Conditional leave to defend in an application for summary judgment (O. 14, r. 4(3) ROC 2012)

You must be this tall (conditional) to ride (Image credit: https://www.reddit.com/r/MadeMeSmile/comments/1446lw4/he_is_this_tall_this_fall/)

Conditional leave to defend in an application for summary judgment (O. 14, r. 4(3) ROC 2012)

The Court is empowered to only grant a Defendant conditional leave to defend in an application for summary judgment (Cho Chin Huat v Lee Boo Hock [1970] 1 MLJ 112, FC).

In said case, the FC gave the Defendant conditional leave to defend. The Defendant was ordered to furnish security.

Conditional leave to defend is governed by O. 14, r. 4(3) ROC 2012.

Generally, where the Court doesn’t 100% believe the Defence but nonetheless does see some basic material to formulate a Defence (i.e., it’s there but not there), the Court may grant conditional leave to defend.

As put by the FC in Cho Chin Huat [1970]:

...but when there is something suspicious in the defendant's mode of presenting his case or where the court is left with a real doubt about the defendant's good faith, even though it cannot be said for certain that there is not a triable issue, it is entitled to make an order that the defendant do pay the amount claimed or any lesser sum into court or furnish security for that amount as a condition for leave to defend (see Fieldrank Ltd v Stein) [1961] 3 All ER 683.

Conditional leave to defend will generally involve the Defendant being ordered to securitise his defence by putting-up a sum of money as security.

Additional cases include:

1. Coronation Electronics [1987] 1 MLJ 190

2. Yeng Hing Enterprise [1988] 2 MLJ 60

3. Delta-Sport [2023] MLJU 2919

Rather an interesting alternative to the usual summary judgment application.

If the Defence is doubtful, one may consider seeking the Court’s leave to securitise said defence.

If the Defendant fails to put up security, one may consider striking-out the Defence and entering judgment (see para. 31 of Delta Sport [2023]).

GAVIN JAYAPAL

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