DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN DAGANG)
GUAMAN NO: 22M-110-1995
ANTARA
FAWZIAH HOLDINGS SDN BHD – PLAINTIF
DAN
METRAMAC CORPORATION SDN BHD
( dahulunya dikenali sebagai Syarikat
Teratai K.G. Sdn Bhd) – DEFENDAN
GROUNDS OF JUDGMENT
Enclosures 200 and 201 are appeals by the defendant and the plaintiff respectively against an order made by the same Registrar on 29th October 2014 in respect of assessment of damages. Parties agree that the order is a provisional order. The hearing before me today is only on the preliminary objection raised by the plaintiff against enclosure 200 on the issue of whether the provisional order is appealable.
[2] I have perused the said decision of the Registrar. It says as follows:
“ The plaintiff’s claim for damages is allowed as follows:
1. The damages shall be calculated or assessed from 27th May 1993 ;
2. Based on the UPD proposal, only the claim for advertising rights for tollgate A,B, C and D is hereby allowed. The claims for damages for interchanges and others are dismissed;
3. The consultancy fee of RM25000/- is allowed ;
4. Both parties to calculate the damages as awarded above based on the UPD proposal and submit it to this court for confirmation as to the accuracy of the calculation;
5. Interest 4% per annum of the damages as calculated above from the service of writ till July 2012. Thereafter 5% per annum from August 2012 onwards till full settlement of the sums;
6. Pursuant to Order 59 rule 7 of the Rules of Court 2012, parties to submit on the issue of costs and whatever costs to be awarded shall be decided later pursuant to Order 59 rule 7 of the Rules of Court 2012; and
7. The decision above is a provisional decision pursuant to Order 42 rule 7 of the Rules of Court 2012. The actual decision date shall only be dated upon para 1,2,3,4,5 and para 6 above being dealt with by this court.
[3] Order 56 rule 1 of the Rules of Court 2012 provides that an appeal shall lie to the judge in chambers from “ any judgment, order or decision of the Registrar of the High Court”. What is “judgment, order or decision” is not defined by the Rules of Court 2012. However, section 3 of the Courts of Judicature Act 1964 ( Act 91) defines “ decision” as follows:
“ judgment, sentence or order, but does not include any ruling made in the course of a trial of hearing of any cause or matter which does not dispose of the rights of the parties.”
[4] The Court of Appeal had, in Syarikat Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd [2003] 2 MLJ 495, inter alia held that:
(a) the word ‘decision’ as provided for in Section 3 of Act 91 should be equally ascribed to the word ‘decision’ in Order 56;
(b) the words ‘judgment’ and ‘order’, by virtue of the doctrine of associate words, should take their colour as it were, from the meaning assigned to the word “decision” in Section 3 of Act 91; and
(c) any ruling made in the course of a trial or hearing of any cause or matter which did not finally dispose of the rights of the parties, did not constitute a ‘decision’ for the purpose of Section 3 of Act 91, and is therefore not appealable. “
[5] Looking at the order made by the learned Registrar, especially in paragraphs 4, 6 and 7, clearly the order has no element of finality to it. The order does not finally dispose of the rights of the parties in respect of the proceedings to assess damages as parties still need to submit to the court for confirmation and for further order. The decision itself says that it “ is a provisional decision” and that “ the actual decision shall only be dated upon paragraphs 1,2,3, 4,5 and 6 above being dealt with by the court”. Hence the Registrar has clearly expressed the order as provisional pending further input from the parties; and it is so obvious from the order that not all quantums has finally been assessed. Refer also to the Federal Court in Seong Fatt Sawmills
Sdn Bhd v Dunlop Malaysia Industries Sdn Bhd [1984] 1 MLJ 286.
[6] Order 37 of the Rules of Court 2012 provides for assessment of damages. In rule 2 it provides that where damages are assessed by Registrar, he shall “certify” the amount of the damages. Clearly, the rule provides that the Registrar needs to certify the amount of damages awarded before he can complete the assessment. This is a mandatory provision as the word “shall” is used and that (i.e certification) has not yet been done in this instant case.
[7] The defendant contends that an arithmetical compensation is not possible due to the ambiguity of the order pronounced. With due respect, it is my view that if there is any ambiguity, what the defendant should do is to go back to the Registrar for clarification and not to file this appeal. To my mind, this appeal is clearly premature as the decision of the Registrar is not complete. The order being provisional does not finally dispose of the rights of the
parties.
[8] Based on the above, I am of the view that the provisional order is not appealable and therefore I allow the preliminary objection raised by the plaintiff with cost. Consequently, I strike out enclosures 200 and 201 and order the matter to be remitted to the Registrar for assessment to be completed.
DATO’ ZALEHA BINTI YUSOF
JUDGE
HIGH COURT OF MALAYA
KUALA LUMPUR
Dated : 24th March 2015
For the plaintif: Navaratnam a/l Raymond with Wong Wye Wah and Foo Joon Liang; Messrs Kadir, Andri & Partners
For the defendant: Sivaneindren a/l Selvarendam with Jocelyn Teoh Hooi Cheang ; Messrs Cheah Teh & Su
