Judicial Misquotation: Examining the Error in TEM Combustion Sdn Bhd v Latex Form Sdn Bhd [2023] MLJU 3074

In TEM Combustion Sdn Bhd lwn Latex Form Sdn Bhd [2023] MLJU 3074 (“TEM Combustion”), the learned High Court judge referred to the Court of Appeal’s decision in Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889 (“Paradise Boulevard”):

“[21]  Mahkamah ini mendapati dari mula barangan dihantar serah kepada Defendan, tiada sebarang aduan dikemukakan dan segala kecacatan yang ditimbulkan oleh Defendan mengenai barangan Plaintif hanyalah selepas tindakan ini difailkan. Inilah yang diperkatakan oleh Mahkamah Rayuan didalam kes Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889: –

“[37] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all to advance its resistance to this summary judgment application. The defendant also did not dispute the invoices sent by the Plaintiff and only raised its complaints after the writ in the main action was filed. This also suggests the issue raised by the defendant contesting this summary judgment are an afterthought”.^[1] (Emphasis mine)

[The extract from Paradise Boulevard which was cited in paragraph 21 of TEM Combustion is referred to as the “Impugned Paragraph”].

In Paradise Boulevard, the Impugned Paragraph was the Court of Appeal’s summary of the High Court’s decision:

“[15]  The issues that were raised by the Defendant in opposing the Plaintiff’s application for summary judgment (Enclosure 14) were dealt with by the Judge under the heading – “Evaluation and Finding of this Court” and they read (with emphasis added) as follows:

…

[37] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to this summary judgment application. The defendant also did not dispute the invoices sent by the plaintiff and only raised its complaints after the writ in the main action was filed. This also suggests the issues raised by the defendant contesting this summary judgment are an afterthought.”^[2]

This is confirmed upon examining Mohd Nazlan Mohd Ghazali J (now JCA)’s Grounds of Judgment in Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v Paradise Boulevard Sdn Bhd [2021] MLJU 1464:^[3]

Whether the Impugned Paragraph is a decision of the Court of Appeal or the High Court matters for the purposes of judicial precedent.

The Impugned Paragraph, in effect being a decision of the High Court, is not binding on the High Court in TEM Construction though the judge could have abided by it on the basis of judicial comity.^[4]

The present misquotation is less detrimental as TEM Construction is only a decision of the High Court, and the Court of Appeal in Paradise Boulevard was of the view that “the [High Court] Judge dealt convincingly with all the points made by counsel for the Defendant in respect of both applications”^[5] and “are satisfied that there are no bona fide triable issues warranting a trial.”^[6]

^[1] TEM Combustion Sdn Bhd lwn Latex Form Sdn Bhd [2023] MLJU 3074 (HC), at para 21

^[2] Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889 (CA), at para 15

^[3] Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v Paradise Boulevard Sdn Bhd [2021] MLJU 1464 (HC), at para 37

^[4] See e.g. Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234 (CA), at para 66

^[5] Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889 (CA), at para 29

^[6] Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889 (CA), at para 30