This is an excerpt of the Excellent speech of the learned Judge.
Judgment writing is an item of high priority in our judicial functions. Naturally, as Judges of the Superior Courts, we feel inspired by our iconic quality in this important task.
In this presentation, I shall give an overview of my experience in trying to write time-effective Grounds of Judgment. My views are merely suggested solutions. There are no hard and fast rules. There is always room for intellectual dissent. We shine in sharing objectivity. Subjective sentiment is excluded.
My analysis and discussion consist of two component parts. They are:
(1) Effective time management; and Reader-friendly grounds of judgment.
EFFECTIVE TIME MANAGEMENT
Without a doubt, time is our most precious resource. In almost all modern contracts, parties and their legal advisers have never failed to expressly agree that “time shall be of the essence of the contract.”
There are many special and unique ways of expressing the immense importance of time. These expressions include:
(1) A stitch in time saves nine;
(2) Procrastination is the thief of time;
(3) Time and tide waits for no man (woman also included);
(4) An inch of time cannot be bought with an inch of gold;
(5) When time is wasted, it can never be recycled; and
(6) Yesterday is history, tomorrow is a mystery, today is a gift; that is why we call it “the present”.
[6] In the real world, time past is gone foreover; it is neither replaceable nor reversible.
It may be a source of consolation to note that good judgments may survive the savages of time.
How can we make that happen?
Time management is therefore singularly significant. The art of time management may be acquired and developed as a way of life. A well-organised individual can do so. There are always essential items in our priority list. Procrastination will prevent us from accomplishing our work. The ability to act timeously is an invaluable personal asset. The most effective time management begins with the best utilization of our efforts. Well arranged time is the hallmark of a well arranged mind.
MATTERS OF TIMELY CONCERN
PRIORITY FOR MORE URGENT JUDGMENTS
(a) Some judgments call for more urgent attention. They appear regularly on our own radar screen. They then become our “must-do” list of judgments.
(b) It is a salutary practice to give priority and put pen to paper without any delay. Once we get started, we have already eased the situation. It has taken priority. The judgment would then be given the due attention it deserves. Further delay is eliminated.
The chances are that the judgment would be completed more speedily.
(c) The completion of the first draft is certainly a source of great comfort. The process of writing consists of numerous small steps in our overall timeline for the whole judgment. We have our own gentle reminder of the urgency to continue and complete the judgment. That will assist us in going ahead with an on-going task.
INTELLECTUAL QUALITY In the discharge of our judicial duties, we have to peruse authorities and extract the principle or ratio from them. This is a skill which is generally manifested in our respective experience. Our established intellectual quality will expedite positive comprehension of the tenor of the authorities and accurate application of the ratio. Such quality motivates us to write with comfort and confidence. It is an obvious time-saving device.
INSPIRATION Inspiration is an important catalyst in managing time, for the purpose of writing judgments. Generally, we know our own best time to write. It is when we feel we are inspired. We are our own judges in this regard. This is a very special individual lifestyle and habit. Only we can monitor our own best time. It is a process of individual discovery. It is a work programme personal to the planner. We can use our best time to give our competent best.
COURAGE TO BE SLOW
(a) This is a pleasant surprise. We need some courage to be slow, but the delay must be within the bounds of reasonableness. The courage to be reasonably slow does not mean dragging our feet. It must not be a non-starter.
(b) When the task of writing a particular judgment involves facts and issues of exceptional complexity, reasonable slowing down may prove justifiable.
(c) A Judge who is a good time manager may cautiously respond to certain facts and issues less speedily than a hasty colleague would. Remember “more haste, less speed”. A hastily ill-prepared judgment is a wasted judgment.
(d) Quite often, it is necessary for us to put aside the draft for a while. Let our mind rest, so that our judgment is not rash.
(e) While this may appear to run counter to time constraints and multiplying matters at hand, a cautious slowing down for of a couple of days may prove useful. Subsequently, we may be able to discover points not previously spotted. We may gain new insights and accumulate new ideas. Most importantly, the completion of the judgment has become a reality.
READER-FRIENDLY GROUNDS OF JUDGMENT With a view to preparing time-effective grounds of judgment, it may be worthwhile to take stock of the following:
PRACTICE DIRECTION DATED 14 FEBRUARY 2011
(a) Full Grounds
(i) The Rt Hon the Chief Justice Tun Zaki Tun Azmi has vide Practice Direction dated 14 February 2011 thrown some light on the necessity for Court of Appeal Judges to write full grounds. The Practice Direction also explains that Judges are not discouraged from writing full grounds.
(ii) Full grounds are usually written upon request by the Federal Court e.g:
(iii) When a party applies for leave to appeal; and the Federal Court considers it necessary to peruse the grounds;
When leave to appeal has been granted and notice of appeal has been filed;
In the event of a dissenting judgment, the “majority” judges and “minority” judge would provide their respective grounds;
Where the Court of Appeal reverses a decision of the High Court; or
When a Judge enjoys writing for posterity.
The contents of full grounds would generally include a fair, clear and accurate statement of the factual background, an application of the relevant rules or ratio and an analysis of the findings.
(iv) Full grounds are useful in the analysis of the complexity of the facts and the importance or novelty of the issues raised.
(b) Broad Grounds
(i) Broad grounds are given, normally ex tempore, in order to explain to the parties and their lawyers the brief reasons and rationale leading to a particular decision.
(ii) Point forms for broad grounds are encouraged. This is to inform the parties or the Federal Court of the issues and principles on which the decision is made. Only the relevant parts of any authority e.g page and paragraph need be mentioned. The broad grounds would become the grounds of judgment and no further or additional grounds need be given: Dato’ Seri Anwar Ibrahim v PP [2010] 9 CLJ 625 FC.
(c) Short Summary of Finding
It is also quite common for the Court of Appeal to provide a short summary of the Court’s finding at
the conclusion of the hearing of an appeal. This serves to announce to the parties and their lawyers the brief decision of the Court.
(d) Full grounds, broad grounds and a short summary of finding given by the Court of Appeal serve to reflect the judicial thinking of the Court of Appeal Judges.
Although the Practice Direction refers specifically to the Court of Appeal, I am of the view that it may be applied and adopted, mutatis mutandis, by the High Court.
AVOIDING NON-ESSENTIAL QUOTATIONS
(a) Where the governing principles of law are trite, a mere citation of the latest decision of the apex court would suffice. Citation of strings of authorities and an elaborate dissertation may not add anything new. On the contrary, it would be time-consuming, and unlikely to be reader-friendly. Quotations from the plethora of authorities would become non- essential, and may safely be dispensed with. Similarly, only the essence of counsel’s submissions need be included.
(b) The time-demanding inclusion of non-essential quotations and submissions would not stop there. It has a chain reaction. It leads to the demand on the time of our busy readers. This ripple continues to multiply. The readers may simply plod on and make a perfunctory attempt to read. Alternatively, they may proceed with their own preferences for other more resourceful pursuits.
LANGUAGE: LITERATURE AND LAW
(a) Literature and law are two positive contributors towards superb writing, by means of language. For people who are trained in the law, language is our single most important tool.
(b) The importance of language in literature and law is plain and obvious.
(c) Language provides the bridge for literature and law. The development of literature and law would grind to a halt if language were never in existence. There is a symbiosis between literature and law.
(d) Although literature and law share identical features, they also reveal opposing attributes. Opposites attract, in the same way as unlike poles in magnets. A love for literature opens the gateway to an understanding of the law.
(e) Literature extols the virtue of originality. The authority of a literary author gains an elevated status if his/her works had never been previously explored or written.
(f) In law, the reverse is true. By reason of the doctrine of stare decisis, originality has taken a back seat. An accurate application of the legal principles taken from judicial precedents, especially of the apex court, would give greater authority and weightage to a subsequent judgment. Relevant and essential excerpts from precedents are reproduced. Recognition is given by way of specific citation of the source(s).
(g) In terms of identical features, literature consists of literary works which are expressed in narratives. Law (whether in the form of statutes or judgments) consists of literary works, also in the form of narratives. These narratives are produced and narrated by means of language which in turn is expressed in words and phrases.
(h) These narratives provide the pith and substance or the shape and meaning to literature and law. Literature is therefore supplementary and complementary to law. A mastery of the language in literature would certainly multiply the understanding of the law. This can bring about reader-friendly judgments. Our grounds of judgment are essentially the products of the raw materials which we have gathered in our experience, knowledge and skill, acquired from these two (or even more) sources.
PROCESS OF WRITING
(a) ORGANISING THOUGHTS
(i) Organising our thoughts would normally precede the process of writing. This is our mind-map. As a guide, it consists of introduction, factual background, submissions, questions for determination, individual issues for deliberation, governing principles, the judge’s thinking and conclusion.
(ii) Where available, deputy or senior assistant registrars, research or special officers would lighten the onerous duties of Judges.
(iii) While these officers are relatively senior in service, and generally useful, they are certainly not substitutes for Judges. They have only a fraction of the Judges’ practical experience. Their limitations are apparent.
(iv) The ultimate responsibility in producing quality and reader-friendly judgments rests on the Judges’ shoulders. Hence, Judges play more important roles and are not merely editors. Judges are indeed the authors of their own masterpieces in the form of published judgments.
(
b) INTRODUCTION
(i) The introductory part of a judgment opens the reader’s door to the contents of the judgment, such as:
. The subject-matter of the case;
(c)
.. The parties, using the same identity throughout so as to avoid confusion;
... Procedural jurisdictional and substantive issue(s) if any; and
.... A summary of the decision. This is a matter of personal preference; some judges prefer to include it at the end of the judgment.
FORMULATING ISSUES
(i) This is dictated by the factual background and counsel’s submissions on the law.
(ii) While the issues are frequently formulated according to submissions from the Bar, Judges are not necessarily bound to do so. There may be occasions when submissions are out of focus, and therefore not in tandem with the issues under consideration. In such instances, an experienced Judge will have to realign so as to bring it within the focus and on course.
(iii) Not all issues raised would require the decision of the Judge. It is an established practice to give a summary of parties’ elaborate contentions, and to avoid unnecessary regurgitations. It would be a safe guide if the core or crucial issues are tackled, especially when they effectively bring about a disposal of the case.
(iv) To avoid the criticism that those issues were not dealt with or were dealt with inadequately, it is prudent to add a brief catch-all statement that those issues had been taken into account and found to be either irrelevant or unhelpful. A few words of commendation to counsel would be in good order.
FACTUAL BACKGROUND
(i) A narrative of the factual background puts the entire case in its proper perspective. There is a time-honoured saying that when the facts are clearly and accurately established, the law will take care of itself.
(ii) The facts may vary from case to case and hence readily distinguishable. However, the governing principles of law may well be settled or trite. A correct application of the law to the factual background becomes a natural progression.
(iii) Irrelevant facts can be distracting to the reader and would adversely affect readability. They can be dispensed with. Readers should not be led to think that a judgment is based on irrelevant facts.
(e) APPLICATION OF PRINCIPLES
(i) An accurate discussion and application of the governing legal principles would strike at the core of a sound judgment. A well-considered judgment has its roots in strong foundation and solid grounds. The reader will be able to form an opinion on the quality and substance of a judgment.
(ii) Quite often, a judgment may contain “alternative holdings”. While this method may sometimes be necessary, it may unwittingly
(iii) water down the weight of a judgment. The expressions such as “even if the facts were otherwise” or “assuming arguendo that we had not concluded thus and so ....” may, in the eyes of the reader, indirectly dilute the tenacity of a judgment. Judicial opinions arrived at by way of “alternative holdings” are likely to be treated as obiter dictum and not ratio decidendi.
Novel principles of laws would warrant an in- depth analysis to support the reasoning for the new rule.
(f) CLOSURE OF CASE This leads to the conclusion of a case under consideration. This must be clearly and authoritatively set out. It must not be overshadowed in riddles. The conclusion must follow the preceding analysis and discussion.
(5) OTHER FEATURES Features of reader-friendly grounds of judgment are never closed. In addition to the above discussion, other features include:
(i) Exclusion of unnecessary words so that every word is essential, concise and succinct;
(ii) Avoidance of lengthy discussions in uncontroversial propositions;
(iii) Ability to identify the relevant from the irrelevant;
(iv) Capacity for precision and clarity;
(v) Accurate and careful proof-reading to ensure correct spelling, grammar etc;
(vi) Display of commendable quality of authorship;
(vii) Logical process of reasoning and analysis;
(viii) Expressing complex concepts in comprehensible language;
(ix) Using interesting, elegant, plain and popular words, so that the reader’s reference to a dictionary is kept to the barest minimum;
(x) Pruning convoluted sentences; and (xi) Eliminating ambiguities.
IV. CONCLUSION: POEM ON “JUDGMENTS”
Capacity building in order to excel in effective time management is possible. Our passion for quality judgment writing is always there; it is be found in our own garden of experience, knowledge and skill.
By way of conclusion, I find it fitting and fascinating to share a “JUDGMENT” poem with you.
It reads:
JUDGMENTS
Judgments with readable grounds are products of intellectual exercise, Using powerful expressions acknowledged as inherently apt and concise, Decision-making process requires evaluation which is fair and precise; Great writing is readily identifiable as being refined and reader-friendly, Mastery of language and communication skills are applied accurately, Excerpts, where relevant and essential, are reproduced judiciously; Novel principles of law deserve detailed exposition after due deliberation, Time-effective measures are ably adopted with boundless satisfaction, Soundness of rationale and wisdom is to be determined by future generation.
7.9.2011
PER DATUK WIRA LOW HOP BING JUDGE COURT OF APPEAL MALAYSIA
Thursday, December 29, 2011
Tuesday, December 20, 2011
The closing of a Company.
There are , are 3 methods in which close a company can be closed down:-
Strike Off
Members Voluntary Winding Up
Creditors Liquidation
Striking off falls under Section 308 of the Companies Act 1965.
The Companies Commission of Malaysia guidelines and procedures are as follows namely, the company:-
o Must be dormant at the point of application.
o All bank accounts have to be closed.
o Has no assets or liabilities and free from encumbrances including no penalties and compounds under the Companies Act 1967, no outstanding tax or other liabilities with any government department or agency and not involved in any legal proceedings within or outside Malaysia.
o Is not a holding company of another corporate body.
The Advantages of Striking Off are; Costs, SSM striking off fees are lower, RM120 per application, the time period quicker, all the documentation required is the Applicant’s Statement, Members’ Resolution and Latest audited accounts
Striking Out is at the discretion of the SSM.
Strike Off
Members Voluntary Winding Up
Creditors Liquidation
Striking off falls under Section 308 of the Companies Act 1965.
The Companies Commission of Malaysia guidelines and procedures are as follows namely, the company:-
o Must be dormant at the point of application.
o All bank accounts have to be closed.
o Has no assets or liabilities and free from encumbrances including no penalties and compounds under the Companies Act 1967, no outstanding tax or other liabilities with any government department or agency and not involved in any legal proceedings within or outside Malaysia.
o Is not a holding company of another corporate body.
The Advantages of Striking Off are; Costs, SSM striking off fees are lower, RM120 per application, the time period quicker, all the documentation required is the Applicant’s Statement, Members’ Resolution and Latest audited accounts
Striking Out is at the discretion of the SSM.
Tuesday, December 13, 2011
Friday, November 11, 2011
Saturday, October 1, 2011
Tuesday, July 19, 2011
WHAT IS THE PRIMARY DUTY OF A PUPIL MASTER?
from LAwyerment
http://www.lawyerment.com.my/library/doc/lp/mstr/
The most important duty of a pupil master is to guide, help and advise his Pupil in the traditions of the legal profession and to supervise the training of the Pupil in the practice of an advocate and solicitor so that the Pupil may obtain the maximum benefit from his period of pupillage.
HOW MANY PUPIL SHOULD A MASTER ACCEPT ?
Not more than the Master is able to effectively guide and train. The general rule, a master should not accept more than 2 Pupils at any one time.
WHAT A MASTER SHOULD DO BEFORE ACCEPTING A PUPIL ?
Naturally, a Master should be satisfied that he is qualified to accept a Pupil similar to that the Master should satisfy himself that the Pupil is a qualified person.
The prescribed period of pupillage should be completed by the Pupil. A record on the date of commencement of pupillage and any leave of absence should be noted and recorded. Any period of absence will be count towards satisfying the prescribed period of pupillage.
WHAT A MASTER HAS TO DO IN SUPPORT OF THE PUPIL'S PETITION FOR ADMISSION TO THE BAR ?
The Master has to sign a Certificate of Diligence in support of the Pupil's petition for admission to the Bar. It is a representation to the Court that the Pupil has devoted his full-time and attention throughout the period of the pupillage to the acquisition of experience in professional practice.
WHAT A MASTER SHOULD DO TO ENSURE THAT HIS PUPIL RECEIVES EXPOSURE TO AS WIDE A VARIETY OF WORK AS POSSIBLE IN THE DISTRIBUTION OF WORK ?
The Master should ensure that
• be it in the practice or etiquette of the Bar in professional ethics, the Pupil is well-grounded.
• the Pupil reads in advance his papers and draft pleadings or other documents relevant to the Master's practice including agreements, opinions, leases, conveyances and other documents which in advocate and solicitor would be expected to consider, draft or settle in his practice.
• the Pupil has the opportunity to attend Court with him. If the Master has no trials fixed for the period of the Pupil's pupillage, the Master should make arrangements for the Pupil to attend at trials and appeals to be conducted or argued by senior members of the master's firm or senior advocates of other firms.
• the Pupil to attend conference (both with clients and with other parties in the presence of their solicitors) and negotiations to enable the pupil to obtain sufficient experience in these matters.
• all work done by his Pupil is being monitored and take a direct interest in their work done.
• the Pupil is well briefed before the Pupil attends Court, when the Master has obtained leave for restricted audience for his Pupil under section 36 of the Legal Profession Act 1976. The Master should take the opportunity of discussing with his Pupil the appearance in Court, after the Pupil has attended Court on behalf of his Master.
• a relationship of mutual trust and confidence between himself and the Pupil is established.
• attention should be drawn to Pupil as soon as possible, if mistakes are made by the Pupil and by showing the Pupil how the matter should be done correctly.
• it is made clear to the Pupil and his colleagues in his firm that the Pupil is responsible to him alone.
• no work or assignment should be given to a Pupil without the consent of the Master - as a matter of courtesy. Advice should be given to their colleagues as a Pupil may find it difficult to refuse week or assignment from another member of the firm.
• consider the desirability of arranging for the Pupil to spend time working with some other member of the Master's firm in order to give the Pupil broader exposure if the Master's area of practice is a specialized one.
• the Pupil does not take instructions from clients or give advice or sign letters of documents on behalf of the Master or his firms.
• impress on his Pupil the necessity for the strictest observance of confidentiality in relation to all matters relating to his clients
http://www.lawyerment.com.my/library/doc/lp/mstr/
The most important duty of a pupil master is to guide, help and advise his Pupil in the traditions of the legal profession and to supervise the training of the Pupil in the practice of an advocate and solicitor so that the Pupil may obtain the maximum benefit from his period of pupillage.
HOW MANY PUPIL SHOULD A MASTER ACCEPT ?
Not more than the Master is able to effectively guide and train. The general rule, a master should not accept more than 2 Pupils at any one time.
WHAT A MASTER SHOULD DO BEFORE ACCEPTING A PUPIL ?
Naturally, a Master should be satisfied that he is qualified to accept a Pupil similar to that the Master should satisfy himself that the Pupil is a qualified person.
The prescribed period of pupillage should be completed by the Pupil. A record on the date of commencement of pupillage and any leave of absence should be noted and recorded. Any period of absence will be count towards satisfying the prescribed period of pupillage.
WHAT A MASTER HAS TO DO IN SUPPORT OF THE PUPIL'S PETITION FOR ADMISSION TO THE BAR ?
The Master has to sign a Certificate of Diligence in support of the Pupil's petition for admission to the Bar. It is a representation to the Court that the Pupil has devoted his full-time and attention throughout the period of the pupillage to the acquisition of experience in professional practice.
WHAT A MASTER SHOULD DO TO ENSURE THAT HIS PUPIL RECEIVES EXPOSURE TO AS WIDE A VARIETY OF WORK AS POSSIBLE IN THE DISTRIBUTION OF WORK ?
The Master should ensure that
• be it in the practice or etiquette of the Bar in professional ethics, the Pupil is well-grounded.
• the Pupil reads in advance his papers and draft pleadings or other documents relevant to the Master's practice including agreements, opinions, leases, conveyances and other documents which in advocate and solicitor would be expected to consider, draft or settle in his practice.
• the Pupil has the opportunity to attend Court with him. If the Master has no trials fixed for the period of the Pupil's pupillage, the Master should make arrangements for the Pupil to attend at trials and appeals to be conducted or argued by senior members of the master's firm or senior advocates of other firms.
• the Pupil to attend conference (both with clients and with other parties in the presence of their solicitors) and negotiations to enable the pupil to obtain sufficient experience in these matters.
• all work done by his Pupil is being monitored and take a direct interest in their work done.
• the Pupil is well briefed before the Pupil attends Court, when the Master has obtained leave for restricted audience for his Pupil under section 36 of the Legal Profession Act 1976. The Master should take the opportunity of discussing with his Pupil the appearance in Court, after the Pupil has attended Court on behalf of his Master.
• a relationship of mutual trust and confidence between himself and the Pupil is established.
• attention should be drawn to Pupil as soon as possible, if mistakes are made by the Pupil and by showing the Pupil how the matter should be done correctly.
• it is made clear to the Pupil and his colleagues in his firm that the Pupil is responsible to him alone.
• no work or assignment should be given to a Pupil without the consent of the Master - as a matter of courtesy. Advice should be given to their colleagues as a Pupil may find it difficult to refuse week or assignment from another member of the firm.
• consider the desirability of arranging for the Pupil to spend time working with some other member of the Master's firm in order to give the Pupil broader exposure if the Master's area of practice is a specialized one.
• the Pupil does not take instructions from clients or give advice or sign letters of documents on behalf of the Master or his firms.
• impress on his Pupil the necessity for the strictest observance of confidentiality in relation to all matters relating to his clients
Principles Applicable on admitting Fresh evidence on Appeal
The classic restatement on the introduction of fresh evidence on appeal was made by Denning LJ in Ladd v. Marshall [1954] 1 W.L.R 1489 at 1491 when he said three conditions must be fulfilled:-
First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the first instance trial;
Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
Third, the evidence must be apparently
First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the first instance trial;
Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
Third, the evidence must be apparently
Wednesday, June 22, 2011
Y.A. TUAN MAH WENG KWAI:- "it would be incumbent upon the Official Assignee to give reasons to support his decision and to inform a party who is not only interested in but aggrieved by the decision" (of his reasons to grant sanction o a Bankrupt)
Y.A. TUAN MAH WENG KWAI
Judicial Commissioner High Court Malaya Kuala Lumpur
HIGH COURT OF MALAYA AT KUALA LUMPUR IN BANKRUPTCY NO: D-29-5236-1992
DATO’ MOHD FATHI BIN HAJI AHMAD EX-PARTE: STANDARD CHARTERED BANK (M) BERHAD
1. DATO’ DR CHEN LIP KEONG 2. DATO HAJI ABDUL RAHMAN HAMZAH 3. KEMAJUAN HOLDINGS SDN BHD ... APPLICANTS
KETUA PENGARAH INSOLVENSI ... RESPONDENT JUDGMENT
Brief facts
On 20/11/06, Adjudication and Receiving Orders (AO/RO) were obtained by the Judgment Creditor, Standard Chartered Bank (Malaysia) Bhd (JC) for the judgment sum of RM9,905,514.54 against the Bankrupt. The Bankrupt appealed against the AO/RO to the Court of Appeal but the appeal was dismissed. An application for leave to the Federal Court was also dismissed. Pending the appeal by the Bankrupt against the AO/RO, the D1 and D3 Suits were stayed to enable the Bankrupt to obtain the requisite sanction of the Official Assignee under Section 38 (1) (a) of the Bankruptcy Act 1967 (BA) to proceed with the D3 Suit. The Bankrupt applied to the Official Assignee for his sanction on 29/10/08. The D1 and D3 Suits have not been disposed off till today.
On 23/12/08, the Official Assignee gave the sanction to the Bankrupt to pursue his D3 Suit against all the Applicants (Enclosure 89 – Exhibit ‘RO 3’). On 6/2/09, the Applicants requested the Official Assignee to furnish them with his grounds for giving the sanction to the Bankrupt as well as to inform them of whether the guarantor had paid the deposit sum as required. The Official Assignee did not respond to this request.
9. However on 23/2/09, the Official Assignee informed the Applicants that “Dalam hal ini kami berpendapat bahawa si bankrap mempunyai kepentingan terhadap saham syarikat tersebut. Oleh itu Ketua Pengarah Insolvensi Malaysia telah melaksanakan kuasanya secara budibicara dengan memberi sanksi kepada si bankrap. Sekiranya tuan ingin mendapatkan dokumen-dokumen sanksi tersebut pihak tuan bolehlah mendapatkannya sendiri daripada si bankrap.”
Decision of the Court
On hearing the appeal on 22/9/10 and after considering the oral and written submissions of the Official Receiver and Counsel for the Applicants, the Court dismissed the appeal with costs.
Reasons for the Decision
Upon the grant of the AO/RO, the Official Assignee is vested with the property of the Bankrupt and has conduct of the financial affairs of the Bankrupt and the administration of his estate (see Section 71 of the BA).
The Official Assignee as the administrator and receiver of the Bankrupt’s estate ought to have full knowledge of the Bankrupt’s financial affairs. The Official Assignee must be fully satisfied of the grounds of the application before exercising his discretion to grant the sanction. The Official Assignee must be in the position to give his reasons for granting the sanction as his decision can be challenged by the Bankrupt, creditor and /or an aggrieved person (see Section 86 of the BA).
In this case, the Applicants have the locus to challenge the decision of the Official Assignee as they are aggrieved persons.
The Applicants contend that the Official Assignee ought not to have granted the sanction on the following grounds:
a) that the Official Assignee did not fully appreciate the facts in the D3 Suit and that the relief sought by the Bankrupt in the D3 Suit will be ineffectual and futile in view of the several changes in the ownership of the Shares in First Malaysia and that the Shares are of little or no value,
b) that the estate of the Bankrupt is not in the position to pay the costs of the D3 Suit which has been pending for the last 21 years,
c) that the estate of the Bankrupt will be no position to satisfy the claims of the 1st and 3rd Applicants in the D1 Suit in the event the Bankrupt is held liable, and
d) that the conditions set out in the Official Assignee’s letter of 4/12/08 have not been properly and fully met.
I am of the view that although the Official Assignee was correct to hold that the Bankrupt has an interest in the Shares, the Official Assignee had failed to give his reasons to support his decision to grant the sanction. It was insufficient for the Official Assignee to state in his letter in reply to the Applicants dated 23/2/09 that the Bankrupt had an interest in the Shares and that it was his discretion to grant the sanction without saying more.
I am of the view however, that it is incorrect for the Applicants to contend that the Bankrupt did not possess an interest in the Shares merely because ownership of the Shares had changed hands several times and that the Shares are of little or no value. The Applicants themselves had conceded that the Bankrupt had a beneficial interest in the Shares. What this means in simple terms, is that in the event the Bankrupt is successful in the D3 Suit the judgment sum would be paid to the legal owners of the Shares namely, MRSB Sdn Bhd and FUSB Sdn Bhd and not to the estate of the Bankrupt. …
….Whether the estate of the Bankrupt will be able to recover the money on the basis of the Bankrupt’s beneficial interest will be another matter to be resolved at another time.
For reasons stated above, I am thus unable to agree with the contention of the Official Assignee as stated in the written submission of Counsel, that the Official Assignee was not obliged to “assess the fact and merit of the application of sanction by the Bankrupt and no duty of DGI to inform and give the justification of granting the sanction to the Bankrupt pursuant to Bankruptcy Act 1967”. Having made a decision which is quasi-judicial in nature it would be incumbent upon the Official Assignee to give reasons to support his decision and to inform a party who is not only interested in but aggrieved by the decision. I cannot agree with the Official Assignee’s submission that the basis for granting the sanction is not an issue and “cannot be questioned by the Applicants”.
On 19/11/09, the Applicants wrote to the Official Assignee (Enclosure 183 – page 181) to inquire whether the estate of the Bankrupt would be willing and able to pay RM300,000.00 as security for costs. The Official Assignee replied on 3/12/09 informing the Applicants that the estate did not have the funds to do so.
I am of the view that the Official Assignee ought not to have granted the sanction to the Bankrupt for the following inter alia reasons:-
a) the Official Assignee having failed to carry out an indepth study into the merits of the D3 Suit or to take legal opinion on it was not in the position to determine meaningfully whether the estate of the Bankrupt would really benefit from the continuance of the trial of the D3 Suit.
b) the estate, not having the funds to furnish RM300,000.00 as security for costs, will not be in a position to settle the judgment debt in the sum of RM9,905,514.54 to the JC.
c) it appears that the Official Assignee did not consider at all the position of the D1 Suit in the event the D3 Suit is proceeded with, as the 2 cases have been consolidated.
d) the Official Assignee has failed and/or neglected to address the fears of the Applicants in not being able to recover the costs in the D3 Suit in the event the suit is dismissed against them, and
e) importantly, the conditions set out by the Official Assignee for the Bankrupt to comply in his letter of 4/12/08 have not been adequately met or at all within the period of 21 days from the date of the letter namely:-
(i) Bankrupt to secure a competent guarantor to give letter of undertaking
A letter of undertaking by a guarantor was purportedly given by one Ahmad Sakhee bin Shamsuddin to the Official Assignee. However the letter of undertaking was undated and it appears that it was received by the Official Assignee’s office on 17/11/08 that is, even before the letter of the Official Assignee setting out the conditions dated 4/12/08 was issued! Thus, the validity of the letter of undertaking itself is questionable.
(ii) The Bankrupt was to furnish the Guarantee Bond (Bon Jaminan)
a) According to the letter of conditional approval dated 4/12/08, the guarantor was required to furnish a Guarantee Bond and to deposit the sum of RM3000 as security with the Official Assignee.
b) It is doubtful as to who the actual guarantor is. On the one hand the Letter of Undertaking was given by Ahmad Sakhee bin Shamsuddin who should also be the guarantor, while on the other the name of one Kamarulaizian binti Kamsah appears on page 1 of the Bon Jaminan with an undertaking to pay the deposit sum of RM3000, with yet the name of Ahmad Sakhee bin Shamsuddin appearing on page 2 (See Enclosure 89 – Exhibit RO3). No explanation has been given by the Official Assignee as to why the name of Ahmad Sakhee bin Shamsuddin does not appear on page 1 of the Bon Jaminan. If it was the Official Assignee’s intention to have 2 guarantors, then the space for the sum required on page 2 should not have been left blank.
c) It is also to be noted that there are 3 signatures on page 2 of the Bon Jaminan. As the signatures have not been identified it is unknown who the signatories are. Without the proper execution of the Bon Jaminan, the Bon will not be enforceable.
d) Importantly, the Bon Jaminan was only signed and dated 2/3/09 that is, almost 3 months after the sanction had been given on 23/12/08. The delay in the provision of the Bon Jaminan is in clear breach of paragraph 4 of the conditional letter of approval dated 4/12/08 which clearly stipulated that the Bankrupt had to comply with the conditions within 21 days from the date of the letter, failing which the sanction would not be given.
(iii) The Guarantor was to deposit RM3,000 as security for costs
There is no evidence on record to show whether the said deposit had in fact been paid by the Guarantor to the Official Assignee and if so, when it was paid as stipulated by the Official Assignee, it is clear that the Official Assignee should not have granted the sanction to the Bankrupt as the interest of the Applicants have not been safeguarded.
The various complaints on the shortcomings have not been refuted by the Official Assignee on affidavit and hence following the principle expounded by Gopal Sri Ram JCA (as he then was) in the case of Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 CLJ 609, the Official Assignee is deemed to have admitted the allegations made by the Applicants.
In the final analysis, the Official Assignee’s decision to grant the sanction must be on an informed basis and not made purely as an administrative decision. The Official Assignee has failed to show to the Applicants that the estate of the Bankrupt will have the funds to meet the costs of the D3 Suit which has been pending for the last 21 years. There is no basis for the Official Assignee to say there was no risk that the estate of the Bankrupt could not pay the costs.
In view of the Bankrupt’s failure to comply fully with the conditions
Accordingly, the Official Assignee’s appeal was dismissed with costs. Dated 27th day of October 2010.
Y.A. TUAN MAH WENG KWAI
Judicial Commissioner High Court Malaya Kuala Lumpur
Judicial Commissioner High Court Malaya Kuala Lumpur
HIGH COURT OF MALAYA AT KUALA LUMPUR IN BANKRUPTCY NO: D-29-5236-1992
DATO’ MOHD FATHI BIN HAJI AHMAD EX-PARTE: STANDARD CHARTERED BANK (M) BERHAD
1. DATO’ DR CHEN LIP KEONG 2. DATO HAJI ABDUL RAHMAN HAMZAH 3. KEMAJUAN HOLDINGS SDN BHD ... APPLICANTS
KETUA PENGARAH INSOLVENSI ... RESPONDENT JUDGMENT
Brief facts
On 20/11/06, Adjudication and Receiving Orders (AO/RO) were obtained by the Judgment Creditor, Standard Chartered Bank (Malaysia) Bhd (JC) for the judgment sum of RM9,905,514.54 against the Bankrupt. The Bankrupt appealed against the AO/RO to the Court of Appeal but the appeal was dismissed. An application for leave to the Federal Court was also dismissed. Pending the appeal by the Bankrupt against the AO/RO, the D1 and D3 Suits were stayed to enable the Bankrupt to obtain the requisite sanction of the Official Assignee under Section 38 (1) (a) of the Bankruptcy Act 1967 (BA) to proceed with the D3 Suit. The Bankrupt applied to the Official Assignee for his sanction on 29/10/08. The D1 and D3 Suits have not been disposed off till today.
On 23/12/08, the Official Assignee gave the sanction to the Bankrupt to pursue his D3 Suit against all the Applicants (Enclosure 89 – Exhibit ‘RO 3’). On 6/2/09, the Applicants requested the Official Assignee to furnish them with his grounds for giving the sanction to the Bankrupt as well as to inform them of whether the guarantor had paid the deposit sum as required. The Official Assignee did not respond to this request.
9. However on 23/2/09, the Official Assignee informed the Applicants that “Dalam hal ini kami berpendapat bahawa si bankrap mempunyai kepentingan terhadap saham syarikat tersebut. Oleh itu Ketua Pengarah Insolvensi Malaysia telah melaksanakan kuasanya secara budibicara dengan memberi sanksi kepada si bankrap. Sekiranya tuan ingin mendapatkan dokumen-dokumen sanksi tersebut pihak tuan bolehlah mendapatkannya sendiri daripada si bankrap.”
Decision of the Court
On hearing the appeal on 22/9/10 and after considering the oral and written submissions of the Official Receiver and Counsel for the Applicants, the Court dismissed the appeal with costs.
Reasons for the Decision
Upon the grant of the AO/RO, the Official Assignee is vested with the property of the Bankrupt and has conduct of the financial affairs of the Bankrupt and the administration of his estate (see Section 71 of the BA).
The Official Assignee as the administrator and receiver of the Bankrupt’s estate ought to have full knowledge of the Bankrupt’s financial affairs. The Official Assignee must be fully satisfied of the grounds of the application before exercising his discretion to grant the sanction. The Official Assignee must be in the position to give his reasons for granting the sanction as his decision can be challenged by the Bankrupt, creditor and /or an aggrieved person (see Section 86 of the BA).
In this case, the Applicants have the locus to challenge the decision of the Official Assignee as they are aggrieved persons.
The Applicants contend that the Official Assignee ought not to have granted the sanction on the following grounds:
a) that the Official Assignee did not fully appreciate the facts in the D3 Suit and that the relief sought by the Bankrupt in the D3 Suit will be ineffectual and futile in view of the several changes in the ownership of the Shares in First Malaysia and that the Shares are of little or no value,
b) that the estate of the Bankrupt is not in the position to pay the costs of the D3 Suit which has been pending for the last 21 years,
c) that the estate of the Bankrupt will be no position to satisfy the claims of the 1st and 3rd Applicants in the D1 Suit in the event the Bankrupt is held liable, and
d) that the conditions set out in the Official Assignee’s letter of 4/12/08 have not been properly and fully met.
I am of the view that although the Official Assignee was correct to hold that the Bankrupt has an interest in the Shares, the Official Assignee had failed to give his reasons to support his decision to grant the sanction. It was insufficient for the Official Assignee to state in his letter in reply to the Applicants dated 23/2/09 that the Bankrupt had an interest in the Shares and that it was his discretion to grant the sanction without saying more.
I am of the view however, that it is incorrect for the Applicants to contend that the Bankrupt did not possess an interest in the Shares merely because ownership of the Shares had changed hands several times and that the Shares are of little or no value. The Applicants themselves had conceded that the Bankrupt had a beneficial interest in the Shares. What this means in simple terms, is that in the event the Bankrupt is successful in the D3 Suit the judgment sum would be paid to the legal owners of the Shares namely, MRSB Sdn Bhd and FUSB Sdn Bhd and not to the estate of the Bankrupt. …
….Whether the estate of the Bankrupt will be able to recover the money on the basis of the Bankrupt’s beneficial interest will be another matter to be resolved at another time.
For reasons stated above, I am thus unable to agree with the contention of the Official Assignee as stated in the written submission of Counsel, that the Official Assignee was not obliged to “assess the fact and merit of the application of sanction by the Bankrupt and no duty of DGI to inform and give the justification of granting the sanction to the Bankrupt pursuant to Bankruptcy Act 1967”. Having made a decision which is quasi-judicial in nature it would be incumbent upon the Official Assignee to give reasons to support his decision and to inform a party who is not only interested in but aggrieved by the decision. I cannot agree with the Official Assignee’s submission that the basis for granting the sanction is not an issue and “cannot be questioned by the Applicants”.
On 19/11/09, the Applicants wrote to the Official Assignee (Enclosure 183 – page 181) to inquire whether the estate of the Bankrupt would be willing and able to pay RM300,000.00 as security for costs. The Official Assignee replied on 3/12/09 informing the Applicants that the estate did not have the funds to do so.
I am of the view that the Official Assignee ought not to have granted the sanction to the Bankrupt for the following inter alia reasons:-
a) the Official Assignee having failed to carry out an indepth study into the merits of the D3 Suit or to take legal opinion on it was not in the position to determine meaningfully whether the estate of the Bankrupt would really benefit from the continuance of the trial of the D3 Suit.
b) the estate, not having the funds to furnish RM300,000.00 as security for costs, will not be in a position to settle the judgment debt in the sum of RM9,905,514.54 to the JC.
c) it appears that the Official Assignee did not consider at all the position of the D1 Suit in the event the D3 Suit is proceeded with, as the 2 cases have been consolidated.
d) the Official Assignee has failed and/or neglected to address the fears of the Applicants in not being able to recover the costs in the D3 Suit in the event the suit is dismissed against them, and
e) importantly, the conditions set out by the Official Assignee for the Bankrupt to comply in his letter of 4/12/08 have not been adequately met or at all within the period of 21 days from the date of the letter namely:-
(i) Bankrupt to secure a competent guarantor to give letter of undertaking
A letter of undertaking by a guarantor was purportedly given by one Ahmad Sakhee bin Shamsuddin to the Official Assignee. However the letter of undertaking was undated and it appears that it was received by the Official Assignee’s office on 17/11/08 that is, even before the letter of the Official Assignee setting out the conditions dated 4/12/08 was issued! Thus, the validity of the letter of undertaking itself is questionable.
(ii) The Bankrupt was to furnish the Guarantee Bond (Bon Jaminan)
a) According to the letter of conditional approval dated 4/12/08, the guarantor was required to furnish a Guarantee Bond and to deposit the sum of RM3000 as security with the Official Assignee.
b) It is doubtful as to who the actual guarantor is. On the one hand the Letter of Undertaking was given by Ahmad Sakhee bin Shamsuddin who should also be the guarantor, while on the other the name of one Kamarulaizian binti Kamsah appears on page 1 of the Bon Jaminan with an undertaking to pay the deposit sum of RM3000, with yet the name of Ahmad Sakhee bin Shamsuddin appearing on page 2 (See Enclosure 89 – Exhibit RO3). No explanation has been given by the Official Assignee as to why the name of Ahmad Sakhee bin Shamsuddin does not appear on page 1 of the Bon Jaminan. If it was the Official Assignee’s intention to have 2 guarantors, then the space for the sum required on page 2 should not have been left blank.
c) It is also to be noted that there are 3 signatures on page 2 of the Bon Jaminan. As the signatures have not been identified it is unknown who the signatories are. Without the proper execution of the Bon Jaminan, the Bon will not be enforceable.
d) Importantly, the Bon Jaminan was only signed and dated 2/3/09 that is, almost 3 months after the sanction had been given on 23/12/08. The delay in the provision of the Bon Jaminan is in clear breach of paragraph 4 of the conditional letter of approval dated 4/12/08 which clearly stipulated that the Bankrupt had to comply with the conditions within 21 days from the date of the letter, failing which the sanction would not be given.
(iii) The Guarantor was to deposit RM3,000 as security for costs
There is no evidence on record to show whether the said deposit had in fact been paid by the Guarantor to the Official Assignee and if so, when it was paid as stipulated by the Official Assignee, it is clear that the Official Assignee should not have granted the sanction to the Bankrupt as the interest of the Applicants have not been safeguarded.
The various complaints on the shortcomings have not been refuted by the Official Assignee on affidavit and hence following the principle expounded by Gopal Sri Ram JCA (as he then was) in the case of Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 CLJ 609, the Official Assignee is deemed to have admitted the allegations made by the Applicants.
In the final analysis, the Official Assignee’s decision to grant the sanction must be on an informed basis and not made purely as an administrative decision. The Official Assignee has failed to show to the Applicants that the estate of the Bankrupt will have the funds to meet the costs of the D3 Suit which has been pending for the last 21 years. There is no basis for the Official Assignee to say there was no risk that the estate of the Bankrupt could not pay the costs.
In view of the Bankrupt’s failure to comply fully with the conditions
Accordingly, the Official Assignee’s appeal was dismissed with costs. Dated 27th day of October 2010.
Y.A. TUAN MAH WENG KWAI
Judicial Commissioner High Court Malaya Kuala Lumpur
Wednesday, June 1, 2011
Gender Equality
How the Media Influences the Degradation of Women's Sports - KINE 323 Final Project
http://www.youtube.com/watch?v=T3St-u5FYCk&feature=related
trinebeene247
http://www.youtube.com/watch?v=T3St-u5FYCk&feature=related
trinebeene247
ROBIN SHARMA's 17 point for a STRESS FREE DAY
1. Turn off all technology for 60 minutes a day and focus on doing your most important work.
2. Work in 90 minute cycles (tons of science is now confirming that this is the optimal work to rest ratio).
3. Start your day with at least 30 minutes of exercise.
4. Don't check your email first thing in the morning.
5. Turn all your electronic notifications off.
6. Take one day a week as a complete recovery day, to refuel and regenerate (that means no email, no phone calls and zero work). You need full recovery one day a week otherwise you'll start depleting your capabilities.
7. The data says workers are interrupted every 11 minutes. Distractions destroy productivity. Learn to protect your time and say no to interruptions.
8. Schedule every day of your week every Sunday morning. A plan relieves you of the torment of choice (said novelist Saul Bellow). It restores focus and provides energy.
9. Work in blocks of time. Creative geniuses all had 2 things in common: when they worked they were fully engaged and when they worked, they worked with this deep concentration for long periods of time. Rare in this world of entrepreneurs who can't sit still.
10. Drink a liter of water early every morning. We wake up dehydrated. The most precious asset of an entrepreneur isn't time - it's energy. Water restores it.
11. Don't answer your phone every time it rings.
12. Invest in your professional development so you bring more value to the hours you work.
13. Avoid gossip and time vampires.
14. Touch paper just once.
15. Keep a "Stop Doing List".
16. Get up at 5 am.
17. Have meetings standing up.
Stay Productive and Make Your Work
2. Work in 90 minute cycles (tons of science is now confirming that this is the optimal work to rest ratio).
3. Start your day with at least 30 minutes of exercise.
4. Don't check your email first thing in the morning.
5. Turn all your electronic notifications off.
6. Take one day a week as a complete recovery day, to refuel and regenerate (that means no email, no phone calls and zero work). You need full recovery one day a week otherwise you'll start depleting your capabilities.
7. The data says workers are interrupted every 11 minutes. Distractions destroy productivity. Learn to protect your time and say no to interruptions.
8. Schedule every day of your week every Sunday morning. A plan relieves you of the torment of choice (said novelist Saul Bellow). It restores focus and provides energy.
9. Work in blocks of time. Creative geniuses all had 2 things in common: when they worked they were fully engaged and when they worked, they worked with this deep concentration for long periods of time. Rare in this world of entrepreneurs who can't sit still.
10. Drink a liter of water early every morning. We wake up dehydrated. The most precious asset of an entrepreneur isn't time - it's energy. Water restores it.
11. Don't answer your phone every time it rings.
12. Invest in your professional development so you bring more value to the hours you work.
13. Avoid gossip and time vampires.
14. Touch paper just once.
15. Keep a "Stop Doing List".
16. Get up at 5 am.
17. Have meetings standing up.
Stay Productive and Make Your Work
Sunday, April 24, 2011
DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN)
MAHKAMAH RAYUAN SIVIL NO : W- 02-65-2003
TETUAN KUMAR JASPAL QUAH & AISHAH (Menuntut sebagai sebuah firma)
1. FAR LEGION SDN BHD (No. Syarikat : 342255-P)
2. KEWMOOR INTERNATIONAL LIMITED
CORAM: Mohd Ghazali bin Mohd Yusoff, JCA Suriyadi bin Halim Omar, JCA
Hasan bin Lah, JCA
JUDGMENT OF THE COURT
This was an appeal heard by us against the High Court’s decision rejecting the application of the appellant, a firm of advocates and solicitors, to disqualify Messrs Chellam Wong, also a firm of advocates and solicitors, from acting in the matter in which it had a pecuniary interest. The relevant provisions adverted to by the appellant in its submission were rules 5, 27 (a) and 28 (a) of the Legal Profession (Practice and Etiquette) Rules 1978.
To understand the issue at hand, it is necessary to appreciate the facts of the case, which led to the disqualifying application. The appellant had initially represented Far Legion Sdn Bhd and Kewmoor International Limited, the current respondents, in civil suit D5-22-395-1996 against two companies called DB Trustee (M) Bhd and Mercury Industries Bhd. The respondents had agreed to an interim professional fee of RM 300,000.00 to the appellant for that legal representation. A final note dated 4.4.1997 to pay a professional fee of RM 320, 868.60 was issued later to the appellant.
Due to bad blood subsequently flowing between the appellant and the respondents, a new set of lawyers represented the latter i.e. Messrs Chellam Wong, for case D5-22-395-1996. The appellant was unhappy with its substitution, and had made its feelings known but eventually shifted its views. Rule 54 of the Legal Profession (Practice and Etiquette) Rules 1978 permits substitution as it states that an advocate and solicitor, knowing that the other party is represented by another advocate and solicitor, shall not act for him unless there is prior consent from the other advocate and solicitor. Ravi Nekoo in Professional Practice (MLJ) at page 152 had also succinctly said:
“Where consent is not obtained, the new solicitor may still take conduct of the matter upon being satisfied that the professional remuneration of the present advocate and solicitor has been paid.
Alternatively, the new solicitor may undertake to pay the professional remuneration of the present advocate and solicitor (emphasis supplied)”
Such giving of undertaking is quite normal in a solicitor’s world, as situations will arise where solicitors will be called upon to give the solicitors’ undertakings, normally to be accepted by their colleagues. The regime of trust that permeates this profession is the cornerstone of the acceptability of such undertaking. Its enforceability on the other hand must depend on certain prerequisites, e.g. that undertaking must be given by the solicitor in the capacity as a solicitor (United Mining and Finance Corporation c Becher (1910) 2 KB 296; T. Damodaran v Choe Kuan Him (1979) 2 MLJ 267; Oriental Bank Bhd v Abdul Razak Rouse (1986)1 MLJ 509). It must be clear, unambiguous and unequivocal (Geoffrey Silver & Drake v Thomas Anthony Baines (1971) 1 QB 396). Once that undertaking is established as good, even if the client were to die, or the solicitor ordered not to comply with it, or even if the solicitor’s firm were replaced, unless waived it is enforceable. Halsbury’s Laws of England (4th Edition) Vol 44 at paragraph 255 had authored:
“Enforcement of undertakings. Where a solicitor who is acting professionally for a client gives his personal undertaking in that character to the client or to a third person, or gives an undertaking to the court in the course of proceedings, that undertaking may be enforced summarily upon application to the court. Before this remedy can be pursued it must be shown that the undertaking is given by the solicitor personally, and not merely as agent on behalf of his client. The undertaking must also be given by the solicitor, not as an individual, but in his professional capacity as a solicitor....
The undertaking given by the solicitor will be enforced against the solicitor even though, after it is given, the client dies or instructs the solicitor not to perform it, or changes his solicitor. If performance of the undertaking has been waived the undertaking will not be enforced afterwards.”
The appellant here had eventually agreed to the substitution conditional on this new substituting firm giving an undertaking to pay the appellant’s cost owed by the respondent later.
The appellant later had demanded payment from the respondents regarding the unpaid professional fees. As the respondents had refused to pay despite repeated demands a suit was filed against them. In their defence the respondents had responded by denying the alleged promised 4.4.1997 note, and even if it existed, was excessive. A judgment in default was obtained against the second respondent for want of appearance on 20.8.2001. A successful summary judgment was also subsequently obtained against the 1st respondent for the sum of RM 300,000.00 as professional fees, RM 15,000.00 as service tax, RM 5, 868.60 as disbursements, 8% interest on the sum of RM 320,868.00 and costs of RM350.00 on 17.1.2002. In a nutshell the summary judgment obtained for professional fees was RM 320,868.60 basically founded on that 4.4. 1997 note.
After the appellant had successfully obtained summary judgment for that owed professional fee it demanded Messrs Chellam Wong to honour that earlier undertaking. Unfortunately the latter denied giving that undertaking and a suit was filed by the appellant against them at the High Court, Kuala Lumpur (Suit No D4-22-937-2002) for its recovery. This denial stance was taken up despite a letter dated 1.11.2000 having been sent to the appellant that read, “We hereby give our undertaking to pay your legal fees upon taxation of your bill”. After the latter suit was heard, and also agreed by both parties, the High Court had held that an undertaking indeed was given to the appellant by Messrs Chellam Wong. An appeal was promptly filed by the latter as regards this finding. Due to interceding factors in the form of the summary judgment being set aside Messrs Chellam Wong’s had withdrawn its own initiated appeal. But the appeal as against the setting aside order of the summary judgment still is pending at the Court of Appeal.
On 20.11.2002 the appellant had filed a summons in chambers to prevent Messrs Chellam Wong, any partner or any lawyer of that firm, from representing the respondents in the current suit, for being in contravention of rule 27 (a) of the Legal Profession (Practice and Etiquette) Rules 1978 and or under Order 92 rule 4 Rules of the High Court 1980 (hereinafter referred to as ‘the disqualifying application’). Having perused the submission of the appellant’s submission, the factual grounds of the disqualifying application, though not too clear, could be condensed in this way:
Even though the disqualifying application speaks of preventing Messrs Chellam Wong from representing the respondents in civil suit D3-22-1028-2001, recent events have narrowed the scope, justified by identifiable set of facts. There is an appeal pending at the Court of Appeal pertaining to the setting aside of the summary judgment by the High Court which will have some financial implication. If the appeal is dismissed, and the court order maintained, Messrs Chellam Wong pays nothing to the appellant, whilst with the restoration of the summary judgment the latter will be liable to satisfy the professional fee judgment, ordered against the respondents. Surely, according to the appellant, the integrity of Messrs Chellam Wong would be compromised. This is the ‘conflict of interest’ picture painted by the appellants, which will beset Messrs Chellam Wong, by virtue of that direct pecuniary interest in the outcome of the appeal, and at the same time physically representing the respondents during the hearing.
From the above set of facts can the court safely conclude that rule 27 (a) made by the Bar Council, in exercise of the powers conferred by section 77 of the Legal Profession Act 1976, had been violated by Messrs Chellam Wong? This section reads:
“(1) Without prejudice to any other power to make rules provided under this Act, the Bar Council may, with the approval of the Attorney General make rules for regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors.
(2) Any rules made pursuant to this section shall not come into operation until they have been published in the Gazette. (3) Any advocate and solicitor who fail to comply with any rules made under this section may be liable to disciplinary proceedings.
(4) The Attorney General may, by order published in the Gazette, make such modifications as he deems necessary to any rules made and published under this section before the coming into operation of this subsection.”
This provision of section 77 empowers the promulgation of rules pertaining to the professional practice, etiquette, conduct and discipline of advocates and solicitors. The coverage recognizes the necessity of such rules and to punish accordingly any recalcitrant advocate and solicitor who fails to comply with them. Needless to say the ethical standard legislated by the Legal Profession Act confirms the privileged position of the legal profession. The need to lay down the standard of the moral principles and guidelines is to ensure that that privileged position is not abused (Janab’s Key to Criminal Procedure Evidence Advocacy and Professional Ethics page 1146).
The immediate relevant rules under scrutiny now are: Rule 5:
“No advocate and solicitor to accept brief if difficult to maintain professional independence
(a)No advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for
him to maintain his professional independence or is incompatible with the best interest of the administration of justice.
(b) ....
Rule 27 (a)
Advocate and solicitor not to appear where pecuniarily interested
(a)An advocate and solicitor shall not appear in any matter in which he is directly pecuniarily interested ....
Rule 28 (a)
Advocate and solicitor not to appear in a case where he is a witness
12
13
(a) An advocate and solicitor shall not appear in Court or in Chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardizing his client’s interests.”
These 3 rules have been reproduced as they were the relevant provisions upon which the disqualification application was founded on as per the appellant’s written submission. I was hard pressed to appreciate the importation of rules 5 and 28 in that submission as that disqualifying application was confined only to rule 27 (a) Legal Profession (Practice and Etiquette) Rules 1978 and/or Order 92 rule 4 of the Rules of the High Court 1980. I now reproduce the relevant portions of the appellant’s submission and summons-in chambers to reflect the above statement:
Relevant portion of the written submission:
“This is an appeal against the High Court Judge’s decision not to disqualify Messrs Chellam Wong from acting in the matter. Your Appellant/Plaintiff states that Messrs Chellam Wong has a pecuniary interest in the outcome of the matter and hence should have been disqualified pursuant to Rule 5(a), 27(a) and 28 (a) of the Legal Profession (Practice and Etiquette) Rules 1978. This ‘pecuniary interest’ still continues as the matter is still pending before this Honorable Court.”
Relevant portion of the disqualifying application:
‘Firma guaman Tetuan Chellam Wong dan/atau rakan-rakan kongsi nya dan/atau peguam-peguam dalam firma tersebut, dihalang dari bertindak bagi pihak Defendan Pertama dan Defendan Kedua dalam tindakan ini kerana melanggari Kaedah 27 ‘Legal Profession (Practice and Etiquette) Rules 1978’ dan/atau di bawah Aturan 92 kaedah 4 Kaedah- kaedah Mahkamah Tinggi 1980;
I could easily have disposed off the issues of rules 5 and 28, not just on the premise that they were not pleaded in the application but it was never seriously ventilated. I was unable to find anywhere in the appellant’s written submission that bespoke of Messrs Chellam Wong having been denied of its professional independence, or had detracted from acting in the best interest of justice, or would be called as a witness except for mere mention of those unpleaded provisions. The emphasis was on the contravention of rule 27 (a) of the Legal Profession (Practice and Etiquette) Rules 1978 by Messrs Chellam Wong.
Returning to the factual source of this appeal i.e. the undertaking made by Messrs Chellam Wong, the pecuniary interest factor, aside from the initial rejection of its existence, no objection had been raised by any party regarding its legality. As it was eventually accepted by the High Court that an undertaking had been given by Messrs Chellam Wong there is thus no necessity for us to go behind that finding of fact. With the undertaking accepted by the court as having been given, the next step is to decide whether that form of pecuniary interest held by Messrs Chellam Wong justified an ‘order in terms’ to the disqualifying application.
Due to the scope and format of rule 27 (a), and unless a proper definition is given to its meaning, no solicitor will be able to represent anybody, as most solicitor-client relationship has a financial understanding behind it i.e. professional fees. Professional fees to be charged will depend on many factors inter alia, time, labour and skilled required, novelty and difficulty of questions involved, the amount of controversy etc (rule 11). Under section 116 of the Legal Profession Act 1976 (166), an advocate and solicitor may even make an agreement in writing with his client, in respect of the amount and manner of the payment in respect of contentious business done. In a nutshell, even without the consideration of the undertaking to the appellant, and regardless of the outcome of the main case vis-Ã -vis the respondents and its eventual spillover effect between Messrs Chellam Wong and the appellant, there already was a pecuniary interest in existence between the former and the respondents when the appellant was substituted.
With rule 27 (a) now giving “an appearance of inconsistency” with, say, rule 11 or section 116 of Act 166, a purposive interpretation must be given in the circumstances of the case that does not detract from the spirit of the Legal Profession (Practice and Etiquette) Rules 1978 and intention of Parliament. It is understood that the Legal Profession (Practice and Etiquette) Rules 1978 was formulated to regulate the conduct of the legal profession, and to ensure that good legal ethics are abound in this profession, and not unwittingly to kill off this honourable profession. Unless a purposive interpretation is given bizarre and absurd results could ensue. Maxwell in Interpretation of Statutes had occasion to quote the following passage from Nokes v. Doncaster Amalgamated Collieries (1940) AC 1014/1022:
“The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result (emphasis mine).”
When discussing the golden rule of interpretation in Interpretation of Statute (Bindra’s) the writer also had occasion to state at page 93:
“1. Golden Rule: Warburton’s case; Becke v Smith – Burton J in Warburton v Loveland, observed: I apprehend it is a rule in the construction of statutes, that, in the first instance, the grammatical sense of the word is to be adhered to. If that is contrary to, or inconsistent with any expressed intention, or declared purpose of the statute, or if it would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended, or abridged so far as to avoid such inconvenience, but no further.” ....
Parke, B., in Becke v. Smith formulated the following well-known rule for the interpretation of statutes:
Another version of Golden Rule.—“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further (emphasis mine).”
As stated much earlier if rule 27 (a) were given a literal interpretation an absurd result could arise. Fortified by the above authorities I therefore remedy the situation “by reading words in” and adopt a construction that will ‘promote the general legislative purpose’ (Northman v Barnett Council (1978) 1 WLR 221, per Lord Denning). In this case even though Messrs Chellam Wong has a pecuniary interest when representing the respondents, I am not convinced that Messrs Chellam Wong had contravened that provision, let alone lost its professionalism and independence. In fact there is absolutely no evidence to point towards any of those directions.
As rule 5 had been mentioned in the written submission, and for the sake of completeness, a possible scenario that needs to be avoided by its promulgation is as follows: A solicitor prepares the pleadings for one party and then prepares the defence of the other party, or a case of a firm of lawyers representing the vendor and purchaser simultaneously (unless with prior written consent). This scenario certainly does not exist in the current appeal.
The pecuniary interest here was more in line with the expectation of professional fees (and at worse having to honour the undertaking which is too premature to be discussed), rather then the pecuniary interest envisaged by rule 27 (a), say, in a scenario where a beneficiary son/daughter-cum- solicitor represents the estate of the deceased in a legal tussle. In that hypothetical scenario that advocate and solicitor has a direct pecuniary interest, as that interest which has monetary value or money’s worth is tied down directly to the disputed estate and not confined to the fixed professional fee. In fact that fee, if any, plays a rather incidental role vis-Ã -vis the expected bounty in the event of a successful litigation. A case that comes to mind that could throw some light on this ongoing issue is the case of Viijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram ( (2000) 4 CLJ 870 ). The facts of this case are as follows:
In the originating summons, the appellant (plaintiff) had prayed that the respondent be prohibited from acting as the advocate and solicitor for her brother,sister and niece in various pending civil actions pursuant to rules 3(a) (b)(ii) and 27 Legal Profession (Practice and Etiquette) Rules 1978 (“LPR 1978”). Counsel for the appellant submitted inter alia that the respondent ought to be barred from so acting by reason of embarrassment as the respondent was personally related to the parties in those civil actions. Furthermore, it was contended that the respondent had a pecuniary interest in certain disputed subject matters since she was named as a beneficiary. The trial judge allowed the application. The matter went to the Court of Appeal where the court allowed the respondent’s appeal. The appellant then appealed to the Federal Court. The issue raised for consideration was whether the Court of Appeal was correct in law in their interpretation of the proper construction of rules 3 and 27(a) of the LPR 1978.
In that case the Federal Court had held that the respondent by reason of rule 27 (a), was prohibited from acting for her client, in view of the personal relationship and of her pecuniary interest over the matter there. Needless to say the facts of the above case are distinguishable to the current appeal as neither is there any personal relationship nor direct pecuniary interest between Messrs Chellam Wong and the respondents.
As mentioned above, a solicitor may at one point of time be called upon to give the solicitor’s undertaking. He might be called upon to make a distinct promise to do a particular act, or sometimes in the course of its duties, e.g. in a conveyancing transaction, find himself holding on to an original title, to be released only on the terms of the undertaking. Inevitably too these undertakings have fee factors attached to them. In other words that solicitor would have a pecuniary interest over that undertaking. Following the argument of the appellant in the current case, equally applicable in every case where an undertaking had been given, in which an advocate and solicitor would invariably be construed as being pecuniarily interested, such an approach would bring about absurd results. In fact adhering to the same reasoning, as the appellant had appeared in its firm’s name, and is directly pecuniarily interested in the matter it should not appear before us as an advocate and solicitor representing the very firm in the first place. To agree with its view would result in great reluctance by solicitors in future to give any undertaking, in order to avoid being disqualified from representing their clients later, let alone witness an upsurge of applications by solicitors to be discharged in court.
We must assume that the appellant had abandoned Order 92 rule 4 Rules of the High Court 1980, as part of its argument, as no mention of it was made in the course of the appeal. On all the above grounds we therefore would dismiss this appeal with costs and order that the deposit be remitted to the respondent towards the account of taxed costs.
Dated this day 26th of March 2007.
(Datuk Suriyadi bin Halim Omar) Judge Court of Appeal
MAHKAMAH RAYUAN SIVIL NO : W- 02-65-2003
TETUAN KUMAR JASPAL QUAH & AISHAH (Menuntut sebagai sebuah firma)
1. FAR LEGION SDN BHD (No. Syarikat : 342255-P)
2. KEWMOOR INTERNATIONAL LIMITED
CORAM: Mohd Ghazali bin Mohd Yusoff, JCA Suriyadi bin Halim Omar, JCA
Hasan bin Lah, JCA
JUDGMENT OF THE COURT
This was an appeal heard by us against the High Court’s decision rejecting the application of the appellant, a firm of advocates and solicitors, to disqualify Messrs Chellam Wong, also a firm of advocates and solicitors, from acting in the matter in which it had a pecuniary interest. The relevant provisions adverted to by the appellant in its submission were rules 5, 27 (a) and 28 (a) of the Legal Profession (Practice and Etiquette) Rules 1978.
To understand the issue at hand, it is necessary to appreciate the facts of the case, which led to the disqualifying application. The appellant had initially represented Far Legion Sdn Bhd and Kewmoor International Limited, the current respondents, in civil suit D5-22-395-1996 against two companies called DB Trustee (M) Bhd and Mercury Industries Bhd. The respondents had agreed to an interim professional fee of RM 300,000.00 to the appellant for that legal representation. A final note dated 4.4.1997 to pay a professional fee of RM 320, 868.60 was issued later to the appellant.
Due to bad blood subsequently flowing between the appellant and the respondents, a new set of lawyers represented the latter i.e. Messrs Chellam Wong, for case D5-22-395-1996. The appellant was unhappy with its substitution, and had made its feelings known but eventually shifted its views. Rule 54 of the Legal Profession (Practice and Etiquette) Rules 1978 permits substitution as it states that an advocate and solicitor, knowing that the other party is represented by another advocate and solicitor, shall not act for him unless there is prior consent from the other advocate and solicitor. Ravi Nekoo in Professional Practice (MLJ) at page 152 had also succinctly said:
“Where consent is not obtained, the new solicitor may still take conduct of the matter upon being satisfied that the professional remuneration of the present advocate and solicitor has been paid.
Alternatively, the new solicitor may undertake to pay the professional remuneration of the present advocate and solicitor (emphasis supplied)”
Such giving of undertaking is quite normal in a solicitor’s world, as situations will arise where solicitors will be called upon to give the solicitors’ undertakings, normally to be accepted by their colleagues. The regime of trust that permeates this profession is the cornerstone of the acceptability of such undertaking. Its enforceability on the other hand must depend on certain prerequisites, e.g. that undertaking must be given by the solicitor in the capacity as a solicitor (United Mining and Finance Corporation c Becher (1910) 2 KB 296; T. Damodaran v Choe Kuan Him (1979) 2 MLJ 267; Oriental Bank Bhd v Abdul Razak Rouse (1986)1 MLJ 509). It must be clear, unambiguous and unequivocal (Geoffrey Silver & Drake v Thomas Anthony Baines (1971) 1 QB 396). Once that undertaking is established as good, even if the client were to die, or the solicitor ordered not to comply with it, or even if the solicitor’s firm were replaced, unless waived it is enforceable. Halsbury’s Laws of England (4th Edition) Vol 44 at paragraph 255 had authored:
“Enforcement of undertakings. Where a solicitor who is acting professionally for a client gives his personal undertaking in that character to the client or to a third person, or gives an undertaking to the court in the course of proceedings, that undertaking may be enforced summarily upon application to the court. Before this remedy can be pursued it must be shown that the undertaking is given by the solicitor personally, and not merely as agent on behalf of his client. The undertaking must also be given by the solicitor, not as an individual, but in his professional capacity as a solicitor....
The undertaking given by the solicitor will be enforced against the solicitor even though, after it is given, the client dies or instructs the solicitor not to perform it, or changes his solicitor. If performance of the undertaking has been waived the undertaking will not be enforced afterwards.”
The appellant here had eventually agreed to the substitution conditional on this new substituting firm giving an undertaking to pay the appellant’s cost owed by the respondent later.
The appellant later had demanded payment from the respondents regarding the unpaid professional fees. As the respondents had refused to pay despite repeated demands a suit was filed against them. In their defence the respondents had responded by denying the alleged promised 4.4.1997 note, and even if it existed, was excessive. A judgment in default was obtained against the second respondent for want of appearance on 20.8.2001. A successful summary judgment was also subsequently obtained against the 1st respondent for the sum of RM 300,000.00 as professional fees, RM 15,000.00 as service tax, RM 5, 868.60 as disbursements, 8% interest on the sum of RM 320,868.00 and costs of RM350.00 on 17.1.2002. In a nutshell the summary judgment obtained for professional fees was RM 320,868.60 basically founded on that 4.4. 1997 note.
After the appellant had successfully obtained summary judgment for that owed professional fee it demanded Messrs Chellam Wong to honour that earlier undertaking. Unfortunately the latter denied giving that undertaking and a suit was filed by the appellant against them at the High Court, Kuala Lumpur (Suit No D4-22-937-2002) for its recovery. This denial stance was taken up despite a letter dated 1.11.2000 having been sent to the appellant that read, “We hereby give our undertaking to pay your legal fees upon taxation of your bill”. After the latter suit was heard, and also agreed by both parties, the High Court had held that an undertaking indeed was given to the appellant by Messrs Chellam Wong. An appeal was promptly filed by the latter as regards this finding. Due to interceding factors in the form of the summary judgment being set aside Messrs Chellam Wong’s had withdrawn its own initiated appeal. But the appeal as against the setting aside order of the summary judgment still is pending at the Court of Appeal.
On 20.11.2002 the appellant had filed a summons in chambers to prevent Messrs Chellam Wong, any partner or any lawyer of that firm, from representing the respondents in the current suit, for being in contravention of rule 27 (a) of the Legal Profession (Practice and Etiquette) Rules 1978 and or under Order 92 rule 4 Rules of the High Court 1980 (hereinafter referred to as ‘the disqualifying application’). Having perused the submission of the appellant’s submission, the factual grounds of the disqualifying application, though not too clear, could be condensed in this way:
Even though the disqualifying application speaks of preventing Messrs Chellam Wong from representing the respondents in civil suit D3-22-1028-2001, recent events have narrowed the scope, justified by identifiable set of facts. There is an appeal pending at the Court of Appeal pertaining to the setting aside of the summary judgment by the High Court which will have some financial implication. If the appeal is dismissed, and the court order maintained, Messrs Chellam Wong pays nothing to the appellant, whilst with the restoration of the summary judgment the latter will be liable to satisfy the professional fee judgment, ordered against the respondents. Surely, according to the appellant, the integrity of Messrs Chellam Wong would be compromised. This is the ‘conflict of interest’ picture painted by the appellants, which will beset Messrs Chellam Wong, by virtue of that direct pecuniary interest in the outcome of the appeal, and at the same time physically representing the respondents during the hearing.
From the above set of facts can the court safely conclude that rule 27 (a) made by the Bar Council, in exercise of the powers conferred by section 77 of the Legal Profession Act 1976, had been violated by Messrs Chellam Wong? This section reads:
“(1) Without prejudice to any other power to make rules provided under this Act, the Bar Council may, with the approval of the Attorney General make rules for regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors.
(2) Any rules made pursuant to this section shall not come into operation until they have been published in the Gazette. (3) Any advocate and solicitor who fail to comply with any rules made under this section may be liable to disciplinary proceedings.
(4) The Attorney General may, by order published in the Gazette, make such modifications as he deems necessary to any rules made and published under this section before the coming into operation of this subsection.”
This provision of section 77 empowers the promulgation of rules pertaining to the professional practice, etiquette, conduct and discipline of advocates and solicitors. The coverage recognizes the necessity of such rules and to punish accordingly any recalcitrant advocate and solicitor who fails to comply with them. Needless to say the ethical standard legislated by the Legal Profession Act confirms the privileged position of the legal profession. The need to lay down the standard of the moral principles and guidelines is to ensure that that privileged position is not abused (Janab’s Key to Criminal Procedure Evidence Advocacy and Professional Ethics page 1146).
The immediate relevant rules under scrutiny now are: Rule 5:
“No advocate and solicitor to accept brief if difficult to maintain professional independence
(a)No advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for
him to maintain his professional independence or is incompatible with the best interest of the administration of justice.
(b) ....
Rule 27 (a)
Advocate and solicitor not to appear where pecuniarily interested
(a)An advocate and solicitor shall not appear in any matter in which he is directly pecuniarily interested ....
Rule 28 (a)
Advocate and solicitor not to appear in a case where he is a witness
12
13
(a) An advocate and solicitor shall not appear in Court or in Chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardizing his client’s interests.”
These 3 rules have been reproduced as they were the relevant provisions upon which the disqualification application was founded on as per the appellant’s written submission. I was hard pressed to appreciate the importation of rules 5 and 28 in that submission as that disqualifying application was confined only to rule 27 (a) Legal Profession (Practice and Etiquette) Rules 1978 and/or Order 92 rule 4 of the Rules of the High Court 1980. I now reproduce the relevant portions of the appellant’s submission and summons-in chambers to reflect the above statement:
Relevant portion of the written submission:
“This is an appeal against the High Court Judge’s decision not to disqualify Messrs Chellam Wong from acting in the matter. Your Appellant/Plaintiff states that Messrs Chellam Wong has a pecuniary interest in the outcome of the matter and hence should have been disqualified pursuant to Rule 5(a), 27(a) and 28 (a) of the Legal Profession (Practice and Etiquette) Rules 1978. This ‘pecuniary interest’ still continues as the matter is still pending before this Honorable Court.”
Relevant portion of the disqualifying application:
‘Firma guaman Tetuan Chellam Wong dan/atau rakan-rakan kongsi nya dan/atau peguam-peguam dalam firma tersebut, dihalang dari bertindak bagi pihak Defendan Pertama dan Defendan Kedua dalam tindakan ini kerana melanggari Kaedah 27 ‘Legal Profession (Practice and Etiquette) Rules 1978’ dan/atau di bawah Aturan 92 kaedah 4 Kaedah- kaedah Mahkamah Tinggi 1980;
I could easily have disposed off the issues of rules 5 and 28, not just on the premise that they were not pleaded in the application but it was never seriously ventilated. I was unable to find anywhere in the appellant’s written submission that bespoke of Messrs Chellam Wong having been denied of its professional independence, or had detracted from acting in the best interest of justice, or would be called as a witness except for mere mention of those unpleaded provisions. The emphasis was on the contravention of rule 27 (a) of the Legal Profession (Practice and Etiquette) Rules 1978 by Messrs Chellam Wong.
Returning to the factual source of this appeal i.e. the undertaking made by Messrs Chellam Wong, the pecuniary interest factor, aside from the initial rejection of its existence, no objection had been raised by any party regarding its legality. As it was eventually accepted by the High Court that an undertaking had been given by Messrs Chellam Wong there is thus no necessity for us to go behind that finding of fact. With the undertaking accepted by the court as having been given, the next step is to decide whether that form of pecuniary interest held by Messrs Chellam Wong justified an ‘order in terms’ to the disqualifying application.
Due to the scope and format of rule 27 (a), and unless a proper definition is given to its meaning, no solicitor will be able to represent anybody, as most solicitor-client relationship has a financial understanding behind it i.e. professional fees. Professional fees to be charged will depend on many factors inter alia, time, labour and skilled required, novelty and difficulty of questions involved, the amount of controversy etc (rule 11). Under section 116 of the Legal Profession Act 1976 (166), an advocate and solicitor may even make an agreement in writing with his client, in respect of the amount and manner of the payment in respect of contentious business done. In a nutshell, even without the consideration of the undertaking to the appellant, and regardless of the outcome of the main case vis-Ã -vis the respondents and its eventual spillover effect between Messrs Chellam Wong and the appellant, there already was a pecuniary interest in existence between the former and the respondents when the appellant was substituted.
With rule 27 (a) now giving “an appearance of inconsistency” with, say, rule 11 or section 116 of Act 166, a purposive interpretation must be given in the circumstances of the case that does not detract from the spirit of the Legal Profession (Practice and Etiquette) Rules 1978 and intention of Parliament. It is understood that the Legal Profession (Practice and Etiquette) Rules 1978 was formulated to regulate the conduct of the legal profession, and to ensure that good legal ethics are abound in this profession, and not unwittingly to kill off this honourable profession. Unless a purposive interpretation is given bizarre and absurd results could ensue. Maxwell in Interpretation of Statutes had occasion to quote the following passage from Nokes v. Doncaster Amalgamated Collieries (1940) AC 1014/1022:
“The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result (emphasis mine).”
When discussing the golden rule of interpretation in Interpretation of Statute (Bindra’s) the writer also had occasion to state at page 93:
“1. Golden Rule: Warburton’s case; Becke v Smith – Burton J in Warburton v Loveland, observed: I apprehend it is a rule in the construction of statutes, that, in the first instance, the grammatical sense of the word is to be adhered to. If that is contrary to, or inconsistent with any expressed intention, or declared purpose of the statute, or if it would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended, or abridged so far as to avoid such inconvenience, but no further.” ....
Parke, B., in Becke v. Smith formulated the following well-known rule for the interpretation of statutes:
Another version of Golden Rule.—“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further (emphasis mine).”
As stated much earlier if rule 27 (a) were given a literal interpretation an absurd result could arise. Fortified by the above authorities I therefore remedy the situation “by reading words in” and adopt a construction that will ‘promote the general legislative purpose’ (Northman v Barnett Council (1978) 1 WLR 221, per Lord Denning). In this case even though Messrs Chellam Wong has a pecuniary interest when representing the respondents, I am not convinced that Messrs Chellam Wong had contravened that provision, let alone lost its professionalism and independence. In fact there is absolutely no evidence to point towards any of those directions.
As rule 5 had been mentioned in the written submission, and for the sake of completeness, a possible scenario that needs to be avoided by its promulgation is as follows: A solicitor prepares the pleadings for one party and then prepares the defence of the other party, or a case of a firm of lawyers representing the vendor and purchaser simultaneously (unless with prior written consent). This scenario certainly does not exist in the current appeal.
The pecuniary interest here was more in line with the expectation of professional fees (and at worse having to honour the undertaking which is too premature to be discussed), rather then the pecuniary interest envisaged by rule 27 (a), say, in a scenario where a beneficiary son/daughter-cum- solicitor represents the estate of the deceased in a legal tussle. In that hypothetical scenario that advocate and solicitor has a direct pecuniary interest, as that interest which has monetary value or money’s worth is tied down directly to the disputed estate and not confined to the fixed professional fee. In fact that fee, if any, plays a rather incidental role vis-Ã -vis the expected bounty in the event of a successful litigation. A case that comes to mind that could throw some light on this ongoing issue is the case of Viijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram ( (2000) 4 CLJ 870 ). The facts of this case are as follows:
In the originating summons, the appellant (plaintiff) had prayed that the respondent be prohibited from acting as the advocate and solicitor for her brother,sister and niece in various pending civil actions pursuant to rules 3(a) (b)(ii) and 27 Legal Profession (Practice and Etiquette) Rules 1978 (“LPR 1978”). Counsel for the appellant submitted inter alia that the respondent ought to be barred from so acting by reason of embarrassment as the respondent was personally related to the parties in those civil actions. Furthermore, it was contended that the respondent had a pecuniary interest in certain disputed subject matters since she was named as a beneficiary. The trial judge allowed the application. The matter went to the Court of Appeal where the court allowed the respondent’s appeal. The appellant then appealed to the Federal Court. The issue raised for consideration was whether the Court of Appeal was correct in law in their interpretation of the proper construction of rules 3 and 27(a) of the LPR 1978.
In that case the Federal Court had held that the respondent by reason of rule 27 (a), was prohibited from acting for her client, in view of the personal relationship and of her pecuniary interest over the matter there. Needless to say the facts of the above case are distinguishable to the current appeal as neither is there any personal relationship nor direct pecuniary interest between Messrs Chellam Wong and the respondents.
As mentioned above, a solicitor may at one point of time be called upon to give the solicitor’s undertaking. He might be called upon to make a distinct promise to do a particular act, or sometimes in the course of its duties, e.g. in a conveyancing transaction, find himself holding on to an original title, to be released only on the terms of the undertaking. Inevitably too these undertakings have fee factors attached to them. In other words that solicitor would have a pecuniary interest over that undertaking. Following the argument of the appellant in the current case, equally applicable in every case where an undertaking had been given, in which an advocate and solicitor would invariably be construed as being pecuniarily interested, such an approach would bring about absurd results. In fact adhering to the same reasoning, as the appellant had appeared in its firm’s name, and is directly pecuniarily interested in the matter it should not appear before us as an advocate and solicitor representing the very firm in the first place. To agree with its view would result in great reluctance by solicitors in future to give any undertaking, in order to avoid being disqualified from representing their clients later, let alone witness an upsurge of applications by solicitors to be discharged in court.
We must assume that the appellant had abandoned Order 92 rule 4 Rules of the High Court 1980, as part of its argument, as no mention of it was made in the course of the appeal. On all the above grounds we therefore would dismiss this appeal with costs and order that the deposit be remitted to the respondent towards the account of taxed costs.
Dated this day 26th of March 2007.
(Datuk Suriyadi bin Halim Omar) Judge Court of Appeal
Sunday, April 10, 2011
Section 7D. Power to call for examination.
ACT 125
COMPANIES ACT 1965 (REVISED - 1973)
PART II - ADMINISTRATION OF ACT
Section 7D. Power to call for examination.
(1) For the purpose of any investigation under section 7C, the Registrar may by notice in writing require any person supposed to be acquainted with the facts and circumstances of the case to appear before him and to be examined orally and shall reduce into writing any statement made by the person so examined.
(2) Such person shall be legally bound to answer all questions relating to such case put to him by the Registrar and to state the truth, whether or not the statement is made wholly or partly in answer to questions, and shall not refuse to answer any question on the ground that it tends to incriminate him.
(3) A statement made by any person under this section shall be taken down in writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him and after he had been given an opportunity to make any correction he may wish:
Provided that where the person examined refuses to sign or affix his thumb print on the statement, the Registrar shall endorse thereon under his hand the fact of such refusal and the reason therefor, if any, stated by the person examined.
(4) Any statement made and recorded under this section shall be admissible as evidence in any proceedings under this Act in any court, either against the person who made it or any other person.
(5) Any person who—
(a) without reasonable excuse fails to appear before the Registrar as required under subsection (1);
(b) without reasonable excuse refuses to answer all questions put to him by the Registrar as required by subsection (2); or
(c) knowingly furnishes to the Registrar information or statement that is false or misleading in a material particular,
shall be guilty of an offence against this Act.
Penalty: Imprisonment for five years or thirty thousand ringgit or both.
COMPANIES ACT 1965 (REVISED - 1973)
PART II - ADMINISTRATION OF ACT
Section 7D. Power to call for examination.
(1) For the purpose of any investigation under section 7C, the Registrar may by notice in writing require any person supposed to be acquainted with the facts and circumstances of the case to appear before him and to be examined orally and shall reduce into writing any statement made by the person so examined.
(2) Such person shall be legally bound to answer all questions relating to such case put to him by the Registrar and to state the truth, whether or not the statement is made wholly or partly in answer to questions, and shall not refuse to answer any question on the ground that it tends to incriminate him.
(3) A statement made by any person under this section shall be taken down in writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him and after he had been given an opportunity to make any correction he may wish:
Provided that where the person examined refuses to sign or affix his thumb print on the statement, the Registrar shall endorse thereon under his hand the fact of such refusal and the reason therefor, if any, stated by the person examined.
(4) Any statement made and recorded under this section shall be admissible as evidence in any proceedings under this Act in any court, either against the person who made it or any other person.
(5) Any person who—
(a) without reasonable excuse fails to appear before the Registrar as required under subsection (1);
(b) without reasonable excuse refuses to answer all questions put to him by the Registrar as required by subsection (2); or
(c) knowingly furnishes to the Registrar information or statement that is false or misleading in a material particular,
shall be guilty of an offence against this Act.
Penalty: Imprisonment for five years or thirty thousand ringgit or both.
Tuesday, March 29, 2011
A person whose application for registration of his trade mark is jeopardized by section 19(1) cannot, without more, qualify as a person aggrieved, because he could be a mere busybody.
The proposal in the statement had been rejected ten years before in Re Arnold D. Palmer, in the following passage at page 686 which contains the words that the Court of Appeal cited:
“. . . The registration of a trade mark in the name of a proprietor, once effected, ought not to be disturbed by persons who have no trading interest in the goods concerned. If an applicant for rectification has no such interest to begin with, and therefore cannot suffer any damage at all by the existence of a conflicting trade mark on the register, it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings. Otherwise, the test of grievance propounded in Powell’s Trade Mark (1984) 11 R.P.C. 7; [1984] A.C. 8 would be completely nullified by resorting to the simple expediency of applying to register the very mark the applicant seeks to expunge. . . .”
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. 02(f)-2-2008 (W)
ANTARA
MCLAREN INTERNATIONAL LIMITED ... PERAYU
LIM YAT MEEN
... RESPONDEN
[ DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02-205-2005
ANTARA MCLAREN INTERNATIONAL LIMITED ... PERAYU
LIM YAT MEEN
... RESPONDEN ]
DAN
DAN
[ Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Usul Pemula No. D3-25-7-2003
ANTARA MCLAREN INTERNATIONAL LIMITED ... PEMOHON
DAN LIM YAT MEEN ... RESPONDEN ]
Coram: RICHARD MALANJUM, CJSS ABDUL AZIZ MOHAMAD, FCJ
HASHIM YUSOFF, FCJ
2
JUDGMENT OF THE COURT
1. The respondent has been the registered proprietor of the trade mark “McLaren” (Trade Mark No. 9202266) since 11 April 1992, when he applied for registration of the trade mark. The approval of the registration had retrospective effect from that date. The registration is in respect of “articles of clothing, including boots, shoes and slippers” in Class 25.
2. Over seven years later, on 11 August 1999, the appellant company, claiming to be the bona fide proprietor of the trade mark “McLaren”, filed application No. 9907641 for registration of the trade mark in respect of “articles of clothing, footwear and headgear” in Class 25.
3. On 16 February 2001, the Registrar of Trade Marks informed the appellants that their application contravened section 19(1) of the Trade Marks Act 1976 (“the Act”) in that the trade mark whose registration the appellants sought was identical with the respondent’s registered trade mark or so nearly resembled the respondent’s registered trade mark as was likely to deceive or cause confusion. Section 19(1) prohibits the registration of such a trade mark in respect of any goods or description of goods.
4. On 3 March 2003, the appellants, by notice of originating motion, applied for an order expunging totally the entry of the respondent’s Trade Mark No. 9202266 from the Register of Trade Marks. For this relief the appellants cited sections 14, 25, 45 and 46(1) of the Act. Alternatively, relying on section 46(1) only, the appellants sought an order varying the entry by the deletion of the words “articles of clothing, including” from the description of the goods to which the respondent’s trade mark relates.
3
5. It is useful to state what the sections on which the appellants’ application relied are about. By section 45 the High Court, on the application of any “person aggrieved” by, inter alia, “any entry made in the Register without sufficient cause or . . . any entry wrongfully remaining in the Register”, is empowered to “make such order for . . . expunging or varying such entry as it thinks fit”. This is provided in paragraph (a) of section 45(1). It is about expunging or varying an entry that is shown, after the entry was made, to be an entry that, for some reason or other, was a wrongful entry.
6.
Section 46(1) provides as follows:
“(1) Subject to this section and to section 57, the Court may, on application by a person aggrieved, order a trade mark to be removed from the Register in respect of any of the goods or services in respect of which it is registered on the ground –
(a) that the trade mark was registered without an intention in good faith, on the part of the applicant for registration or, if it was registered under subsection (1) of section 26, on the part of the body corporate or registered user concerned, to use the trade mark in relation to those goods or services and that there has in fact been no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being up to the date one month before the date of the application; or
(b) that up to one month before the date of the application a continuous period of not less than three years had elapsed during which the trade mark was a registered trade mark and during which there was no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being.”
4
It empowers the Court, that is the High Court, on the application of a “person aggrieved” to order a trade mark to be removed from the Register for reason of non-use. The grounds in paragraphs (a) and (b) are independent alternative grounds that are not related to one another.
7. The essential difference between section 45(1)(a) and section 46(1) is that in an application under section 45(1)(a) some legally-recognized fault has to be shown to have been made in respect of the entry whereas in an application under section 46(1) no such fault has to be shown. What has to be shown is non-use of a trade mark that may have been properly and faultlessly registered.
8. Section 14 prohibits the registration of a mark or part of a mark as a trade mark in several circumstances, one of which is “if the use of [it] is likely to deceive or cause confusion to the public”. It is relevant to an application under section 45(1)(a) because if a mark has been registered in contravention of section 14, it may be argued, for an application under section 45(1)(a), that the entry was made without sufficient cause or that it is an entry wrongfully remaining in the Register.
9. Section 25 is about the procedure for the registration of a trade mark. By its subsection (1), an applicant for the registration of a trade mark must be a person claiming to be its proprietor. Since the appellants claimed that the respondent was not the lawful proprietor of the trade mark “McLaren” and therefore his application of 11 April 1992 did not deserve to be allowed, the appellants must have relied on section 25 as also relevant to section 45(1)(a).
5
10. Essentially, therefore, the appellants’ application was under sections 45(1)(a) and 46(1). To succeed under either provision, they had to show that they were a person aggrieved and that they had a case under either section; that is to say, they had both to establish locus standi and to show merit.
11. The appellants failed in the High Court and the Court of Appeal. At the High Court the learned judge found that the appellants were not a person aggrieved but it seems to us, from the way the judgment is written, that that finding as to the appellants’ locus standi was made upon a finding that the appellants failed to make out a case on the merits. As to the merits, the matters that the learned judge found were mostly relevant to section 45(1)(a), including the finding that section 37 applied to render the registration of the respondent’s trade mark conclusive after seven years. And it should be mentioned that the respondent’s counsel did admit to us that section 37 was urged only in relation to section 45(1)(a) and not in relation to section 46(1). The learned judge’s findings that were relevant to section 46(1) were only the finding that the trade mark was used by the respondent on men’s executive shoes – a finding made on the basis of sales of the shoes by Stonefly Enterprise and United Summary Sdn Bhd – and that it was not necessary for those two entities to be registered as registered users under section 48. That section, to the extent only of subsections (1) and (2), provides as follows:
“48. (1) Subject to the provisions of this section, where the registered proprietor of a trade mark grants, by lawful contract, a right to any person to use the trade mark for all or any of the goods or services in respect of which the trade mark is registered, that person may be entered on the Register as a registered user of the said trade mark whether with or without any conditions or restrictions, provided that it shall be a condition of any such
(a) (b) (c)
the representation of the registered trade mark;
the names, addresses, and addresses for service of the parties;
the goods or services in respect of which the registration is proposed;
6
registration that the registered proprietor shall retain and exercise control over the use of the trade mark and over the quality of the goods or services provided by the registered user in connection with that trade mark.
(2) Where it is proposed that a person shall be registered as a registered user of a trade mark, the registered proprietor shall submit an application to the Registrar for the registration of that person as a registered user of the trade mark and such application shall be accompanied by the prescribed fee and the following information:
(d) any conditions or restrictions proposed with respect to the characteristics of the goods or services, to the mode or place of permitted use or to any other matter; and
(e) whether the permitted use is to be for a period or without limit of period, and if for a period, the duration of that period.”
12. The learned judge made no mention of the appellants’ alternative prayer.
13. The Court of Appeal’s judgment is reported as McLaren International Ltd v Lim Yat Meen [2008] 1 CLJ 613. In paragraphs [11], [12] and [13], the Court of Appeal mentioned three cases on when a person can be said to be a “person aggrieved” for the purposes of sections 45(1)(a) and 46(1). The first is Fazaruddin bin Ibrahim v Parkson Corp Sdn Bhd [1997] 2 CLJ 863,
7
but we will refer to the report in [1977] 4 MLJ 360. In that case Abdul Malik Ishak J said, at page 369: “The phrase ‘person aggrieved’ in s 45(1)(a) of the Act should be construed liberally. In my judgment, it includes any person whose own application for registration is obstructed by the opposing party in the suit . . .” The second is Service Master (M) Sdn Bhd v MHL ServiceMaster Sdn Bhd [1998] 1 CLJ 459, a decision of Kamalanathan Ratnam JC which the Court of Appeal saw as being in conflict with the approach in Fazaruddin. The third is a Singapore case of a date earlier than the other two, Re Arnold D. Palmer [1987] 2 MLJ 681, from which the Court of Appeal quoted the following words of Chan Sek Keong JC: “ . . . it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings”.
14. After touching on those three cases the Court of Appeal proceeded to what appears to us to be a consideration of the merits of the appellants’ application under section 45(1)(a), in the course of which the Court of Appeal made what amounted to a finding that there was no fault in the registration of the respondent’s trade mark and referred to the protection of section 37 in favour of the respondent, and then came to the following conclusion in paragraph [21]:
“[21] From the above prognosis, surely the best approach to arrive at a correct decision whether an applicant is an aggrieved person is by bringing all the available evidence to bear before the judge, rather than debating whether the terminology of “an aggrieved person” should be given a wide or restricted interpretation. By this method, irrespective of the scope of the two words, the learned judge will be able to arrive at a more meaningful decision. Despite the valiant attempt by the appellant, regretfully after having weighed all the agreed facts and evidence, we decided that it did not qualify as an aggrieved person
8
and hence had no locus standi to initiate the action, be it pursuant to ss. 45 or 46 of the Trade Marks Act 1976.”
15. It appears to us that the Court of Appeal was influenced by the lack of merit in the appellants’ case under section 45(1)(a) to arrive at the conclusion that they were not an aggrieved person.
16. The only manner in which the Court of Appeal dealt with the appellants’ application under section 46(1) was by making a finding in paragraph [28] that section 48 did not make it mandatory for Stonefly Enterprise and United Summary Sdn Bhd to be registered as registered users.
17. The Court of Appeal made no mention of the appellants’ alternative prayer.
18. Leave was granted to the appellants to appeal to this court on the following two questions:
“(a) Is a party whose application for registration of a trade mark obstructed under section 19 of the Trade Marks Act 1976 by the prior registration of an identical or similar mark on the Register of Trademarks an “aggrieved person” with the appropriate locus standi within the meaning of that term in sections 45 and 46 of the Trade Marks Act 1976.
(b) Whether in the face of uncontroverted evidence of non use of a registered mark in relation to some only of the registered goods, such only of the goods may be rectified by their removal or expunged pursuant the entitlements in law under sections 45 and 46 of the Trade Marks Act 1976.”
The appellants have decided not to rely on their application under section
9
45. Therefore the references to that section in the two questions are to be disregarded. The appellants rely only on their application under section 46(1), and they rely only on paragraph (b) of the section. Paragraph (a) is therefore not involved in this appeal. Only paragraph (b) is involved in this appeal.
Question (a)
19. It goes without saying that the appellants’ purpose behind Question (a) is to get this court to answer, contrary to the Court of Appeal’s finding, that the appellants were a person aggrieved. But the appellants’ counsel did not place his hopes entirely on an answer to Question (a) in the affirmative. While contending, in reliance on what Abdul Malik Ishak J said in Fazaruddin, that the appellants should be accepted as a person aggrieved by reason solely that their application for registration of the “McLaren” trade mark encountered, on 16 February 2001, the obstruction of section 19(1), and while urging this court, “in the national interest”, to endorse the “liberal approach” in Fazaruddin, the appellants’ counsel also submitted that on the facts the appellants qualified as a person aggrieved according to the test in Re Arnold D. Palmer. It was rather on those facts that the appellants themselves in their affidavit claimed to be a person aggrieved and not on the mere fact of their application being obstructed under section 19(1).
20. Indeed, in our judgment, Question (a) cannot be answered in the affirmative. A person whose application for registration of his trade mark is jeopardized by section 19(1) cannot, without more, qualify as a person aggrieved, because he could be a mere busybody. An answer in the affirmative that the appellants want to Question (a) would uphold Abdul Malik Ishak J’s statement in Fazaruddin, which was made without any
10
supporting authority. The proposal in the statement had been rejected ten years before in Re Arnold D. Palmer, in the following passage at page 686 which contains the words that the Court of Appeal cited:
“. . . The registration of a trade mark in the name of a proprietor, once effected, ought not to be disturbed by persons who have no trading interest in the goods concerned. If an applicant for rectification has no such interest to begin with, and therefore cannot suffer any damage at all by the existence of a conflicting trade mark on the register, it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings. Otherwise, the test of grievance propounded in Powell’s Trade Mark (1984) 11 R.P.C. 7; [1984] A.C. 8 would be completely nullified by resorting to the simple expediency of applying to register the very mark the applicant seeks to expunge. . . .”
21. relied on by the respondent to deny that the appellants are a person aggrieved. In that case the applicant sought the removal from the Register of a trade mark on the ground of non-user. On whether the applicant was a person aggrieved, Chan Sek Keong JC, after considering the speeches of Lord Herschell and Lord Watson in the House of Lords in Powell’s Trade Mark (1894) 11 R.P.C. 7; [1984] A.C. 8, and the manner in which subsequent judges reacted to the opinions of the said Law Lords in Lever Bros. v Sunniwite Products (1949) 66 R.P.C. 84, Consort Trade Mark [1980] R.P.C. 160, and Wells Fargo Trade Mark [1977] R.P.C. 503, concluded as follows:
“ On the basis of these decisions, it is plain that the applicant will fail in this appeal unless he can show that he has used his trade mark in the course of a trade which is the same as or similar to that of the respondents or that he has a genuine and present intention to use the mark as a trade mark. But the evidence shows none of these things, as the Registrar has found. . . . “
Re Arnold D. Palmer is an authority (out of several) that is heavily
11
22. We understand that passage as laying down the principle that a person aggrieved is a person who has used his mark as a trade mark – or who has a genuine and present intention to use his mark as a trade mark – in the course of a trade which is the same as or similar to the trade of the owner of the registered trade mark that the person wants to have removed from the Register.
23. The appellants’ counsel submitted that on the facts adduced in the affidavit in support of the appellants’ notice of originating motion, which facts counsel said were undisputed, the appellants satisfied the above test of a person aggrieved as expounded in Re Arnold D. Palmer. The facts, in the words of the appellants’ company secretary who made the affidavit, are as follows:
“The Applicant is a company organised and existing under the laws of England . . . The Applicant is the proprietor of the mark “McLaren” and has filed for a trade mark application under no. 99/07641 on 11th August 1999 in relation to “articles of clothing, footwear and headgear.” The mark “McLaren” has long been associated with the Formula 1 race of which the McLaren team is well-known worldwide, including Malaysia. I verily believe that the “McLaren” mark is known to the Malaysian public long before the Sepang F1 circuit was established by virtue of the various sports programmes and telecast of the races on Malaysian television. The McLaren team has been participating in the Formula 1 race for 37 years and I verily believe that there are many supporters of the McLaren team in Malaysia. (Broadcasting statistics for 1993-2000 are exhibited) . . . Pursuant to the popularity of the McLaren team, merchandise bearing the “McLaren” mark have been offered for sale by the Applicants for over 10 years. Customers buying the products will immediately identify and associate such merchandise with the Applicants and equate the same with products endorsed by the McLaren team. (A recent catalogue of merchandise offered under
12
the “McLaren” mark is exhibited). These products are made available by mail order to any person anywhere in the world. There is also a membership programme for Team McLaren which is open to anyone from around the world. Membership benefits include discounted prices on McLaren merchandise and free subscription to the McLaren magazines. (A copy of the McLaren magazine entitled “Racing Line” is exhibited). The “McLaren” mark has also been extensively promoted both internationally and in Malaysia. Other than in “Racing Line” magazine, promotion of the “McLaren” mark is conducted via the website www.mclaren.com as well as on-site promotion such as at the Sepang F1 circuit. The “McLaren” mark is also promoted via the website of the Sepang F1 circuit, http://www.f1-malaysia.com. (Printouts from those websites are exhibited). By virtue of the foregoing, I verily believe that the “McLaren” mark is well-known in Malaysia and the Applicant enjoys considerable reputation and goodwill amongst the Malaysian public in respect of the “McLaren” mark not only as the Formula 1 team but also for the merchandise associated therewith, particularly, clothing. . . . The Applicant’s trade mark application has been objected to by the Registrar of Trade Marks on the basis of the Respondent’s said mark. As both marks are similar, the Applicant’s application will not be able to proceed to registration in light of the earlier registration by the Respondent unless the said trade mark registration is expunged. By virtue of the Applicant’s reputation and goodwill subsisting in the “McLaren” mark, and use thereof in Malaysia, the Respondent’s continued registration of the said mark will seriously jeopardize the Applicant’s right and interests in the exploitation of its “McLaren” mark. I verily believe and am advised by the Applicant’s solicitors that the Applicant is therefore aggrieved by the registration of the said mark by the Respondent and has locus standi to apply to the Honourable Court to rectify the Register.”
24. pass the test of a person aggrieved as laid down in Re Arnold D. Palmer is outside the scope of this appeal. It is a question of fact, and, contrary to the
In our judgment the question whether, on the facts, the appellants
13
claim of the appellants’ counsel, some of the facts are, moreover, judging by the respondent’s affidavit in reply, hotly in dispute. To top it all, there is no leave-question to cater for the appellants’ alternative stand. The only leave- question on which the appellants can rely for a finding that they are an aggrieved person is Question (a), if answered in the affirmative. We have already opined that it cannot be answered in the affirmative.
25. As the appellants fail in this appeal on the question of locus standi, this appeal ought to be dismissed without any need to answer Question (b), which is the question as to the merits of the appellants’ application. We will nonetheless deal with that question.
Question (b)
26. As we said, in this appeal the appellants rely only on paragraph (b) of section 46(1). According to section 46(1)(b), applying it to the present case, the court may order the respondent’s “McLaren” trade mark to be removed from the Register in respect of any of the following goods, namely, articles of clothing, boots, shoes and slippers, if, for a certain period, there was no use in good faith of that trade mark in relation to those goods by the respondent (as the registered proprietor of the trade mark) or by the registered user of the trade mark. The period is a continuous period of three years until 3 February 2003, which was one month before the date of the appellants’ application, 3 March 2003. In other words, the period is a continuous period of non-use from 3 February 2000 until 3 February 2003.
27. It is an admitted fact that the respondent’s trade mark, since it was registered on 11 April 1992, had been used only in respect of executive men’s shoes. The respondent claimed in paragraphs 5 and 6 of his affidavit dated 23 November 2004: “. . . all the men’s executive shoes bearing the
14
mark MCLAREN that were contract-manufactured by Stonefly Enterprise and United Summary Sdn Bhd were done pursuant to the ongoing contractual relationships between me and Stonefly Enterprise and United Summary Sdn Bhd respectively. Both [those entities] were acting as my agents to use the mark MCLAREN for the purpose of dealing with men’s executive shoes bearing the MCLAREN trade mark in Kelantan since May 1999 and in Kuala Lumpur since early 2000”.
28. There are two facets to the application of section 46(1)(b) to the facts of this case. The first facet concerns the fact that in any event, let alone during the said period of three years, there was no use of the respondent’s registered trade mark in relation to some of the goods in respect of which the trade mark is registered, that is to say, in relation to articles of clothing other than footwear. The court is therefore empowered to order the respondent’s trade mark to be removed from the Register in respect of such articles of clothing, or, in other words, to grant the appellants’ alternative prayer for an order of deletion of the words “articles of clothing, including” from the description of the goods to which the respondent’s trade mark relates. The respondent’s only answer to the alternative prayer, which does not avail with us, is to ask the court, in exercising its discretionary power under section 46(1)(b), to take into consideration matters “such as questions of good faith and public interest”, as the respondent, so he claims, had the necessary intention to use the trade mark in relation to all the goods in respect of which it is registered.
29. The second facet concerns the fact that during the relevant three years the respondent’s trade mark was used in relation to executive men’s shoes, which constitute some of the goods in respect of which the trade mark is registered. So that the ground for removal of the trade mark under
15
section 46(1)(b) in respect of those goods may be avoided or prevented from arising, the use must be use by the respondent himself as the registered proprietor or by the registered user of the trade mark, besides the use having to be in good faith. A registered user is a person registered as such under section 48. Stonefly and United Summary were never registered under section 48 as registered users of the respondent’s trade mark. Although, as the Court of Appeal said, section 48 did not make it mandatory for them to be registered as such, their not being so registered has the consequence that for the purposes of section 46(1)(b) the use of the respondent’s trade mark by them was not use by a registered user. That leaves the question whether the use of the trade mark on executive men’s shoes by those entities was use as agent for the respondent and therefore was use by the respondent as the registered proprietor. That was one of the arguments of the respondent in the High Court, against which the appellants presented strong arguments in submission, and in the present appeal we do not see the respondent repeating the argument at all or with any degree of enthusiasm.
30. But Question (b) is not concerned with the second facet. It is concerned only with the first facet. It is predicated on “uncontroverted evidence of non use of a registered mark in relation to some only of the registered goods”, which can only be non-use in relation to articles of clothing other than footwear. Question (b) is clearly a question that is looking at the appellants’ alternative prayer. An affirmative answer to Question (b), which is the answer that the appellants want, can only sensibly and logically result in the granting of the alternative prayer. Therefore, were the appellants to succeed in this appeal on the question of locus standi, we would allow the appeal but only to the extent of granting the alternative prayer. But since the appellants fail on the question of locus
16
standi, we dismiss the appeal with costs and order that the deposit be paid to the respondent to account of his taxed costs.
Dated: 8 June 2009
DATO’ ABDUL AZIZ BIN MOHAMAD
Judge Federal Court, Malaysia
“. . . The registration of a trade mark in the name of a proprietor, once effected, ought not to be disturbed by persons who have no trading interest in the goods concerned. If an applicant for rectification has no such interest to begin with, and therefore cannot suffer any damage at all by the existence of a conflicting trade mark on the register, it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings. Otherwise, the test of grievance propounded in Powell’s Trade Mark (1984) 11 R.P.C. 7; [1984] A.C. 8 would be completely nullified by resorting to the simple expediency of applying to register the very mark the applicant seeks to expunge. . . .”
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. 02(f)-2-2008 (W)
ANTARA
MCLAREN INTERNATIONAL LIMITED ... PERAYU
LIM YAT MEEN
... RESPONDEN
[ DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02-205-2005
ANTARA MCLAREN INTERNATIONAL LIMITED ... PERAYU
LIM YAT MEEN
... RESPONDEN ]
DAN
DAN
[ Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Usul Pemula No. D3-25-7-2003
ANTARA MCLAREN INTERNATIONAL LIMITED ... PEMOHON
DAN LIM YAT MEEN ... RESPONDEN ]
Coram: RICHARD MALANJUM, CJSS ABDUL AZIZ MOHAMAD, FCJ
HASHIM YUSOFF, FCJ
2
JUDGMENT OF THE COURT
1. The respondent has been the registered proprietor of the trade mark “McLaren” (Trade Mark No. 9202266) since 11 April 1992, when he applied for registration of the trade mark. The approval of the registration had retrospective effect from that date. The registration is in respect of “articles of clothing, including boots, shoes and slippers” in Class 25.
2. Over seven years later, on 11 August 1999, the appellant company, claiming to be the bona fide proprietor of the trade mark “McLaren”, filed application No. 9907641 for registration of the trade mark in respect of “articles of clothing, footwear and headgear” in Class 25.
3. On 16 February 2001, the Registrar of Trade Marks informed the appellants that their application contravened section 19(1) of the Trade Marks Act 1976 (“the Act”) in that the trade mark whose registration the appellants sought was identical with the respondent’s registered trade mark or so nearly resembled the respondent’s registered trade mark as was likely to deceive or cause confusion. Section 19(1) prohibits the registration of such a trade mark in respect of any goods or description of goods.
4. On 3 March 2003, the appellants, by notice of originating motion, applied for an order expunging totally the entry of the respondent’s Trade Mark No. 9202266 from the Register of Trade Marks. For this relief the appellants cited sections 14, 25, 45 and 46(1) of the Act. Alternatively, relying on section 46(1) only, the appellants sought an order varying the entry by the deletion of the words “articles of clothing, including” from the description of the goods to which the respondent’s trade mark relates.
3
5. It is useful to state what the sections on which the appellants’ application relied are about. By section 45 the High Court, on the application of any “person aggrieved” by, inter alia, “any entry made in the Register without sufficient cause or . . . any entry wrongfully remaining in the Register”, is empowered to “make such order for . . . expunging or varying such entry as it thinks fit”. This is provided in paragraph (a) of section 45(1). It is about expunging or varying an entry that is shown, after the entry was made, to be an entry that, for some reason or other, was a wrongful entry.
6.
Section 46(1) provides as follows:
“(1) Subject to this section and to section 57, the Court may, on application by a person aggrieved, order a trade mark to be removed from the Register in respect of any of the goods or services in respect of which it is registered on the ground –
(a) that the trade mark was registered without an intention in good faith, on the part of the applicant for registration or, if it was registered under subsection (1) of section 26, on the part of the body corporate or registered user concerned, to use the trade mark in relation to those goods or services and that there has in fact been no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being up to the date one month before the date of the application; or
(b) that up to one month before the date of the application a continuous period of not less than three years had elapsed during which the trade mark was a registered trade mark and during which there was no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being.”
4
It empowers the Court, that is the High Court, on the application of a “person aggrieved” to order a trade mark to be removed from the Register for reason of non-use. The grounds in paragraphs (a) and (b) are independent alternative grounds that are not related to one another.
7. The essential difference between section 45(1)(a) and section 46(1) is that in an application under section 45(1)(a) some legally-recognized fault has to be shown to have been made in respect of the entry whereas in an application under section 46(1) no such fault has to be shown. What has to be shown is non-use of a trade mark that may have been properly and faultlessly registered.
8. Section 14 prohibits the registration of a mark or part of a mark as a trade mark in several circumstances, one of which is “if the use of [it] is likely to deceive or cause confusion to the public”. It is relevant to an application under section 45(1)(a) because if a mark has been registered in contravention of section 14, it may be argued, for an application under section 45(1)(a), that the entry was made without sufficient cause or that it is an entry wrongfully remaining in the Register.
9. Section 25 is about the procedure for the registration of a trade mark. By its subsection (1), an applicant for the registration of a trade mark must be a person claiming to be its proprietor. Since the appellants claimed that the respondent was not the lawful proprietor of the trade mark “McLaren” and therefore his application of 11 April 1992 did not deserve to be allowed, the appellants must have relied on section 25 as also relevant to section 45(1)(a).
5
10. Essentially, therefore, the appellants’ application was under sections 45(1)(a) and 46(1). To succeed under either provision, they had to show that they were a person aggrieved and that they had a case under either section; that is to say, they had both to establish locus standi and to show merit.
11. The appellants failed in the High Court and the Court of Appeal. At the High Court the learned judge found that the appellants were not a person aggrieved but it seems to us, from the way the judgment is written, that that finding as to the appellants’ locus standi was made upon a finding that the appellants failed to make out a case on the merits. As to the merits, the matters that the learned judge found were mostly relevant to section 45(1)(a), including the finding that section 37 applied to render the registration of the respondent’s trade mark conclusive after seven years. And it should be mentioned that the respondent’s counsel did admit to us that section 37 was urged only in relation to section 45(1)(a) and not in relation to section 46(1). The learned judge’s findings that were relevant to section 46(1) were only the finding that the trade mark was used by the respondent on men’s executive shoes – a finding made on the basis of sales of the shoes by Stonefly Enterprise and United Summary Sdn Bhd – and that it was not necessary for those two entities to be registered as registered users under section 48. That section, to the extent only of subsections (1) and (2), provides as follows:
“48. (1) Subject to the provisions of this section, where the registered proprietor of a trade mark grants, by lawful contract, a right to any person to use the trade mark for all or any of the goods or services in respect of which the trade mark is registered, that person may be entered on the Register as a registered user of the said trade mark whether with or without any conditions or restrictions, provided that it shall be a condition of any such
(a) (b) (c)
the representation of the registered trade mark;
the names, addresses, and addresses for service of the parties;
the goods or services in respect of which the registration is proposed;
6
registration that the registered proprietor shall retain and exercise control over the use of the trade mark and over the quality of the goods or services provided by the registered user in connection with that trade mark.
(2) Where it is proposed that a person shall be registered as a registered user of a trade mark, the registered proprietor shall submit an application to the Registrar for the registration of that person as a registered user of the trade mark and such application shall be accompanied by the prescribed fee and the following information:
(d) any conditions or restrictions proposed with respect to the characteristics of the goods or services, to the mode or place of permitted use or to any other matter; and
(e) whether the permitted use is to be for a period or without limit of period, and if for a period, the duration of that period.”
12. The learned judge made no mention of the appellants’ alternative prayer.
13. The Court of Appeal’s judgment is reported as McLaren International Ltd v Lim Yat Meen [2008] 1 CLJ 613. In paragraphs [11], [12] and [13], the Court of Appeal mentioned three cases on when a person can be said to be a “person aggrieved” for the purposes of sections 45(1)(a) and 46(1). The first is Fazaruddin bin Ibrahim v Parkson Corp Sdn Bhd [1997] 2 CLJ 863,
7
but we will refer to the report in [1977] 4 MLJ 360. In that case Abdul Malik Ishak J said, at page 369: “The phrase ‘person aggrieved’ in s 45(1)(a) of the Act should be construed liberally. In my judgment, it includes any person whose own application for registration is obstructed by the opposing party in the suit . . .” The second is Service Master (M) Sdn Bhd v MHL ServiceMaster Sdn Bhd [1998] 1 CLJ 459, a decision of Kamalanathan Ratnam JC which the Court of Appeal saw as being in conflict with the approach in Fazaruddin. The third is a Singapore case of a date earlier than the other two, Re Arnold D. Palmer [1987] 2 MLJ 681, from which the Court of Appeal quoted the following words of Chan Sek Keong JC: “ . . . it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings”.
14. After touching on those three cases the Court of Appeal proceeded to what appears to us to be a consideration of the merits of the appellants’ application under section 45(1)(a), in the course of which the Court of Appeal made what amounted to a finding that there was no fault in the registration of the respondent’s trade mark and referred to the protection of section 37 in favour of the respondent, and then came to the following conclusion in paragraph [21]:
“[21] From the above prognosis, surely the best approach to arrive at a correct decision whether an applicant is an aggrieved person is by bringing all the available evidence to bear before the judge, rather than debating whether the terminology of “an aggrieved person” should be given a wide or restricted interpretation. By this method, irrespective of the scope of the two words, the learned judge will be able to arrive at a more meaningful decision. Despite the valiant attempt by the appellant, regretfully after having weighed all the agreed facts and evidence, we decided that it did not qualify as an aggrieved person
8
and hence had no locus standi to initiate the action, be it pursuant to ss. 45 or 46 of the Trade Marks Act 1976.”
15. It appears to us that the Court of Appeal was influenced by the lack of merit in the appellants’ case under section 45(1)(a) to arrive at the conclusion that they were not an aggrieved person.
16. The only manner in which the Court of Appeal dealt with the appellants’ application under section 46(1) was by making a finding in paragraph [28] that section 48 did not make it mandatory for Stonefly Enterprise and United Summary Sdn Bhd to be registered as registered users.
17. The Court of Appeal made no mention of the appellants’ alternative prayer.
18. Leave was granted to the appellants to appeal to this court on the following two questions:
“(a) Is a party whose application for registration of a trade mark obstructed under section 19 of the Trade Marks Act 1976 by the prior registration of an identical or similar mark on the Register of Trademarks an “aggrieved person” with the appropriate locus standi within the meaning of that term in sections 45 and 46 of the Trade Marks Act 1976.
(b) Whether in the face of uncontroverted evidence of non use of a registered mark in relation to some only of the registered goods, such only of the goods may be rectified by their removal or expunged pursuant the entitlements in law under sections 45 and 46 of the Trade Marks Act 1976.”
The appellants have decided not to rely on their application under section
9
45. Therefore the references to that section in the two questions are to be disregarded. The appellants rely only on their application under section 46(1), and they rely only on paragraph (b) of the section. Paragraph (a) is therefore not involved in this appeal. Only paragraph (b) is involved in this appeal.
Question (a)
19. It goes without saying that the appellants’ purpose behind Question (a) is to get this court to answer, contrary to the Court of Appeal’s finding, that the appellants were a person aggrieved. But the appellants’ counsel did not place his hopes entirely on an answer to Question (a) in the affirmative. While contending, in reliance on what Abdul Malik Ishak J said in Fazaruddin, that the appellants should be accepted as a person aggrieved by reason solely that their application for registration of the “McLaren” trade mark encountered, on 16 February 2001, the obstruction of section 19(1), and while urging this court, “in the national interest”, to endorse the “liberal approach” in Fazaruddin, the appellants’ counsel also submitted that on the facts the appellants qualified as a person aggrieved according to the test in Re Arnold D. Palmer. It was rather on those facts that the appellants themselves in their affidavit claimed to be a person aggrieved and not on the mere fact of their application being obstructed under section 19(1).
20. Indeed, in our judgment, Question (a) cannot be answered in the affirmative. A person whose application for registration of his trade mark is jeopardized by section 19(1) cannot, without more, qualify as a person aggrieved, because he could be a mere busybody. An answer in the affirmative that the appellants want to Question (a) would uphold Abdul Malik Ishak J’s statement in Fazaruddin, which was made without any
10
supporting authority. The proposal in the statement had been rejected ten years before in Re Arnold D. Palmer, in the following passage at page 686 which contains the words that the Court of Appeal cited:
“. . . The registration of a trade mark in the name of a proprietor, once effected, ought not to be disturbed by persons who have no trading interest in the goods concerned. If an applicant for rectification has no such interest to begin with, and therefore cannot suffer any damage at all by the existence of a conflicting trade mark on the register, it cannot be right, in principle, that the mere filing of his application can confer the necessary locus standi on the applicant for the purpose of rectifying proceedings. Otherwise, the test of grievance propounded in Powell’s Trade Mark (1984) 11 R.P.C. 7; [1984] A.C. 8 would be completely nullified by resorting to the simple expediency of applying to register the very mark the applicant seeks to expunge. . . .”
21. relied on by the respondent to deny that the appellants are a person aggrieved. In that case the applicant sought the removal from the Register of a trade mark on the ground of non-user. On whether the applicant was a person aggrieved, Chan Sek Keong JC, after considering the speeches of Lord Herschell and Lord Watson in the House of Lords in Powell’s Trade Mark (1894) 11 R.P.C. 7; [1984] A.C. 8, and the manner in which subsequent judges reacted to the opinions of the said Law Lords in Lever Bros. v Sunniwite Products (1949) 66 R.P.C. 84, Consort Trade Mark [1980] R.P.C. 160, and Wells Fargo Trade Mark [1977] R.P.C. 503, concluded as follows:
“ On the basis of these decisions, it is plain that the applicant will fail in this appeal unless he can show that he has used his trade mark in the course of a trade which is the same as or similar to that of the respondents or that he has a genuine and present intention to use the mark as a trade mark. But the evidence shows none of these things, as the Registrar has found. . . . “
Re Arnold D. Palmer is an authority (out of several) that is heavily
11
22. We understand that passage as laying down the principle that a person aggrieved is a person who has used his mark as a trade mark – or who has a genuine and present intention to use his mark as a trade mark – in the course of a trade which is the same as or similar to the trade of the owner of the registered trade mark that the person wants to have removed from the Register.
23. The appellants’ counsel submitted that on the facts adduced in the affidavit in support of the appellants’ notice of originating motion, which facts counsel said were undisputed, the appellants satisfied the above test of a person aggrieved as expounded in Re Arnold D. Palmer. The facts, in the words of the appellants’ company secretary who made the affidavit, are as follows:
“The Applicant is a company organised and existing under the laws of England . . . The Applicant is the proprietor of the mark “McLaren” and has filed for a trade mark application under no. 99/07641 on 11th August 1999 in relation to “articles of clothing, footwear and headgear.” The mark “McLaren” has long been associated with the Formula 1 race of which the McLaren team is well-known worldwide, including Malaysia. I verily believe that the “McLaren” mark is known to the Malaysian public long before the Sepang F1 circuit was established by virtue of the various sports programmes and telecast of the races on Malaysian television. The McLaren team has been participating in the Formula 1 race for 37 years and I verily believe that there are many supporters of the McLaren team in Malaysia. (Broadcasting statistics for 1993-2000 are exhibited) . . . Pursuant to the popularity of the McLaren team, merchandise bearing the “McLaren” mark have been offered for sale by the Applicants for over 10 years. Customers buying the products will immediately identify and associate such merchandise with the Applicants and equate the same with products endorsed by the McLaren team. (A recent catalogue of merchandise offered under
12
the “McLaren” mark is exhibited). These products are made available by mail order to any person anywhere in the world. There is also a membership programme for Team McLaren which is open to anyone from around the world. Membership benefits include discounted prices on McLaren merchandise and free subscription to the McLaren magazines. (A copy of the McLaren magazine entitled “Racing Line” is exhibited). The “McLaren” mark has also been extensively promoted both internationally and in Malaysia. Other than in “Racing Line” magazine, promotion of the “McLaren” mark is conducted via the website www.mclaren.com as well as on-site promotion such as at the Sepang F1 circuit. The “McLaren” mark is also promoted via the website of the Sepang F1 circuit, http://www.f1-malaysia.com. (Printouts from those websites are exhibited). By virtue of the foregoing, I verily believe that the “McLaren” mark is well-known in Malaysia and the Applicant enjoys considerable reputation and goodwill amongst the Malaysian public in respect of the “McLaren” mark not only as the Formula 1 team but also for the merchandise associated therewith, particularly, clothing. . . . The Applicant’s trade mark application has been objected to by the Registrar of Trade Marks on the basis of the Respondent’s said mark. As both marks are similar, the Applicant’s application will not be able to proceed to registration in light of the earlier registration by the Respondent unless the said trade mark registration is expunged. By virtue of the Applicant’s reputation and goodwill subsisting in the “McLaren” mark, and use thereof in Malaysia, the Respondent’s continued registration of the said mark will seriously jeopardize the Applicant’s right and interests in the exploitation of its “McLaren” mark. I verily believe and am advised by the Applicant’s solicitors that the Applicant is therefore aggrieved by the registration of the said mark by the Respondent and has locus standi to apply to the Honourable Court to rectify the Register.”
24. pass the test of a person aggrieved as laid down in Re Arnold D. Palmer is outside the scope of this appeal. It is a question of fact, and, contrary to the
In our judgment the question whether, on the facts, the appellants
13
claim of the appellants’ counsel, some of the facts are, moreover, judging by the respondent’s affidavit in reply, hotly in dispute. To top it all, there is no leave-question to cater for the appellants’ alternative stand. The only leave- question on which the appellants can rely for a finding that they are an aggrieved person is Question (a), if answered in the affirmative. We have already opined that it cannot be answered in the affirmative.
25. As the appellants fail in this appeal on the question of locus standi, this appeal ought to be dismissed without any need to answer Question (b), which is the question as to the merits of the appellants’ application. We will nonetheless deal with that question.
Question (b)
26. As we said, in this appeal the appellants rely only on paragraph (b) of section 46(1). According to section 46(1)(b), applying it to the present case, the court may order the respondent’s “McLaren” trade mark to be removed from the Register in respect of any of the following goods, namely, articles of clothing, boots, shoes and slippers, if, for a certain period, there was no use in good faith of that trade mark in relation to those goods by the respondent (as the registered proprietor of the trade mark) or by the registered user of the trade mark. The period is a continuous period of three years until 3 February 2003, which was one month before the date of the appellants’ application, 3 March 2003. In other words, the period is a continuous period of non-use from 3 February 2000 until 3 February 2003.
27. It is an admitted fact that the respondent’s trade mark, since it was registered on 11 April 1992, had been used only in respect of executive men’s shoes. The respondent claimed in paragraphs 5 and 6 of his affidavit dated 23 November 2004: “. . . all the men’s executive shoes bearing the
14
mark MCLAREN that were contract-manufactured by Stonefly Enterprise and United Summary Sdn Bhd were done pursuant to the ongoing contractual relationships between me and Stonefly Enterprise and United Summary Sdn Bhd respectively. Both [those entities] were acting as my agents to use the mark MCLAREN for the purpose of dealing with men’s executive shoes bearing the MCLAREN trade mark in Kelantan since May 1999 and in Kuala Lumpur since early 2000”.
28. There are two facets to the application of section 46(1)(b) to the facts of this case. The first facet concerns the fact that in any event, let alone during the said period of three years, there was no use of the respondent’s registered trade mark in relation to some of the goods in respect of which the trade mark is registered, that is to say, in relation to articles of clothing other than footwear. The court is therefore empowered to order the respondent’s trade mark to be removed from the Register in respect of such articles of clothing, or, in other words, to grant the appellants’ alternative prayer for an order of deletion of the words “articles of clothing, including” from the description of the goods to which the respondent’s trade mark relates. The respondent’s only answer to the alternative prayer, which does not avail with us, is to ask the court, in exercising its discretionary power under section 46(1)(b), to take into consideration matters “such as questions of good faith and public interest”, as the respondent, so he claims, had the necessary intention to use the trade mark in relation to all the goods in respect of which it is registered.
29. The second facet concerns the fact that during the relevant three years the respondent’s trade mark was used in relation to executive men’s shoes, which constitute some of the goods in respect of which the trade mark is registered. So that the ground for removal of the trade mark under
15
section 46(1)(b) in respect of those goods may be avoided or prevented from arising, the use must be use by the respondent himself as the registered proprietor or by the registered user of the trade mark, besides the use having to be in good faith. A registered user is a person registered as such under section 48. Stonefly and United Summary were never registered under section 48 as registered users of the respondent’s trade mark. Although, as the Court of Appeal said, section 48 did not make it mandatory for them to be registered as such, their not being so registered has the consequence that for the purposes of section 46(1)(b) the use of the respondent’s trade mark by them was not use by a registered user. That leaves the question whether the use of the trade mark on executive men’s shoes by those entities was use as agent for the respondent and therefore was use by the respondent as the registered proprietor. That was one of the arguments of the respondent in the High Court, against which the appellants presented strong arguments in submission, and in the present appeal we do not see the respondent repeating the argument at all or with any degree of enthusiasm.
30. But Question (b) is not concerned with the second facet. It is concerned only with the first facet. It is predicated on “uncontroverted evidence of non use of a registered mark in relation to some only of the registered goods”, which can only be non-use in relation to articles of clothing other than footwear. Question (b) is clearly a question that is looking at the appellants’ alternative prayer. An affirmative answer to Question (b), which is the answer that the appellants want, can only sensibly and logically result in the granting of the alternative prayer. Therefore, were the appellants to succeed in this appeal on the question of locus standi, we would allow the appeal but only to the extent of granting the alternative prayer. But since the appellants fail on the question of locus
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standi, we dismiss the appeal with costs and order that the deposit be paid to the respondent to account of his taxed costs.
Dated: 8 June 2009
DATO’ ABDUL AZIZ BIN MOHAMAD
Judge Federal Court, Malaysia
Failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC. 50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless.
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 43 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
LAWAN DATUK CAPTAIN HAMZAH BIN MOHD NOOR ... RESPONDEN
DIDENGAR BERSAMA
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 42 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
ANDRE RAVINDRAN S. ARUL ... RESPONDEN
CORAM: ZAKI TUN AZMI, CJ ARIFIN ZAKARIA, CJM AUGUSTINE PAUL, FCJ
INTRODUCTION
JUDGMENT OF ZAKI TUN AZMI, CJ
1. These appeals concern the interpretation and application of Order 6 Rule 7(2) and 7(2A) of the Rules of the High Court 1980 (“RHC”). Related to that is the manner in which Order 1A RHC is to be applied.
2. The two appeals before us relating to the said issues are Rayuan Sivil No. 02 – 42 – 2008 (W) (hereinafter referred to as Appeal A) and Rayuan Sivil No. 02 – 43 – 2008 (W) (hereinafter referred to as Appeal B). The parties rely on submissions and bundle of authorities submitted in regard to Appeal A. The issues in both appeals arose because both writs from which the appeals originated were extended even though no attempts were made to serve either of them on the Appellant. The validity and effect of these renewals are what is ought to be impugned.
3. The following question was therefore posed to us:
“Whether the requirement of showing such efforts that have been made to effect service of a writ under Order 6 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
4. During the course of the hearing, we allowed a consequential question to be posed and it is as follows:
FACTS
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
5. The facts are as follows:
6. The Respondent filed a writ of summons at the Singapore High Court (“the Singapore writ / action”) on 29.09.2000. Simultaneously with that, on the same date, the Respondent also filed another writ containing almost identical pleadings and cause of action at the High Court at Shah Alam (“the Shah Alam writ / action”). A third writ was filed not much later i.e. on 13.07.2001 at the High Court in Kuala Lumpur (“the Kuala Lumpur writ / action”), again, containing similar pleadings and cause of action. The Singapore writ was served on the Appellant on 22.02.2001. On the other hand, the Shah Alam and the Kuala Lumpur writs were kept away from the knowledge of the Appellant. The Appellant was totally unaware of these two other actions.
7. The Singapore action proceeded with the hearing before the High Court Judge who referred it to his Senior Assistant Registrar for case management. It was only before the Senior Assistant Registrar that the Respondent, in answer to a query raised by the Senior Assistant Registrar, disclosed that the Respondent had filed two other actions in Malaysia. The Singapore Senior Assistant Registrar directed the Respondent to withdraw the Singapore writ and to serve the Shah Alam writ within six weeks of that direction which was made on 15.05.2001.
8. The Respondent had, of course without the knowledge of the Appellant, sought and obtained orders from the Senior Assistant Registrar of the High Court at Shah Alam to renew the validity of the writs of summons before their expiry. The Senior Assistant Registrar of the High Court at Shah Alam granted a renewal of the Shah Alam writ pursuant to the application filed on 20.03.2001. Subsequently, pursuant to another application filed on 04.09.2001, a second extension was granted on 06.12.2001. In other words, two extensions were obtained ex parte.
9. In the meanwhile, the Respondent appealed to the Judge in Chambers (in Singapore) against the Senior Assistant Registrar’s orders and subsequently to the Singapore Court of Appeal. The Singapore High Court as well as the Singapore Court of Appeal dismissed the appeal and the stay order by the Singapore Senior Assistant Registrar was affirmed. The decision of the Singapore Court of Appeal was made on 19.02.2002. It must be noted that by the time this order was made, about 16 months had lapsed from the filing of the Shah Alam action.
10. The Shah Alam writ was only served on the Appellant’s solicitors on 27.03.2002, although the solicitors had undertaken to accept service of the writ immediately after the Singapore Court of Appeal had ordered service of the writ on the Appellant on 15.05.2001. According to the Appellant’s solicitors, the Respondent’s solicitors had informed them that they did not have instructions to serve the Shah Alam writ. The Respondent’s Singapore solicitors had also replied that there was no necessity to
serve the Malaysian writ on the Appellant as yet. This was notwithstanding the Appellant’s Singapore solicitors having given notice that failure to serve the Malaysian High Court writ would prejudice the Appellant.
11. As regards the writ in the High Court at Kuala Lumpur, it was filed on 13.07.2001. Naturally, the writ expired on 12.02.2002. Two applications to extend the writ were made on 24.1.2002 and 26.6.2002. The orders for extension were made on 26.3.2002 and 26.7.2002 respectively. It must be noted that the first extension was only applied for after the expiry of the Kuala Lumpur writ.
12. I cite these facts in some detail to show the machiavellian attitude of the Respondent. For the purpose of this case, what is important is that the Shah Alam and the Kuala Lumpur writs had been renewed ex parte without any attempt having been made to serve them on the Appellant. This is not in dispute. In fact, the affidavit in support of the applications for renewals had clearly stated that the writs of summons were not served pending the outcome of the Singapore action. The Respondent referred to these writs as “protective writs” in order to avoid the limitation period from setting in.
13. I will now consider the two questions posed.
QUESTION NO.1:
“Whether the requirement of showing such efforts that
have been made to effect service of a writ under Order 6 5 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
ORDER 6 RULE 7 (1), (2) AND (2A) RHC
14. Now, let us look at the law on the effect of not complying with the requirements of O. 6 r. 7 (1), (2) and (2A) RHC. These rules read as follows:
Order 6: Writs of Summons: General Provisions Rule 7: Duration and renewal of writ (O. 6 r. 7)
(1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 6 months, beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.
(2) Subject to paragraph (2A), where efforts to serve a writ on a defendant have been unsuccessful, the Court may by order extend the validity of the writ twice (in Sabah and Sarawak thrice and in admiralty actions 5 times) , not exceeding 6 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order.
(2A) An application for renewal must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service.
(Emphasis mine)
15. Thereafter, r. 7 (2) RHC confers a discretionary power on the Court to extend the validity of the writ and such discretion is to be exercised subject to r. 7 (2A) RHC. There are three prerequisites under r. 7 (2A) RHC which an applicant for renewal of a writ must prove. They are that it must:
a) be made before the expiry of the writ; b) be made ex parte by summons; c) be supported by an affidavit identifying two salient
points which are: I. that efforts have been made to serve the
defendant within one month of the date of the
issue of the writ; and II. such efforts have been made subsequent
thereto to effect service.
A writ issued in the first instance is valid for only six months.
16. wording of O. 6 r. 7 (2) and r. 7 (2A) RHC do not detract from the Court in exercising its inherent jurisdiction to grant an extension of
time if there is a good reason for non-service as the rules are to be
The majority judgment of the Court of Appeal held that the
interpreted to ensure justice. The majority ruled that the words “must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service” in r. 7 (2A) were surplusage. In so doing, it relied on the decision of Megaw J in Heaven v. Road and Rail Wagon Ltd [1965] 2 All ER 409. In that case, Megaw J dealt with the pre 1964 Rules of the Supreme Court (“RSC”) O. 8 r. 1 and the post 1964 RSC O. 6 r.8 (2) of England. The earlier RSC contained the words “if satisfied that reasonable effort has been made to serve such defendant, or for other good reasons”. In the new RSC, the underlined words were removed from the provision. Megaw J read back into the new RSC O. 6 r. 8 (2) the words “or for other good reasons”. He said:
“I think that the omission was probably because the words omitted added nothing and subtracted nothing. They were surplusage.”
17. The learned Court of Appeal Judges in the majority judgment said:
“To allude to the words of Megaw J, the words, “if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons before an application of extension is filed”, are a surplusage. By that same token and reasoning, the need to show efforts having been made to serve the
writ on the Defendant (the Appellant here) in O. 6 r. 7 (2A) when read together with O. 1A of the RHC, must be surplusage.”
18. They concluded that filing the two writs (the Shah Alam writ and the Kuala Lumpur writ) as “protective writs” is a good reason for extension of the writ even though there were no attempts of serving the writs.
19. I do not agree with such a conclusion. The writ could have been served and a stay sought pending disposal of the Singapore writ. But, that is only one of the reasons why I do not agree with the conclusion of the majority judgment at the Court of Appeal.
20. I would rather follow the conclusions of the English Court of Appeal in Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 at 391 as well as in Vinos v. Marks & Spencer plc [2001] 3 All ER 784.
21. In Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387, Lord Goddard held that the issue of a writ becomes a nullity by reason of non-service within the prescribed time. At page 389 F, he said:
“If the writ had ceased to be in force, the position is the same as if it had never been issued.”
22. I therefore agree with the views of Skinner J in Mayban Finance Bhd v. Umas Sdn Bhd [2002] 4 MLJ 276 (see page 287-288) in following Battersby & Ors v Anglo-American Oil Co Ltd & Ors [1945] 1 KB 23 at page 32, where he cited what Lord Goddard had to say on the matter of the renewal of a writ :
“We conclude by saying that, even when an application for renewal of a writ is made within twelve months of the date of issue, the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a Plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on an application which is necessarily made ex parte. In every case, care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any case, it should only be granted where the court is satisfied that good reasons appear to excuse the delay in service, as indeed, is laid down in the order.”
Note that these views were based on the provisions existing then.
23. In the subsequent decision of the Court of Appeal in Vinos v. Marks & Spencer plc [2001] 3 All ER 784, May LJ, in discussing the new Civil Procedure Rules (“CPR”) r. 7.51 and r. 7.6(3)2 (a two member panel, the other being Peter Gibson LJ) said:
“The meaning of r. 7.6 (3) is plain. The Court has power to extend the time for serving the claim form after the period for its service has run out only if the
1 Rule 7.5 provides that subject to exception, a claim form must be served within 4 months after the date of issue.
2 Rule7.6: Extension of time for serving a claim form – r.7.6 (3) “If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the Court may make such an order only if – (a) the Court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in neither case, the claimant has acted promptly in making the application”. stipulated conditions are fulfilled. That means that the Court does not have power to do so otherwise. The discretionary power in the rules to extend time periods – r. 3.1(2)(a)3 – does not apply because of the introductory words. The general words of r. 3.104 cannot extend to enable the Court to do what r. 7.6 (3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time.
... Interpretation to achieve the overriding objective does not enable the Court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr. Vinos’ case is a deserving case, the rules must be interpreted to accommodate his particular case. ... Rule 3.105 concerns correcting errors which parties have made, but it does not by itself contribute to the interpretation of other explicit rules. If you then look up from the wording of the rules and at a broader horizon, 3 Rule 3.1: The Court’s General Powers Of Management – r.3.1 (2) “Except where these Rules provide otherwise, the Court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);”4 Ibid, para. 37 5 Ibid, para. 37
one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. ...
If you do, it is my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits.”
24. Peter GibsonLJ had this to say:
“The construction of the CPR, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the CPR, unlike their predecessors, spell out in Pt 1 the overriding objective of the new procedural code. The Court must seek to give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use on r 1.1 (2)6 of the word “seek” acknowledges that the Court can only do what is possible. The language of rule to be interpreted may be so clear and jussive that the Court may not be able to give effect to what it may otherwise consider to be the just way of dealing with the case, though in that context
6 Rule 1.1: The overriding objective - r. 1.1 (2) “Dealing with a case justly includes, so far as is practicable –(a) ensuring that the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate –(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party;(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
it should not be forgotten that the principal mischiefs which the CPR were intended to counter were excessive costs and delays justice to the Defendant and to the interests of other litigants may require that a claimant who ignores time limits prescribed by the rules forfeits the right to have his claim tried.”
25. Both judges in Vinos v. Marks & Spencer plc held that unless the condition set out in r. 7.6(3) had been complied with, the Court has no discretion to extend the validity of the claim. Rule 7.6 (3) of the English CPR uses the words “only if”, whilst our O.6 r.7 (2) and (2A) uses the word “must”.
26. Historically, the relevant provisions of our Rules of the High Court and the English Rules of the Supreme Court were identical. Let us examine them.
27. In order to understand the rationale behind the wording of O. 6 r. 7(2) and (2A), it will be useful to look at the same rule prior to the amendment introduced in 2000. It was O.8 r.1 of the then Rules of the Supreme Court 1957. This rule is the predecessor of the present O. 6 r. 7 and it expressly provides for certain prerequisites to be satisfied before a writ can be renewed. It is that the Court must be “satisfied that reasonable efforts had been made to serve such dependant, or for other good reasons”.
28. In 1980, the Rules of the Supreme Court was renamed as the Rules of the High Court 1980 and O. 8 r.1 was numbered as O. 6 r. 7(2). This rule did not state the prerequisites that must be satisfied before a writ could be renewed. This O. 6 r. 7(2) would appear to give a totally wide discretion to the Court in the renewal of a writ.
29. These two provisions were correspondingly identical to the English 1957 RSC and the 1964 RSC. It is in respect of these two provisions that Megaw J held in Heaven v. Road and Rail Wagon Ltd that the words “for good reasons” must be read back into the 1964 RSC although those words had been omitted. This is a sensible interpretation as the Court cannot be obliged to renew a writ automatically without any good reason. As was said by Lord Goddard, care should be taken to ensure that the renewal will not prejudice any right of defence that may be available to the defendant. Clearly, the withholding of proceedings while some other case is being tried or to await the result of a future development cannot constitute a good reason.
30. Our Rules Committee took into consideration the abuse of filing a writ by a Plaintiff and not doing anything about it. Hence, a new and improved O. 6 r. 7 was introduced. This is consistent with the new CPR in England.
31. In my opinion the object of the new O.6 r. 7 was to make it really tight as to when a writ can be renewed. The word “must” appearing in O.6 r.7 (2A) is not usually used in Malaysian legislations. Normally the word used is “shall”. So in this case, when the word “must” is used, the intention is to fully ensure that it is complied with and no discretion is to be given as far as the compliance with the prerequisites is concerned. “Must” is a very strong word; in my opinion it is stronger than the word “shall”.
32. In Ting Hwa Yiew v. Ace Commercial Enterprise Sdn Bhd [1996] 2 MLJ, Abdul Kadir Sulaiman J (as he then was) considered the word “must” in the context of O.32 r.13 (2) which states inter alia:
“(2) Save as otherwise provided in these rules –
An affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application...”.
33. In his judgment he stated:
“O. 32 r.13 (2) (a) use an imperative word “must”. In its ordinary meaning it is a word of absolute obligation. Therefore for the failure of the Plaintiff to have the affidavit in support served upon the Defendant within the time limit allowed by the rule, I would agree with the submission of the learned counsel for the Defendant that it renders the said affidavit inadmissible. O.2 r.1 of the RHC would not be of any help to the Plaintiff as no reason was put forward by the Plaintiff for the delay in the service of the said affidavit.”
34. (See also Shell Chemicals UK Ltd & Another v. Vinamul Ltd (formerly Vinyl Products Ltd) The Times 7 March 1991, 135 SJ 412 (Transcript Association) and Mayhew v. The Keepers and Governors of the Possessions Revenues and Goods of the Free Grammar School of John Lyon [1991] 2 EGLR 89. Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 was followed by Chan Min Tat FJ in Llyod Triestino Societa v. Chocolate Products (M) Sdn Bhd [1978] 2 MLJ 27.)
35. Even if the word “must” is to be construed as having the same effect as “shall”, nevertheless it still make compliance with the prerequisites mandatory.
36. The words “Subject to paragraph (2A)” in the impugned O. 6 r. 7(2) further strengthens the argument that before the Court could exercise its discretion to renew a writ, paragraph (2A) must be satisfied. It must be further noted that in paragraph (2A) the applicant must show inter alia, that efforts had been made to serve the defendant within one month of the date of the issue of the writ. This all the more supports the argument that the applicant must use all due diligence to effect service at the earliest possible time.
37. The argument by the claimant in Vinos v. Marks & Spencer plc was that the Court had power to grant an extension of time to serve the writ under CPR 3.10(a). CPR 3.10 (a) reads as follows:
Rule 3.10: General power of the court to rectify matters where there has been an error of procedure-
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.”
38. error of procedure, such as failure to comply with the rules, the Court could make an order to remedy the error. It was contended that CPR 3.10 contained a general power to rectify matters where there had been an error of procedure. CPR 3.10 (a) seems to be similar to our O.1A RHC, which will be discussed later.
39. I strongly believe that O.6 r.7 (2A) RHC was introduced to prevent abuse by plaintiffs in filing writs and sleeping on them without making efforts to serve them. This practice of inactivity is something which Courts loathe. It is against the administration of justice. It creates a backlog and results in a false number of pending cases. In my opinion, Courts should take serious a view of such cases. If not, they will continue to remain in the list of outstanding cases. As such, O.6 r. 7 (2A) RHC must be strictly enforced as required by the rule.
40. When Plaintiffs apply to extend the validity of writs, Courts
should examine closely the affidavits filed in support of
applications for extensions. Before granting an extension, Courts
CPR 3.10(a) which provides that where there had been an
must be satisfied that serious efforts had been made to serve. A simple and plain statement that efforts had been made to serve cannot be a sufficient ground. The affidavits must provide detailed facts as to when, where and how attempts to serve were made. Otherwise O.6 r.7 (2A) RHC will become a dead letter. The object of the rule will be defeated.
41. By serving the writ at the earliest possible time, the defendant would be given the earliest possible notice and opportunity to prepare his defence. It would be to his disadvantage if there is delay. Such delay may result in evidence in his favour getting misplaced or destroyed. Witnesses become difficult to trace and memories will lapse.
42. Having said that, I am fully aware of Defendants who avoid service. There must be evidence to support this claim. If serious efforts are made, I am sure Defendants are traceable. In appropriate cases, substituted service may be ordered if they are not traceable.
43. Accordingly, I have no hesitation in answering the first question posed in the positive, that is to say, the requirements of O. 6 r. 7 (2A) are mandatory prerequisites. This means that the applications for extension of time for service of the writs made by the Respondents are defective as they do not show compliance with the RHC.
QUESTION NO. 2:
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
44. Now to O. 1A RHC. This Order relates to the administering of Rules of the High Court 1980. In order to invoke O. 1A RHC, parties must apply the object of the Rules first. O. 1A RHC reads as follows:
Order 1A: Court or Judge shall have regard to justice
In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.
That order came into force on 17th May 2002 vide P.U.(A)
45. 197/2002, well after the first renewal of both the Shah Alam and Kuala Lumpur writs.
46. The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O. 1A RHC is for the Court or Judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. O.1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O.1A RHC does not apply as the Respondents had intentionally disregarded O.6 r. 7 (2A) RHC for their own reasons.
47. It is now necessary to determine the meaning of the phrase “... technical non-compliance ... “ in Order 1A RHC as it will assist in identifying the breaches contemplated by the rule. Useful guidance is provided by the meaning of the phrase “technical defect” considered in Gangadhar Dandawate v Premechand Kashyap7 where AH Khan J said at p 184,
“It is not always easy to define what the expression ‘technical defect’ means. A technical defect in law is one which may come within the four corners of it, but it does not affect the merits of the case. It is a mistake which does not go to the core of the matter. Their Lordships of the Supreme Court in Pratap Singh v Shrikrishna Gupta, AIR 1956 SC 140 (C), have observed:
“that the tendency of the Courts towards technicality is to be deprecated, that it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter, and, exercising a nice discrimination, sort out one class from the other along
7 AIR 1958 MP 182
broad based, common sense lines. This principle was enunciated by Viscound Maugham in Punjab Co- operative Bank Ltd., Amritsar v Income-tax Officer, Lahore, AIR 1940 PC 230 (D).”
48. In the context of the Rules of the High Court 1980 the phrase “... technical non-compliance...” is thus a reference to non- compliance with a rule which is not fundamental or mandatory in nature.
49. The Malaysian Court Practice 2007 Desk Edition lists at page 9, a failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC.
50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. For example, can failure to enter appearance or file defence within the specified period be considered as an irregularity? Of course it cannot be. A party who is late in filing the relevant papers must obtain an order from the Court to extend the time, if such extension is required and is permitted by the Rules. Therefore, the answer to question two is in the negative.
51. On the issue of conditional appearance, I am satisfied that the Appellant has not submitted himself to the jurisdiction of the court or waived his right to conditional appearance merely because he had filed the application to strike out the writ and had applied to have his case transferred to the High Court at Johor Bharu. This the Appellant did in accordance with the terms allowed by the Court when he sought and obtained the order to enter conditional appearance. I need not say more on this issue.
52. These appeals are thus allowed with costs. Deposit to be refunded to the appellant.
53. My learned brothers Arifin Zakaria, CJM and Augustine Paul, FCJ have seen this judgment in draft. I have incorporated their comments for which I am grateful. They have expressed their concurrences to the final draft.
Dated : 18 June 2009
ZAKI TUN AZMI
Chief Justice Malaysia
RAYUAN SIVIL NO. 02 – 43 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
LAWAN DATUK CAPTAIN HAMZAH BIN MOHD NOOR ... RESPONDEN
DIDENGAR BERSAMA
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
RAYUAN SIVIL NO. 02 – 42 – 2008 (W)
ANTARA
DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ TUNKU MAHKOTA JOHOR ... PERAYU
ANDRE RAVINDRAN S. ARUL ... RESPONDEN
CORAM: ZAKI TUN AZMI, CJ ARIFIN ZAKARIA, CJM AUGUSTINE PAUL, FCJ
INTRODUCTION
JUDGMENT OF ZAKI TUN AZMI, CJ
1. These appeals concern the interpretation and application of Order 6 Rule 7(2) and 7(2A) of the Rules of the High Court 1980 (“RHC”). Related to that is the manner in which Order 1A RHC is to be applied.
2. The two appeals before us relating to the said issues are Rayuan Sivil No. 02 – 42 – 2008 (W) (hereinafter referred to as Appeal A) and Rayuan Sivil No. 02 – 43 – 2008 (W) (hereinafter referred to as Appeal B). The parties rely on submissions and bundle of authorities submitted in regard to Appeal A. The issues in both appeals arose because both writs from which the appeals originated were extended even though no attempts were made to serve either of them on the Appellant. The validity and effect of these renewals are what is ought to be impugned.
3. The following question was therefore posed to us:
“Whether the requirement of showing such efforts that have been made to effect service of a writ under Order 6 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
4. During the course of the hearing, we allowed a consequential question to be posed and it is as follows:
FACTS
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
5. The facts are as follows:
6. The Respondent filed a writ of summons at the Singapore High Court (“the Singapore writ / action”) on 29.09.2000. Simultaneously with that, on the same date, the Respondent also filed another writ containing almost identical pleadings and cause of action at the High Court at Shah Alam (“the Shah Alam writ / action”). A third writ was filed not much later i.e. on 13.07.2001 at the High Court in Kuala Lumpur (“the Kuala Lumpur writ / action”), again, containing similar pleadings and cause of action. The Singapore writ was served on the Appellant on 22.02.2001. On the other hand, the Shah Alam and the Kuala Lumpur writs were kept away from the knowledge of the Appellant. The Appellant was totally unaware of these two other actions.
7. The Singapore action proceeded with the hearing before the High Court Judge who referred it to his Senior Assistant Registrar for case management. It was only before the Senior Assistant Registrar that the Respondent, in answer to a query raised by the Senior Assistant Registrar, disclosed that the Respondent had filed two other actions in Malaysia. The Singapore Senior Assistant Registrar directed the Respondent to withdraw the Singapore writ and to serve the Shah Alam writ within six weeks of that direction which was made on 15.05.2001.
8. The Respondent had, of course without the knowledge of the Appellant, sought and obtained orders from the Senior Assistant Registrar of the High Court at Shah Alam to renew the validity of the writs of summons before their expiry. The Senior Assistant Registrar of the High Court at Shah Alam granted a renewal of the Shah Alam writ pursuant to the application filed on 20.03.2001. Subsequently, pursuant to another application filed on 04.09.2001, a second extension was granted on 06.12.2001. In other words, two extensions were obtained ex parte.
9. In the meanwhile, the Respondent appealed to the Judge in Chambers (in Singapore) against the Senior Assistant Registrar’s orders and subsequently to the Singapore Court of Appeal. The Singapore High Court as well as the Singapore Court of Appeal dismissed the appeal and the stay order by the Singapore Senior Assistant Registrar was affirmed. The decision of the Singapore Court of Appeal was made on 19.02.2002. It must be noted that by the time this order was made, about 16 months had lapsed from the filing of the Shah Alam action.
10. The Shah Alam writ was only served on the Appellant’s solicitors on 27.03.2002, although the solicitors had undertaken to accept service of the writ immediately after the Singapore Court of Appeal had ordered service of the writ on the Appellant on 15.05.2001. According to the Appellant’s solicitors, the Respondent’s solicitors had informed them that they did not have instructions to serve the Shah Alam writ. The Respondent’s Singapore solicitors had also replied that there was no necessity to
serve the Malaysian writ on the Appellant as yet. This was notwithstanding the Appellant’s Singapore solicitors having given notice that failure to serve the Malaysian High Court writ would prejudice the Appellant.
11. As regards the writ in the High Court at Kuala Lumpur, it was filed on 13.07.2001. Naturally, the writ expired on 12.02.2002. Two applications to extend the writ were made on 24.1.2002 and 26.6.2002. The orders for extension were made on 26.3.2002 and 26.7.2002 respectively. It must be noted that the first extension was only applied for after the expiry of the Kuala Lumpur writ.
12. I cite these facts in some detail to show the machiavellian attitude of the Respondent. For the purpose of this case, what is important is that the Shah Alam and the Kuala Lumpur writs had been renewed ex parte without any attempt having been made to serve them on the Appellant. This is not in dispute. In fact, the affidavit in support of the applications for renewals had clearly stated that the writs of summons were not served pending the outcome of the Singapore action. The Respondent referred to these writs as “protective writs” in order to avoid the limitation period from setting in.
13. I will now consider the two questions posed.
QUESTION NO.1:
“Whether the requirement of showing such efforts that
have been made to effect service of a writ under Order 6 5 rule 7(2A) RHC is a mandatory prerequisite to the exercise of discretion under O.6 r.7 (2) RHC.”
ORDER 6 RULE 7 (1), (2) AND (2A) RHC
14. Now, let us look at the law on the effect of not complying with the requirements of O. 6 r. 7 (1), (2) and (2A) RHC. These rules read as follows:
Order 6: Writs of Summons: General Provisions Rule 7: Duration and renewal of writ (O. 6 r. 7)
(1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 6 months, beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.
(2) Subject to paragraph (2A), where efforts to serve a writ on a defendant have been unsuccessful, the Court may by order extend the validity of the writ twice (in Sabah and Sarawak thrice and in admiralty actions 5 times) , not exceeding 6 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order.
(2A) An application for renewal must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service.
(Emphasis mine)
15. Thereafter, r. 7 (2) RHC confers a discretionary power on the Court to extend the validity of the writ and such discretion is to be exercised subject to r. 7 (2A) RHC. There are three prerequisites under r. 7 (2A) RHC which an applicant for renewal of a writ must prove. They are that it must:
a) be made before the expiry of the writ; b) be made ex parte by summons; c) be supported by an affidavit identifying two salient
points which are: I. that efforts have been made to serve the
defendant within one month of the date of the
issue of the writ; and II. such efforts have been made subsequent
thereto to effect service.
A writ issued in the first instance is valid for only six months.
16. wording of O. 6 r. 7 (2) and r. 7 (2A) RHC do not detract from the Court in exercising its inherent jurisdiction to grant an extension of
time if there is a good reason for non-service as the rules are to be
The majority judgment of the Court of Appeal held that the
interpreted to ensure justice. The majority ruled that the words “must be made before the expiry of the writ, ex parte by summons, supported by affidavit showing that efforts have been made to serve the defendant within one month of the date of the issue of the writ and that efforts have been made subsequent thereto to effect service” in r. 7 (2A) were surplusage. In so doing, it relied on the decision of Megaw J in Heaven v. Road and Rail Wagon Ltd [1965] 2 All ER 409. In that case, Megaw J dealt with the pre 1964 Rules of the Supreme Court (“RSC”) O. 8 r. 1 and the post 1964 RSC O. 6 r.8 (2) of England. The earlier RSC contained the words “if satisfied that reasonable effort has been made to serve such defendant, or for other good reasons”. In the new RSC, the underlined words were removed from the provision. Megaw J read back into the new RSC O. 6 r. 8 (2) the words “or for other good reasons”. He said:
“I think that the omission was probably because the words omitted added nothing and subtracted nothing. They were surplusage.”
17. The learned Court of Appeal Judges in the majority judgment said:
“To allude to the words of Megaw J, the words, “if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons before an application of extension is filed”, are a surplusage. By that same token and reasoning, the need to show efforts having been made to serve the
writ on the Defendant (the Appellant here) in O. 6 r. 7 (2A) when read together with O. 1A of the RHC, must be surplusage.”
18. They concluded that filing the two writs (the Shah Alam writ and the Kuala Lumpur writ) as “protective writs” is a good reason for extension of the writ even though there were no attempts of serving the writs.
19. I do not agree with such a conclusion. The writ could have been served and a stay sought pending disposal of the Singapore writ. But, that is only one of the reasons why I do not agree with the conclusion of the majority judgment at the Court of Appeal.
20. I would rather follow the conclusions of the English Court of Appeal in Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 at 391 as well as in Vinos v. Marks & Spencer plc [2001] 3 All ER 784.
21. In Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387, Lord Goddard held that the issue of a writ becomes a nullity by reason of non-service within the prescribed time. At page 389 F, he said:
“If the writ had ceased to be in force, the position is the same as if it had never been issued.”
22. I therefore agree with the views of Skinner J in Mayban Finance Bhd v. Umas Sdn Bhd [2002] 4 MLJ 276 (see page 287-288) in following Battersby & Ors v Anglo-American Oil Co Ltd & Ors [1945] 1 KB 23 at page 32, where he cited what Lord Goddard had to say on the matter of the renewal of a writ :
“We conclude by saying that, even when an application for renewal of a writ is made within twelve months of the date of issue, the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a Plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on an application which is necessarily made ex parte. In every case, care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any case, it should only be granted where the court is satisfied that good reasons appear to excuse the delay in service, as indeed, is laid down in the order.”
Note that these views were based on the provisions existing then.
23. In the subsequent decision of the Court of Appeal in Vinos v. Marks & Spencer plc [2001] 3 All ER 784, May LJ, in discussing the new Civil Procedure Rules (“CPR”) r. 7.51 and r. 7.6(3)2 (a two member panel, the other being Peter Gibson LJ) said:
“The meaning of r. 7.6 (3) is plain. The Court has power to extend the time for serving the claim form after the period for its service has run out only if the
1 Rule 7.5 provides that subject to exception, a claim form must be served within 4 months after the date of issue.
2 Rule7.6: Extension of time for serving a claim form – r.7.6 (3) “If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the Court may make such an order only if – (a) the Court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in neither case, the claimant has acted promptly in making the application”. stipulated conditions are fulfilled. That means that the Court does not have power to do so otherwise. The discretionary power in the rules to extend time periods – r. 3.1(2)(a)3 – does not apply because of the introductory words. The general words of r. 3.104 cannot extend to enable the Court to do what r. 7.6 (3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time.
... Interpretation to achieve the overriding objective does not enable the Court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr. Vinos’ case is a deserving case, the rules must be interpreted to accommodate his particular case. ... Rule 3.105 concerns correcting errors which parties have made, but it does not by itself contribute to the interpretation of other explicit rules. If you then look up from the wording of the rules and at a broader horizon, 3 Rule 3.1: The Court’s General Powers Of Management – r.3.1 (2) “Except where these Rules provide otherwise, the Court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);”4 Ibid, para. 37 5 Ibid, para. 37
one of the main aims of the CPR and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. ...
If you do, it is my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits.”
24. Peter GibsonLJ had this to say:
“The construction of the CPR, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the CPR, unlike their predecessors, spell out in Pt 1 the overriding objective of the new procedural code. The Court must seek to give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use on r 1.1 (2)6 of the word “seek” acknowledges that the Court can only do what is possible. The language of rule to be interpreted may be so clear and jussive that the Court may not be able to give effect to what it may otherwise consider to be the just way of dealing with the case, though in that context
6 Rule 1.1: The overriding objective - r. 1.1 (2) “Dealing with a case justly includes, so far as is practicable –(a) ensuring that the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate –(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party;(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
it should not be forgotten that the principal mischiefs which the CPR were intended to counter were excessive costs and delays justice to the Defendant and to the interests of other litigants may require that a claimant who ignores time limits prescribed by the rules forfeits the right to have his claim tried.”
25. Both judges in Vinos v. Marks & Spencer plc held that unless the condition set out in r. 7.6(3) had been complied with, the Court has no discretion to extend the validity of the claim. Rule 7.6 (3) of the English CPR uses the words “only if”, whilst our O.6 r.7 (2) and (2A) uses the word “must”.
26. Historically, the relevant provisions of our Rules of the High Court and the English Rules of the Supreme Court were identical. Let us examine them.
27. In order to understand the rationale behind the wording of O. 6 r. 7(2) and (2A), it will be useful to look at the same rule prior to the amendment introduced in 2000. It was O.8 r.1 of the then Rules of the Supreme Court 1957. This rule is the predecessor of the present O. 6 r. 7 and it expressly provides for certain prerequisites to be satisfied before a writ can be renewed. It is that the Court must be “satisfied that reasonable efforts had been made to serve such dependant, or for other good reasons”.
28. In 1980, the Rules of the Supreme Court was renamed as the Rules of the High Court 1980 and O. 8 r.1 was numbered as O. 6 r. 7(2). This rule did not state the prerequisites that must be satisfied before a writ could be renewed. This O. 6 r. 7(2) would appear to give a totally wide discretion to the Court in the renewal of a writ.
29. These two provisions were correspondingly identical to the English 1957 RSC and the 1964 RSC. It is in respect of these two provisions that Megaw J held in Heaven v. Road and Rail Wagon Ltd that the words “for good reasons” must be read back into the 1964 RSC although those words had been omitted. This is a sensible interpretation as the Court cannot be obliged to renew a writ automatically without any good reason. As was said by Lord Goddard, care should be taken to ensure that the renewal will not prejudice any right of defence that may be available to the defendant. Clearly, the withholding of proceedings while some other case is being tried or to await the result of a future development cannot constitute a good reason.
30. Our Rules Committee took into consideration the abuse of filing a writ by a Plaintiff and not doing anything about it. Hence, a new and improved O. 6 r. 7 was introduced. This is consistent with the new CPR in England.
31. In my opinion the object of the new O.6 r. 7 was to make it really tight as to when a writ can be renewed. The word “must” appearing in O.6 r.7 (2A) is not usually used in Malaysian legislations. Normally the word used is “shall”. So in this case, when the word “must” is used, the intention is to fully ensure that it is complied with and no discretion is to be given as far as the compliance with the prerequisites is concerned. “Must” is a very strong word; in my opinion it is stronger than the word “shall”.
32. In Ting Hwa Yiew v. Ace Commercial Enterprise Sdn Bhd [1996] 2 MLJ, Abdul Kadir Sulaiman J (as he then was) considered the word “must” in the context of O.32 r.13 (2) which states inter alia:
“(2) Save as otherwise provided in these rules –
An affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application...”.
33. In his judgment he stated:
“O. 32 r.13 (2) (a) use an imperative word “must”. In its ordinary meaning it is a word of absolute obligation. Therefore for the failure of the Plaintiff to have the affidavit in support served upon the Defendant within the time limit allowed by the rule, I would agree with the submission of the learned counsel for the Defendant that it renders the said affidavit inadmissible. O.2 r.1 of the RHC would not be of any help to the Plaintiff as no reason was put forward by the Plaintiff for the delay in the service of the said affidavit.”
34. (See also Shell Chemicals UK Ltd & Another v. Vinamul Ltd (formerly Vinyl Products Ltd) The Times 7 March 1991, 135 SJ 412 (Transcript Association) and Mayhew v. The Keepers and Governors of the Possessions Revenues and Goods of the Free Grammar School of John Lyon [1991] 2 EGLR 89. Battersby and Others v. Anglo-American Oil Company Ltd. and Others [1944] 2 All ER 387 was followed by Chan Min Tat FJ in Llyod Triestino Societa v. Chocolate Products (M) Sdn Bhd [1978] 2 MLJ 27.)
35. Even if the word “must” is to be construed as having the same effect as “shall”, nevertheless it still make compliance with the prerequisites mandatory.
36. The words “Subject to paragraph (2A)” in the impugned O. 6 r. 7(2) further strengthens the argument that before the Court could exercise its discretion to renew a writ, paragraph (2A) must be satisfied. It must be further noted that in paragraph (2A) the applicant must show inter alia, that efforts had been made to serve the defendant within one month of the date of the issue of the writ. This all the more supports the argument that the applicant must use all due diligence to effect service at the earliest possible time.
37. The argument by the claimant in Vinos v. Marks & Spencer plc was that the Court had power to grant an extension of time to serve the writ under CPR 3.10(a). CPR 3.10 (a) reads as follows:
Rule 3.10: General power of the court to rectify matters where there has been an error of procedure-
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.”
38. error of procedure, such as failure to comply with the rules, the Court could make an order to remedy the error. It was contended that CPR 3.10 contained a general power to rectify matters where there had been an error of procedure. CPR 3.10 (a) seems to be similar to our O.1A RHC, which will be discussed later.
39. I strongly believe that O.6 r.7 (2A) RHC was introduced to prevent abuse by plaintiffs in filing writs and sleeping on them without making efforts to serve them. This practice of inactivity is something which Courts loathe. It is against the administration of justice. It creates a backlog and results in a false number of pending cases. In my opinion, Courts should take serious a view of such cases. If not, they will continue to remain in the list of outstanding cases. As such, O.6 r. 7 (2A) RHC must be strictly enforced as required by the rule.
40. When Plaintiffs apply to extend the validity of writs, Courts
should examine closely the affidavits filed in support of
applications for extensions. Before granting an extension, Courts
CPR 3.10(a) which provides that where there had been an
must be satisfied that serious efforts had been made to serve. A simple and plain statement that efforts had been made to serve cannot be a sufficient ground. The affidavits must provide detailed facts as to when, where and how attempts to serve were made. Otherwise O.6 r.7 (2A) RHC will become a dead letter. The object of the rule will be defeated.
41. By serving the writ at the earliest possible time, the defendant would be given the earliest possible notice and opportunity to prepare his defence. It would be to his disadvantage if there is delay. Such delay may result in evidence in his favour getting misplaced or destroyed. Witnesses become difficult to trace and memories will lapse.
42. Having said that, I am fully aware of Defendants who avoid service. There must be evidence to support this claim. If serious efforts are made, I am sure Defendants are traceable. In appropriate cases, substituted service may be ordered if they are not traceable.
43. Accordingly, I have no hesitation in answering the first question posed in the positive, that is to say, the requirements of O. 6 r. 7 (2A) are mandatory prerequisites. This means that the applications for extension of time for service of the writs made by the Respondents are defective as they do not show compliance with the RHC.
QUESTION NO. 2:
“In the event of such a failure to comply with the prerequisites of O.6 r.7 (2A), whether O.1A can be invoked in order to cure that failure.”
44. Now to O. 1A RHC. This Order relates to the administering of Rules of the High Court 1980. In order to invoke O. 1A RHC, parties must apply the object of the Rules first. O. 1A RHC reads as follows:
Order 1A: Court or Judge shall have regard to justice
In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.
That order came into force on 17th May 2002 vide P.U.(A)
45. 197/2002, well after the first renewal of both the Shah Alam and Kuala Lumpur writs.
46. The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O. 1A RHC is for the Court or Judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. O.1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O.1A RHC does not apply as the Respondents had intentionally disregarded O.6 r. 7 (2A) RHC for their own reasons.
47. It is now necessary to determine the meaning of the phrase “... technical non-compliance ... “ in Order 1A RHC as it will assist in identifying the breaches contemplated by the rule. Useful guidance is provided by the meaning of the phrase “technical defect” considered in Gangadhar Dandawate v Premechand Kashyap7 where AH Khan J said at p 184,
“It is not always easy to define what the expression ‘technical defect’ means. A technical defect in law is one which may come within the four corners of it, but it does not affect the merits of the case. It is a mistake which does not go to the core of the matter. Their Lordships of the Supreme Court in Pratap Singh v Shrikrishna Gupta, AIR 1956 SC 140 (C), have observed:
“that the tendency of the Courts towards technicality is to be deprecated, that it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter, and, exercising a nice discrimination, sort out one class from the other along
7 AIR 1958 MP 182
broad based, common sense lines. This principle was enunciated by Viscound Maugham in Punjab Co- operative Bank Ltd., Amritsar v Income-tax Officer, Lahore, AIR 1940 PC 230 (D).”
48. In the context of the Rules of the High Court 1980 the phrase “... technical non-compliance...” is thus a reference to non- compliance with a rule which is not fundamental or mandatory in nature.
49. The Malaysian Court Practice 2007 Desk Edition lists at page 9, a failure to renew a writ for service as a breach of a fundamental kind. The answer to the first question also shows that O.6 r 7(2)(2A) RHC which deals with the service of a writ is mandatory. It follows that O.1A RHC cannot be invoked to cure the failure to comply with the prerequisites O.6 r 7 (2A) RHC.
50. As I had mentioned in Court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. For example, can failure to enter appearance or file defence within the specified period be considered as an irregularity? Of course it cannot be. A party who is late in filing the relevant papers must obtain an order from the Court to extend the time, if such extension is required and is permitted by the Rules. Therefore, the answer to question two is in the negative.
51. On the issue of conditional appearance, I am satisfied that the Appellant has not submitted himself to the jurisdiction of the court or waived his right to conditional appearance merely because he had filed the application to strike out the writ and had applied to have his case transferred to the High Court at Johor Bharu. This the Appellant did in accordance with the terms allowed by the Court when he sought and obtained the order to enter conditional appearance. I need not say more on this issue.
52. These appeals are thus allowed with costs. Deposit to be refunded to the appellant.
53. My learned brothers Arifin Zakaria, CJM and Augustine Paul, FCJ have seen this judgment in draft. I have incorporated their comments for which I am grateful. They have expressed their concurrences to the final draft.
Dated : 18 June 2009
ZAKI TUN AZMI
Chief Justice Malaysia
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