Goh Shu Wei v Noorani Binti Mohamad Ismail (BA-12BNCC-17-10/2025)

This judgement concerns two applications, Firstly, the Appellant’s Notice of Application dated 10.10.2025 in Enclosure 7, seeking an extension of time to regularise the filing and/or service of the Appellant’s Notice of Appeal (abridgement of time). Secondly Respondent’s application dated 23.10.2025, to strike out the

The Respondent’s application is premised on the alleged failure of the Appellant to comply with the mandatory procedural requirements stipulated under Order 55 Rule 2 read together with Order 55 Rule 3(4) of the Rules of Court 2012 (ROC 2012). The Respondent also invokes Order 18 Rule 19 and Order 92 Rule 4 of the ROC 2012. This court will hear both the Enclosures as it relates the same issue on the extension of time and the mandatory procedural requirements in the ROC 2012.

The Respondent had lent and transferred the sum of the RM300,000.00 to the Appellant as a Loan to open a scuba diving academy. Subsequently, the terms of Loan were as follows: i. A sum of RM600,000.00 to be paid by the Appellant to the Respondent after 24 months of the diving academy being in operation; or ii. Interest of 3% per month to be paid by the Appellant after the iii. Movement Control Order, effective from 01.09.2020; and iv. Principal sum of RM300,000.00 to be paid by the Appellant after 24 months of the diving academy being in operation.

On 11.11.2021, the Respondent issued a letter to the Appellant to demand repayment and / or settlement of the Loan. Since there was no response from the Appellant, Respondent had filed a civil action in the Sessions Court of Shah Alam vide Summons No: BA-A52NCC-143-08/2022.

On 25.09.2025, the Sessions Court in Shah Alam, after a full trial, had allowed the Respondent’s claim against the Appellant and entered Judgment favoring the Respondent. Pursuant to the said Judgment, the Appellant has been ordered to pay to the Respondent the amount of RM300,000.00, interest at the rate of 5% per annum on the judgment sum and cost of RM10,000.00.

Hence an appeal on the decision of the Sessions Court judge after a full trial, was filed in Enclosure 1 before this court. Subsequently, Enclosures 3 and 7 were also filed by both parties before the Appeal in proper, could be heard.

The Respondent contends that the appeal was not properly produced, as the Notice of Appeal was filed out of time and, more significantly, served out of time. The Respondent argues that the Appellant’s failure to comply with the mandatory time frame for filing and service of the appeal constitutes a fundamental procedural non-compliance.

The Respondent further submits that the Appellant has demonstrated a pattern of non-compliance with procedural rules, exhibiting a lackadaisical attitude and a lack of good faith. The Respondent highlights that the Appellant only filed an application for an extension of time in Enclosure 7, on 19.11.2025, a considerable delay of 40 days after filing the Notice of Appeal and 27 days after the Respondent filed the application to strike out.

The Respondent argues that the Appellant’s explanation for the delay is an afterthought, inadequate and unsupported by documentary evidence. The Respondent asserts that the alleged merits of the appeal are irrelevant to the preliminary issue of whether the appeal was properly brought.

The Appellant contends that the Respondent’s application is misconceived in law and in justice, seeking the draconian relief of striking out an appeal on what are, at best, curable procedural issues. The Appellant argues that there is no jurisdictional basis to strike out their Notice of Appeal under Order 18 Rule 19 and/or Order 92 Rule 4 of the ROC 2012.

The Appellant submits that the controlling threshold for non-compliance is Order 2 Rule 3 read with Order 1A of the ROC 2012, which requires the demonstration of a substantial miscarriage of justice or incurable prejudice. Furthermore, they argue that Respondent has failed to demonstrate any substantial reasons to show miscarriage of justice or incurable prejudice. The Respondent was aware of the appeal and was able to instruct solicitors and prepare their application.

In addition, the authorities relied upon by the Respondent are distinguishable and do not support the striking out of the appeal in the present circumstances. The Appellant emphasizes the modern approach under Order 1A ROC 2012, which mandates that the Court must have regard to the overriding interest of justice, not merely technical non-compliance.

Based on the provided documents, the main issue before this court is as follows: -

Whether the Respondent’s application in Enclosure 3, to strike out the Appellants Notice of Appeal in Enclosure 1 should be allowed. Reasons are the alleged non-compliance with procedural rules, specifically regarding the timely filing and service of the Notice of Appeal?

Whether abridgement of time in Enclosure 7 should be allowed when the Appellant’s application was filed 40 days after the Notice of Appeal? THE LAW AND RELEVANT FACTUAL BACKGROUND.

In my opinion, the Appellant here, has failed to provide sufficient grounds to justify to this Court, its discretion in exercising the right to grant an extension of time for filing the Notice of Appeal. Crucially, the Respondent highlights that they themselves filed an application to strike out the Notice of Appeal on 23.10.2025. The Appellant’s application was filed 27 days after the Respondent’s striking-out application and abridgement of time, was filed, 40 days after the Notice of Appeal.

Order 55 Rule 2 of the ROC 2012 states that all appeals to the High Court shall be brought by giving a notice of appeal within fourteen (14) days from the date of the decision appealed from. Furthermore Order 55 Rule 3(4) of the ROC provides that the appellant must serve copies of the notice of appeal within the time limited for the filing of an appeal.

In the Court of Appeal decision of Gurbachan Singh v. Seagrott & Campbell (No. 2) [1962] 1 MLJ 370, it was held that: - “(1) An appeal could only be said to be brought within O. R. 15 when the notice of appeal is served on the respondents. As this was not done within one month from the entry of the judgment, the appeal was out of time, and therefore, the preliminary objection must succeed and the appeal should be struck out with costs to the respondents;

the procedure followed by the respondents, that is to say, giving the other side notice at the earliest possible moment and then dealing with the matter when the appeal came on for hearing was the correct one.”

Following the case of Ketua Pengarah Hasil Dalam Negeri v. Continental Automotive Instruments (M) Sdn Bhd [2015] 9 MLJ 857 had made reference to Gurbachan Singh (supra) and stated as follows: “[20] Where the notice of appeal is filed within time but not served on the respondent within time, it had been held that the appeal was not properly brought. The appeal could only be said to be brought when the notice of appeal had been served on the respondent. Gurbachan Singh’s case.”

There are many reported decisions on the mandatory time-lines on appeal procedure such as: - a) AT Engineering Solution Sdn Bhd v Rank Electronics Sdn Bhd b) [2024] MLJU 248 c) Yap Siew Ling v Kalarani a/p Raj Segaran [2022] MLJU 1645 d) Namachivayam Selvaraja v Narayanasamy a/l Krishnan [2021] e) MLJU1897 f) Tong Lee Hwa & Anor V Malayan Banking Bhd [1978] 1 MLJ 257(FC) g) Chin Hua Sawmill Co Sdn Bhd V Tuan Yusoff Bin Tuan

Back to the facts, the Sessions Court Judgment was pronounced on 25.09.2025 and the time period to file an appeal should be within the fourteen (14) days, expiring on 09.10.2025. In this case, Notice of Appeal was only filed on 10.10.2025. The reasonable action, there and then, should have been filing an application for abridgement of time in this court as soon as practicable. The Appellant’s application for the abridgment of time, was filed 40 days after the Notice of Appeal and in my view, understanding time limits, adhering to court procedural rules are all crucial reasons to act promptly.

The justification given in the Appellant’s affidavit was that, he was not readily contactable by his solicitors and further failed to provide any supporting documentary evidence in the said reasoning for this court’s consideration. Failure to adhere to these timelines can result in the dismissal of an appeal and the legal professionals play a crucial role in guiding their clients through these processes and ensuring compliance with the relevant limitation periods.

This laid-back approach together with the failure to comply with procedural laws diminishes the efficiency and integrity of the legal system in preventing undue delays as well as ensuring cases are resolved in a timely manner. Prolonging the process of appeal can be prejudicial to the other party as well as, the risk of escalating legal cost.

Additionally, the Appellant’s solicitors were required to serve the Notice of Appeal to the Respondent’s side within the same fourteen (14) day time period. However, the Respondent’s solicitors were only served with The Notice to Appeal on 16.10.2025, twenty-one (21) days after the Sessions Court’s decision. Hence, it is clear the Appellant had failed and / or neglected to both file and serve the Notice of Appeal within the mandatory time frame.

The Respondent's application is not premised solely on the Court's striking out powers under Order 18 Rule 19 or Order 92 Rule 4 but, also on the principle that if there is a mandatory procedural breach, the appeal may be dismissed following the courts discretion. The Respondent list down the continuous non-compliance by the Appellant as such: -

Appellant’s claim of prompt action upon realizing the oversight is demonstrably false. The timeline presented reveals a significant delay in filing the application for an extension of time, occurring for 40 days after the Notice of Appeal was filed. This delay is further exacerbated by the fact that the Respondent had already initiated proceedings to strike out the Notice of Appeal 27 days prior to the Appellant’s application. This sequence of events strongly suggests that the Appellant only sought to regularize their position when confronted with the Respondent’s decisive action, rather than proactively addressing the error. This conduct undermines the assertion of bona fide intentions and indicates a strategic rather than an excusable delay.

As my conclusion, I would like to refer firstly to the case of Bumimetro Construction Sdn Bhd v Teamware Hardware Sdn Bhd [2019] MLJU 1877, the court held that [20(3)] “if an appeal from a lower court to the High Court does not comply with any mandatory requirement in O 55 RC (Non-compliance), a respondent may raise a preliminary objection (PO) against the appeal and the court may uphold the PO and strike out the appeal under O 2 r 3 RC if the Non-compliance has caused a substantial miscarriage of justice or has caused prejudice to the respondent which cannot be cured by a court order or which cannot be compensated in costs”

Secondly the case of Soon Huat Construction Sdn Bhd v Kiong Siang Construction Sdn Bhd [1999] 4 MLJ 130 where it was held: “The appellant, despite knowing he was out of time by two days, did not apply immediately for an extension of time before he served and filed the documents. He also did not say why he thought it was all right to serve and file the record of appeal out of time... The advocate knew he was out of time by two days and could not, therefore, have sincerely held that belief or thought.”

The Appellant’s contention that no prejudice has been caused to the Respondent is also untenable. The principles articulated in comparable cases highlight that prejudice can manifest in various forms, including the expenditure of time and resources in responding to procedural irregularities. The Respondent has been compelled to engage legal counsel and prepare applications and submissions to address the Appellant’s non-compliance, representing a tangible cost and diversion of effort.

Moreover, the Respondent is entitled to certainty regarding the finality of legal proceedings. The existence of an improperly filed appeal creates an unacceptable state of limbo, preventing the Respondent from enjoying the fruits of their judgment and potentially enforcing it. This uncertainty, coupled with the delay in enforcement, constitutes significant prejudice that is not easily remedied. The procedural defect in filing the Notice of Appeal, and the subsequent delay in rectifying it, has effectively stalled the Respondent’s ability to bring closure to the litigation and to realize their legal rights.

In due course, the burden rests directly on the Appellant to demonstrate to the Court that its discretion should be exercised in their favor. This requires more than a mere assertion of error as it demands a strong justification for the delay and a clear absence of prejudice to the opposing party. The Appellant has failed to meet this burden. The reasons provided for the delay are unconvincing, and the Appellant’s subsequent actions suggest a lack of diligence and a reactive approach to procedural compliance. Consequently, the Appellant’s application lacks the necessary merit to justify the Court’s intervention and should be dismissed. Therefore, this court allows Enclosure 3 and dismisses Enclosure 7 with cost. Dated : 25 March 2026 SGD SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Appellant: [MESSRS JH YEE & CO.] Solicitor for the Respondent: [BHADARUL BAHARAIN & PARTNERS]