Third Party Proceeding (Rules of Court 2012)

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Third Party Proceedings – O 16

• Third party notice – O 16 r 1
• Application for leave to issue third party notice – O 16 r 2 • Issue, service of and entry of appearance to third party notice – O 16 r 3 • Third party directions – O 16 r 4
• Default of third party – O 16 r 5
• Setting aside third party proceedings – O 16 r 6
• Judgment between defendant and third party – O 16 r 7 • Claims and issues between a defendant some other party – O 16 r 8 • Claims by third and subsequent parties – O 16 r 9
• Offer to contribution – O 16 r 10
• Counterclaim by defendant – O 16 r 11

Interpleader Proceedings – O 17

• Entitlement to relief by way of interpleader – O 17 r 1 • Claims to goods taken in execution – O 17 r 2
• Mode of application – O 17 r 3
• Service of summons and notice of application – O 17 r 4 • Powers of Court hearing originating summons or notice of application – O 17 r 5 • Power to order sale of goods taken in execution – O 17 r 6 • Power to stay proceedings – O 17 r 7

• Withdrawal or admission – O 17 r 7A
• Other powers – O 17 r 8
• One order in several causes or matter – O 17 r 9
• Discovery – O 17 r 10
• Trial of interpleader issue – O 17 r 11

Introduction

The objects of these rules are:

1) To prevent multiplicity of actions and to enable the court to settle disputes between all parties to them in one action; 2) To prevent the same question from being tried twice with possibly different results.

Observations of Pennycuick J in Standard Securities Ltd v Hubbard [1967] Ch 1056

In Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52, the Privy Council considered O 16 r 1 of the Rules of the Supreme Court 1957 regarding the power of the court to add additional party to an action…the party to be added must be one ‘who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the cause or matter’.

Third party proceedings must be looked at as independent proceedings between the defendant as plaintiff and the third parties as defendants – Valliammai Achi v Nachiappa [1957] MLJ 27.

The court may, at its discretion, on the application of a defendant, add a party as a co-defendant, even though the defendant could have chosen to have such party joined as a third party – Hee Awa & Ors v Syed Muhammad Sazaly & Anor [1988] 1 MLJ 300.

The defendant must have entered an appearance before issuing a third party notice.

The affidavit must state the nature and grounds of the claim of the question to be determined and the relief sought. The rules require the use of Form 18 or 19 as the case may be.

The third party on being served, becomes a party to the action, as though he has been sued by the defendant. He may appeal, defend himself and may counterclaim against the defendant – Barclays Bank v Tom [1923] 1 KB 221. The third party is not a defendant as against the plaintiff – Eden v Weardale Iron & Coal Co (1887) 35 Ch D 287.

Under O 16 r 2, as to the question on who may apply for TPN ( the defendant under r 1(2) or the plaintiff against whom a counterclaim has been made.

In order to issue a TPN, a defendant must first have entered an appearance, and may issue the notice without leave if the notice is issued before delivery of defence. Leave is necessary after delivery of defence, and when the action is begun by OS – Birmingham & District Land Co v NW Ry Co (1886) 55 LT 669.

The granting of leave is a matter of judicial discretion. If a prima facie case is made out within any of the cases in r 1, leave will be granted. The court will not, in considering whether to grant leave or otherwise, go into the merits of the case – Edison & Swan United Electric Light Co v Holland (1889) 33 Ch D 497.

The granting of leave does not prevent the court from setting aside the TPN later under r 4(3)(c)....
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