Lucy Wong Nyuk King (F) v Hwang Mee Hiong (F) (Q-02(IM)-1127-06/2017)

In order to understand fully the issues raised at hand in this appeal by the Appellants/Plaintiffs, the historical background of the matter needs to be appreciated. For ease of reference we will refer the parties as they were in the High Court.

Towards this end, we have taken the liberty to refer to the Plaintiff’s counsel’s submission which had laid out the historical background and facts of the case.

On 1.3.2010, the Plaintiffs filed an Originating Summons No. 24-11- 2010 (O.S.) for the removal of a private caveat lodged by the Defendant on the Plaintiffs’ land and for compensation and damages under section 177 of the Sarawak Land Code (SLC).

On 16.8.2010, the learned High Court Judge dismissed the O.S. with costs to be taxed unless agreed. The Plaintiffs appealed against that decision vide Civil Appeal No. Q-02-2618-2010. 3

On 12.4.2013, this Court heard that Civil Appeal No. Q-02-2618- 2010 and allowed the Plaintiffs’ appeal with costs of RM20,000.00 (see Order at pages 27 and 28, Record of Appeal) (COA Order).

After the COA Order was granted, the Plaintiff applied for the assessment of damages vide Notice of Appointment of Assessment of Damages in Enclosure 68 (Notice of Assessment of Damages, see page 29, Record of Appeal) on 21.8.2013.

The Defendant objected to the Notice of Assessment of Damages and applied vide Enclosure 69 to set it aside.

The learned High Court Judge allowed the Defendant’s application in Enclosure 69 and had set aside Enclosure 68.

The Plaintiffs appealed to this Court against the Order of the High Court setting aside Enclosure 68 vide Court of Appeal Civil Appeal No.

On 16.2.2017, this Court allowed the Plaintiffs’ appeal against the setting aside of Enclosure 68 and reinstated Enclosure 68 for hearing.

After Enclosure 68 was reinstated for hearing, the Plaintiffs appeared before the High Court at Bintulu on 11.4.2017 where the matter was brought up before the Senior Assistant Registrar (SAR), Tuan Muhammad Hafiz bin Mohd Nor, who apologised to the parties and said as follows: 4 “Upon instruction from YAA CJSS, all assessment of damages to be heard by high court judges and the instruction is to take effect immediately and it includes all pending cases.”

On 28.4.2017, Enclosure 68 was set for hearing before the learned Judicial Commissioner (JC). Once again the Defendant raised preliminary objection to Enclosure 68 on the ground that the Plaintiffs had not complied with the provisions of Order 37 Rules of Court 2012 (ROC). The learned JC allowed the Defendant’s preliminary objection and proceeded to strike off Enclosure 68 with costs of RM800.00 (see draft Order 28.4.2017, pages 20-21, Agreed Record). Hence this appeal before us by the Plaintiffs. B.

As stated earlier, when Enclosure 68 was set for hearing before the learned JC, the Defendant had raised preliminary objection to that Enclosure. But on the date of hearing of Enclosure 68, the learned Plaintiffs’ counsel had raised preliminary objection to the Defendant’s preliminary objection by reason of the Defendant’s preliminary objection was not permissible under Order 2 rule 2 and rule 3 of the ROC. The Plaintiffs further submitted that as the COA Order had ordered damages to be “assessed by the Court or by the Deputy Registrar or the Senior Assistant Registrar”, Order 37 of the ROC did not apply. This was because Order 37 only relates to matters before the Registrar and not before a Judge.

Other than stating that the Plaintiffs had not complied with the provisions of Order 37, learned Counsel for the Defendant submitted that Order 2 rule 2 ROC only applies to cases where the complaint of 5 irregularity is based on the evidence of alleged non-compliance. The Defendant was not raising preliminary objection on that point. Further, Order 2 rule 3 ROC does not prohibit all preliminary objections.

Having heard the parties the learned JC found that the Plaintiffs’ preliminary objection had no basis as Order 2 rule 2 of the ROC did not apply to the preliminary objection raised by the Defendant. That the Defendant’s objection pertained to the non-compliance of a mandatory provision of the ROC, that is, Order 37. In any event, Order 2 rule 2 pertains to application to set aside for irregularity. As for Order 2 rule 3, the learned JC was of the view that it does not prohibit preliminary objections outright; the Court still has to consider the grounds of objections before deciding whether to allow it or not. Further, Order 2 rule 3 does not require a Notice of Application to be filed first before an objection could be entertained. The learned JC therefore found no merits in the Plaintiff’s objections and dismissed it.

The learned JC then proceeded to consider the Defendant’s preliminary objection. It would appear that learned counsel for the Plaintiffs raised the same issues as he did in the Plaintiffs’ preliminary objection against the Defendant’s preliminary objection. To this end, the learned JC referred to this Court’s decision in Tetuan Sri Ling & Associates v Lian Meng Wah [2015] 3 CLJ 63 and quoted the following passage : “[52] Having considered the circumstances leading to the order made by the learned judge in respect of encl. 48, it would seem clear that there is serious non-compliance with O.37 on the part of LMW as regards the procedure that is required to be followed relating to assessment of damages. There was indeed no explanation proferred by LMW on the 6 non-compliance with the law and the long delay of almost three years to file the notice of appointment for assessment of damages. In our judgement, the learned judge clearly had erred when she proceeded to assess the damages and decided that the quantum was sufficiently proven relying only on the affidavit of LMW especially when no directions had been given by the learned SAR as required under O.37 r.1(1) of the Rules of Court 2012.” The learned JC then concluded that it was clear from the above quotation, Order 37 ROC also applies to a Judge or JC. The learned JC then stated as follows : “ [24] The fact that the assessment of damages herein was before a judge or judicial commissioner did not mean that the requirements in O.37 ROC could be dispensed with. The procedure relating to assessment of damages must be complied. Failure to do so tantamount to a serious non-compliance. [25] Further, the definition of a ‘judge’ in O.1, r.4 ROC states that : “ “judge” means a Judge or Judicial Commissioner of the High Court and includes where he is empowered to act, a Judge of the Sessions Court, a Magistrate or a Registrar, as the case may be.” [26] In other words, a Judge or a Judicial Commissioner may act as a Registrar under O.37 ROC. [27] That said, the question that needed to be answered was, whether the Plaintiffs had complied with the mandatory requirements of O.37 ROC before filing Enclosure 68. [28] The answer to that question was in the negative.”

Based on the decision of this Court in Tetuan Sri Ling & Associates (supra), the learned JC found that since the Plaintiffs had failed to comply with Order 37 rule 1 (1) and rule 1 (6) ROC, it followed that Enclosure 68 7 filed by the Plaintiff was defective and incompetent before him for non-compliance, in that no directions were given pursuant to Order 37 rule 1(1) ROC. The learned JC therefore allowed the preliminary objection by the Defendant and proceeded to strike out Enclosure 68 with costs to the Defendant. C.

At the outset of the hearing of this appeal, the Defendant raised a preliminary objection on the fact that the 1st Plaintiff is an undischarged bankrupt and therefore this appeal was incompetent and this Court had no jurisdiction to hear the appeal. Upon learned counsel for the Plaintiffs producing to this Court a copy of a letter from the Insolvency Department, Miri Branch reference number BP013801/2016 dated 16.10.2018 stating that the Director General of Insolvency had given his sanction to the 1st Plaintiff to “memulakan atau meneruskan tindakan di Mahkamah Rayuan Persekutuan Malaysia bagi tindakan di Mahkamah Rayuan Persekutuan Malaysia bagi Guaman No.:Q-02(IM)-1127-06/2017 serta melantik Tetuan Tai Choi Yu & Co., Advocates untuk mewakili tuan dalam tindakan guaman dan rayuan-rayuan yang berbangkit daripada kes ini…”, learned counsel for the Defendant withdrew his preliminary objection and this Court proceeded with the Plaintiff’s appeal.

Even though the Plaintiffs raised 5 issues in their Memorandum of Appeal, learned counsel for them in a nutshell stated that the issue to be determined by us was whether an assessment before the High Court judge is the same as an assessment before the SAR or whether Order 37 ROC is relevant/applicable to an assessment by the High Court Judge. 8

Since the Plaintiffs’ appeal centred around the provisions of Order 37 of the ROC, for ease of reference the relevant parts of that Order is reproduced below – “ ORDER 37 ASSESSMENT OF DAMAGES Assessment of damages by Registrar (O.37, r.1)

(1) Where judgment is given for damages to be assessed and no provision is made by the judgment as to how they are to be assessed, the damages shall, subject to the provisions of this Order, be assessed by the Registrar, and the party entitled to the benefit of the judgment shall, within one month from the date of the judgment, apply to the Registrar for directions and the provisions of Order 34 shall, with the necessary modifications, apply.

On the hearing of the application for directions, the Registrar may, in addition to making such orders as are necessary and appropriate under Order 34, give directions as to time by which a notice of appointment for assessment of damages shall be filed and such notice upon being filed shall, notwithstanding anything in Order 62, rule 10, be served not later than seven days thereafter on the party against whom the judgment is given. Notice of appointment for assessment of damages shall be in Form 62A.

If the party entitled to the benefit of the judgment fails to comply with paragraph (1), the Court may, on the application of the party against whom the judgment is given, proceed to assess damages or make such other order as it thinks just.

The attendance of witnesses and the production of documents before the Registrar in proceedings under this Order may be compelled by subpoena, and the provisions of Order 35 shall, with the necessary adaptations, apply in relation to those proceedings as they apply in relation to proceedings at the trial.

Subject to any direction given by the Registrar pursuant to this rule, the party entitled to the benefit of the judgment shall file a notice of appointment for assessment of damages within six month of the date of judgment. 9

A party shall not file a notice of appointment for assessment of damages by the Registrar pursuant to this rule unless directions for filing the exchange of affidavit evidence pursuant to Order 34 have been given or complied with, as the case may be.

If that party does not file the notice of appointment for assessment of damages within the prescribed period, any other party may apply for directions. Certificate of amount of damages (O.37, r.2)

Where in pursuance of this Order or otherwise damages are assessed by the Registrar, he shall certify the amount of the damages. … Power to order assessment by Registrar or at trial (O.37, r.4)

The Court may, in the case of any such judgment as is mentioned in rule 1, order either –

that the assessment of the damages shall be made by the

that the action shall proceed to trial before a Judge in respect of the damages, and where the Court orders that the action shall proceed to trial, Order 34 shall apply with the necessary modifications. …” [Emphasis added]

Essentially both the Plaintiffs and the Defendant had raised the same arguments before the learned JC as before us and we will not repeat them here. Suffice for us to address the issue/issues raised before us and to give our reasons as to why we had unanimously decided to allow the Plaintiffs’ appeal.

In the first place, it must remembered that on 16.2.2017, this Court had allowed the Plaintiffs’ appeal against the setting aside of Enclosure 10 68 (applied for by the Defendant in Enclosure 69 and allowed by the learned High Court Judge) and as a result of allowing the appeal, this Court had in effect reinstated Enclosure 68. What this means is that the learned JC is required to hear fully Enclosure 68 and should not have entertained further preliminary objections raised by the Defendant. However, the learned JC continued to hear the Defendant’s preliminary objection and allowed it and thus Enclosure 68 was struck out. To us, and with respect, the learned JC had overruled/ignored/countermanded this Court’s decision dated 16.2.2017 when he had no jurisdiction to do so. For this reason alone we were of the view that the Plaintiff’s appeal must be allowed.

We further agreed with the Plaintiffs’ counsel’s contention that there is a difference between a High Court Judge and the Registrar/SAR. Order 37 of the ROC provides for the assessment of damages before the Registrar. However, the learned JC resorted to the definition of “Judge” in the ROC to come to the conclusion that if a “Judge” includes” a “Registrar”, then wherever the reference to a “Registrar” in the ROC must also mean it refers to a Judge/JC of the High Court. With respect, we found this interpretation of Order 37 to be fallacious for the following reasons:

23.1 Order 37 does not provide a different meaning to the term “Registrar” to include a Judge of the High Court. Therefore, resort must be made to the general definition provision as provided in Order 1 rule 4 to that term “Registrar”;

23.2 under Order 1 rule 4 (1), “Registrar” has been defined as follows: 11 ‘ “Registrar” means –

the Chief Registrar or the Deputy Chief Registrar of the Federal

the Registrar of the High Court of Malaya or the Registrar of the

any Deputy Registrar or Senior Assistant Registrar of the High

any Registrar of the Subordinate Court under the Subordinate Courts Act 1948;’ It can therefore be clearly seen that the SAR is included in the term “Registrar”, but definitely does not include the High Court Judge/JC;

23.3 the distinction between the terms used in Order 37 to mean the “Registrar” and the “Judge” can also be clearly seen in Order 37 rule 4 (b) as against the rule 4 (a) where a reference is made first of all in rule 4 (a) to “that the assessment of the damages shall be made by the Registrar; or”, and rule 4 (b) makes reference to “that the action shall proceed to trial before a Judge in respect of the damages,…”. If the term “Registrar” is to include a “Judge”, this distinction would not be required at all in rule 4;

23.4 the COA Order (dated 12.4.2013) moreover had ordered damages to be “assessed by the Court or by the Deputy Registrar or the Senior Assistant Registrar”; this can only mean that this Court had ordered the assessment of damages to be tried before a Judge/JC of the High Court as one of the possibilities - see definition of “Court” in Order 1 rule 4(2) of the ROC which states as follows : ‘(2) In these Rules, unless the context otherwise requires, “Court” refers to the Magistrate’s Court, or any one or more Magistrate thereof, the Sessions Court, or any one or more Judges thereof, the High Court or any one or more Judges or Judicial Commissioners thereof, whether 12 sitting in Court or in Chambers; but the foregoing provision shall not be taken as affecting any provision of these Rules and, in particular, Order 32, rule 9, by virtue of which the authority and jurisdiction of the Registrar of the Court is defined and regulated’;

23.5 flowing from subparagraph 23.4 above, it cannot be said that there was no provision made by the judgment as to how the assessment of damages is to be assessed so as to enable the provisions of Order 37, in particular rule 1(1), to apply;

23.6 we noted the provisions of Order 32 rule 9 of the ROC, which provides as follows: “Jurisdiction of Registrar (O.32, r.9)

The Registrar shall have power to transact all such business and exercise all such authority and jurisdiction as under the Act of these Rules may be transacted and exercised by a Judge in Chambers except such business, authority and jurisdiction as the Chief Judge may from time to time direct to be transacted or exercised by a Judge in person or as may by any of these Rules be expressly directed to be transacted or exercised by a Judge in person.” [Emphasis added] Order 32 is headed “Applications and Proceedings in Chambers”. The term “Chief Judge” referred in rule 9 thereof had been defined in section 3 of the Courts of Judicature Act 1964 (Act 91) (CJA) [the definition of “Chief Judge” in the CJA applies since the ROC is made pursuant to section 17 of the CJA] to mean – ‘ “Chief Judge” means the Chief Judge of the High Court in Malaya or of the High Court in Sabah and Sarawak, as the case may require;’ 13 Moreover, in view of the Chief Judge of Sabah and Sarawak’s instruction to the learned SAR (which has been alluded to in paragraph 11 above), Enclosure 68 has to be heard before the learned JC in person;

23.7 the learned JC relied heavily on the decision of this Court in Tetuan Sri Ling & Associates (supra) to conclude that Order 37 applies to a Judge or JC. With respect, the learned JC failed to take into account the difference in the facts in Tetuan Sri Ling & Associates as against the case before us. In the former, the judgment in default order (which was in favour of the respondent/LMW) required the appellant to pay the respondent damages to be assessed by the Deputy Registrar. By the definition of “Registrar”, it would also include the Deputy Registrar for the purposes of Order 37. Therefore, the judgment of this Court in that case was consonant with our interpretation of Order 37 as laid out by us in the subparagraphs before this. The facts of the case before us are therefore distinguished from that case;

23.8 in view of subparagraphs 23.1 to 23.7 above, we found that Order 37 generally does not apply to the Plaintiffs’ case, even though they had filed an application in Enclosure 68 before the learned SAR.

As Order 37 generally does not apply to the Plaintiff’s case, the Plaintiffs are at liberty to pursue the same application in Enclosure 68 before the learned JC, and by virtue of Order 37 rule 4 it is provided that “where the Court orders that the action shall proceed to trial, Order 34 [pre-trial case management] shall apply with the necessary modifications”. 14 D.

In conclusion, for the reasons stated above, we answered the issue posed by the Plaintiffs in the negative. We therefore unanimously allowed the Plaintiffs’/Appellants’ appeal with costs of RM 3,000.00 subject to the payment of allocatur fees. We set aside the High Court Order dated 28.4.2017. We consequentially ordered Enclosure 68 to be remitted back to the High Court for hearing before the learned JC/Judge. sgd