An application under this rule may, after notice of the irregularity has been given to the other party, be made by notice of application and the grounds of objection shall be stated therein. S/N eiqNZLcEOEujVkiavEfnMg Preliminary objection for non-compliance of rules not allowed (O. 2 r. 3) A Court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provision of these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both. The appellant’s contention [20] The appellant’s primary contention was premised on the ground that this Court has the power to grant an extension of time for them to file their Record of Appeal. This in turn was based on the argument that in evaluating this application for an extension of time, this Court shall have regard to the overriding interest of justice and not the technical non-compliance of the rules. The appellant placed reliance on the provisions in Order 1A and Order 2 of the Rules of Court 2012. [21] Based on the above, the appellant went as far as to put forward the argument that this Court “is in no position to dismiss the appeal based on non-compliance but instead shall allow for the Defendant’s application for an extension of time and to hear the appeal based upon its merits”. S/N eiqNZLcEOEujVkiavEfnMg [22] Despite having made the above assertion in their written submission, the appellant did concede that Courts are empowered to exercise their discretion to disallow an application for an extension time. The appellant had in fact cited authorities affirming this proposition. The appellant further rightly alluded to the following factors which should be considered by this Court, namely, (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding; and (iv) the degree of prejudice to the respondent if the application were allowed. [23] The reason put forward by the appellant for failing to file their Record of Appeal in time was due to the fact that despite having filed their Notice of Appeal, they did not receive the appeal number from the Court. The appellant said that they made attempts to find out the appeal number but those attempts were to no avail. Hence, the delay in the filing of the Record of Appeal. In short, the appellant’s contention was that they should not be faulted. At the same time the appellant categorically stated in their written submission that their application “was never an attempt to blame any parties in whatsoever manner”. [24] The appellant also argued that there were merits in this appeal. The gist of the argument was that the appellant had alluded to this ground in their sworn Affidavit in Support of their application but the respondent had “failed and choose not to file any Affidavit in Reply” against the appellant’s application. Such a failure or election not to serve an Affidavit in Reply, according to the appellant, had the effect of “the contents of the Affidavit in Support” as having been “deemed as an admission at the outset”. S/N eiqNZLcEOEujVkiavEfnMg [25] Finally, it was contended by the appellant that there is no prejudice towards the respondent in whatsoever manner should this application for extension of time be allowed. According to the appellant, as the respondent had obtained their respective order in terms of their application with regards to their Garnishee to Show Cause at the Sessions Court, it would be more prejudicial towards the appellant if their extension of time were not granted for its appeal to be heard on its merits. The respondent’s contention [26] Unsurprisingly, the respondent adopted the opposing view and argued that the application for extension of time should be disallowed. The respondent argued that Order 1A and Order 2 of the Rules of Court 2012 should not be invoked to support the appellant’s application. [27] The respondent fervently argued that there was no sufficient material presented before this Court to justify an extension of time to be granted to the appellant to file their record of appeal other than the “frivolous excuse” of not receiving or being notified of the case number for the instant appeal. That supposed excuse, according to the respondent, substantially ran fouled of the content in the Notice of Case Management through e-Review dated 18 August, 2022. [28] The respondent explained that the case number of this appeal had been assigned two days after the appellant had filed their Notice of Appeal and this was evident when the Notice of Case Management through e-Review containing the case number of this appeal was sent out on 18 S/N eiqNZLcEOEujVkiavEfnMg August, 2022. The respondent submitted that the issuance of the Notice for Case Management and the listing of the appeal together with its case number on the e-Review by themselves sufficiently gave notice to the appellant of the case number. [29] In response to the point raised by the appellant concerning the merits in the instant appeal, the respondent argued that it was the appellant that had to failed to affirm the relevant facts leading to the merits of the appeal. The respondent pointed out that the appellant had merely mentioned that the application herein was important so as to allow the appeal to be heard and considered. As the appellant had failed to explain under what circumstances their appeal was meritorious and henceforth ought to be heard by this Court the respondent argued that the appellant should be precluded from arguing that there were merits in the instant appeal. The authorities [30] In support of the submissions advanced by the parties in the foregoing paragraphs, numerous decisions were cited. [31] The appellant relied on Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & Ors [2017] AMEJ 0997; [2017] 10 CLJ 296; [2017] 5 MLJ 35 (“Redang Paradise”), MBF Finance Bhd v. Alluwi Salleh T/A ABS Bina Enterprise & Anor [2002] CLJ 133; [2002] 1 MLJ 49 (“Alluwi Salleh”) and Chubb Samaggi Insurance Public Company Limited v. Best Re (L) Limited & Anor [2020] 5 AMR 700; [2020] 1 LNS 574 to support their argument S/N eiqNZLcEOEujVkiavEfnMg that Order 1A and Order 2 should be invoked and an order for extension of time should be granted. [32] Ng Hee Thong & Anor v. Public Bank Berhad [1995] 1 AMR 622; [1995] 1 CLJ 609; [1995] 1 MLJ 281 was also cited by the appellant as authority for the proposition that “where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted”. The material issue in this appeal was in relation to the merits of the appeal. [33] The authorities cited by the respondent include Ratnam v. Cumarasamy & Anor [1965] 1 WLR 8; [1964] 1 LNS 237; (1965) 31 MLJ 228, Kerajaan Negeri Pahang Darul Makmur & Anor v Seruan Gemilang Makmur Sdn Bhd [2008] 6 AMR 561; [2008] 6 CLJ 611; [2008] MLJU 464 (“Seruan Gemilang”), Tractors Malaysia Bhd v. Southern Estates Sdn Bhd & Anor [1983] 1 LNS 48; [1984] 1 MLJ 118, Gurdev Kaur Bhag Singh v. BSN Commercial Bank (M) Bhd [2003] 2 AMR 110; [2003] 1 CLJ 429; [2002] MLJU 643 and Karun Klasik Sdn Bhd v. Tenaga Nasional Bhd [2018] 3 MLJ 749. The respondent had relied on these authorities to support their contention that the factual matrix in this appeal did not warrant or justify the granting on an extension of time. The legal position [34] The overriding objective of the Rules of Court 2012 can indeed be gleaned from the provisions in Order 1A and Order 2 rule 3 of the Rules of Court 2012. S/N eiqNZLcEOEujVkiavEfnMg [35] Redang Paradise, a decision of the Court of Appeal, is binding on this Court. This decision was cited by the appellant to advance the proposition that the aim behind the introduction of Order 1A and Order 2 is to ensure that the merits of a case or appeal must be heard to attain substantive justice. Nevertheless, the clarion call for cases and appeals to be heard on merits is not an absolute rule. [36] When Order 1A, Order 2 and Order 3 rule 5 of the Rules of Court 2012 are read together, it is evident that the Court retains the discretion to disregard a non-compliance with regard to timelines and extensions of time may be granted. However, it cannot possibly be suggested that every application for an extension of time must be allowed. The wordings in these provisions do not support such a conclusion. Redang Paradise itself acknowledged that there may indeed be exceptions to the rule that cases and appeals should be heard on merits. Likewise, the High Court in Alluwi Salleh in citing numerous authorities had expressly held that “the grant of extension of time is (still) discretionary to be exercised by the judge in each particular case”. This was a case cited by the appellant. [37] In exercising their discretion, courts will consider a variety of factors. As rightly stated by the appellant in their submissions, these factors include (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding; and (iv) the degree of prejudice to the respondent if the application were allowed. S/N eiqNZLcEOEujVkiavEfnMg The decision of this court [38] The reason for the delay in the filing of the Record of Appeal, according to the appellant, was attributed to their inability to obtain the case number for the appeal. [39] In Seruan Gemilang, there was also a delay in the filing of the Record of Appeal. Hasan Lah JCA (as his Lordship then was) in delivering the decision of the Court of Appeal had considered the reason provided by the appellant and held as follows: [15] In the instant case the reason given by the applicants for not filing the record of appeal within time was that they could not file the record of appeal earlier because they had to amend the case number in the notice of appeal. Their application to the High Court to amend the case number was made on 9 July 2007 and on 6 August 2007 the application was dismissed by the High Court. Only on 1 October 2007 the applicants filed this application to this court. [16] We were of the view that the explanation given by the applicants for the failure to file and serve the record of appeal within the required time could hardly be described as an acceptable explanation for the delay. What the applicants should have done was to file the record of appeal first and then applied for the amendment after that. As such the applicants should not have waited for the amendment to be made first before filing their record of appeal. S/N eiqNZLcEOEujVkiavEfnMg [40] Abdul Malik Ishak JCA in his concurring judgment remarked as follows: [30] The appellants submitted that there was a mistake in the notice of appeal that should be rectified first before the record of appeal was filed. With respect, in order to comply with r. 18(7) of the Rules of the Court of Appeal 1994, the record of appeal should have been filed within the stipulated time period and should there be a need to rectify the record of appeal it could be done later. It is apparent that the appellants did not pursue actively, with vigour and vitality, their appeal. [41] It is granted that the facts in Seruan Gemilang are not exactly on all fours as the ones in the present appeal. Be that as it may, one striking feature in both these cases is the fact that in both appeals, there was nothing to prevent the appellants from filing the Record of Appeal within the stipulated time period. [42] In the present appeal, the case number of this appeal had been assigned two days after the appellant had filed their Notice of Appeal. The Notice of Case Management through e-Review containing the case number of this appeal was sent out on 18 August, 2022. The appellant had therefore been notified of the case number of their appeal. As the party that initiated the appeal, the onus was on the appellant to keep track of developments in this appeal. Had the appellant been diligent in checking the Court Management System, as they should, they would have S/N eiqNZLcEOEujVkiavEfnMg known that the case number for their appeal had been assigned by the Court. [43] As far as the merits of the appeal are concerned, the opposing arguments are outlined in paragraphs [24] and [29] above. [44] Reference can once again be made to the decision of the Court of Appeal in Seruan Gemilang. Hasan Lah JCA addressed the merits ground as follows: [17] A more serious ground for refusing the applicants' application was that nothing was mentioned about the merits of appeal in their affidavit-in-support. They did not mention the factual circumstances surrounding the cause of action leading to the order appealed against. It would had been sufficient if they had at least exhibited the statement of claim and the statement of defence in their affidavit-in-support so as to give the basis for their counsel to submit on the merits of their appeal. It is trite that in an application for extension of time to file record of appeal the applicants have to show that they have at least an arguable case in their appeal. [18] Accordingly, we were of the unanimous view that the applicants' application for extension of time was devoid of any merit. This was not a suitable case for us to exercise our discretion in favour of the applicants. We therefore refused it even though we allowed the applicants' application to amend the case number in S/N eiqNZLcEOEujVkiavEfnMg their notice of appeal. We did not make any order with regard to the costs of the application. [19] As the applicant's application for extension of time had been refused, it followed that there was no competent appeal before us. We therefore allowed the respondent's application that the applicants' appeal be dismissed with costs. [45] Abdul Malik Ishak JCA was more pointed in his Lordship’s decision. [28] Should we show our indulgence to the appellants? The failure to file the appeal record on time would attract the irresistible inference that no reasonable diligence was exercised by the appellants. Such laxity unless explained by affidavit cannot be excused by this court (see the case of Warinco v. Samor SpA [1979] 1 Lloyd's Rep 450 that was cited with approval by the then Supreme Court in Ooi Bee Tat v. Tan Ah Chim & Sons Sdn Bhd & Anor and Another Appeal [1995] 4 CLJ 484, SC). [29] The affidavit in support of encl. 6a failed to show sufficient materials to support the submission that there were merits in the appeal. The affidavit failed to mention what the appeal was all about. It also failed to mention where the High Court had gone wrong. … S/N eiqNZLcEOEujVkiavEfnMg [31] Even assuming that this court were to accept the explanation by the appellants for the delay in filing the record of appeal, yet as I said earlier that there were no sufficient materials placed before us. [32] According to the Privy Council case of Ratnam v Cumarasamy & Anor [1964] 1 LNS 237, that: "The Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion". There was none here. And since the burden was on the appellants to show sufficient material before this court could exercise its discretion in their favour, we must make a ruling that the appellants failed to discharge their burden (Tan Siew Peng v. OCBC Bank (M) Bhd [1998] 2 CLJ 684, CA). [33] We wholeheartedly agree with the submissions of counsel for the respondent that there was insufficient material placed before us to enable us to exercise our discretion in favour of the appellants. We are of the considered view, that there was a blatant disregard by the appellants of r. 18(7) of the Rules of the Court of Appeal 1994 (Alloy Automotive Sdn Bhd v. Enkei Automotive Co Ltd & Anor [1997] 2 CLJ 205, CA). [46] A parallel can be drawn between the present appeal and Seruan Gemilang on the issue of the merits of the appeal. S/N eiqNZLcEOEujVkiavEfnMg [47] There is a real danger if the likes of Order 1A and Order 2, in particular, Order 2 rule 3 of the Rules of Court 2012 are invoked with impunity. These provisions should not be regarded as a carte blanche for parties to disregard provisions in the Rules of Court 2012. [48] Order 1A, Order 2 and Order 3 rule 5 of the Rules of Court 2012, when read together, do not operate to automatically extend a period within which a party in the civil litigation process is required to act in any given proceedings. A party in breach of a rule to do any act in any proceedings within a specified period of time does not have an unqualified right to an extension of time. As observed by the Privy Council in Ratnam v. Cumarasamy, to hold otherwise would defeat the purpose of the rules in providing a time table for the conduct of litigation. [49] Ratnam v. Cumarasamy is no doubt a decision before the introduction of Order 1A and the amendments to Order 2 of the Rules of Court 2012. However, the validity of the logic as outlined by Lord Guest remains true post Order 1A. [50] The circumstances in which a party is entitled to have its application for an extension of time be allowed cannot be defined with precision nor exhaustively set out. Any attempt to do so should be avoided. It remains a matter of discretion for the court to evaluate, based on the factual matrix of each case. [51] I have taken into account all the factors that point in favour of the appellant and weighed them against all the circumstances in this case. S/N eiqNZLcEOEujVkiavEfnMg The decision that I have reached may at first blush appear to be harsh but based on the totality of circumstances of this case, I am unable to exercise my discretion in the appellant’s favour. [52] The appellant’s application is dismissed with costs. The appellant to pay the respondent costs of RM3,000. Dated: 26 May, 2023 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Pramjit Singh together with Navinjit Singh for the Appellant (Messrs. Harjit Sandhu, Wan & Associates) Ong Ewe Lim for the Respondent (Messrs. Edwin Ong Chambers) S/N eiqNZLcEOEujVkiavEfnMg