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2011 MarsdenLR 2292
HIGH COURT MALAYA, KUALA LUMPUR
RAJA SINGAM VELU – Appellant
Versus
AFFIN-ACF FINANCE BERHAD & ORS – Respondent
[Civil Suit No: S-21-295-2005]
The court held that the term 'must' in taxation rules is directory, allowing for flexible compliance, and no substantial miscarriage of justice was caused by any non-compliance.
Headnote:(A) Rules of High Court 1980 - Order 59 r 20 - Taxation of costs - Appeal against decision of Senior Assistant Registrar allowing plaintiff's Preliminary Objection (PO) - The court determined that the term 'must' in O 59 r 20 is directory and not mandatory, allowing for flexibility in compliance with produce requirements of billing documents to support taxation. The necessity for compliance does not incur penalties, emphasizing practicality and discretion (Paras 6, 8, 10, 12).
(B) Preliminary Objection - A court shall not dismiss proceedings solely on technical non-compliance unless it results in substantial miscarriage of justice - The plaintiff's objection was held meritless as no substantial injustice was found (Paras 17, 20).
Facts of the case:
The case arose from the defendants seeking taxation of costs while the plaintiff raised a PO due to perceived non-compliance with procedural rules. The SAR had initially ruled in favor of the plaintiff, leading to the appeal (Paras 1-4).
Findings of Court:
The judge ruled that the SAR erred in allowing the plaintiff's PO and thus reversed the SAR’s decision, allowing the defendants' taxation request (Paras 21-22).
Issues: The key issues pertained to the interpretation of compliance in costs taxation procedures and whether the plaintiff's OP amounted to a genuine claim of injustice (Paras 17-19).
Ratio Decidendi: The court ruled that the procedural rules concerning costs taxation must be approached on a pragmatic basis, focusing on substantial justice rather than strict adherence to form (Paras 10, 19).
Result: Appeal allowed and plaintiff's Preliminary Objection dismissed.
| Table of Content |
|---|
| 1. understanding appellate jurisdiction. (Para 1 , 1 , 2 , 3) |
| 2. requirements for taxation of costs. (Para 4 , 5 , 6) |
[1] This matter came before me as the hearing of the 1st, 2nd and 3rd defendants' appeal (encl 92) against the decision of the Senior Assistant Registrar (SAR) dated 17 June 2011 in which she allowed the plaintiff's Preliminary Objection (PO) and struck out the 1st, 2nd and 3rd defendants' Notis Penetapan Kos (encl 90).
The Appeal
[2] In the hearing of an appeal of this nature from the decision of a SAR to a Judge-in-Chambers, the judge is not exercising appellate jurisdiction in the same sense as when he hears appeals from judgments, decisions or orders of the Subordinate Courts. Such appeals from decisions of the SAR are by way of an actual rehearing and the judge treats the matter as though it comes before him for the first time. Per Edgar Joseph FCJ in Tuan Haji Ahmad Abdul Rahman v. Arab Malaysia Finance , at p 36 and Seloga Jaya Sdn Bhd v. Pembenaan Keng Ting (Sabah) Sdn Bhd; [1994] 2 MLJ 97 at p 106.
[3] I allowed encl 92 and the plaintiff now appeals against my decision.
The Factual Matrix
[4] Enclosure 90, filed by the 1st, 2nd and 3rd defendants, is dated 21 September 2010. It seeks to tax the 1st, 2nd and 3rd defendants' costs based on the following orders handed down by the court against the plaintiff in regard to:
a) Enclosure 35,
b) Enclosure 34,
c) Enclosure 43,
d) Enclosure 35A,
e) Enclosure 62,
f) Enclosure 3,
g) Enclosure 5,
h) Enclosure 55, and
i) Enclosure 72.
[5] During the hearing before the SAR, the plaintiff raised a PO that the defendants did not produce a copy of the bill together with all necessary papers and vouchers and were not in compliance with O 59 r 20 of the Rules of the High 1980, and therefore encl 90 ought to be struck out.
The Law
[6] Order 59 r 20 provides as follows:
"A party entitled to require any costs to be taxed must begin proceedings for the taxation of those costs by producing at the registry the bill of costs and a copy thereof together with all necessary papers and vouchers."
