436
Mah Siew Seng & Anor
v. Seema Development Sdn Bhd
[2013] 5 MLRH
MAH SIEW SENG & ANOR
v.
SEEMA DEVELOPMENT SDN BHD
High Court Malaya, Ipoh
Lee Swee Seng JC
[Originating Summons No: 24-1807-2004]
10 June 2013
Civil Procedure: Damages - Assessment of damages - Setting aside of order - Defendant’s
solicitors did not attend assessment of damages hearing - Registrar proceeded with the
hearing and made assessment of damages based on plaintiffs’ evidence - Defendant
applied to set aside order for damages - Whether court had jurisdiction to set aside order
- Whether reasons given for absence of defendant’s counsel on date of hearing were valid
- Whether there was inordinate and unexplained delay by defendant in filing application
to set aside order - Whether there was any reason to disturb assessment of damages by
Registrar
The plaintiffs had successfully applied for the removal of the defendant’s caveat
on its land. After the caveat was ordered to be removed, the defendant lodged
another caveat on the same piece of land of the plaintiffs. The plaintiffs applied
again to remove the second caveat of the defendant and was successful in
doing so. The plaintiffs proceeded to have the Registrar assess damages for the
wrongful entry of both the caveats. Notice of appointment of the hearing of
the assessment of damages was duly served on the solicitors for the defendant
for the assessment in both actions. However the said solicitors did not attend
the hearing of the assessment of damages for both the actions. The Registrar
proceeded to hear the plaintiffs’ evidence and assessed the damages. The
amount assessed not having been paid led to the plaintiffs proceeding to serve
a winding up notice on the defendant. The defendant applied for a Fortuna
injunction to restrain the plaintiffs from filing a winding up petition but failed.
The defendant, through another solicitor, filed this application to set aside
the two orders for damages assessed by the Registrar or for a rehearing of the
assessment of damages.
Held (dismissing the defendant’s application to set aside the orders):
(1) The court, in limited instances, had the jurisdiction to set aside an order
made in the absence of the other party eventhough the Registrar had proceeded
to hear the plaintiffs’ witness and evidence and made the order of damages
assessed accordingly. The court would consider if the reasons given for the
absence of counsel was valid in the circumstances of the case. (para 15)
(2) The current solicitors who filed this application had not explained the
reasons for the absence of the previous solicitors on the dates of hearing of
the assessment of damages for wrongful entry of the caveats. The defendant
had further stated that its solicitors did not attend court on the dates fixed
[2013] 5 MLRH
Mah Siew Seng & Anor
v. Seema Development Sdn Bhd
437
for hearing of the two applications unbeknown to the defendant who had
trusted its previous solicitors to do all things necessary with respect to its
representation in court. The defendant went on to state that its previous
solicitors acted unprofessionally in not objecting to the assessment of damages.
Such a statement of fact was not a reason explaining the absence of the counsel
concerned in attending before the Registrar for hearing of the assessment of
damages. (para 16)
(3) Both applications to set aside the order were filed only on 16 November
2012. The unexplained delay was thus about six years and three years from
both orders of damages respectively. The reason was actually due to the
plaintiffs’ service of a notice under s 218 Companies Act 1965 for the winding
up of the defendant and also the defendant’s failure in its Fortuna injunction
application to restrain the plaintiffs from presenting the winding up petition.
Thus the defendant’s late application was lacking bona fide and an afterthought,
and its sitting and sleeping on its right invited laches. Such a long delay was
deleterious and damaging to the defendant. (para 20)
(4) In the present case, the evidence led was that the plaintiffs had no problem
disposing of the 12 lots to prospective buyers but for the caveat on the land.
It would be unrealistic for the defendant to say that the plaintiffs must be able
to show diminution in value of the property after the caveat had been lifted.
It was also not open to the defendant to say that it was indirectly doing the
plaintiffs a favour by preventing them from selling the land so that they can
sell it in the future when its caveat has been removed and then for a better
price. A registered owner of a land has the absolute right to deal with his land
howsoever and whensoever he pleases. It was not for others and least of all by
the caveator to question the plaintiffs’ timing of the sale. There was therefore no
reason to disturb the orders and certificates issued pursuant to the assessment
of damages by the Registrar. (paras 35, 36, 37 & 39)
Case(s) referred to:
Coke & Coal Products (M) Sdn Bhd v. How Swee Kong & Ors [2000] 1 CLJ 19 (refd)
Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223 (refd)
Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v. Awang Soh Mamat &
Ors and Another Application [2010] 3 CLJ 895 (refd)
Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v. Awang Soh Bin Mamat
& Ors [2009] 4 MLJ 610 (refd)
Mawar Biru Sdn Bhd v. Lim Kai Chew [1992] 1 LNS 22 (refd)
Munusamy a/l Karuppiah (Pemilik tunggal bagi MNN Consultancy Services) v. Sang
Lee Company Sdn Bhd & 3 Ors [2010] 2 AMR 261 (refd)
Public Finance Bhd v. Lee Rubber Factory Sdn Bhd & Ors [1994] 1 MLJ 495 (refd)
Legislation referred to:
Companies Act 1965, s 218
National Land Code, s 329(1)
438
Mah Siew Seng & Anor
v. Seema Development Sdn Bhd
[2013] 5 MLRH
Rules of Court 2012, O 32 rr 5(3), 6, O 35 r 2
Rules of the High Court 1980, O 35 r 2(1), (2), O 37 rr 1, 2, O 42 r 13
Counsel:
For the applicant/defendant: T Manoharan; M/s Krish Mano & Associates
For the respondents/plaintiffs: Iruthaya Raj (Adam Teoh Kwok Wai with him);
M/s Ng Choo Beng R. Naidu & Partners