Chapter 37 - Judgment & Orders

Question 1

JUDGMENT & ORDERS

Overview

Answer 1

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

Question 2

GENERAL PRINCIPLES ON JUDGMENT

Overview

Answer 2

1) Meaning of judgment & order
2) Inspection of judgment
3) Form of judgment

Question 3

GENERAL PRINCIPLES ON JUDGMENT

Meaning of judgment & order

Answer 3

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.

Question 4

GENERAL PRINCIPLES ON JUDGMENT

Inspection of judgment

Answer 4

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.

Question 5

GENERAL PRINCIPLES ON JUDGMENT

Form of judgment

Answer 5

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.

Question 6

CONTENTS OF JUDGMENT

Overview

Answer 6

1) Time for doing it
2) Service of judgment
3) Date of judgment takes effect

Question 7

CONTENTS OF JUDGMENT

Time for doing it

Answer 7

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.

Question 8

CONTENTS OF JUDGMENT

Service of judgment

Answer 8

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.

Question 9

CONTENTS OF JUDGMENT

Date of judgment takes effect

Answer 9

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.

Question 10

SETTLING A JUDGMENT OR ORDER

Overview

Answer 10

1) Procedures
2) Disputes over the judgment
3) Examples of disputes

Question 11

SETTLING A JUDGMENT OR ORDER

Procedures

Answer 11

O.42, r.8:

How: 
By whom: 
Approval: 
By whom: 
Next step: 
Registrar: 
Dispute:

Question 12

SETTLING A JUDGMENT OR ORDER

Disputes over the judgment

Answer 12

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.

Question 13

SETTLING A JUDGMENT OR ORDER

Examples of disputes

Answer 13

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.

Question 14

REVIEWING A PERFECTED JUDGMENT OR ORDER

Overview

Answer 14

1) General rule
2) Exception - general principles
3) Exception - The Slip Rule
4) Exception - The Badiaddin Principle

Question 15

REVIEWING A PERFECTED JUDGMENT OR ORDER

General rule

Answer 15

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.

Question 16

REVIEWING A PERFECTED JUDGMENT OR ORDER

Exceptions - overview

Answer 16

1) General principles
2) The Slip Rule
3) The Badiaddin Principle

Question 17

GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE

Functus officio

Answer 17

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.

Question 18

GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE

New proof supplementing original order

Answer 18

Ford-Hunt v Singh:

• There is jurisdiction to make upon proof of new facts an order supplemental to an original order.

Question 19

GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE

No substantial alteration

Answer 19

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.

Question 20

GENERAL PRINCIPLES ON EXCEPTIONS TO GENERAL RULE

Does not apply to ex parte order

Answer 20

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.

Question 21

THE SLIP RULE EXCEPTION

Answer 21

xx

Question 22

THE SLIP RULE EXCEPTION

Overview

Answer 22

1) The law & scope
2) Principles on Slip Rule
3) Example - JID entered for a bigger sum

Question 23

THE SLIP RULE EXCEPTION

The law & scope

Answer 23

O.20, r.11:

• allows the court to correct errors in judgment or orders that were caused by an ACCIDENTAL SLIP or OMISSION.

Question 24

THE SLIP RULE EXCEPTION

Principles on Slip Rule

Answer 24

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.

Question 25

THE SLIP RULE EXCEPTION Example - JID entered for a bigger sum

Answer 25

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.

Question 26

THE BADIADDIN EXCEPTION Overview

Answer 26

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

Question 27

THE BADIADDIN EXCEPTION The principle

Answer 27

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.

Question 28

THE BADIADDIN EXCEPTION exercise of jurisdiction

Answer 28

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

Question 29

THE BADIADDIN EXCEPTION burden of proof

Answer 29

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

Question 30

THE BADIADDIN EXCEPTION example - judgment against statute

Answer 30

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.

Question 31

THE BADIADDIN EXCEPTION example - judgment made in breach of natural justice

Answer 31

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.

Question 32

THE BADIADDIN EXCEPTION example - lodgment of multiple appeals

Answer 32

Tan See Siong & Anor v Herman Ando: xx SEE: Summary Notes.

Question 33

THE BADIADDIN EXCEPTION procedures to set-aside under Badiaddin

Answer 33

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.

Question 34

SETTING-ASIDE JUDGMENT OR ORDER Overview

Answer 34

1) General | 2) Procedures

Question 35

SETTING-ASIDE JUDGMENT OR ORDER General

Answer 35

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.

Question 36

SETTING-ASIDE JUDGMENT OR ORDER Procedures - the law

Answer 36

O.42, r.13: Application to court; Service on the other party; Service within 30 days.

Question 37

SETTING-ASIDE JUDGMENT OR ORDER Procedures - the case

Answer 37

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.

Question 38

OTHER ISSUES ON JUDGMENTS OR ORDER Overview

Answer 38

1) Judgment with excessive interest rate | 2) Consent judgment

Question 39

JUDGMENT WITH EXCESSIVE INTEREST RATE Overview

Answer 39

1) meaning of interest 2) why interest is granted 3) permitted interest rate 4) pre-judgment interest 5) effect of excessive interest rate

Question 40

JUDGMENT WITH EXCESSIVE INTEREST RATE Meaning of interest

Answer 40

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.

Question 41

JUDGMENT WITH EXCESSIVE INTEREST RATE why interest is granted

Answer 41

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.

Question 42

JUDGMENT WITH EXCESSIVE INTEREST RATE permitted interest rate

Answer 42

O.42, r.12: S.16(1) CJA:

Question 43

JUDGMENT WITH EXCESSIVE INTEREST RATE pre-judgment interest

Answer 43

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.

Question 44

JUDGMENT WITH EXCESSIVE INTEREST RATE effect of excessive interest rate

Answer 44

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.

Question 45

CONSENT JUDGMENT Overview

Answer 45

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

Question 46

CONSENT JUDGMENT Meaning & scope of consent judgment

Answer 46

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.

Question 47

CONSENT JUDGMENT Varying or setting aside consent judgment - GR

Answer 47

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.

Question 48

CONSENT JUDGMENT varying or setting aside consent judgment - exceptions

Answer 48

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.

Question 49

CONSENT JUDGMENT recent decision FC, 2019

Answer 49

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.