Summary judgement : triable issues as a defence

Abstract

Litigation under civil takes a long time to complete, there are many stages need to be started from pleading, pre-trial discovery, trial and judgment, appeal and enforcement. Normal average time taken is three years. The RHC contains a mechanism that can cut short the time and completion called Summary Judgment under Order 14 RHC. Summary Judgment can be used where the Defendant has no valid defence. However, the Defendant may prevent Summary Judgment by raising triable issue as defence. Triable issues are defences that rose by the defendant, as subject to a legal trial capable of being brought under judicial prosecution or determination. When triable issue successfully arises then Summary Judgment should not be granted, means Triable issue can be a defence against Summary Judgment. Therefore, this research has been conducted to determine triable issues in various contracts related to the construction industry. To achieve the objective of this research 18 cases were selected to be analyzed by using qualitative method analysis. From this case found that there are eight (8) points of issues that can be a triable issue as defence which are claimed for interest, contractual issue, certificate, final account, work done, set-off, obligation and liability and the last issues related to liquidated ascertain damages (LAD). Overall, triable issues can arise from any other issues but need to prove that there are disputed issues on the facts or on the law, as disclosed in the pleadings read together with the affidavit or affidavits.