Shaik Daud Ismail JCA:

On 19 January 1990 the respondent (plaintiff) filed a summons in chambers for summary judgment under O. 14 of the Rules of the High Court 1980 for their claim against the appellant (defendant). The matter came up for hearing before the Senior Assistant Registrar on 9 April 1992 and the application was dismissed with costs. Thereafter on 13 April 1992 the respondent filed notice of appeal to the judge in chambers which appeal was dismissed with costs on 22 February 1994. The learned judge, however, granted leave to the respondent to appeal but no appeal was ever filed. On 18 July 1992 the appellant filed a notice of taxation of the costs awarded by the learned Senior Assistant Registrar on 9 April 1992. At the hearing of the notice in question on 8 March 1993, learned counsel for the respondent raised a preliminary objection to the effect that the notice of taxation was made pursuant to an interlocutory application and that the appeal in respect of that interlocutory application is pending. The learned Senior Assistant Registrar agreed with the preliminary objection and ordered that the notice of taxation be heard after the conclusion of the proceedings. The appellant being dissatisfied with the said order appealed to the judge in chambers. After hearing arguments the learned judge agreed with the decision of the learned Senior Assistant Registrar and dismissed the appeal with costs. Hence this appeal to this court.

The issue both in the High Court and this court is in the interpretation of O. 59 r. 4(1) of the Rules of the High Court 1980 which provides:

4(1). Costs may be dealt with by the Court at any stage of the proceedings; or after the conclusion of the proceedings and any order of the Court for the payment of any costs may, if the Court thinks fit, require the costs to be paid forthwith notwithstanding that the proceedings have not been concluded.

Learned counsel for the appellant cited two English authorities in support of her contention that the proper interpretation of O. 59 r. 4(1) is that when the court ordered costs to a party even in an interlocutory matter, such costs are to be paid forthwith, and not after the conclusion of the proceedings. The heavy reliance on these two cases is because the English Order which governs this is O. 62 r. 4(1) which is in pari materia with our O. 59 r. 4(1). In Adam & Harvey, Ltd. v. International Maritime Supplies Co. Ltd. [1967] 1 All ER 533 it was held that in an interlocutory matter orders for costs to be taxed made without stating "forthwith" confers a right to immediate taxation. In Allied Collection Agencies Ltd. v. Wood & Anor. [1981] 3 All ER 176 it was held:

When on an interlocutory application the court intends that one party is to have the costs of that application irrespective of the outcome of the substantive action, the usual form of order is "costs in any event", in which case the taxation is deferred until the conclusion of the substantive action.

The words "defendant's costs" and the words "plaintiff's costs" which are only used in exceptional circumstances have the effect of entitling the party concerned to obtain an immediate taxation.

Learned counsel for the appellant urged upon us to follow these two English authorities especially when the English Order on the issue is in pari materia with our O. 59 r. 4(1). She also cited an unreported decision of Shankar J, (as he then was) in The East Asiatic Co. (M) Bhd. v. Kilang Papan Aman Sdn. Bhd. in Kuala Lumpur High Court Civil Suit No. 2157 of 1995.

That case also concerns the dismissal by the Senior Assistant Registrar of an interlocutory application with costs. When an application for taxation of the costs came up before the Senior Assistant Registrar and on an objection by the respondent, the learned Senior Assistant Registrar ordered that the bill should only be taxed at the conclusion of the trial. On appeal, Shankar J. (as he then was) following the decisions in Adam an