RIVERBANK SUITES DEVELOPMENT SDN BHD vs LAU SIE HUNG (MJLR2009a25) Rhodzariah Bujang SS
MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING
CIVIL APPEAL: 12-26-2009-II
5 BETWEEN
RIVERBANK SUITES DEVELOPMENT SDN BHD
(Company No.240482-V)
a company incorporated and registered under
10 the Companies Act, 1965 in Malaysia and
having its registered office at Suites E-07-12,
Plaza Mont Kiara No.2, Jalan 1/70C,
Off Jalan Bukit Kiara,
50480 Kuala Lumpur and
15 A branch office at Level 1, Riverbank Suites
Apartment & Commercial Tower,
Jalan Tunku Abdul Rahman
93100 Kuching, Sarawak. … Appellant
20
AND
LAU SIE HUNG (BIC.K.0125128)
25 Unit 1202 Level 12
Riverbank Suites Apartment
Jalan Tunku Abdul Rahman
93100 Kuching, Sarawak … Respondent
30
(In the matter of SESSION’S COURT SUMMONS NO.52-745-2008-I
AT KUCHING)
35
BETWEEN
CA-12-26-2009-II
2
RIVERBANK SUITES DEVELOPMENT SDN BHD …
Plaintiff
5 AND
LAU SIE HUNG (BIC.K.0125128) …
Defendant
10
BEFORE THE HONOURABLE JUDICIAL COMMISSIONER
Y.A. PUAN RHODZARIAH BT. BUJANG
15 IN CHAMBERS
JUDGMENT
The appellant (plaintiff in the Magistrate’s Court) has filed an
20 appeal against the decision of the learned Sessions Court Judge
made on 18.3.2009 who dismissed their claim against the defendant
summarily and without going into the merits of their claims. That
claim was a liquidated one for the sum of RM34,718.41 being
maintenance charges for an apartment unit in an Apartment &
25 Commercial Tower owned by the appellant.
The respondent/defendant filed his defence and counterclaim
and later applied for further and better particulars of the claim by
letter to the appellant’s solicitor. When this elicited no response, he
30 filed a formal application requesting for the same. This was allowed
CA-12-26-2009-II
3
by the learned Sessions Court Judge on 21.1.2009. However
despite the order, the particulars were still not supplied to them and
upon hearing this, on the day of mention i.e. 18.3.2009, the learned
Sessions Court Judge dismissed the appellant’s claim on the ground
that the order of 21.1.2009 was also an unless order, 5 in which the
appellant was put to notice that if the particulars were not given
within the time as stipulated in the order (14 days from the date of its
service), the appellant’s action would stand dismissed.
10 Technical objection
The respondent’s counsel drew my attention to the fact that the
Appeal Record filed by the appellant was incomplete in that it did not
contain the orders appealed from. This is in direct contravention of
15 0rder 49 r 6 of Subordinate Court Rules 1980 where it is specifically
provided that the Appeal Record filed must contain, inter alia, the
order or draft order of the decision appealed from. He said this
omission is fatal and the appeal should be dismissed by reason
thereof.
20
It is clear from the wordings of 0rder 49 r 6 that it is mandatory
for Appeal Records to include the documents specified therein. In
respect of the order appealed from the logical purpose is to enable
the appellate court to know, at an instant, which decision of the
25 Subordinate Court is being appealed against to enable not just the
appellate Court but the parties to focus on the subject matter of the
appeal. I agree therefore to follow earlier High Court decisions that
CA-12-26-2009-II
4
when 0rder 49 r 6(3) was not complied with, the appeal is not
competent and should be dismissed. The position of the appeal in
this case is even worst. Not only was the order of the 18.3.2009 not
included in the Appeal Record, the order of the court connected so
closely with it i.e. that which was made on 29.1.2009 5 was also not
exhibited.
Granted the appellant’s counsel has attempted to make
restitution by filling a supplementary Appeal Record (out of time, I
10 must add) the same was filed without leave of the court or the
consent of the respondent’s counsel and should therefore be
disregarded. The decision of Lau Bee Lan J in Sematan Shrimp
Hatchery Co. v. Aqua Fresh Co. (2005)7 CLJ 505 on the same
issue is of assistance and is followed.
15
Assuming, however that I was wrong in summarily dismissing
the appeal, I proceed now to consider its merits.
The unless order
20
This is the crux of the appeal and the learned Sessions Court
Judge’s basis for dismissing the claim. The respondent’s counsel
has reproduced the order made on 21.1.2009 and I have counter
checked its authenticity (and content) with the records kept in the
25 case docket of the Sessions Court. It definitely was an unless order
in that the learned Sessions Court Judge specifically spelt out the
penalty for not complying with the time given for supplying the further
CA-12-26-2009-II
5
and better particulars (see the case of Folin & Bros. Sdn. Bhd. vs.
Wong Foh Ling & Ors. (No. 2)(2001) 5 CLJ 476 for the effect of
unless orders). He was well within his powers and jurisdiction when
he made it under 0.14r.18(3) of Subordinate Court Rules 1980 which
rule I 5 reproduced below.
“(3) The court may order a party to serve on any other party
particulars of any claim, defence or other matter stated in his
pleading, or in any affidavit of his ordered to stand as a
pleading, or statement of the nature of the case on which he
10 relies, and the order may be made on such terms as the
Court thinks just.”
The learned Sessions Court Judge did not accept the explanation
from the Bar given by counsel why the particulars as requested was
15 not supplied. In her written submission she said the respondent’s
counsel had agreed to give her an extention of time but reneged on
his words. Of course I have no way of verifying such allegation which
the respondent’s counsel has taken exception to in his written
submission. Whatever the case may be, and this of course drives the
20 point that matters in agreement should be reduced in writing for it is
better to be safe than sorry, I am here to adjudicate on the matters
which happened in the court and not the conduct of counsels outside
of it. What matters is the unless order was made, the particulars
were not supplied within the period stated, no leave to extend time
25 was granted by the court and therefore, the penalty promised in the
unless order can be safely imposed by the court.
Having said this however, I harboured a hope that, legal
technicalities and the law aside, the respondent’s counsel might
CA-12-26-2009-II
6
consider excusing the delay in this case and agree that this appeal be
resolved by way of a consent order agreed by both parties. This I
have indicated to both Counsels when I delivered this judgment and
which they both promised to look into. In the mean time the end
result is the appeal was dismissed with costs 5 to be taxed unless
agreed.
Sgd.
10 (Y.A. PUAN RHODZARIAH BT. BUJANG)
Judicial Commissioner
High Court II Kuching
15 Date of Judgment : 14.5.2009
For Appellant : Ms. Sumirati Sudarjo
Mess. Sulong & Co. Advocates.
20
For Respondent : Mr. Wong Siong Tung
Mess. Wong & Tang Advocates.
IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING
CIVIL APPEAL: 12-26-2009-II
5 BETWEEN
RIVERBANK SUITES DEVELOPMENT SDN BHD
(Company No.240482-V)
a company incorporated and registered under
10 the Companies Act, 1965 in Malaysia and
having its registered office at Suites E-07-12,
Plaza Mont Kiara No.2, Jalan 1/70C,
Off Jalan Bukit Kiara,
50480 Kuala Lumpur and
15 A branch office at Level 1, Riverbank Suites
Apartment & Commercial Tower,
Jalan Tunku Abdul Rahman
93100 Kuching, Sarawak. … Appellant
20
AND
LAU SIE HUNG (BIC.K.0125128)
25 Unit 1202 Level 12
Riverbank Suites Apartment
Jalan Tunku Abdul Rahman
93100 Kuching, Sarawak … Respondent
30
(In the matter of SESSION’S COURT SUMMONS NO.52-745-2008-I
AT KUCHING)
35
BETWEEN
CA-12-26-2009-II
2
RIVERBANK SUITES DEVELOPMENT SDN BHD …
Plaintiff
5 AND
LAU SIE HUNG (BIC.K.0125128) …
Defendant
10
BEFORE THE HONOURABLE JUDICIAL COMMISSIONER
Y.A. PUAN RHODZARIAH BT. BUJANG
15 IN CHAMBERS
JUDGMENT
The appellant (plaintiff in the Magistrate’s Court) has filed an
20 appeal against the decision of the learned Sessions Court Judge
made on 18.3.2009 who dismissed their claim against the defendant
summarily and without going into the merits of their claims. That
claim was a liquidated one for the sum of RM34,718.41 being
maintenance charges for an apartment unit in an Apartment &
25 Commercial Tower owned by the appellant.
The respondent/defendant filed his defence and counterclaim
and later applied for further and better particulars of the claim by
letter to the appellant’s solicitor. When this elicited no response, he
30 filed a formal application requesting for the same. This was allowed
CA-12-26-2009-II
3
by the learned Sessions Court Judge on 21.1.2009. However
despite the order, the particulars were still not supplied to them and
upon hearing this, on the day of mention i.e. 18.3.2009, the learned
Sessions Court Judge dismissed the appellant’s claim on the ground
that the order of 21.1.2009 was also an unless order, 5 in which the
appellant was put to notice that if the particulars were not given
within the time as stipulated in the order (14 days from the date of its
service), the appellant’s action would stand dismissed.
10 Technical objection
The respondent’s counsel drew my attention to the fact that the
Appeal Record filed by the appellant was incomplete in that it did not
contain the orders appealed from. This is in direct contravention of
15 0rder 49 r 6 of Subordinate Court Rules 1980 where it is specifically
provided that the Appeal Record filed must contain, inter alia, the
order or draft order of the decision appealed from. He said this
omission is fatal and the appeal should be dismissed by reason
thereof.
20
It is clear from the wordings of 0rder 49 r 6 that it is mandatory
for Appeal Records to include the documents specified therein. In
respect of the order appealed from the logical purpose is to enable
the appellate court to know, at an instant, which decision of the
25 Subordinate Court is being appealed against to enable not just the
appellate Court but the parties to focus on the subject matter of the
appeal. I agree therefore to follow earlier High Court decisions that
CA-12-26-2009-II
4
when 0rder 49 r 6(3) was not complied with, the appeal is not
competent and should be dismissed. The position of the appeal in
this case is even worst. Not only was the order of the 18.3.2009 not
included in the Appeal Record, the order of the court connected so
closely with it i.e. that which was made on 29.1.2009 5 was also not
exhibited.
Granted the appellant’s counsel has attempted to make
restitution by filling a supplementary Appeal Record (out of time, I
10 must add) the same was filed without leave of the court or the
consent of the respondent’s counsel and should therefore be
disregarded. The decision of Lau Bee Lan J in Sematan Shrimp
Hatchery Co. v. Aqua Fresh Co. (2005)7 CLJ 505 on the same
issue is of assistance and is followed.
15
Assuming, however that I was wrong in summarily dismissing
the appeal, I proceed now to consider its merits.
The unless order
20
This is the crux of the appeal and the learned Sessions Court
Judge’s basis for dismissing the claim. The respondent’s counsel
has reproduced the order made on 21.1.2009 and I have counter
checked its authenticity (and content) with the records kept in the
25 case docket of the Sessions Court. It definitely was an unless order
in that the learned Sessions Court Judge specifically spelt out the
penalty for not complying with the time given for supplying the further
CA-12-26-2009-II
5
and better particulars (see the case of Folin & Bros. Sdn. Bhd. vs.
Wong Foh Ling & Ors. (No. 2)(2001) 5 CLJ 476 for the effect of
unless orders). He was well within his powers and jurisdiction when
he made it under 0.14r.18(3) of Subordinate Court Rules 1980 which
rule I 5 reproduced below.
“(3) The court may order a party to serve on any other party
particulars of any claim, defence or other matter stated in his
pleading, or in any affidavit of his ordered to stand as a
pleading, or statement of the nature of the case on which he
10 relies, and the order may be made on such terms as the
Court thinks just.”
The learned Sessions Court Judge did not accept the explanation
from the Bar given by counsel why the particulars as requested was
15 not supplied. In her written submission she said the respondent’s
counsel had agreed to give her an extention of time but reneged on
his words. Of course I have no way of verifying such allegation which
the respondent’s counsel has taken exception to in his written
submission. Whatever the case may be, and this of course drives the
20 point that matters in agreement should be reduced in writing for it is
better to be safe than sorry, I am here to adjudicate on the matters
which happened in the court and not the conduct of counsels outside
of it. What matters is the unless order was made, the particulars
were not supplied within the period stated, no leave to extend time
25 was granted by the court and therefore, the penalty promised in the
unless order can be safely imposed by the court.
Having said this however, I harboured a hope that, legal
technicalities and the law aside, the respondent’s counsel might
CA-12-26-2009-II
6
consider excusing the delay in this case and agree that this appeal be
resolved by way of a consent order agreed by both parties. This I
have indicated to both Counsels when I delivered this judgment and
which they both promised to look into. In the mean time the end
result is the appeal was dismissed with costs 5 to be taxed unless
agreed.
Sgd.
10 (Y.A. PUAN RHODZARIAH BT. BUJANG)
Judicial Commissioner
High Court II Kuching
15 Date of Judgment : 14.5.2009
For Appellant : Ms. Sumirati Sudarjo
Mess. Sulong & Co. Advocates.
20
For Respondent : Mr. Wong Siong Tung
Mess. Wong & Tang Advocates.
