Balaraman A/L Govendan v Liu Pei Dong (BA-12B-18-03/2025)

Enclosure 3 is the appellant's application to extend the time for filing the notice of appeal and to serve the notice out of time. B.

On 28.2.2025, the appellant filed a Notice of Appeal against the decision of the Session Court Judge dated 3.2.2025.

The Notice of Appeal was filed 26 days after 3.2.2025 and was served on the respondent.

The respondent's counsel issued a letter dated 11.3.2025, raising an objection to the Notice of Appeal, which was filed out of time.

Aware of the objection, on 18 March 2025, the appellant filed a Notice of Application (Enclosure 3) and Affidavit in Support of Muhammad Nasrul Wajdee bin Mohd Nasir, the appellant’s solicitor seeking an extension of time to file and serve the Notice of Appeal within 14 days.

Enclosure 3 was filed one month after the deadline to file Notice of Appeal. C.

Under Order 3, Rule 5(1) of the Rules of Court 2012 (RoC 2012), the Court has the discretion to grant an order for extending or abridging time as it deems just.

In Bala Subramaniam Sengodan v. Ahamed Sidique Abdul Latiff & Another Appeal [2015] 5 CLJ 623, the Court of Appeal held as follows – [35] The principles governing the grant of leave to file a notice of appeal out of time may be summarised as follows:

Rules of Court providing a time limit for the conduct of litigation, must, prima facie, be obeyed (See Ratnam v. Cumaraswamy [1964] All ER 933) and Revici v. Prentice Hall Incorporated and Others [1969] All ER 772).

(ii) Where there has been a non-compliance with a time limit, the court has a discretion to extend time. In exercising its discretion, the court will consider-a) the length of the delay; b) the reasons for the delay; c) the chances of the appeal succeeding if time for appealing is extended; and d) the degree of prejudice to the respondent if the application is granted; [36] The above factors may not necessarily be exhaustive, but they are certainly convenient yardsticks to assess the merits of an application for extension of time to file a notice appeal. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any injustice that might result from the strict application of the rules of court.

The Court of Appeal in Soh Keng Hian v. American International Assurance Co Ltd [1996] 2 CLJ 449, concludes that - It is axiomatic that this court is seized of a wide discretion to extend time in proper and deserving cases. But it is not unprincipled discretion. There must be some relevant evidential material available to us before we may exercise discretion. D.

The main issue to be decided is whether the application for an extension of time should be allowed. E.

The application for an extension of time in Enclosure 3 is based on the following reasons –

The counsel for the appellant was unable to contact the appellant within 14 days of the decision date.

(ii) The filing of the Notice of Appeal out of time was not done intentionally.

(iii) No prejudice would be caused to the respondent.

(iv) There is merit in the appeal.

The appellant’s counsel in paragraph 4.7 of his Affidavit in Support stated as follows – Pihak saya hanya dapat menghubungi anakguam semasa tempoh 14 hari selepas keputusan dan dimaklumkan bahawa anakguam kami yang kini berumur 65 tahun adalah sakit dan uzur. Akibat daripada kecederaan yang dialami perayu/plaintif, keadaan kesihatannya semakin merosot dan beliau masih mengalami rawatan susulan sehingga tahun 2024 dan keadaan kesihatan masih tidak pulih sehingga kini dan masih merosot.

Based on the above, the appellant’s counsel concedes that there was a delay in filing the notice of appeal in this matter.

The Affidavit In Support did not specify reasonable steps taken to notify the appellant of the Session Courts’ decision, nor did any letter produced support the alleged failure to contact the appellant.

The appellant's counsel relies on invoices from Thompson Hospital issued in February and March 2024 to support the appellant's health condition during the 14 days following the decision date, which was on 3.2.2025.

Due to the lack of material documents confirming the appellant’s current health condition, this Court considers it necessary for the appellant to personally affirm the supporting affidavit rather than through his counsel.

The Court of Appeal in Tong Kim Soo v Tirai Prospektif Sdn Bhd [2019] MLJU 946 held – [10] For an application to extend time to succeed, there must be circumstances which warrant the exercise of the court’s discretion in favour of the applicant.

Following the principles in Tong Kim Soo v Tirai Prospektif Sdn Bhd (supra), the appellant's counsel did not provide a detailed explanation for the delay, which warrants this Court to exercise its discretion. Delay in filing Enclosure 3

The Court of Appeal, Bala Subramaniam Sengodan v. Ahamed Sidique Abdul Latiff & Another Appeal (supra) establishes as follows- [39] We must emphasise that an application for condonation of non-observance of the rules of the court is by no means a mere formality. A full and detailed account of the causes of the delay and effect thereof must be furnished by an applicant. Therefore, a party seeking condonation, must, firstly offer an explanation for the delay in order for the court to understand fully how that non-compliance occurred; and secondly, show that the explanation so offered is bona fide and not unfounded. However, more importantly, when the failure to comply with the rules of the court has been flagrant and gross, condonation will not be granted, regardless of the prospects of success on the merit of the case of the party seeking condonation.

Having read the appellant’s affidavits, this Court finds that the appellant did not provide a reasonable explanation for the one-month delay in filing this application.

As pointed out by the respondent’s counsel, the Affidavit in Support failed to explain the likelihood of the appeal succeeding if the time for appealing is extended and the extent of prejudice to the respondent if the application is granted.

In Bala Subramaniam Sengodan v. Ahamed Sidique Abdul Latiff & Another (supra) the Court of Appeal refers to the merits of the appeal, citing In R v. Secretary of State for the Home Department [2014] EWCA Civ 1633, as follows -

The merits

If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties' incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. Here too a robust exercise of the jurisdiction in relation to costs is appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases.

The purpose of assessing the actual merits is also explained in Bala Subramaniam Sengodan v. Ahamed Sidique Abdul Latiff & Another (supra) as follows- [54] In our view, it is not the function of the court to assess the actual merits but only to see whether prima facie it is obvious that the appeal is unmeritorious or wholly unlikely to succeed. The important point being as to whether there is a serious question for adjudication as opposed to it being frivolous or vexatious.

This Court agrees with the respondent that the appellant merely listed the quantum dismissed by the learned Session Court Judge and the discussion of liability. Therefore, the Court is unable to assess the likelihood of the appeal's success. F.

For the reasons above, Enclosure 3 is dismissed with costs. Dated : 23rd July 2025. Signed HAZIZAH KASSIM Judicial Commissioner High Court of Malaya (NCvC 10) At Shah Alam, Selangor For the Appellant: Krishna Vaine Indiran Messrs Chand, Jag & Associates (Melaka) For the Respondent: Lim Qi Si & Supiah Yusuff Messrs Zaid Ibrahim Suflan T H Liew & Partners (Kuala Lumpur)