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2010 MarsdenLR 1351
FEDERAL COURT PUTRAJAYA
TAN SEE SIONG & ANOR – Appellant
Versus
HERMAN ANDO – Respondent
[Civil Appeal No: 08(I)-178-2009(W)]
A judge is functus officio upon delivering a judgment and cannot vary it, with clear and unambiguous orders sustaining contempt findings for non-compliance.
Headnote:(A) Courts of Judicature Act 1964 - Section 96(a) - Writ action for damages and injunction - Plaintiff sought damages and an injunction against the defendant for construction-related damages - Justice Azmel's First Order was both prohibitive and mandatory - The Court upheld trial judge's application of law and dismissed defendant's appeal, finding no reason to disturb previous orders. (Paras 13, 14, 15, 21)
(B) Contempt of court - Judges are functus officio post-judgment, barring certain exceptions - Court affirmed that the trial judge's order was clear and unambiguous enough to support contempt findings against directors. (Paras 20, 22)
Facts of the case:
The plaintiff sued a housing development company for damages due to construction activities impacting his adjacent property, obtaining an injunction for repairs that the defendant failed to comply with.
Findings of Court:
The trial judge's orders were affirmed; the defendant's appeal was dismissed on sound legal principles with no ambiguity found in the original orders.
Issues: Whether the trial judge could review his order, jurisdiction context in contempt cases, and clarity of injunction terms.
Ratio Decidendi: Judges cannot vary their judgments post-delivery except in specific authorized situations; contempt findings were valid due to clear orders and willful non-compliance.
Result: Application for leave to appeal dismissed with costs.
| Table of Content |
|---|
| 1. factual background of the case and orders (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. parties' appeals and legal admissions (Para 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 3. court's analysis of principles and clarity of orders (Para 19 , 20 , 21 , 22 , 23) |
| 4. dismissal of application for leave to appeal (Para 24) |
Introduction
[1] Enclosure 2(a) is an application by the applicants who were the directors of the defendant for leave to appeal to the Federal Court under s 96(a) of the Courts of Judicature Act 1964 .
[2] To appreciate this application I shall commence by disclosing the facts of this case and shall in the course of this refer to the parties in their original capacity as in the Court of first instance.
Facts
[3] The plaintiff has instituted a writ action in the High Court against a housing development company (the defendant) for damages caused to his house which was adjacent to the land where the defendant was constructing 26 units of double story terrace houses. Aside from the damages sought, the plaintiff also prayed for injunction to restrain the defendant from (a) carrying out further development on the adjacent land and; (b) requiring the defendant to forthwith carry out repairs to his house.
[4] Subsequently, the plaintiff applied and successfully obtained an interim injunction for the prayers sought. This order was granted by Justice Azmel. For ease of reference I shall refer to this order as the "Justice Azmel's First Order". The Justice Azmil's First Order is both prohibitive and mandatory in nature.
[5] Dissatisfied with this order, the defendant filed an appeal to the Court of Appeal. This appeal carries the Court of Appeal registration number W 02-207-04.
[6] Due to the failure of the defendant to comply with the mandatory order to repair the plaintiff's house, the plaintiff filed an application to commit the applicants (who were the directors of the defendant) for contempt. But before this application can be disposed by the Court, the defendant filed an application to query whether the mandatory aspect of the injunction was indeed granted.
[7] The application to query Justice Azmel's First Order was heard by the same judge who from his notes of evidence recorded:
I am satisfied that I have the power to review my previous decision and to amend it if I am satisfied that the existing order is wrongly made. In respect of the order made by this Court, I only made the stop work order. As to the mandatory order I could not have given it because the facts as to what caused the damage to the Plaintiff's premises were in dispute. As hearing to determine the cause of the cracks to the house has to be conducted first.
[8] Dissatisfied with this "Justice Azmel's Variation Order", as I shall from now on be referring to, the plaintiff filed an appeal to the Court of Appeal and this bears Court of Appeal number W-02-1021-04.
[9] Subsequently, Justice Azmel recused himself from hearing this case. Justice Malik Ishak took over and heard the contempt application against the applicants. He found both the applicants guilty of contempt and ordered each to serve three weeks imprisonment and a fine of RM15,000 each, in default one month imprisonment. For ease of reference, I shall be referring to this order as "Justice Malik's Order". The applicants filed an appeal against this decision with the Court of Appeal.
It is registered as W-02-34-07. In the meantime, the applicants paid the fine and obtained a stay on the custodial sentence.
[10] Some four years after Justice Azmel's Variation Order, the plaintiff filed an application to expunge Justice Azmel's Variation Order. This was heard by yet another judge, judicial commissioner Mohd Yazid Mustapha. This application was dismissed on the ground that the application fell short of O 42 r 13 Rules of High in that this was made after 30 days from the date of Justice Azmel's Variation Order. I shall refer to this order made by the judicial commissioner as the "Judicial Co
