Chapter 37 - Judgment & Orders Flashcards
JUDGMENT & ORDERS
Overview
1) General principles
2) Contents of judgment
3) Settling a judgment
4) Reviewing a perfected judgment or order
5) Setting-aside a judgment or order
6) Other issues on judgments or order
7) Committal proceedings
GENERAL PRINCIPLES ON JUDGMENT
Overview
1) Meaning of judgment & order
2) Inspection of judgment
3) Form of judgment
GENERAL PRINCIPLES ON JUDGMENT
Meaning of judgment & order
1) Janab’s Key Civil
Procedure:
- Where a decision brings finality to an action, it is termed as judgment (e.g. Default Judgment, Summary Judgment).
- Where the decision of the court in only interlocutory in nature, it is an order (e.g. Order for discovery, Order to amend pleadings etc).
2) Onslow v Commisioners of Inland Revenue:
- A judgment is a decision obtained in an action;
any other decision is an order.
GENERAL PRINCIPLES ON JUDGMENT
Inspection of judgment
1) Proceedings in camera - O.42, r.1A:
- Judgment delivered in respect of proceedings in camera are not available for public inspection except with the permission of the Court.
2) Open court proceedings - O.42, r.2A:
- Any member of the public is entitled to a copy of judgment delivered in open Court upon payment of prescribed fee.
GENERAL PRINCIPLES ON JUDGMENT
Form of judgment
O.42, r.5:
- Where an order provides that Form 75 prescribes the form for a particular judgment, then the judgment must be in that form.
- Order shall be marked with the name of the Judge, Magistrate or Registrar by whom it was made.
CONTENTS OF JUDGMENT
Overview
1) Time for doing it
2) Service of judgment
3) Date of judgment takes effect
CONTENTS OF JUDGMENT
Time for doing it
1) O.42, r.6:
- a judgment or order which requires a person to do an act must specify the time after the service, or some other time within which the act is to be done.
2) Effect of omission - Re Wilde:
- an omission to do so may be cured by a subsequent order.
3) Effect of failure to cure omission - Hitachi Sales (UK) v Mitsui Osk Lines:
- Failure to cure such omission may render the judgment or order invalid and the person affected by the judgment or order may apply to have it set aside as of right.
CONTENTS OF JUDGMENT
Service of judgment
Requirement of service of judgment - Re Seal:
- Where a judgment or order specifies a time for doing an act, it must be served personally within the time limited for doing the act.
CONTENTS OF JUDGMENT
Date of judgment takes effect
1) General - O.42, r.7:
- A judgment or order of the court takes effect from the day of its date.
- Such judgment or order delivered shall be dated as of the day on which it is pronounced;
- This rule applies to all judgments and order whether it is made in open court or chambers or by a Judge or Registrar.
2) Exception - O.42, r.7(2):
- The Court orders it to be dated as of some other earlier or later day.
3) Exercise of power - Yeo Kim Yuan v Hamid:
- Power should only be exercised on good grounds.
SETTLING A JUDGMENT OR ORDER
Overview
1) Procedures
2) Disputes over the judgment
3) Examples of disputes
SETTLING A JUDGMENT OR ORDER
Procedures
O.42, r.8:
How: By whom: Approval: By whom: Next step: Registrar: Dispute:
SETTLING A JUDGMENT OR ORDER
Disputes over the judgment
1) The law - O.42, r.8(3):
- Obtain appointment before the Registrar.
2) Scope - Sang Lee Company Sdn Bhd v Munusamy Karuppiah (FC, 2010):
- Under O. 42 r. 8, if there was a dispute on the matter, any party may seek an appointment with the Registrar to settle the terms;
- If the matter was heard by the judge the dispute may be determined by the judge.
- This was to safeguard the sanctity and authenticity of the final perfected sealed order and the court records.
- It was also to ensure that it accurately captured the very essence and terms of the order pronounced by the High Court.
- In law, the court can always amend an order which does not reflect what was actually pronounced.
- In such a situation, the court was not functus officio.
SETTLING A JUDGMENT OR ORDER
Examples of disputes
Parasuraman Kuppan v Sazali Bin Md Akhir & Anor (1999, CA):
- The solicitors should have sought an appointment with the Registrar for the dispute to be determined;
- In this case, the solicitors of the appellant should have taken the initiative as they were aware of the disagreement in respect the draft order they had drawn up.
- It was not for the Registrar to resolve the dispute in their absence.
REVIEWING A PERFECTED JUDGMENT OR ORDER
Overview
1) General rule
2) Exception - general principles
3) Exception - The Slip Rule
4) Exception - The Badiaddin Principle
REVIEWING A PERFECTED JUDGMENT OR ORDER
General rule
1) Before judgment is perfected - Chee Kuan Cheng:
- Before the judgment is perfected, the court has a wide discretion to review the judgment.
2) Before judgment is perfected - Syarikat Marak Jaya Sdn Bhd v Syarikat Masianda Sdn Bhd:
- before any order has been perfected, the court has inherent jurisdiction to review the matter;
- when an order is extracted or perfected, the court can still review the same but only with the consent of both parties or as expressly provided by the Rules.
- Examples:
O.13, r.19: setting aside JID in appearance;
O.19, r.9: setting aside JID in pleadings;
O.14, r.11: setting aside judgment in default of appearance at the hearing of summary judgment;
O.20, r.11: order does not correctly set out the manifest intention of the court, i.e. slip rule.
3) Judgment has been perfected - The Estate of Embi bin Haji Abdullah:
- The Court has no power to amend or alter a judgment or order which has been duly passed and entered;
Except:
(i) where there has been an accidental slip in the wording or;
(ii) where the judgment or order does not express the manifest intention of the Court.
4) Judgment has been perfected - Tan See Siong & Anor v Herman Ando:
- It is a well established law that a judge is functus officio once he has delivered his judgment.
- A party who is dissatisfied with this judgment can appeal against it.
- The said judge cannot vary his own judgment except under the ‘slip rule’ (O. 42 r. 5 of the Rules of the High Court) or within the exceptions expressed in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd;
- OTF, none of the case applies.
5) cf. Hock Hua Bank Bhd v Sahari bin Murid:
- One High Court cannot set aside a final order of another High Court, let alone its own final order.
High Court, having rightly or wrongly given the order, is functus officio, and it cannot set its own order aside; - Therefore, the order cannot be altered varied or set aside by the same court, nor does it come under the provision of O.20, r.11;
- The only recourse is to appeal to a higher court which has jurisdiction to pronounce the validity or otherwise of the order.
6) Ex parte orders - Lai Cheng Ooi v Lim San Peen:
- The principle that a judge has no power or jurisdiction to set aside an order of another judge of concurrent jurisdiction does not apply to ex parte orders.
- Therefore, an order which is made ex parte is liable to be set aside by the court of concurrent jurisdiction.
REVIEWING A PERFECTED JUDGMENT OR ORDER
Exceptions - overview
1) General principles
2) The Slip Rule
3) The Badiaddin Principle
GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE
Functus officio
Subramaniam a/l P Govindasamy v Susila a/p Sankaran:
- The doctrine of functus officio does not apply to cases where amendment of order is sought.
- The Court has power to amend its order, depending on the facts and justice of the case.
See: Sang Lee Company below.
GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE
New proof supplementing original order
Ford-Hunt v Singh:
- There is jurisdiction to make upon proof of new facts an order supplemental to an original order.
GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE
No substantial alteration
Tay Ek Seng Company Sdn Bhd & Ors v Tay Cho Koh & Ors:
- The Court has power to vary an earlier order so that the whole purpose of the earlier order would not be defeated, as long as the order has not been substantially altered as to make it an entirely new order.
GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE
Does not apply to ex parte order
Lai Cheng Ooi v Lim San Peen:
- The principle that a judge has no power or jurisdiction to set aside an order of another judge of concurrent jurisdiction does not apply to ex parte orders.
- Therefore, an order which is made ex parte is liable to be set aside by the court of concurrent jurisdiction.
THE SLIP RULE EXCEPTION
xx
THE SLIP RULE EXCEPTION
Overview
1) The law & scope
2) Principles on Slip Rule
3) Example - JID entered for a bigger sum
THE SLIP RULE EXCEPTION
The law & scope
O.20, r.11:
- allows the court to correct errors in judgment or orders that were caused by an ACCIDENTAL SLIP or OMISSION.
THE SLIP RULE EXCEPTION
Principles on Slip Rule
1) Does not reflect intention - Sang Lee Company Sdn Bhd & ors v Munusamy Karuppiah:
- In law, the court can always amend an order which does not reflect what was actually pronounced.
- In such a situation the court is therefore not functus officio.
- Amendment for genuine mistake that does not express the true intention of the court ought to be allowed pursuant to O.20, r.11.
2) Not to make a fundamentally different order - Syarikat Marak Jaya San Bhd v Syarikat Masinda Sdn Bhd:
- power to amend is subjected to a restriction where it does not allow a court to make a fundamentally different order.
THE SLIP RULE EXCEPTION
Example - JID entered for a bigger sum
1) Power to amend - Phillip Securities (Pte) v Yong Tet Miaw:
- Where a judgment has been entered in default of defence for an amount in excess of that which is due, the court has jurisdiction to amend the judgment instead of setting it aside.
- O.19, r.9 empowers the court to set aside or vary a judgment entered in default of pleadings.
- The judge also held that the amendment made by the learned registrar could also be supported and justified under O.20, r.11.
2) Circumstances where power can be exercised - Cheow Chew Khoon v Abdul Johari Abdul Rahman:
- in monetary claims, the amount for which judgment is entered must be limited to the amount actually due;
- If judgment is entered for more than is actually due, it is liable to be set aside.
- If an error appears in the judgment then this may be corrected in the following circumstance:
(i) on an application duly made by the plaintiff in that behalf;
(ii) on an application made by the defendant to set aside the judgment; and
(iii) ex parte, where the defendant consents to such a course.
THE BADIADDIN EXCEPTION
Overview
1) The principle
2) Exercise of jurisdiction
3) Burden of proof
4) Example - judgment against statute
5) Example - judgment in breach of natural justice
6) Example - lodgment of multiple appeals
7) Procedures to set-aside under Badiaddin
THE BADIADDIN EXCEPTION
The principle
Badiaddin v Arab Malaysian Finance:
- where an order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be set aside in proceedings brought for that purpose.
- It is wrong to assume that such an order may only be corrected on appeal.
- Therefore, Badiaddin stands for proposition that a judgment or order that is made in breach of statute may be corrected by setting it aside in proceedings brought for the specific purpose.
THE BADIADDIN EXCEPTION
exercise of jurisdiction
Macquaire (Malaysia) Sdn Bhd v HSBC Bank Malaysia Bhd (CA, 2007):
- The jurisdiction to set aside such a judgment is not to be exercised as a matter of course;
- It may be exercised in the following limited circumstances only, i.e where there is:
(a) breach of the rules of natural justice;
(b) lack of jurisdiction;
(c) illegality, i.e. contravention of a substantive statutory provision;
(d) serious defect, or
(e) fraud
THE BADIADDIN EXCEPTION
burden of proof
Macquaire (Malaysia) Sdn Bhd v HSBC Bank Malaysia Bhd (CA, 2007):
- Applicant must discharge the burden of proving that the impugned application came within the ambit of any of those limited circumstances
THE BADIADDIN EXCEPTION
example - judgment against statute
Serac Asia Sdn Bhd v Sepakat Insurance:
- Re-instate that Badiaddin stands for the proposition that the High Court cannot set aside a final judgment/order regularly obtained from another High Court unless the judgment was made in defiance of a substantive statutory prohibition which renders it null and void on the grounds of illegality or lack of jurisdiction.
- Only in that exceptional case can a defective judgment be struck out ex debito justitiae.
- It is thus only in this situation that a High Court may exercise its inherent jurisdiction to strike out a regularly obtained judgment of another court of concurrent jurisdiction.
THE BADIADDIN EXCEPTION
example - judgment made in breach of natural justice
Ang Game Hong v Tee Kim Tiang:
- an order made in breach of natural justice is clearly such an order that the person affected by the order can apply to have it set aside in collateral proceedings.
THE BADIADDIN EXCEPTION
example - lodgment of multiple appeals
Tan See Siong & Anor v Herman Ando:
xx
SEE: Summary Notes.
THE BADIADDIN EXCEPTION
procedures to set-aside under Badiaddin
Ann Joo Steel Bhd v Pengarah Tanah & Galian Negeri Pulau Pinang:
- One may apply to set aside an order of a superior court but it must be made in a direct and specific proceeding filed for that purpose be it in the same proceedings or a separate one.
- It could not be contested merely by raising it as defences in a suit, as being undertaken in these appeals.
- i.e. specific proceeding must be taken for the purpose.
SETTING-ASIDE JUDGMENT OR ORDER
Overview
1) General
2) Procedures
SETTING-ASIDE JUDGMENT OR ORDER
General
Ann Joo Steel Bhd v Pengarah Tanah & Galian Negeri Pulau Pinang:
- One may apply to set aside an order of a superior court but it must be made in a direct and specific proceeding filed for that purpose be it in the same proceedings or a separate one.
- It could not be contested merely by raising it as defences in a suit, as being undertaken in these appeals.
- i.e. specific proceeding must be taken for the purpose.
SETTING-ASIDE JUDGMENT OR ORDER
Procedures - the law
O.42, r.13:
Application to court;
Service on the other party;
Service within 30 days.
SETTING-ASIDE JUDGMENT OR ORDER
Procedures - the case
Hong Kwi Seong v Ganad Media Sdn Bhd:
APPLICATION & SERVICE:
- a party intending to set aside an order or judgment must make his application and serve it on the other party within 30 days after receipt of the order or judgment by him.
EXTENSION OF TIME:
- If the application is made outside the 30 day period, unless time is extended, the application must fail.
Whether an enlargement of time will be granted, on the premise that an application was been filed, will depend very much on the facts and circumstances of that application.
OTHER ISSUES ON JUDGMENTS OR ORDER
Overview
1) Judgment with excessive interest rate
2) Consent judgment
JUDGMENT WITH EXCESSIVE INTEREST RATE
Overview
1) meaning of interest
2) why interest is granted
3) permitted interest rate
4) pre-judgment interest
5) effect of excessive interest rate
JUDGMENT WITH EXCESSIVE INTEREST RATE
Meaning of interest
Terengganu State Economic Development Corporation v Nadefinco Ltd:
- Interest is a sum of money representing the return for the use of the compensation for the retention by one person of a sum of money belonging to or owed to another.
- It is regarded as representing a profit which the other person might have made if he had the use of the money or conversely the loss which he had suffered because he had not that use.
- In other words interest is a compensation for the deprivation of the use of money, which he is lawfully entitled to.
JUDGMENT WITH EXCESSIVE INTEREST RATE
why interest is granted
Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v Balakrishnan Kaliannan (FC):
- Interest is granted not as a punishment, but as a compensation for the party entitled to the money for being deprived of its use.
JUDGMENT WITH EXCESSIVE INTEREST RATE
permitted interest rate
O.42, r.12:
S.16(1) CJA:
JUDGMENT WITH EXCESSIVE INTEREST RATE
pre-judgment interest
Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v Balakrishnan Kaliannan (FC, 2013):
- FC held that the Court of Appeal was right in exercising their discretion to award pre-judgment interest from the date of writ pursuant to s. 11 of the 1956 Act, as well as post judgment interest pursuant to O. 42 r. 12 on the judgment sum of RM750,000.
JUDGMENT WITH EXCESSIVE INTEREST RATE
effect of excessive interest rate
Intergrated Technologies Distribution Sdn Bhd v Patimas Computer:
- interest rate in excess of the statutory minimum provided for is illegal;
- It would entitle the court to set aside the judgment ex debitio justitiae unless the Plaintiff can prove that he is entitled to a higher interest rate.
CONSENT JUDGMENT
Overview
1) Meaning & scope of consent judgment
2) Varying or setting aside consent judgment - general rule
3) Varying or setting aside consent judgment - exceptions
4) recent decision on consent order
CONSENT JUDGMENT
Meaning & scope of consent judgment
1) Tan Geok Lan v La Kuan:
- A consent judgment or order is not the less a contract and subject to the incidents of a contract;
- Its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order
- Therefore, consent order or judgment arising out of that contract is a contract between the parties that is superadded with the command of the court.
2) Kamil Azman Abdul Razak & Ors v Amanah Raya Bhd & Ors:
- Tan Geok Lan had ruled that a consent order is akin to a contract with superadded command of the court.
- Thus, it must be given its full contractual effect, i.e. it is to be interpreted in the same manner as the court would a contract.
- Intention of the parties is to be objectively assessed by the court, in particular by reviewing the language employed in the consent judgment.
CONSENT JUDGMENT
Varying or setting aside consent judgment - GR
1) Tio Chee Hing v Tractors Malaysia Bhd:
- as a general rule a consent judgment would operate as an estoppel.
2) Attorney-General v Tomline:
- after a judgment by consent has been passed and entered, it cannot afterwards be varied except for reasons sufficient to set aside an agreement.
CONSENT JUDGMENT
varying or setting aside consent judgment - exceptions
1) Huddersfield Banking Co Ltd v Henry Lister:
- The law seems to be that a consent order may be set aside for the same reasons as those on which an agreement may be set aside;
i. e. vitiating factors in contracts.
2) Au Yuan Chee v Lim Leong Thiam:
- where it is established that a judgment has been obtained fraudulently or by reason of mutual mistake of the parties regarding a material fact, the court has power to set aside the judgment.
CONSENT JUDGMENT
recent decision
FC, 2019
Kamil Azman Abdul Razak v Amanah Raya Bhd:
- The paramount consideration is to ascertain the intention of the parties to the consent judgment.
- Such intention is to be objectively assessed by the court, in particular by reviewing the language employed in the Consent Judgment.
SEE: summary notes.
