Nautical Supreme Sdn Bhd v Azimuth Ship Management Sdn Bhd (WA-22NCVC-196-04/2017)

The Defendant applied under Order 92 Rule 4 of the Rules of Court 2012 (the Rules) for a declaration to clarify and give effect to a judgement given by the High Court. S/N ylyeTb1t10qNi69j7As0Sg

Order 92 Rule 4 of the Rules states as follows: Inherent powers of the Court (O. 92 r. 4) For the removal of doubt it is hereby declared that nothing in these Rules 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. The background

Without going into the facts of the case it is suffice to state here that the Plaintiff’s claim against the Defendant was allowed by the High Court by a judgement dated 28/2/2019.

The relevant part of the judgement which the Plaintiff is seeking a declaration reads as follows:

(A) Penghakiman dimasuk terhadap Defendant bahawa Defendan membayar Plaintiff; -

jumlah US$ 76,500;

(ii) faedah ke atas kadar 5% setahun ketas jumlah damal perenggan(B) (i) di atas dari tarikh pemfailan tindakan ini sehingga penyelesaian penuh dan mutlak Hutang Penghakiman. S/N ylyeTb1t10qNi69j7As0Sg

The Defendant’s appeal against the decision of the High Court to the Court of Appeal was dismissed and the leave to appeal to the Federal Court was denied.

Meanwhile the sum of money as stated in the Judgement was deposited in a trust account on the agreement of both the parties until the decision of Court of Appeal was given.

Despite the appeal having been finally decided by the Court of Appeal, the High Court had dismissed the application of the Plaintiff for the money to be released from the trust account

On the Plaintiff’s appeal the Court of Appeal allowed the Plaintiff’s claim and asked the money to be released to the Plaintiff. However, the Defendant contends that the Plaintiff is claiming for a sum of US$ 586,928.72 as future damages which far exceeds the amount stated in the High Court Judgement.

The Defendant is seeking a declaration from this Court that the amount to be released should be limited to the sum stated in the High Court Judgement i.e. US$ 76,500. Future damages was neither pleaded nor given by the High Court.

In the Court’s view a preliminary issue that needs to be determined before deciding on the Defendant’s application is whether this Court is the right forum to hear this application. S/N ylyeTb1t10qNi69j7As0Sg The jurisdiction of the Court

It is to be noted that the final decision to release the money was given by the Court of Appeal. The issue of the sum to be released should have been raised during the appeal by the Plaintiff for the release of the money. However the amount to be released from the trust account was not canvassed in the Court of Appeal.

It is this Court’s view that as the issue of the amount of money to be released was not raised in the Court of Appeal then such clarification should be sought from the Court of Appeal rather than this High Court.

Further as this case was decided by another High Court Judge, this Court is not privy to the judgement of the other High Court Judge. Therefore, even if the High Court has the jurisdiction to hear this application, clarification should be sought from the High Court Judge who gave the judgement.

For the reason given above the Court dismissed the Defendant’s application with a cost of RM3,000. S/N ylyeTb1t10qNi69j7As0Sg Dated: 7.4.2023 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N ylyeTb1t10qNi69j7As0Sg PARTIES For the Plaintiff: Tetuan Cheah Teh & Su L-3-1, No. 2 Jalan Solaris Solaris Mon’t Kiara 50480 Kuala Lumpur For the Defendant: Tetuan Vaasan Chan & Chandran Unit 23-2 Level 23, Binjai 8 No. 2 Lorong Binjai 50450 Kuala Lumpur S/N ylyeTb1t10qNi69j7As0Sg