Ivory Glove Sdn Bhd v Assign Metal Components (M) Sdn Bhd (AB-11BNCvC-3-08/2023)

Terdapat merit dalam pembelaan/ isu-isu yang boleh dibicarakan dalam Rayuan Defendan/Perayu dan Puan Majistret telah terkhilaf dalam memberi Penghakiman Terus kepada Plaintif/Responden terhadap

Puan Majistret telah gagal dalam mengambil kira isu-isu yang ditimbulkan oleh Defendan/Perayu;

Defendan/Perayu mengalami masalah pengurusan pejabat dan oleh itu, masa yang lebih diperlukan untuk mengumpul semua dokumen supaya bukti yang kukuh dapat dikemukakan pada masa Rayuan;

Plaintif/Responden tidak akan mengalami sebarang prejudis jika Permohonan Defendan/Perayu diberikan.”. [4] The cause papers for this application are as follows: i. Notice Permohonan dated 10.8.2023 (Encl. 3): ii. Affidavit Sokongan affirmed by Jeevapoorani A/P Vasanthakumaran on 9.8.2023 (Encl. 4); iii. Affidavit Jawapan affirmed by Teh Yee Soon on 29.8.2023 (Encl. 6); and iv. Afidavit Balasan affirmed by Eliamastura Binti Kamaruddin on 25.9.2023 (Encl. 8). HEARING OF THE APPLICATION [5] The Afidavit Sokongan (Encl. 4) affirmed by the solicitors of the Appellant was objected to in paragraph 7 of Encl 6. by Teh Yee Soon, the Head of Accounting Department of the Respondent on the ground that it must have been affirmed by the Appellant’s Director and not the solicitors themselves. The application was objected to as there was no good reason given for the delay in filing the appeal and they did not exhibit any document in support of the application for the Court to consider. [6] Encl. 4 only gave 2 reasons for the delay in filing the Notice of Appeal and it was firstly that the Appellant needed more time to gather documents for the purpose of compiling “bukti yang kukuh” but this was not elaborated. Moreover, there was a discussion for settlement which did not materialise and that the Appellant was having some internal management issues. The Appellant stated that the Notice of Appeal could only be filed once these issues had been sorted out. It was also the Appellant’s contention that the Magistrate had misdirected herself in allowing the application for summary judgment. The Appellant’s solicitors also urged the Court to allow the application because the Appellant had a good defence on the merit and that there was no intention to disrespect the Court by the late filing of the appeal. [7] In response, the Respondent’s representative contended that there was no merit to the application as the reasons put forth in support of the application were merely bare denials as the Magistrate had heard the arguments of the parties and found that there were no triable issues or any defence on the merits. The Respondent stated that it has been prejudiced by the application as the next stage was for it to enforce the judgment against the Appellant. The Respondent further stated that there were no documents filed to support the application or to show the defence of the Appellant. This Court was urged not to allow the application as it would open the floodgates for such unmerited applications. On a side issue, I noted that the facts of the case (the cause of action) and chronology were only stated in the written submissions of the Respondent. [8] It is only in Encl. 8 that the Appellant exhibited some documents in support of its application. These were “minit mesyuarat, rekod kerosakan mesin “Daily Downtime Record” dengan gambar-gambar bagi membuktikan barangan yang telah diberikan oleh Responden adalah tidak berkualiti. Therefore, it was contended that the Appellant had a defence on the merit and it should not be prejudiced if the Court did not allow the application for extension of time to file the appeal. The Appellant reiterated that the delay was as per paragraph 6 therein. [9] In regard to the issue of its solicitor affirming the Afidavit Sokongan, the Appellant stated that it was not wrong for the solicitor to do so as she was acquainted with the facts of the case having handled the case at the Magistrate’s Court and had taken instructions form the Appellant. EVALUATION AND FINDINGS OF THE COURT [10] On the issue of the Appellant’s solicitor affirming Encl. 4, the provision of Rule 28 of the Legal Profession (Practice and Etiquette) Rules 1978 provides: “Rule 28. Advocate and solicitor not to appear in a case where he is a witness

An advocate and solicitor shall not appear in Court or in Chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be a witness, he shall not continue to appear if he can retire without jeopardising his client’s interests.

…

This rule does not prevent an advocate and solicitor from swearing or affirming an affidavit as to formal or undisputed facts in matters which he acts or appears.”. [11] In the case of Malayan Banking Berhad v Charterefield Corp Sdn. Bhd [2001] 3 MLJ 160 it was held that a solicitor may depose an affidavit on behalf of the litigant if the following conditions are fulfilled:

the facts to be deposed must not be contentious or disputed question of facts;

(ii) the facts to be deposed must be from his knowledge; and

(iii) he is authorized by the litigant to depose the affidavit. [12] Encl. 4 was filed in support of the application for extension of time to file the Notice of Appeal. Based on the contents of Encl. 4, the Court found that there was no dispute that there was a delay in filing the Notice of Appeal and the Appellant’s solicitor handled the trial at the Magistrate’s Court. She would have knowledge of the facts deposed therein and was also authorised by the Appellant to do so on its behalf. The facts that may be contentious could be in regard to the reason(s) for the delay in filing the Notice of Appeal. Nevertheless, that would come under the merits of the argument whether the reasons for the delay would constitute a good ground to allow the application. Therefore, it appears from the provision of Rule 28(c) above, the Appellant’s solicitor is not precluded from affirming Encl. 4 on its behalf. [13] Now I move on to consider the issue of the length of delay and reasonableness. The Court in the case of Saeed U Khan v Lee Kok Hooi [2000] 7 CLJ 454, Faiza Thamby Chik J held: “In exercising its discretion under O.3 r. 5(1) of the Rules of the High Court the court should take into account certain factors, such as:

the delay in making the application;

whether or not there are cogent reasons for the litigant not to have made the application within the prescribed time;

the likelihood and degree of prejudice, as swell as the injustice to the opposite party should the court exercise its discretion. … Though no time limit is specified in the Rules or by any statute for the filing of an application for the enlargement of time to file a notice of appeal, by natural justice such application should be made within reasonable time. What is reasonable would depend on the circumstances. A notice of appeal may be filed two days late, but in law it is still a defective notice. What is essential then is for the party concerned to take immediate steps to file an application for enlargement of time to file the notice of appeal out of time. The longer the delay in the filing of an application of such a nature, the greater is the likelihood of prejudice to the opposite party. In the case of Ong Guan Teck & Ors. V Hijjas [1982] CLJ 31; [1982] 1 MLJ 105, where the court held that a delay of four months after the expiry of the period to make the application was unreasonable. At p. 106, the court stated: It is trite law that the court has an unfettered discretion to grant or refuse an extension of time. The first principle is that the rules of court must prima facie can be obeyed and in order to justify an extension of time, there must be some material on which the court can exercise its discretion in favour of the applicant. For otherwise the party in breach of the rules would have unfettered right to extension of time which would defeat the very purpose and object of the rules on limitation of time. In considering whether to grant or refuse extension of time the length of time that has lapsed is always a material factor to be considered by the court exercising the discretion. On the facts of this case I was not able to honestly say that there was any valid ground for the delay and therefore refused the application for extension of time.”. [Emphasis added] [14] Without going into the full merits of the case, it is necessary for the Court to examine the reasons for the delay in filing the Notice of Appeal by the Appellant. The Appellant in Encl. 8 reiterated the reason given in Encl. 4 and provided some documents to support the application after objections were raised by the Respondent in Encl. 6. Despite claiming that it was only able to file the Notice of Appeal after the documents were obtained, they were not filed in the first instance when Encl. was filed but only upon rebutting the objections of the Respondent in Encl. 6. Upon perusal of the documents exhibited in Encl. 8, I could not really make out the figures in page 11 (pdf) of that enclosure. There were also some photographs exhibited which the Court could not make out whether they were attributed to the Respondent. Further, in regard to the few minutes of meetings which were included therein, on a balance of probabilities, I did not find them to make out a sufficient case against the Respondent. [15] In the case of Khor Cheng Wah v Sungei Way Leasing Sdn Bhd [1997] 1 CLJ 396, Gopal Sri Ram JCA stated the following: “It is a cardinal principle of law, that when a litigant seeks the intervention of the court in a matter that affects his rights, he must do so timeously. The vigilantibus, non dormientibus, jura subveniunt, though having its origins in the Court of Chancery, is of universal application. Even in cases where a right isexercisable ex debito justitiae, a court may refuse relief to an indolent litigant. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it. Whether the explanation in a given case is satisfactory or reasonable depends upon the facts and circumstances of each case. And in a matter which involves the exercise of discretion, it is for the judge in whom the law primarily vests the discretion.”. [Emphasis added] [16] The Court considered the reason given in paragraph 6 but I could not reconcile it with the fact that the hearing of Encl. 38 for summary judgment to be entered against the Appellant at the Magistrate’s Court had gone on in full. The Appellant admitted that summary judgment had been entered against it and it was not the case of entering a Judgment in Default which may be set aside ex debito justitiae. Here, they had a full hearing in respect of an O.14 application, which meant that all evidence had been filed in the form of exhibits to the affidavits prior to the hearing. Therefore, it did not make sense for the Appellant to claim that “… pihak saya memerlukan masa untuk mengumpul semua dokumen untuk mendapat bukti yang kukuh serta terdapat perbincangan untuk penyelesaian tetapi gagal.”. Does that mean that the Appellant, if the application is allowed, will later go on to apply to admit “fresh evidence”? It appears that this reason given by the Appellant is an afterthought and also not a cogent reason to enlarge the time. [17] The Appellant urged the Court to exercise its discretion under O.1A and to hear the merits of the case. However, the overriding interest of justice does not just mean the interest of the party which had breached the rules but the Court needs to conduct a balancing exercise with the interest of the party complaining of the breach. O.55 r. 2 provides that “All appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from.” It is trite law that non-compliance of a mandatory provision of the ROC which is fundamental in nature will not be regarded as technical non-compliance of a rule that may be remedied under O.1A of the RHC and now the Rules of Court 2012. [18] The Court refers to the case of Abdul Hamid Mohd. Amin v Ramacon Corporation Sdn. Bhd. [2016] 3 CLJ 111 on the issue of the length of delay where in that case it was only for a period of 11 days. The Court there cited the case of Duli Yang Amat Mulia Tunku Ibrahim Ismail ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 where Tun Zaki Azmi, CJ held: “[46] The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O.1A RHC is for the court or judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. O.1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O.1A RHC does not apply as the respondents had intentionally disregarded O.6 r.7(2A) RHC for their own reasons. [Emphasis added] [19] The High Court in Abdul Hamid’s Case (supra) continued: [14] The appellant, while admitting that he was out of time in filing his AR has merely proffered a single reason for this failure or neglect, namely, that it was due to an oversight of the 30 day time limit for filing of the AR while awaiting the notes of evidence and grounds of judgment to be supplied by the trial court. The question arose as to whether this sole ground would constitute a reasonable and justifiable basis for the court to grant an extension of time despite the clear breach of a mandatory requirement under the ROC that called for strict compliance. As rightly contended by the respondent, the appellant was then represented by solicitors, who should have been well aware of the relevant provisions of the ROC. Hence, the reason given for non-compliance premised on oversight wholly lacked credibility and was, instead, under the circumstances, a patently lame excuse that did not merit serious consideration. [Emphasis added] [20] Where there are blatant breaches of rules and procedure, particularly those that are mandatory and fundamental in nature, the applicant needs to show strong and cogent grounds that are considered sufficient in order to invoke the court's discretionary powers to grant an extension of time: Abdul Hamid’s Case (supra). [21] Having considered the cause papers and submissions of the parties, the Court found that the period of 62 days prior to the filing of the Notice of Appeal was an inordinate delay on the part of the Appellant. They should have filed the Notice of Appeal first, given that they had only 14 days to do so, and work on the documents later as that would have been for the merit of the appeal itself, if they are able to get over the other hurdle of getting the “newly-found documents” in the Afidavit Balasan to be included in the Record of Appeal. The reason put forth about internal problems and change of management were not cogent reason(s) to allow this application because the Appellant was represented by counsel at the Magistrate's Court. CONCLUSION [22] Pursuant to the above reasons, the Court did not find any merit in the application to enlarge time to file the Notice of Appeal. Therefore, the application was dismissed with costs. Order accordingly. Dated 12 December 2023 Sgd. Noor Ruwena Binti Md. Nurdin Judicial Commissioner High Court, Taiping For the Appellant: Ms. Jeevapoorani A/P Vasanthakumaran Messrs. Arnold Andrew & Co., Penang For the Respondent: Mr. Chuah Chuen Messrs. Kenny Lee & Associates, Petaling Jaya