1. ) Tmt Industry Sdn. Bhd. v Leon Fuat Metal Sdn. Bhd. (BA-12ANCC-52-08/2021)

TMT INDUSTRY SDN. BHD. (No. Syarikat: 749923-K)

MOU YU HUI (No. Paspot Republic China: 303146435)

CHAN HSUN WEI (No. Paspot Republic China: 309001641)

MD HANIF BIN OTHMAN (No. K/P: 551218-01-5717) … PERAYU-PERAYU DAN LEON FUAT METAL SDN. BHD. (No. Pendaftaran: 198301003631(98815-D) … RESPONDEN [DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN MALAYSIA GUAMAN NO: BA-B52NCC-5-01/2021 ANTARA LEON FUAT METAL SDN. BHD. (No. Pendaftaran: 198301003631(98815-D) … PLAINTIF S/N jwve6Yh6KU6nwEuFOadwDw

TMT INDUSTRY SDN. BHD. (No. Syarikat: 749923-K)

MOU YU HUI (No. Paspot Republic China: 303146435)

CHAN HSUN WEI (No. Paspot Republic China: 309001641)

MD HANIF BIN OTHMAN (No. K/P: 551218-01-5717) … DEFENDAN-DEFENDAN GROUNDS OF JUDGEMENT

There were two applications before the Court. The application in enclosure 3 is the Respondent/Plaintiff’s application to set aside the Appellants’ Notice of Appeal filed on 02.08.202 for want of service of the Notice of Appeal on the Respondent and enclosure 5 is the Appellants/Defendants’ application for an extension of time to file Record of Appeal out of time pursuant to Order 3 Rule 5 of the Rules of Court 2012 (ROC 2012).

Upon hearing both the enclosures, the Court allowed the Respondent’s application to set aside the Notice of Appeal with costs of RM3,000.00 and dismissed the Appellants’ application for S/N jwve6Yh6KU6nwEuFOadwDw an extension of time to file Record of Appeal with costs of RM3000.00.

The Respondent filed an action against the Appellants vide Sessions Court Suit No. BA-B52NCC-5-01/2021. On 23.07.2021, the Respondent obtained a judgment under Order 14 of the ROC 2012 against the Appellants for the sum of RM484,371.00 and further interest and cost (the Judgment).

On 02.08.2021, the Appellants filed a Notice of Appeal against the said Judgement. However, the said Notice of Appeal was only served on the Respondent’s solicitor on 22.08.2021 via email informing that the case management was fixed on 20.09.2021 and the hardcopy of the said notice was not served till the date of the hearing of the said enclosures before this Court.

The Appellants had also failed to file and serve on the Respondent the Record of Appeal within the time prescribed under Order 55 Rule 5(3) of the ROC 2012.

Subsequently, on 13.10.2021, the Appellants filed an application for an extension of time for filing of the Record of Appeal. However, the learned counsel for the Appellant informed the Court that the Appellant had not filed an application for an extension of time to serve the Notice of Appeal on the Respondent. S/N jwve6Yh6KU6nwEuFOadwDw

The Appellants stated that there was an error in the intitulement of the Notice of Appeal. The Appellants admitted that the intitulement to the Notice of Appeal prepared by their solicitors stated as “DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKETUAN, MALAYSIA’ instead of “DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA”

Due to this error, the Appellants had only served the Notice of Appeal upon receiving the sealed copy of the Notice of Appeal which was obtained late. The Appellants contended that the delay in service was inadvertent and it is not fatal.

The Appellants contended that due to the Covid 19 pandemic, the Appellants’ solicitor’s office was working under staff since they were working on a rotation basis, hence, the solicitors had overlooked the service and filing dates for the Notice of Appeal and the Record of Appeal respectively.

The Appellants claimed that since the judgement was a monetary sum, therefore, the Respondent was not prejudiced and that the Respondent can enjoy the fruits of their litigation if the appeal is subsequently dismissed by this Court. S/N jwve6Yh6KU6nwEuFOadwDw

In advancing its arguments the learned counsel for the Respondent contended that the appeal is invalid for non-compliance with rules on the grounds that the Notice of Appeal dated 02.08.2021 was served out of time under Order 55 Rule 5(2) of the ROC 2012. The due date for the filing and service of the Notice of Appeal was 07.08.2021 but only sent to the Respondent on 22.08.2021 via email and the hardcopy of the said notice was never served on the Respondent.

The learned counsel submitted that the conditions stipulated for filing and service are not to be treated as separate and distinct but to be read together. Non-adherence with any one of the requirements would render the appeal incompetent and bad in law. The Respondent referred to the Federal Court case of Tan Ting Kok v Cheong Lep Keen & Anor [1969] 1 MLRA 197 where Suffian, FJ (as his Lordship then was) held that the rules as to the filing of the notice of appeal and its service on the Defendant need to be strictly adhered to and not to be treated as distinct from and independent of each other. Hence, non-compliance with either of the rules would be fatal to the appeal. Filing the Notice of Appeal within the prescribed time without adherence to the step requiring service would not empower the Court to proceed with the hearing of the appeal. S/N jwve6Yh6KU6nwEuFOadwDw

The Respondent contended that the Appellants have not provided any explanation for their delay in serving the Notice of Appeal in the Appellants’ Affidavit in Reply. Despite the Appellants being aware of the non-service of the Notice of Appeal, service has not been done to date and there is no application to abridge the time for service of the Notice of Appeal on the Respondent. The learned counsel submitted that the Appellant’s action was a total disregard of the rules governing the appeal procedure. The application for extension of time filed by the Appellants was only for the extension of time to file a Record of Appeal which no valid reason was provided to justify the application under Order 3 Rule 5 of the ROC 2012 for this Court to grant the said extension of time.

In addition, it was submitted that wrong intitulement of the Notice of Appeal is not a reason for the delay of the Appellants in serving the Notice of Appeal to the Respondent in which it could have been remedied by making amendments of the Notice of Appeal and reserving the amended copy later. In any event, no application for amendment has been filed by the Appellants to rectify the error made in the intitulement of the Notice of Appeal to date. The intitulment in the Notice of Appeal remained the same.

The Respondent contended that in the application for extension of time, the Appellants have given vague reasons in their Affidavit in Support and subsequently, different reasons which were not raised in the Appellants’ Affidavit in Support have been stated in the Appellants’ Affidavit in Reply which was likely to be an afterthought. S/N jwve6Yh6KU6nwEuFOadwDw The reason for “kekangan pergerakan” meant that they had not oversight the matter and on the next affidavit, the reason given has changed to that they could not attend their office and totally forgot of the matter. These excuses are all devoid of merit and should be disregarded.

The Respondent submitted that the reasons for the covid-19 pandemic, lack of staff and oversight on the part of the Appellants’ solicitors are not sufficient reasons for the Court to consider an extension of time to file the Record of Appeal. In addition to their reasons stated above, on 20.09.2021, at the case management, the Appellants’ solicitors informed the Court that they have only received the Grounds of Judgment on 13.09.2021. The Respondent stated that this excuse cannot stand to explain the delay as Grounds of Judgment are not required pursuant to Order 55 of Rule 5(3) of the ROC 2012. In any circumstance, Grounds of Judgment could be filed later as a supplementary Record of Appeal (if desired to be included in the Record of Appeal).

Further, the Respondent informed the Court that the Appellants’ solicitors were not only late in filing and serving the Record of Appeal but also late in filing the application for extension of time. The said application was only filed on 13.10.2021 which was approximately 73 days from the filing of the Notice of Appeal despite the Appellants’ solicitors being informed by the Honourable Court about the delay during the case management on 20.09.2021. S/N jwve6Yh6KU6nwEuFOadwDw

The Respondent contended that this is not the first time that the Appellants’ solicitors have been late in acting to comply with the Rules of Court 2012 and the direction of the Honourable Court where the Appellants were also late in serving the Notice of Appeal to Respondent at that material time, as a result, an application to strike out the Appellants’ Notice of Appeal was filed. The Respondent contended the Appellant’s conduct is a clear violation of Order 55 Rule 5 (2) and (3) of the ROC 2012.

The relevant provision relating to filing and service of appeal is provided in Order 55 Rule 5 (2) of the ROC 2012, which states as follows: “Notice of Appeal against any decision other than a decision made after trial (Order 55 Rule 5)

The appeal under this rule shall be brought by filing a notice of appeal in Form 111A in the Registry of the relevant Subordinate court, with a copy extended to the Registry of the High court within fourteen days from the date on which the decision was pronounced and shall within the time limited for the filing of the appeal serve a duplicate copy of the notice on every other party to the proceedings.” S/N jwve6Yh6KU6nwEuFOadwDw

Order 55 Rule 5(3) states as follows: “(3) Within one month after the filing of the notice of appeal under this rule, the appellant shall file the record of appeal in the High Court and serve each respondent with a copy of such record of appeal, and the record shall contain copies of-

the application for the decision;

all pleadings filed;

all affidavits filed in support of or in opposition of the application; and

the order or draft order of the decision appealed from: Provided that the record of appeal shall not include the notes of evidence, the grounds of judgment or any memorandum of appeal.”

The Court has the discretion to grant an extension of time under Order 3 Rule 5 of the ROC 2012. The Privy Council in the case of Ratnam v Cumarasamy [1965] 1 MLJ 228, had explained how the court should exercise its discretion in the granting of an extension of time to comply with requirements under the rules of court. Lord Guest observed: “The rules of court must prima facie be obeyed, and in order to justify a court in extending time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an S/N jwve6Yh6KU6nwEuFOadwDw unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation.”

The learned counsel for the Appellant admitted that the Notice of Appeal was not served within the stipulated time in the ROC 2012 and she also admitted that the Appellant had not filed an application for an extension of time to serve the Notice of Appeal out of time. It is unfortunate that the learned counsel did not even attempt to file an application for an extension of time to serve the Notice of Appeal even after being aware of the stringent requirement under Order 55 Rule 5(2) of the ROC 2012. All she could inform this Court when asked was, that she was aware the Notice of Appeal was not served within the required time; however, the Appellant had not made any application to abridge time. It is apparent that the learned counsel for the Appellant had intentionally disregarded the requirements under Order 55 Rule 5(2) of the ROC 2012. I refer to the case of Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 MLJ 149, the Federal Court held: “[46] The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O 1A RHC is for the court or judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. Order 1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. S/N jwve6Yh6KU6nwEuFOadwDw Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O 1A RHC does not apply as the respondents had intentionally disregarded O 6 r 7(2A) RHC for their own reasons.” [50] “As I had mentioned in court, if O. 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. …” [emphasis added]

The requirement to file and serve the Notice of Appeal within the time stipulated is mandatory. Failure to serve the endorsed copy of the Notice of Appeal within time is a serious procedural defect which could render the whole appeal invalid, such procedural defect is incurable as decided in the Federal Court in the case of Tan Ting Kok v Cheong Lep Keen & Anor [1969] 1 MLRA 197. The Court held: “He says that under the rules there are two distinct steps governing civil appeals:

first, the defendant should give notice of appeal under rule 6; and

the defendant should serve notice of appeal on the plaintiffs under rule 7. Dato' Seenivasagam argues that step (a) is quite distinct from and independent of step (b), that rule 7 need not be strictly adhered to, that non-compliance with it is not fatal, and that once notice of appeal has been given by the defendant's filing it in court, the appeal is properly before the court and the court can therefore proceed to hear it. He submits that the decision of the Court of Appeal in S/N jwve6Yh6KU6nwEuFOadwDw Gurbachan Singh v Seagrott & Campbell [1962] MLJ 370 was in error. We regret that we are unable to agree with him. We cannot find any reason to differ from the reasoning in Gurbachan Singh's case. In our judgment, rules 6 and 7 must be read together and when notice of appeal is filed with the court, a copy must at the same time be served on the respondents or their solicitors. There is no difficulty about doing this if the respondents or their solicitors are in the same town. Equally there is no difficulty if they are in a distant State, because rule 32(1)(b) allows service by posting the document by prepaid registered post [*154] properly addressed. Dato' Seenivasagam concedes that this has not been done. We therefore uphold Mr. Marjoribanks' preliminary objection that this appeal has not been properly brought before the court and disallow Dato' Seenivasagam's application to proceed with this appeal. The appeal is accordingly struck off, the respondents' taxed costs to be paid by the appellant.” [emphasis added]

It is trite that filing of the Notice Appeal without serving the same within the stipulated time renders the appeal incompetent as decided by the Court of Appeal in the case of Soh Keng Hian V American International Assurance Co Ltd [1996] 1 MLJ 191, Gopal Sri Ram JCA stated: “We do not intend to dwell upon the rules of court. This much is clear. An appeal is brought to this court by filing and serving the notice of appeal. The one act without the other renders the appeal incompetent. There are scores of S/N jwve6Yh6KU6nwEuFOadwDw authorities on the point commencing from Gurbachan Singh v Seagrott & Campbell (No 2) [1962] MLJ 370. It is axiomatic that this court is seized of a wide discretion to extend time in proper and deserving cases. But it is not an unprincipled discretion. There must be some relevant evidential material made available to us before we may exercise discretion. Further, we are fully conscious of the difference between the language of the Federal Court (Civil Appeals) (Transitional) Rules 1963 and the Rules of the Court of Appeal 1994. The former required an appellant to obtain special leave to extend time to either file or to serve a notice of appeal. The latter has no such requirement. This difference in language has an important consequence. Whereas in an application under the former, the mistake of a solicitor or his clerk was no excuse (Re Coles & Ravenshear [1907] 1 KB 1), it is a factor which the court may now take into account when deciding whether to grant an extension of time under the latter (Sinnathamby & Anor v Lee Chooi Ying [1987] 1 MLJ 110).” [emphasis added]

Hence, this Court finds that the Appellant’s Notice of Appeal before this Court is incompetent for failure to serve the said notice on the Respondent within the 14 days stipulated under Order 55 Rule 5(2) of the ROC 2012. For this reason alone, the Appellant’s Notice of Appeal ought to be struck out.

As for enclosure 5, I find the reason given by the learned counsel is not sufficient for this Court to exercise its discretion to allow the S/N jwve6Yh6KU6nwEuFOadwDw extension of time. The Appellant has failed to provide any cogent reason for the delay in filing and serving the Record of Appeal. In the case of Rohman Norhakim bin Abd Aziz v Ismail bin Mohd Yusak & Anor [2020] MLJU 1312, the learned High Court Judge stated: “[16] In Allied Granite Marble Industries Sdn Bhd v Chin Foong Holdings Sdn Bhd & Ors [2000] 5 CLJ 71, the Court of Appeal enunciated the four factors to be taken into account in deciding whether to grant an extension of time to file a notice of appeal. These were (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding if time for appealing is extended; and (iv) the degree of prejudice to the would-be respondent if the application is granted. [17] It is apposite at this juncture to point out that the above mentioned four factors are applicable to both an application for extension of time to serve the notice of appeal and the record of appeal out of time. In my view all 4 factors are of equal importance and it is entirely in the discretion of the court to grant or refuse an extension of time. Each case must be looked at on its own particular facts and the discretion must be exercised in relation to those particular facts, bearing in mind that at all times the burden will be on the applicant to persuade the Court to grant his request.” [emphasis added]

An oversight or mistake and/or lack of staff is not a sufficient reason for granting an extension of time. I refer to the case of Cheviot S/N jwve6Yh6KU6nwEuFOadwDw Industries (M) Sdn. Bhd. v Lean Hup Brothers Co [1989] 1 MLRH 286, the court held: “The issue is whether an oversight or mistake on the part of the defendant's solicitors to advise the client, the defendant, of the time limited to file a notice of appeal is sufficient ground for granting an extension of time to file a notice of appeal. I answer this issue in the negative as failure to advise the defendant could not have prevented the solicitors for filing a notice of appeal if they wanted to. The fact that they did not, can only mean that they had considered that the defendant had no merits to appeal in the first place.” [emphasis added]

The Respondent also referred to the case of Tong Kim Soo v Tirai Prospektif Sdn. Bhd. [2019] MLRAU 296 whereby the Court of Appeal adopted the Federal Court case of Chia Hua Sawmill Co Sdn Bhd v. Tuan Yusoff bin Tuan Mohamed [1973] 1 MLRA 764 where the appellant failed to serve their notice of appeal within the prescribed one-month period, the Federal Court dismissed the appellant’s application for an extension of time and held as follows: “Here is a clear admission that the failure to serve the notice was due to the solicitor's mistake. Needless to say that such mistake is not a ground for granting special leave. The must be so for the obvious reason that it is not possible to draw a dividing line between a mistake which can support he exercise of a discretionary power and that which cannot. A mistake is a mistake whatever may be the reason for it.” [emphasis added] S/N jwve6Yh6KU6nwEuFOadwDw

Therefore, the Appellants’ reasons of lack of staff due to the Covid- 19 Pandemic and an oversight of the filing dates are not reasons that could be accepted by the Court in exercising its discretion to grant the extension of time.

However, more importantly, since the Notice of Appeal is not properly brought before this Court and hence incompetent, I also find the Appellants’ application in enclosure 5 for an application for an extension of time to file the Record of Appeal would be equally incompetent and therefore rendered academic.

It is appropriate for me to quote a phrase that was referred to by the Court of Appeal in the case of Raja Guppal a/l Ramasamy v Sagaran a/l Pakiam [1999] 2 MLJ 677, Haidar JCA said: “By way of postscript, we quote, ‘it is time the litigants and their legal advisers realize and appreciate that rules are made to be observed and complied with and not flouted or wantonly ignored ad libitum’, per Abdoolcader J, in dealing with the failure of the appellant to comply with the statutory provision requiring service of the copy of the record of appeal on the respondents or their solicitors in the Federal Court case of Ng Yit Seng & Anor v Syarikat Jiwa Mentakab Sdn Bhd & Ors [1981] 2 MLJ 194 at p 195.”

In this case, the learned counsel for the Appellants had not only failed to file the Record of Appeal on time but more seriously had failed to comply with the mandatory requirement of serving the S/N jwve6Yh6KU6nwEuFOadwDw Notice of Appeal on the Respondents within the stipulated time and even upon being aware of the procedural defect the learned counsel did not file an application to abridge the time to serve the said notice out of time. This is a serious procedural defect which had rendered the whole appeal invalid as the non-compliance is a defect which is not curable because it is a fundamental non-compliance with the basic process of bringing about an appeal.

For the foregoing reasons, I, therefore, ordered that the Respondent’s application in enclosure 3 be allowed with costs of RM3000.00 and the Appellants’ application in enclosure 5 be dismissed with costs of RM3000.00. Dated: 19th day of September 2022 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Appellants : Brenda Ng Pui Ying (Messrs Rafaei & Co.) For the Respondent : Nor Erini Binti Mustapha Kamal (Messrs Yee How & Tan) S/N jwve6Yh6KU6nwEuFOadwDw