JUDGMENT

NH Chan JCA:

The plaintiff Hong Leong Finance Bhd had sued Tamparuli Granite Quarry (Sabah) Sdn Bhd and its guarantors, Sek Ann Thong and Lee Tain Tshung for arrears of rental in a leasing agreement. The action was commenced in the High Court at Kota Kinabalu in Sabah and Sarawak.

The plaintiff had applied under O. 18 r. 19 of the Rules of the High Court 1980 to strike out the defence of the defendants and for judgment to be entered against them. The High Court on 16 February 1987 granted the application and judgment was obtained against all the defendants for RM1,211,523.66. The defendants did not appeal against this judgment. In fact it was not until very much later and after the plaintiff had taken execution proceedings on the judgment that the third defendant Lee Tain Shung (Lee) decided to apply in 1995 to set aside the judgment against him. His summons in chambers was dated 16 January 1995. On 10 June 1997 the judge in chambers dismissed Lee's application to set aside the judgment. Lee appeals to the Court of Appeal.

Irregular (Voidable) Judgments And Those Irregular Judgments That Were In The Olden Days Described As "A Nullity" Or "Void"

Before us, Mr TG Lim for Lee (now the appellant) argues that the judgment was obtained for an amount in excess of what was due and it is therefore a nullity (or void). Counsel contends that the appellant is entitled as of right (or in Latin, ex debito justitiae) to apply to have the judgment that the plaintiff (now the respondent in this appeal) had obtained against him on 16 February 1987 set aside. However, Mr Lim was not astute enough to know that nowadays words like "nullity", "void" and "voidable" should not be used to describe judgments or orders that are made by a court of unlimited jurisdiction in the course of contentious litigation. I would like to take this opportunity to point out that, "Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can be set aside by an appellate court upon appeal if there is one to which an appeal lies.": see below per Lord Diplock at p. 103 in Isaacs v. Robertson (PC). "It is settled law that the expressions "nullity", "void" and "voidable" are wholly inappropriate to describe an order made by a court of unlimited jurisdiction", said Gopal Sri Ram JCA in Tenaga Nasional Bhd V. Prorak Sdn Bhd & Anor [2000] 1 CLJ 553, CA, at 488. It is misleading to seek to draw a distinction between orders that are "void" (in the sense that they can be ignored with impunity by those persons who are affected by such orders) and orders that are "voidable" (which may be enforced unless and until they are set aside). In Issacs v. Robertson [1985] AC 97, PC, Lord Diplock who delivered the judgment of the Board (Lord Diplock, Lord Keith of Kinkel, Lord Roskill, Lord Brightman and Lord Templeman) said, at 102, 103:

Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are "void" in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are "voidable" and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions "void" and "voidable" respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v. Marsh [1945] AC 271, 284 and MacFoy v. United Africa Co Ltd [1962] AC 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceeding