1. WAN MOHAMAD BIN WAN YUSOF [mendakwa sebagai ibu bapa v KOGULABALAN A/L SUBRAMANIAM (MT 6-12-386/2007)

WAN MOHAMAD BIN WAN YUSOF [mendakwa sebagai ibu bapa

ESAH BINTI MOHAMAD yang sah dan orang tanggungan WAN ALIAS BIN WAN MOHAMAD, si mati] … PERAYU-PERAYU/PLAINTIF-PLAINTIF DAN KOGULABALAN A/L SUBRAMANIAM … RESPONDEN/DEFENDAN 2 GROUND OF JUDGMENT Introduction [1] This is an appeal on the Senior Assistant Registrar’s decision which dismissed the Appellant’s (Plaintiff) bill of costs on the ground that it was filed after six years. Facts [2] Based on a tort action, a road accident by the Plaintiff who was the parents of the deceased, against the Defendant at the Sessions Court, the Session Judge held that the Defendant was liable for the accident and awarded damages to the Plaintiffs. The Plaintiffs appealed to the High Court on the decision of the Sessions Court on quantum which allowed Plaintiff’s appeal on 13.2.2009 to increase the award from RM14,400.00 to RM34,560.00 for quantum and ordered the cost be assessed by the Senior Assistant Registrar. [3] The Plaintiff filed their bill of costs on 22.1.2016 where the Defendant objected on all 243 items on principle and quantum. The Senior Assistant Registrar decided on 29.6.2016 that the application for bill of costs had passed the limitation period of six years under section 6(1) of Limitation Act 1953 and dismissed the Plaintiff’s application. Plaintiff’s case [4] Briefly, the learned counsel for the Plaintiff submitted that the Senior Assistant Registrar has grossly erred in dismissing the Plaintiff’s 3 bill of costs and that the Senior Assistant Registrar had failed to take into account the issues in relation to section 6(1) and section 6(3) of the Limitation Act 1953 and Order 59 of the Rules of Court 2012. [5] The Plaintiff’s counsel averred that section 6 of the Limitation Act 1953 does not apply to bill of costs as there is a difference between an action which is a suit or any other proceedings in Court and bill of costs. The counsel for the Plaintiff relied on authorities which decided that bill of costs is not subjected to limitation, in the case of Guannex Leasing Sdn Bhd v Sin Fatt Brother Construction & Ors [2002] 6 CLJ 433, the case of Soo Chow Lai v Tan Ah Tong & Anor [2004] 7 CLJ 58 and the case of Abdul Halim bin Rashid & 1 lagi v Ismail bin Abdul Hamid & 1 lagi (Guaman Sivil No: 1-53-321-1999). [6] The counsel averred that a bill of costs is a consequential proceedings to carry out the terms of the Judgment. The counsel for the Plaintiff also submitted that the bill of cost is not based on contract, it is a judgment of the court or was a proceeding to enforce an award. [7] It was submitted that the Senior Assistant Registrar was erred in relying on the case of Punithavathi Ponniah v Ganendra Torquil Ponnusamy Ganendra & Satu Lagi [2014] 8 CLJ 735. In addition, it was submitted that the Defendant’s part failed to explain the prejudice underlying the delay of the Plaintiff’s application for bill of costs. Defendant’s case [8] The learned counsel for the Defendant contended that the Plaintiff simply cannot taxed its costs without taking heed of any limitation period. 4 The counsel submitted that the law under section 6(1) of the Limitation Act 1953 applies which is the time permitted would be six years. [9] The counsel for the Defendant submitted that this bill of cost was from a claim where the High Court ordered for the taxation of cost since 13.11.2009 and therefore is subjected to the limitation period of six years under section 6(1)(a) of Limitation Act 1953 and following the Court of Appeal case of Punithavathi Ponniah v Ganendra Torquil Ponnusamy Ganendra Dan Satu Lagi [2014] 8 CLJ 735. [10] It was submitted by the Defendant’s counsel that following section 6(1)(a) of Limitation Act 1953, the six years would have lapsed which is on 13.11.2015 from the date of the Shah Alam High Court order of 13.11.2009. The counsel for the Defendant averred that although the facts of the case of Punithavathi (supra) differs from the current case, the ratio decidendi of Punithavathi (supra) case on taxation of cost applies. The counsel also referred to the case of Guannex (supra) where taxation of cost is an action as defined under section 2 of Limitation Act 1953 and argued that on this basis, if the Plaintiff chose to resort to taxation, they should have brought taxation proceedings earlier. [11] The counsel for the Defendant also averred that legally, in the alternative, the Defendant objected to the getting-up costs as demanded by the Plaintiff of RM100,000.00, as too excessive and unfair. The Defendant’s counsel contended that the cost awarded in running down cases are not more than RM5,000.00, referring to the Notice of Action No. 12A-476-2002 and further submitted that the Plaintiff was represented by another counsel appointed by Plaintiff’s solicitor where 5 the fee would be between the legal firm and the counsel representing the Plaintiff and it would be unfair to include others as getting-up costs. The counsel referred to a number of cases pointing out that in running down cases the legal fees should not be unduly inflated: Siti Juliana Suen Abdullah & Ors v Sungei Wang Properties Sdn Bhd & Ors [2009] 3 CLJ 592; Pang Kok v Leong Fock Hap & Anor [1997] 1 CLJ Supp 232; Canopee Investment Pte Ltd & Ors v Landmarks Holdings Bhd & Ors [1990] 1 MLJ 292. THE COURT’S FINDING [12] The matter before me involves an issue whether the application to tax the bill of costs falls within section 6(1) of Limitation Act 1953. Reverting to the facts, the award ordered by the High Court was on 13.11.2009 for the cost to be assessed by the Senior Assistant Registrar and the Plaintiff only filed to the Defendant’s counsel on 22.1.2016. Factually, there was a delay of more than six years without prior explanation. [13] This Court holds the view that where the ROC 2012 does not specifically state the fixed period in filing and serving the bill of costs, it has been the courts’ objective that there should not be unreasonable delay. The language of the Rules of High Court 1980, Order 59 r.7(2)(c) that was referred in the High Court case of Sime Finance Ltd v Robin Woon Kim Yan [1997] 2 CLJ Supp 370 requires that an applicant should not delay taxation proceedings unnecessarily. [14] Albeit a successful party is entitled to the award of costs, the court may exercise its discretion to disallow costs in accordance to established 6 principles and to the facts of the case: Chen Chow Lek v Tan Yew Lai [1983] 1 MLJ 170, FC; Scherer v Counting Instruments Ltd [1986] 2 All ER 529, CA. In the case of Malite Sdn Bhd v Abdul Karim bin Gendut [1981] 2 MLJ 29, FC, the successful appellants were ordered to pay the costs of the appeal and the court below where there was a delay on their part in applying to add a co-plaintiff and to amend their statement of claim. [15] I viewed that the delay in this case was sizeable and its character provided cogent reason not to exercise the discretion in Plaintiff’s favour. I now turn to the limitation period provided under the law. Section 6(1) of Limitation Act 1953 states that, “(1) Save as hereinafter provided the following action shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture. “ The word ‘action’ has been defined under section 2 of Limitation Act 1953 as “… includes a suit or any other proceeding in a court of law;” [16] Based on the ratio decidendi in the Court of Appeal decision of Punithavathi (supra), the taxation of costs deriving from an action founded on tort, can be described as a proceeding in a court and 7 therefore would be governed by the period curtailed under the Limitation Act 1953. [17] Therefore, reading section 6(1)(a) of Limitation Act 1953 and following the Court of Appeal case of Punithavathi (supra), the bill of costs comes within the meaning of ‘action’ as defined under section 2 of Limitation Act 1953, is part of court’s proceeding and the Plaintiff had filed its bill of costs after the lapse of six years. In light of the above reasons, I dismiss the appeal with cost. Dated: 4 December 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 8 COUNSEL FOR THE APPELLANT/PLAINTIFF DATO’ BRIJNANDAN SINGH BHAR ANGELA BONG YOKE MAY Tetuan Brijnandan Singh Bhar & Co Suite 5, 11th Floor Menara KLH, Jalan Sultan Ismail 50250 Kuala Lumpur [Ref: BSB/G.DORAI & CO/2008/15/KL] Tel: 03-2142 8134 Faks:03-2141 3981 COUNSEL FOR THE RESPONDENT/DEFENDANT THOMAS MATHEWS Tetuan Thomas Bala & Associates No. 77B, Tingkat 2, Jalan 1/12 46000 Petaling Jaya Selangor Darul Ehsan [Ref: TBA-1179-2002-PO T/r]