rule 5.
7. Judgment creditor resident outside scheduled territories. (O. 49 r. 7)
(1) The Court shall not make an order under rule 1 requiring the garnishee to pay any sum to or for the credit of any judgment creditor resident outside the scheduled territories unless that creditor produces a certificate that the Controller has given permission under the Exchange Control Ordinance, 1953, for the payment unconditionally or on conditions which have been complied with.
(2) If it appears to the Court that payment by the garnishee to the judgment creditor will contravene any provision of the Ordinance, it may order the garnishee to pay into Court the amount due to the judgment creditor and the costs of the garnishee proceedings after deduction of his own costs, if the Court so orders.
8. Discharge of garnishee. (O. 49 r. 8)
Any payment made by a garnishee in compliance with an order absolute under this Order, and any execution levied against him in pursuance of such an order, shall be valid discharge of his liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arose reversed.
9. Money in Court. (O. 49 r. 9)
(1) Where money is standing to the credit of the judgment debtor in Court, the judgment creditor shall not be entitled to take garnishee proceedings in respect of that money but may apply to the Court by summons for an order that the money or so much thereof as is sufficient to satisfy the judgment or order sought to be enforced and the costs of the application be paid to the judgment creditor.
(2) On issuing a summons under this rule the applicant must produce the summons at the office of the Accountant-General and leave a copy at that office, and the money to which the application relates shall not be paid out of Court until after the determination of the application.
If the application is dismissed, the applicant must give notice of that fact to the Accountant-General.
(3) Unless the Court otherwise directs, the summons must be served on the judgment debtor at least 7 days before the day named therein for the hearing of it.
(4) Subject to Order 70, rule 23, the Court hearing an application under this rule may make such order with respect to the money in Court as it thinks just.
10. Costs. (O. 49 r. 10)
The costs of any application for an order under rule 1 or 9, and of any proceedings arising therefrom or incidental thereto, shall, unless the Court otherwise directs, be retained by the judgment creditor out of the money recovered by him under the order and in priority to the judgment debt.

48. Examination of Judgment Debtor, etc.

2007-09-08T21:55:00.001-07:00

48. Examination of Judgment Debtor, etc.
order 48
Examination of Judgment Debtor, etc
1. Order for examination of judgment debtor. (O. 48 r. 1)
(1) Where a person has obtained a judgment or order for the payment by some other person (hereinafter referred to as "the judgment debtor") of money, the Court may, on an application made ex parte by summons supported by affidavit in Form 96 by the person entitled to enforce the judgment or order, order the judgment debtor, or, if the judgment debtor is a body corporate, an officer thereof, to attend before the Registrar, and be orally examined on the questions
(a) whether any and, if so, what debts are owing to the judgment debtor; and
(b) whether the judgment debtor has any and, if so, what other property or means of satisfying the judgment or order,
and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination.
(2) An order under this rule must be in Form 97 and must be served personally on the judgment debtor and on any officer of a body corporate ordered to attend for examination.
(3) Any difficulty arising in the course of an examination under this rule before the Registrar, including any dispute with respect to the obligation of the person being examined to answer any question put to him, may be referred to the Court and the Court may determine it or give such directions for determining it as it thinks fit.
2. Examination of party liable to satisfy the judgment. (O. 48 r. 2)
Where any difficulty arises in or in connection with the enforcement of any judgment or order, other than such a judgment or order as is mentioned in rule 1, the Court may make an order under that rule for the attendance of the party liable to satisfy the judgment or order and for his examination on such questions as may be specified in the order, and that rule shall apply accordingly with the necessary modifications.
3. Registrar to make record of debtors statement. (O. 48 r. 3)
The Registrar conducting the examination shall take down, or cause to be taken down, in writing the statement made by the judgment debtor or other person at the examination, read it to him and ask him to sign it; and if he refuses the Registrar shall sign the statement.

47. Writs of Seizure and Sale.

2007-09-08T21:53:00.000-07:00

47. Writs of Seizure and Sale.
order 47
Writs of Seizure and Sale
1. Power to stay execution by writ of seizure and sale. (O. 47 r. 1)
(1) Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter, by the judgment debtor or other party liable to execution
(a) that there are special circumstances which render it inexpedient to enforce the judgment or order; or
(b) that the applicant is unable from any cause to pay the money,
then, notwithstanding anything in rule 2 or 3, the Court may by order stay the execution of the judgment or order by writ of seizure and sale either absolutely or for such period and subject to such conditions as the Court thinks fit.
(2) An application under this rule, if not made at the time the judgment is given or order made, must be made by summons and may be so made notwithstanding that the party liable to execution did not enter an appearance in the action.
(3) An application made by summons must be supported by an affidavit made by or on behalf of the applicant stating the grounds of the application and the evidence necessary to substantiate them and, in particular, where such application is made on the grounds of the applicants inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.
(4) The summons and a copy of the supporting affidavit must, not less than 4 clear days before the return day, be served on the party entitled to enforce the judgment or order.
(5) An order staying execution under this rule may be varied or revoked by a subsequent order.
2. Separate writs to enforce payment of costs, etc. (O. 47 r. 2)
(1) Where only the payment of money, together with costs to be taxed, is adjudged or ordered, then, if when the money becomes payable under the judgment or order the costs have not been taxed, the party entitled to enforce that judgment or order may issue a writ of seizure and sale to enforce the judgment or order and, not less than 8 days after the issue of that writ, he may issue a second writ to enforce payment of the taxed costs.
(2) A party entitled to enforce a judgment or order for the delivery of possession of any property (other than money) may, if he so elects, issue a separate writ of seizure and sale to enforce payment of any damages or costs awarded to him by that judgment or order.
3. Where landlord claims arrears of rent of premises where property seized. (O. 47 r. 3)
(1) Where the landlord or any other person entitled to receive the rent of the premises in which any movable property has been seized by the sheriff has any claim for arrears of rent of those premises, he may apply to the Registrar, at any time before the sale of such property, for a writ of distress for recovery of such arrears of rent.
(2) When a writ of distress has been issued the provisions of section 20 of the Distress Act, 1951 (Act 255) shall apply.
(3) Unless a writ of distress is issued for the recovery of such arrears of rent the property seized by the sheriff shall be deemed not to be liable to be seized under a writ of distress and to be free from all claims in respect of rent and may be dealt with accordingly and the landlord or other person entitled to receive rent as aforesaid, shall have no claim in respect of the property or to the proceeds of sale or any part thereof.
4. After seizure, dealings with property void. (O. 47 r. 4)
After seizure has been made of the judgment debtors movable property under a writ of seizure and sale, and during the continuance of the seizure, otherwise than by the leave of the Court, any alienation of the property seized, whether by sale, gift, mortgage or otherwise, shall be void against the sheriff and any person on whose behalf the movable property was seized.
5. Withdrawal and suspension of writ. (O. 47 r. 5)
(1) Where any execution creditor requests the sheriff to withdraw the seizure, he shall be deemed to have abandoned the execution, and the sheriff shall mark the writ of seizure and sale as withdrawn by request of the execution creditor:
Provided that where the request is made in consequence of a claim having been made in an interpleader proceedings, the execution shall be deemed to be abandoned in respect only of the property so claimed.
(2) A writ of seizure and sale which has been withdrawn under this rule shall not be re-issued but the execution creditor may apply by summons supported by affidavit stating the grounds of the application for a fresh writ of seizure and sale to be issued, and such writ shall take priority according to its date of issue.
6. Immovable property. (O. 47 r. 6)
Where the property to be seized consists of immovable property or any registered interest therein the following provisions shall apply:
(1) Seizure shall be made by an order prohibiting the judgment-debtor from transferring, charging or leasing such property or interest. For the purpose of this rule "charging" shall include the creation of a lien by deposit of a document of title;
(2) A copy of the order shall be served on the judgment-debtor and one or more copies, as the case may require, shall be issued to the judgment-creditor in order that he may present the same, in compliance with the provisions of any written law relating to such land, for registration at the Registry of Titles or Land Office whereat the land or interest in land specified in such order is registered;
(3) No prohibitory order issued under this rule shall affect any immovable property or registered interest therein and no immovable property or registered interest therein shall be deemed to have been seized until such prohibitory order shall have been registered as provided by any written law relating to such land;
(4) Subject to the provisions of sub-rule (5) of this rule any prohibitory order shall upon the expiration of six months from the date thereof cease to affect the immovable property or registered interest therein specified in such order;
(5) Upon the application of any judgment-creditor on whose application a prohibitory order has been issued the Court or Judge, if it or he considers that special circumstances render an extension just, may from time to time by order extend the period of six months referred to in sub-rule (4), for any period not exceeding six months, provided that no order made under this rule shall have any force or effect unless it is presented for registration at the Land Office or Registry of Titles before the expiration of the prohibitory order which such order purports to extend;
(6) The provisions of sub-rule (2) shall apply to orders made under sub-rule (5) of this rule;
(7) When a judgment-creditor has obtained in any suit or proceeding a prohibitory order, in execution of an order or judgment in such suit or proceeding, affecting any immovable property or registered interest therein, no further prohibitory order affecting the same property or interest shall be made in the same suit or proceeding in execution of the same order or judgment on the application of such judgment-creditor or of any other person unless the Court or a Judge shall by order otherwise direct, on the ground of the existence of special circumstances;
(8) A copy of every order made under this rule shall be sent by the Court making the order to the Registrar of Titles of a State or to the Collector of Land Revenue of the District wherein the land affected is situate or to both as may be necessary.
7. Sale of immovable property. (O. 47 r. 7)
Sale of immovable property, or any interest therein, shall be subject to the following conditions:
(a) There shall be no sale until the expiration of fourteen days from the registration of the prohibitory order under rule 6(3) of this Order; [Added: P.U. (A) 332/181]
(b) The particulars and conditions shall be drawn up by the sheriff or by his solicitor, and shall be submitted for the approval of a Judge. At least two clear days notice in writing of an appointment to obtain the approval of the Judge shall be served on the judgment creditor and judgment debtor at their addresses for service respectively, unless the Judge shall in any case otherwise order;
(c) The judgment debtor may apply by summons to a Judge for postponement of the sale in order that he may raise the amount leviable under the writ by charge or lease, or sale of a portion only, of the immovable property seized, or by sale of any other property of the judgment debtor, or otherwise, and the Judge, if satisfied that there is reasonable ground to believe that the said amount may be raised in any such manner, may postpone the sale for such period and on such terms as are just;
(d) The judgment creditor may apply to a Judge for the appointment of a receiver of the rents and profits, or a receiver and manager of the immovable property, in lieu of sale thereof, and on such application the Judge may appoint such receiver or receiver and manager, and give all necessary directions in respect of such rents and profits or immovable property;
(e) Where immovable property or any registered interest therein has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court or a Judge to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it:
Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court or a Judge is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud;
(f) The purchaser at any such sale in execution of a decree may apply to the Court or a Judge to set aside the sale on the ground that the judgment debtor had no saleable interest in the property sold;
(g) (i) Where no application is made under paragraph (e) or (f) or where such application is made and disallowed, the Court or a Judge shall make an order confirming the sale, and thereupon the sale shall become absolute: provided that no such order shall be made until after the expiration of one month from the date of the sale;
(ii) Where such application is made and allowed, the Court or a Judge shall make an order setting aside the sale:
Provided that no order shall be made unless notice or the application has been given to all persons affected thereby;
(iii) No suit to set aside an order made under this paragraph shall be brought by any person against whom such order is made;
(h) (i) Where a sale is set aside under paragraph (g), the purchaser shall be entitled to an Order for repayment of his purchase-money (with or without interest as the Court or a Judge may direct) against any person to whom it has been paid;
(ii) The re-payment of the said purchase-money and of the interest (if any) allowed by the Court or a Judge may be enforced against such person under the provisions of this rule relating to the execution of a decree for the payment of money;
(i) (i) Every order under paragraph (g) shall contain a sufficient description of the property or interest sold and the name of the purchaser and shall further declare that the title of the property sold shall vest in such purchaser upon registration of such order under the provisions of any written law relating to such land, and not before;
(ii) A copy of any such order shall be issued to the purchaser in order that he may present the same for registration under the provisions of any written law relating to such land;
(iii) Every such order shall for the purposes of the Stamp Ordinance 1949 be deemed to be, and shall be stamped by the purchaser as, a conveyance.

46. Writs of Execution: General.

2007-09-08T21:48:00.000-07:00

46. Writs of Execution: General.
order 46
Writs of Execution: General
1. Definition. (O. 46 r. 1)
In this Order, unless the context otherwise requires, "writ of execution" includes a writ of seizure and sale, a writ of possession and a writ of delivery.
2. When leave to issue any writ of execution is necessary. (O. 46 r. 2)
(1) A writ of execution to enforce a judgment or order may not issue without the leave of the Court in the following cases, that is to say:
(a) where six years or more have lapsed since the date of the judgment or order;
(b) where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order;
(c) where the judgment or order is against the assets of a deceased person coming to the hands of his executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;
(d) where under the judgment or order any person is entitled to relief subject to the fulfilment of any condition which it is alleged has been fulfilled;
(e) where any movable property sought to be seized under a writ of execution are in the hands of a receiver appointed by the Court.
(2) Paragraph (1) is without prejudice to any written law or rule by virtue of which a person is required to obtain the leave of the Court for the issue of a writ of execution or to proceed to execution on or otherwise the enforcement of a judgment or order.
(3) Where the Court grants leave, whether under this rule or otherwise, for the issue of a writ of execution and the writ is not issued within one year after the date of the order granting such leave, the order shall cease to have effect, without prejudice, however, to the making of a fresh order.
3. Application for leave to issue writ. (O. 46 r. 3)
(1) An application for leave to issue a writ of execution may be made ex parte by summons in Form 91.
(2) Such an application must be supported by an affidavit
(a) identifying the judgment or order to which the application relates and, if the judgment or order is for the payment of money, stating the amount originally due thereunder and the amount due thereunder at the date of the application;
(b) stating, where the case falls within rule 2(1)(a), the reasons for the delay in enforcing the judgment or order;
(c) stating, where the case falls within rule 2(1)(b), the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order.
(d) stating, where the case falls within rule 2(1)(c) or (d), that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so;
(e) giving such other information as is necessary to satisfy the Court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue execution is liable to execution on it.
(3) The Court hearing such application may grant leave in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in which any question of fact or law arising in an action may be tried and, in either case, may impose such terms as to costs or otherwise as it thinks just.
4. Issue of writ of execution. (O. 46 r. 4)
(1) Issue of writ of execution takes place on its being sealed by an officer of the Registry.
(2) Before such a writ is issued a praecipe in one of the forms in Form 92 for its issue must be filed.
(3) The praecipe must be signed by the solicitor of the person entitled to execution or, if that person is acting in person, by him.
(4) No such writ shall be sealed unless at the time of the tender thereof for sealing
(a) the person tendering it produces
(i) the judgment or order on which the writ is to issue, or an office copy thereof;
(ii) where the writ may not issue without the leave of the Court, the order granting such leave or evidence of the granting of it;
(iii) where rule 5(2) applies, the written permission of the Controller of Foreign Exchange therein referred to; and
(b) the office authorized to seal it is satisfied that the period, if any, specified in the judgment or order for the payment of any money or the doing of any other act has expired.
(5) Every writ of execution shall bear the date of the day on which it is issued.
5. Writ and praecipe where Exchange Control Act 1953 applies. (Act 17) (O. 46 r. 5)
(1) Where any party entitled to enforce a judgment or order for the payment of money is resident outside the scheduled territories, then, unless the Controller has given permission under the Exchange Control Act, 1953, for payment of the money to him unconditionally or on conditions which have been complied with, any writ of execution to enforce that judgment or order must direct the sheriff to pay the proceeds of execution into Court.
Notice of payment into Court in compliance with such a direction must be given by the sheriff to the party by whom the writ of execution was issued or to his solicitor.
(2) Where the Controller has given such permission unconditionally or on conditions which have been complied with, the praecipe for the issue of a writ of execution to enforce the judgment or order in question must be indorsed with such a certificate of that fact.
6. Duration and renewal of writ of execution. (O. 46 r. 6)
(1) For the purpose of execution, a writ of execution is valid in the first instance for 12 months beginning with the date of the issue.
(2) Where a writ has not been wholly executed the Court may by order extend the validity of the writ from time to time for a period of 12 months at any time beginning with the day on which the order is made, if an application for extension is made to the Court before the day next following that on which the writ would otherwise expire.
(3) Before a writ the validity of which has been extended under this rule is executed the writ must be marked in Form 5 showing the date on which the order extending its validity was made.
(4) The priority of a writ, the validity of which has been extended under this rule, shall be determined by reference to the date on which it was originally issued.
(5) The production of a writ of execution, purporting to be sealed as mentioned in paragraph (3), shall be evidence that the validity of that writ has been extended under this rule.
7. Fees, expenses, etc., to be levied. (O. 46 r. 7)
In every case of execution the party entitled to execution may levy the commission, fees and expenses of execution over and above the sum recovered.
8. Costs of writ. (O. 46 r. 8)
Subject to these rules, the costs of and incidental to writs of execution or distress, whether executed or unexecuted, or unproductive, shall be allowed against the person liable, unless the Court otherwise orders.
9. Satisfaction by consent. (O. 46 r. 9)
(1) Any person who has satisfied a judgment debt may on filing a consent of the judgment creditor in Form 93 apply to the Court for satisfaction to be entered in the Cause Book and the Court may order satisfaction to be entered accordingly.
(2) The consent of the judgment creditor must be attested by his solicitor or if he has no solicitor, by a Commissioner for Oaths.
10. Where consent refused. (O. 46 r. 10)
(1) If a judgment creditor refuses or neglects to give such consent when requested, or cannot be found, the judgment debtor may apply to the Registrar for an order that satisfaction be entered.
(2) The summons must be served on the judgment creditor at least 2 clear days before the hearing thereof unless the Registrar otherwise orders.
(3) If on such application the Registrar is satisfied that the judgment debt has been satisfied and that the judgment creditor has no reasonable ground for refusing or neglecting to give such consent, the Registrar may order that satisfaction be entered in the cause book and that the judgment creditor pay the costs of and incidental to the application.
11. Deposit costs of execution with Sheriff. (O. 46 r. 11)
Before any writ of execution or distress is executed the person at whose instance the writ was issued (hereinafter called the "execution creditor") must, if the sheriff so requests, deposit in the Registry a sufficient sum of money to defray the costs of the execution.
12. Where Sheriff in possession more than 14 days. (O. 46 r. 12)
Where the sheriff has to remain in possession of movable property for more than 14 days, the execution creditor must before or at the end of the first 14 days of the sheriff keeping possession deposit in the Registry, if the sheriff so requests, a further sum of money to provide for the costs of execution for the next ensuing 14 days and must continue to make such deposits in advance before or at the end of each successive period of 14 days so long as the sheriff continues in possession.
13. Proper officer to give receipt. (O. 46 r. 13)
(1) The proper officer in the Registry must give a receipt for each sum of money deposited and he shall apply such sums or so much thereof as it necessary for the costs of the execution.
(2) The sheriff must return to the execution creditor any balance of money remaining over after the release of the person or the movable property seized, as the case may be, under the writ of execution or distress.
(3) Where the movable property seized under a writ of execution or distress is sold by the sheriff or he receives the amount of the levy without sale, any sums of money deposited by the execution creditor must, so far as the monies coming to the hands of the sheriff will allow, be refunded to the execution creditor.
Duties of Sheriff
14. Time of lodgment to be forthwith indorsed on writ. (O. 46 r. 14)
Whenever any writ of execution or distress is issued, the sheriff must indorse thereon the day, hour and minute of the receipt of it.
15. Time of execution. (O. 46 r. 15)
Any writ of execution or distress may be executed between the hours of 9 a.m. and 4 p.m., unless the sheriff otherwise orders.
16. Notice of seizure and inventory. (O. 46 r. 16)
(1) Where any movable property is seized by the sheriff under a writ of execution or distress, he must give to the execution debtor a notice of seizure in Form 94, and a copy of the notice must be filed.
(2) Where the sheriff removes from a place any movable property that is seized, he must give to the execution debtor at the time the property is removed or immediately afterwards an inventory of the property so removed.
(3) The notice of seizure under paragraph (1) and notice of removal and inventory under paragraph (2) may be
(a) handed to the execution debtor personally; or
(b) sent to him by post to his place of residence; or
(c) left at or sent by post addressed to him at the place from which the property was seized.
17. Proper officer to keep records and to prepare statement of accounts. (O. 46 r. 17)
(1) The proper officer receiving any money under any writ of execution or distress must give for every sum so received a receipt.
(2) The proper officer must keep a record of all sums of money received by him under a writ of execution or distress and of the manner in which he has applied them, and shall indorse on or annex to the writ a statement thereof.
(3) Subject to these rules, the proper officer must prepare a statement of account in respect of the monies received by him under a writ of execution or distress as follows:
(a) first the Court fees and commission;
(b) next the expenses of execution;
(c) next monies due to the execution creditor under rule 13 which have not been returned to him;
(d) next monies claimed by the landlord, not exceeding six months rent, due under a writ of distress in accordance with the provisions of section 20 of the Distress Act, 1951;
(e) next monies available for payment to the execution creditor to satisfy the judgment or order in respect of which the execution was issued;
(f) next where there is more than one writ of execution in his hands against the same defendant, monies available to satisfy the various execution creditors in the order of the priority of their writs according to the dates of issue:
Provided that where an order for attachment of movable property before judgment has been made under the provisions of Part III of the Debtors Act, 1957 and a writ of execution has been issued to enforce a judgment in the same action, such writ shall have priority according to the date on which the order of attachment before judgment was issued;
(g) next after accounting for the moniesfor payment to the execution creditors, showany balance due to the execution debtor.
(4) If the proceeds of the sale received by the proper officer are insufficient to cover the fees, commission and expenses of execution, the execution creditor must pay to the proper officer the amount of the deficiency and shall be entitled to add such amount to the judgment debt to be eventually recovered from the judgment debtor.
18. Sheriff to give information if required. (O. 46 r. 18)
(1) On a written application by the execution creditor, or the execution debtor, or any claimant to movable property seized by him, the sheriff must within 2 days furnish to such applicant a memorandum stating
(a) the date on which the writ was delivered to him;
(b) the amount leviable under the writ;
(c) the particulars of property seized;
(d) the place of seizure;
(e) particulars of any claim to such property of which he has received notice;
(f) the gross proceeds of sale;
(g) the amount of the fees, commission and expenses; and
(h) the monies paid by him into the Registry and to whose credit.
(2) The sheriff shall at all times permit the execution creditor, or judgment debtor, or any claimant to property seized by him to inspect and copy free of charge any inventory of property seized, sale account, or note of the fees, commission and expenses together with all vouchers in support thereof.
19. Date of arrest to be indorsed. (O. 46 r. 19)
The sheriff executing an order to arrest shall indorse thereon the day, hour and minute of the arrest.
20. Sheriff may be required to show cause for neglect of duty. (O. 46 r. 20)
Any person aggrieved by any alleged non-observance by the sheriff of any duty imposed on him by any written law or by these rules, may apply to the Court for an order that the sheriff show cause why he should not do the thing required, and the sheriff may be required to show cause accordingly.
21. Payment out. (55/67) (Act 265) (O. 46 r. 21)
Subject to these rules and to section 50 of the Bankruptcy Act, 1967 section 31 of the Employment Act, 1955, and to any other written law, any sum of money paid by the sheriff to the credit of the execution creditor or by the judgment debtor, under rule 17 shall, subject to any order of Court, be paid to the execution creditor or judgment debtor respectively on his application without an order:
Provided that the sheriff may, in his discretion, require the execution creditor or judgment debtor, as the case may be, to apply to Court for an order for payment out.
Sale by Sheriff
22. Sheriff to sell. (O. 46 r. 22)
Subject to these rules, the sheriff must sell all property seized by him under a writ of execution or distress.
23. Sale by public auction. (O. 46 r. 23)
Unless the sheriff otherwise orders, all sales must be by public auction between the hours of 9 a.m. and 4 p.m. and notice in Form 95 of the day, hour and place of any intended sale must be posted on the Notice Board of the Registry and as far as practicable at the place of intended sale 7 days before the sale.
24. Where property exceeds $10,000 sale by licensed auction. (O. 46 r. 24)
(1) Where the value of the property attached or seized is estimated by the sheriff to exceed ten thousand ringgit, the same must, unless the sheriff otherwise orders, be conducted by a licensed auctioneer and the sale must be publicly advertised by the sheriff or auctioneer on and during 2 days next preceding the day of sale.
(2) In any other case the sale may be conducted by the Sheriff.
25. Negotiable instruments. (O. 46 r. 25)
Negotiable instruments may, with the leave of the Court, be sold through the agency of such broker and on such terms as the Court shall think just.
26. Sheriff may execute or indorse documents. (O. 46 r. 26)
Where the execution or indorsement of any document is ordinarily lawfully required to give effect to any sale by the sheriff, the sheriff may execute or indorse such document; and the execution or indorsement thereof by the Sheriff shall have the same effect as the execution or indorsement by the judgment debtor.
27. Interpretation of terms. (O. 46 r. 27)
In this Order, where a writ of distress has been issued, the term "execution creditor" shall include a "landlord" and the term "judgment debtor" shall include a "tenant".

45. Enforcement of Judgments and Orders.

2007-09-08T21:46:00.001-07:00

45. Enforcement of Judgments and Orders.
order 45
Enforcement of Judgments and Orders
1. Enforcement of judgment, etc., for payment of money. (O. 45 r. 1)
(1) Subject to the provisions of these rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced by one or more of the following means, that is to say
(a) writ of seizure and sale;
(b) garnishee proceedings;
(c) a charging order;
(d) the appointment of a receiver;
(e) in a case in which rule 5 applies, an order of committal.
(2) Subject to the provisions of these rules, a judgment or order for the payment of money into Court may be enforced by one or more of the following means, that is to say
(a) the appointment of a receiver;
(b) in a case in which rule 5 applies, an order of committal.
(3) Paragraphs (1) and (2) are without prejudice to any other remedy available to enforce such a judgment or order as is therein mentioned or to the power of a Court under the Debtors Act, 1957 to commit to prison a person who makes default in paying money adjudged or ordered to be paid by him, or to the written law relating to bankruptcy or the winding up of companies.
2. Judgment, etc., for payment of money to person resident outside the scheduled territories. (Act 17) (O. 45 r. 2)
(1) Where any person is directed by any judgment, order or award to pay any money to or for the credit of a person who is resident outside the scheduled territories, he must, unless the Controller has given permission for the payment under the Exchange Control Act, 1953, unconditionally or upon conditions which have been complied with, pay the money into Court.
(2) Payment into Court under paragraph (1) shall, to the extent of the amount paid in, be a good discharge to the person making the payment, and no steps may be taken to enforce judgment, order or award to the extent of that amount.
(3) Notice of a payment into Court under this rule must be given to the plaintiff or his solicitor and to any other person required by the judgment, order or award to be given notice of such payment.
3. Enforcement of judgment for possession of immovable property (O. 45 r. 3)
(1) Subject to the provisions of these rules, a judgment or order for the giving of possession of immovable property may be enforced by one or more of the following means, that is to say
(a) writ of possession;
(b) in a case in which rule 5 applies, an order of committal.
(2) A writ of possession to enforce a judgment or order for the giving of possession of any immovable property shall not be issued without the leave of the Court except where the judgment or order was given or made in a charge action to which Order 83 applies.
(3) Such leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immovable property has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled.
(4) A writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.
4. Enforcement of judgment for delivery of movable property. (O. 45 r. 4)
(1) Subject to the provisions of these rules, a judgment or order for the delivery of any movable property which does not give a person against whom the judgment is given or order made the alternative of paying the assessed value of the property may be enforced by one or more of the following means, that is to say
(a) writ of delivery to recover the property without alternative provision for recovery of the assessed value thereof (hereafter in this rule referred to as a "writ of specific delivery");
(b) in a case in which rule 5 applies, an order of committal.
(2) Subject to the provisions of these rules, a judgment or order for the delivery of any movable property or payment of their assessed value may be enforced by one or more of the following means, that is to say
(a) writ of delivery to recover the property or its assessed value;
(b) with the leave of the Court, writ of specific delivery;
(c) in a case in which rule 5 applies, an order of committal.
(3) A writ of specific delivery, and a writ of delivery to recover any movable property or their assessed value, may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.
(4) A judgment or order for the payment of the assessed value of any movable property may be enforced by the same means as to any other judgment or order for the payment of money.
5. Enforcement of judgment to do or abstain from doing an act. (O. 45 r. 5)
(1) Where
(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or
(b) a person disobeys a judgment or order requiring him to abstain from doing an act,
then, subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say
(i) with the leave of the Court, an order of committal;
(ii) where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body;
(iii) subject to the provisions of the Debtors Act, 1957, an order of committal against that person or, where that person is a body corporate, against any such officer.
(2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) of this rule to a judgment or order shall be construed as references to the other made under rule 6.
(3) Where under any judgment or order requiring the delivery of any movable property the person liable to execution has the alternative of paying the assessed value of the property, the judgment or order shall not be enforceable by order of committal under paragraph (1), but the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first mentioned person to deliver the property to the applicant within a time specified in the order, and that order may be so enforced.
6. Judgment, etc. requiring act to be done: Order fixing time for doing it. (O. 45 r. 6)
(1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified therein.
(2) Where, notwithstanding Order 42, rule 6(1), or by reason of Order 42, rule 6(2), a judgment or order requiring a person to do an act does not specify a time within which the act is to be done the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein.
(3) An application for an order under this rule must be made by summons and the summons must, notwithstanding anything in Order 62, rule 10, be served on the person required to do the act in question.
7. Service of copy of judgment, etc., prerequisite to enforcement under rule 5. (O. 45 r. 7)
(1) In this rule references to an order shall be construed as including references to a judgment.
(2) Subject to Order 24, rule 16(3), Order 26, rule 7(3), and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless
(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and
(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.
(3) Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5(1)(ii) or (iii) unless
(a) a copy of the order has also been served personally on the officer against whose property leave is sought to issue a writ of seizure and sale or against whom an order of committal is sought; and
(b) in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act.
(4) There must be indorsed on the copy of an order served under this rule a notice in Form 87 informing the person on whom the copy is served
(a) in the case of service under paragraph (2), if he neglects to obey the order within the time specified therein, or, if the order is to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it; and
(b) in the case of service under paragraph (3), that if the body corporate neglects to obey the order within the time so specified or, if the order is to abstain from doing an act, that if the body corporate disobeys the order, he is liable to process of execution to compel the body to obey it.
(5) With the copy of an order required to be served under this rule, being an order requiring a person to do an act, there must also be served a copy of any order made under Order 3, rule 5, extending or abridging the time for doing the act and, where the first mentioned order was made under rule 5(3) or 6 of this Order, a copy of the previous order requiring the act to be done.
(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that, pending such service, the person against whom or against whose property it is sought to enforce the order has had notice thereof either
(a) by being present when the order was made; or
(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.
(7) Without prejudice to its powers under Order 62, rule 5, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.
8. Court may order act to be done at expense of disobedient party. (O. 45 r. 8)
If an order of mandamus, a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers under the Act and its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.
9. Execution by or against person not being a party. (O. 45 r. 9)
(1) Any person, not being a party to a cause or matter, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to the order by the same process as if he were a party.
(2) Any person, not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to the judgment or order as if he were a party.
10. Conditional judgment: Waiver. (O. 45 r. 10)
A party entitled under any judgment or order to any relief subject to the fulfilment of any condition who fails to fulfil that condition is deemed to have abandoned the benefit of the judgment or order, and, unless the Court otherwise directs, any other person interested may take any proceedings which either are warranted by the judgment or order or might have taken if the judgment or order had not been given or made.
11. Matters occurring after judgment: Stay of execution, etc. (O. 45 r. 11)
Without prejudice to Order 27, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.
12. Forms of writs. (O. 45 r. 12)
(1) A writ of seizure and sale must be in Form 88.
(2) A writ of delivery must be in Form 89.
(3) A writ of possession must be in Form 90.
13. Enforcement of judgments and orders for recovery of money, etc. (O. 45 r. 13)
(1) Rule (1) of this Order, with the omission of sub-paragraph (e) thereof, and Orders 46 to 51 shall apply in relation to a judgment or order for the recovery of money as they apply in relation to a judgment or order for the payment of money.
(2) Rule 3 of this Order, with the omission of paragraph (1)(b) thereof, and Order 47, rule 2(2), shall apply in relation to a judgment or order for the recovery of possession of immovable property as they apply in relation to a judgment or order for the giving or delivery of possession of immovable property.
(3) Rule 4 of this Order, with the omission of paragraphs 1(b) and (2)(c) thereof, and Order 47, rule 2(2), shall apply in relation to a judgment or order that a person do have a return of any movable property and to a judgment or order that a person do have a return of any movable property or do recover the assessed value thereof as they apply in relation to a judgment or order for the delivery of any movable property and a judgment or order for the delivery of any movable property or payment of the assessed value thereof respectively.