Chai Woer Shyong v Wong Kiew @ Wong Kee Yoy (BA-12B-84-06/2018)

This is the Appellant’s/ Defendant’s Notice of Application dated 27 September 2018 to raise a preliminary objection against the Respondent’s Notice of Cross Appeal dated 10 July 2018 and the Record of Cross Appeal which was filed on 15 August 2018 having failed to follow Order 55 Rule 8, Order 55 Rule 4 and Order 55 Rule 12 Rules of Court 2012 (ROC 2012) (enclosure 10) to strike out the Plaintiff’s Writ of Summon and Statement of Claim.

The Appellant’s claimed that the Respondent’s/ Plaintiff had filed the Notice of Cross appeal out of time and without applying an extension of time before the filing of the Notice of Cross Appeal.

The cause papers for this application are as follows:

The Notice of Application dated 27 September 2018;

The Afidavit Sokongan affirmed by Ardelliza Izmaryanti binti Shafie on 27 September 2018;

The Afidavit Jawaban affirmed by Siew Pak

The Affidavit Balasan affirmed by Ardelliza Izmaryanti binti Shafie on 17 Ocyober 2018; 3 THE ESSENTIAL FACT OF THE RESPONDENT’S CROSS APPEAL

Having gone through the pleadings and affidavits filed by the respective parties, I have concluded the facts below :

The Learned Judge has ruled that Madam Wong Kiew @ Wong Kee Yoy (age: 98 years old) is the lawful registered owner of a double storey shop building erected on a piece of land held under No H.S.(M) 412, Lot No. PT 184, Mukim Rawang, Gombak, Selangor;

According to the said title deed of the Said Property, Madam Wong had become the sole lawful registered owner of the Said Property on 17

Before Madam Wong’s husband, Encik Chai Kin Hin, passed away on 27 May 2013, the Said Property was taken care of by her late husband and her late husband every month gave some money to her for her own use;

The Said Property consists of two units of buildings under one postal address;

After her husband passed away, on 10 June 2013 Madam Wong appointed her youngest son, Chai 4 Meng Kuang, to collect the rentals on her behalf from the tenant of the Said Property;

However, from 1 June 2013 onwards until 31 October 2014, the Appellant has hijacked the collection of rentals from Chai Meng Kuang and all rental monies collected by the Appellant have been used for the expenditure of the Appellant and/or the Appellant’s family. After collecting the rental monies from the existing tenant, the Appellant has failed to give one single cent to Madam Wong notwithstanding the fact the Appellant knows that this is the only income resource Madam Wong has relied on for her own expenditure;

Despite the Appellant being one out of 15 grand children of Madam Wong Kiew and the Appellant has admitted that his monthly earning in year 2005 is RM3,500.00 and 4 units of apartment collecting rental per month is RM2,000.00;

Every month Madam Wong Kiew has to pay RM2,800.00 to the Philipino nurse as salary;

Since the Appellant deprived off Madam Wong Kiew’s source of lawful income, Hence, the Respondent’s had to file a suit against the Appellant 5 to claim :

the arrears of rental of RM158,450.00 due and owing to Madam Wong Kiew (Aged 98) as at 01 March 2017;

interest on the alleged sum of RM158,450.00 at the interest rate of 5% per annum from 01 April 2017 until the date of full settlement;

the Appellant’s has to pay double monthly rental base on the current rate rent one month after from the date of Judgment (at the Sessions Court) until the date of vacant possession of the demised premise deliver to the

the rental had collected from the third party tenant, (the tenant at the right hand side of the ground Floor), from 01 June 2013 until 31 October 2014 amounting to RM27,200.00.

On 27 April 2018, the Learned Judge had pronounced that the Respondents’ have no locus standi to sue the Appellant due to the Respondents had obtained the Court Order on 08 August 2016; 6

On 14/5/2018, the Appellant had filed a Notice of Appeal against the Learned Judge decision;

Subsequent to this, the Appellant had filed a Notice of Withdrawal of Appeal dated 03 July 2018;

Upon received the Notice of Withdrawal of Appeal from the Appellant on 04 July 2018, the Respondent had filed the Notice of Cross Appeal to the Selayang Sessions Court on 10 July 22018 but on 13 July 2018 was instructed by the Court officer to file in High Court of Shah Alam; and

Hence, on 16/7/2018, Respondent had filed the Notice of Cross Appeal on 16 July 2018. THE LAW FOR FILING THE NOTICE/RECORD OF CROSS APPEAL

Order 55 Rule 8 of the Rules of Court 2012, which provides that “A respondent to an appeal may, within fourteen days from the date of service on him of the record of appeal, file a notice of cross appeal in the High Court and serve upon the appellant a duplicate copy of the notice in Form 113 that he intends to contend on the hearing of the appeal that the decision of the Court below should be varied.’’ 7 Order 55 Rule 11(1) of the Rules of Court 2012: An appellant may at any time before his appeal is called on for hearing serve on the parties to the appeal a notice to the effect that he does not intend further to prosecute the appeal.” Order 55 Rule 11(2) of the Rules of Court 2012: A copy of such notice shall at the same time he filed by the appellant in the Registry of the High Court. Order 55 Rule 11(3) of the Rules of Court 2012, “If all parties to the appeal consent to the intended withdrawal of the appeal, the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their solicitors, and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar. In such event any sum lodged in Court as security for costs of the appeal shall be paid out to the appellant.” Order 55 Rule 11(4) of the Rules of Court 2012, “If all the parties do not consent to the intended withdrawal of the appeal, the appeal shall remain on the list, and shall come on for hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for making of an order as to the disposal of any sum lodged in Court as security for the costs of the appeal.” Order 55 Rule 12 of the Rules of Court 2012, “Where an appeal is withdrawn under the preceding rule, any respondent who has not given a notice of cross appeal may give a notice of appeal and proceed therewith in the manner prescribed by the foregoing rules; but in any such case the time limited for giving 8 a notice of appeal, entering the appeal, furnishing security for costs, and filing and serving the record of appeal and the memorandum of appeal may, on application to the High Court or ………………..

Having scrutinized the above, I shall now consider the rival contentions of the parties. FIRST ISSUE Notice of Cross Appeal was filed out of time? From the record, it is to be noted that the Respondents/ Plaintiffs had filed a Notice Cross Appeal dated 10 July 2018 on 10 July 2018. From the record, it is to be noted that the last date in which the Respondents’/ Plaintiffs need to file Notice of Cross Appeal was on 28 June 2018. As such, to my mind there was a delay of 11 days to file in the Notice of Cross-Appeal.

In paragraph 10 and 11 of the Affidavit Jawaban, the Respondents/Plaintiffs had disputed the calculation made by the Appellant/ Defendant on the ground that the Appellant/ Defendant had not filed in the Record of Appeal. As such, the question arised as to when does the period of 14 days begin and expired?? Under Order 55 Rule 8, it is clearly stated that 14 days grace period would begin at the time the Respondent received the Record of Appeal from the Appellant. To my mind, since the Appellant/ Defendant had withdraw such appeal, the Respondents should have taken the 14 days period be calculated from the last date in which the 9 Appellant was supposed to file in the Record of Appeal.

Exhibit “AIS-1” of the Affidavit Sokongan, the Appellant had filed in the Notice of Appeal on 14 May 2018, the Record of Appeal should have been filed within one month form the filing of the Notice of Appeal. It means that the Appellant/ Defendant should have filed in the Record of Appeal on or before 14 June 2018. In this instance, the 14 days period should have started from 14 June 2018 for the Respondents to file in the Notice of Cross Appeal, as though the Record of Appeal was served on them within such period. As such, the last date for the Respondents to file in the Notice of Appeal was on 28 June 2018. In the Affidavit Sokongan, exhibit “AIS-2”, as the Appellant/Defendant had decided not to pursue with the appeal, the Notice of Stop Proceeding had then filed.

Having considered the above, to my mind, the Respondents had failed to file in the Notice of Cross Appeal within the prescribed period. The Respondents had also failed to apply for the extension of time to file in the Notice of Cross within the prescribed period. It is my considered view that the Respondents had failed to follow the provision of the law in delaying to file in the Notice of Cross Appeal. The Respondents/ Plaintiffs should have applied for the extension of time to file in the Notice of Appeal and supported by the Affidavit Sokongan stating the reasons for the delay but none had happened. In the case of: Micheal Chong Shui Keong @ Micheal Chong v. Fong Shui En

5 MLJ 177, Tee Ah Sing J held that : 10 ……..“In this appeal the appellant/respondent was five days out of time when he served the notice of appeal on the respondent/applicant. The appellant/respondent was five days out of time when he filed the memorandum of appeal in the High Court registry and 28 days out of time when he served the memorandum of appeal on the respondent/applicant through her counsel. ……He has not made an application supported by affidavit giving reasons why he had served the notice of appeal five days late and why he filed and served the memorandum of appeal out of time. What the appellant/respondent’s counsel should have done is to apply to the High Court for an extension of time by an application supported by affidavit (see Mohd Afsar Yunus v Handal Utama Sdn Bhd [1995] 2 CLJ 118 at p 127 and Siang Galau v. Ana Wok Hiong [1994] 1 MLJ 42.) ………….Order 55 r 4(3) of the RHC states that where a memorandum of appeal is not filed or is not served within the prescribed time and no sufficient ground is shown for the delay, the appeal must be dismissed…….. For the reasons stated I dismissed the appeal with costs………..” In a similar case of: Narender Kaur a/p Gurdip Singh & Anor v. Danabalan a/l Sivalingam (2017) MLJU 721, the court held that: “……(15) Non compliance of the appeal procedural rules is a defect which is not curable because it is a fundamental non-compliance with the basic process of bringing about an appeal…… 11 SECOND ISSUE Record of Cross Appeal was also filed out of time?

Order 55 Rule 4 of the Rules of Court 2012,

In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of notice of appeal prepare and file the requisite number of copies of the record of appeal and the record shall contain copies of –

the relevant pleadings;

the notes of evidence, including witness statements, if available, recorded wholly or partly by mechanical means ;

the grounds of judgment, if available;

the memorandum of appeal;

the decision, order or judgment;

a duplicate copy of the notice of appeal;

a duplicate copy of the notice of cross appeal, if any;

all such documentary exhibits and other documents the parties shall consider relevant for the purposes of the appeal : Provided that the record of appeal shall be filed notwithstanding that the notes of evidence and/or grounds of judgment are not ready or that the sealed decision, order or judgment has not been extracted. In this case, the Respondents/ Plaintiffs had filed in the Notice of Cross Appeal on 15 August 2018. If the one month’s period would be taken from the date of the filing of the Notice of Appeal which 12 was filed on 10 July 2018, it is clearly a delay of 5 days in filing the Record of Cross Appeal. I hardly find any reasonable explanation for the delay. To this extent, to my mind for the second time the Respondents had purely breached the provision of the law in filing the Record of Cross Appeal. The Respondents had neither apply for the extension of time to file the same. In the case of: Lim Swee Keong v. Zetra Property Management Sdn. Bhd. (2017) MLJU 1229, the court held that: “…………Order 55 rule 4(1) of ROC 2012 clearly stated that the filing shall be made within one month. I must thank the lucid explanation given in the Malaysian Rules of Court 2012 at page 1007 that following Order 55 rule 4, the appellant must within one month after the filing of the notice of appeal, file the record of appeal. There have been a good number of authorities that failure to file within the prescribed time and no sufficient ground given, may lead the appeal to be dismissed and I rely on the authority attributed by the Defendant’s counsel in the case of Michael Chong Shui Keong (supra). [13] In my view, Order 55 rule 4 of ROC 2012 is mandatory and failure to strictly comply with the requirements of Order 55 rule 4 constitutes a fundamental breach of the Court’s rules. The Plaintiff’s argument that this Court should have regard to justice by referring to Order 1A and Order 2 does not make the application valid what more to be cured. It had been decided by the Federal Court in the case of DYMM Tunku Ibrahim ibni Sultan Iskandar Al-Haj. v. Datuk Captain Hamzah b Mohd Noor (and Another Appeal) [2009] 5 AMR 298 by Tun Zaki Tun Azmi CJ that if Order 1A is to be used simply for the reason that a party fails to comply with any of the provisions of the ROC 2012, then the whole of the Rules of the High Court 1980 would be rendered useless. 13 [14] Although this Court has the discretion under Order 92 rule 4 of ROC 2012, it must be used sparingly when there is a clear miscarriage of justice or an abuse of the Court’s system. In this instant case, the Court's rule is mandatory to be complied and the Plaintiffs counsel knowing that there will be a voluminous Record of Appeal to be file would have considered to file them before the time line which is 17.2.2017. Having said that, the reasons submitted by the Plaintiffs counsel on the basis of voluminous Record of Appeal and technical operation of the court’s e-fling system that had been in existence and operationalised for a number of years are without merit. I hereby dismiss the application with cost………………………… ..”. In concluding the above, I have perused the written submission by the learned counsel for the Respondent. Nevertheless, the arguments put forward by the counsel would not relate to this application but rather on the main issue in the Cross Appeal which is non relevant. In considering the merit of this application, I am guided by the advice of Abdoolcader J delivering the judgment of the Federal Court in the case of: Ng Yit Seng & Anor v. Syarikat Jiwa Mentakab Sdn. Bhd. & Ors. (1981) 2 MLJ 194 (FC) as follow: “…..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…….” CONCLUSION

In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the Appellant/Defendant’s application (Enclosure 10) is hereby allowed with cost of RM 14 3,000.00.The Notice of Cross Appeal and the Record of Cross Appeal is dismissed. Dated 04 December 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Appellant: Ardelliza Izmaryanti Shafie (Messrs.Hanif Hassan & Co.) For the Respondent: G H Tee with P T Siew (Messrs. P.T. Siew & Associates)