Low Hop Bing J:

Appeal

It seems to me that two factors vizthe instinct for an adversarial battle and the passion for in-depth research on the part of the appellant's learned counsel have sparked off this appeal against the decision of the learned registrar who on 29 May 2003 awarded interest at 8% p.a. on the taxed costs, with effect from the date of the High Court judgment on 10 January 2001, and not from the date of allocatur issued by taxing registrar on 2 October 2002.

Factual Background

On 10 January 2001, KN Segara J dismissed with costs ("the High Court judgment") the appellant's appeal against a sessions court decision.

Notice of taxation in encl. (19) was filed on 22 October 2001 and when it was disposed of on 2 October 2002, no interest was awarded by the then taxing registrar on the taxed costs since it was not sought by the respondent's learned counsel.

However, after Kerajaan Negeri Johor & Anor v. Adong Kuwau & Ors[2002] 4 CLJ 259FC was reported, respondent's learned counsel on 30 October 2002 wrote to the learned registrar requesting the issue to be tried, on the ground that the allocatur has not been extracted and so the learned registrar was not functus officio.

Upon hearing both learned counsel, on 29 May 2003, the learned registrar awarded interest at the rate of 8% per annum on the taxed costs of RM36,862.10 from 10 January 2001 to the date of realisation.

The appellant has paid the taxed costs together with interest thereon from the date of allocatur till the date of full payment of the taxed costs, leaving the interest unpaid, from the date of the High Court judgment on 10 January 2001 till 2 October 2002, pending my decision in this appeal.

Submission For Appellant

Cik Lai Kuan Jean, appellant's learned counsel, is mindful of the "the incipitur rule" which says that interest on taxed costs is to run from the date of entry of judgment.

However, she urges this court to reconsider the law and to apply "the allocatur rule" which says that interest on taxed costs should run from the date the taxation of costs is completed by the issue of the taxing registrar's allocatur.

She elaborated that there are two sets of interest viz.:

1. under s. 11 of the Civil Law Act 1956for the period 'between the date when the cause of action arose and the date of judgment'; and

2. under O. 42 r. 12 of the Rules of the High Court 1980for post-judgment interest.

In the instant appeal, she submitted that O. 42 r. 2 applies, and that the Federal Court decision in Liau Kim Lian v. Bajuria[1971] 1 MLJ 276 which is on the construction of O. 40 r. 11(2) of the then Rules of the Supreme Court 1957 may be distinguished from O. 42 r. 12 of the Rules of the High Court 1980, on the ground that the provisions in these two orders are not in pari materia.

As regards Gooi Hock Seng v. Chuah Guat Khim, Pemegang harta pesaka bagi estet Chuah Teow Hock, si mati[2001] 1 CLJ 583, it was submitted that the issue was "whether interest is payable where an order directs payment of costs to be taxed" and that Sam Hock Ming v. Hong Leong Assurance Sdn BhdIpoh High Court Civil Suit No. 23-113-86 should not have been followed.

She then contended that in Hunt v. R.M. Douglas (Roofing) Ltd. [1988] 3 WLR 975, the House of Lords applied "the incipitur rule" on the basis of s. 17 of the Judgments Act 1838 (UK) which provided, inter alia, that "every judgment debt shall carry interest ... from the time of entering the judgment" and that "... any costs ... shall have the effect of judgments ...". She said that Malaysia does not have such a provision, other than the Courts of Judicature Act 1964, s. 16, s. 25(2)and para 7 in the Schedule thereto, regulating the powers of the court to award interest on eg, judgment debts, and to order when interest on costs is to run.

It was also submitted that in Malaysia an order for payment of costs to be taxed cannot be a judgment debt because no execution can be levied until it is quantified and Tuan Hj Ahmed Abdul Rah