Tan Hoo Eng v Lim Keck Eng (C-02(NCvC)(W)-1990-10/2022)

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TETUAN AZRUL AFIFI & AZUAN … RESPONDENTS 05/09/2025 10:41:16

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… APPELLANTS … RESPONDENT (In the matter of Case No.: 22NCvC-80-11/2014 in the High Court of

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… Plaintiffs

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TETUAN AZRUL AFIFI & AZUAN …Defendants (In the matter of Case No.: 22NCvC-35-06/2014 In the High Court of Kuantan In the State of Pahang) … Plaintiff

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…Defendant CORAM: YA DATUK SUPANG LIAN, JCA YA DATO' MOHD NAZLAN BIN MOHD GHAZALI, JCA YA DATO' WAN AHMAD FARID BIN WAN SALLEH, JCA JUDGMENT The Factual Background [1] There were two separate cases, both filed in the High Court of Kuantan. Firstly, suit 22NCvC-80-11/2014 (“Suit 80”) and secondly, suit 22NCvC-35-06/2014 (“Suit 35”). [2] Later, by an order of the High Court dated 23.1.2015, Suit 80 and Suit 35 were consolidated and Suit 80 was to be heard first before Suit 35. [3] For ease of reference, the parties in their respective cases are as below: SUIT 80

Defendant(s)

Tan Hoo Eng

Lim Aun Soon Dyera-Tim Sdn. Bhd.

Lim Keck Eng

Moses Lim

Kian Loong

Tan Kai Kiang

Hai Dato' Abdul

Halim Bin Jalil

Abdul Aziz Tetuan Azrul

Lim Keck Eng

Tan Hoo Eng Dyera-Tim Sdn. Bhd. [4] The 1st and 2nd Plaintiff are husband and wife and are shareholders and Directors of the 3rd Plaintiff. [5] The 1st Plaintiff is also a 50% shareholder and a director Blue Star Moulding Sdn Bhd (“BS Moulding”). The remaining shares are held by the 1st Defendant who is also the director of BS Moulding. [6] The 2nd Defendant is the son of the 1st Defendant. [7] The 3rd, 4th and 5th Defendants are friends of the 1st and 2nd Defendants. [8] The 6th Defendant is an advocate and solicitor, practising in the firm of the 7th Defendant. [9] The dispute between the parties revolves around the purported Settlement Agreement (“SA”) dated 11.2.2014 and the Supplementary Agreement (“SUA”) dated 3.3.2014, which the Plaintiffs alleged that it was signed involuntarily, thereby affecting the validity of the SA. The Plaintiff (in Suit 35) claims that the Defendants had breached the terms in the SA and SUA and seek for specific performance of the same. At the High Court [10] On 29.9.2022, the learned Judge pronounced her decision. Her Ladyship had given a very detailed analysis, albeit oral, in arriving at the decision. In short, the High Court found that Tan Hoo Eng, Lim Aun Soon and Dyera-Tim Sdn Bhd, the Appellants herein, had failed to prove their case in Suit No. 80 on the particulars of fraud as pleaded in their Statement of Claim. However, in Suit No. 35, the High Court found that Lim Keck Eng, the 1st Respondent, had successfully proved his case on the balance of probabilities. [11] The High Court then entered judgment in favour of Lim Keck Eng and ordered inter alia for the specific performance of the. In her oral grounds of judgment, the learned Judge found that the SA and SUA were secured and “not tainted with illegality, coercion, intimidation and undue influence”. The High Court also made a further order for the removal of private caveats on the disputed properties. [12] Aggrieved by the said decision, the Appellant filed the Notice of Appeal. The Factual Background that led to the filing of the Motions [13] On 20.12.2022, the Appellants filed the Record of Appeal (“ROA”) without the Memorandum of Appeal (“MOA”). Since the judgment was pronounced on 29.9.2022, the last day for the Appellants to file the ROA according to rule 18(7) of the Rules of the Court of Appeal 1994 (“RCA 1994”) is on 27.12.2022. At the Court of Appeal [14] There are four separate Notices of Motion before us. [15] The Motions in Encl. 96 and 110 are filed by R1 to R5 and R6 to R7, respectively, to strike out the appeal. The Appellants filed the Motion in Encl. 104 to rectify the defects or irregularities in the ROA. [16] Encl. 96 is anchored mainly on the ground of non-compliance of rule 18(6) of the RCA 1994 in that the Appellants had refused to refer the rejected draft index of the ROA to the Registrar of the High Court. [17] Encl. 110 is primarily based on the ground that the Appellants failed to comply with rule 5(3), 18(4) and 18(6) of the RCA 1994 and para 7 Practice Direction Court of Appeal No. 1 of 2018. [18] The Appellants also made another application in Encl. 184 for an extension of time to file a basic MOA in the ROA or in the alternative, to file the same in the Supplementary ROA. Encl. 184 [19] We will begin with the Appellants’ Notice of Motion in Encl. 184, which was filed on 27.4.2024. [20] The grounds of the Motion in Encl. 184 are as follows:

The suit in the High Court of Kuantan has been ongoing for approximately 7-8 years with dozens of Volumes/Enclosures of bundles of documents, and the ROA was filed within time, which comprises 67 volumes and approximately 16,500 pages, with Part C alone comprising approximately 7,700 pages.

Witnesses had testified in the High Court of Kuantan and the examination of witnesses was concluded in November 2019, and directions were given by the learned Judge for the preparation of written submissions.

The High Court heard arguments and clarifications from the parties on 21.4.2021.

Subsequently, the High Court delivered its judgment on 29.9.2022.

The judgment of the High Court has not been finalised at the High Court of Kuantan and no sealed judgment has been obtained thus far, and the parties are in the process of clarifying regarding the draft judgment.

Without the sealed judgment, the Appellants are not aware of the detailed contents of the High Court judgment, thus facing impediments and/or difficulties in preparing the MOA.

Furthermore, the High Court did not provide written brief grounds of decision for the Appellants to ascertain as to how the High Court Judge erred in law and fact. [21] The Motion is supported by the affidavit of Tan Hoo Eng, the 1st Appellant herein in Encl. 185 (“AIS-185”). [22] The main ground for the Motion is premised on the absence of the brief grounds of decision by the learned trial Judge. The main complaint of the Appellants can be seen in para 26 of AIS-185, where Encik Tan affirmed as follows: [26] Without the sealed judgment and the reasons for judgment, the Appellants are affected because they are unable to prepare the Memorandum of Appeal with the appropriate grounds for consideration by this Honourable Court during the full appeal hearing. [23] It is however, not disputed that the learned Judge had given a very detailed, broad oral decision on 29.9.2022 in the presence of the solicitors representing the parties herein. [24] Although the decision of the learned Judge was delivered orally, her Ladyship had gone to great lengths in explaining as to how she arrived at her conclusion. This is clearly reflected in the 57-page transcript of the proceedings on 29.9.2022, which was made available by the parties on 8.6.2023. The transcript was prepared by an interpreter of the High Court in Ipoh at the instance of the Appellants’ solicitors. [25] We are of the considered view that the question before us is whether the oral broad grounds of judgment of the learned Judge are sufficient to enable the Appellants to prepare the MOA and ascertain as to how the learned Judge had erred in law and facts. [26] It is quite apparent that in her broad grounds of (oral) judgment, the learned Judge had analysed both the documentary and oral evidence of the witnesses and made her findings of fact. In particular, the learned Judge made this finding: The issuance of several cheques by the plaintiff and correspondences between the parties showed that the settlement agreement is valid and binding (on) both parties. The issues of threats, intimidation, undue influence, fraud and etc were never raised by [Tan Hoo Eng] at the material time. The plaintiff contemporaneous conduct in issuing letters and attended several meetings with the defendants prior to the signing of [the] settlement agreement and supplementary agreement clearly demonstrate there were no threats, no intimidation, duress, coercion undue influence, fraud as alleged. [27] In short, the oral (broad) grounds of judgment not only contained a complete analysis of the issues at had raised by the parties but also a “complete narration of the background facts” within the meaning of the concurring judgment of Azizul Azmi Adnan JCA in Firdaus Khan bin Parit Khan & Anor v CIMB Bank Bhd [2024] 4 MLJ 474 CA. [28] In interpreting rule 18(7) and 18(7A) of the RCA 1994 in Firdaus Khan, this Court alluded to three scenarios faced by an appellant in preparing the cause papers for an appeal before the Court of Appeal. The 1st scenario is when the High Court’s written judgment or grounds of decision have been prepared within 90 days for the filing of the ROA. The 2nd scenario is when the High Court’s written judgment or grounds of decision is only available after the expiry of the 90 days period. The 3rd scenario is that the High Court’s written judgment or grounds of decision are not available for whatever reason. [29] Applying the said scenarios to the instant Motion, the 57- page transcript of the proceedings on 29.9.2022 was made available on 8.6.2023, which is after the filing of the ROA on 20.12.2022. The situation is more akin to the 2nd scenario alluded to in Firdaus Khan. Granted that the (oral) broad grounds of the decision are a complete analysis of the issues raised and also narration of background facts, the Appellants could have filed the MOA within three weeks after the availability of the transcript within the meaning of R 18(7A) of the RCA 1994, which was 8.6.2023. [30] As alluded to earlier, this Motion in Encl. 184 was filed by the Appellants on 27.3.2024, about nine months after the availability of the transcript of the (oral) broad ground of judgments. With the detailed analysis and findings of fact of the learned Judge that can be distilled from the transcript, the Appellants could have filed the MOA within the three-week period specified in rule 18(7A) of the RCA 1994. [31] In the event that the written grounds of the judgment were to be made available later and that new issues were addressed by the learned Judge (which will be discussed below), the Appellants could always file a Motion to amend the MOA accordingly. [32] We have gone through the affidavit in support of the Motion in AIS-185 and cannot find any explanation from the Appellants regarding the failure to file the MOA, despite the availability of the transcript as of 8.6.2023. There is no explanation as to what has been done by the Appellant between 8.6.2023 and the filing of this Motion on 27.3.2024. The 1st Appellant is so preoccupied with the written grounds of judgment and the numerous reminders that the Appellants sent to the Registrar of the Kuantan High Court. In view of the preoccupation, the Appellant failed to explain the failure to file the MOA, although based on the transcript of the broad grounds of the decision, the Appellants would not have encountered any impediment in ascertaining how did the learned Judge err in law and facts. [33] The 1st Appellant also averred in para 21 of AIS-185 that “based on the position accepted by all parties at that material time, that the parties would await the issuance of the full written grounds of the judgment by the trial court before drafting the grounds of appeal”. Unfortunately, there is no documentary evidence to support this averment. [34] Even if the sealed copy of the judgment is not available within the 90-day period after the delivery of the decision due to disputes between the parties, the Appellants are not precluded from filing the same under rule 18(7A) together with the MOA as supplementary records of appeal within three weeks of being notified of its availability. [35] There is therefore no material for this Court to grant leave for the extension of time as prayed by the Appellants in Encl.

Post Script [36] After the hearing of this Motion on 13.5.2025, the written judgment of the learned Judge was made available to the parties vide an email from the Kuantan High Court dated 27.5.2025. [37] We have gone through the written judgment dated 23.5.2025 and we take note that it is substantially the same as the transcript of the oral decision dated 29.9.2022. In particular, the conclusion in para [162] of the written judgment is almost similar to the findings made at p 42 of the transcript. [38] In view of the stark similarity of the content of the oral decision dated 29.9.2022 as reflected in the transcript and the written judgment dated 23.5.2025, we do propose to depart from our earlier finding that the Appellants should have filed the MOA within three weeks from the availability of the transcript which was on 8.6.2023 as stipulated under rule 18(7A) of the RCA. Our Findings [39] In the circumstances, our findings are as follows:

The oral decision delivered by the learned on 29.9.2022 contained not only a complete analysis of the issues at had raised by the parties but also a “complete narration of the background facts” which made it possible for an aggrieved party, in this case the Appellants, to prepare a comprehensive MOA highlighting the errors made by the learned Judge either in law or in fact.

Since the transcript of the oral decision was made available to the parties on 8.6.2023, the Appellants would come within the 2nd scenario of Firdaus Khan and should have filed the MOA within three weeks of the said date pursuant to rule 18(7A) of the RCA.

The Appellants failed to do so. In his AIR-185, Tan Hoo Eng, the 1st Appellant, did not explain the Appellant’s failure to file the MOA within the said three weeks, notwithstanding the fact that the grounds of decision as reflected in the transcript were lucid and a complete analysis of the issues raised by the parties.

Even if we were to assume that the written judgment departs from the comprehensive oral decision, of which no findings are made here, the Appellants are still at liberty to seek leave to amend the MOA.

There is no material for this Court to allow the extension of time sought by the Appellants. [40] The Motion in Encl. 184 is therefore dismissed. [41] In view of our findings, the Motions by R1-R5 in Encl. 96 and R6 in Encl. 110 to strike out the Appeal are allowed. Likewise, the Appellant’s Motion in Encl. 104 to regularise the ROA is dismissed. Date: 2 July 2025 - sgd - WAN AHMAD FARID BIN WAN SALLEH Judge Court of Appeal Counsel/Solicitors Appellants Dato’ Gurdial Singh Nijar, Gurbachan Singh a/l Bagawan Singh, Rabinder Singh a/l Jugget Singh, & Abraham Au [Messrs. Rabin & Associates] Respondents R1-R5 Dato’ Gainneos Jacob Goldie [Messrs. Jacob Goldie S.S. Chew] R6-R7