XXXX v XXXX (PA-22NCVC-239-12/2016)

Content

DALAM MAHKAMAH TINGGI MALAYA DI GEORGETOWN DALAM NEGERI PULAU PINANG, MALAYSIA (BAHAGIAN SIVIL) GUAMAN SIVIL NO: PA-22NCvC-239-12/2016 ANTARA OMEGA MATRIX (M) SDN BHD (NO. SYARIKAT: 530153-K) … PLAINTIF

Lampiran

Lampiran 98 ditarik balik tanpa kebebasan difailkan semula tanpa perintah terhadap kos. [27] Based on the record, it is not directly stated that the Plaintiff has applied that the Notice of Taxation and Bill of Cost to be withdrawn without the liberty to file afresh. It is not even recorded that the Defendants requested it to be withdrawn without the liberty to file afresh. [28] Based on this post, the benefit of the doubt must be given to the affected party, namely the Plaintiff. Based on the Learned SAR’s minutes, there is no record of the Plaintiff requesting that both notices to be withdrawn with liberty to file a fresh; but the Court ordering it to be withdrawn. [29] The Court refers to a case of Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 in which the Court has also referred to the Notes to ensure that the arguments of the parties are as recorded when there is a discrepancy in facts. Excerpts from the case are as follows: “[1] This is an appeal by the appellant (Plaintiff in the High Court) against the order made by the learned Judicial Commissioner (JC) of the High Court in striking out suit 22NCVC-279-2014 (“Suit”) with no liberty to file afresh. [2] After hearing submission from counsel and perusing through the Appeal Records, unanimously, we are of the view that there are merits in the appeal. We therefore allowed the appeal, set aside the order of the learned JC and remitted the Suit back to the High Court for the same to proceed with further case management in preparation for full trial. ………… [20] Further, when the Plaintiff’s counsel informed the Court that it wished to withdraw the Suit with liberty to file afresh, counsel for the Plaintiff never informed the Court that the Plaintiff would only do so, if liberty to file afresh was granted. Nowhere in the Notes of Proceedings was this recorded. What was stated was that the Plaintiff was withdrawing as the Plaintiff was not ready to proceed with the trial. The Plaintiff never requested for further time to comply with the directions issued by the court earlier, nor requested for an adjournment of the trial dates before the learned JC. Hence counsel for the Defendants submitted that the JC did not err when he allowed the withdrawal but with no liberty to file afresh. [30] For this issue, the Court found that there was a “mistake” by the Learned SAR because the Order given was “L98 – Plaintiff to withdraw, without liberty to file afresh.” If the L98 is withdrawn, the Court should decide whether it is struck out with liberty to file afresh or not. The Court cannot let the order "hang" just like that. If it means to be that “to be struck out without liberty to file again”, then the Plaintiff cannot re-file it. However, in this case, the Plaintiff did not agree to withdraw, but based on the record, the Plaintiff has said that the Plaintiff will file an application for an extension of time. [31] On this issue, the jurisdiction and power to pronounce any Order or Judgment is vested upon the court. In the case of Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, proposed intervenors) [2004] 3 MLJ 301, Gopal Sri Ram JCA at pp 319–321 had this to say: “The law is not so impotent that it will let an injustice pass by while having its limbs bound by procedural technicalities. As Ong Hock Sim FJ said in Othman v Mek [1972] 2 MLJ 158: … it is the duty of the courts to exercise the utmost diligence in applying the maxim ubi jus ibi remedium, so that justice shall be done, unless we are strictly constrained by law to uphold any decision which results in injustice.” [32] The Plaintiff argued that no application for an application for a stay was filed to suspend the decision of the High Court. This Court has referred to the Court of Appeal order dated 07.08.2023 and there is an Order from the Court of Appeal that "with liberty to apply". It is clear that based on this Order, the Plaintiff is entitled to apply for an extension of time to file the Notice of and the Bill of Cost [33] The law is settled on the jurisdiction of the Court when it involves an application to discontinue or withdraw an action. Order 21 r 3(1) of the ROC 2012 provides that: Discontinuance of action with leave (O 21, r 3) 3(1) Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just. [34] In Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671, held: “Before granting the order for discontinuance of an action, the court must be satisfied that: (i) if a defendant is dominus litis, the general rule is to refuse leave to discontinue (see Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124); (ii) the case is not at an advanced stage; if so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and circumstances of the case (see Fox v Star Newspaper Company [1898] 1 QB 636; (iii) the plaintiff may have gained an interim interlocutory advantage between the date of issue of the writ and the point of time he seeks to discontinue (O’Neal v Mann [2000] FCA 1680); (iv) there is no miscarriage of justice occasioned by its refusal to permit the discontinuance; (v) it will not prejudice the opponent to the application or take away from him any advantage to which he is fairly and reasonably entitled. [24] In summary, the discretion to allow the application to discontinue an action and the discretion to impose the terms accompanying it, depends very much on the facts and circumstances of each case.” [35] In this case, the Learned SAR should not order the Plaintiff to “withdraw without liberty to file a fresh” as it seems that the Court was directing Plaintiff to withdraw the notice without the liberty to file a fresh. Based on the fact of the case, the Plaintiff should be allowed to file a new notice but subject to requirements that leave should be granted to the Plaintiff to file an application out of time. Extension of time [Enclosure 100] [36] It is trite law that the Court’s power to extend and/or abridge time are provided in Order 3 rule 5 and Order 45 rule 6 (1) of the Rules of Court 2012: “Order 3 rule 5 (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules or by any judgment, order or direction, to do any act in any proceedings. (2) The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. (3) The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleadings or other document may be extended by consent in writing without an order of the Court being made for that purpose.” “Order 45 rule 6 (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have the power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified therein. ” [37] In Ong Mei Lean v Loh Sim Seng [2021] 1 LNS 2495, the Court of Appeal held: “[16] The terms of the CO were still capable of compliance in that all had been done and what remained was the transfer of the Johor Lands to LSS for him to allow OML to take control of the management of the Company. The extension of time sought was to give effect to the CO and did not have the effect of altering, varying or amending the CO, as the substantive terms remain intact. [17] In Thiruchelvasegaram a/l Manickavasegar v. Mahadevi a/p Nadchatiram [1989] 4 MLJ 297, the issue was whether the Court had jurisdiction to allow an application to extend time to supply particulars. The Court of Appeal at page 307 answered it in the affirmative by relying on O. 3 r. 5. It went on further at page 310 that "the primary consideration when exercising a discretion to extend time is whether the party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances". [19] The Singapore case of Tan Yeow Khoon & Anor v. Tan Yeow Tat & Anor [1999] SGHC 284 717 dealt with a situation of a modification to the draft terms of reference to an order of court and whether this amounted to a variation. This was said at page 723 "10 To my mind, what was being put forward by the defendants at the hearing of the plaintiffs' application was not so much as to re-write or vary the order of court but to sustain and work out the order earlier made. In the premises, the suggestion by plaintiffs' counsel that further directions given to resolve the continuing deadlock between the parties would constitute re-writing the court's earlier order had no substance... 11 By any measure, even if the further direction issued by me were to be regarded as a variation, such a direction was intended only to succour the original order..." [38] Under Order. 42 r. 6(1) provides the time within which an act is required to be done. Order 45 r. 6(1) provides that notwithstanding a Judgment or Order requiring a person to do an act specifies a time, the Court shall without prejudice to O. 3 r. 5, have power to make an order requiring the act do be done within another time. O. 92 r. 4 is of course the inherent power 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.” [39] When considering the reasons for delay, it is pertinent for this Court to take cognisance that the Defendants had not shown in any way how they would indeed be prejudiced by the delay of the Plaintiff and whether such delay does cause any prejudice to the Defendants and in the circumstances, deprive the Plaintiff of their entitlement to the costs awarded pursuant to the High Court Order dated 04.10.2022 which was subsequently affirmed by the Court of Appeal on 07.08.2023. [40] The Court of Appeal’s Order gives right and liberty to apply, therefore that delay is merely a procedural non-compliance and the Defendants should not be able to benefit from a technical non-compliance. This application would not prejudice the Defendants at all as it would not change or alter the Order of the Court that the Plaintiff is entitled for cost. [41] Based on the facts of the case, the Plaintiff’s application is bona fide and with an intention to proceed and carry out the Order of the High Court and parties have to proceed and complete the proceedings of the Notice of Taxation and Bill of Costs. The Plaintiff has provided reasonable reasons for the delay in filing the Notice of Taxation and Bill of Costs. Further, this application for extension of time is not prejudicial to the Defendants and based on the facts of this case, the Defendant can be compensated with costs. [42] In Cergas Tegas Sdn Bhd (In Liquidation) v SAP Holdings Bhd &Anor [2013] 8 CLJ, the Court of Appeal held that: “[32] The Court will have regard by virtue of О 1A of the RHC and О2 r 3 of the RHC to the justice of the particular case and to determinejudicially whether the non-compliance with the rules had occasioned a substantial miscarriage of justice.” [43] In Kosma Palm Oil Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 271, the Court referred to the inherent jurisdiction of the Courts under Order 92 rule 4 of the Rules of Court 2012 and expressed the view that the Court ought not to be bound and tied by rules which are after all general rules of procedure if to do so would cause injustice. The Court held that: “[23] The scope of this provision is very wide, It is a procedural rule and is not intended to alter substantive rights. The key words in the rule are: "...to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court. [44] In United Malayan Banking Corp Bhd v Ernest Cheong Yong Yin [2011] 1 MLJ 561, where the Court held that in the interest of justice, an application should not be struck out on procedural defect in UMBC v Ernest Cheong Yong Yin, Ahmad Fairuz JCA (as he then was) quoted with approval what was said in Tan Chwee Geok & Anorn V Khaw Yen-Yen & Anor [1975] 2 MLJ 188 at p 189: The rules of the Supreme Court are intended to facilitate, not impede, the administration of civil justice, in the bad old days in England from where we took our Rules, If you put a comma wrong you were thrown out of court, so strict were they about technicalities. But over the years this strictness gave way to common sense, and every time the Rules were amended it was with the object of removing fussy technicalities, and making it easier for parties to get justice. This changed attitude was reflected in the remarks of Lord Collins MR about 70 years ago in Re Coles and Ravenshear; Although a court cannot conduct its business without a code of procedure, the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress; and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.(Emphasis added.)” [45] Based on this case, it is reasonable that the Defendants be given costs for the application to extend the time and to file the Notice by the Plaintiff. In any way, it does not prejudice the Defendant because the delay of 45 days is caused by the Plaintiff waiting for the appeal to be decided in the Court of Appeal, and according to this reason it is reasonable because it is only in a short period of time and in the same way no action was taken by the Defendant against the delay apart from filing the initial objection which was also only raised by way of letter and not in the form of an affidavit. Observation [46] The question that needs to be addressed is whether Order 56 (2) ROC 2012 applies, i.e. “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”. It is up to the parties to argue as guided in the case of Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] MLJU 54, which decided that “[45] The correct approach in my view is to read section 68 with the definition of “decision” in section 3 of the Act in stating the matters that are not appealable to the Court of Appeal in civil cases. When these words are read with section 67 of the Act, such a “decision”, “judgment” or “order” which falls within the exclusionary words in the definition of the word “decision” is without any doubt not appealable to the Court of Appeal. [46] The Federal Court in Kempadang dealt with this point in paragraph [26] accepting that another restriction could be discerned from the provisions of section 3 of the Act and that it acts as an additional exclusion of the types of matters that cannot be appealed against. The Federal Court’s finding on this reads as follows: “[26] Civil matters which are not appealable to the Court of Appeal are listed in sub-s. 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 s. 3 of the CJA when it qualifies the word “decision” as opposed to a “ruling” of the court.” [emphasis added] Conclusion [47] Based on the reasons that have been stated by this Court and the written authority, this Court orders that: Lampiran 100 Lampiran 100 dibenarkan dengan perintah berikut : (i) Plaintif dikehendaki memfailkan Notis Penetapan Kos dalam tempoh 14 hari dari tarikh Perintah ini. (ii) Kos permohonan sebanyak RM 5,000.00 hendaklah dibayar oleh Plaintif kepada Defendan-defendan tertakluk kepada alokator. Lampiran 102 Lampiran 102 dibenarkan dan tanpa perintah atas kos. …………..sgd…………. AZIZAN MD ARSHAD Judicial Commissioner High Court (3) Pulau Pinang Dated: 12 March 2024 Counsel for the Plaintiff: Nik Aimi Nabilah Tetuan Shahrizat Rashid & Lee Peguambela & Peguamcara Ground & First Floor, Wisma Prima 17, Jalan Sri Semantan Satu Damansara Heights 50490 Kuala Lumpur Counsel for the Second, Third, Fifth & Sixth Defendant : Rajdev Singh a/l Hari Singh Tetuan Wong Chooi & Mohd Nor Peguambela & Peguamcara No.27, Tingkat 1, Jalan Maju Jaya Pusat Perniagaan Maju Jaya 14000 Bukit Mertajam Pulau Pinang Counsel for the Seventh Defendant: Tetuan Harpal Singh & Co. No.27C-3-1 Jalan Ayer Itam 11500 Pulau Pinang Legislations referred to: 1. Rules of Court 2012 Cases referred to: 1. Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 2. Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, proposed intervenors) [2004] 3 MLJ 301 3. Ong Mei Lean v LKosma Palm Oil Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 271oh Sim Seng [2021] 1 LNS 2495 4. Cergas Tegas Sdn Bhd (In Liquidation) v SAP Holdings Bhd &Anor [2013] 8 CLJ 5. Kosma Palm Oil Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 271 6. United Malayan Banking Corp Bhd v Ernest Cheong Yong Yin [2011] 1 MLJ 561 7. Tan Chwee Geok & Anorn V Khaw Yen-Yen & Anor [1975] 2 MLJ 188 at p 189 8. Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] MLJU 54