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2013 MarsdenLR 528

FEDERAL COURT PUTRAJAYA
HONG KWI SEONG – Appellant
Versus
GANAD MEDIA SDN BHD & ANOTHER APPEAL – Respondent
[Civil Appeals No: 02(i)-98-2012 & 96-12-2012(W)]

Petitioner Advocates:Lambert Rasa-Ratnam,Mong Chung Seng ,Respondent Advocate: Sharmala Batumalai,Mabel Nirmala James

Court ruled failure to appeal or timely challenge judgment orders leads to incompetence. Compliance with procedural rules is essential for the enforcement of judgment debts.

Headnote:(A) High Court Rules 1980 (now O 48, Rules of Court 2012) - Enforcement of judgment debts - Applications for setting aside orders - Rules require applications to be made within 30 days (O 42 r 13) - Failure to comply leads to incompetence of applications. (Paras 1-14)

(B) Appeals - Nature - Appeals must be filed against authorized orders, failure of which renders appeals incompetent. Court can refuse to answer leave questions if they do not raise a question of law. (Paras 15-18)

Facts of the case:
Two appeals involving an unpaid judgment debt, committal orders, and applications to set aside those orders after substantial delays. Court found notices properly served and no appeals filed against previous orders.

Findings of Court:
The appeals were struck out as incompetent due to lack of timely applications against prior orders; the failure to adhere to procedural rules was emphasized.

Issues: The main questions included whether the court could direct payment by installments and the enforcement of judgment debts via committal orders.

Ratio Decidendi: The court ruled that the appellant's failure to appeal against multiple orders, combined with the absence of timely applications to set aside, rendered subsequent appeals incompetent; proper adherence to procedural rules is essential.

Result: Appeals struck out with costs.

Table of Content
1. jurisdiction and procedural compliance (Para 1 , 2 , 3 , 4)
2. incompetency of appeals filed late. (Para 5)

[1] Two appeals were heard simultaneously before us namely Civil Appeals 2(i)-96-2012(W) and 2(i)-98-12-2012(W). The questions for our determination pertain to the powers of a court to direct payment by instalments of a judgment debt under O 48 Rules of the High 1980 (now O 48, Rules of 2012), and whether a judgment debt could be enforced by an order of committal.

[2] The questions emanate from encls 129 and 130 filed by the appellant. They relate to the payment order of 12 October 2006 as amended on 29 November 2007 (served on 9 January 2008) and a committal order dated 5 November 2008 (served on 14 January 2009), and a further committal order and warrant of committal both dated 10 April 2009. No appeals were filed against any of those perfected orders.

[3] The amended payment order, together with the committal order of 5 November 2008, which were properly served were also never set aside within 30 days after their service. The 30 day rule is provided for under O 42 r 13 of the Rules of the High 1980 (RHC). The committal order and warrant of committal, both dated 10 April 2009, are awaiting execution.

[4] Instead of complying with the requirements of O 42 r 13 of the RHC after being served with those orders, the appellant did nothing for a year. On 19 April 2010 he suddenly woke up and filed two setting aside applications namely the abovementioned encls 129 and 130. Vide those enclosures the appellant wanted to set aside the served amended payment order, the committal order of 5 November 2008 (served on 14 January 2009) and the 14 April 2009 committal order and warrant of committal. The appellant also wanted to set aside the last two perfected orders despite having failed to purge his contempt pursuant to the 5 November 2008 committal order. It must be understood that the 14 April 2009 orders stemmed from the order of 5 November 2008 and unless the latter was satisfied and resolved, the application to set aside the 14 April 2009 orders was doomed to fail.

[5] By some oversight, and without ensuring their competency, these two enclosures were heard by the High court and the court of Appeal on the merits. They were respectively dismissed with costs by the High court and the court of Appeal on 10 October 2010 and 15 June 2012. The appellant filed a successful leave application, hence the appeal before us.

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2013 MarsdenLR 528

FEDERAL COURT PUTRAJAYAHONG KWI SEONG – AppellantVersusGANAD MEDIA SDN BHD & ANOTHER APPEAL – Respondent[Civil Appeals No: 02(i)-98-2012 & 96-12-2012(W)]

Court ruled failure to appeal or timely challenge judgment orders leads to incompetence. Compliance with procedural rules is essential for the enforcement of judgment debts.

FEDERAL COURT PUTRAJAYA
HONG KWI SEONG – Appellant
Versus
GANAD MEDIA SDN BHD & ANOTHER APPEAL – Respondent
[Civil Appeals No: 02(i)-98-2012 & 96-12-2012(W)]