JUDGMENT

FACTS

The plaintiff filed this Originating Summons for foreclosure against the defendant on 31.1.97. On 5.1.98 after hearing arguments and submissions I dismissed the Originating Summons with costs. The defendant promptly filed a Notice of Taxation and a Bill of Costs which was taxed on 4.3.98.

The plaintiff also filed a writ in the Kuala Lumpur High Court by way of D6-22-31-97 for the same debt due and owing. On receipt of the defence the plaintiff applied to strike it out under O 18 r 19 of the Rules of the High Court 1980 (the RHC). The defendant then applied to amend its defence. This application to amend was dismissed by the learned Senior Assistant Registrar with costs. On appeal to Judge in chambers my learned brother K.L. Rekhraj J allowed the `appeal by consent. He also ordered that the defendant be allowed to amend its defence with taxed costs to be paid to the plaintiff within 30 days and that the plaintiff be given liberty to file a fresh application under O 18 r 19 of the RHC after the earlier application was allowed to be withdrawn with costs thrown away to be paid to the plaintiff. After the defendant had filed its amended defence the plaintiff again applied under O 18 r 19 of the RHC to strike out the defence. The application was heard on 20.2.88 and the defence was struck out with costs to the plaintiff. Judgment was also entered against the defendant for the sum of RM10,600,110.28 with interest. The defendant has appealed against this decision. However there has been no application for stay filed by the defendant. The plaintiff has presently filed the Notice of Taxation and the Bill of Costs in respect of all the matters in which costs had been awarded.

CASE FOR THE PLAINTIFF

The plaintiff prayed for an order that the costs of the defendant in the foreclosure proceedings be set off against the costs awarded to the plaintiff in respect of the amendment, the appeal, the striking off under O 18 r 19 of the RHC, as well as costs awarded in respect of the judgment sum.

CASE FOR THE DEFENDANT

The defendant opposes the claim to a set-off and prays entitlement to the costs.

FINDINGS OF THE COURT

In Reid v Cupper [1914] KB 147 Buckley LJ at 149 cited with approval Brett MR in Edwards v Hope [1799] 2 BOS. & P 28:

"... The Courts always had an equitable jurisdiction, for the purpose of preventing absurdity or injustice in cases where there had been judgments for damages between the same parties in distinct actions, to set off one judgment against the other and to allow execution to issue in respect of the balance only."

O 59 r 16 of the RHC reads:

"16 Power of Registrar where party liable to be paid and to pay costs

Where a party entitled to be paid costs is also liable to pay costs, the Registrar may -

(a) tax the costs which that party is liable to pay and set off the amount allowed against the amount he is entitled to be paid and direct payment of any balance; or

(b) delay the issue of a certificate for the costs he is entitled to be paid until he has paid or tendered the amount he is liable to pay."

The Registrar or Judge has the power to order a set-off where a party entitled to be paid costs is also liable to pay costs. Whilst this rule allows the Registrar to set off the costs against costs in the same proceedings, I hold, in line with the decision in Reid v Cupper that a Judge ought also to exercise his equitable jurisdiction and prevent an apparent injustice. It only stands to logic and common sense that this equitable rule should prevail and thus bestow upon this Court the right to see justice done. Whilst the power of the taxing officer is limited and that he could not order such a set-off, a Judge has the inherent power to make this order.

However in this case the plaintiff has obtained judgment against the defendant for the sum of RM10,600,110.28. Notwithstanding the fact that an appeal has been filed, no application for stay of execution has been prayed for. The defendant's Bill of Costs is for