24NCC 392 11 2012
24NCC 392 11 2012
24NCC 392 11 2012
ANTARA
RHB BANK BERHAD
(No. Syarikat: 6171 M)
...
PLAINTIF
...
DEFENDAN
DAN
NORESAH BINTI LANI
(No. K/P: 5547319)
Grounds of Decision
The Applications
[1]
(i)
(ii)
[2]
With the consent of both parties, the court proceeded to hear all
three applications together, enclosure (1) the Originating
Summons (for permanent in junction), (2) the inter parte
application for injunction and (7) the defendants application to set
aside the ex parte injunction.
[4]
[5]
[6]
At the same time, the Plaintiff had filed an application to stay the
decision of the Court of Appeal under section 44 of the CJA. The
application for stay was fixed for hearing on 12.11.2012 but was
adjourned to 6.12.2012. But parties, by consent, had agreed to
an interim stay before the Court of Appeal in the morning on
12.11.2012. In the afternoon on 12.11.2012, the Plaintiff had
secured an ex parte injunction from this court.
[7]
[8]
Since the Plaintiff did not pay the solicitor and client cost of
RM89,844.70 (for the High Court trial) and the RM15,000.00 (the
appeal), the Defendant issued a Notice dated 19.10.2012 under
s. 218 of Act 125 for the payment of the costs. After the issuance
of the Notice dated 19.10.2012, the Plaintiff paid RM15,000.00
but the sum of RM89,884.70 remain outstanding.
decision
in
Mobikom
Sdn
Bhd
v.
Inmiss
(i)
[10]
The Plaintiff claims that since the costs was granted on a solicitor
and client basis, it must be taxed under section 126 of the Legal
Profession Act 1976. Since the costs have not been taxed, the
amount is yet to be ascertained, and therefore there is no debt
due and owing.
[11]
(i)
It is the Defendants
[14]
On this issue however, I would agree with Counsel for the Plaintiff
that from reading the last paragraph of the Plaintiffs affidavit, the
Plaintiff did seek an order in terms of both the application and the
Originating Summons. Therefore, we can accept that the
supporting affidavit is meant to support both the application and
the Originating Summons, as the prayers in both are the same.
[15]
Next, the Defendant submits that the Plaintiff has failed to comply
with the mandatory requirements of Order 29 r 1(2A)(c ), (d), (e)
and (f), which read as follows:(2A) The affidavit in support of an application made ex
parte must contain a clear and concise statement
of
6
(a)
...
(b)
...
(c)
(d)
(e)
(f)
(g)
[16]
...
Order 29 r 1(2A) uses the word must. On the usage of the word
must in the Rules, the Federal Court in DYMM Tunku Ibrahim
Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v
Datuk Kapten Hamzah bin Mohd Noor [2009] MLJU 401 said
this:The word must appearing in O. 6 r. 7(2A) is not
usually used in the Malaysian legislations. Normally the
word used is shall. So in this case when the word
must is used, the intention is to fully ensure it is
complied with and no discretion is to be given as far as
the compliance with the prerequisites is concerned...
7
[17]
In the present case, the Defendant submits that the Plaintiff has
failed to comply with the mandatory requirement of giving details
of any notice given to the other party (the Defendant herein) or, if
notice has not been given, the reasons for not giving the notice in
the supporting affidavit (O. 29 r 1(2A)(c )). The Defendant says
that both parties were in the Court of Appeal in the morning, yet
the Plaintiff did not inform them of the ex parte application fixed in
the afternoon on the very same day. In University of Malaya
Medical Centre v Choo Chee Kong [2008] 5 CLJ 295, Justice
Hishamudin Mohd Yunus, in an application to set to set aside an
ex parte injunction, has held that the legal burden is on the
Plaintiff to satisfy the court as to why it failed to give notice to the
defendants. On this issue, I find that vide two letters dated
23.10.2012 and 2.11.2012, the Plaintiff had informed the
Defendant that they will take legal action, including an injunction
if there is
[18]
[19]
[20]
[21]
I take note that the Defendant, in the letter dated 5.11.2012, has
responded to the Plaintiffs letter dated 2.11.2012, within the
stipulated time, that is before 4.30pm on 5.11.2012. I also take
note that the application for an ex parte injunction was filed about
24 hours later, on 6.11.2012 at 5.57pm. Therefore, there was a
window of opportunity for the Plaintiff to exhibit the Defendants
letter dated 5.11.2012, but they failed to do so. If the letter had
been brought to the attention of the court, there is a possibility
that the court may not grant the ex parte injunction, but may
instead require the matter to be heard on an inter parte basis, as
the parties had already agreed to an interim stay until 6.12.2012.
There is also an offer by the Defendant that they will not proceed
to present the winding up petition if the amount of RM89, 844.00
is remitted to the Defendants counsel as a stakeholder. All these
information should have been revealed to this court, and failure to
do so constitutes a serious breach of the Rules and the ex parte
order must be set aside. The ex parte injunction is hereby set
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(ii)
[22]
[23]
On the other hand, the Defendant says that since the costs
ordered by the court is on solicitor and client basis, the Defendant
had paid the amount of RM89,844.70 to her counsel, and is now
seeking reimbursement of the same amount from the Plaintiff.
Vide a letter dated 5.4.2011, the Counsel for the Defendant
issued a final reminder to the Plaintiff to pay the RM89,844.70 as
costs.
Defendant says that if the Plaintiff is not happy with the amount,
they can apply to have it taxed pursuant to section 126 of the LPA
1976.
[24]
Section 126 LPA 1976 was considered by Justice Low Hop Bing
in Technointan Holding Sdn Bhd v Tetuan Tan Kim Siong &
Teh Hong Jet [2006] 7 CLJ 541. At page 545, Justice Low held
that a party chargeable with the bill of cost must apply for taxation
within 6 months from the delivery of the bill.
[25]
[26]
[27]
Costs of RM
PLAINTIFF:
DEFENDANT:
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