Yap Kim Hin v Chua Boon Hock (W-02(IM)(NCvC)-682-04/2022)

LIM GEOK KIM (NRIC NO: 620430-10-6524) ... APPELLANTS

LIM KIEN HUAT (NRIC NO: 690526-08-5469) ... RESPONDENTS In the High Court of Malaya in Kuala Lumpur, Federal Territory Civil Suit No: WA-22NCvC-199-04/2020

Chua Boon Hock (NRIC. No: 660206-10-6497)

Chua Yok Sin (NRIC No: 591214-10-6693)

Lim Kien Huat (NRIC No: 690526-08-5469) ... Plaintiffs

Yap Kim Hin (NRIC No: 590821-10-5241)

Lim Geok Kim (NRIC No: 620430-10-6524) (HEARD TOGETHER WITH) BETWEEN

LIM GEOK KIM (NRIC NO: 620430-10-6524) AND

LIM KIEN HUAT (NRIC NO: 690526-08-5469) 1 ... RESPONDENTS [In the High Court of Malaya in Kuala Lumpur, Federal Territory Civil Suit No: WA-22NCvC-199-04/2020

Chua Boon Hock (NRIC: No: 660206-10-6497)

Chua Yok Sin (NRIC No: 591214-10-6693)

Lim Kien Huat (NRIC No: 690526-08-5469) ... Plaintiffs

Yap Kim Hin (NRIC No: 590821-10-5241)

Lim Geok Kim (NRIC No: 620430-10-6524) ... Defendants] CORAM: LEE SWEE SENG, JCA HADHARIAH SYED ISMAIL, JCA WONG KIAN KHEONG, JCA

For ease of reference, we shall refer to parties as they were in the High Court (HC).

Three plaintiffs (Plaintiffs) have filed a suit in the HC (Suit) against two defendants (Defendants) for, among others, an order of specific performance of a Sale and Purchase Agreement dated 24.2.2016 (SPA).

According to the SPA, among others, the Defendants as co-proprietors of a piece of land held under Grant 47136, Lot no. 4472, Mukim Ulu Langat, Ulu Langat District, Selangor (Land), had sold the Land at a price of RM2.6 million to five co-purchasers, namely, the Plaintiffs, Mr. Soo Teck Lee (Mr. Soo) and Ms. Lim Siew Kien (Ms. Lim).

The defence in the Suit had pleaded, among others, that the SPA was a sham agreement because the Land was actually used as a security for certain purchases between the parties.

The Defendants filed an application in the HC to strike out the Suit on the ground that the Plaintiffs had failed to join Mr. Soo and Ms. Lim as parties in the Suit (Defendants' Striking Out Application).

The learned HC Judge dismissed the Defendants' Striking Out Application with costs [HC's Dismissal (Defendants' Striking Out Application)].

The Defendants appealed to the Court of Appeal (CA) against the HC's Dismissal (Defendants' Striking Out Application) [Defendants $ ^{1} $ $ ^{1 \mathrm{st}} $ Appeal (CA)].

With regard to the Defendants' $ 1^{\mathrm{st}} $ Appeal (CA), the following order was made by CA on 25.8.2021 [CA's Order (25.8.2021)] , among others:

the Defendants' $ 1^{\mathrm{st}} $ Appeal (CA) was dismissed {Paragraph (a) [CA's Order (25.8.2021)]}; and

the HC's Dismissal (Defendants' Striking Out Application) was varied wherein the Plaintiffs were required to join Mr. Soo and Ms. Lim as co-plaintiffs or co-defendants in the Suit within 14 days from the date of CA's Order (25.8.2021) {14 Days Period [Paragraph (b)] and if the Plaintiffs fail to do so, the Suit shall stand as struck off {Paragraph (b) [CA's Order (25.8.2021)]}.

Pursuant to Paragraph (b) [CA's Order (25.8.2021)], on 2.9.2021 the Plaintiffs filed an application to join Mr. Soo and Ms. Lim as parties in the Suit [Plaintiffs' Joinder Application (HC)]. The Plaintiffs' Joinder Application (HC) was supported by an affidavit purportedly affirmed on 2.9.2021 by the second plaintiff $ (2^{nd}$ Plaintiff) before a Commissioner for Oaths, YM Tengku Fariddudin bin Tengku Sulaiman (CFO).

The Defendants objected to the Plaintiffs' Joinder Application (HC) on the ground that, among others, the $ 2^{n d} $ Plaintiff's affidavit had not been affirmed before the CFO.

The learned HC Judge struck out the Plaintiffs' Joinder Application (HC) with -

no order as to costs; and

liberty to file a fresh Plaintiffs' Joinder Application (HC) subject to "direction" (arahan) which may be obtained by the Plaintiffs from the CA with regard to the 14 Days Period [Paragraph (b)] (time period for the Plaintiffs to join Mr. Soo and Ms. Lim as parties in the Suit) [HC's Order (Plaintiffs' Joinder Application)].

The Defendants have filed an appeal to CA against the HC's Order (Plaintiffs' Joinder Application) [Defendants' $ 2^{n d} $ Appeal (CA)].

In the Defendants' 1 $ ^{st} $ Appeal (CA), the Defendants filed a notice of motion in court enclosure no. 19 [Enc. 19 (Defendants' 1 $ ^{st} $ Appeal)] for the following orders from the CA, among others:

an order to enforce Paragraph (b) [CA's Order (25.8.2021)]; and

an order for the Suit to be struck off.

The Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA) has sought for the CA to reverse the HC's Order (Plaintiffs' Joinder Application) and for the Suit to be struck out pursuant to Paragraph (b) [CA's Order (25.8.2021)].

As Enc. 19 (Defendants' $ 1^{\mathrm{st}} $ Appeal) and the Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA) concerned the same facts and issues, we have decided to hear together Enc. 19 (Defendants' $ 1^{\mathrm{st}} $ Appeal) and the Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA). C. Issues

The following three questions shall be decided in this judgment:

whether the CA is functus officio and cannot extend the 14 Days Period [Paragraph (b)]. This issue discusses the CA's discretionary power under r 93 read with r 1A of the Rules of the Court of Appeal 1994 (RCA);

can the CA vary Paragraph (b) [CA's Order (25.8.2021)] and order the Plaintiffs to file an application in the HC to join all relevant parties in the Suit within 14 days from the date of the order of this CA on 18.4.2023 (instead of the requirement for the Plaintiffs to obtain an order from the HC to join Mr. Soo and Ms. Lim in the Suit)? This concerns an interpretation of the purpose of CA's Order (25.8.2021); and

whether the CA can vary Paragraph (b) [CA's Order (25.8.2021)] pursuant to -

r105 RCA; and

s 69(4) and (5) of the Courts of Judicature Act 1964 (CJA); - without any appeal or application by the Plaintiffs to the CA.

We are not able to find any previous Malaysian case which has decided on the above questions. D. Whether CA is functus officio with regard to CA's Order (25.8.2021)

The first question to be determined is whether this CA-

has the discretionary power to extend the 14 Days Period [Paragraph (b)]; or

is barred by the functus officio doctrine from revisiting the 14 Days Period [Paragraph (b)].

The doctrine of functus officio has been explained by Nallini Pathmanathan FCJ in the Federal Court case of Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237, at [13], as follows: [13] It is settled law that once a court has pronounced a final order it does not possess the authority to re-open, alter, amend and supplement the final order and judgment relating to the dispute it has adjudicated upon. This rule, known as the doctrine of functus officio, stems from the principle of finality in litigation. There would be great uncertainty and chaos if courts were permitted to review and reconsider final orders and judgments." (emphasis added).

We reproduce below rr 1A and 93 RCA: "RCA r 1A Court or Judge shall have regard to justice In administering any of [RCA] herein, the Court or a Judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of [RCA] herein. r 93. Power of Court or Judge to enlarge or abridge time. The Court or a Judge shall have power to enlarge or abridge the time appointed by these Rules, or fix by an order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that when the time for delivering any pleading or document or filing any affidavit, answer or document, or doing any act is or has been fixed or limited by any of these Rules or by any direction on or under the summons for directions or by an order of the Court or a Judge the costs of any application to extend such time and of any order made thereon shall be borne by the party making such application." (emphasis added).

We have no hesitation to decide that the CA has a discretionary power to extend any time period which has been previously ordered by the CA. Such a discretionary power is clear from r 93 RCA (the CA "shall have power to ... fix by an order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require"). Furthermore, by virtue of r 1A RCA, in the application of r 93 RCA, the CA "shall have regard to the justice of the particular case and not only to the technical noncompliance of any of [RCA].

The functus officio doctrine is provided by case law and cannot override written law. Accordingly, this CA is not functus officio and has a discretionary power under r 93 read with r 1A RCA to extend the 14 Days Period [Paragraph (b)] in the interest of justice. In paragraph 26 below, we provide our reasons for extending the 14 Days Period [Paragraph (b)] as well as to why Paragraph (b) [CA's Order (25.8.2021)] should be varied by this court. E. What was purpose of CA's Order (25.8.2021)?

With regard to the construction of CA's Order (25.8.2021), we adopt the following approach laid down by Chong Siew Fai CJ (Sabah & Sarawak) in the Federal Court case of Newacres Sdn Bhd v Sri Alam Sdn Bhd [2000] 2 MLJ 353, at 374: "In Re Strand Music Hall Co Ltd (1865) 35 Beav 153, Sir John Romilly MR observed (at p 158): The proper mode of construing any written instrument is to give effect to every part of it, if this be possible, and not to strike out or nullify one clause in a deed, unless it be impossible to reconcile it with another and more express clause in the same deed. Though the above quoted passage related to a deed, the declared principle applies, in my view, equally to a court order." (emphasis added).

We are of the considered view that the purpose of CA's Order (25.8.2021) is as follows:

by reason of Paragraph (a) [CA's Order (25.8.2021)], the CA had decided that notwithstanding the Plaintiffs' non-joinder of Mr. Soo and Ms. Lim in the Suit [Plaintiff's Non-Joinder (Mr. Soo and Ms. Lim)], the CA did not strike out the Suit. It is therefore clear that the purpose of Paragraph (a) [CA's Order (25.8.2021)] is for the trial of the Suit to proceed despite the Plaintiff's Non-Joinder (Mr. Soo and Ms. Lim) {Purpose [Paragraph (a)]}. The Purpose [Paragraph (a)] is in consonance with O 15 r 6(1) of the Rules of Court 2012 which provides as follows- "A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter." (emphasis added);

Paragraph (b) [CA's Order (25.8.2021)] required the Plaintiffs to join Mr. Soo and Ms. Lim in the Suit. The purpose of Paragraph (b) [CA's Order (25.8.2021)] is to ensure finality in litigation, namely, the court's final decision in the Suit [Court's Final Decision (Suit)] shall not only bind the Plaintiffs and Defendants but shall also bind Mr. Soo and Ms. Lim {Purpose [Paragraph (b)]}. If the CA did not order Paragraph (b) [CA's Order (25.8.2021)], Mr. Soo and Ms. Lim may subsequently impugn the validity of the Court's Final Decision (Suit) on the ground that Mr. Soo and Ms. Lim have not been afforded their right of hearing in accordance with the second rule of natural justice;

Paragraph (b) [CA's Order (25.8.2021)] pre-supposed that upon the filing of the Plaintiffs' Joinder Application (HC), the Defendants would not object thereto and the HC would thereafter make an order to join Mr. Soo and Ms. Lim as parties in the Suit (Joinder Order). This was because if the Defendants were to object to the Plaintiffs' Joinder Application (HC) for any reason (as had happened in this case), the Plaintiffs could not be expected to obtain a Joinder Order within 14 days from the date of CA's Order (25.8.2021). In view of the above interpretation of Paragraph (b) [CA's Order (25.8.2021)] , if the Defendants were to object to the Plaintiffs' Joinder Application (HC), Paragraph (b) [CA's Order (25.8.2021)] could not thereafter be invoked by the Defendants to strike out the Suit. If otherwise, this will defeat the Purpose [Paragraph (a)] and the Suit will be struck out due to a mere technicality, namely, the Plaintiffs' failure to obtain a Joinder Order within 14 days from the date of CA's Order (25.8.2021); and

as decided in Newacres, the above interpretation will "give effect to every part" of CA's Order (25.8.2021), namely, Paragraph (a) [CA's Order (25.8.2021)] and Paragraph (b) [CA's Order (25.8.2021)]. F. Whether CA can vary Paragraph (b) [CA's Order (25.8.2021)]

To decide Enc. 19 (Defendants' 1 $ ^{st} $ Appeal) and the Defendants' $ 2^{nd} $ Appeal (CA), we have no hesitation to exercise our discretion to vary Paragraph (b) [CA's Order (25.8.2021)] as follows - the Plaintiffs shall file an application in the HC to join all relevant parties in the Suit within 14 days from the date of the order of this CA (18.4.2023) and if the Plaintiffs fail to do so, the Suit shall be struck out {Variation [Paragraph (b)]}.

Our reasons for the Variation [Paragraph (b)] are as follows:

as explained in the above paragraph 24, the Variation [Paragraph (b)] gives effect to the CA's Order (25.8.2021), especially Purpose [Paragraph (a)] and Purpose [Paragraph (b)];

if the Variation [Paragraph (b)] is not made, there will be an injustice to the Plaintiffs because-

the Plaintiffs' Joinder Application (HC) was made well within the 14 Days Period [Paragraph (b)] but the Defendants had objected to the Plaintiffs' Joinder Application (HC) [Defendants' Objection (Plaintiffs' Joinder Application)]. The Defendants' Objection (Plaintiffs' Joinder Application) was the sole reason why the previous Paragraph (b) [CA's Order (25.8.2021)] could not be fulfilled by the Plaintiffs; and

the Defendants would be able to strike out the Suit without a trial. In other words, the Plaintiffs would be deprived of their constitutional right of access to justice without the Suit being tried and decided by the court on its merits. The CA has an inherent power (as declared by r 105 RCA) "to make any order as may be necessary to prevent injustice". According to r 105 RCA-r 105 Inherent powers of the Court. For the avoidance of doubt, it is declared that nothing in these [RCA] shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court." (emphasis added). The Variation [Paragraph (b)] is made by us in the interest of justice pursuant to CA's inherent power; and

with regard to the Defendants' $ 2^{\mathrm{n d}} $ Appeal (CA), the CA is empowered by s 69(4) and (5) CJA to make the Variation [Paragraph (b)]. We reproduce below s 69(4) and (5) CJA- "s 69 Hearing of appeals.

The Court of Appeal may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties although the respondents or parties have not appealed from or complained of the decision." (emphasis added); and

the Variation [Paragraph (b)] does not occasion any injustice to the Defendants. The Defendants have the right to resist to the hilt the Plaintiffs' second application in the HC to join all relevant parties in the Suit [Plaintiffs' 2 $ ^{nd} $ Joinder Application (HC)] . If the Defendants are dissatisfied with the HC's decision in the Plaintiffs' 2 $ ^{nd} $ Joinder Application (HC), they have a further right to appeal to CA thereafter. G. Can CA make Variation [Paragraph (b)] without any application or appeal by Plaintiffs?

Firstly, the above judgment is given pursuant to this court's decision in Enc. 19 (Defendants' $ 1^{\mathrm{st}} $ Appeal) and Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA). In other words, the CA is not acting on its own motion in making the Variation [Paragraph (b)].

Secondly, as explained in the above sub-paragraph 26(2), the CA is only exercising its inherent power to make the Variation [Paragraph (b)]. We are unable to find any case in Malaysia and the Commonwealth which has decided that the court can only exercise its inherent power when there is a specific application or particular appeal which has been filed by a party for the court to invoke its inherent power.

Lastly, in view of the Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA), notwithstanding the fact that the Plaintiffs have not applied or appealed to CA, CA is empowered under s 69(4) and (5) CJA to make the Variation [Paragraph (b)].

It is not disputed that CA has a wide discretion to award costs in all proceedings before the CA pursuant to s 70 CJA read together with rr 54 and 96 RCA.

We unhesitatingly order the Plaintiffs to pay to the Defendants costs for Enc. 19 (Defendants' $ 1^{\mathrm{st}} $ Appeal) and Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA). This is because if the Plaintiffs had at the commencement of the Suit joined Mr. Soo and Ms. Lim, either as co-plaintiffs or codefendants, the Defendants' Striking Out Application and all subsequent proceedings thereto would have been unnecessary. I. Conclusion

Premised on the above reasons, we make the following orders for Enc.19 (Defendants' $ 1^{\mathrm{st}} $ Appeal) and Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA):

Enc.19 (Defendants' $ 1^{\mathrm{st}} $ Appeal) is dismissed with costs of RM5,000.00 to be paid by the Plaintiffs to the Defendants (subject to allocatur fee);

the Plaintiffs shall file an application to join all relevant parties in the HC within 14 days from the date of this order of CA (18.4.2023) and upon such a failure, the Suit shall be struck out; and

the Defendants' $ 2^{\mathrm{nd}} $ Appeal (CA) is dismissed with costs of RM5,000.00 to be paid by the Plaintiffs to the Defendants (subject to allocatur fee). DATE: 4 DECEMBER 2023 WONG KIAN KHEONG Judge Court of Appeal, Malaysia For the Appellants: Mr. Justin Voon Thiam Yu & Ms. Caroline Lim Seah Le (Messrs Justin Voon Chooi & Wing) For the Respondents: Mr. Lim Kien Huat & Ms. Kathy Wong Ker Sing (Messrs. Lee & Lim)