Court affirmed that the discretion of a taxing officer is final unless there is an error of principle; the SAR's decision in an election petition case was upheld despite requests for comparative assessments.

[1] By this application to the Judge in Chambers made under O 59 r 36 of the Rules of the High 1980, the petitioner seeks an order of this Court to review the taxation of the learned Senior Assistant Registrar (SAR) in respect of the award to the 2nd respondent for "getting up" ie item 93 of the Bill of Cost dated 17 October 2011 (encl 146). The award that the SAR made for that item on the review was RM150,000.00. The SAR has since issued his certificate and given the reasons for his decision.

The Law

[2] I believe the law is well-settled to the point of being trite. I need only to refer to the decision of United Malayan Banking Corporation Bhd v. Ernest Cheong Yong Yin , [2008] 3 MLJ 1 Nik Hashim FCJ explained at pp 336-337:

The judge should not interfere with the taxing registrar's decision unless there is an error of principle or some other material error (Diversey (Far East) Pte Ltd v. Chai Chung Ching Chester & Ors (No 2) [1993] 1 SLR 542; Chan Kok Choon JP v. MBF Finance Bhd , [2001] 1 MLJ 5 ) or the quantum allowed is obviously wrong ( Starlite Ceramic Industry Ltd v. Hiap Huat Pottery ; ) or the registrar has exercised his discretion capriciously or mischievously: Mc Corbett v. Ipoh Tin Dredging Ltd ; [1936] 1 MLJ 222 at p 224; see also Malaysian High Court Practice, 2001 Desk Edn 1 p 224. Generally speaking, the discretion of the registrar on taxation is final (see judgment of Sir John Leach, MR in Alsop v. Oxford (Lord) [1833] 1 My & K 564, which was quoted with approval by Abdul Malek Ahmad FCJ (as he then was) in Gooi Hock Seng v. Chuah Guat Khim ; [2001] 1 CLJ 583 ; [2000] 3 AMR 3683 ; see also Lloyds Bank plc v. Ang Cheng Ho Quarry & Ors; ; where Chong Siew Fai J (as he then was) held that generally speaking the discretion of the taxing officer on quantum will not be interfered with).

Case For The Applicant/Petitioner

[3] The principle complaint of the petitioner against the grounds of decision of the learned SAR is for an alleged failure to make comparisons with the decision of Kho Whai Phiaw v. Chong Chieng Jen , [2009] 4 MLJ 103 . That case involves a similar Election Petition filed after the 12th General Election in 2008. After taxation, the SAR had awarded the sum of RM372,639.29 for getting up. However, the award was for the cost of 2 counsels and that would translate to RM186,319.65 for 1 counsel. Learned counsel argues that as both cases emanate from the Election Court in Sarawak, Kho Whai Phiaw, supra, would be the best comparison and gauge and is a "relevant circumstance". The petitioner had drawn the learned SAR's attention to that decision for comparison on the duration of trial, issues raised and the skill and labour expended by counsel, and cost awarded. By ignoring that decision, the learned SAR had made a material error.

Findings Of The Court

[4] My immediate comment on the contentions of the petitioner is that going by the cost of RM186,319.65 per counsel, as appeared to be the case in Kho Whai Phiaw, supra, the award of RM150,000.00 by the learned SAR in the present case does not seem to be unreasonable. In fact if one were to weigh in those factors highlighted by learned counsel like the duration of trial, issues raised and the time and labour expended by counsels, I would have thought that the RM150,000.00 awarded as cost of 1 counsel in our present case, which is a reduction by RM36,319.65, is not wide off the mark. In any case, I do not discern in the numerous cases of high authority referred to above that the failure of the Registrar to refer to a decision of another taxing officer of co-ordinate jurisdiction would constitute an error of principle or a material error. Unlike a decision of the High Court or the higher tiers which is binding on