Loh Aik Seng v LIM Sam Tee (PA-12B-14-04/2025)

TAN CHAR BOH (NO. K/P: 640624-07-5306) ... PERAYU-PERAYU

LIM JIIN YU (NO. K/P: 840430-07-5398) ... RESPONDEN-RESPONDEN (Dalam Mahkamah Sesyen Di Georgetown) (Dalam Negeri Pulau Pinang) (Guaman Civil No: PA-A53-1-03/2021)

LIM JIIN YU (NO. K/P: 840430-07-5398) ... PLAINTIF-PLAINTIF

TAN CHAR BOH (NO. K/P: 640624-07-5306) DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

By an application dated 19.08.2025 (Enclosure 14), the Appellants prayed for, inter alia, an abridgement of time for the filing of the Memorandum of Appeal dated 16.07.2025 ("MOA")to 18.07.2025, so that the MOA filed on 18.07.2025 vide the Rekod Rayuan Tambahan (Enclosure 13), be accepted and deemed filed within time.

The chronology of facts as submitted by the Solicitors for the Appellants are reproduced below. DATEEVENT15.04.2025Decision delivered by the Learned Sessions Court Judge, Dato' Mohd Nasir bin Nordin.22.04.2025Notice of Appeal filed by the Appellants within the prescribed time.28.04.2025Sealed copy of the Notice of Appeal duly served on the Respondents' solicitors.09.05.2025Application made by the Appellants for the Grounds of Judgement.26.05.2025Record of Appeal filed (Enclosures 3 to 10), pending receipt of written Grounds of Judgement.20.06.2025Grounds of Judgement issued and received from the Learned Sessions Court Judge.18.07.2025Additional Record of Appeal filed (Enclosure 13), incorporating the Grounds of Judgment and the Memorandum of Appeal.

The Solicitors for the Respondents raised a preliminary objection, arguing that the order sought by the Appellants for an "abridgement of time" contravenes the actual intent and purpose of the application (Enclosure 14). Consequently, they argued that the application should be dismissed in limine.

First and foremost, the Court will look at the substance of the application rather than split hairs over the technical distinction between "abridgement" and "extension" of time.

Notwithstanding a typographical or terminological oversight, the Appellants' true intention to seek an extension of time to file the MOA is clearly discernable from the face of the Appellants' Affidavit in Support (Enclosure 15) and the accompanying submissions.

Thus, the pertinent question to be addressed by this Court is whether the Appellants should be allowed an extension—and not an abridgement—of time to file the MOA out of time.

As such, this Court will peruse the affidavits and submissions filed by the parties herein to ascertain (i) whether there was an intention by the Appellants and/or their solicitors to ignore and/or flout the ROC 2012; (ii) whether their failure to adhere to the ROC 2012 was due to extraneous circumstances beyond their control i.e whether the delay that arose therein was inordinate and/or deliberate and finally, (iii) on the likelihood and degree of prejudice, as well as injustice to the Respondents should this court exercise its discretion in favour of the Appellants.

It is undisputed that the MOA was filed out of time by 53 days since it was filed on 18.07.2025 instead of 26.05.2025.

The procedural rules for appeals to the High Court from the subordinate courts are clearly laid out in Order 55 of the ROC 2012.

Pursuant to Order 55 Rule 4(1) of the ROC 2012, the Appellants shall within one (1) month from the date of filing of notice of appeal, prepare and file the record of appeal which shall contain, amongst others, a memorandum of appeal (MOA).

Order 55 Rule 4(1) of the ROC 2012 also provides that the record of appeal shall be filed notwithstanding that the notes of evidence and/or grounds of judgment are not ready or that the sealed decision, order or judgment has not been extracted.

For the ease of reference, Order 55 Rule 4(1) of the ROC 2012 is reproduced below-Record of appeal (O.55,r.4)

(1) In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of notice of appeal prepare and file the requisite number of copies of the record of appeal and the record shall contain copies of.

the relevant pleadings;

the notes of evidence, including witness statements, if available;

the grounds of judgment, if available;

the memorandum of appeal;

the decision, order or judgment;

a duplicate copy of the notice of appeal;

a duplicate copy of the notice of cross appeal, if any;

all such documentary exhibits and other documents the parties shall consider relevant for the purposes of the appeal: Provided that the record of appeal shall be filed notwithstanding that the notes of evidence and/or grounds of judgment are not ready or that the sealed decision, order or judgment has not been extracted. (emphasis added)

As such, it is as clear as day that, pursuant to Order 55 rule 4(1) of the ROC 2012, a MOA has to be included in the record of appeal filed.

There is nothing in the entire provision of Order 55 of the ROC 2012 which allows the MOA to be exempted from the record of appeal pending the notes of evidence and/or grounds of judgment or even the sealed decision, order or judgment.

Neither is there any provision in Order 55 of the ROC 2012 which allows a MOA to be filed subsequently pending the notes of evidence and/or grounds of judgment.

Had that been the legislative intent, Order 55 of the ROC 2012 would have expressly stated so.

For instance, a provision of this nature could have been easily inserted as Order 55 rule 4(3A) of the ROC 2012 to read as follows- "Notwithstanding rules 4(1) and 4(3) above, an appellant may file the memorandum of appeal within fourteen (14) days upon receipt of the notes of evidence and/or grounds of judgment, without leave of the High Court."

However, there is no such provision in Order 55 of the ROC 2012, nor is there any provision of a similar nature.

On the contrary, Order 55 rule 4(3) of the ROC 2012 provides that an amended MOA, may if necessary, be also included in a supplementary record of appeal, without leave of the High Court.

Thus, a full reading of Order 55 rule 4(3) of the ROC 2012 demonstrates that the existence of an amended MOA is contingent upon a primary MOA first being included in the filed record of appeal.

Filing the Record of Appeal (Enclosure 3) without the MOA is tantamount to a clear contravention of Order 55 rule 4(1) of the ROC 2012.

Furthermore, by inserting the remark "akan difailkan kelak" under the Memorandum of Appeal column in the index of Enclosure 3 (Record of Appeal), the Appellant has effectively attempted to rewrite the procedural rules of appeal in blatant disregard of the existing statutory provisions.

If such conduct and/or approach is condoned and/or accepted by this Court, it will undeniably open the floodgates to non-compliant record of appeals of a similar nature.

Based on the aforesaid findings, the curative provisions of Order 1A and Order 2 rule 3 of the ROC 2012 are inapplicable herein.

The non-filing of the MOA, coupled with the Appellants' Solicitors' remarks ("akan difailkan kelak"), transcends a mere technical noncompliance of the ROC 2012 that can be cured as a procedural irregularity.

On this ground alone, this court finds Enclosure 14 to be defective and a nullity, and it is consequently dismissed in limine.

However, for the sake of completeness, the remaining grounds raised by the Appellants in support of Enclosure 14 will be addressed hereinafter.

The Solicitors for the Appellants submitted that based on the chronology and timeline of events put forth, the Appellants had taken all steps within their power at the earliest opportunity.

Hence, the delay in filing the MOA was not due to inaction or negligence on the part of the Appellants or their solicitors, but was wholly attributable to circumstances beyond their control, namely the unavailability of the grounds of judgment.

According to the timeline of events and as submitted by the Respondents' Solicitors, the Appellants waited more than two (2) weeks after filing the Notice of Appeal on 22.04.2025 (Enclosure 160) before requesting the grounds of judgment from the Georgetown Sessions Court vide a letter dated 09.05.2025.

Although these grounds were provided to them on 20.06.2025, the Appellants allowed nearly a month to lapse before filing the Supplementary Record of Appeal (Enclosure 13) on 18.07.2025.

As such, this Court fails to see how the Appellants had, as they submitted, taken steps within their power at the earliest opportunity when the clear chronology of events demonstrates persistent delay on their part.

Moreover, as submitted by the Solicitors for the Respondents and as averred by the Respondents in paragraph 11.3 of the Afidavit Jawapan (Enclosure 16)—which remains completely undisputed by the Appellants—the learned Sessions Court Judge explicitly read out brief grounds when delivering the decision on 15.04.2025.

Thus, given the existence of the brief grounds of judgment, there is neither rhyme nor reason for the Appellants' failure to prepare the MOA, as they were fully capable of doing so even without the formal grounds being available at that material time.

In dealing with the argument raised by the solicitors for the Appellant—namely, that "without the grounds, it would not have been possible for the appellants to prepare a proper and meaningful MOA"—this Court finds such a submission to be devoid of merit.

Such a predicament is already explicitly contemplated by the law. This is precisely why Order 55 rule 4(3) of the Rules of Court 2012 specifically provides for situations where the notes of evidence or grounds of judgment are unavailable during the preparation of the primary MOA, thereby allowing an appellant—if necessary—to include an amended MOA in the supplementary record of appeal without leave of court.

The Appellants' argument that the unavailability of the grounds of judgment had led to circumstances beyond their control is thus without merit.

Next, the Solicitors for the Appellants argued that as they were not the solicitors on record during the full trial, they required some time to carefully peruse the grounds of judgment before drafting the MOA.

From the notes of evidence, the Appellants' earlier solicitors were discharged since 18.12.2024 which was almost four (4) months prior to the delivery of the decision by the Sessions Court Judge on 15.04.2025. Yet, the Appellants took no steps to appoint any new solicitors during the four (4) month period.

Consequently, the Appellants must bear full responsibility for the delay, which is solely attributable to their lackadaisical attitude in managing the conduct of this litigation.

In any event, by coming on board as the solicitors for the Appellants, Messrs Chan De Vries ought to have been fully prepared to proceed with the appeal at the time they filed the Notice of Appeal on 24.04.2025 (Enclosure 160).

As such, this argument is also devoid of merit.

Next, this Court finds that the Appellants took no immediate steps to seek an extension of time to file the MOA, despite having included the same in the Supplementary Record of Appeal filed on 18.07.2025 (Enclosure 13).

Instead, the Appellants, via their solicitors, belatedly filed Enclosure 14 on 19.08.2025—more than a month later after the filing of Supplementary Record of Appeal filed on 18.07.2025 (Enclosure 13)and only after the Respondents' Solicitors had raised preliminary objections vide their letter dated 17.07.2025.

Therefore, this Court should not condone the abovementioned repeated delays by the Appellants at the expense of the Respondents.

Doing so would certainly deprive the Respondents of the fruits of their litigation, especially when this appeal stems from a civil action filed by them against the Appellants in March 2021 vide Civil Suit No. PA-A53-1-03/2021.

Furthermore, Order 55 rule 4 of the ROC 2012 is a mandatory provision which was drafted after much appreciation and consideration of the litigants and their respective rights therein.

All things considered, Enclosure 14 is thus dismissed with costs of RM5,000-00 subject to allocator fees.

Consequent upon the dismissal of Enclosure 14, the MOA dated 16.07.2025 is found to have been filed outside the prescribed time limit under Order 55 rule 4(1) of the ROC 2012.

Accordingly, the Record of Appeal dated 26.05.2025 (Enclosure 3) is likewise filed out of time.

Ultimately, this appeal (Enclosure 1) is dismissed with no order as to costs. Dated 3rd February, 2026 Counsel(s): Mr. Chan Szu Fu together with Ms. Farhana from Messrs Chan, De Vries & Co for the Appellant. Mr. Ooi Jia Liang together with Ms. Ong Wei Lin dan Ms. Milma Husna from Messrs. Willie Ong & Co. for the Respondent.