Uob Kay Hian Pte Ltd V Ma Boon Lan


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CIVIL APPEAL NO. Q – 02([M) – 2016 – 2011




UOB KAY HIAN PTE LTD No. 1, Bonham Street,


20-01-UOB Building,


Singapore 0104. – APPELLANT






c/o Soon Ho Hin Service Station No. 23, Merbau Road,


98000 Miri, Sarawak. – RESPONDENT


[In the matter of Civil Suit No. MR. 83 of 1987 and in the matter of Applications for Execution Nos. 36-01-2005(MR) and 36-04-2010(MR) in the High Court of Sabah and Sarawak at Miri




Kay Hian Pte Ltd – Plaintiff/Execution






Ma Boon Lan – Defendant/Execution






Abdul Wahab Patail, JCA Zaharah Ibrahim, JCA Mohamad Arif bin Md Yusof, JCA


Date of Judgment: 9th April 2013




[1] By its Notice of Appeal, the judgment creditor UOB Kay Hian


Pte Ltd (the Appellant) appealed against the decision of the


Judicial Commissioner who had


(1) Dismissed the judgment creditor’s appeal to the Judge in Chambers against the Deputy Registrar’s decision to dismiss the judgment creditor’s preliminary objections on the Assessment of Damages in Application for Execution No. 36-01-2005(MR);


(2) Dismissed the judgment creditor’s appeal to the Judge in Chambers against the Deputy Registrar’s decision to allow Judgment Debtors Assessment of Damages in the sum of RM 115,484.45 with costs in Application for Execution No. 36-01-2005(MR);


(3) Ordered that both dismissals be with costs to be taxed; and


(4) Allowed the Respondent/Execution Debtor’s Summons In Chambers in Application for Execution No. 36-04-2010(MR) with costs to be taxed.




[2] In the appeal before this Court, the three issues raised for the Appellant revolved upon the argument that the order of 12/12/2005 and 8/2/2006 was a nullity because there was no judgment. It was prayed for the Appellant therefore that


(1) the Appellant’s preliminary objections be allowed;


(2) the purported damages as assessed at RM115,484.85 be set aside; and


(3) the Appellant’s Summons for Directions for Sale be reinstated for hearing.


[3] The submissions for the Respondent however dwelt on elementary principles that:


(1) there cannot be an assessment of damages without there first being an order granted by a court having the power or jurisdiction to do so, that the damages be assessed (Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565 FC);


(2) a party is bound by its pleadings, and assessment of damages is not pleaded, no order for assessment of




damages can be granted (Anjalai Ammal & Anor v Abdul Kareem [19691 1 MLJ 22 FC; State Government of Perak v Muniandy [19861 IMLJ 490 SC; Wisma Punca Emas Sdn Bhd v Dr. Donal R. O’Holohan [19871 1 MLJ 393 SC);


(3) no party can improve on its pleadings by affidavit (United Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) Sdn Bhd & Ors. [19831 1 MLJ 206 FC);


(4) a nullity will always remain a nullity.


[4] The submissions concluded:


“9.1. This appeal must be read together with the Civil Appeal No. Q-02(IM)-1910-2010 which centres on the same issue of “damages to be assessed” where there is NO JUDGMENT.”


“9.2. The High Court Order made on the 12.12.2005 for “damages to be assessed” is a nullity for the reasons stated above and which said reasons




are thoroughly supported by the legal authorities cited.”


“9.3. In the premises the Appellant humbly prays that this appeal be allowed with costs here and below in the following terms:


i. the Appellant’s preliminary objections be allowed;


ii. the purported damages as assessed at RM115,484.85 be set aside; and


iii. the Appellant’s Summons for Directions for Sale be re-instated for hearing.”


Reasoning and Decision


[5] If this appeal must be read together with Civil Appeal No. Q-02(IM)-1910-2010, there ought to have been an application made for the two appeals to be heard together. Without an order that the appeals be heard together, each appeal must be heard separately and upon its own record. We observe also that although it was submitted for the Appellant this appeal must be read together with the other appeal, the




records of that appeal was not filed in the record of this appeal. In the event, this appeal will be heard on its merits on its own record of appeal.


[6] Although the law with regard to the reasons rendering an order that is a nullity is clear, the submission must condescend to the facts so as to demonstrate that the reasons are applicable to this case.


[7] We find at page 4 of the Written Submissions the following:


“3.1 The Defendant/Respondent’s Counterclaim in Suit No. MR. 83 of 1987 was dismissed by the Court of Appeal and leave to appeal to the Federal Court was refused.


3.2. There was no pleadings and no particulars of the Defendant/Respondent’s alleged damages which is based on the alleged damages caused by the Court setting aside the Appellant/Plaintiffs Prohibitory Order: indeed it was also impossible for the Respondent/Defendant to plead the alleged damages as those alleged damages




came after the action was decided by the Court of Appeal on the 08.08.2003 in the execution proceedings.


3.3. The alleged damages were allegedly arose from the abuse of the Court process by the Plaintiff/Appellant in registering the said Prohibitory Order and if so, this will require a new legal proceedings and not by an Interlocutory application in execution proceedings by Summons in Chambers.”


[8] The acknowledgement it was impossible for the Respondent to plead the alleged damages since the damages occurred after the decision on 8/8/2003 leads to the conclusion that the submission “that there was no pleadings” somewhat hollow.


[9] The requirement of civil procedure is that causes of action and the facts relied upon must be pleaded. The reason is that the other party be given notice and the opportunity




(1) to concede so that he need not be burdened with costs therefore;


(2) to check and verify the cause of action and the facts;


(3) to seek further and better particulars if necessary to defend himself; and


(4) to check and verify the evidence relied upon on disputed facts by interrogatories and discovery.


[10] The purpose is to enable a party to be satisfied that the facts relied upon are true and correctly stated. It facilitates settlement, and if the matter cannot be settled, it facilitates proceeding to trial only on for the hearing of disputed evidence that can and need to be tested before the Court so as to determine the weight if any that is to be given to such evidence, before proceeding to a hearing of submissions. In this manner the rules of civil procedure seeks to ensure that as far as is humanly possible, the facts and evidence put before the Court for judicial appreciation and decision can safely be taken into consideration and given the weight that is warranted.




[11] If litigation lawyers take all these actions, the record eliminates the injustice of any error, bias or even corruption through the appeal process, or where there is no further appeal, by the review process of that final court.


[12] Although loss and damage suffered is a question of fact, the fact that it is not pleaded is fatal only as to an immediate order of damages to be paid, but is not fatal to obtaining an order for assessment of damages. The heads of damages is a matter of law and may be argued at the Court hearing the issue of liability, or may be settled by the parties at the stage of assessment of damages. Civil procedure does not require the law to be pleaded. Every counsel is expected to know his law.


[13] The foregoing explains that the objection on failure to plead is not to be taken too far, beyond what it is adopted for, as a convenient escape. It is bad law that having decided there is liability to say that the Court cannot give a remedy by an order that the damages be assessed.


[14] At paragraph 6, it was submitted that:




“6.1. Firstly, in order to seek a prayer or remedy in Court for “damages to be assessed” a person must have an actionable case or cause of action by which he can apply to the Court for Judgment for damages and the said remedy of “damages to be assessed”.


6.2. A person cannot simply apply to the Court for “damages to be assessed” just because he wishes to do so or presumed he can do so without an actionable case or cause of action either in contract or in tort.


6.3. Secondly, for a claim on “damages to be assessed” the person claiming must also show particulars of the loss or damage suffered by him and he must prove the said loss and damage that he suffered in order to sustain his claim for “damages to be assessed”.


6.4. In this case, nowhere in the Defendant’s said Statement of Defence and Counterclaim did he particularize or lay out the loss and damages




suffered by him nor was there any proof before the Court that he had actually sustained or suffered the said loss or damages.


6.5 In the absence of any proof of any loss of damages, the Defendant has no locus standi or actionable case or cause of action to claim for “damages to be assessed” and the Court has no jurisdiction to entertain the said claim mu[ch] less to grant an Order for “damages to be assessed” as was done in the impugned Order given on the 12.12.2005 and dated 08.02.2006.”


[15] The order of 12/12/2005 was appealed to the Court of Appeal. The appeal was dismissed 28/7/2008.


[16] The specific order appealed from is the decision of the High Court made on 16/6/2011. This and the several applications were addressed by the High Court in its ruling. The High Court held:


12. I shall now deal with Application for Execution No. 361-2005. In respect of Encl. 178




and Encl. 194, the DR was merely carrying out the assessment of damages pursuant to the Order made by the High Court Judge on 12.12.2005. He was in no position to override the order of the High Court Judge. When the Notice of Appointment of Assessment of Damages was fixed for hearing on 22.9.2008, the Plaintiff had not filed suit 22-19-2009 for a declaration that it was a nullity. Assuming that suit 22-19-2009 had been filed, the DR could not in any event set aside the Order of the Judge made on 12-122005 and there was no application by the Plaintiff to stay the assessment of damages pending the hearing of suit 22-19-1990.


13. Therefore, the DR did not err to dismiss the preliminary objection of the Plaintiff. The Plaintiff decided not to take part in the assessment of damages and there was nothing wrong in the DR in proceeding to hear the assessment of damages in the absence of the Plaintiff. In this appeal there was no complaint by the Plaintiff on




both the fact and the quantum of damages as assessed by the DR. Therefore the appeal in Encl. 194 is also dismissed with co[s]ts.


[17] Clearly the Appellant is seeking to appeal against an assessment of damages that it had decided not to take part in. In the circumstances, we agree with the High Court and dismiss the appeal with costs which unless otherwise agreed is fixed at RM10,000.00. Deposit to account of costs.






Court of Appeal, Malaysia Putrajaya


Dated: 9th April, 2013 Counsels/Solicitors


for the Appellant: Mr. Tai Choi Yu


Messrs Tai Choi Yu & Co


No. 12, 1st Floor, Kiat Sing Building Jalan Bendahara 98000 Miri, Sarawak Tel: 6085-436978, 437978/


Fax: 6085-418823




for the Respondent:


Mr. Louis Achuk, Mr. Antonio Sim & Mr. Jason Wong Seng Ho


Messrs Kadir, Wong , Lin & Co


Nos. 98 & 100, 1st & 2nd Floor Jalan Bendahara 98000 Miri, Sarawak Fax: 418998



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