When an appeal is called on for hearing or at any previous time on the application of any person interested, the High Court may direct that the record of appeal, or any notice of cross appeal, be served on any party to the cause or matter who has not been served therewith, or on any person not already a party to the cause or matter, and may, for the purpose of such service, adjourn the hearing upon such terms as are just, and may give such judgment and make such order as might have been given or made if the parties served with such record or notice had been originally parties. [15] I find that Order 55 Rule 13 is not applicable. First, Order 55 Rule 13 requires an application to be made by a “person interested”. P has not made such an application here. P merely submits that this Court can exercise its discretion under Order 55 Rule 13 to allow P to serve the NOA on D out of time. [16] Second, Order 55 Rule 13 relates only the Record Of Appeal and the Notice Of Cross Appeal. The NOA in an appeal proceeding is expressly not included in this Rule. [17] Third, I cannot exercise the discretion available under Order 55 Rule 13 to circumvent or override the mandatory requirement to serve the NOA under Order 55 Rule 3(4) Inadvertence [18] On the submission that P’s omission to serve the NOA was inadvertent—I am of the view that the explanation that P gives does not absolve or relieve P from complying with the mandatory requirement to serve the NOA, and to serve it within the prescribed time. This fundamental non-compliance is fatal to P’s Appeal. Prejudice [19] On the submission that P’s non-compliance with the requirement to serve the NOA did not cause D any prejudice—I am of the view that P’s averment that their failure to serve the NOA on D did not cause any prejudice to D—is untenable. I find that P’s non-compliance had indeed caused a prejudice to D. [20] D was successful in the MC, after the trial of the case. I reiterate that the MC’s judgment in favour of D was given on 24.2.2023. P had 14 days to lodge an Appeal. Fourteen days after 24.2.2023 was 10.3.2023. The deadline to file and serve the NOA was 10.3.2023. P filed the NOA on 8.3.2023 but did not serve it on D. In other words, D was not notified about P’s purported Appeal. [21] On the 10.3.2023 deadline, D must have, in some manner, waited to see if P would serve on them a NOA. When no NOA was served, D would have concluded that P was not appealing against the MC’s decision. D would have thought that the dispute concerning the rights and obligations of the parties in the MC suit had finally ended. D would have found closure to the litigation that P had instituted against them. [22] It was not until about a month later, on 6.4.2023, that P served the NOA on D. D must have been, to say the least, surprised by the purported service of the NOA on them. D would have thought that all of a sudden, P is again thrusting D into further litigation on the same dispute. [23] This, I find, is the prejudice that is caused upon D. I am compelled to find that P’s non-compliance of not serving the NOA on D within time, is seriously prejudicial to D, with the manner of prejudice that is not reparable or compensable. The non-compliance is not curable and is procedurally lethal, rendering P’s Appeal defective and hence incompetent. CONCLUSION [24] On the case law authorities that both guide and bind me, and for the reasons that I allude to above, I allow D’s Application in Enclosure 4, and strike out P’s Appeal, with costs of RM7K to be paid by P to D by 7.3.2024. Costs are subject to the allocator. Dated: 9 February 2024 signed KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors For the Appellant: Syarifah Amnah Syed Zainal [Messrs. LC Ng & Associates (Ipoh)] For the Respondent: Cheah Ee Keong [Messrs. See, Ramsun & Tan (Penang)] Legislation referred to: