Anthony Raj A/L Ayakaram Joseph v Yap Tian Tion (WA-12ANCC-72-08/2024)

08.08.2024 seeking for extension or abridgment of time to file and serve the Notice of Appeal dated 05.08.2024 in Enclosure 1. [2] On 17.07.2023, the Respondent initiated a lawsuit against the Appellant in the Sessions Court of Kuala Lumpur vide Suit No.: WA-B52NCC-1702-07/2023 Suit 1702 . Suit 1702 sought repayment of a friendly loan amounting to RM310,000 Loan that the Respondent had extended to the Appellant. [3] Subsequently, on 7.9.2023, the Respondent filed the Notice of Application for Summary Judgment. [4] On 21.11.2023, the learned Sessions Court Judge allowed the RM3,000 Decision . [5] Messrs TSHP were appointed to take over conduct of Suit 1702 and to replace the previous legal firm, namely Messrs. Badrul, Samat, Faik & Co. Messrs BSFC [6] The Appellant filed the Notice of Appeal on 05.08.2024, almost 9 months after the Decision. [7] Enclosure 4 immediately on 08.08.2024 upon being notified of the Appeal case number by the learned Registrar of the High Court. [8] The timeline for filing an appeal against the decision of a Subordinate Court is within fourteen (14) days from the date of the decision appealed from, pursuant to Order 55 rule 2 of the Rules of Court 2012 ROC 2012 . [9] As the Decision which is now being appealed against was made on 21.11.2023, the due date for filing of Notice of Appeal was 04.12.2024. Since the Notice of Appeal was only filed on 05.08.2024, there is a delay of approximately nine (9) months. [10] The Appellant sought to justify the delay in the following manner: a) In August 2023, the Appellant appointed the previous solicitor, Messrs BSFC upon the representation of an individual known as Mr Badrul represented himself as a practicing lawyer and a partner of Messrs BSFC to attend to Suit 1702 at the Sessions Court; b) representation as a practicing lawyer and partner of Messrs details in the website which provides directory for Malaysian lawyers known as of http://rcakl.org.my; c) Throughout the period when the matter was being handled by Messrs BSFC, the Appellant only dealt with Badrul and not with any other lawyers of Messrs BSFC, and in particular, Encik Aiman Hakim Bin Kamaruzzaman, a qualified advocate and solicitor in Messrs BSFC who appeared in Court on the on the date of the said Decision as stated in the sealed order dated 21.11.2023: d) However, the Appellant claimed that Messrs BSFC did not notify the Appellant of the said Decision on 21.11.2023 at all material time; e) About eight months after the Decision, the Appellant on 16.07.2024 appointed Messrs TSHP to take over conduct of Suit 1702. Thereafter Messrs TSHP enquired from the Bar Council on the status of Badrul as an advocate and solicitor and discovered that Badrul had resigned from Messrs BSFC on 01.09.2022 upon a Receiving and Adjudication Order made against him on 26.07.2022. [11] Badrul has misrepresented the Appellant that he was a practicing lawyer and a partner of Messrs BSFC at all material time including as at August 2023 even though Badrul has been adjudicated bankrupt more than a year, way before the appointment of Messrs BSFC to represent the Appellant. [12] The Appellant then proffered that the aforesaid could be the reason why Messrs BSFC or Badrul did not notify the Appellant immediately on the Decision on 21.11.2023. [13] by the mistake of his solicitors, when the Court has the avenue to remedy it. In the case of Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 the Court of Appeal held as follows: due to the lackadaisical attitude of his previous counsel, however he should not be punished for the absence/lack of actions on the part of his counsel. Lord Denning in Doyle v Olby (Ironmongers) Ltd [1969] 2 All ER 119 said at page 1214 that: of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without [emphasis added] [14] Similar principle was adopted by the Court of Appeal in Tenaga Nasional Bhd v Porak Sdn Bhd [2000] 1 MLJ 479 at page 483 when Gopal Sri Ram JCA in delivering the judgment of the Court said: mistake. We hasten to add that the solicitor concerned is no longer on record in the proceedings before us. Whenever possible, where there is no risk of sacrifice of principle in the name of justice or at the alter of convenience, we do our best to ensure that a lay client does not suffer because of the mistake of his legal advisers. We do so in the interest of justice. [emphasis added] [15] There is undoubtedly a delay of 9 months, however it is submitted that the delay is not inordinate, considering the circumstances leading to the delay. The Appellant had no reason at all material of appointment of Messrs TSHP on 16.07.2024. [16] The Appellant also contended on the merits of his appeal stating that the learned Sessions Court Judge has erred when she failed to appreciate that there are triable issues which render the matter ought to proceed for full trial. [17] Firstly, the Appellant contended that the claim by the Respondent was for the sum of RM310,000.00. However, at all material times, the Respondent only adduced a friendly loan agreement dated the Agreement [18] Secondly, the Appellant has in its Affidavit in Reply opposing the O.14 Application, raised the issue that the said sum of RM310,000.00 given by the Respondent to the Appellant are for other purposes not connected whatsoever to the purported friendly loan agreement between the Appellant and Respondent. [19] It was contended that the above-mentioned constitutes triable issues which can only be resolved through a full trial wherein the parties are given the opportunity to cross-examine their respective witnesses to establish the said uncertainties. [20] With respect to learned counsel for the Appellant, this Court is not persuaded that the circumstances of this case merit the exercise of Appeal. [21] In Ong Guan Teck & Ors v Hijjas Kasturi [1981] MLRH 237 at [8] & [9], it was held that [8] It is trite law that the Court has an unfettered discretion to grant or refuse an extension of time. The first principle is that the rules of Court must prima facie be obeyed and in order to justify an extension of time, there must be some material on which the Court can exercise its discretion in favour of the applicant. For otherwise the party in breach of the rules would have an unfettered right to extension of time which would defeat the very purpose and object of the rules on limitation period. [9] In considering whether to grant or refuse extension of time the length of time that has lapsed is always a material factor to be considered by the Court exercising the discretion. On the facts of this case I was not able to honestly say that there was any valid ground for the delay and therefore refused the application for extension of time. [emphasis added] [22] Thus, it is trite that the discretion of this Court can only be exercised if there are some reasonable explanations provided. [23] In the present case, at all material times, the Appellant was represented by a law firm properly registered throughout to defend himself in Suit 1702. The solicitor who had attended on behalf of the Appellant, Encik Aiman Hakim was a qualified advocate and solicitors. [24] After the Decision was made against the Appellant, the judgment was duly extracted and a sealed copy of the Decision was properly and duly served on the Appellant by way of service on his solicitors Messrs BSFC sometime on 31.1.2024. In this regard, although the Appellant had claimed that Messrs BSFC had not notified him of the Decision, no evidence was tendered or adduced in support of the same but merely a bare averment made by the Appellant. [25] There is also no evidence that the Appellant himself had made any enquiries from Messrs BSFC on the outcome of the summary judgment hearing on 21.11.2023. [26] In any case, the Appellant was personally served with a Bankruptcy Notice on 8.4.2024. This was not disputed. The Bankruptcy Notice had made an express reference to the judgment entered against the Appellant on 21.11.2023. This was followed by the Bankruptcy Petition filed and served on the Appellant sometime on 5.6.2024. [27] Yet, notwithstanding the notice of the same, the Appellant did not take any immediate steps to make any application to file his Notice of Appeal out of time until sometime in August 2024. [28] In the circumstances I find that the ground given by the Appellant to justify his delay, namely, that his previous solicitors, Messrs BSFC had failed to inform him of the Decision to be, with respect, wholly unsatisfactory. Further, the fact that Badrul was not qualified to practise at the material time also has no bearing on the application. The Decision was a valid judgment and the Appellant clearly had notice of the same by 8.4.2024 when the Bankruptcy Notice was served personally on him. No reasons were given for his delay from April to August 2024. [29] There is no evidence that the Appellant had even communicated with Messrs BFSC expressing his surprise by the Bankruptcy Notice based on the judgment made against him. [30] On the issue of the merits of the Appeal, the Respondent has also demonstrated to this Court that a total sum of RM 310,000.00 was indeed transferred by the Respondent to the Appellant and the amount recovered was only for the principal loan sum and without any interests. Conclusion [31] For the reasons above, the application under Enclosure 4 is dismissed with costs fixed at RM 5,000.00 subject to payment of the allocator. Dated the 11th day of November 2024 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Dato' Hariharan Tara Singh together with Mr. Tan Eng Seng for

Mr. Wilson Lim Mao Shen together with Ms. Joyce Hii (PDK) for

Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671 2. Tenaga Nasional Bhd v Porak Sdn Bhd [2000] 1 MLJ 479 3. Ong Guan Teck & Ors v Hijjas Kasturi [1981] MLRH 237

Order 55 rule 2 of the Rules of Court 2012