Teras Kimia SDN BHD V. Government of Malaysia: 972 (2015) 6 CLJ Current Law Journal
Teras Kimia SDN BHD V. Government of Malaysia: 972 (2015) 6 CLJ Current Law Journal
[2015] 6 CLJ
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[2015] 6 CLJ
(4) The fact that Saturdays are ordinarily not working days in Malaysia is
the subject of common and general knowledge and its existence or
operation is accepted by the public without qualification or contention.
If parties and solicitors generally do not work on Saturdays and the
courts registry is also closed on Saturdays, it would be unjust to include
Saturdays in the computation of a time period of seven days or less.
Accordingly, a purposive approach is adopted of O. 3 r 2(5) of the ROC
to exclude Saturdays from the reckoning of a time period of seven days
or less. (para 27)
(5) O. 3 r. 2(4) of the ROC had been complied with in this case. This is
because at least two working days ie, Friday, 2 May 2014 and Monday,
5 May 2014 have intervened between the day of service of encl. 30 on
the AGC on Wednesday 30 April 2014 and its hearing on Tuesday 6
May 2014. Enclosure no. 30 has been duly served on the AGC as
required by O. 32 r. 3 of the ROC as interpreted by O. 3 r. 2(1), (2),
(4) and (5) of the ROC. As such, court encl. 32 cannot succeed under
O. 2 r. 2(1) of the ROC as the court order dated 6 May 2014 has been
obtained regularly by the plaintiff. (paras 27 & 28)
(6) O. 32 r. 5(3) of the ROC is a statutory exception to the functus officio
doctrine. This is clear from the words whether or not an order
made on the hearing has been perfected in O. 32 r. 5(3) of the ROC.
Order 32 r. 5(3) of the ROC expressly confers power on the court to
re-hear a notice of application provided that two conditions are fulfilled
ie, (i) the order in question has been made in the absence of a party; and
(ii) it is just for the court to re-hear the notice of application in question.
If the two conditions are met, the court has the necessary power
pursuant to s. 40(1) of the IA to set aside court order dated 6 May 2014
and to re-hear encl. 30. The two conditions have been met in this case.
(paras 33 & 34)
Case(s) referred to:
Aje Best-On Sdn Bhd v. YB Ahmad Omar & Anor [2000] 3 CLJ 515 HC (refd)
Arab-Malaysian Bank Bhd v. Marina Mohd Yusoff [1999] 3 CLJ 633 HC (refd)
Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 SC (refd)
Bank Utama (Malaysia) Bhd v. Seri Mayhua Sdn Bhd & Ors [2000] 1 LNS 82 HC (refd)
Credit Corporation Malaysia Bhd v. Saraswathi Narayanan & Ors [1999] 7 CLJ 459 HC
(refd)
Hong Leong Bank Bhd v. Staghorn Sdn Bhd & Other Appeals [2008] 2 CLJ 121 FC (refd)
Indah Water Konsortium Sdn Bhd v. Yong Kon Fatt [2007] 4 CLJ 613 CA (refd)
Lee Lim Huat v. Yusuf Khan Ghows Khan & Anor [1997] 3 CLJ 197 CA (refd)
Minister of Finance Government of Sabah v. Petrojasa Sdn Bhd [2008] 5 CLJ 321 FC
(refd)
Morgan Guaranty Trust Co of New York v. Lian Seng Properties Sdn Bhd & Anor [1989]
1 CLJ 452; [1989] 2 CLJ (Rep) 133 HC (refd)
Pembangunan Maha Murni Sdn Bhd v. Jururus Ladang Sdn Bhd [1985] 1 LNS 122 SC
(foll)
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Re Stephen Wong Leong Kiong; Ex P HSBC Bank Malaysia Bhd [2005] 5 CLJ 504 HC (refd)
RIH Services (M) Sdn Bhd v. Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83 CA (foll)
United Malayan Banking Corp Bhd v. Syarikat Perumahan Lunas Sdn Bhd [1988]
1 LNS 143 HC (foll)
Westminster City Council v. Government of the Islamic Republic of Iran [1986] 3 All ER
284 (foll)
For the plaintiff - Siew Yew Ming (Chan Mun Fei with him); M/s Raja Eleena Siew Ang
& Assocs
For the defendant - Mohd Radhi Abas; SFC
(a) how to interpret the time period of two clear days for service of a notice
of application (NA) as required by O. 32 r. 3 of the Rules of Court 2012
(RC) when the time period in question included a public holiday and a
weekend; and
(b) whether the court may re-hear under O. 32 r. 5(3) RC an application
which has been duly served on a party and decided in the absence of that
party.
Facts
[2]
The plaintiff company (plaintiff) has sued the defendant, the
Government of Malaysia (defendant), in the Kuala Lumpur High Court (this
suit).
[3]
After a trial of this suit, on 18 March 2013, Nallini Pathmanathan J
(as Her Ladyship then was) gave judgment in favour of the plaintiff against
the defendant (High Courts judgment). The defendant appealed to the Court
of Appeal against the High Courts judgment (defendants appeal).
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[4]
On 5 December 2013, the Court of Appeal dismissed the defendants
appeal but varied the High Courts judgment and ordered as follows (Court
of Appeals judgment):
(a) the defendant to pay a sum of RM59,363,919.44 to the plaintiff for
services rendered by the plaintiff to the defendant (first sum);
(d) costs.
[5]
The plaintiffs solicitors has demanded by way of letters dated
24 February 2014 and 26 March 2014 to the attorney generals chambers
(AGC) for the defendant to pay to the plaintiff the total of the first sum,
second sum, post-judgment interest and costs as ordered in the Court of
Appeals judgment (judgment sum).
[6]
As the defendant did not pay the judgment sum, on 22 April 2014, the
plaintiff filed a NA (court encl. No. 30) (court encl. No. 30) for a certificate
(certificate) to be issued under s. 33(1) of the Government Proceedings Act
1956 (GPA). Under s. 33(1), (2) and (4) GPA read with O. 73 rr. 1(1) and
12(1) RC, the plaintiff needs the certificate before the plaintiff can execute
the Court of Appeals judgment against the defendant please see the Federal
Courts judgment in Minister of Finance, Government of Sabah v. Petrojasa Sdn
Bhd [2008] 5 CLJ 321, at 328-329 and 339-342. Section 33(1), (2) and (4)
GPA and O. 73 rr. 1(1), 12(1) and (3) RC provide as follows:
33(1)
...
33(3)
33(4)
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Order 73
rule 1(1) These Rules apply to civil proceedings to which the
Government is a party subject to the following rules of this
Order.
...
rule 12(1) Nothing in Orders 45 to 52 [RC] shall apply in respect of any
order against the Government.
...
F
[7]
The Kuala Lumpur High Courts Registry fixed the hearing of court
encl. No. 30 at 9am, Tuesday, 6 May 2014.
G
[8]
A sealed copy of court encl. No. 30 was served by the plaintiffs
solicitors on AGC on Wednesday, 30 April 2014.
[9]
Thursday, 1 May 2014, was a public holiday. According to an
affidavit by the plaintiffs learned junior counsel, Mr Chan Mun Fei
(Mr Chan), Mr Chan called the learned Senior Federal Counsel, Encik Mohd
Radhi bin Abas (SFC), by telephone on Friday, 2 May 2014, and informed
the learned SFC about the hearing date of court encl. No. 30 on 6 May 2014
(telephone conversation).
[10]
(a) the plaintiff was represented by learned counsel, Mr Siew Yew Ming
(Mr Siew) and Mr Chan;
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(d) the court proceeded to hear court encl. No. 30 in the absence of the
learned SFC and granted an order in terms of court encl. No. 30 (court
order dated 6 May 2014).
[11] On 14 May 2014, the defendant filed a NA (court encl. No. 32) (court
encl. No. 32) to set aside court order dated 6 May 2014 under, among others,
O. 73 r. 7(1) RC.
[12] Pending the hearing of court encl. No. 32, the defendant made two
payments to the plaintiff as follows:
(a) a sum of RM60,443,315.41 was paid on 16 May 2014; and
[13] Before I discuss court encl. No. 32, the basis for the making of the
court order dated 6 May 2014 should be ascertained. Order 32 r. 5 RC is
relevant and is reproduced as follows:
Proceeding in absence of party failing to attend (Order 32 rule 5)
5(1) When any party to a notice of application fails to attend on the first or any
resumed hearing thereof, the Court may proceed in his absence if, having
regard to the nature of the application, it thinks it is expedient to do so.
(2) Before proceeding in the absence of any party, the Court may require to be
satisfied that the notice of application or, as the case may be, the notice of the
time appointed for the resumed hearing was duly served on that party.
(3) Where the Court hearing an application proceeded in the absence of a party,
then, whether or not an order made on the hearing has been perfected, the
Court, if satisfied that it is just to do so, may re-hear the application.
(4) Where a notice of application has been dismissed without a hearing
by reason of the failure of the party who took out the notice of
application to attend the hearing, the Court, if satisfied that it is just
to do so, may allow the notice of application to be restored to the
list.
(emphasis added)
[14] It is clear from O. 32 r. 5(1) and (2) RC that the court may hear court
encl. No. 30 in the absence of the learned SFC provided that the court is
satisfied that court encl. No. 30 has been duly served on AGC. Once a NA
has been duly served on the opposing party:
(a) the court may proceed with the hearing of the NA in the absence of the
opposing party under O. 32 r. 5(1) and (2) RC. I rely on Peter Gibson
Js (as His Lordship then was) decision in the English High Court case
of Westminster City Council v. Government of the Islamic Republic of Iran
[1986] 3 All ER 284 which concerns, among others, O. 32 r. 5(1) and
(2) of the then English Rules of the Supreme Court 1965 (RSC) (similar
to our O. 32 r. 5(1) and (2) RC). In Westminster City Council, at pp. 287288, the English High Court held as follows:
Counsel for the city council then argued that RSC Ord 32, r 5(1) and (2)
(made applicable to originating summonses by Ord 28, r 1) gave the court
power to dispense with service. RSC Ord 32, r 5 provides:
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(1) Where any party to a summons fails to attend on the first or any
resumed hearing thereof, the Court may proceed in his absence if,
having regard to the nature of the application, it thinks it expedient
so to do.
(2) Before proceeding in the absence of any party the Court may require
to be satisfied that the summons or, as the case may be, the notice
of the time appointed for the resumed hearing was duly served on
that party.
It was submitted that r. 5(1) applied because the Iranian government had failed to
attend; but the failure to attend which is referred to in r. 5(1) to my mind connotes
that someone who has been duly served with a summons has failed to attend. Rule
5(2), counsel for the city council submitted, gave the court a discretion to dispense with
service because of the terms of that rule ... the Court may require to be satisfied that
the summons ... was duly served ... But I do not read this rule as a power to dispense
with service. To my mind it is concerned with proof of service, and it puts a party
on notice that proof of service on a person not attending may be insisted on by the
court. In my judgment the rule would be in a different form if it were
directed at allowing dispensation with service. There are, of course, special
and express provisions in the Rules of the Supreme Court allowing
dispensation with service in particular cases, and the contrast with the
present rule is to my mind marked.
Counsel for the city council also reminded me of the wide discretion
conferred on the court by RSC Ord 2, r. 1 to dispense with requirements
of the rules. But I do not regard it as proper in the circumstances of the
present case to treat an application, which to my mind was rightly framed
as an inter partes proceeding, as an ex parte application. Of course, the rules
do provide for some ex parte applications (see for example RSC Ord 50,
r. 1(2)), but again the contrast between such a provision and the present
case is marked. One would expect an express provision dealing with the
matter.
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In the result I find myself forced to the conclusion that I cannot rule on
the question referred to the court without prior service on the Iranian
government.
(emphasis added).
The English High Court insisted in Westminster City Council for due service
of cause papers on the defendant before proceeding in the defendants absence
under O. 32 r. 5(1) and (2) RSC; and
(b) the hearing of an application in the absence of a party who has been duly
served with the application, is considered to be an inter partes (not
ex parte) hearing. In Lee Lim Huat v. Yusuf Khan Ghows Khan & Anor
[1997] 3 CLJ 197, at 209, Gopal Sri Ram JCA (as His Lordship then
was) decided in the Court of Appeal as follows:
Thus, in order to resolve the issue raised by Counsel before this Court,
it is necessary first to determine the nature of the application upon which
the respondents obtained their injunction in this case. If it was an ex parte
application, then, the appellant would be quite right in his contention. If,
on the other hand, it was an inter partes application, then, r. 1(2B) [of Order
29 of the then Rules of the High Court 1980] would have no relevance
and the submission made to us would lack merit. As earlier observed, the
respondents summons taken out on 4 August 1995 seeking the injunction was inter
partes in nature. It was not headed as an ex parte summons. It was served on the
appellants solicitors. The absence of the appellant or his Counsel at the hearing of
the summons on 2 December 1995 did not render ex parte the order made upon it
by the Judge. Order 29 r. 1(2B) has, therefore, no relevance to the present
case. Hence, the argument of Counsel that the injunction had lapsed by
reason of this Rule of Court has no merit whatsoever.
(emphasis added).
(2) Except with the leave of the Court, Order 16, rule 5(1)(a) shall not
apply in the case of third party proceedings against the Government.
(3) An application for leave under this rule must be made by notice of
application, and the notice of application must be served not less
than seven days before the return day.
(emphasis added).
[16]
981
- which have been entered against the Government. I am of the view that
O. 73 r. 7(1) RC cannot be relied on as a basis to set aside the court order
dated 6 May 2014. This is because the court order dated 6 May 2014
only issues a certificate under s. 33(1) GPA in the plaintiffs favour
against the defendant and does not constitute a default judgment against
the defendant. Furthermore, the plaintiff has obtained the Court of
Appeals judgment against the defendant after trial in the High Court and
after the dismissal of the defendants appeal.
[17] The court that has granted the court order dated 6 May 2014, has the
power to set aside the same order under the following provisions of RC:
(a) if the plaintiff has not complied with the RC in obtaining the court order
dated 6 May 2014, the defendant may apply to court to set aside the
court order dated 6 May 2014 under O. 2 r. 2(1) RC read with O. 42
r. 13 RC; or
(b) if the court order dated 6 May 2014 has been obtained regularly by the
plaintiff in the sense that there has been no breach of the RC by the
plaintiff, the defendant may still make an application to court to set aside
the court order dated 6 May 2014 under O. 32 r. 5(3) RC read with
O. 42 r. 13 RC.
[18]
2(1) An application to set aside any proceedings, any step taken in any
proceedings or any document, judgment or order therein for noncompliance with these Rules shall not be allowed unless the
application is made within a reasonable time and before the party
applying has taken any fresh step after becoming aware of the
irregularity and the non-compliance has occasioned a substantial
miscarriage of justice or occasioned prejudice that cannot be cured
either by amendment or an appropriate order for costs.
2(2) An application under this rule may, after notice of the irregularity
has been given to the other party, be made by notice of application
and the grounds of objection shall be stated therein.
Setting aside or varying judgment and orders (Order 42 rule 13)
13. Save as otherwise provided in these Rules, where provisions are made in these
Rules for the setting aside or varying of any order or judgment, a party
intending to set aside or to vary such order or judgment shall make an
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application to the Court and serve it on the party who has obtained the order
or judgment within thirty days after the receipt of the order or judgment by
him.
(emphasis added).
[19] It is my view that any application to set aside any previous order or
judgment to the same court which has pronounced that order or judgment,
should comply with O. 42 r. 13 RC. I cite the judgment of Abdul Hamid
Mohamad CJ in the Federal Court case of Hong Leong Bank Bhd v. Staghorn
Sdn Bhd & Other Appeals [2008] 2 CLJ 121, at 149-150 (Staghorn Sdn Bhd)
as follows:
[43] Considering all these authorities, my conclusion is that an
application to intervene under O. 15 r. 6(2) of the RHC 1980 must
be before judgment. To set aside an order or judgment, there must
be a provision in the Rules that can be relied on for the purpose.
This is provided for in O. 42 r. 13 of the RHC 1980:
[44] Examples of such provisions are O. 13 r. 8, O. 14 r. 11, O. 70 r. 18(6)
and 20(9) and O. 81 r. 7 of the RHC 1980. In other cases, setting
aside may only be done by a fresh action - see Hock Hua Bank Bhd.
v. Sahari bin Murid [1980] 1 LNS 92.
(emphasis added).
Abdul Hamid Mohamad CJs judgment in Staghorn Sdn Bhd, at p. 163 and
190, has been concurred by Azmel Haji Maamor FCJ. The above judgment
concerned O. 42 r. 13 of the Rules of the High Court 1980 (RHC) which is
similar (not identical) to the present O. 42 r. 13 RC.
[20] In this case, court encl. No. 32 complies with the 30-day period
stipulated in O. 42 r. 13 RC as court encl. No. 32 is filed on 14 May 2014,
eight days after the court order dated 6 May 2014.
[21] I must pause here to note that there is nothing in this judgment which
concerns a party filing a fresh action to set aside a court order or judgment.
This court has earlier granted the court order dated 6 May 2014 and court
encl. No. 32 has been filed by the defendant in the same court which gave
the court order dated 6 May 2014.
[22] The next question that arises is whether the plaintiff has complied with
the O. 32 r. 3 RC in obtaining the court order dated 6 May 2014. Order 32
r. 3 RC provides as follows:
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2(1) Any period of time fixed by these Rules or by any judgment, order
or direction for doing any act shall be reckoned in accordance with
the following provisions of this rule.
(2) Where an act is required to be done within a specified period after
or from a specified date, the period begins immediately after that
date.
(emphasis added).
[25] Order 3 r. 2(1) RC expressly provides that any time period fixed by
RC shall be construed in accordance with O. 3 r. 2 RC. As such, s. 54(1)
of the Interpretation Acts 1948 and 1967 (IA) cannot apply to reckon the two
clear days time period specified in O. 32 r. 3 RC. This is clear from the
following High Court cases:
(a) VC George J (as His Lordship then was) decided as follows in Morgan
Guaranty Trust Co of New York v. Lian Seng Properties Sdn Bhd & Anor
[1989] 1 CLJ 452; [1989] 2 CLJ (Rep) 133; [1989] 3 MLJ 172, at 174
(Morgan Guaranty Trust Co):
Encik PS Gill submitted that the reckoning of time has to be done on the basis
provided by the Interpretation Act. However, as was pointed out by Encik
Murthi, s 2(3) of the Interpretation Act does provide that the Act applies only
if no other provisions are available. The extension of time given by the plaintiffs
solicitors was pursuant to the power to do so given by O 3 r 5(3) and accordingly
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the specific provision for reckoning of time given in the RHC will apply in
preference to the general rules of reckoning given in the Interpretation Act.
Accordingly O. 3 r. 2(5) applies.
(b) Abdul Hamid Mohamad Js (as His Lordship then was) judgment in
Credit Corporation Malaysia Bhd v. Saraswathi Narayanan & Ors [1999]
7 CLJ 459, at 462 (CCMs case).
The above two High Court cases is supported by s. 2(3)(a) IA which provides
that Part I of IA (which includes s. 54 IA) does not apply if there is an
express provision to the contrary. Order 3 r. 2 RC is the express
provision to the contrary.
Despite the above two High Court cases, the following cases applied s. 54(1)
IA in computing time periods prescribed by the then RHC:
(i) in the Court of Appeal case of RIH Services (M) Sdn Bhd v. Tanjung Tuan
Hotel Sdn Bhd [2002] 3 CLJ 83; [2002] 3 MLJ 1, at 6, Abdul Hamid
Mohamad JCA (as His Lordship then was) applied both O. 3 r. 2(2)
RHC and s. 54(1)(a) IA to interpret the 21 days time period specified
in O. 29 r. 1(2B) RHC; and
(ii) the judgment of RK Nathan J in Aje Best-On Sdn Bhd v. YB Ahmad Omar
& Anor [2000] 3 CLJ 515, at 517-518.
[26] Mr Siew had submitted persuasively that O. 32 r. 3 RC had been
complied in this case as court encl. No. 30 had been served on Wednesday,
30 April 2014 and even if the public holiday (Thursday, 1 May 2014) and
the weekend (3 May 2014 and 4 May 2014) were excluded, there was
nonetheless due service of court encl. No. 30 of not less than two clear days
before court encl. No. 30 was heard on Tuesday, 6 April 2014.
[27] I am of the following view regarding the reckoning of the two clear
days time period stipulated in O. 32 r. 3 RC:
(a) the construction of O. 32 r. 3 RC based on O. 3 r. 2 RC is a question
of law which is not dependent on the telephone conversation;
(b) Order 3 r. 2(2) RC excludes 30 April 2014 (the day of service of court
encl. No. 30 on AGC) from the computation of the two clear days time
period. I rely on Abdul Hamid Mohamad JCAs (as His Lordship then
was) judgment in the RIH Services (M) Sdn Bhd, at p. 6, as follows:
It should be noted that O. 29 r. 1(2B) of the RHC talks about at the
end of 21 days from the date on which it is granted. Both O. 3
r. 2(2) of the RHC and s. 54(1)(a) of the Interpretation Acts 1948 and
1967 require that the day the order is made to be excluded in
reckoning the 21 days.
(emphasis added)
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(emphasis added).
(emphasis added);
We now come back to the seven-day period from the respective dates of
service of the ex parte order on the defendants for them to comply with
the order. This depends on the answer to the question, even though it
sounds illogical, how many days are there in seven days?
Order 3 r. 2(5) of the RHC 1980 provides: ...
987
(iii) in Bank Utama (Malaysia) Bhd v. Seri Mayhua Sdn Bhd & 3 Ors [2000]
1 LNS 82; [2001] 5 MLJ 169, at 172-173, Sulaiman Daud JC (as His
Lordship then was) held as follows:
Order 3 r 2 of the RHC provides for the reckoning of periods of time
under the RHC. As the period for the issuance of the notice of appeal
under O 56 r 1(3) is less than seven days, the provisions of O 3 r 2(2)
and (5) of the RHC shall apply in reckoning the time limit prescribed
thereunder.
...
Learned counsel for the respondent contended that the five days
period for the issuance of the notice of appeal should run from 8 April
2000, as that day is a Friday and not a weekly holiday or public holiday
and since the notice of appeal was issued on 13 April 2000, it had
exceeded the five days limit prescribed therefor by one day. Learned
counsel for the appellant, on the other hand, contended that in
reckoning the period in question, 8 and 9 April 2000, being the day
before a weekly holiday and a weekly holiday respectively, should be
excluded. It is not disputed that 9 April 2000 which falls on Sunday
is the weekly holiday for the state of Sarawak and should be excluded
by virtue of O. 3 r. 2(5) of the RHC in reckoning the five days period
within which the notice of appeal should be issued. Having excluded
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the said 9 April 2000, it is clear that the notice of appeal was issued
within the prescribed period and as such I can dismiss the preliminary
objection on this ground alone. Further, I also agree with the learned
counsel for the appellant that 8 April 2000, being the day before a
weekly holiday, should also be excluded in reckoning the said period.
(iv) Low Hop Bing J (as His Lordship then was) decided as follows in
Re Stephen Wong Leong Kiong; Ex P HSBC Bank Malaysia Bhd [2005] 5
CLJ 504, at 508-509:
The reckoning of a period of time is provided for in O. 3 r. 2(1), (2)
and (5) of the RHC in the following words:
...
In my view, under O. 3 r. 2(2), the day on which an act is required
to be done within a specified period after or from a specified date, that
day itself shall be excluded from the reckoning of the period of time,
whether it was a period of eg, thirty days, or seven days as in the
instant appeal.
989
On the other hand, in Bank Utama (M) Bhd v. Seri Mayhua Sdn Bhd &
Ors [2001] 5 MLJ 169, the notice of appeal to judge in chambers,
pursuant to O. 56 r. 1, was issued on Thursday 13 April 2000 while
the decision was made on Friday 7 April 2000. A similar objection was
raised that the notice of appeal was issued out of time. Sulaiman JC
(now J) held that 8 April 2000 being the day before a weekly holiday should
be excluded, as well as 9 April 2000 which was a Sunday, so that the notice
of appeal was issued on time, the reckonable days being 10, 11, 12 and 13 April.
The learned judge rejected the defendants contention that the five-day period
should run from 8 April 2000, as that was a Saturday and not a weekly
holiday and since the notice of appeal was issued on 13 April 2000, it had
exceeded the five days prescribed therefor by one day. With the utmost respect,
I would agree with the decision of Sulaiman JC (now J) in relation to the
exclusion of Saturday being the day before the weekly day, under the clear
provisions of O. 3 r. 2(5); and respectfully decline to follow the decision of RK
Nathan J to the contrary.
(emphasis added);
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(emphasis added).
Based on Pembangunan Maha Murni Sdn Bhd, the fact that Saturdays
are ordinarily not working days in Malaysia is the subject of
common and general knowledge and its existence or operation is
accepted by the public without qualification or contention. Such a
fact is sufficiently notorious for me to take judicial notice. I can
also take judicial notice that the court registry is closed on
Saturdays. If parties and solicitors generally do not work on
Saturdays and the court's registry is also closed on Saturdays, it will
be unjust to include Saturdays in the computation of a time period
of seven days or less. Accordingly, I will adopt a purposive
interpretation of O. 3 r. 2(5) RC to exclude Saturdays from the
reckoning of a time period of seven days or less;
(g) applying the second interpretation (to exclude Saturday, 3 May
2014, from the computation of two clear days period), O. 3 r. 2(4)
RC has been complied with in this case. This is because at least two
working days (Friday (2 May 2014) and Monday (5 May 2014))
have intervened between the day of service of court encl. No. 30 on
AGC (Wednesday, 30 April 2014) and its hearing (on Tuesday,
6 May 2014); and
(b) includes:
(i) a Saturday or Sunday; or
(ii) a Bank Holiday, Christmas Day or Good Friday, that
day does not count.
991
Example
Notice of an application must be served at least 3 days before
the hearing.
An application is to be heard on Monday 20 October.
[29] I am not able to find any Malaysian case which has interpreted O. 32
r. 5(3) RC. In United Malayan Banking Corp Bhd v. Syarikat Perumahan Lunas
Sdn Bhd [1988] 1 LNS 143; [1988] 1 MLJ 546, at 546-548 (UMBCs Case):
(a) the plaintiff bank had duly served on the defendant an originating
summons (OS) to apply for an order for the sale of the defendants land
charged to the plaintiff bank (charged land);
(b) the defendant did not enter appearance in the OS and was absent for the
hearing of the OS;
(c) the High Court ordered the sale of the charged land (order for sale of
charged land); and
(d) the defendant applied to set aside the order for sale of charged land and
the plaintiff bank raised a preliminary objection that the High Court is
functus officio after the perfection of the order for sale of charged land and
the defendant should have appealed to the Supreme Court against the
order for sale of charged land.
[30] In UMBCs case, at pp. 547-548, Edgar Joseph Jr J (as His Lordship
then was) held as follows:
In reply, counsel for the defendant contended that an order made on an
originating summons, even though duly served on a defendant, who fails
to enter an appearance and is absent at the hearing is, nevertheless, an
ex parte order. My attention was drawn to the Singapore Court of Appeal
case of United Overseas Bank Ltd v. Chung Khiaw Bank Ltd [1968] 2 MLJ 85
where Chua J., delivering the judgment of the court, said this:
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[2015] 6 CLJ
Where any party who had been duly served fails to attend
at the time appointed for the hearing, the judge may
proceed ex parte, if he thinks it expedient to do so, and may
require such evidence of service as he thinks fit.
It is clear then that a judge may proceed ex parte to hear an
application where a party duly served fails to appear at the time
appointed for the hearing. An application so heard in the absence
of a party is not an ex parte application. It is the hearing which is
ex parte and an order made on such a hearing is an ex parte order
within the terms of Order LIII rule 4(1).
Order LIII rule 4(1) of the Singapore Rules of the Supreme Court, then
in force, was as follows:
Any order made ex parte may be varied or set aside on application,
by any person affected by it, to a judge, on such terms as to costs
or otherwise as to the judge seems fit.
me that the court in its inherent jurisdiction can set aside its own
order; and that an appeal from the order is not necessary. I say
nothing on the question whether an appeal from the order,
assuming that the appeal is made in proper time, would not be
competent.
For the reasons urged by counsel for the defendant, I had no hesitation
in overruling the preliminary objection.
993
I might as well add that I did not consider that Order 32 rule 5(3) [RHC],
which provides:
...
C
and relied upon by counsel for the plaintiff, had any relevance to the issue
which arose before me because I was not concerned here with an application
to re-hear a summons but an application to revoke an ex parte order. Nor,
for that matter, did I consider the case of Hamzah bin Abdul Majid
and Anor v. Sungei Way Leasing Sdn Bhd [1986] 1 MLJ 471 of any
relevance because there the decision in question was one arrived
at after an inter partes hearing so that Order 28 rule 4(1) was without
application.
[31]
(a) the High Court set aside the order for sale of charged land under the then
O. 28 r. 4(1) RHC which allowed the court to vary or revoke the order
for sale of charged land made in the absence of the defendant. The
present O. 28 r. 4(1) RC is not identical to O. 28 r. 4(1) RHC and
provides as follows:
4(1) The Court hearing an originating summons may, if the liability of the
defendant to the plaintiff in respect of any claim made by the plaintiff is
established, make such order in favour of the plaintiff as the nature of the case
may require, but where the Court makes an order under this paragraph
against a defendant who does not appear at the hearing, the Court, if satisfied
that it is just to do so, may rehear the originating summons.
(emphasis added);
(b) the High Court did not decide in UMBCs case on O. 32 r. 5(3) RHC
(similar to O. 32 r. 5(3) RC); and
(c) once the OS has been duly served on a defendant, the court may hear
the OS in the defendants absence under O. 28 r. 4(1) RC and such a
hearing is an inter partes and not an ex parte proceeding please see the
above Court of Appeals judgment in Lee Lim Huat, at p. 209.
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[2015] 6 CLJ
[32] The functus officio doctrine as decided by case law, provides that a
court has no jurisdiction or power to re-visit, vary or revoke an earlier order
or judgment which has been perfected. In Staghorn Sdn Bhd, at p. 154, Abdul
Hamid Mohamad CJ explained the application of the functus officio doctrine
as follows:
[58] First, an application to set aside an order for sale by an existing party
to the proceeding may be made before the final order is perfected,
otherwise the judge is functus officio.
(emphasis added).
[34]
995
(a) The first condition is fulfilled as the defendant is absent when the court
order dated 6 May 2014 is pronounced; and
B
(b) It is just to set aside the court order dated 6 May 2014 and to re-hear
court encl. No. 30 because:
(i) the defendant should be given an opportunity, if not a right, to
explain why the certificate should not be issued against the
defendant, especially when the defendant has already paid to the
plaintiff a substantial portion of the judgment sum (a total of
RM66,312,709.50), leaving only an unpaid balance sum of
RM1,762,635.39 as at 12 December 2014;
(ii) 6 May 2014 was the first hearing date of court encl. No. 30. Under
O. 32 r. 13(2)(b) RC, the defendant has 14 days (14 days period)
to file and serve an affidavit to reply to court encl. No. 30 and the
plaintiffs affidavit in support thereof. There was no compelling
reason why court encl. No. 30 had to be heard on the very first
hearing date, especially when the defendant was still within the
14 days period. Nor was there any reason why a short adjournment
of court encl. No. 30 could not be given by the court with the courts
direction to the plaintiffs solicitor to inform AGC that the court
would proceed to hear court encl. no. 30 on the next hearing date
without any further postponement; and
(iii) there is no prejudice to the plaintiff if this court set aside the court
order dated 6 May 2014 and re-hear court encl. No. 30:
F
(1) the Court of Appeals judgment is final and res judicata in the
sense that the defendant cannot re-visit and challenge the
validity of the Court of Appeals judgment please see the
Supreme Courts judgment in Asia Commercial Finance (M) Bhd
v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189,
at 197-198, 198-199 and 199-200, regarding the application of
the cause of action estoppel doctrine and issue estoppel
doctrine; and
(2) irrespective of the delay in the disposal of court encl. no. 30,
post-judgment interest continues to accrue in the plaintiffs
favour until the defendants full payment of the judgment sum
to the plaintiff.
[35]
I
(a) in the finest tradition of the Bar, Mr Siew properly and magnanimously
concede to a re-hearing of court encl. No. 30 under O. 32 r. 5(3) RC;
and
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[2015] 6 CLJ
(i) allowed court encl. no. 32 and set aside the court order dated
6 May 2014 with no order as to costs; and
(ii) ordered court encl. no. 30 to be re-heard on 19 December 2014 with
no further adjournment of court encl. no. 30.
(a) both parties informed the court that a substantial portion of the balance
sum had been paid by the defendant to the plaintiff;
(b) the plaintiff did not intend to proceed with court encl. no. 30; and
(c) this court exercised its discretion under O. 21 r. 6 RC to strike out court
encl. no. 30 with no order as to costs and with no liberty to the plaintiff
to file a fresh similar application (because the defendant has paid to the
plaintiff almost the entire judgment sum).