Case Note No. 4 - 2011

Case Note

RISNOBES DEVELOPMENT STRATEGY SDN BHD

V

KOPEEASI MALIMJAYA BERHAD

High Court Ipoh– Civil Suit No. 22-110-2007

Tarmizi bin Abd Rahman JC

22 February 2011

Civil Procedure-Stay of Execution-Summary Judgment-Error in granting Summary Judgment admitted in Grounds of Judgment-Whether a occasion of special circumstances.

Brief Facts

Summary Judgment was entered on 7.12.2009. An appeal was lodged to the Court of Appeal. In the grounds of judgment, the trial judge kindly admitted that the Summary Judgment was granted in error. The learned trial judge proceeded to both identify issues to be tried and under the 2^nd limb of RHC O14 r3(1) the existence of some other reason for the trial of the action.

Counsel for the Defendant naturally relied on the grounds and argued that there exists special circumstance to justify a stay of execution pending appeal.

The celebrated High Court decision in Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86 where Raja Azlan Shah J (as his lordship then was) was refereed to, where the following paragraph was commended to the court:-

“Special circumstances, as the circumstances implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something which exceeds or excels in some way that which is usual or common”.

Counsel further submitted that a refusal to grant a stay of execution is akin to issuing a license to the Plaintiff to issue execution based on a Judgment whose propriety is disputed even by the trial Judge.

In reply counsel for the Plaintiff asserted that such error even if true does not constitute an occasion of special circumstance. The Plaintiff relied on the High Court decision in Paranchothi K Ramalingam & Or v Sentul Raya Sdn Bhd [2007] 10 CLJ 421.

In the Paranchoti case, the Judge after granting a Summary Judgment admitted in the grounds that the Judgment was granted in error. The Defendant filed an application to set aside the judgment and/or to in invoking the “slip rule” to amend the Judgment to reflect the opinion expressed by the Judge in the Grounds. The Application was dismissed.

The High Court ruled, correctly, that the slip rule has no application to the facts of the matter. The High Court nonetheless opined that the Grounds of Judgment provides a cogent basis for the Appeal at the Court of Appeal on the existence of issues to be tried.

On the other hand, the High Court accepted the submission by the Plaintiff that even with the admission of error by the learned Judge, it is foreseeable that the Court of Appeal may disagree with the High Court and sustain the Summary Judgment in spite of the Grounds.

The Plaintiff counsel further made a tactical decision not to contest the stay per se but to invite the Court to order a conditional stay on the terms that the entire Judgment debt be paid to the joint account of the Solicitors.

Judgment of Termizi JC

In his lordship’s oral judgment, the High Court ruled that the kind admission of error by the Trial Judge constitute an occasion of special circumstances warranting a stay. The Court also took into account that the short date of the Appeal to the Court of Appeal. 

Commentary

It must be noted that the Plaintiff counsel made a tactically sound decision to invite the court to grant a conditional stay and not contest the application outright.

Despite this decision, the Author commends the High Court for ruling that an error in granting a Summary Judgment is an occasion of special circumstance. A look at the journals indicate that this specific point appears not to have been considered before. On one hand, perhaps because it appears too obvious that such error would warrant a stay but nonetheless by this Judgment, the Ipoh High Court has made a ruling as to what constitutes an occasion of special circumstances.

Dated 3 May 2011

Norazali Nordin

Chair

Professional Development Sub-Committee

Perak Bar 

Case Commentary No. 3

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CASE COMMENT No. 2

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CASE COMMENT

NORWEST HOLDINGS SDN BHD V MUHIBBAH ENGINEERING (M)BHD

HIGH COURT MALAYA, SHAH ALAM

Civil Suit No. MT1-22-812-2001

SURIYADI HALIM OMAR, J

18 OCTOBER 2004

Civil Procedure-Striking Out –Time frame to file O.18 r. 19 RHC 1980 application- Interpretation of phrase “at any stage of proceedings”-Effect of amendments to Rules of the High Court vide O. 1A and O 2 r 3.

Brief Facts

Object of this case note is to highlight the unique feature of this suit where a striking out application (“the application”) pursuant to O. 18 r 19 RHC 1980 and inherent powers of Court was allowed by the High Court despite such application being filed by the Defendant:-

(i) 3 month after close of pleading;

(ii) 2 and ½ month after the O34 RHC 1980 pre trial case management notice was filed by the Plaintiff;

(iii) After having filed unconditional appearance.

Naturally, the Plaintiff argued that it was too late in the day for the application to be entertained.

Plaintiff placed reliance on the following authorities in support of their contention:-

(i) Thiruchelvasegaram Manickavasegar v Mahadevi Nadchatiram [2001] 3 CLJ 743 HC where the Court held that a striking out application must normally be made before close of pleading;

(ii) Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 CLJ 461 SC and Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor [2001] 7 CLJ 313 HC for the proposition that one is precluded from filing the application after having filed an unconditional appearance.

The Court, in face of what was thought as settled law, pronounced that the time frame to file the application has changed, a change prompted by P.U.(A) 197 which introduced O 1A and O. 2 r 3 RHC 1980 on 16.5.2002.

Suriyadi J opined that by these amendments, the Courts are now required to have regard to the justice of the particular case and not only technical non compliance of the Rules and in effect placed “all technical objections at its rightful place , i.e., irrelevant at its rightful place”

The Court took note that O 18 r 19 RHC 1980 “in no uncertain term” expressly state that the court may at any stage of the proceeding order among others that a pleading be struck out. Nothing is provided under O 18 to preclude the filing of the application on the grounds either that pleadings are closed or that the applicant had filed an unconditional appearance.

The High Court ruled that to maintain a restrictive definition to the phrase “at any stage of the proceeding” to preclude applications so filed after close of pleading and after filing of an unconditional appearance result in the denial of the “court’s right” to exercise its discretionary powers accorded by O.18 r 19 RHC 1980 and other provisions of the Rules of High Court including O1A and O2 r 3 RHC 1980.

In short, the Court ruled that O 18 r 19 RHC 1980 falls within the ambit of the spirit of O1A and O 2 r 3 RHC 1980 in that administration of the rules of court concerns more on justice of the case as opposed to technical non compliance of the rules. Thus the 3 cases referred by the Plaintiff above which were all decided before May 2002 (prior to the introduction of O1A & O2 r 3 RHC 1980) in support of the contention that the application was not promptly filed was in the words of Suriyadi J “doomed to meet failure”

Commentary

Courts are created to settle disputes between litigants. Such dispute ought not be resolve by resorting to technical or procedural objections that does not relate to the root of the dispute unless substantial injustice is caused. To that end it is submitted that this judgment is of immense benefit to practitioners.

Unless amended, a suit that is liable to be struck out on the grounds that its pleadings is plain and obviously unsustainable, remains plain and obviously unsustainable no matter how late an application to strike out is filed.

Even if the Court forms the view that the application was not filed promptly, it is submitted that the necessary penalty by way of denial to an order of cost either in part or in full can be made thus depriving the dilatory applicant from what should be his order for cost in a successful application.

This would serve the administration of justice a great deal better than to permit a suit premised on a pleading which is plain and obviously unsustainable to be litigated in a full blown open court trial which naturally takes time, expense and manpower to conclude.

Note

Readers do note that this case note focus solely on the time frame for filing of a striking out application and how that time frame has change as a result of the amendment to the Rules of High Court 1980. The issue of the merits on the application subject matter of this suit is not considered. This case is reported as Norwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd [2004] & CLJ 400

Dated 10^th February 2010

Norazali Nordin

Chair

Professional Development Sub Committee

Perak Bar