Kualiti Alam Sdn Bhd v Hasnol KNM Greentech Sdn Bhd & 1 lagi (W-02(IM)(NCVC)-467-03/2019)

HASNOL KNM GREENTECH SDN BHD

KNM PROCESS SYSTEMS SDN BHD (NO. SYARIKAT: 200140-X) … RESPONDEN RESPONDEN ( DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN SIVIL NO: WA-22 NCVC-854-12/2018

HASNOL KNM GREENTECH SDN BHD

KNM PROCESS SYSTEMS SDN BHD (NO. SYARIKAT: 200140-X) … PLAINTIF 2 PLAINTIF

KUALITI ALAM SDN BHD

BANGKOK BANK BERHAD (NO. SYARIKAT : 299740-W) … DEFENDAN-DEFENDAN] CORAM ZALEHA YUSOF, HMR LAU BEE LAN, HMR AZIZAH HAJI NAWAWI, HMR GROUNDS OF JUDGMENT The appellant in this case was appealing against two decisions of the High Court at Kuala Lumpur made pursuant to two applications, namely:

Enclosure (3), which was the application for an interim injunction by the respondents against the appellant’s call on the performance bond issued by Bangkok Bank Berhad, the 2nd defendant at the High Court; 3

(ii) Enclosure (19), which was the application by the appellant to set aside the ex parte injunction issued on 26.12.2018. [2] The High Court had allowed the respondents’ application in enclosure (3) and dismissed the appellant’s application in enclosure (19). Aggrieved, the appellant appealed to this Court by filing one Notice of Appeal in respect of the said two orders of the High Court pertaining to the said enclosures (3) and (19). [3] Before us, the respondents filed a Notice of Motion in enclosure

(15), to strike out the appellant’s Notice of Appeal on the ground that it failed to comply with rule 5 of the Rules of the Courts of Appeal (RCA 1994). [4] The basis of the respondents’ application is the decision of this court in Khairy Jamaluddin v Dato’ Seri Anwar Ibrahim [2018] 8 CLJ 409 which had followed the decision of the Federal Court in Depak Jaikishan v A. Santamil Selvi Alau Malay & Ors [2017] 5 CLJ 641. [5] In Deepak, supra, one of the questions posed before the Federal Court was whether the filing of a single notice of appeal in respect of a decision on eight separate and distinct interlocutory applications is in compliance with the procedural rules as set out under RCA 1994. To answer this question, Zulkefli Ahmad Makinudin CJ (Malaya) (as His Lordship then was) had stated the following: 4 “[17] It is to be noted that r.5(3) of RCA 1994 pertaining to Civil Appeal to the Court of Appeal provides that a notice of appeal shall substantially be in Form 1 in the First Schedule. The word “shall” denotes that it is mandatory for the parties to comply with the provision under the said rule. We are of the view that the plaintiffs should have filed separate notices of appeal against the decision of the High Court in allowing the defendants’ separate applications to strike out the plaintiffs’ statement of claim.” [6] In Khairy Jamaluddin, supra, Tengku Maimun JCA (as Her Ladyship then was), in following Deepak, supra, had said the following: “[31] We are mindful of the fact that in the case of A. Santamil Selvi (supra), leading to the case of Deepak Jaikishan (supra), there were eight separate applications by eight different respondents whilst in the present case, there was only one interlocutory application and a main trial involving the same appellant and the same respondent. [32] Nevertheless, in our view, the principle to be distilled from the decision of the Federal Court in Deepak Jaikishan (supra), is not so much about the number of applications or the number of parties but whether there was a distinct and separate application resulting in a distinct and separate order by the court. If there was a distinct and separate application and a distinct and separate order of the court, then there ought to be a separate notice of appeal filed in respect of the separate and distinct order appealed against. [33] In the instant case, there is no dispute that there were two separate orders issued by the court, namely an order in respect of the main trial where judgment was entered in favour of the respondent and another order in respect of the dismissal of the appellant’s interlocutory application 5 to amend the defence. Hence, we find that this application falls squarely within the principle enunciated by the Federal Court in Deepak Jaikishan (supra), which we are bound to follow. [34] The fact that Deepak Jaikishan’s case concerns more than one respondent is thus irrelevant and cannot be the basis do distinguish the instant case from Deepak Jaikishan (supra). As we understand it, the decision of the Federal Court on the question of law in Deepak Jaikishan binds us and it is trite that we cannot disregard the doctrine of stare decisis.” [7] Learned counsel for the appellant submitted that the single Notice of Appeal filed by them was proper. He urged the court not to entertain enclosure (15) as there was no miscarriage of justice caused to the respondent. The respondents had never raised any objection in their affidavit before and had filed one submission for the main appeal. [8] We had considered the submissions of learned counsel for both parties. As pointed out by the Honourable CJ (Malaya) in Deepak, supra, the word “shall” in rule 5(3) of the RCA 1994 denotes that it is mandatory for the parties to comply with the provision under the said rule. Mandatory non-compliance cannot be cured unlike technical non-compliance. See the Federal Court in Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni 6 Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd. Noor & Another Appeal [2009] 4 CLJ 329. [9] We therefore were of the view that when there were two separate orders, there had to be two separate Notices of Appeal filed. This is an issue of law. We opined, even if the respondents did not raise this issue, this Court could always raise it. We saw no reason not to follow Deepak, supra, as we were bound by it; and we also saw no reason to depart from this Court’s decision in Khairy Jamaluddin, supra. [10] We therefore allowed enclosure (15). Consequentially the Notice of Appeal was struck out. We awarded costs of RM10, 000.00 to the respondent subject to allocator. sgd Dated: 24 August 2020 ( ZALEHA YUSOF ) Judge Court of Appeal 7 Peguamcara Perayu Raja Ahmad Mohzanuddin Shah Raja Mohzan, Abu Daud Abd. Rahman, Dayang Roziekah Ussin dan Jason Cheong Kah Lok Tetuan Azmi & Associates Suite 6.03.Menara Keck Seng 203, Jalan Bukit Bintang 55100 Kuala Lumpur Peguamcara Responden Michael Chow, Mohd. Rizal Bahari and Amirfarid Nawawi Tetuan Bahari & Bahari 322E, Jalan Ampang Kiri 5500 Kuala Lumpur Turut hadir Peguamcara Defendan ke 2 di Mahkamah Tinggi Lua Ai Siew (F) and Sim Shyu Jinn Messrs Soo Ming & Nashrah Level 9, Menara Bangkok Bank, Berjaya Central Park 105, Jalan Ampang 50450 Kuala Lumpur