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2013 MarsdenLR 1588
HIGH COURT MALAYA KUALA LUMPUR
GOH MARY – Appellant
Versus
PUNITHAVATHI @ PUSHPAMBIGAI PONNIAH & ORS – Respondent
[Civil Suit No: S2-22-565-2000]
A judge reviewing a taxation matter cannot disrupt a registrar’s award unless it stemmed from a wrong principle or was obviously erroneous, emphasizing the settled nature of law governing consent judgments.
Headnote:(A) Court Rules - Order 59 Rule 36(1) of the Rules of High Court 1980 - Interlocutory application - Getting up fees awarded to the third to seventh defendants reduced from RM40,000.00 to RM8,000.00 as the application did not involve novel issues. (Paras 10, 14)
(B) Taxation of Costs - A judge may only interfere with the registrar’s discretion on quantum if it was exercised based on a wrong principle or if the quantum is obviously wrong. (Paras 10, 11)
Facts of the case:
The plaintiff initiated an action to discharge the first and second defendants as executors of her late husband’s estate, resulting in a consent judgment which was later reinstated after attempts to set it aside. (Paras 2-4)
Findings of Court:
The initial RM40,000.00 award was excessive as the application involved settled legal principles, leading to a reduction to RM8,000.00. (Paras 14, 15)
Issues: The main issue was whether the Registrar's award for getting up fees was excessive and lacked justification. (Paras 10-12)
Ratio Decidendi: The court held that interferences with the registrar’s discretion should only occur where errors in principle or significant discrepancies in quantum exist, emphasizing the settled nature of the law governing consent judgment applications. (Paras 10-14)
Result: The award was reduced to RM8,000.00, and no costs were ordered.
| Table of Content |
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| 1. overview of the case and factual background. (Para 1) |
| 2. overview of the background facts of the case. (Para 2 , 3 , 4 , 5) |
[1] This was an application by the first defendant pursuant to O 59 r 36(1) of the Rules of High 1980, for an order to review the amount of RM40,000.00 allowed by the learned Registrar in favour of the third to seventh defendants as getting up fees. The getting up fees was awarded in respect of an interlocutory application made by the first defendant to set aside a consent judgment.
Background Facts
[2] In the year 2000, the plaintiff filed an action against the first and second defendants and six others for an order, inter alia, to discharge the first and second defendant as executors and trustees of her late husband's estate. Her husband had passed away on 21 February 1994. The remaining six defendants, namely the third to eighth defendants, were the children of the plaintiff. The children were cited as defendants as they were beneficiaries under the will of the her late husband and interested in the early distribution of the estate.
[3] On 25 August 2004, the action was settled and a consent judgment was recorded in open Court in the presence of all parties including counsel for the first defendant. By the terms of the consent judgment the first and second defendants agreed, inter alia, to discharge themselves as the executors and trustees of the estate and it was further agreed that their remuneration would be paid by the estate.
[4] Some months later, the first defendant made an application to set aside the consent judgment of 25 August 2004. The application was allowed by the Court on 3 May 2005, but on appeal, the Court of Appeal reinstated the consent judgment with liberty to the first defendant make a fresh application before a different judge.
[5] On 6 October 2005, the first defendant made a fresh application by way of summons in chambers to set aside the consent judgment. This application was dismissed with costs in favour of the third to the seventh defendants on 13 November 2006 by YA Dato' Wan Adnan Bin Muhammad.
