AntaraA2i Co. Ltd … Plaintif(No. Syarikat : 2107 T)DanMitv Corporation Sdn Bhd … Defendant(No. Syarikat : 461039 – X)

  

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DALAM MAHKAMH TINGGI MALAYA DI KUALA LUMPUR

 

(BAHAGIAN DAGANG)

 

GUAMAN NO: D-22-1867-2006

 

ANTARA

 

A2i CO. LTD … PLAINTIF

 

(No. Syarikat : 2107 T)

 

DAN

 

MiTV CORPORATION SDN BHD … DEFENDANT

 

(No. Syarikat : 461039 – X)

 

Grounds of Decision

 

Azizah Nawawi, J:

 

Applications

 

[1] There are two (2) applications before this Court:

 

(i) Enclosure (41) is the Defendant’s application to strike out the Notice of Appointment for assessment of damages dated 8.1.2014 in enclosure (29). The grounds of application are non compliance with Order 37 r 1(1) Rules of Court 2012, which requires the Plaintiff to apply to the Registrar for direction within one month from the date of judgment with regards to the assessment of damages and that there was an inordinate delay in filing the Notice of Appointment.

 

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(ii) Enclosure (45) is the Plaintiff’s application to extend or abridge time in respect of the Notice of Appointment for Assessment of Damages in enclosure (29).

 

The Salient Facts

 

[2] In this suit, judgment was entered against the Defendant on 27.10.2010 (Judgment), and the Court granted an order, among others, damages to the Plaintiff on a quantum meruit to be taxed by the Court.

 

[3] Being dissatisfied with the said Judgment, both parties filed an appeal to the Court of Appeal. Both appeals were dismissed on

 

22.3.2013. The Defendant filed a Motion for leave to appeal against the decision of the Court of Appeal, and the same was dismissed by the Federal Court on 21.8.2013.

 

[4] The Plaintiff then filed a Notice of Appointment for Assessment of Damages (enclosure 29) on 8.1.2014 pursuant to the Judgment dated 27.10.2010. From the Court records, there were nine (9) case managements on enclosure (29) that is on 27.2.2014,

 

1.4.2014, 28.5.2014, 16.6.2014, 22.7.2014, 28.8.2014,

 

26.9.2014, 24.10.2014 and 25.11.2014.

 

[5] The hearing for the assessment of damages was fixed on 27.3.2015 but it was adjourned to 24.4.2015 as the Defendant’s counsel did not possess a practicing certificate. On 24.4.2015, a new counsel took over the conduct of the Defendant’s case and seeks a new case management date, which was fixed on

 

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19.6.2015. On 30.7.2015, the Defendant’s Counsel informed the Court that they have filed enclosure (41) to strike out enclosure (29). After several case managements on the filing and exchange of the affidavits, both enclosures (41) and (45) were heard by this Court, where this Court had dismissed enclosure (41) and struck out enclosure (45).

 

The Findings of the Court

 

[6] It is not in dispute that the Plaintiff has failed to comply with Order 37 r 1(1) ROC 2012, which takes effect on 1.8.2012 and states as follows:

 

“1. (1) Where judgment is given for damages to be

 

assessed and no provision is made by the judgment as to how they are to be assessed, the damages shall, subject to the provisions of this Order, be assessed by the Registrar, and the party entitled to the benefit of the judgment shall, within one month from the date of the judgment, apply to the Registrar for directions and the provisions of Order 34 shall, with necessary modifications, apply.”

 

[7] It is also not in dispute that the Plaintiff has only filed enclosure (29) on 8.1.2014, which is more than three (3) years after the date of the Judgment. However, it is the submission of the Plaintiff that because the Judgment was entered in 2010, before the commencement of the ROC 2012, then the Plaintiff need only to comply with the Rules of High Court 1980 (RHC 1980), which did

 

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not prescribe any time frame for the filing of the notice of appointment for assessment of damages.

 

[8] The Plaintiff further submitted that Order 37 rule 1 (1) of the ROC 2012 has the effect of “affecting the right, privilege, obligation or liability of the Plaintiff acquired, accrued or incurred” under the RHC 1980, under Order 37 rule 1 (1), which is to file a Notice of appointment for the assessment without any time constraint. The new ROC 2012, under the new provision of Order 37 rule 1(1) would affect the Plaintiff’s right, as there is now a time frame of one (1) month for the Plaintiff to apply to the Registrar for directions. Thus the effect is that the Plaintiff is placed in a position of non compliance with the ROC 2012, which now forms the basis of the Defendant’s application.

 

[9] Thus, the Plaintiff submits that O 37 r 1(1) of the ROC 2012, which affects the rights of the Plaintiff must operate prospectively, and since the Judgment was entered before ROC 2012 comes into effect, therefore the Plaintiff’s application for assessment of damages premised on the 2010 Judgment must be still subject to the RHC 1980.

 

[10] Even though the Judgment was entered in 2010, the Plaintiff did not file the Notice for Assessment before the ROC 2012 comes into effect. The Plaintiff only filed enclosure (29) in 2014, after ROC 2012 comes into effect. Therefore, when enclosure (29) was filed in 2014, it must comply with the ROC 2012. In the case of Tribunal Tuntutan Pembeli Rumah v. Westcourt Corporation Sdn Bhd & Other Appeals [2004] 2 CLJ 617, the issue before

 

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the Court of Appeal is whether the Housing Tribunal has any jurisdiction to hear house buyers’ claim arising from sale and purchase entered into with the developers before 1.12.2002, the appointed date which the Amending Act takes effect. The Court of Appeal held that the date of the sale and purchase agreement is not material, so long as the statutory conditions were satisfied. In the present case, the date of the Judgment is not material, but when the Plaintiff files enclosure (29) after the ROC 2012 comes into effect, then the Plaintiff will have to comply with the procedures set out in the ROC 2012, not under the RHC 1980.

 

[11] Therefore, I also agree with the Defendant that pending applications or proceedings must comply with the ROC 2012 pursuant to Order 94 rule 3 (2) which reads:

 

“(2) All pending actions and applications that were commenced before the date of coming into operation of these Rules shall, from the date of coming into operation of these Rules, proceed in accordance with the provisions of these Rules.”

 

[12] Therefore, once the Plaintiff filed for assessment for damages in 2014, the Plaintiff must comply with ROC 2012, specifically Order 37 r 1(1).

 

[13] However, I do not agree with the Defendant’s contention that the Plaintiff is required to apply to the Registrar within one month from the Judgment of 27.10.2010 for directions as to how the damages would be assessed. This is because the ROC 2012 only

 

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takes effect on 1.8.2012 and under the RHC 1980, there was no time frame to file the Notice of Appointment.

 

[14] I am of the considered opinion that it is only after 1.8.2012 that the Plaintiff must make the application to the Registrar under O 37 r 1(1) ROC 2012. In the circumstances of this case, it is then incumbent on the Plaintiff to apply for an extension or an abridgment of time to cure enclosure (29), which the Plaintiff did in enclosure (45).

 

[15] So, the next issue is whether this Court should allow the Defendant’s application and struck out enclosure (29) for non compliance with Order 37 r 1(1) ROC 2012.

 

[16] From the factual matrix of this case, the Defendant only took this objection by filing enclosure (45) on 20.7.2015, which is more than one and half year after the Plaintiff filed the Notice for assessment of damages in enclosure (29) on 8.1.2014.

 

[17] Apart from the delay in taking the objections, the Defendant had actively participated in the case managements before the learned SAR, where the SAR gave directions for the purpose of the assessment. The SAR fixed the hearing of the assessment on

 

20.3.2015, but it was counsel for the Defendant who seeks an adjournment and it was adjourned to 24.4.2015. Again new counsel for the Defendant applied for an adjournment before filing this application on 20.7.2015.

 

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[18] In view of the peculiar circumstances of this case, where the Defendant did not raised any objection for nearly two (2) years during any of the case management and the hearing dates, but have sought to adjourn the hearing twice, before filing this application about one and half year later, I am of the considered opinion that by their conduct, the Defendant should be estopped from raising the objections premised on Order 37 r 1(1). In Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565, the Federal Court held at page 583 with regards to the doctrine of estoppels:

 

“In the context of litigation, it usually arises where a party to an action has at least two alternative and mutually exclusive courses open to him. If by words or conduct he elects to pursue one of them and thereby leads his opponent to believe that he has abandoned the other, he may, if the circumstances so warrant, be precluded from later changing course.”

 

[19] Added to that, there is also no prejudice to the Defendant as they have participated in the case managements, and if the Defendant had not applied for an adjournment of the hearing dates, the assessment would have been completed already. On the other hand, to allow the Defendant’s application will be highly prejudicial to the Plaintiff, who has secured a judgment against the Defendant all the way to the Federal Court.

 

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[20] Next will be the issue of whether there has been an inordinate and inexcusable delay in filing enclosure (29), which was filed about three (3) years after the Judgment.

 

[21] With regards to the issue of delay, the Plaintiff in response to the Defendant’s contention on delay, has filed an affidavit to state that between the Judgment and the filing of enclosure (29), both parties have appealed to the Court of Appeal against the decision of the High Court and the appeal to the Court of Appeal was disposed off only on 22.3.2013. However, the Defendant persisted and filed an application for leave to appeal to the Federal Court, which was dismissed by the Federal Court on 21.8.2013. About four (4) months later, the Plaintiff filed enclosure (29).

 

[22] In Bank Pembangunan Malaysia Bhd v. Abdul Razak Sheikh Mahmood & Anor [2004] 2 CLJ 1, the issue before the Court of Appeal is whether the delay in taking a summons for direction under Order 25 RHC 1980 warrants the dismissal of the action. Justice Augustine Paul JCA held as follows:

 

“An order dismissing an action for want of prosecution is a draconian one, and will not be lightly made (see Wee Siew Noi v. Lee Mun Tuck (administrator of the estate of Lee Wai Leng, decd) [1993] 2 SLR 232). The principles that guide the court in the exercise of this jurisdiction were summarised in Birkett v. James [1978] AC 297 where Lord Diplock in approving Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 said at p. 318:

 

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The power should be exercised only where the court is satisfied either: (1) that the default has been intentional and contumelious, eg

 

disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.

 

Under this head there must first be an inordinate and inexcusable delay. It is only then that the question of a substantial risk of a fair trial or prejudice to the defendant will arise for consideration. It must be observed that even if the delay has been long and inexcusable it does not per se amount to prejudice (see Department of Transport v. Chris Smaller (Transport) [1989] 1 All ER 897; Eagil Trust v. Pigott-Brown [1985] 3 All ER 119). It is implicit under this head that the defendant must establish the prejudice that had been caused to him by the delay. Whether or not the defendant has been prejudiced by the delay is a question

 

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of fact to be decided by the court. The judgment of the Supreme Court in United Malayan Banking Berhad Corp Bhd v. Palm and Vegetable Oils (M) Sdn Bhd [1994] 3 CLJ 144 reveals that there must be particulars of the prejudice suffered by the defendant. Thus there must be clear affidavit evidence concerning the alleged prejudice or the impossibility of a fair trial (see Ling Kee Ling v. Leow Leng Siong [1992] 2 SLR 725). ”

 

[23] Applying the above case, the onus is on the Defendant to show that not only is there inordinate and inexcusable delay, but that prejudice had been caused to him by the delay.

 

[24] In view of the factual matrix of this case where the Defendant had actively pursued the appeals all the way to the Federal Court, I am of the considered opinion that there was no inordinate and inexcusable delay in the filing of enclosure (29). The Plaintiff has filed enclosure (29) about four (4) months after the apex Court had dismissed the Defendant’s application for leave to appeal.

 

[25] Added to that, even though the Defendant in their affidavit affirmed on 15.7.2015 states that they will be prejudice by the delay as they akan mengalami kesukaran untuk mencari saksi-saksi untuk memberikan keterangan bagi tujuan pendengaran yang ad/’A”, the facts disclosed otherwise.

 

[26] In reply to the Defendant’s affidavit, the Plaintiff has denied the issue of prejudice because during case management on 16.6.2014, the Plaintiff’s Solicitor, who was mentioning on behalf

 

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of the Defendant’s solicitor, informed the Court that the Defendant have 2 witnesses. This is confirmed by the letter issued by the Defendant’s Solicitor to the Plaintiff’s Solicitor dated 17.6.2014. Therefore, the Defendant was lying in his affidavit when he stated that the Defendant “… akan mengalami kesukaran untuk mencari saksi-saksi”.

 

[27] Added to that, the Plaintiff also averred that Defendant had also filed their Bundle of Documents on 28.8.2014. Since the Defendant did not dispute nor make any attempt to reply to these facts, then these facts are deemed to be admitted by the Defendant. (Ng Hee Thoong v Anor v Public Bank Bhd [1995] 1 MLJ 281).

 

[28] Therefore, there is no issue of prejudice to the Defendant as the Defendant had informed the Court that they have 2 witnesses, filed their bundle of documents and have taken active steps towards the hearing of the assessment. Premised on the principle in Bank Pembangunan Malaysia Bhd (supra), I find that the Defendant has failed to show that they have been prejudiced by the purported inordinate delay in the filing of enclosure (29).

 

[29] In filing this application, the Defendant is also seeking to invoke the inherent jurisdiction of the Court pursuant to Order 92 r 4 ROC 2012 to strike out enclosure (29). Order 92 r 4 is invoked to prevent injustice or to prevent an abuse of the process of the court. However, I am of the considered opinion that from the conducts of the Defendant which delayed the hearing of

 

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enclosure (29), lied on oath about the witnesses, failed to comply with court’s direction on the filing of the witnesses statement, this Court should invoke its inherent jurisdiction to dismiss the Defendant’s application.

 

[30] In the premise, I will dismiss enclosure (41) with cost. In view of my finding in enclosure (41), enclosure (45) is redundant and is struck out with no order as to costs.

 

(AZIZAH BTE NAWAWI) JUDGE

 

HIGH COURT MALAYA (Commercial Division) KUALA LUMPUR

 

Dated: 10th May 2016

 

For the Plaintiff : S Malar

 

Messrs Kiru & Yong

 

Petaling Jaya, Selangor Darul Ehsan.

 

For the Defendant : Ang Hean Leng

 

Messrs Lee Hishammuddin Allen & Gledhill Kuala Lumpur.

 

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