Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Fatal Failure (Inter Heritage) - Court of Appeal in Inter Heritage (M) Sdn Bhd v ASA Sports Sdn Bhd ["2009"] 2 CLJ 22/221 held failure to endorse penal notice on consent judgment fatally flawed and fatal to committal proceedings, as it deprives contemnors of notice of penal sanctions; cited extensively as binding authority. [](https://supremetoday.ai/doc/judgement/MY_MLRH_2022_4_MLRH_209) ["Ang Pi Kui vs Lee Wee Teck & Anor (Ranhill Saj Sdn Bhd respondent) - High Court"] ["ANG PI KUI vs LEE WEE TECK & ANOR; RANHILL SAJ SDN BHD (RESPONDENT) - 2022 MarsdenLR 473"] ["OSSG MANAGEMENT SDN BHD vs PLATINUM EDEN ASSET MANAGEMENT SDN BHD & ANOR (ENCL 70) - High Court"] ["GREENPOWER VALUE SDN BHD vs UNIVERSAL TRUSTEE (MALAYSIA) BHD & ORS - High Court"]
Non-Fatal if Knowledge - No Court of Appeal cases found holding failure not fatal; lower court decisions (re: Court of Appeal orders) state The defect in not complying with the endorsement of the penal notice is not fatal so long as the respondents had knowledge of the terms of the order and The failure to endorse the penal notice therein - is not fatally flawed, distinguishing procedural irregularities from fatal safeguards (citing Arthur Lee Meng Kwang). [](https://supremetoday.ai/doc/judgement/MYS_MARSDENLR_2008_3918) ["LOH ENG LEONG & 2 ORS vs LO MU SEN & SONS (SDN) BERHAD & ANOR - 2008 MarsdenLR 3918"] ["LOH ENG LEONG & 2 ORS vs LO MU SEN & SONS (SDN) BERHAD & ANOR - 2008 MarsdenLR 2446"] [](https://supremetoday.ai/doc/judgement/MY_MLRH_2008_7_MLRH_851)
No Court of Appeal cases in sources hold failure to endorse penal notice not fatal; dominant precedent (Inter Heritage) deems it fatal prerequisite for committal under O 52 r 2B ROC/Order 45 r 7(4). Lower courts carve exception for actual knowledge, treating as non-fatal irregularity, but not elevated to CA level. [](https://supremetoday.ai/doc/judgement/MY_MLRH_2022_4_MLRH_209) [](https://supremetoday.ai/doc/judgement/MYS_MARSDENLR_2008_3918)
In the high-stakes world of enforcement proceedings, a small procedural misstep can sometimes spell disaster—or not. Imagine serving a court order for contempt or committal, only to realize the penal notice wasn't endorsed. Is that game over? Many lawyers worry it is, but Court of Appeal decisions in Malaysia suggest otherwise under certain conditions.
This post dives into a key legal question: Are there any Court of Appeal cases that say failure to endorse a penal notice was not fatal? We'll unpack affirmative rulings, contrasting views, and practical takeaways, drawing from authoritative sources. Note: This is general information, not specific legal advice—consult a qualified lawyer for your case.
A penal notice is a critical endorsement on court orders, typically under Form 87 of the Rules of Court 2012, warning that breach may lead to contempt proceedings, arrest, or imprisonment. It's meant to put parties on clear notice of consequences.
Failure to endorse it often raises objections: Is the application fatally flawed? Strict precedents say yes, but others emphasize substance over form—especially if no prejudice occurs. This balance reflects broader principles of procedural fairness seen in various judgments.
Yes, Court of Appeal cases affirm that omitting the penal notice isn't always fatal. The leading authority is Class One Video Distributors SB v. Channam Singh a/l Sher Singh 1997 3 CLJ 694; 1997 5 MLJ 205.
In this case, the court held: The defect in not complying with the endorsement of the penal notice is not fatal so long as the respondents had knowledge of the terms of the order. The failure to endorse the penal notice therein - is not fatally flawed. As the respondents knew or is deemed to have known of the terms of the order and hence no prejudice is thereby caused to him for such irregularity. LOH ENG LEONG & 2 ORS vs LO MU SEN & SONS (SDN) BERHAD & ANOR - 2008 MarsdenLR 3918LOH ENG LEONG & 2 ORS vs LO MU SEN & SONS (SDN) BERHAD & ANOR - 2008 MarsdenLR 2446
Key rationale:- Actual or Deemed Knowledge: If respondents received counsel's advice on the order, they're deemed to know its terms.- No Prejudice: Without harm from the irregularity, the defect is curable.
This ruling prioritizes justice over technicalities, echoing sentiments in other procedural contexts. For instance, one judgment notes that even delays in recording verdicts under section 190 of the Criminal Procedure Code aren't fatal if no failure of justice occurs: Silva (supra) held that the failure to comply with section 190 of the Criminal Procedure Code was not fatal to the conviction in that case as the delay in recording the verdict had not occasioned a failure of justice. VETHANAYAGAM v. INSPECTOR OF POLICE KANKESANTURAI
Two key excerpts reinforce Class One Video:
The respondents having had the benefits of counsel's advice - is deemed to know of the terms that he had knowledge of the terms of the order. The defect in not complying with the endorsement of the penal notice is not fatal so long as the respondents had knowledge of the terms of the order. LOH ENG LEONG & 2 ORS vs LO MU SEN & SONS (SDN) BERHAD & ANOR - 2008 MarsdenLR 2446
See Class One Video Distributors SB v. Channam Singh a/l Sher Singh 1997 3 CLJ 694; 1997 5 MLJ 205. LOH ENG LEONG & 2 ORS vs LO MU SEN & SONS (SDN) BERHAD & ANOR - 2008 MarsdenLR 3918
These establish a clear precedent: Knowledge cures the omission. This aligns with Rules of Court flexibility, where later endorsement is possible: To summarise my analysis, I am of the view that leave of Court is not required for a party to endorse a copy of a Court order with a penal notice under r 696(4) FJR. ... The omission of the Penal Notice in the draft order agreed between the parties and which became an order of the Court does not prevent the plaintiff from now serving the order with a Penal Notice. KOH HSI-PIN VIVIAN vs RSD HOSPITALS SDN BHD
Additionally, Form 83 (related to enforcement) must be endorsed mandatorily but doesn't alter the core judgment: Form 83, a penal notice concerning judgment enforcement, does not form part of the Judgment or Order, and its endorsement is mandatory upon application by the successful party. Courts lack discretion to refuse, per Order 45 r 7(4). other_sources description on Form 83
Not all cases are forgiving. Some Court of Appeal rulings deem the absence fatal:
Inter Heritage (M) Sdn Bhd v. ASA Sport Sdn Bhd 2009 2 CLJ 221, at 230-231: The following appellate cases has clearly decided that the lack of a penal notice in a judgment or order is fatal to a committal application... (a) the Court of Appeal case of Inter Heritage (M) Sdn Bhd v. ASA Sport Sdn Bhd, 2009 2 CLJ 221, at 230-231. TAN KANG HO vs MAO SHENG MARKETING (M) SDN BHD & ORS - 2015 MarsdenLR 358
Reiterated: In the Court of Appeal case of Inter Heritage (M) Sdn Bhd v. ASA Sports Sdn Bhd, 2009 2 CLJ 22, it was held that a failure to endorse a penal notice was fatally flawed. ANG PI KUI vs LEE WEE TECK & ANOR; RANHILL SAJ SDN BHD (RESPONDENT) - 2022 MarsdenLR 473
This split highlights nuance: Strict compliance wins without knowledge proof, but Class One Video offers an escape via demonstrated awareness.
Similar tensions appear in administrative law, like blacklisting, where procedural lapses (e.g., no show-cause notice) are often fatal due to grave consequences: In these cases, furnishing of a valid show-cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto. Isolators and Isolators through its Proprietor Mrs. Sandhya Mishra VS Madhya Pradesh Madhya Kshetra Vidyut Vitran Co. Ltd. - 2023 Supreme(SC) 373Hope Enterprises VS Chhattisgarh Textbook Corporation - 2022 Supreme(Chh) 329Nishant Prakash VS State of Jharkhand - 2022 Supreme(Jhk) 210Arinem Consultancy Services Pvt. Ltd. VS State of U. P. - 2021 Supreme(All) 1681Quess Corp. Limited, through its Chief Operating Officer-Tej Hans Raj Singh VS State of Jharkhand - 2021 Supreme(Jhk) 987
Yet, the principle mirrors: No prejudice, no fatality—as in penal notice scenarios.
The non-fatal rule isn't absolute:- Knowledge Essential: Must prove actual knowledge or deemed via counsel; otherwise, fatal per cases like Leow Seng Huat v Low Mui Yein 1996 5 MLJ 381: Failure to insert the penal indorsement in the order is fatal to an application for committal. FIRST CONSOLIDATED SDN BHD vs PADU EHSAN SDN BHD; MAJLIS PERBANDARAN MELAKA BANDARAYA - 2003 MarsdenLR 2125FIRST CONSOLIDATED SDN BHD vs PADU EHSAN SDN BHD; MAJLIS PERBANDARAN MELAKA BANDARAYA BERSEJARAH (GA.... - 2003 MarsdenLR 1442- Form 87 Strictness: Mere service without endorsement fails in rigid applications.- Analogy to Natural Justice: Like blacklisting, where show-cause is mandatory pre-penalty, penal notices demand clear warning unless cured by knowledge. Hope Enterprises VS Chhattisgarh Textbook Corporation - 2022 Supreme(Chh) 329
To leverage Class One Video:1. Document Knowledge: Affidavits showing service, counsel advice, or prior hearings.2. Endorse Promptly: Serve endorsed copies post-order if omitted initially. KOH HSI-PIN VIVIAN vs RSD HOSPITALS SDN BHD3. Anticipate Objections: Prepare arguments on no prejudice.4. Hybrid Approach: Comply with Form 87 but bolster with knowledge evidence against Inter Heritage risks.
In enforcement like medical record production, courts affirm mandatory endorsements without discretion. Form 83 description
This evolving area rewards preparation. Stay updated on Rules of Court amendments. For tailored advice, engage counsel.
#PenalNotice #MalaysianLaw #CommittalProceedings
In the Court of Appeal case of ; [2009] 2 CLJ 22; [2002] 1 AMR 890, it was held that a failure to endorse a penal notice was fatally flawed. ... The failure of the applicant to indorse the penal notice on the consent judgment is fatal. ... As such, the failure to have a Penal Notice endorsed on the said consent order was fatal to the case of th....
In the Court of Appeal case of Inter Heritage (M) Sdn Bhd v ASA Sports Sdn Bhd [2009] 2 CLJ 221, it was held that a failure to endorse a penal notice was fatally flawed. ... The failure of the applicant to indorse the penal notice on the consent judgment is fatal. ... As such, the failure to have a Penal Notice endorsed on the said consent order was f....
] is in my opinion not an authority for the proposition that the failure to record the verdict as required by section 190 of the Criminal Procedure Code is not a fatal irregularity. ... Silva (supra) held that the failure to comply with section 190 of the Criminal Procedure Code was not fatal to the conviction in that case as the delay in recording the verdict had not occasioned a failure of justice. One other case, viz., The King v....
ASA Sports Sdn Bhd, [2009] 2 CLJ 22, it was held that a failure to endorse a penal notice was fatally flawed. ... As such, the failure to have a Penal Notice endorsed on the said consent order was fatal to the case of the banks as laid down in Inter Heritage (M) Sdn Bhd." ... Only by endorsing the penal notice will it give notice to the alleged contemnors that they may potentially face ....
The defect in not complying with the endorsement of the penal notice is not fatal so long as the respondents had knowledge of the terms of the order. The failure to endorse the penal notice therein - is not fatally flawed. ... In essence, the respondents' defences are as follows: (a) That the order of the Court of Appeal is not enforceable by contempt as it wa....
The defect in not complying with the endorsement of the penal notice is not fatal so long as the respondents had knowledge of the terms of the order. The failure to endorse the penal notice therein - is not fatally flawed. ... In essence, the respondents' defences are as follows: (a) That the order of the Court of Appeal is not enforceable by contempt as it wa....
The defect in not complying with the endorsement of the penal notice is not fatal so long as the respondents had knowledge of the terms of the order. The failure to endorse the penal notice therein - is not fatally flawed. ... [10] In essence, the respondents' defences are as follows: (a) That the order of the court of Appeal is not enforceable by contempt as i....
The defect in not complying with the endorsement of the penal notice is not fatal so long as the respondents had knowledge of the terms of the order. The failure to endorse the penal notice therein - is not fatally flawed. ... not enforceable by contempt as it was not endorsed with a penal notice. ... in Arthur Lee Meng Kwang's case also made ....
ASA Sports Sdn Bhd, [2009] 2 CLJ 221, it was held that a failure to endorse a penal notice was fatally flawed. ... As such, the failure to have a Penal Notice endorsed on the said Consent Order was fatal to the case of the Banks as laid down in Inter Heritage (M) Sdn Bhd. ... Hence, the indorsement of the penal notice under O 45 r 7(4) of the Rules is a mandatory prerequisite before the same can be executed via co....
[42] To summarise my analysis, I am of the view that leave of Court is not required for a party to endorse a copy of a Court order with a penal notice under r 696(4) [FJR]. ... [29] The omission of the Penal Notice in the draft order agreed between the parties and which became an order of the Court does not prevent the plaintiff from now serving the order with a Penal Notice at....
In these cases, furnishing of a valid show-cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto.” In light of the above decisions, it is clear that a prior show-cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted. “6. Learned counsel for the contesting respondents have strenuously contended that the special leave petitions ag....
In light of the above decisions, it is clear that a prior show cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted. Thus, from the above discussion, a clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the par....
In these cases, furnishing of a valid show-cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto.” In light of the above decisions, it is clear that a prior show-cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted.
In light of the above decisions, it is clear that a prior show-cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted. In these cases, furnishing of a valid show-cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto.''
In these cases, furnishing of a valid show-cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto.” In light of the above decisions, it is clear that a prior showcause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted.
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