| Detail | Information |
|---|---|
| Case Name | Hock Hua Bank Bhd. v. Sahari Bin Murid |
| Court | Federal Court |
| Date of Judgment | September 10 & October 13, 1980 |
| Appellant | Hock Hua Bank Bhd. (The Bank/Chargee) |
| Respondent | Sahari Bin Murid (The Chargor) |
| Core Issue | Whether a judge has the jurisdiction to alter or set aside a judgment or order that was regularly obtained, drawn up, and perfected in an inter partes application (one where both sides were heard). |
Facts of the Case: Hock Hua Bank obtained an order for sale in a foreclosure proceeding against the respondent, Sahari bin Murid, who was the chargor of a loan for a firm. The respondent denied executing the charge, asserting a claim of non est factum (not my deed) and alleging fraud and forgery, stating he was out at sea at the time of execution.
Procedural History:
- The judge made the order for sale on June 13, 1978, despite the respondent’s allegations, and the order was drawn up and perfected.
- The respondent’s first application to set aside the order was dismissed.
- Later, the respondent made a second application by notice of motion to set aside the previous orders on the same grounds. The learned judge, on this occasion, set aside his own order, believing he had the power to do so because the matter had not been “adjudicated” or pronounced on the merits.
- The Bank appealed the judge’s decision to set aside the order.
Federal Court Decision: The Federal Court allowed the appeal with costs and restored the original order for sale.Judge’s Reasoning (Chang Min Tat F.J. delivering the judgment):The judge reasoned that the court had no power under an application in the same action to alter, vary, or set aside a judgment regularly obtained and perfected, as the judge was functus officio (having discharged his official duty).The only exceptions to this rule are:
- Under the “slip rule” to correct errors in expressing the court’s intention (R.S.C., 1957, O. 28, r. 11).
- If the judgment was by default or made in the absence of a party at the trial or hearing.
Since the order for sale was made after hearing both parties (inter partes), the judge’s jurisdiction to act in the same action had ended. The proper remedy for the respondent to set aside the order on the ground of fraud was to commence a fresh action to impeach the original judgment. The Federal Court noted that the fresh action had already been commenced and was able to prevail on counsel for the Bank to agree to a stay of the foreclosure proceeding pending the outcome of that new action.
Excerpt from the Judge’s Reasoning:
“Clearly the court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip rule in Order 28 rule 11 Rules of the Supreme Court 1957 (Order 20 rule 11 Rules of the High Court 1980) so far as is necessary to correct errors in expressing the intention of the court: Re St. Nazaire Co., (2) Kelsey v. Doune; (3) Hession v. Jones, (4) unless it is a judgment by default or made in the absence of a party at the trial or hearing. But if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment: Hip Foong Hong v. Neotia & Co. (5) and Jonesco v. Beard. (6)“
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
