Kong Ah Choo v Easy Sun Sdn Bhd (BA-12ANCVC-70-08/2016)

EASY SUN SDN BHD

EUROCERAMIC TECHNOLOGIES COMPANY LIMITED

DATO’ KAMAL Y.P.TAN 2

4.

5.

EDWARD MOSSES JULIUS JOSEPHATH ….. DEFENDAN-DEFENDAN) 3 GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant who is the Plaintiff against the decision of the Sessions Court which allowed the Respondent, the 1st Defendant’s application, to strike out the Appellant’s Writ and Statement of Claim on 1.8.2016. [2] This matter was heard together with the case number BA-12ANCVC- 71-08/2016 as they involved the same litigants pertaining to one Sale and Purchase of Shares Agreement. [3] At the hearing of the appeal, the counsel for the 1st Defendant who is also representing the 2nd Defendant, 3rd Defendant and the 4th Defendant (1st – 4th Defendants) raised a preliminary objection against the appeal. The terms 1st Defendant and 1st – 4th Defendants may be used interchangeably. [4] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. 4 Factual Background [5] The Plaintiff brought a suit against six Defendants at the Sessions Court where the Plaintiff filed a Writ of 24.7.2015 and Statement of Claim of 27.11.2015. [6] Based on the Plaintiff’s Statement of Claim, the Plaintiff was a production manager and was working for a leading German ceramic formers manufacturing company since 1993. The 4th Defendant had introduced the Plaintiff to one Robin Ong who was interested to set up a ceramic formers plant in Thailand for his own use and to supply other glove making factories. [7] The Plaintiff claimed that he had invested RM100,000.00 to set up the 2nd Defendant, Euroceramic Technologies Company Limited with other individuals based in Sadao, Thailand, to produce ceramic formers for examination, surgical and household use. The Plaintiff was designated as the manufacturing director and was given shares in the 2nd Defendant together with the 5th and 6th Defendants although the two did not invest any 5 monies and the Plaintiff together with the 4th, 5th and 6th Defendants were tasked to run the factory. [8] In September 2006, the 3rd Defendant took over the majority shareholder of the 2nd Defendant. In April 2008, the 4th Defendant took up the job offer to join a European multinational company. The Plaintiff claimed that the 3rd and 4th Defendants negotiated a deal to sell all the shares in the 2nd Defendant to ES Ceramics Technology Berhad which the Plaintiff claimed that he did not take part. [9]

there is no reasonable cause of action against the Respondents;

the Plaintiff’s action is frivolous and vexatious;

the Plaintiff’s action is an abuse of the process of court; and

alternatively, the Plaintiff’s cause of action against the Defendants is time barred following section 6 of the Limitation Act 1953. [16] The Sessions Court allowed the 1st Defendant’s application on 1.8.2016 to strike out Plaintiff’s Writ and Statement of Claim on the following grounds: 8

The Plaintiff’s cause of action against the Defendant was barred by limitation pursuant to Section 6 of the Limitation Act 1953;

The Plaintiff did not enter into any contract of employment with the Respondent nor work at any office or factory of the Respondent. The Plaintiff had admitted that the Plaintiff was an employee of the 2nd Defendant. Therefore there was no contract of employment existed between the Appellant and the

The Plaintiff has no reasonable cause of action against the Defendant, the Plaintiff’s action as frivolous and vexatious and was an abuse of the process of Court. [17] The Plaintiff appealed to this Court on the Sessions Court’s decision in allowing the striking out application by the 1st Defendant. [18] At the hearing of the appeal, the 1st Defendant’s counsel representing 1st – 4th Defendants raised a preliminary objection against the appeal. The 9 objection is that the Plaintiff failed to follow Order 55 rule 5 of the Rules of Court 2012 (ROC 2012) without taking into consideration the 1st Defendant’s counsel’s objections to the inclusion of the 5th and 6th Defendants’ Defence into the Record of Appeal. 1st Defendant’s Submission [19] The learned counsel for the 1st Defendant objected to the pleadings of 6th and 7th Defendant as they were never served on the counsel representing the 1st – 4th Defendants. It was argued that it will be in breach of Order 55 rule 5(3) of the ROC 2012 and the Plaintiff failed and/or neglected to refer the 1st Defendant’s objection to the registrar of the High Court for determination whether the objected documents should be excluded from the Record of Appeal. [20] The counsel for the 1st Defendant submitted that the wording “all pleadings filed” under Order 55 rule 5(3)(b) ROC 2012 would mean those pleadings filed for Plaintiff and 1st Defendant’s case. In addition, the counsel for the 1st Defendant also argued that by filing 6th and 7th 10 Defendant’s Defence is an attempt by the Plaintiff to file in fresh evidence without the leave of this Court. [21] The counsel submitted that by filing a Record of Appeal not in accordance with the court procedure, will not be a proper appeal record and relied on two cases: Chuah Tim Lan v. RHB Bank Bhd & Anor [2008] 6 MLJ 793 and Owners of the Ship or Vessel Sasacom I v. Bank Pembangunan Malaysia Bhd [2015] 4 MLJ 841. Plaintiff’s Submission [22] The counsel for the Plaintiff submitted that they are in compliance with Order 55 rule 5(3) ROC 2012. The counsel submitted that the preliminary objection was raised simply because there was an application to set aside the writ and argued that the 1st Defendant’s counsel also did the same by putting all the pleadings in the Additional Appeal Record before this Court. [23] The counsel for the Plaintiff further argued that although the 1st Defendant’s counsel asking for this Court that the 6th and 7th Defendants’ 11 Defence to be excluded, there was however no preliminary objection notice made to the Court. 1st Defendant’s Submission In Reply [24] The counsel for the 1st Defendant submitted that based on the minutes of the meeting dated 19.9.2015 with the Senior Assistant Registrar of the High Court (Civil), they were advised to raise the preliminary objection before this Court and the contention that no prior notice given is untrue. [25] The counsel for the 1st Defendant prayed for the dismissal of the appeal. THE COURT’S FINDING [26] The Court had the benefit of hearing both counsels on the preliminary objections raised. Before I go to the merits of the appeal, I shall depose the preliminary objection first. If the preliminary objection is upheld, then there is no need to consider the merits of the appeal. 12 [27] As to the preliminary objection, the 1st Defendant’s counsel submitted that the non-compliance of Order 55 rule 5(3) of the ROC 2012 in the preparation of the appeal record is fatal and cited two cases, Chuah Tim Lan v. RHB Bank Bhd & Anor [2008] 6 MLJ 793 and Owners of the Ship or Vessel Sasacom I v. Bank Pembangunan Malaysia Bhd [2015] 4 MLJ 841. [28] For this purpose, Order 55 rule 5(3) of the ROC 2012 is referred which stated that, “(3) Within one month after the filing of the notice of appeal under this rule, the appellant shall file the record of appeal in the High Court, and the record shall contain copies of—

the application for the decision;

all pleadings filed;

all affidavits filed in support or in opposition to the application; and

the order or draft order of the decision appealed from: Provided that the record of appeal shall not include the notes of evidence, the grounds of judgment or any memorandum of appeal.” 13 The Defendant’s counsel contention was the inclusion of the 5th and 6th Defendant’s Defence that were not served on the 1st Defendant’s counsel for this appeal. [29] I am of the view that in relation to an appeal after trial involving documents that is to be included or excluded from the record of appeal, Order 55 of the ROC 2012 must be read in whole as it embodies all the rules of appeals to the High Court from the subordinate courts. Pertinent to the objection raised, we look at rule 4 before we approach rule 5. Order 55 rule 4(1) of the ROC 2012 clearly stated that, “4(1) 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; 14

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.” [30] The objection raised is the inclusion of the 5th and 6th Defendant’s Defence and that they were not served on the 1st Defendant’s counsel. This Court is of the view that the primary issue is whether by allowing the documents not relevant to the appeal in the appeal record will be contrary to the procedural requirement of the ROC 2012. There is also an issue of whether it will be prejudicial to the 1st Defendant’s case. [31] In reference to part (a) of rule 4(1) above, the set of documents referred to are, “the relevant pleadings” which this Court is of the view that it would mean the pleadings that is relevant to the decision that is appealed against in its literal meaning. This is consistent with part (h) of rule 4(1) which refers to the documents or exhibits that are relevant for the purposes of the appeal. 15 [32] This explain the wordings used in rule 4(1) that is “the relevant pleadings” as opposed to “all pleadings filed” under Order 55 rule 5(3) of the ROC 2012. The steps governing the procedural requirement can be found in the ROC 2012 Annotation, Volume 2, 2012 where a draft index of the documents must be included in the record of appeal and sent by the appellant’s solicitors to the solicitors for the respondent. It explained that the solicitors for the respondent may object to the inclusion or exclusion of any document. The parties are allowed if there is no agreement reached, to the inclusion or exclusion of any of the documents and they may refer the matter to the registrar of the High Court. It also explained that if no agreement can be reached with regards the documents to be included in the record of appeal, the registrar may require parties to appear before the Judge under Order 55 rule 5(5) which the 1st Defendant’s counsel had rightly objected before this Court. [33] Reverting to the facts, the striking out application was made by the 1st Defendant’s counsel, representing the 1st – 4th Defendants, on the Plaintiff’s Writ and Statement of Claim. The striking application was allowed by the Sessions Court after the trial. The Plaintiff appealed against the whole of the Sessions Court’s decision on the striking out application between the 1st 16 Defendant and the Plaintiff. This is not a matter where failure to include documents listed that is crucial to an appeal as decided in the case of Koh Teck Yew v Kok Ying Huat [1997] MLJU 351 (unreported, 29 September 1997) which resulted the appeal being dismissed. This is a matter for the Court to decide whether the irrelevant or as the counsel for the 1st Defendant puts it, objected documents, should be included in the appeal record before this Court. [34] This Court is of the view that there is merits to the preliminary objection. In appeal hearing, this Court may exercise its powers and duties as necessary to do justice in the case. The Court must exercise its discretion to ensure procedural requirements as provided in the ROC 2012 are adhered to as the consequential effect would be detrimental so as to misdirect this Court on facts and law. All relevant documents filed are referred by the Court. The burden is on the Plaintiff as the appellant in this case, to supply the relevant documents following Order 55 rule 4(1) and rule 5(3) of the ROC 2012. In addition, based on the case of Maranatha Tours & Travel Sdn Bhd v Ampang Specialist Centre Sdn Bhd [1997] MLJU 181 (unreported, 24 March 1997), it is the duty of the appellant to prepare a proper record of appeal. 17 [35] The procedural requirement is a statutory requirement for compliance in its strict sense and therefore is mandatory for parties to adhere to. The Plaintiff did not offer any explanation on the inclusion of the objected documents except to submit that they complied with Order 55 rule 5(3) of the ROC 2012. The counsel for the 1st Defendant had made its objection of the documents by indicating on the record to the registrar and for this Court to take the matter into consideration for the purpose of costs and incidental to the documents. [36] This Court also viewed that the non-service of the documents (5th and 6th Defendant’s Defence) to the 1st Defendant’s counsel will be prejudicial to the 1st Defendant as to blatantly put him at a disadvantage. The fact that the 1st counsel for the Defendant was not served with all the relevant pleadings would mean that he was not fully informed. I agree with the two cases attributed by the counsel for the 1st Defendant. However the case of Owners of the Ship or Vessel SasacomI (supra) was specifically on rule 18 of the Rules of the Court of Appeal but I do agree that both cases cited relate to compliance issue. 18 [37] Borrowing the words from the case Chuah Tim Lan v RHB Bank Bhd. (supra), by allowing the Plaintiff’s action will be amplifying the Plaintiff’s nonchalance in complying with the ROC 2012. This Court viewed that the Plaintiff’s non-compliance is a breach of the ROC 2012 and the consequences of the breach is serious and is not curable. I dismissed the appeal with cost. Dated: 10 July 2017 (DATIN ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 19 SOLICITORS: APPELLANT : JUSTIN CHIN Tetuan Justin Chin Suite E-06-19, Plaza Mont Kiara 2 Jalan Kiara, Mont Kiara 50480 Kuala Lumpur [Ref: 15/1103/KAC/J/JL] Tel : 03-6211 3877 Fax : 03-6201 4877 RESPONDENT : YEE TECK FAH Tetuan Yee Teck Fah & Co. Unit 705, Blok E Pusat Dagangan Phileo Damansara 1 Jalan 16/11, Section 16 46350 Petaling Jaya Selangor Darul Ehsan [Ref: YTF/4297/ESSB/001/G] Tel : 03-7660 9028 Fax : 03-7660 9032