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JUDGEMENT AND ORDER

MEANING

Judgement v Order
 Judgement is a decision that brings an end to an action such as default
judgement and summary judgement.
 Order in the other hand is where the decision of the court is only interlocutory
in nature such as order to the extent of the validity of writ, for discovery, or
amend pleadings.
 In Bozson v Altrinchman Urban District Council, the test to determine the
nature of the judgement or order is if the judgement or order made finally
disposes of the rights of the parties, then it is final order, otherwise it is an
interlocutory order.
 This test was referred by Federal Court in Haron bin Mohd Zaid v Central
Securities (Holdings) Sdn Bhd.

Judgement/Order v Ground of Judgement


 Judgement or order is a specific decision which can be enfored by various
procedures provided in the litigation framework.
 Meanwhile, ground of judgement contains the explanation and the justification
why such decision has been made.
 The judge will explain the ground of judgement that can be enforced.
 Such judgement and ground of judgement may be deliver by the court at the
same time or the ground of judgement can be delivered at later date.
 In DSAI v Tun Dr Mahathir Mohamad (2011) the issue arose is whether
grounds of judgement constitute part of the proceedings. Federal Court held
that a distinction should be made between judgment and ground of judgement.
Judgement forms part of the proceeding because proceedings includes
judgement, execution and appeal. Meanwhile, ground of judgement could not
be a form of the proceedings.

PRONOUNCE OF JUDGEMENT

 Order 42 Rule 1 (1) states that every judgement, after the hearing of a cause
or matter in open court, shall, subject to paragraphs (3) and (4), be pronounced
in open court either on the conclusion of the hearing or on a subsequent day of
which notice shall be given to the parties
 Order 42 Rule 1(2) states that where a cause or matter is heard in Chamber,
the judge hearing it may, subject to paragraphs (3) and (4), pronounce the
judgement in Chambers, or if he thinks fit, in open Court.

WHEN IS JUDGEMENT IS EFFECTIVE


 Order 42 Rule 7(1) a judgement or order of the Court takes effect from the day
of its date.
 Order 42 Rule 7(2) further states that such a judgment or order shall be dated
as of the day on which it is pronounced, given or made, unless the Court orders
it to be dated as of some other earlier or later day, in which case it shall be
dated that other date.
 In Chia Yan Tek & Anor v Ng Swee Kiat & Anor, the issue arose is whether
the efficetive date of the judgment is the date of the judgement given or the date
on which it is pronounced in open court.
 The court held that the effective date of the judgement is the date of
pronouncement of the judgement in open court, and not the date when it was
signed. In this case, the respondent’s application for an order of the judgement
was set aside becuase on that date, the court was not duly constituted as there
was only 2 judges remaining.

PREPARATION OF JUDGEMENT
 Order 42 Rule 8 states that successful party drafts judgment and send to the
other party for approval. The other party must return the draft within 2 days by
filing the approved draft for court’s approval. Once the court approved, file fair
copy in court.
 In Hasil Bumi Perumahan Sdn Bhd v United Malayan Banking Corporation
Bhd (1994) a draft judgement is not a judgement because the draft needs
perfection and approval.
 In Order 42 rule 8(4), where the both parties disagree to the wording of the
order, they can fix appointment before the registrar to settle the terms of
judgement or order or any party may request the matter to be referred to the
judge for his determination.

DISPUTE ON TERMS OF JUDGEMENT OR ORDER


 In Sang Lee Co Sdn Bhd v Munusamy (2010) the court can amend an sealed
order which stated under order 20 rule 11 RHC, when such seal order does
not reflect what was actually pronounced. In such situation, the court is not
functus officio (discharged from his duty).

INTEREST OF JUDGEMENT SUM


 Order 42 rule 12 interest at 5% from the date of judgement until full settement.
Refer to PD No. 1/2012.
 Order 42 rule 12A late payment charge on judgement debts arising from
financial transactions in according with Shariah.

SETTING ASIDE OR VARY JUDGEMENT AND ORDERS


 Order 42 Rule 13 states that where provisions are made for the setting aside
or varying of any order or judgment, a party intending to set aside or to vary
such order or judgment shall make an 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.
 For an example, judgement that can be set aside are JID of appearance and
defence, judgment in the absence of party at hearing or trial.
 In Adnan Ishak v APT Associates Sdn Bhd (2015), in this case, the court
does not consider the defendant’s application to set aside the judgement. This
is because the application was not made within 30 days period prescribed by
rule 14 and there is no explanation for the delay. Furthermore, there is no
application for an extension of time to apply. Thus the court dismissed the
application to set aside.
 In Hock Hua Bank Bhd v Sahari bin Murid (1981), the court has no power
under any application in the same action to alter, vary or set aside of judgement
after it has been entered or an order after it has been drawn up, except under
the rule of Order 28 rule 11 of Rule of Supreme Court and Order 20 Rule 11
of RHC, so far is necessary to correct any errors in expressing the intention of
the court unless it is a judgement by default or made in the absence of a party
at the trial or hearing.
 In Muniandy a/l Thamba v D&C Bank (1996) the court has no power by any
application in the action to alter or vary a judgement after it has been entered
or an order after it has been drawn up, except to correct errors in expressing
the intention of the court, subject to certain exceptions, one of which is that an
order which is nullity owing to failte to comply with essential provision such as
service of process, can be set aside by the court which made the order in the
exercise of its inherent jurisdiction.

LIMITATION PERIOD
 Section 6(3) of Limitation Act 1953, 12 years from the date the judgment
becomes enforceable (not from the date of the judgment). However, no
judgement interest can be recovered after the expiration of 6 years from the
date on which the interest became due.
 In Captain Ho Fooi v Std Chartered Bank (2009), the purpose of computing
6 years limitation period for the recovery of interest in judgement debt, time
begins to run from the date of judgement. Such limitation only applies to post
judgement interest and not pre-judgement interest.

RECIPROCAL ENFORCEMENT OF JUDGEMENT

Procedure and Principle


 The law regarding the reciprocal enforcement of judgement are stated under
Order 67 RC 2012 and Reciprocal Enforcement of Judgements Act 1958
(REJA).
 There are requirements for foreign judgements to be enforced in Malaysia
under REJA which are:
(a) The judgement must be a monetary judgement
(b) The judgement must be a judgement of a superior court from a reciporcating
country under REJA; and
(c) The judgement must be final and conclusive.
 The procedure for recognising and enforcing a foreign judgement in Malaysia
are:
(1) The foreign judgement creditor must file an OS supported by an affidavit
where the affidavit must exhibit the duly verified or certified copy of foreign
judgement. The affidavit also must comply with Order 67 Rule 3 RC 2012.
(2) On the hearing date, the court will grant leave to register the judgement.
The order for leave must state the period within which an application may
be made to set aside the registration and the execution on the jugdement
will not issue until the expiration of that period between 14 to 21 days.
(3) The order for leave to register must be served on the judgement debtor
together with a notice of registration.
(4) If an application to set aside the registration of the judgement is filed by the
judgement debtor, the court will fix a hearing date for the application. The
judgement cannot be enforced until the disposal of the said application.

Challenging the Enforcement of Judgment under REJA


 Under REJA, the registration of a foreign judgement may be set aside on the
following grounds which are:
(a) The judgement is not a judgement to which Part II of REJA applies, or was
registered in contravention of REJA
(b) The judgement is not a judgement of a superior court or a reciporacting
country or was in contravention of REJA
(c) The court of the country or the original court had no jurisdiction
(d) the judgment debtor, did not receive notice of such proceedings in sufficient
time to enable him to defend the proceedings and did not appear;
(e) the judgment was obtained by fraud;
(f) the enforcement of the judgment would be contrary to public policy;
(g) the rights under the judgment are not vested in the person by whom the
application for registration was made.

Specific Legal Mechanism to Enforce Foreign Judgement


 REJA
The registration of money judgments made by a superior courts of reciprocating
countries under REJA.
 MOFEA
The registration of orders for maintenance payments in a matrimonial
relationship.
 Probate and Administration Act
The re-sealing of a grant of probate or LA issued by a court of a Commonwealth
country.

Mode of Enforcement Judgment under REJA


 A judgement creditor may apply for:
(a) A writ of seizure and sale
(b) An application to examin judgement debtor
(c) An application for garnishee order
(d) An application for a charging order in respect of shares held by the
judgement debtor; or
(e) Bankruptcy or winding up proceedings
to enforce a monetary judgement under REJA.