JUDGEMENT & ORDER

(0.42 ROC)
1. Difference between judgment and order
“Judgement and order are interchangeable terms.
When a decision brings finality to an action, it is termed as judgement.
Where the decision of the court is only interlocutory in nature it is more readily referred to as
an order”.

“A judgment is a decision obtained in an action and any other decision is an order”

 Onslow v Commissioners of Inland Revenue

2. Judgement to be pronounced in open court: r.1

Every judgment after trial must be pronounced in open court at the conclusion of the trial or
on a subsequent date of which notice must be given to all parties.

 Written judgment:
1. Written judgment to be filed-r.2

2. Judgment of absent judge –r.3.

3. Entry of judgment in cause book-r.4

 Forms of judgment/order:
0.42 r.5 ROC provides that:

(1) Where Form 79 prescribes the form for a particular judgment, then the judgment must
be in that form. However, where it is not practical to follow any particular form, any minor
deviation may be acceptable if such deviation has no substantial effect and is not calculated to
mislead.

2) The party entering any judgment shall be entitled to have recited therein a statement of
the manner in which the writ or the originating process by which the cause or matter in
question was begun was served.

 Judgment, etc requiring act to be done and the time for doing it - 0.42 r.6:
1. 0.42 r.6 ROC provides that:
(1) Subject to paragraph (2), a judgment or order which requires a person to do an act must
specify the time after service of the judgment or order, or some other time within which
the act is to be done.

(2) Where the act which any person is required by any judgment order to do is to pay money
to some other person, give possession of any immovable property or deliver any movable
property, a time within which the act is to be done need not be specified in the judgment
or order by virtue of paragraph (1), but the foregoing provision shall not affect the power
of the Court to specify such a time and to adjudge or order accordingly.

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 2. Note that the rule under r.6(1) must be read with 0.45 r.5 where a time is specified and the
indorsement in Form 87 must be with the following:

“If you the within-named…. Neglect to obey this judgment (or order) by the time therein
limited, you will be liable to process of execution for the purpose of compelling you to obey the
same”.

3. If the indorsement is not done, the judgment/order cannot be enforced and it is not possible to
take committal proceedings against the party for disobeying the order of the court.

4. Cases:
 Re Wilde[1910]
 Cotton Heyl [1930]
 Hitachi Sales (UK) v Mitsui OSK Lines [1986]
 Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932]
 OKRST Arumugam v KRSSP Suppiah Chettiar [1935]
 The Vanda

 Date from which judgment /order takes effect:

1. 0.42 r.7 ROC provides that a judgment or order of the Court takes effect from the day of
its date.
2. This rule applies to all judgments and orders regardless of whether the same is
pronounced, given or made in open court of chambers or by a Judge or Registrar.
3. The power of the court under 0.42 r 7(2) ROC should only be exercised on good grounds:
 Yeo Kim Huan v Hamid [1968]

 Preparation of judgment and orders – 0.42 r.8 ROC:

0.42 r.8 provides that:

(1) Where the party in whose favour a judgment or order is given or made is represented by
a solicitor, a copy of the draft shall be submitted for approval to the solicitor (if any) of the
other party who shall within 2 days of the receipt thereof, or within such further time as may
in any case be allowed by the Registrar, return such copy with his signed consent or any
required amendments thereto.

(2) When the solicitor omits to return the copy of the draft, any one of them may obtain an
appointment before the Registrar, of which notice shall be given to the other, to settle the
terms of the judgment or order.

(3) In any case where the solicitors concerned are unable to agree upon the draft, any one
of them may obtain an appointment before the Registrar, of which notice shall be given to the
other, to settle the terms of the judgment or order.

(4) Every judgment or order shall be settled by the Registrar, but in the case of a judgment
or order made by a judge, any party may require the matter in dispute to be referred to the
Judge for his determination.

- Parasumaran a/l Kuppan v Sazali bin Md Akhir [1999] 4 MLJ 113, CA.

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 (5) Where the other party has no solicitor, the draft shall be submitted to the Registrar.

 Orders required to be drawn up – 0.42 r.9 ROC:

0.42 r.9 provides that:

(1) Subject to paragraph (2), every order of the Court shall be drawn up unless the Court
otherwise directs.

(2) Certain order, unless the court otherwise directs, need to be drawn up such as orders:
(a) Which:
(i) extend the time for doing an act; or
(ii) grant leave for doing any of the acts in paragraph (3); and
(b) Which neither imposes any special terms nor includes any special directions other
than a direction as to costs.

(3) The acts referred to in paragraph (2)(a)(ii) are:

(a) Issue of any writ to be served out of the jurisdiction;
(b) Amendment of any originating process or pleadings;
(c) Filing of any document;
(d) Any act to be done by an officer of the court other than a solicitor.

 Drawing up and entry of judgment and orders – 0.42 r. 10 ROC:

See 0.42 r.10 which governs the rules in drawing up and entry of judgment and order by an
officer of the Registry in the book kept for the purpose and are are summarised as:
(1) A judgment presented for entry at the Registry shall be entered in the book kept for the
purpose.

(2) The party seeking entry of judgment must draw up the judgment and present it to the
Registry.

(3) Upon entry of the judgment, the officer of the Registry must give a duplicate to the party.

(4) Every order required to be drawn up must be drawn up by the successful party within 7
days after it is made.

(5) The order in paragraph (4) together with a copy must be produced at the Registry and
after being sealed shall be returned to the party and the copy shall be lodged in the
Registry.

 Duplicates of judgments and orders – 0.42 r.11 ROC:

 Interest on judgments and orders – 0.42 r 12 ROC :

1. The court has wide powers to award interest on debt and damages.

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 2. S.11 Civil Law Act 1956 provides that the court has discretion to award interest
between the date when the cause of action arose and the date of judgment (pre –
judgment interest).

3. Further, 0.42 r 12 provides the every judgment debt shall carry interest at the rate of
8% per annum or at such other rate not exceeding the rate aforesaid as the Court
directs (unless the rate has been otherwise agreed upon between the parties), such
interest to be calculated from the date of judgment until the judgment is satisfied.

4. Cases:
 New Zealand Insurance Co Ltd v Ong Choon Lin
 Kong Ming Bank Bhd v Lau Pang Thang
 Lee Tain Tshung v Hong Leong Finance Bhd

 Setting aside or varying judgments and oders – 0.42 r.13 ROC :

1. 0.42 r.13 provides that where in these Rules provisions are made for the setting aside or
varying of any order or judgment, a party intending to set aside or vary such order or
judgment must make his application to the Court and serve it on the other party who has
obtained the order or judgment within 30 days after the receipt of the order or judgment
by him:
 Chong Keat Realty Sdn Bhd v Ban Hin Lee Bank [2003]
 Ramlan bin Kamal v Perbadanan Nasional Bhd [2004]

2. Apart from amendments allowed under slip rule (0.20 r.11), or amendment or setting aside for
default of appearance, pleadings and absence of a party at the trial or hearing, the court has no
power under any application in the same action to alter, vary or set aside, a judgment
regularly obtained or an order after it is drawn up, the judge is functus officio:
 Hock Hua Bank v Sahari bin Murid
 Mui Bank Bhd v Cheah Kim Yu

See Court of Appeal cases of:-

 Lee Gee Pheng v RHB Bank Bhd [2004] 1 MLJ 618;
 Hong Leong Finance Bhd v Staghorn Sdn Bhd (Rayuan Sivil No 13-02-132-1995)
(2005)

3. But prior to the judgment or order being drawn up and perfected, the courts retains absolute
jurisdiction to alter, vary modify or set aside its own order or judgment:
 Re Harisson’s Shares Under a Statement [1955] Ch 260, [1955] 1 All ER 185
 Syarikat Marak Jaya Sdn Bhd v Syarikat Masinda Sdn Bhd [1991] 2 MLJ 417.

4. Varying a consent order:

 Zainuddin bin Muhammad v Atsco Ltd & Anor
 Jasa Keramat Sdn Bhd v Monatach

 Power of Court to amend, vary, or set aside judgment and orders:

1. Judgment/Order pronounced but not yet perfected:
(1) A judgment/order is perfected when the seal of the court is made:

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  Tan Ah Yeo & Anor Seow Teck Ming & Anor
 Arab-Malaysian Finance Bhd v Malacca Development Corp Sdn Bhd

(2) A judgment/order pronounced but not yet perfect may be recalled and further
arguments heard:
 Tan Ah Yeo & Anor v Seow Teck Ming & Anor [1989] 2 MLJ 3.

(3) Limitation of the powers of the court:

It should be noted that the powers of the court to amend, vary or set aside
judgment and orders must be exercised judicially and not capriciously:
 Chee Kuan Cheng v Chuo Kong Kah
 Syarikat Marak Jaya Sdn Bhd v Syarikat Maslinda Sdn Bhd
 Chua Weng Meng v Wong Kok Kong

(4) Governing principles:- where the court alter, vary or amend a judgment or
an Order pronounced though not perfected can be outlined as follows:
a) The application to recall the judgment or order for the purpose of the
reviewing it must be done expeditiously.
b) Having regard to the extensive rights of appeal, the power to recall an
order which has not been passed and entered should be sparingly
exercised if such issues for further consideration can be left to be dealt
with by way of appeal to the CA.
c) There must be an intervening act or event form the day the order was
pronounced to the day when the order was recalled for review and that
an unperfected order is recalled when there is some doubt regarding the
correctness of the order as orally pronounced.
d) When it was necessary and the justice of the case requires it to be
reviewed and a judge reopened the case with a view to perfecting the
order.

 Judgment/Order pronounced and perfected:

1. Once perfected, the judgment/ order cannot be recalled. If it is recalled, the party affected can
appeal:
 Hock Hua Bank Bhd v Sahari bin Murid

2. Exceptions:
(1) In Hock Hua Bank Bhd (supra) the Federal Court (Chang Min Tat Fj) said that,”
However, like any other general principle, there exceptions to it [cannot set aside a
judgment/order which has been perfected] and the same court has the inherent power to
entertain any application to amned or set aside a final order:
a) Under 0.20 r.11 of the Rules of the High Court 1980, better known as the slip rule,
insofaras it is necessary to correct errors in expressin the intention of the court;
b) The order relates to a judgment in default or made in the absence of a party at the trial
or hearing”. (0.13 r.8, 0.19 r.9, 0.14 r.11 ROC 1980)
(2) The court held that an aggrieved party may impeach a regularly drawn up order but
only in a fresh suit brought to challenge the order on grounds that:

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 a) the judgment or order had been obtained by fraud; or
b) fresh evidence which was not available at the trial or hearing is now available and
may affect the order; or the order had ben entered by consent which does not
manifest the intention of the parties.
 Eu Finance Bhd v Lim Yoke Foo applied Hock Hua Bank
 Badiaddin bin Mohd Mahidin & Anor v Arab – Malaysian Finance Bhd [1998]
 Selvam Holdings (M) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd [2000]

3. From the above discussion it should be noted that:

(1) Once a judgment or order is perfected, the general rule is that it cannot be recalled to
vary, amend or set aside. The aggrieved party has to appeal.
(2) However, in certain situations the aggrieved party may:
a) take fresh action (or collateral proceedings) ex debito justitiae to challenge the
judgment or order which has been perfected (Eu Finance Bhd v Lim Yoke Foo;
Selvam Holdings (M) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd); or
b) apply to the same High Court which can use its inherent jurisdiction set it aside in
order to do justice (Badiaddin bin Mohd Mahidin & Anor v Arab – Malaysian
Finance Bhd).

Consent judgments/orders

What is a consent judgment?
Whether consent judgment may be set  Huddersfield Banking Co Ltd v Henry Lister &
aside or challenged:
Procedure to set aside consent 37 Halsbury, 4th Edn, para 390:
judgment/order:
Parties may reach a settlement before or during the
trial and it is important to ensure that a consent
judgment /order is carefully worded and can be
enforced if any of the parties fails to abide by its
terms:
 Leong Ah Weng v Neoh Thean Soo & Anor
The Federal Court emphasised that the court
will not cure any defects in the consent order.
Son
 Tio Chee Hing v Tractors Malaysia Bhd
 Syarikat Marak Jaya Sdn Bhd v Syarikat Maslinda
 Lau Ming Hing Richard v Bank Pembangunan
Malaysia Bhd
 Yap Teck Ngain v Mobil Oil Malaysian Sdn Bhd
**Please note the facts and principals in these
cases.
 The GR is that a consent judgment or order which
has been sealed cannot be set aside by the court
of first instance even thought it was entered by
mistake, but it may be set aside or altered with
the consent of all the parties, provided it does not
prejudice a TP.
 A consent judgment/order may be set aside in a

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 fresh action on any ground which may invalidate
the agreement.
 Leong Ah Weng v Neoh Thean Soo & Anor
 Yee Seng Plantation Sdn Bhd v Kerajaan
Negeri Terengganu & 3 Ors

 Grounds to set aside consent judgment/order:-

The ultimate question is whether it is in the interest of justice.

(i) Consent order entered does not manifest the
Intention of the court:-
(ii) There is absence of consent by the parties:-
(iii) There is a common mistake as held in:
(iv) There is lack of authority of solicitors to
enter consent order:
(v) There is grave injustice:
 Paper Machinery Ltd v Ross Engineering
Corp et al
 Stewart v Complex
 Khaw Poh Chuan v Ng Gaik Peng & Ors
 Huddersfield Banking Co Ltd v Henry
Lister & Son Ltd
 Lau Ming Hing Richard v Bank
Pembangunan Malaysia Bhd
 Yap Teck Ngain v Mobil Oil Malaysian Sdn
Bhd.
 Waugh v Clifford & Sons Ltd
 Leow Seng Huat v Low Mui Yein
 Marsden v Marsden
 Khaw Poh Chuan v Ng Gaik Peng & Ors
 Neal v Gordan [1902] AC 465(HL)

 Clerical mistakes/errors in judgments or orders (0.20 r.11 ROC; ):

It is settled law that after a judgment or order has been perfected, amendments may only be
made to it in relation to clerical errors, accidental slips and omission as provided by 0.20 r.11
ROC and 0.15 r.8 SCR.
 Shell Malaysia Trading Sdn Bhd v Seng Yuet Yong
 Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300.
 Syarikat Marak Jaya Sdn Bhd v Syarikat Masinda Sdn Bhd [1991] 2 MLJ 417.

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