Lee Swee Seng JC:

[1]The plaintiffs had successfully applied for the removal of the defendant’s caveat on its land. The defendant/applicant here is Seema Development Sdn Bhd. After the caveat was ordered to be removed the defendant lodged another caveat on the same piece of land of the plaintiffs. The plaintiffs applied again to remove the second caveat of the defendant and was successful in doing so. The plaintiffs proceeded then to have the registrar assess damages for the wrongful entry of both the caveats.

THE PROBLEM

[2]Notice of appointment of the hearing of the assessment of damages was duly served on the solicitors for the defendant for the assessment in both actions. However the said solicitors did not attend the hearing of the assessment of damages for both the actions. Neither on 20 December 2006 for OS 24–1807 of 2004 nor on 13 May 2009 for OS 24–1990 of 2007. The registrar proceeded to hear the plaintiffs and assessed the damages to be RM253,426.63 for OS 24–1807 of 2004 and RM234,463.50 for OS 24–1990 of 2007. The first caveat was on the land for about two years six months and the second caveat on land for about three years four months. The application to set aside the first order of court for damages was filed nearly six years after the order in OS 24–1807 of 2004 and the second application in OS 24–1990 of 2007 was filed some three years after the second order.

THE PRAYER

[3]The amount assessed not having been paid the plaintiffs proceeded to serve a winding up notice on the defendant. The defendant applied for a fortuna injunction to restrain the plaintiffs from filing a winding up petition but failed. It was then that it applied to set aside the two orders for damages assessed by the registrar or to rehear the assessment of damages. In OS 24–1807 of 2004 it is the defendant’s application in encl 20. In OS 24–1990 of 2007 it is the defendant’s application in encl 12. Both were heard together as the factual substratum was the same for both cases.

THE PRINCIPLEWhether the order for damages assessed after hearing the plaintiff and the defendant being absent, may be set aside by the court

[4]The registrar on the day fixed for the assessment of damages proceeded with the hearing of the plaintiffs’ witness and evidence, having satisfied himself that the defendant’s solicitors had been duly informed of the hearing date. Though the defendant’s counsel was absent, the orders of damages assessed were given after hearing the plaintiffs.

Such being the case, it is an assessment of damages made on the merits and the evidence before the registrar. The defendant now has filed applications to set aside the orders of damages assessed some six years later and in another case some three years later. The orders of damages assessed having been perfected, the court is functus officio.

[6]Under the previous Rules of High Court 1980 (‘RHC’) there were limited instances when an order of court that has been perfected could be set aside by the same court as set out by the Court of Appeal in Munusamy a/l Karuppiah (sole proprietor of MNN Consultancy Services, a firm) v Sang Lee Co Sdn Bhd & Ors

[2] The appeal raises an interesting point. It is whether JC2 can revise and amend the approved, sealed and perfected order of JC1. It turns on the application of the latin phrase functus officio. It is trite that once the order of JC1 has been drawn up and perfected, it cannot be altered, varied or set aside because the court is functus officio. In other words, having decided a question brought before JC1, JC1 is functus officio, and cannot review her own decision. A fortiori JC2 too cannot review JC1’s decision. It is as simple as that.

[3] The aggrieved party on receipt of the order of JC1 has a legal remedy. It is by way of filing an appeal to the Court of Appeal. Section 67(1)Courts of Judicature Act 1964Lam Kong Co Ltd v Thong Guan Co Pte Ltd ss 4549Courts of Judicature Act 1964Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd v Faw