Committal orders may be enforced for non-payment of judgments requiring performance of an act, distinguishing them from mere monetary judgments which cannot be enforced in contempt.

[1] These two appeals were filed by the appellant against the decision of the High Court in dismissing with costs the appellant's motions which sought to set aside two committal orders and warrants of committal. We now give our grounds for dismissing these appeals.

Factual Background

[2] The respondent, having obtained a money judgment against the appellant ("the judgment debt"), proceeded to obtain an order to examine the appellant ("the examination order"). When the appellant did not appear for examination, the respondent obtained an order for payment of the judgment debt in instalments ("the payment order"). There was no appeal by the appellant against the payment order.

[3] The appellant did not make any payment on the due dates. The respondent then obtained leave to issue committal proceedings in the High Court, followed by the committal orders for contempt of Court ("committal orders").

Ground For Committal

[4] Learned counsel Mr Nitin Nadkarni (assisted by Mr CS Mong) argued that the ground on which the respondent had obtained the committal orders was the appellant's failure to pay the instalments under the payment order. They stressed that non-payment of a money judgment cannot be punished with contempt of Court. They drew support from the decision of the Court of Appeal in Hong Leong Bank v. Phung Tze Thiam , 2008 MarsdenLR 4467 .

[5] Ms Sharmala Batumalai, respondent's learned counsel, submitted that the learned judge was correct in giving the committal orders and the warrants of committal.

[6] On the basis of the above submissions, the question which we must address in this appeal is this:

"Given the above factual background, particularly in relation to the appellant's failure to pay the instalments on the due dates specified in the payment order, and having regard to the decision of the Court of Appeal in Hong Leong Bank, supra, which in turn relied on In Re Oddy, Major v. Harness [1906] 1 Ch 93; and Iberian Trust, Ltd v. Founders Trust and Investment Co Ltd [1932] 2 KB 87, was the learned judge of the High Court correct in dismissing the appellant's application to set aside the committal orders and the warrants of committal?"

[7] We must first considerHong Leong Bank Bhd, supra. There, the Court of Appeal had dismissed the bank's motion for leave to commit Phung Tze Thiam ("Phung") for contempt of the Court of Appeal, arising from Phung's failure or refusal to comply with an order of the Court of Appeal. The bank was Phung's employer. The bank had dismissed Phung who then complained that his dismissal was without just cause or excuse. His case was referred to the Industrial Court which found for him but awarded compensationin lieu of reinstatement. The bank applied for judicial review of the award. Phung also applied to have the award reviewed and sought reinstatement. The High Court dismissed the bank's application, and granted the reinstatement sought by Phung. The bank appealed to the Court of Appeal. In the meantime, Phung asked for all backwages which he claimed he was entitled to receive pursuant to the order of reinstatement. The bank disputed this claim. Phung then successfully moved the High Court to obtain the backwages of RM618,322.97 claimed by him. Phung threatened enforcement and the bank paid this sum. Later, on 25 April 2007, the Court of Appeal allowed the bank's appeal and ordered Phung to refund the sum paid to him less the sum of RM130,000 paid to Employees Provident Fund (EPF). The refund was to be made within 30 days of the order of the Court of Appeal. Phung did not comply. Hence, the bank's motion for leave to commit Phung for contempt of the Court of Appeal.

[8] The first point which led the Court of Appeal to dismiss the bank's motion appeared at p 746. It ha