/akn/my/judgment/court-of-appeal/2018/d3492ed5-74aa-42e0-9b6d-d12a71856ebc
Court of Appeal of Malaysia15 May 2018W-02(IM)(NCVC)-1282-07/2017
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“ituated in Port Dickson, Negeri Sembilan. The Appellants are the two respective Management Corporations for Apartment North and Apartment South. The committees were only formed on 13.5.2006 under the Strata Title Act 1985. [3] Prior to this date, two management corporations, representing all the owners of the units of”
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Page 1 of 10 IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(IM)(NCVC)-1282-07/2017 BETWEEN
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1. PERBADANAN PENGURUSAN PARADISE LAGOON APARTMENT (NORTH)
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2. PERBADANAN PENGURUSAN PARADISE LAGOON APARTMENT (SOUTH) … APPELLANTS AND PENGKALEN HOLIDAY RESORT SDN BHD (Company No: 033320D) … RESPONDENT [IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR MALAYSIA CIVIL SUIT NO. 22NCVC-179-02/2012 Between
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1. Perbadanan Pengurusan Paradise Lagoon Apartment (North)
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2. Perbadanan Pengurusan Paradise Lagoon Apartment (South) … Plaintiffs And Pengkalen Holiday Resort Sdn Bhd (Company No: 033320D) … Defendant (Decided by Hue Siew Kheng J. in the High Court at Kuala Lumpur on 29 May 2017)] CORAM IDRUS HARUN, JCA SURAYA OTHMAN, JCA STEPHEN CHUNG HIAN GUAN, JCA Page 2 of 10 JUDGMENT OF THE COURT [1] This is the Appellants’ appeal against the decision of the High Court at Kuala Lumpur given on 29.5.2017. The grounds of appeal are set out in the memorandum of appeal. BACKGROUND FACTS [2] The Respondent was the developer and had delivered vacant possession of the units of Paradise Lagoon Apartment (North) (Blocks A, B and C) and Paradise Lagoon Apartment (South) (Blocks D, E, F, G, H & J) situated in Port Dickson, Negeri Sembilan. The Appellants are the two respective Management Corporations for Apartment North and Apartment South. The committees were only formed on 13.5.2006 under the Strata Title Act 1985. [3] Prior to this date, two management corporations, representing all the owners of the units of Apartment North and Apartment South, were established on 6.12.2000. The two corporations collected the service charges, maintenance fees, managed and provided maintenance services for both Apartments. All monies collected were paid into the "Pengkalen Holiday Resort Sdn Bhd (Apartment Account)/Paradise Lagoon Apartment Maintenance Fund A/C" which was maintained and managed by the Respondent. [4] After the Appellants were instituted, they required the Respondent to hand over the accounts and monies but the Respondent claimed that they were not entitled to the monies collected before they were instituted. Page 3 of 10 On 16.11.2006 the Respondent transferred a sum of RM1,803,972.63 from the apartment account to its account. [5] The Appellants commenced this suit against the Respondent for the sum of RM1,803,972.63. After a full trial, on 17.6.2013, the trial judge entered judgment against the Respondent to pay the sum of RM1,803,972.63 to the Appellants. The Respondent appealed against that decision. On 2.12.2013 the Court of Appeal dismissed the appeal and affirmed the High Court Order. [6] About two and a half years later, the Respondent filed a notice of application, dated 28.6.2016, to the High Court under 0.92 r.4 of the Rules of Court 2012 to vary, alter and or seek clarification against the High Court Order dated 17.6.2013. On 29.5.2017, the presiding judge allowed the Respondent's application and granted an order including:-
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(a) that the High Court order dated 17.6.2013 is given clarification and/or amended and/or corrected as to the obligations imposed on the Defendant to be limited to the sum of money which have been collected by the Defendant and which was the findings of the High Court held by the Defendant as trustee; and
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(b) that an inquiry is made to the relevant accounts at a date to be determined. Page 4 of 10 SUBMISSION OF PARTIES [7] In this appeal, the Appellants submitted that the presiding judge had erred by questioning the High Court Judgment dated 17.6.2013 which she was not entitled to do by amending the judgment and in deciding that res judicata was not applicable to the Respondent's application. It was submitted that the judge had erred in deciding that there exist suppression of vital fact even though it was against the Respondent's Defence and the Statement of Agreed Facts. [8] The Appellants submitted that the Respondent’s motion under 0.92r.4 to vary, alter and or seek clarification against the High Court Order was wrong and there are limitations in respect of the Court’s inherent jurisdiction under 0.92r.4. It was submitted that any amendment to a judgment or order should be made under 0.20r.11 and only for clerical mistakes or errors arising from any accidental slip or omission which is known as the slip rule. [9] It was submitted that the judge has no power under any application in the same action to alter, vary or set aside a judgment regularly obtained after it has been entered except under the slip rule. It was submitted that the Respondent had failed to identify any clerical mistake or any accidental slip or omission that required variation or alteration. [10] The Appellants submitted that the judge in allowing the application has caused injustice to the Appellants as they are now unable to enforce the High Court Order dated 17.6.2013 against the Respondent. It was submitted that the Respondent was seeking to re-litigate the facts and issues which had been formally adjudicated. The Appellants submitted Page 5 of 10 that it is trite law that once a court order has been drawn up and perfected, the court order cannot be altered, varied or set aside because the Court is functus officio. [11] The Appellants submitted that the Judge has erred in deciding that res judicata was inapplicable due to her concluding that the Appellants have admitted that the issue of the existence of the sum in question being in the hands of the Respondent and the issue of non-satisfaction of these payments were never raised and the entire proceedings in fact proceeded on the basis that the said funds existed. [12] In reply, the Respondent submitted that this appeal involves the applicability of the inherent jurisdiction of the Court which is encapsulated in 0.92r.4 which enables the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [13] The Respondent contended that the primary declaration that was made on 17.6.2013 by VT Singham J. was that the Appellants were entitled to all maintenance service charges paid by the proprietors of the apartments to and held by the developer (the Respondent) in the apartment account who then ordered the sum of RM1,803,972.63 to be paid by the Respondent to the Appellants. [14] The Respondent contended that thereafter it discovered that the sum of RM1,803,972.63, including both amounts received as well as those contractually due, was not paid to the Respondent and there was no credible denial of this fact by the Appellants which insisted that the Respondent pay the monies which the Respondent never received and Page 6 of 10 not in the apartment account. It submitted that if it was required to pay more than what they received from the apartment owners, it would be a gross injustice which required intervention by the court under its inherent jurisdiction. [15] It submitted that the order made by the judge and which is the subject of this appeal is for an enquiry to be held as to the amount collected by the Respondent from the apartment owners and that was an eminently just order. The Respondent reiterated at the outset that they are not asking for the Order by V.T. Singham J. made on 17.6.2013 to be revisited with respect to the liability of the Respondent to turn over to the Appellants all sums of money collected by the Respondent from the apartment owners. [16] The Respondent submitted that it is clear that Order 1 provides the limits of what the Respondent is liable to pay the Appellants, namely the maintenance/service charges collected from the owners of the apartments. It submitted that the Appellants were entirely evasive as to the amounts their members had paid to the Respondent whereas the Respondent had deposed without challenge that they had not been paid a total of RM1,112,970.17 by the apartment owners and thus not liable to the Appellants for that amount. The Respondent contended that it had turned over to the Appellants the sum of RM772,842.84. OUR DECISION [17] We referred to paragraph 6 of the judgment given on 17.6.2013 where the trial judge put the main issue to be tried as follows:- “
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1. Whether the maintenance/service charges collected by the Developer from the Page 7 of 10 proprietors of Paradise Lagoon Apartments (the “Proprietors”) from the date of delivery of vacant possession in late 1994 until the establishment of the 1st and 2nd plaintiffs on 28.10.2000 and 6.12.2000 respectively (the Pre-MC Maintenance Charges) accrue and belong to the Plaintiffs or the Developer?..” This is the same issue for the enquiry to be held, which is the subject of complaint in this appeal, as to the amount collected by the Respondent from the apartment owners and to be paid to the Appellants. The trial judge had ruled in favour of the Plaintiffs/Appellants. [18] The judgment obtained by the Appellants on 17.6.2013 was decided on merits, after a full trial, by the trial judge by hearing witnesses and going through documents and accounts at the trial. After the judgment was delivered and perfected, the judge was functus officio. [19] The Respondent had filed an appeal to the Court of Appeal against that decision but the appeal was dismissed and the judgment was affirmed. The Respondent did not appeal against the decision of the Court of Appeal. If it was not satisfied with the decision of the Court of Appeal, the best forum to address its grievances would be in the apex court. However, about two and half years later, it filed the application under 0.92r.4 to vary, alter and or seek clarification against the High Court Order dated 17.6.2013 instead of under 0.42r.13 of the Rules. [20] It is trite that the court has no power under any application in the same action to alter, vary or set aside a judgment regularly obtained after it had been entered and an order has been drawn up, except under the slip rule so far as is necessary to correct errors in expressing the intention of the court, unless it is a judgment by default or made in the absence of a party at a trial or hearing. If a judgment or order has been obtained by Page 8 of 10 fraud or where further evidence which could not possibly have been adduced at the trial, a fresh action will lie to impeach the original judgment: Hock Hua Bank Bhd. V Sahari Bin Murid [1981] 1 MLJ 143; Tan See Siong & Anor v Herman Ando [2011] 3 MLJ 429. [21] If there was any clarification sought in respect of the judgment, it should be preferably before the order was drawn up and perfected and before the same judge who heard the trial who is the best person to give clarification, if any. In this case the Respondent did not seek clarification from the trial judge but filed the appeal against the judgment which appeal was dismissed. It then waited for about two and half years before it made the application, after the appeal was dismissed. The Respondent could not re-open the case or sought clarification either before the same judge, who has retired, or before another judge. In filing the application, it was mounting a collateral attack against the judgment which it was not entitled to under the circumstances of the case and clearly an abuse of the process of the court. [22] Although the Respondent has submitted that the Appellants were entirely evasive as to the amount their members had paid to the Respondent, this issue had been argued, determined and adjudged upon by the trial judge. After the Respondent’s appeal to the Court of Appeal had been dismissed, res judicata applied. When a matter between two parties has been adjudicated by a court of competent jurisdiction, they are not permitted to litigate once more the res judicata, as the judgment becomes the truth between such parties. An estoppel per rem judicatum has been created as a result: Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189. Page 9 of 10 [23] In the grounds of its application the Respondent did not allege fraud, illegality or that there was suppression of facts. The Respondent also did not submit that there was suppression of facts. However, the presiding judge took upon herself, based on affidavits in the application, to found that the Appellants had engaged in evasive conduct and wilful refusal to confirm that their members had in fact paid over all the sums set out in Exhibit “PHR-3”. In referring to the inherent jurisdiction of the court, she ruled that the doctrine of res judicata did not apply as both parties had an equal duty to disclose the facts and neither party could hold onto a judgment that was obtained by suppression of a vital fact and went on to say that it would be unjust for the Respondent to pay the Appellants monies which had not been paid for by the Plaintiffs’ members. Even if the suppression of a vital fact tantamount to fraud, the Respondent should file a fresh action to impeach the judgment given on 17.6.2013. Her finding that there was suppression of a vital fact was against the weight of the evidence. [24] She failed to appreciate the central argument on the availability of the inherent jurisdiction of the High Court. The court’s inherent jurisdiction is not unfettered. The phrase “in the interest of justice” upon which the inherent jurisdiction of the court is anchored on must, with respect, be interpreted within the boundary of the law: Daud v Ibrahim [1961] 1 MLJ
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43. [25] One High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. In deciding as she did, and ignoring the decision of the Court of Appeal in this case, she was without jurisdiction and had erred: see Badiaddin bin Mohd Mahidin & Page 10 of 10 Anor v Arab Malaysia Finance Bhd [1998] 1 MLJ 393; CIMB Investment Bank Bhd v Metroplex Holdings Sdn Bhd (2014) 9 CLJ 1012. [26] Further, the Respondent did not apply for fresh evidence to be admitted on the ground that the new evidence was not available and that the fresh evidence could have had a determining influence upon the decision of the trial judge. CONCLUSION [27] For the reasons given, we are unanimous in our decision that the appeal is allowed and the Order of the presiding judge given on 29.5.2017 is set aside. The Respondent shall pay costs of RM10,000.00 subject to allocatur and the deposit to be refunded to the Appellants. Dated : 19th July 2018 Signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya Counsel For Appellants : Joseph Yeo with Khoo Kah Yong Messrs. B B Teh For Respondent : Porres Royan with Rutheran Sivagnanam Messrs. R. Sivagnanam& Assoc.
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