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[2000] Part 3 Case 6 [HCM] |
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[2000] Part 3 Case 6 [HCM] |
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HIGH COURT OF MALAYA |
Ban Hin Lee Bank Bhd
- vs -
Long Hua Corporation Sdn Bhd
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Coram SULONG MATJERAIE JC |
25
NOVEMBER 1999 |
Judgment
Sulong
Matjeraie JC
HEARING
OF ENCLOSURE (18)
This
is an appeal against the decision of the learned Senior Assistant Registrar
(SAR) who was alleged by the defendant to have erred in dismissing the
appellants' / defendants' application at (Encl 11) with costs after finding
that the plaintiffs writ was irregular.
Learned
counsel for the appellants / defendants, Mr. T Gan, submitted that what
should have been done by the learned SAR would be either to:
allow
the defendants' application with costs with liberty to file afresh; or
order
the plaintiff to apply for leave to amend the writ of summons.
Learned counsel for the appellants / defendants indicated that the court had given leave to the defendants to enter a conditional appearance - Encl (8) - entered on November 17, 1998 subject to a condition that the appellants / defendants applies to set aside the writ within 14 days. This was in fact done. Hence the defendants' right to apply to set aside the writ of summon is preserved by entering a conditional appearance.
Learned
counsel for the appellants / defendants submitted that before a writ is
issued it must be indorsed as required by Order 6 r 2 of the Rules of the
High Court 1980 (RHC). As the present case involves a liquidated sum, an
indorsement which is compulsory, could be found in Form 2. The indorsement,
submits the learned counsel must be added there.
The
plaintiff failed to state the amount and as such there was a complete
failure to comply with the requirement of Order 6 r 2(1) of the RHC.
Accordingly, the learned SAR said that this was irregular.
A
case offered by learned counsel for the appellants / defendants as authority
was: Mohamed Hanif v Chin Ah Bah [1974] 2 MLJ 128.
In
this case the plaintiff failed to include in the indorsement, their capacity
to sue as administrators of the estate. Objection was taken to the writ
after entry of conditional appearance. It was held that as, in the
indorsement of the writ no capacity to sue was shown, the objection must
succeed and an order was made setting aside the writ and all subsequent
proceedings.
The
rule on indorsement as to capacity is Order 6 r 3(1)(a) and learned counsel
submitted that the words of Order 6 r 2(1) and Order 6 r 3 are exactly the
same. Since Mohamed Hanif say that Order 6 r 3(1)(a) requires
indorsement, similarly Order 6 r 2(1)(b) would require the same as well.
Another case offered by learned counsel for the appellants / defendants was
the case of Wong Gek Meng v Pathmanathan Mylvaganam [1998]
1 CLJ 625 where the Johor Bahru High Court held that in filing an appeal to
the Judge-in-chambers, the format in Form 114 of the RHC must be complied
with. Abdul Malik Ishak J said that -
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the format for appeal as adopted... was contrary to Form 114 of the RHC (and that the applicant) had developed a format of his own which was a complete change which was unknown to the law. As a code of procedure the RHC should be strictly followed to the letter. |
In
this instant case it was contended by learned counsel for the appellants /
defendants that the plaintiff has failed to comply with Order 6 r 2 of the
RHC, the rule which, he submitted, is compulsory.
He
therefore submitted that the learned SAR erred after his finding that the
writ of summons was irregular, he should have allowed the defendants'
application with costs.
THE RESPONDENT’S / PLAINTIFF’S CASE
Learned
counsel for the respondent / plaintiff Mr. PR Chua notified this court that
though the learned SAR's finding that the writ of summons was irregular, no
prejudice was caused to the defendants. That was the reason given during the
hearing before the learned SAR.
The
plaintiff admitted that the indorsement was not there in the writ of summons
but he claimed that no prejudice was caused because:-
The
statement of claim was attached to the writ which has particularised the
facts, the claim and the amount;
The
purpose of the indorsement is to allow the defendant to pay to the court
within eight days;
The
plaintiff referred to the affidavit of the defendant at Encl (10) -
affirmed by Mok Chee Moi where at paragraph (5) it says, inter alia,
that-
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saya
ingin menyatakan bahawa pihak defendan menafikan kesahihan
tuntutan plaintiff: [Translation: I wish to state that the defendant denies the legality of the plaintiff's claim] |
Learned
counsel for the respondents / plaintiffs said that the appellants /
defendants are denying the claim. Hence they cannot pay the money.
Conversely,
the appellants / defendants are saying that they have not been given
notice to pay. Therefore it was contended by the learned counsel for the
respondent / plaintiff that this contradicts each other.
The
affidavit of Mr. Roslan Mansor (Encl (13), paragraph 8) says as follows:
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saya
ingin menyatakan bahawa Defendan-defendan di dalam keadaan ini
adalah tidak bona fide kerana di dalam proses penyerahan
Writ Saman dan Pernyataan Tuntutan tersebut, Defendan Kedua
(yang merupakan pengarah Defendan Pertama dan suami Defendan
Ketiga) telah menghadiri pejabat Plaintif untuk membincang
kemungkinan tindakan ini diselesaikan di luar Mahkamah.
Memandangkan wujudnya perbincangan diantara Plaintif dan
Defendan-defendan, Plaintif telah menangguhkan masa untuk
memfailkan Penghakiman ingkar keatas Defendan Pertama dan
Defendan Ketiga. Sesalinan surat arahan Plaintif bertarikh
4.11.1998 kepada peguamcaranya di lampirkan dan di eksibit
sebagai "RM-3." [Translation:[a] I wish to state that the Defendants under such circumstances are not bona fide because during the process of serving the Writ of Summons and Statement of Claim, the second Defendant (who is a director of the first Defendant and husband of the third Defendant) had attended the Plaintiff's office to discuss the possibility of settling the action out of court. In view of the discussion between the Plaintiff and Defendants, the Plaintiff delayed filling for Default Judgment against the first and third Defendants. A copy of the Plaintiff's written instruction dated 4.11.1998 to its solicitors is annexed as exhibit "RM-3"] |
The
respondent / plaintiff said that it was not consistent with the filing
of the application. They (the defendants) have notice of the claim and
it does not therefore prejudice them since the amount claimed for is
there.
Order
2 r 2 of the RHC requires that an application to set aside for
irregularity shall not be allowed unless it is made within a reasonable
time.
It
was suggested by learned counsel for the plaintiff that Exh RM-1 of Encl 13
paragraph 3 showed that the writ was served on October 20, 1998 and on the
third defendant on October 21, 1998.
This
application was filed two months after the writ was served. No explanation
was however given in the affidavit for the delay.
The
case law referred to by learned counsel for the respondent on such delay in
making an application to set aside was: Khor Cheng Wah v Sungai Way
Leasing Sdn Bhd [1996] 1 AMR 846 CA.
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Previously,
courts, in respect of their process and orders, maintained a
distinction between irregularities and nullities. The former were
curable, but the latter was not. This distinction did not lend much
clarity to the law. Neither did it, in the preponderance of cases,
advance the course of justice. After the coming into force of the Rules of the High Court 1980, the distinction between irregularities and nullities ceased to exist. All acts and omissions that amount to non-compliance with one or more of the rules of court result in their being curable irregularities and not nullities. Indeed it is quite inappropriate to say of an order or decision of a court of unlimited jurisdiction (such as the High Court and other superior courts) that it is a nullity. |
Learned
counsel for the respondent / plaintiff also pointed out that the case of Mohamed
Hanif v Chin Ah Bah [1974] 2 MLJ 128 referred to by learned
counsel for the appellants / defendants was before the coming into force the
Rules of High Court 1980. All irregularities can be cured now. Even
excessive interest can be cured through amendment without any resultant
prejudice to anyone, see Khor Cheng Wah v Sungai Way Leasing Sdn Bhd (supra
at p 855).
Another
case provided for as authority by the respondent / plaintiff was K
Muthulagu v Lembaga Pelabohan Klang [1995] 3 MLJ 157.
The
questions posed in this case were whether non-endorsement was fatal or
whether it was a mere irregularity which could be cured and whether an
application to set aside need be made within reasonable time. The learned
James Foong J said that the non-endorsement on the writ on the plaintiffs
representative capacity ought not be fatal as to nullify the proceeding. It
was only an irregularity and can be accepted under Order 2 r 1 (2) of the
RHC. This followed the decision of Chang Min Tat FCJ in Loh Koon Moy v Zaibunsa Syed Ahmad [1978] 2 MLJ 29 on circumstances which
are virtually similar.
It
was the submission of learned counsel for the respondent / plaintiff that
since K Muthulagu v Lembaga Pelabohan Klang (supra) was after
the Rules of High Court 1980, it should be preferred over the case of Mohamed
Hanif v Chin Ah Bah (supra).
Learned
counsel for the respondent / plaintiff also submitted that as required by
Order 2 r 2(1) of the RHC, an application to set aside shall not be allowed
unless it is made within a reasonable time and before the party applying has
taken any fresh step after becoming aware of the irregularity.
In
Re CHS [1997] 3 MLJ 152, High Court, learned counsel for the
respondent / plaintiff drew the attention of this court to the decision of
the learned Augustine Paul JC (as his Lordship was then) at p 160 where it
echoed the sentiment expressed in Khor Cheng Wah v Sungai Way Leasing Sdn
Bhd [1996] 1 AMR 846 that the RHC had done away with the old distinction
between a nullity and an irregularity and likewise adopted the approach of
Gumming - Bruce LJ in the English Court of Appeal decision on the widest
power in order to do justice in Metroinvest Anstalt v
Commercial Union Assurance Co plc [1985] 2 All ER 318 at p 324.
This
court was notified that after their submission before the learned SAR, it
was ruled that no prejudice was caused to the appellants / defendants.
On
the submission by the learned counsel for the appellants / defendants
regarding the authority provided for in Wong Gek Meng v Pathmanathan
Mylvaganam [1998] 1 CLJ 625, learned counsel for the
respondent plaintiff said the case can easily be distinguished in that Form
114 of the RHC was totally different from the format "developed"
by plaintiff in the said case.
Another case cited was Paruvathy Palany v Sathiasealan Govindasamy [1999] 5 MLJ 151 where it was suggested that the court agrees with the decision of Re CHS (supra) and Abdul Malik Ishak J said at p 169 that
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every omission or mistake in practice or procedure should be regarded as an irregularity which the court could and should rectify so long as it would not cause an injustice. |
It
was therefore submitted that no prejudice has been caused to the appellants
/ defendants here and learned counsel prayed for the appeal be dismissed
with costs.
Learned
counsel for the appellants / defendants in his reply pointed out that in Paruvathy
Palany v Sathiasealan Govindasamy (supra) Abdul Malik Ishak J
said at p 152 that -
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...Looking at Encl 5, a concise statement of the relief claimed in the proceedings begun by originating summons with sufficient particulars to identify the cause of action had been fulfilled by the plaintiff, thereby falling within the ambit of Order 7 r 3(1) of the RHC. |
Further
it was also argued that Order 2 r 2 of the RHC requires that an application
be made to set aside for irregularity.
Learned
counsel also distinguished the case of K Muthulagu v Pelabuhan Klang
(supra) and this instant case in that in K Muthulagu the
application was made to set aside the writ after calling the witnesses and
going through with the trial and having closed their case and made their
submission. It was obvious also that the defendant did not enter conditional
appearance to preserve the right to set aside the writ of summons. They have
therefore breached Order 2 r 2 of the RHC themselves and were therefore
rightly precluded to set aside the writ of summons.
Turning
back to the case of Khor Cheng Wah v Sungai Way Leasing Sdn Bhd (supra)
learned counsel for the appellants / defendants quoted the penultimate
paragraph of the decision of Gopal Sri Ram JCA under the heading: Excessive
interest at p 855 lines 7-15 which says -
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...It is still a matter that maybe cured by amendment without any resultant prejudice to anyone. The plaintiff had applied to (do) just that... But I must say that I am in agreement with the Judge that the judgment is not irregular in any way. |
This
case has to be distinguished submits learned counsel for the appellants /
defendants in that it relates to the issue of amount of interest awarded.
The plaintiff had made an application to amend. It does not relate to the
issue of commencement of proceeding.
In
addition to the above, learned counsel for the appellants / defendants
argued further that while the statement of claim may have been attached to
the writ of summons, this does not relate to a situation after the service
of the writ. It goes to the "very root" of the writ of summons.
Before a writ is issued "it must be indorsed..." It was
therefore submitted that this has to be complied with as it is a mandatory
provision.
It
was argued as well that even if the respondent / plaintiff had entered a
default judgment the appellants / defendants could still set it aside as the
writ was defective ab initio.
Regarding the alleged negotiation, the appellants / defendants deny any negotiation and this is reflected at paragraph 7 of the affidavit of Mok Chee Moi affirmed on December 18, 1998 which said:
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7. |
Saya menafikan kandungan afidavit Roslan Mansor yang tiada kaitan dengan permohonan pihak Defendan untuk membatalkan writ saman yang nyata cacat. |
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[Translation:[a] |
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7. |
I deny the content of the affidavit by Roslan Mansor which is unrelated to the Defendant's application to strike out the defective Writ of Summons.] |
It
was further argued by learned counsel for the appellants / defendants that
they have nottaken any stepbuthad entered only aconditional appearance and
had applied by way of a summon - in - chambers (Encl (11)) to set aside the
writ. This was dismissed with costs. Hence this appeal.
The
appellants / defendants submit therefore that the respondent / plaintiff
cannot be allowed to sit back. It should be set aside with liberty to file
afresh or the plaintiff should be ordered to apply for leave to amend and
costs to be given to the appellants / defendants.
HISTORICAL BACKGROUND
It
is believed that we followed closely the English Rules of the Supreme Court
when our Rules of the High Court 1980 was formulated.
In
England, every writ has to be in one of the five forms prescribed in
Appendix A to the Rules of the Supreme Court. The two in most general use
are No 1, where the writ is to be issued out of the Central Office, and No 2
for issue out of a District Registry. Blank forms are available from the
Royal Courts of Justice and from law stationers, and a plaintiff or his
solicitor will usually fill up such a form rather than write out the writ in
full himself.
After
the plaintiff has filled in the body of the writ, three further steps have
to be taken before he can be said to have commenced his action. The writ
must be indorsed, issued and served.
Indorsing
the writ simply involves filling up the blank spaces on the back of the form
see Civil Procedure and Evidence by P St J Langan who said at this stage at
least two or possibly more of the following indorsements will be necessary:-
Indorsement
of claim.
Indorsement
as to capacity.
Indorsement
as to place where the cause of action arose;
Indorsement
as to solicitor and address.
In
our jurisdiction, we have the indorsements in respect of (a), (b) and (d).
Usually,
the statement of claim will not be indorsed on the writ: it may be served
later in the course of the pleadings, or a separate document containing a
statement of claim may be served along with the writ.
The
"concise statement of the nature of the claim" referred to in
Order 6 r 2(1)(a) is what was formerly known as a "general
indorsement".
It
would appear that a "liquidated demand" is described in the
Supreme Court Practice as one "in the nature of a debt, i.e a specific
sum of money due or payable under or by virtue of a contract. Its amount
must either be already ascertained or capable of being ascertained as a mere
matter of arithmetic. The addition of any other claim to that for the debt
or liquidated demand, even one in the alternative takes the case out of the
requirement of Order 6 r 2(1)(b)", see
the English Court of Appeal decision in GL Baker Ltd v Barclays Bank Ltd [1956] 1 WLR 1409.
It
is believed that because statement of claims are not normally indorsed on
the writ, the indorsement of claim must be done properly.
THE LAW
This
appeal is purely based on the contention that the learned Senior Assistant
Registrar had erred in dismissing the appellants / defendants' application
with costs on Encl 11 after making a finding that the writ of summons No
22-611 -1998 (Encl 2) was irregular. The reason for the appeal being, the
writ failed to comply with Order 6 r 2(1)(b) of the Rules of the High Court.
Order
6 r 2(1)(b) says:
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2. |
(1) |
Before
a writ is issued it must be endorsed - |
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(b) |
Where
the claim made by the plaintiff is for a debt or liquidated demand
only, with a statement of the amount claimed in respect of the debt
or demand and for costs and also with a statement that further
proceedings will be stayed if, within the time limited for
appearing, the defendant - |
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(i) |
except
in either of the cases mentioned in paragraph (2), pays the amount
so claimed to the Plaintiff or his Solicitor; |
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(ii) |
in either of the said cases, pays that amount into Court. |
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The argument of learned counsel for the appellant is simply this. Before a writ is issued it must be indorsed. As this is a claim which involves a liquidated sum, indorsement is mandatory in view of the word "must".
It
is his argument that as the writ must be in Form 2 and since Form 2 contains
a provision on indorsement of claim, the failure of the respondent in
stating the amount claimed for, means that they have failed to comply with
the mandatory provision. This he argued goes to the very root of the writ of
summon. It is defective ab initio.
Apart
from "Memorandum to be subscribed on the Writ" there are three
"indorsements to be made on writ before issue". These are
"Indorsement of claim", "Indorsement as to Solicitor and
address" and "Indorsement as to service". For our purpose
only Indorsement of claim require elaboration.
The
Indorsement of claim of Form 2 reads as follows:
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The
Plaintiff's claim is for ... (If the Plaintiff's claim is for a debt
or liquidated demand only, the following indorsement must be added
at the foot of that claim:) And $... (or such sum as may be allowed on taxation for costs, and also, if the plaintiff obtains an order for substituted service, the further sum of $... (or such sum as may be allowed on taxation). If the amount claimed and costs be paid to the Plaintiff or his Solicitor within eight days after service hereof (inclusive of the day of service), further proceedings will be stayed, but if it appears from the indorsement on the writ that the Plaintiff is resident outside the scheduled territories, as defined by the Exchange Control Act, 1953, or is acting by order or on behalf of a person so resident, proceedings will only be stayed if the amount claimed and costs is paid into Court within the said time and notice of such payment in is given to the Plaintiff or his Solicitor. |
Previously
before a writ is issued it must be indorsed with a statement of claim (a
specially indorsed writ )or, if the statement of claim is not indorsed on
the writ, with a concise statement of the nature of the claim made or the
relief or remedy required in the action begun thereby (a generally indorsed
writ). The previous distinction between a generally indorsed writ of summons
under Order 3 r 2 of the RHC 1957 and Order 3 r 2 of the RSC 1934, and a
specially indorsed writ of summons under Order 3 r 6 of the RHC 1957 and
Order 3 r 5 of the RSC 1934 no longer exists. Therefore, if the litigant
elects to indorse his writ with a statement of claim, he can do so in any
type of action, the limitation ofthe old specially indorsed writ of summons
to a claim for a debt or liquidated demand only is removed, (see Malaysian
High Court Practice 1998, Desk Edn, Vol 1 at p 72).
It
could be seen therefore that the Indorsement of claim at Form 2 would show
the following things:-
the
amount claimed and costs;
that
further proceedings will be stayed if, within eight days (time limited
for acknowledging service), the defendant pays the amount claimed and
costs to the plaintiff or his solicitor; and
that
if it appears from the indorsement on the writ the plaintiff is resident
outside scheduled territories as defined by the Exchange Control Act
1953 or acting on behalf of a person so resident, proceedings will only
be stayed if the amount claimed and costs is paid within eight days and
notice of such payment in is given to the plaintiff or his solicitor.
Note:
Outside schedule territories as defined by Exchange Control Act 1953 means
outside Malaysia.
The
writ of summons (Encl 2) at p 2 contains the indorsement of claim but what
the plaintiff failed to do was to write down the actual figures of the
amount due and owing. This was admitted to by the plaintiff. However if one
were to peruse the statement ofclaim dated September 14, 1998 and indorsed
to writ of summons, one could see at paragraph 12 thereof that the plaintiff
was claiming for:-
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(a) |
jumlah
sebanyak RM2,236,522.87 (yang dikira setakat 25.8.1998) yang
terhutang di bawah Pinjaman Tetap tersebut bersama dengan faedah
seterusnya pada kadar 2.5% setahun atas kadar pinjaman asas Plaintif
yang dikompaunkan pada setiap bulan dari 1.9.1998 sehingga tarikh
pembayaran / penyelesaian penuh bersama-sama dengan faedah penalti
pada kadar 1% setahun (tertakluk kepada jumlah minima RM5.00 sebulan
keatas amaun yang tertunggak sejumlah RM127,350.20 dari bulan Ogos,
1998 sehingga tarikh pembayaran / penyelesaian penuh; |
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(b) |
jumlah
sebanyak RM1,241,349.00 yang dikira setakat 25.8.1998 dan faedah
seterusnya pada kadar 2.5% setahun atas kadar pinjaman asas Plaintif
atas jumlah sebanyak RM1,200,000.00 (iaitu had kemudahan overdraf
yang diluluskan) dan 4% setahun atas kadar pinjaman asas Plaintif
atas amaun yang melebehi RM1,200,000.00 yang dikira pada dasar
harian dan dikompaunkan pada setiap bulan dari 26.8.1998 sehingga
tarikh pembayaran / penyelesaian penuh; |
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(c) |
Kos;
dan |
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(d) |
.... |
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[Translation:[a] |
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(a) |
the sum of RM2,236,522.87 (computed upto 25.8.1998) owing under the said Fixed Loan together with interest thereafter at 2.5% per annum above the base lending rate compounded monthly from 1.9.1998 until the date of payment / full settlement and penalty interest at 1% per annum (subject to the minimum of RM5.00 a month on the outstanding sum of RM127,350.20 from the month of August, 1998 until the date of payment / full settlement) |
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(b) |
the sum of RM1,241,349.00 calculated upto to 25.8.1998 and interest thereafter at 2.5% per annum above the base lending rate on the sum of RM1,200,000.00 (i.e. the limit of the approved overdraft facility) and at 4% per annum above the base lending rate on the amount exceeding RM1,200,000.00 calculated at daily rests and compounded monthly from 26.8.1998 until date of payment / full settlement; |
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(c) |
Costs; and |
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(d) |
....] |
It
is obvious that the amount claimed consisted of two main facilities, i.e.
the fixed loan and an overdraft facility. Each banking facility attracts a
different interest rate over the plaintiffs base lending rate and in
addition there is the penalty interest and interest even in one facility may
be calculated on yearly rests, monthly rests or even daily rests!
This
is the dilemma faced by practitioners: to put the amount or leave it blank
as in this case. If an amount is stated there, it may not even be accurate
on the day of filing especially so when facilities offered by the bank
attracts varying interest rates which again are based on the individual
bank's base lending rate. Failure to state the amount could end with
litigation like this instant case.
One
could only sympathise with the difficulty faced by practitioners who may
have to file a writ of summon in respect of debts for facilities which
includes fixed loan, overdraft, trust receipts, bankers acceptance,
revolving credit facilities, all under one instrument. Be that as it may,
the question here is, must the amount be stated in the indorsement of claim.
The appellant as outlined earlier said it must be so stated.
The
respondent submitted that although the indorsement was not there this does
not however cause any prejudice to the appellant. The statement of claim
was, in any event, attached to the writ which has particularised the fact,
the claim and the amount. As could be seen above the indorsement is to allow
the appellant to pay within eight days.
The
facts of this case appear to suggest that the defendant was aware of the
amount claimed. Could she therefore be said to have been prejudiced?
In
her affidavit-in-reply affirmed on December 1, 1998 and filed herein at Encl
10 she denies the authenticity of the claim: see paragraph 5 thereof.
It
was only at the following paragraph 6 that she said she was advised that the
writ was defective as it failed to observe Order 6 r 2(1)(b) of the RHC. It
is arguable, of course, if this paragraph complies with Order 41 r 5(2) of
the RHC.
Another
factor to support the contention that the defendants were aware of the
amount claimed is paragraph 8 of the affidavit of the respondent, affirmed
by its manager, Mr. Roslan bin Mansor on December 11, 1998 and filed herein
as Encl 13. There is a clear and unequivocal assertion that the second
defendant (who is the director of the first defendant company and the
husband of the third defendant) came to the office of the plaintiff to
discuss the possibility of settling this matter out of court. Would it be
right for the defendants to say that they are not aware and was therefore
prejudiced?
The
defendants merely denied the contents of the above stated affidavit of Mr.
Roslan bin Mansor and further alleged at paragraph 7 of their affidavit at
Encl 15 that it has no relevance to their application to strike out the writ
of summon. Therefore the assertion of the plaintiff remained unchallenged.
It
is a well settled principle governing the evaluation of affidavit evidence
that where one party makes a positive assertion upon a material issue, the
failure of his opponent to contradict it is usually treated as an admission
of the fact so asserted, per Gopal Sri Ram JCA in Ng Hee Thong v
Public Bank Bhd [1995] 1 AMR 622 at p 628. See also the Supreme Court
decision in Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd
[1986] 1 MLJ 382 at 385 where Lee Hun Ho (CJ Borneo) said:
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there is force in the appellant's contention that an affidavit must reply specifically to the allegations, and if it does not, then those allegations not replied to must be taken to have been accepted. |
Although
the defendants may argue that they have denied generally in their affidavit
at Encl 15 the governing principles as enunciated earlier could not possibly
assist them.
In
the circumstances despite the knowledge of the defendants of the amount
claimed and their failure to reply specifically to the allegation asserted
in the plaintiffs affidavit that they were involved in a negotiation to
settle the matter out of court, can the defendants be said to have been
prejudiced as a result of the failure of the plaintiff to state the amount
at the indorsement of claim column?
With
respect, it is the view of this court that the defendants have not suffered
prejudice as a direct consequence of the plaintiff's failure to state the
amount at the indorsement of claim column. It is also the view of this court
that such failure is only a mere irregularity.
The
fact that Order 2 of the RHC had done away with the distinction between an
irregularity and nullity, all acts and omissions that amount to
non-compliance with one or more of the RHC result in their being curable
irregularities.
Instances
where our courts have regarded omissions or mistakes in practice and
procedure as irregularity include accepting an application prayed by way of
originating motion be treated as the originating summons in Re CHS
[1997] 3 MLJ 153; failure to endorse the plaintiff s representative capacity
in the writ in accordance with Order 6 r 3(1)(e) of the RHC in K
Muthulagu v Lembaga Pelabuhan Klang [1995] 3 MLJ 157 which followed the
decision of Chang Min Tat SCJ in Loh Koon Moy v Zaibun SA Syed
Ahmad [1978] 2 MLJ 29.
It
is to be noted that there is a long line of authorities accepting omission
or mistakes in practice to comply with the Rules of High Court as an
irregularity which the court can and should rectify so long as it can do so
without injustice per Lord Denning in Harkness v Bell Asbestos
& Engineering Ltd [1966] 3 All ER 843.
The approach of Cumming-Bruce LJ on the manner of exercising the discretion to rectify an irregularity in Metroinvest Anstalt v Commercial Union Assurance Co plc [1985] 2 All ER 318 has been accepted by our Court of Appeal in Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 AMR 846 per Gopal Sri Ram JCA at p 854. For easy reference the approach of Cumming-Bruce LJ is appended hereunder:
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I would say that in most cases the way in which the court exercises its power under Order 2 r 1 (2) is likely to depend on whether it appears thatthe opposite party has suffered prejudice as a direct consequence of the particular irregularity, that is to say the particular failure to comply with the rules. But I would construe Order 2 r 1(2) as being so framed as to give the court the widest possible power in order to do justice. |
There
is no need to go further to consider the submission of the learned counsel
for the plaintiff regarding the requirement for an application to set aside
a writ to be made within a reasonable time.
In
light of what has been outlined earlier, this court is satisfied that the
defendants were not prejudiced by the omission of the plaintiff in not
stating the amount on the indorsement of claim.
Accordingly,
this court hereby dismiss the appeal of the appellants / defendant with
costs.
Cases
Alloy Automative Sdn Bhd v Perusahaan lronfteld Sdn Bhd [1986] 1 MLJ 382;
Khor
Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 AMR 846 CA; Metroinvest Anstalt v Commercial Union Assurance Co plc [1985] 2 All ER 318; Ng Hee Thong
v Public Bank Bhd [1995] 1 AMR 622;
Mohamed Hanif v Chin Ah Bah [1974] 2 MLJ 128
Legislations
Malaysia
Exchange
Control Act 1953
Rules
of the High Court 1957: Ord.3 r 2 Ord.3 r 6
Rules
of High Court 1980: Ord. 2 r 1(2) Ord. 6 r 2(1)(a) Ord. 6 r 2(1)(b) Ord. 6 r 3(1)(a)
Ord. 41 r 5(2) Form2 Form114
United Kingdom
Rules
of the Supreme Court 1934: Ord. 3 r 2 Ord. 3 r 5
Authors and other references
Malaysian High Court Practice 1998 Desk Edn, Vol 1
P
St Langan, Civil Procedure & Evidence
Representation
Chua
Poh Ron (Leng & Co) for Plaintiff
Gan Techiong (Gan & Lim) for Defendants
Notes:-
[a] The translation of Bahasa Malaysia texts into English is not in the original judgment.
This decision is also reported at [2000] 2 AMR 1676
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