JUDGMENT

1. This is my judgment in respect of the defendant's "summons to review taxation by judge" (encl. 86) pursuant to Order 59 rule 36 (1) of Rules of the High Court (RHC) 1980, to review the decision of the learned deputy registrar.

2. The plaintiff in this case is a chargee who applied for order for sale pursuant to section 148(2)(c) of the Sarawak Land Code (SLC) to foreclose the defendant's property to satisfy the outstanding sum of RM411,772.46 as at 25-04-2004. The defendant opposed the foreclosure proceedings on various grounds However, the court found that the statutory notice under section 148(3) of SLC given by the plaintiff failed to comply with the term of the said charge and ruled that the statutory notice was null and void for non-compliance of a clause in the said charge. In consequence, the court held that it was not just to grant the order for sale and dismissed it with costs with an order that the costs to be taxed and paid to the defendant.

3. The defendant thereafter filed his application for taxation before the registrar seeking a getting up fees of RM40,000.00. The learned deputy registrar granted a sum of RM5,000.00 for getting up fees Being dissatisfied with the decision the defendant filed a request to review taxation pursuant to Order 59 rule 34 of the RHC 1980 on the following grounds:

(a) the getting up fee of only RM5,000.00 allowed is manifestly low and inadequate and is not made and/or based on established principles nor does it reflect the amount of work and skill required for the following reasons:-

(i) the getting up allowed has totally ignored the fact that it concerned an originating summons wherein the plaintiff is applying for an order for sale in respect of an immovable property.

(ii) the hearing of the originating summons before the judge took considerable amount of work and time.

(iii) that the subject matter herein being an immovable property has its own special value.

(iv) that the learned taxing registrar has erred in law and in fact in failing to consider and/or to adopt the unreported case of Miri High Court Originating Summons No. 24-239-2003-(MR) wherein the learned High Court Judge allowed the getting up fee of RM10, 000.00 to the defendant for striking out of the plaintiffs originating summons therein.

4. In opposing the review before the learned registrar the plaintiff answers were as follows:

(a) the learned deputy registrar has correctly applied his discretion by awarding the amount of RM5,000.00 for the getting up fee.

(b) the sum is more than adequate and is a reasonable amount for the amount of work done and skill required having considered the established principles and law and to the circumstances of the case.

5. The learned deputy registrar in his judgment had given a detailed considerations of the defendant as well as the plaintiffs submission and stated, inter alia, as follows:

(a) though the value of the subject matter in the action was RM411,772.46, that does not mean that the defendant is entitled to a higher rate of getting-up after considering the nature of the action and/or the proceedings before the court.

(b) the action before the High Court was a foreclosure/charge action pursuant to Order 83 RHC 1980 and section 148(2) SLC and the law on that point is settled and nothing novel and complicated about that.

(c) the defendant's submission that the getting-up in a foreclosure proceedings should be at least RM10,000.00 is not correct. This seems to be putting a standard amount that should be awarded and in awarding a getting-up, when that it should be considered on a case to case basis

(d) the case of Southern Finance Co. Bhd v. Zamrud Properties Sdn Bhd (no.3) [1999] 4 CLJ 754; [1998] 7 MLJ 168 as quoted by the defendant, may not be relevant to this case as in the said case the court ruled that the issues that the court need to determine in the said case does not confine merely to 2 issues only. Further in the said case, it involves 34 properties and the to