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2020 MarsdenLR 1416
COURT OF APPEAL PUTRAJAYA
BADRU DUJA KHAN MOHAMED NABI KHAN – Appellant
Versus
AYAZ AHMAD MOHAMED SALLEH KHAN & ORS – Respondent
[Civil Appeal No: K-02(IM)-2377-11/2018]
The court clarified that a taxation of costs does not constitute a new cause of action and is governed by the same 12-year limitation period as the main judgment, not the 6-year period.
Headnote:(A) Rules of High Court 1980 – Order 59 – Limitation Act 1953 – The plaintiff's appeal against the High Court's decision to allow the defendants to tax costs after a lapse of over 7 years was examined. The court held that the taxation was not time-barred, as the 12-year limitation applied under s 6(3) of the Limitation Act, not the 6-year limitation under s 6(1). (Paras 25 and 11)
(B) The court exercised its discretion, seeing no appealable errors in the High Court's decision regarding the application for taxation. Delay by the defendants was acknowledged and deemed acceptable, reinforcing that a successful party should not be deprived of costs due to a lack of misconduct. (Paras 28 and 29)
Facts of the case: The plaintiff's claim was dismissed in 2010, but the defendants only sought to tax costs in 2018, leading to this appeal over the time allowed for costs taxation.
Findings of Court: The defendants were within the statutory time limits to seek cost taxation and the High Court's ruling was upheld.
Issues: The primary issues were whether the court could grant time to the defendants to tax costs and whether the request was time-barred.
Ratio Decidendi: The court clarified that the taxation of costs is not a fresh cause of action and follows the main judgment, thus subject to the same statutory period of limitation as the underlying case. The appeal was allowed based on the correct application of the relevant rules governing taxation of costs.
Result: The court fixed the costs for both the High Court proceedings and the appeal.
Introduction
[1] The High Court in Malaya sitting at Alor Setar, via Order dated 31 October 2010 ("Order") dismissed the plaintiff's claim with costs. The relevant part of the Order read:
"... MAKA ADALAH DENGAN INI DIPERINTAHKAN bahawa tuntutan Plaintif terhadap Defendan-Defendan ditolak dengan kos.
[2] The plaintiff appealed that Order. The Court of Appeal dismissed the appeal on 5 December 2012, and affirmed the Order.
[3] The defendants did not act upon the Order to tax their costs until 30 April 2018 when encl 15 was filed by the defendants seeking leave of Court for extension of time to proceed with the taxation of costs.
[4] The plaintiff objected to the application in encl 15. However, the High Court allowed encl 15. The plaintiff now appeals that decision to this Court.
Antecedent Facts
[5] When the Order was made on 31 October 2010, the Rules of the High 1980 ("RHC 1980") was applicable, and since costs were not quantified, the defendants were entitled to tax the costs as provided in O 59 RHC 1980 by filing a Bill of Costs.
[6] According to O 59 r 1 of RHC 1980 - "taxed costs" means costs taxed in accordance with O 59 and "costs" includes fees, charges, disbursements, expenses and remuneration. Hence, the defendants would be entitled to all or any of these costs elements.
[7] According to O 59 r 12 of RHC 1980, the power to tax costs vests with the Registrar:
Rule 12. Power of Registrar to tax costs. (O 59 r 12)
The Registrar shall have power to tax-
(a) the costs or arising out of any cause or matter in the Court;
(b) the costs directed by an award made on a reference to arbitration under any written law or pursuant to an arbitration agreement to be paid;
(c) any other costs the taxation of which is directed by an order or the Court; and
(d) any costs directed to be taxed or settled by or under any written law.
[8] In the present case the Senior Assistant Registrar/Deputy Registrar at the High Court at Alor Setar would have had the power to tax the defendant's Bill of Costs in accordance to either O 59 r 12(a) and/or (b) of the RHC 1980, as ordered by the High Court Judge in the Order dated 31 October 2010.
[9] The Order dated 31 October 2010, however, does not stipulate the time within which the Bill of Costs is to be filed/presented by the defendants for taxation.
[10] The defendants, after a lapse of more than 7 years, filed a Notice of Application dated 30 April 2018 (encl 15) at the Alor Setar High Court for extension of time to execute the Order dated 31 October 2010, which was basically to quantify the costs awarded. However, by this time, RHC 1980 had been repealed and replaced by the Rules of 2012 ("ROC 2012").
[11] The plaintiff objected to the application, inter alia, on grounds that the defendant was barred by statutory limitation under s 6 of the Limitation Act. The application was heard by the High Court Judge, who allowed the application in encl 15. The learned High Court Judge found that the matter was not time barred, as the Order had a 12 years statutory period of limitation in accordance to s 6(3) of the Limitation Act 1953 . The learned judge further held that time for limitation started to run from the date of the Court of Appeal's dismissal of the plaintiff's appeal, which was on 5 December 2012. The plaintiff appeals that decision contending that limitation to enforce the Order is 6 years pursuant to s 6(1) of the , and that the filing of encl 15 is out of time.
The Issues
[12] The primary issues are:
(i) whether the Court can grant time to the plaintiff for costs to taxed; and
(ii) whether the matter is time barred under s 6(1) of the Limitation Act;
(i) Whether The Court Can Grant Time To The Plaintiff To File The Bill Of Costs
[13] Unlike O 62 r 29 of the English Rules of Supreme Court, where there is a time period of 3 months for proceedings to be commenced for the taxation of costs, neither O 59 of the RHC 1980 nor O 59 of the ROC 2012 stipulate any time period for filing the a
