Kempadang Bersatu Sdn Bhd v Perkayuan O.K.S. No. 2 Sdn Bhd (03(f)-1-01/2017(D))

The Appellant, Kempadang Bersatu Sdn Bhd (Kempadang) was granted leave by the order of this Court dated 5.1.2017 to appeal the decision of the Court of Appeal dated 29.08.2016 on the following question: Whether an order of a High Court remitting the case back to the Deputy Registrar for damages to be reassessed is a final order which is appealable.

The Respondent, Perkayuan O.K.S no. 2 Sdn Bhd (Perkayuan) entered into an agreement with the Kelantan State Economic Development Corporation (“KSEDC”) on 24.12.1981 (First KSEDC Agreement), whereby Perkayuan was granted the right and privileges to fell and log and remove timber from the concession area.

However on 12.12.1998, KSEDC terminated the First KSEDC Agreement on grounds that Perkayuan had breached clause 18 of 3 the same. Perkayuan filed a suit against KSEDC via Civil Suit No. 21-1-1989. The High Court dismissed Perkayuan’s action.

However, by an order of the Federal Court dated 24.2.1995, the First KSEDC Agreement was revived. (see Perkayuan OKS No.2 Sdn Bhd v Kelantan SEDC [1995] 1 MLJ).

Consequently, Perkayuan entered into an agreement with KSEDC dated 26.9.2002 (the Second KSEDC Agreement).

In the meantime, Perkayuan entered into two agreements with Kempadang dated 3.4.1987 and 24.5.1988. Perkayuan engaged Kempadang as a contractor to fell logs and remove timber from the contract area.

A dispute arose, when Kempadang got wind off Perkayuan’s contract with a third party contractor to carry out logging in the timber concession area. It was contended by Kempadang that based on the 1987 and 1988 Agreements, the contract work belonged to them (Kempadang).

Kempadang then filed the present action against Perkayuan for, inter alia, a declaration that Kempadang had the right to carry out logging in the timber concession area and that the agreement 4 entered between Perkayuan and the third party contractor was void.

On 7.7.2010, after a full trial, the High Court Judge gave judgment in favour of Kempadang and ordered that damages be assessed. The Deputy Registrar awarded damages in the sum of RM303,627.10 to be paid by Perkayuan to Kempadang.

Perkayuan filed an application to set aside the order of the Registrar on damages, which was then dismissed by the Deputy Registrar. On appeal to the judge in chambers, the learned High Court Judge affirmed the Deputy Registrar’s decision. Perkayuan then took a further appeal to the Court of Appeal.

The Court of Appeal Order dated 22.3.2012 By an Order dated 22.3.2012, the Court of Appeal allowed Perkayuan’s appeal in part and set aside the orders granted by the trial judge as per paragraph 21(a)-(g) of Kempadang’s statement of claim. The Court agreed with the finding of the trial judge that Perkayuan was in breach of the 1988 Agreement when it entered into an agreement with the third party. However the orders granted by the trial judge as per paragraph 21(a)-(g) of the 5 Statement of claim were found to be inappropriate since the third party had acquired rights to fell log in the remaining area for logging. In lieu of the prayers in paragraph 21, the Court of Appeal granted damages to Kempadang, to be assessed based on the acreage and land for logging, having regard to clause 6 of the 1988 Agreement on expenses and profits only. Of significance is Minute 3 of the order of the Court of Appeal which reads: “Responden menaksirkan gantirugi hanya berdasarkan pada keluasan kawasan dan pembalakan di bawah Perjanjian Lesen Pembalakan bertarikh 24.12.1981 dan Perjanjian Lesen Pembalakan bertarikh 26.9.2002 dan hanya berdasarkan kepada perbelanjaan dan keuntungan seperti yang diperuntukkan di bawah Klausa 6 Perjanjian Lesen Pembalakan bertarikh 25.5.1988.” Translation: The Respondent (Kempadang) is to have its damages assessed based on the logging area pursuant to the KSEDC Agreement and Second KSEDC Agreement and based only on the expenditure and profit as provided for in clause 6 of the KSEDC Agreement

Assessment of damages Following Minute 3 of the order of the Court of Appeal, the matter reverted to the Deputy Registrar of the High Court for assessment of damages. On 18.10.2015, the Deputy Registrar dismissed Kempadang’s claim for damages on the ground that damages 6 had not been proven. Aggrieved, Kempadang appealed to the Judge in chambers.

DECISION OF THE LEARNED JUDICIAL COMMISSIONER (JC) On 26.1.2016, the learned JC allowed Kempadang’s appeal and set aside the decision of the Deputy Registrar on damages. The learned JC held that the Deputy Registrar failed to abide by Minute 3 of the Court of Appeal, which granted damages to Kempadang, which by the same token, failed to observe the principle of stare decisis. As a result, the learned JC ordered that Kempadang’s damages be assessed again before a different Deputy Registrar. Aggrieved, Perkayuan appealed to the Court of Appeal.

DECISION OF THE COURT OF APPEAL Before the Court of Appeal, counsel for Kempadang raised only one issue to oppose the appeal i.e. that the learned JC’s order was not a final decision as defined by section 3 of the Courts of Judicature Act 1964 (the CJA) and was therefore not appealable. Kempadang said that the learned JC’s order was a ruling and that a ruling is not a court decision since it does not finally dispose the 7 rights of parties and thus it is non-appealable. However, the Court of Appeal disagreed with Kempadang’s argument and held that the appeal was competent, i.e. the learned JC’s order was appealable.

On the merits of the appeal, the Court of Appeal allowed Perkayuan’s appeal, set aside the learned JC”s order and awarded nominal damages of RM10,000.000 to Kempadang. It also held that Kempadang had been given the opportunity to produce its evidence at the hearing of the assessment of damages yet it failed to prove the amount of damages claimed. Therefore the learned JC had no basis in making an order for reassessment of damages. In the circumstance the learned JC ought to have granted Kempadang nominal damages.

THE APPEAL BEFORE THE FEDERAL COURT Referring to the question of law posed before this Court, the issue in the appeal lies in the construction to be given to subsection 67(1) of the CJA. The said provision confers on the Court of Appeal jurisdiction to hear and determine civil appeals from any judgment or order of the High Court made in the exercise of its original or of its appellate jurisdiction. 8

Subsection 67(1) of the CJA reads:

Jurisdiction to hear and determine civil appeals

APPELLANT’S SUBMISSION The thrust of Kempadang’s argument is that the words “judgment” and “order” in section 67 of the CJA are to be read in the light of section 3 of the CJA.

The relevant provision of section 3 reads: "decision" means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties;

Applying section 3 of the CJA to the issue at hand, counsel for Kempadang contended that the decision of the learned JC ordering damages to be reassessed before a different Deputy Registrar is not one which finally disposes of the rights of the parties. This renders the decision non-appealable. The following 9 authorities were cited in support: Datuk Seri Tiong King Sing v Datuk Seri Ong Tee Keat & Anor [2015] 1 MLJ 847; Christopher ak Bandi @ Josny v Tumbung ak Akis & Anor (Jamil bin Sindi, third party) [2016] 4 MLJ 100.

RESPONDENT’S SUBMISSION However Counsel for Perkayuan took the position that the absence of the word “decision” in subsection 67(1) of the CJA renders section 3 inapplicable; that the words “judgment” and “order” in section 67 of the CJA are specific words and ought not be read within the context of “decision” in section 3 of the CJA.

It was further submitted that the meaning of the word “decision” in section 3 of the CJA only applies to criminal appeals. Unlike subsection 67(1), section 50 of the CJA specifically states that “in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court…” (emphasis added).

Perkayuan cited the decision of the Court of Appeal in Tycoon Realty Sdn Bhd v Senwara Development Sdn Bhd - [1999] 2 MLJ 696 where NH Chan JCA held that: 10 “It is to be noted that the word 'decision' is not used in s 67(1), so that, there is no compelling reason to refer to s 3 of the Act for its meaning as is in the case of criminal appeals. That being so, the Court of Appeal has jurisdiction to hear appeals 'from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction'. The phrase 'from any judgment or order' is not to be restricted to the meaning given to the word 'decision' in the current version of s 3. This is because, in s 67, civil appeals to the Court of Appeal are from 'any judgment or order' of any High Court, whereas, in the case of criminal appeals they are against 'any decision' made by the High Court. There is no compelling reason to extend the meaning of the words 'any judgment or order' to mean a judgment or order which would finally dispose of the rights of the parties. It is not the business of a court of law to put words into a statutory provision which are not there because to do so would be intruding into the domain of the legislature.”

It was further submitted that the word “decision” in section 3 of the CJA was amended by the legislature via Amendment Act A1031 in 1998. Accordingly, if the legislature intends for the amendment to apply to civil appeals, subsection 67(1) would have to be amended. Otherwise, to apply section 3 to section 67(1) would clearly be to add words into a statutory provision which is not the duty of the court. OUR DECISION Construction of Subsection 67(1) of the CJA 11

Subsection 67(1) is a general provision conferring jurisdiction on the Court of Appeal to hear and determine appeals against the decision of the High Courts. It states that “any judgment or order” of the High Court which is made in the exercise of its original or of its appellate jurisdiction is appealable. However this right of appeal is always subject to any statutory provisions in the CJA or other statutes limiting appeals. On this basis, the provision of section 67(1) of the CJA is to be read together with the provisions in the CJA and other statutes which impose terms and conditions of an appeal.

Civil matters which are not appealable to the Court of Appeal are listed in subsection 68(1). For instance, there can be no appeal against a judgment or order made by consent of parties or a judgment or order which has been declared final by a statute. Another restriction to appeal can be discerned from the provision of section 3 of the CJA when it qualifies the word “decision” as opposed to a “ruling” of the court.

Section 3 is not a specific provision limiting appeals. Section 3 is the interpretation section of the CJA. It merely defines what a decision is, for the purpose of the CJA. 12

On the interpretation of the word “decision”, the relevant paragraph in section 3 is divided into two parts. The first part identifies “decision” in the form of “judgment, sentence or order” of the court. It provides an extensional definition of the word decision by listing instances of the set of things included therein. In other words the concept of decision is not explained but the objects that fall under this word are listed.

The second part of the paragraph qualifies that these forms of decision do not include “any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties”. It is noted that the second part was inserted in section 3 by Act A1031 which came into effect on 31 July 1998. Based on the said provision, at what juncture a ruling is issued plays a vital role in determining whether such an order is a ruling within the context of section 3. There must be a trial in existence or a hearing and that the order is issued in the course of that trial or hearing. Secondly, the ruling must not have the effect of disposing the final rights of the parties. (our emphasis)

As regards the application of section 3 of the CJA, Counsel for Perkayuan contended that section 3 applies to criminal appeals but not to civil appeals. The reason is that, unlike subsection 13 67(1) of the CJA, the word “decision” appears in the provision of section 50 of the CJA, on the appellate jurisdiction of the Court of Appeal to determine criminal appeals.

In the absence of the word “decision” in subsection 67(1) of the CJA, the question is whether the phrase “judgment or order” mentioned in subsection 67(1) of the CJA is a “decision” within the context of section 3 of the CJA. Putting it in another way, the question is whether the exception provided in section 3, which excludes a “ruling” from the meaning of decision, should be extended to section 67(1), thus restricting any appeal to be filed against any ruling of the High Court?

It bears repeating that the words “judgment” and “order” are not defined in section 3 of the CJA. Nevertheless they appear in section 3, to form the meaning of “decision”. The omission of the word “decision” in subsection 67(1) of the CJA is capable of being understood. Section 3 says that “decision” means “judgment, sentence or order…”. It is seen that by the words “judgment” and “order”, subsection 67(1) indicates the form a “decision” will take in section 3 of the CJA where the word “sentence” is absent. This is appropriate since, a civil court does not impose a sentence in its decision. A sentence is a decision given by a judge sitting in a 14 criminal court upon conviction of a criminal charge. Thus the words in subsection 67(1) are clear and unambiguous and the court must give effect to its meaning.

The relationship between section 3 on the meaning of the word “decision” and the provisions on appeals in the CJA is apparent when one looks at the purpose of the amendment made by Act A1031 to the definition of the word "decision" in section 3.

The courts have always been inclined to take a purposive and literal construction of a provision in a statute. In this regard, the literal meaning of an Act will be given where that meaning is in accordance with the legislative purpose (see the decisions in Tan Kim Chuan & Anor v. Chandu Nair [1991] 2 MLJ 42, United Hokkien Cemetries Penang v. Majlis Perbandaraan Pulau Pinang [1979] 2 MLJ 121; Foo Loke Ying & Anor v. Television Broadcasts Ltd & Ors [1985] 2 MLJ 35; Vengadasalam v. Khor Soon Weng & Ors [1985] 2 MLJ 449).

The same principle has been reiterated by the Federal Court recently, in the case of Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Berhad v Kesatuan Kebangsaan Pekerja-pekerja Bank & Anor - [2017] MLJU 260. Balia FCJ, held that: 15 “The function of a court when construing an Act of Parliament is primarily to interpret the statute in order to ascertain what the legislative intent is. And this is primarily done by reference to the words used in the provision.”

The intention of the legislature when drafting the amendment to section 3 was that the amendment should serve as a filter process for appeals. It must be emphasised that for this purpose, section 3 is intended to be read together with subsection 67(1) of the CJA.

This is evident from the explanatory statement to the Bill of Act A1031 which reads: “2. Clause 2 seeks to amend section 3 of Act 91. At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts.”

The position on the amended section 3 of the CJA has been clearly set out in the decision of the Federal Court in the case of Dato’ Seri Anwar Ibrahim v PP [2010] 9 CLJ 625. (see also 16 Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public

Prosecutor [2014] 6 MLJ 831) In the case of Dato’ Seri Anwar Ibrahim (supra) at page 636 the court pointed out the underlying reasons for the amendment to the definition of "decision" in s 3 of the CJA which came into effect on 31 July 1998 in the following manner: "The underlying reason behind the amendment to the definition of "decision" in s. 3 of the CJA is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. Apart from that, the definition of "decision" by itself is sufficiently clear and it is the court's duty to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve as evident from the explanatory statement to the Bill which reads:

Clause 2 seeks to amend section 3 of Act 91. At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts. Quite apart from the explanatory statement to the Bill the definition of "decision" by itself, to our mind, is sufficiently clear, and it is the duty of the court to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always 17 raise the issue during the appeal, if any, to be filed after the trial process is brought to its conclusion."

At this juncture, it is noted that the decision of the Court of Appeal in Tycoon Realty Sdn Bhd (supra) which was relied on by Perkayuan failed to give regard to the purposive and literal construction of subsection 67(1) and section 3 of the CJA.

It is also noted that the case of Pentadbir Tanah Kuala Selangor v Maybank Islamic Berhad [2015] 9 CLJ 197 cited by the Court of Appeal in the present appeal is of no assistance.

Thus apart from the provision of subsection 67(1) of the CJA, it is apparent that Perkayuan’s appeal against the order of the learned JC is an appeal against a decision made by a judge in chambers which is governed by O56 r2 of the Rules of Court 2012 (RC 2012). The relevant provision reads: Appeal from Judge (O 56 r 2) Subject to section 68 of the Courts of Judicature Act 1964, a party may appeal to the Court of Appeal against any judgment, order or decision made by a Judge in Chambers.

The word “decision” is expressly stated in O56 r2 of the RC 2012 together with the words “judgment” and “order”. The definition of 18 the word “decision” in O56 r2 is not provided in the RC 2012. Generally the powers of the courts mentioned in the RC 2012 are conferred by the provisions provided in the CJA. Thus, in interpreting the word “decision” in O56 r2 of the RC 2012, resort must be had to the meaning given to the word “decision” in section 3 of the CJA.

In view of the above, we are unable to agree with the approach taken by learned counsel for Perkayuan, that the scope of a “decision” in section 3 is excluded from subsection 67(1) of the CJA. Subsection 67(1) of the CJA must be read together with section 3 of the CJA. Whether the decision of the learned JC ordering damages to be reassessed before a different Registrar is appealable?

The thrust of Kempadang’s argument is that, applying section 3 of the CJA, the decision of the learned JC in ordering damages to be reassessed is not a ruling which finally disposes the rights of the parties, thus rendering the decision non-appealable.

However, much emphasis was placed on this argument thus overlooking the question of at what juncture was the learned JC’s order made? It is critical to note that when scrutinising the word 19 “ruling” in section 3 of the CJA, it is important to examine at what juncture an order is made. This and the effect of such order is to be read conjunctively.

If an order was not made in the course of a trial or matter, regardless of the fact that it does not dispose of the rights of the parties, such an order is not a ruling as defined in section 3 of the Act and is therefore appealable. This was decided by the Court of Appeal in the case of Syarikat Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd - [2003] 2 MLJ 495. On the facts of the case, the Court of Appeal held that an appeal against the ruling of the registrar on the admissibility of certain documents in the course of a hearing for assessment of damages is incapable of appeal.

The Court of Appeal in the case of Datuk Seri Tiong King Sing v Datuk Seri Ong Tee Keat & Anor - [2015] 1 MLJ 847 had emphasised on the requirement of a ruling made in the course of a trial under section 3 of the CJA. In that case, during the trial of a defamation suit, a witness refused to disclose the identity of the 'sources' referred to in the defamatory article. As a result, the plaintiff made an application for an order to compel the witness to disclose the names and particulars of the 'sources'. The High 20 Court judge dismissed the plaintiff's application. Aggrieved, the plaintiff appealed against the High Court's decision. The Court of Appeal held that the plaintiff’s appeal was incompetent and thus non-appealable. It held that: “An important point which must not be overlooked is that encl 35 was filed and then determined by the learned High Court judge during the course of the trial, even as Joseph Sipalan was in the midst of giving his testimony. Viewed in this way, the fact that a formal application was filed should not make any difference to the matter at hand. What is of greater significance is at what juncture the said ruling was made? We agree with the submissions of learned counsel for Joseph Sipalan and the fourth defendant that in substance what was sought was a ruling by the learned High Court judge in the course of the trial as to whether Joseph Sipalan should be compelled to disclose the identity of the 'sources'.” (my emphasis)

In Wong Kie Chie & Ors v Kathryn Ma Wai Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals - [2017] 3 MLJ 350, the Court of Appeal held that a recusal order made by the judge before the commencement of trial is not a ruling within section 3 of the CJA, and is thus appealable. Vernon Ong JCA held that: “[43] According to the appeal record, the parties appeared before the learned judge on 18 January 2016 for the conduct of the cross-examination proceedings. After the parties had 21 introduced themselves and before the commencement of the proceedings the learned judge made his recusal order. Clearly, the recusal order was not made in the course of the trial or hearing within the meaning of s 3 of the CJA 1964. We are fortified in our view in that an order to that effect was subsequently drawn up and sealed by Senior Assistant Registrar of the High Court, Sibu. Accordingly, we hold that this court have the jurisdiction to hear and determine the appeals pursuant to s 67(1) of the CJA 1964.”

However it must be stated that not all orders given by the court pursuant to interlocutory applications filed by parties in the course of trial are non-appealable. In Mulpha International Bhd & Ors v Mula Holdings Sdn Bhd & Ors and other appeals - [2017] MLJU 445, it was held that the decision of the trial judge dismissing an application to strike out pleadings under O18 r 19 Rules of Court 2012, was not a ruling within the context of section 3 of the CJA although such application was filed in the course of the trial.

On this issue, the Court of Appeal applied a purposive approach in interpreting the phrase “in the course of trial or hearing” provided in section 3 of the CJA. Upon a perusal of the explanatory statement to the Bill of Amending Act A1031, the Court concluded that the amendment made to section 3 of the CJA sought to overcome the delay in the completion of a trial as a 22 result of appeals filed against rulings of a trial judge with respect to admissibility of “any evidence or document”.

It was then held that the word “ruling” in the context of section 3 of the CJA is to be limited to an objection raised by a party in the course of trial with regard to the admission of any evidence or document.

Abdul Rahman Sebli JCA in Mulpha Trading (supra) held that: “The word "ruling" appearing in section 3 of the CJA is not defined but in our view it refers to any ruling made in the course of a trial upon objection raised by any party to the proceedings. An example would be an objection to the admissibility of any evidence or document. [17] A decision by the trial judge to either uphold or overrule the objection would be a "ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties." Such decision is not a "judgment" or "order" within the meaning of section 67(1) read with section 3 of the CJA and is therefore not appealable. On the other hand, a decision made pursuant to an application under Order 18 rule 19 of the Rules is not such "ruling". [18] The rationale behind the amendment to the meaning of the word "decision" in section 3 of the CJA was explained by Arifin Zakaria CJ (Malaya) (as he then was) in Dato' Seri Anwar Ibrahim v PP [2010] 9 CLJ 625 in the following terms at page 636: "[24] The underlying reason behind the amendment to the definition of "decision" in s. 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. 23 This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill…”

It is noted that in Christopher Anak Bandi (supra), the Court of Appeal held that an application to amend pleadings filed in the course of a trial is a ruling within the context of section 3 and is thus non appealable. It was held that one needs to merely look at the provision of section 3 of the CJA with respect to the two requirements of a ruling which renders it non appealable.

Nevertheless, the decision of the Court in Christopher Anak Bandi (supra) must not be overstated. At the risk of repetition, the facts in Christopher Anak Bandi (supra) involved an application made by the plaintiff to amend its pleading in the course of trial. On this, the decision of the Court of Appeal was also made in the light of a recent decision of the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal (2015) 8 CLJ 1, which displaces the principles enunciated in Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd (1983) 1 CLJ 191, on amendment of pleadings, if such application is made at a later stage of proceedings. 24

In Christopher Anak Bandi (supra), David Wong Dak Wah JCA, held that: “[16] In our deliberation, we also find the recent decision of the Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal

Reverting to the facts of the present appeal, the order of the learned JC, remitting the matter to a different Registrar of the High Court for reassessment of damages was issued at the end 25 of the hearing of Kempadang’s appeal. It was not issued in the course of the hearing of the appeal. The Order of the High Court dated 26.1.2016, shows that after hearing both parties, the learned JC proceeded to dispose Kempadang’s appeal and set aside the decision of the Registrar dated 18.10.2015 on assessment of damages.

In view of the above, the order of the learned JC, remitting the matter to the Registrar of the High Court for reassessment of damages is not caught by the exclusion clause of the word “decision” in section 3 of the CJA and is therefore appealable.

At this juncture we would agree with the finding made by the Court of Appeal that the learned JC ought to have allowed Kempadang’s appeal in part by awarding nominal damages. Zamani A.Rahim JCA held that: “ It is obvious that the learned JC concurred with the Deputy Registrar that the plaintiff has failed to discharge its burden of proving the loss suffered as emphasised above. The learned JC was troubled by the fact that the Deputy Registrar did not award any amount of damages despite Minute 3 of the Order of this court, which to the learned JC thought that the plaintiff was entitled to some. In fact, the learned JC felt that at least nominal damages ought to have been awarded. Instead of allowing the appeal in part by awarding nominal damages, the learned JC clearly erroneous when he ordered that the Deputy Registrar’s Order dated 18.10.2015 be set 26 aside and damages to be assessed before different Deputy Registrar… In this respect, it is trite law that no new trial ought to be ordered unless the appellant in question had succeeded in making out a case of manifest injustice (see P.C. RM. L. Lechumanan Chettiar v A.L.S Sadayappa Chettiar [1953] 1 MLJ 45). In addition to the above, a new trial is undesirable and ought not to be ordered unless there is something crucial to a just decision in the case that can be established in the new trial but cannot be established on an assessment of the evidence. If the evidence are already before the court, such an order would not be granted (see Tan Ah Tong v Gee Boon Kee & Ors [2006] 2 MLJ 618).”

Conclusion In view of the above, the order of the learned JC remitting the case to a different Deputy Registrar for damages to be reassessed was not a ruling as described in section 3 of the CJA. Thus Perkayuan’s appeal against the decision of the learned JC was competent and properly brought before the Court of Appeal in view of subsection 67(1) and section 3 of the CJA.

The question in the appeal is answered in the affirmative. The appeal is dismissed with costs. 27 Dated : 7 November 2017. TAN SRI DATUK ZAINUN ALI Federal Court Judge Malaysia. Counsel For the Appellant: V. Rajadevan Pang Teck Yaw Solicitors For the Appellant: Messrs. Rajadevan & Associates Counsel For the Respondent : Ck Yeoh Solicitors For the Respondent : Messrs Ranjit Singh & Yeoh