Two Courts, Two Readings: When Can You Appeal a Refusal to Dispose of a Case Early?
ARTICLECIVIL
Amirul Syafiq
9/27/20262 min read
Since 1 October 2022, section 68(1) of the Courts of Judicature Act 1964 has said, in plain terms, that no appeal lies to the Court of Appeal where the High Court dismisses a summary judgment application or a striking-out application, or allows an application to set aside a default judgment. The words look simple. Two recent appellate decisions read them very differently.
The Federal Court: look at what the judge decided
In MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLRA 595, the Federal Court, in a judgment delivered by Nallini Pathmanathan FCJ, declined to read section 68(1)(f) as a blanket bar. Read together with sections 3 and 67, it bars an appeal only where the judge has decided that the case needs oral evidence at trial. Where the dismissal turns instead on a threshold point — locus, state immunity or a similar preliminary point of law — the parties’ rights on that point have been finally disposed of, and an appeal lies.
The reasoning is practical. A full trial cannot help a court answer a pure point of law. Forcing one prolongs litigation rather than shortening it.
The Court of Appeal: look at what the application sought
In 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square (Civil Appeal No. B-02(IM)(C)-1479-08/2024), a developer sought to end a defects claim early by asking the High Court to decide limitation and res judicata under Order 14A, with an alternative prayer under Order 33. The application failed, and the developer appealed.
The majority of the Court of Appeal struck out the appeal. Whatever the label, an application designed to dispose of a claim without trial is in substance a striking-out or summary judgment application. Once the High Court declines to do that, the statutory bar applies.
The majority went further. In remarks it described as obiter, it respectfully questioned the Federal Court’s approach, observing that almost every striking-out application is capable of ending a claim, and that a dismissal almost always means the case needs a trial. The majority had decided the motion before MT Ventures was delivered, and considered itself not bound by it.
The dissenting judge took the opposite view: section 68(1)(f) refers to striking out under Order 18 rule 19 and nothing more, and in any event limitation and res judicata are threshold issues that finally dispose of the parties’ rights.
The contrast in one line
The Federal Court asks what the dismissal decided. The Court of Appeal majority asks what the application sought. On the first approach, a threshold point of law can still go on appeal. On the second, the door closes the moment early disposal is refused.
The question left open
The Federal Court’s decision binds, and the Court of Appeal majority confined its critique to obiter. But its holding stands: a defendant’s Order 14A application to dismiss a claim falls within the bar. So when a High Court declines to decide a pure threshold point before trial, whether the application is brought under Order 18, Order 14A or Order 33, does the right of appeal turn on the label on the application, or on what the judge actually decided?
Contributed by:
Amirul Syafiq
Associate
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