Losing a case is disheartening, but litigants have the option of appealing most decisions to a higher court. Not all claims can be appealed as of right. Section 28(1)(a) of the Courts of Judicature Act 1964 (“CJA”) provides that, among others, a matter cannot be appealed from a subordinate court to the High Court where ‘subject to any written law, from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten thousand ringgit or less except on question of law’. 

However, there are divides in the understanding of the phrase ‘the amount in dispute or the value of the subject matter’ (“Phrase”) and this article will explore past precedents to gather the intention behind the Phrase under Section 28(1)(a) of the CJA. 

Does the Phrase in Section 28(1)(a) of the CJA means the judgment sum or the claim sum?

There are 2 differing groups of decisions.

1. The Phrase means the judgment sum

The High Court in Lein Tiam Hock v Arumugam Kandasamy [1999] 6 MLJ 129 attached weight to the term ‘decision’ present in Section 28(1)(a) and that Section 28(1)(a) does not contain the terms ‘claim’ or ‘suit’. The High Court held that when an aggrieved party files an appeal, it is the judgment sum awarded against that aggrieved party that is being disputed, and not the sum that was initially claimed. As such, the Phrase in Section 28(1)(a) must be interpreted to mean the judgment sum and not the ‘claim’ sum.

The recent case of Kolej Universiti Tunku Abdul Rahman v Dr Muhammad Omar [2022] MLJU 2876, followed the case of Lein Tiam Hock, finding that the Phrase means the judgment sum and not the claim sum. The High Court considered the intention of Section 28(1)(a), from a public policy angle, of it being a filter to prevent the oppression of litigants with further litigation costs on appeal by having an inflated claim sum just to meet the threshold set in Section 28(1)(a). 

There are other High Court decisions which interpreted the Phrase to mean judgment sum, although that they did not go on further to discuss the reasoning behind that interpretation. 

2. The Phrase means the sum claimed by the Plaintiff or the combined sum of a claim and counterclaim 

In Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v Tam Cheng Meng [2018] 8 MLJ 574, the High Court held that the Phrase does not state that ‘where the decision of the subordinate court is for a sum of RM10,000 or less’ but rather ‘where the value in dispute or the value of the subject matter is for a sum of RM10,000 or less’. As such, the High Court disagreed with the earlier High Court decision of Lein Tiam Hock v Arumugam a/l Kandasamy.

Do we include interest and costs when calculating the threshold under Section 28(1)(a)? 

No. In Kannaya & Anor v The Swee Eng [1994] 1 MLJ 508, the High Court held it would place unnecessary burden on the plaintiff “who will have to decide in the first instance in which court to institute proceedings and further to guess as to when his case would be disposed of and as to its outcome”.

Key Takeaways 

As there are differing High Court decisions on the interpretation of the Phrase, there are more case law which favour the interpretation that the Phrase means the judgment sum and not the claimed sum. 

A litigant who wishes to appeal against a judgment of less than RM10,000.00 should  get legal advice as to the right approach for the appeal. Relevant issues to be considered would include whether there is any other written law that would grant the right to appeal, or if questions of law (and not fact) can be formulated for this appeal.

***

This article was written by Sean Ferdinand Ng (Associate) from Donovan & Ho’s employment law practice. 

Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations.  Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.

 

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