JUDGMENT AND ORDERS (O.42 ROC 2012)

Synopsisthe difference between judgment and orderpronouncement of judgment and orderforms of judgment and orderpreparation of judgment and orderamendment of judgment and order

THE DIFFERENCE BETWEEN JUDGMENT AND ORDERGenerally, judgment and orders are interchangeable terms1-judgment- refers to decision of the court which brings finality to an action -eg. Final/Default judgment, summary judgment etct2-Orders- refers to decision of the court which is interlocutory in nature, the case is not yet decided in its entirety.eg. Order for discovery, order to amend pleading etc

PRONOUNCEMENT OF JUDGMENT O. 42 r 1(1)judgment for cases heard in open court, must be pronounced in open court either immediately on the conclusion of the trial or on a subsequent day of which due notice must be given to the partiesO. 42 r 1(2)Cases heard in Chambers, their judgments may be pronounced in Chambers or in open court.

FILING OF WRITTEN JUDGMENTOrder 42 r 1(2)whenever court delivers a written judgment, original judgment must be signed by the judge and filed in court and its copies may be given to the parties upon payment of the appropriate charges.

Inability to deliver judgment Order 42 r 1(4)if the judge hearing the case is unable to pronounce a judgment due to illness, death or other causes, then the judgment written by him can be pronounced by other judge

Record of judgmentO.42 r 4the proper officer of court must enter in the cause book a minute of the judgment or final orders given by the courtThe proper officers-refer to registrar or senior assistant registrar/deputy registrar

forms of judgmentRule 5(1)- the judgment substantively shall be in F 75If it is not practical to follow any particular form, the prescribed form may be slightly amended to reflect the judgment ordered. S 62 of the Interpretation Act 1948

Rule 5(3)-an order must bear the name of the judge or the registrar who granted the order and must be sealed

O. 42 r 6R 6 (1)-a judgment that requires a person to do an act must specify the date and time for doing it. R 6 (2)- provides that when court makes; 1-order to pay money to some other person 2-Give possession of any immovable property 3-deliver any movable property time within which the act must be done need not be specified, yet the court still has the discretion of specifying the period if it deems necessary

When does the judgment and order take effect?Order 42 r 7A judgment or an order takes effect from the day it is dated.The judgment is dated with the date on which it is pronounced, unless the court order otherwise [earlier or later]

When a judgment is set aside upon appeal and another judgment ordered to be entered, the usual practice is to date the second judgment as at the date the order was made.

PREPARATION AND DRAWING UP OF JUDGMENTOrder 42 r 9- the rules provides that generally all judgments must be drawn up. It is a matter of great importance that orders of the court should be drawn up in accordance with the established practice and should make clear what the court is ordering to be done.

CERTAIN ORDERS THAT NEED NOT BE DRAWN UP Order 42 r 9(2), (3). 1-order for extension of times required by rules, judgment or direction.2-order granting leavesTo amend a writ, OS or pleadingTo file documentsFor any act to be done by an officer of court other than a solicitor3-Orders that do not contain any special terms or directions other than a directions to costsunless the court directs them to be drawn.

PREPARATION OF JUDGMENTProceduresOrder 42 r 8A) if the other party is represented;1-the party in whose favour the judgment is given will prepare a draft judgment and submit to the solicitor of the other party- r 8 (1)2-solicitor of the other party shall, within 2 days of the receipt, return a copy after making amendments (if any) and signing it- r 8 (1)3-if the solicitor omits to return it within 2 days(or any other prescribed period) he shall be deemed to have agreed to the terms in the judgment- r 8(2)

4-in the event the parties cannot come to an agreement on the terms, then they need to obtain an appointment before registrar OR before a judge/magistrate if the judgment is made by the judge/magistrate.- r 8(3),(4)B)if the party is not representedthe draft judgment or order must be submitted to the registrar- r 8(5)

Who should draw up the judgment and order?The party in whose favour the order has been made must draw up the order. If he fails to do so within 7 days after it has been made, any other party affected by the order may draw it up (order 42 r 10(4))Order 42 r 10(5)-the order once drawn up and agreeable to the other party, will be presented to the registry to be examined and sealed, if the draft does not reflect the minute of the judgment, the registrar will amend the draft and send it back to the parties for amendment- after being sealed and upon payment of fees, be returned to the drawing party, and a copy of it will be lodged with the registry.

AMENDMENT OF JUDGMENTGeneral rule-once a judgment is made and perfected, a judge is functus officio. Therefore he cannot amend the judgment.Exception-clerical mistakes/errors-it can be corrected by the court by an application under Order 20 r 11-This is known as a slip ruleHock Hua Bank Bhd V Sahari[1981] 1 MLJ 143-chang Min Tat FJ- said that once a judgment/order has been perfected, the court has no power to alter, vary or set it aside except under the Slip Rule in O. 20 r 11KTS News Sdn. Bhd. v. See Hue [2011] 3 CLJ 144, COA

Where the judgment has been perfected (sealed and signed by court) and the mistakes not fall under Order 20 r 11- the judgment cannot be amended. So the party needs to file an appeal.If the judgment has not been perfected, the judgment may be recalled and reviewed by the judge-Seong Fatt Sawmill v Dunlop [1984] 1 MLJ 286, FC. Ablemerge v Emville [2000] 6 MLJ 769;- where after saying that its earlier decision was wrong, a court may withdraw its earlier order and substitute it with another order if the earlier order has not yet been perfected.

CONSENT ORDERThe pf and df may record consent judgment at any time before judgment. If both parties agree to settle the case, they can ask the court to record the consent judgment The advantage of incorporating the terms of the settlement in a consent judgment is that it may automatically enforced in the event of non-compliance.it must be done with the consent of the parties themselves and not just the solicitor alone.

Grounds for Setting AsideIf the solicitors enter a consent judgment without the knowledge/consent of the parties.The solicitors act in excess of their authoritiesThe solicitors/parties have acted under a mistake where the CJ is still in executory and it would be inequitable to enforce the order according to the prevailing circumstances-eg. In Bernard Rada v. Concrete Innovators [1995] 2 SLR 143- where the sums stated in the CJ were still not due.

Procedure for Setting Aside CJAgainst unperfected CJLee Teng Siong v Lee Geok Thye Holdings Sdn. Bhd. [2004] 5 MLJ 13.(1)Prior to the perfection of a consent order or judgment there was a limited jurisdiction to set aside such an order or judgment. The court would interfere only if the evidence indicated that counsel had been acting in excess of authority, either deliberately or inadvertently, or had been labouring under a mistake, such which would vitiate the agreement. A party seeking to set aside such an unperfected consent order could do so by summons or notice of application prior to or contemporaneously with the perfection of the order. The applicants were thus not amiss in making their application by motion (see para 25).

(2)Counsel's alleged lack of authority was invariably never a ground to set aside a consent order or a contract. Any injustice suffered by the client could be resolved in the context of a claim against his counsel. There was no obligation to prove express authority. Solicitors or counsel, by implication, had authority to compromise an action. The petitioner and the court were entitled to assume the existence of such authority when the lack of such authority was not specifically brought to their attention at the material time.

Against perfected CJnormally in a fresh action i.e by commencing a fresh proceeding to set it aside.-Khaw Poh Chhuan v Ng Gaik Peng [1996] 1 MLJ 761,FC.In Wiltopps (Asia) v Drew [2000] 3 SLR 244-it was observed that a judgment or order by consent is binding until it is set aside and fresh proceeding must be commenced if it is sought to set aside a consent order.

INTEREST ON JUDGMENT DEBTSS 11 of CLA 1956-pre judgment interestThat the court has discretion to award cost between the date when the COA arose and the date of judgment. O. 42 Rule 12-post judgment interest.To be determined by CJ or at any other rate not exceeding that rate (unless agreed upon ), to be calculated from date of judgment until the judgment is satisfied.Interest is awarded not as compensation for the damage done to the P but for being kept of money which ought to have been paid to him earlier.

Late Payment Charges for Islamic Judgment Debt

O.42 r.12A