Metro Megamas Sdn Bhd & 1 Lagi v Pmb Tijari Berhad (W-02(NCVC)(W)-2145-10/2017)

1.

SAJAD HUSSAIN … RESPONDEN-RESPONDEN [ Dalam Mahkamah Tinggi di Kuala Lumpur Dalam Negeri Wilayah Persekutuan, Malaysia Guaman No: 22 NCVC-531-09/2015

1.

SAJAD HUSSAIN … PLAINTIF-PLAINTIF DAN PMB TIJARI BERHAD … DEFENDAN 2 CORAM ZALEHA BINTI YUSOF, JCA ABDUL KARIM BIN ABDUL JALIL, JCA SURAYA BINTI OTHMAN, JCA GROUNDS OF JUDGMENT (Dissenting) [1] The appellant in this case had on 19.11.2018 filed a Notice of Motion and an Affidavit in support to amend their Notice of Appeal dated 16.10.2017. [2] This court by a majority decision allowed the application in the Notice of Motion, to which I dissented. My reasons are explained below. [3] The original Notice of Appeal reads inter-alia as follows: “…merayu kepada Mahkamah Rayuan terhadap hanya sebahagian sahaja daripada keputusan tersebut selepas perbicaraan penuh 3 yang memutuskan bahawa Defendan membayar kepada Plaintif-Plaintif:-

(a) Sejumlah RM4,000,000.00;

(b) Faedah ……. ” [4] What the Original Notice of Appeal means, the appellant was appealing against part of the decisions which ordered the defendant to pay the plaintiffs. So, it was only on part of the decisions on the amount ordered to be paid. In other words, in the original Notice of Appeal, the appellant only appealed against quantum. [5] However, in the Notice of Motion filed before us, the appellant sought to amend the Original Notice of Appeal by adding the following underlined words: “ …. Merayu kepada Mahkamah Rayuan terhadap hanya sebahagian sahaja daripada keputusan tersebut selepas perbicaraan penuh berkenaan dapatan liability, yang mana Defendan/Perayu adalah bertanggungjawab untuk salahnyataan 4 cuai, dan kuantum yang memutuskan bahawa Defendan/Perayu membayar kepada Plaintif-Plaintif/Responden:-

(a) Sejumlah RM4,000,000.00;

(b) Faedah …….. [6] It is my view, what it means by the proposed amendment, the appellant now sought to appeal not only against the amount ordered to be paid, i.e. quantum, but also against liability. [7] Parties agreed that the original Notice of Appeal was not defective. However learned counsel for the appellant argued that the purpose of the amendment was to clarify the applicant’s appeal. With due respect to learned counsel for the appellant, I found there was nothing to clarify as the original Notice of Appeal clearly stated that it was an appeal against quantum only. When an appeal is against quantum, the court would only need to look at the figure only, to see whether the amount was excessive or not; irrespective of liability. 5 [8] However, with the proposed amendment, “liability” was included. It means now the court would need to determine whether the appellant was liable or not before deciding on the quantum. [9] Thus, in my view the proposed amendment tantamounts to a new appeal. Hence, it was my opinion, the appellant shall not be allowed to merely file for an amendment. The appellant must file a new Notice of Appeal. To do so, the appellant must first file an application to file the appeal out of time as time to appeal had already lapsed. [10] I therefore agreed with learned counsel for the respondent that this application to amend the Notice of Appeal as filed by the appellants was an abuse the process. [11] I therefore dismissed this application. Sgd Dated: 21 May 2020 ( ZALEHA BINTI YUSOF ) Judge Court of Appeal 6 Peguamcara Responden Tetuan Rosley Zechariah 17-5, Tingkat 17 Oval Tower@ Damansara (Menara Permata Damansara) 685 Jalan Damansara 60000 Kuala Lumpur Peguamcara Perayu Tetuan Abdul Raman Saad & Associates C-2-1, Pacific Place Commercial Centre Jalan PJU 1A/4 Ara Damansara 47301 Petaling Jaya Selangor