(b) the reasons for the delay; (c) the chances of the appeal succeeding; and (d) the degree of prejudice to the would be respondent if the application was granted (see p 503B-C)” 30 10 [22] On the other hand, the Respondent objected to the Appellant’s 5 Notice of Motion in enclosure 5 by submitting that the reason that the delay in the filing of the Notice of Appeal was due to the mistake of the Appellant’s former solicitors which purportedly caused by his old age and cataract should not merit the exercise of discretion by this Court. 10 [23] Further, it was submitted that this Notice of Motion filed by the Appellant is not a bona fide application and the health issues cited by them are merely an afterthought. 15 [24] On merits of the Appellant’s claim, the Respondent submitted that the Appellant cannot claim for specific performance of the Settlement Agreement dated 14.5.2009 because the Appellant no longer had any rights to the contra units therein. Hence, the Appeal has no merits and bound to fail. 20 Decision of this Court [25] Having considered the Appellant’s Notice of Motion in enclosure 5 and the affidavits in support (enclosure 6), affidavit in reply of 25 the Respondent (enclosure 8) and reply by the Appellant (enclosure 9) and after hearing submissions from the Appellant’s and the Respondent’s counsel respectively, we were unanimous in our decision that the Appellant’s Notice of Motion in enclosure 5 for leave to file Notice of Appeal and extension of 30 11 time to file the Notice of Appeal out of time has no merit. We 5 dismissed the Appellant’s Notice of Motion with no order as to Costs. We now give our grounds below. [26] It is trite that the burden is on the Appellant to satisfy the Court that it should exercise its discretion to grant an extension of 10 time, as held in the landmark Privy Council case of Ratnam v Cumarasamy [1965] 1 MLJ 228: - “The Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which 15 some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to 20 provide a time table for the conduct of litigation”. [27] In the Federal Court case of Chia Hua Sawmill Co Sdn Bhd v Tuan Yusoff bin Tuan Mohamed [1974] 1 MLJ 58, the appellant failed to serve their notice of appeal within the 25 prescribed one-month period. The Federal Court dismissed the appellant’s application for an extension of time and held as follows: - “It is necessary to consider whether special leave should be 30 12 given in this case. The affidavit in support of the notice of 5 motion is that of Mr. Foo Say Ghee, the applicant’s solicitor. In paragraph 16, Mr. Foo Say Ghee said that from February 9, 1973 until March 26, 1973 he was not in a proper and normal state of mind to conduct his office work. This was because he was personally involved in matters 10 which have nothing to do with the applicant’s case. In such a state of mind he said he inadvertently omitted to instruct his staff to serve the notice on the respondent or the respondent’s solicitors. Here is a clear admission that the failure to serve the notice was due to the solicitor’s 15 mistake. Needless to say that such mistake is not a ground for granting special leave. That must be so for the obvious reason that it is not possible to draw a dividing line between a mistake which can support the exercise of a discretionary power and that which 20 cannot. A mistake is a mistake whatever may be the reason for it”. [28] Further, in the case of Tan Chai Heng v Yeo Seng Choon [1981] 1 MLJ 271, the appellant filed their appeal out of time as 25 their solicitors had misplaced the file. In dismissing the application for an extension of time. The Court made the following observation: 30 13 “It was the duty of the solicitor for the applicant to 5 exercise reasonable diligence to ensure that the notice of appeal was filed within the time prescribed for bringing the appeal even though the file was mislaid …. There are numerous reported decisions, both here and in 10 England dealing with the point in issue in this case. The cases show that the court has a discretion in the matter which must be exercised judicially after considering all the circumstances of the case. They also show that for an application to extend time to succeed there must be 15 circumstances which warrant the exercise of the court’s discretion in favour of the applicant. There is also a long line of cases which show further that a mistake or oversight on the part of the applicant’s solicitor or on the part of the solicitor’s clerk is not a sufficient ground 20 for granting an extension of time to file a notice of appeal or a memorandum or petition of appeal”. [29] In Yeo Yoo Teik v Jemaah Pengadilan Sewa, Pulau Pinang & Anor [1996] 2 MLJ 54, the Court of Appeal held as follows: - 25 “The granting or dismissal of an application for extension of time is very much a discretionary matter, but in this instance we were loath to exercise our discretion in favour of the applicant, particularly as no reasonable and acceptable 30 14 explanation had been given for the four weeks’ delay. The 5 omission in the part of a solicitor to be vigilant can hardly be described as an acceptable explanation”. [30] Based on the above principles in the above cases and in the present case, we agreed with the Respondent that the delay in 10 the filing of this Appeal on the ground that it was due to the mistake of the Appellant’s former solicitors purportedly because of his old age and cataract to his left eye should not merit the exercise of discretion by this Court. We did not accept the Appellant’s reason that the former solicitor being 64 years old is 15 old and his “cataract” had impaired his ability to conduct the case well. We found the letter exhibit “A” in the Appellant’s affidavit in support of its Motion (enclosure 5) showing that the previous solicitor being 64 years old is old and his “cataract” and was referred to Ophthalmology specialist on 7.8.2018 for further 20 assessment is not acceptable explanation for the delay, bearing in mind he had filed written submissions after full trial, by 13.8.2018 and reply submissions by 17.8.2018 and appeared before the High Court for decision 20.8.2018 without any complaint. 25 [31] We noted that the said solicitor had a medical appointment with the doctor on 18.12.2018 as shown in Medical Appointment Card in exhibit “A”. However, evidence shows that the said solicitor was in Court conducting the Appellant’s case on several 30 15 dates before his medical appointment. In fact, this was admitted 5 by the current solicitor for the Appellant. Our view is that the Notice of Motion filed by the Appellant is not a bona fide application and the health issues cited by them are merely an afterthought. 10 [32] The Respondent’s affidavit in enclosure 8, proved that the Appellant had previously made an application for an extension of time in the High Court (“the Previous Application”) on 26.9.2018 (exhibit “CSM-1”). The Appellant in the Previous Application had averred that the delay in the filing of the Appeal 15 was due to the Appellant’s confusion as to whether the said Decision delivered by the Learned Judge on 20.8.2018 was a final and conclusive decision. The Appellant further averred that the Appellant’s former solicitors had only made enquires with the Court regarding the said Decision when the Respondent’s 20 solicitors had forwarded the Draft Order to the Appellant’s former solicitors for their approval on 3.9.2018 (exhibit “CSM-2”). [33] The Respondent averred that firstly, there was no doubt that the Learned Judge was delivering a final and conclusive decision on 25 20.8.2018. In fact, the Learned Judge had read out his grounds of judgment before delivering his decision. After the Learned Judge handed down the said Decision, there were no further directions given in respect of the Appellant’s Suit and the Respondent’s Suit. 30 16 [34] We noted that this fact was not disputed by the Appellant. We 5 agreed with the Respondent that there is no basis for the Appellant to allege in the Previous Application that the events which took place on 20.8.2018 were confusing. In other words, the Appellant cannot be allowed to put the blame on the Court to justify its mistake. 10 [35] We agreed with the Respondent that even if the Appellant had been genuinely confused about whether the said Decision was a final and conclusive order, the Appellant had more than two (2) weeks after being served with the Respondent’s Draft Order on 15 3.9.2018 to seek clarification (if necessary) on the said Decision and to file its appeal. However, the Appellant had clearly failed to do so. The Appellant had only filed its Notice of Appeal on 21.9.2018 and served the same on the Respondent on 25.9.2018 (exhibit “CMS-3”). 20 [36] The Respondent’s affidavit further proved that after the Previous Application was withdrawn before Deputy Registrar Puan Nurdiana Binti Mohd Nazari on 2.10.2018, there was a significant delay between the said withdrawal and the filing of 25 this Motion on 25.12.2018. The Appellant took nearly three (3) months to file this Notice of Motion and there was no satisfactory explanation given by the Appellant for this delay. The Appellant’s change of solicitors cannot justify the delay, as there was even a delay of more than one (1) month after the 30 17 Appellant’s current solicitors have taken conduct of this matter 5 before this Notice of Motion was filed. [37] From the facts of this case, it is clear that the Appellant’s grounds in this Notice of Motion, namely that the Appellant’s former solicitor had cataract which impaired his ability to 10 conduct the case well, is merely an afterthought. We agreed with the Respondent that the Appellant’s grounds in this Notice of Motion are clearly at odds with the Appellant’s grounds in the Previous Application. Further, if the reasons stated in this Notice of Motion are indeed genuine, they would have been raised 15 during the Previous Application and not only introduced during this Notice of Motion. [38] Based on the given facts, we were also of the view that there is an unlikely chance for the appeal to succeed. 20 [39] The Respondent in his affidavit (enclosure 8) had stated that the Learned Judge had considered the evidence adduced during the trial and found that the Appellant no longer had any rights to any of the relief sought by them. The Learned Judge found that 25 the Appellant is not entitled to the specific performance of the Settlement Agreement dated 14.5.2009 and the Appellant had effectively waived its rights to the subject matter which it currently seeks to recover. The Learned Judge had also considered the Appellant’s letter dated 20.8.2009 which stated 30 18 that the Appellant voluntarily surrendered the RC Deck Contract 5 and 146 Units Contract, and that in view of the same, the Respondent was entitled to vary and/or invalidate the Settlement Agreement dated 14.5.2009 accordingly. In light of the above, the High Court had made a finding that the Appellant cannot claim for specific performance of the Settlement 10 Agreement dated 14.5.2009 and it no longer had any rights to the contra units therein. [40] It is also pertinent to note that at paragraph 13 (d) of the Respondent’s affidavit, it was averred that the Appellant’s Chief 15 Executive Officer, Mohamad Sharipoddin Bin Abd Rahman had admitted during the trial that he was illegally occupying one of the contra units and collecting from another two units, thereby showing that he did not come to Court with clean hands. 20 [41] We perused the Appellant’s affidavit in reply in enclosure 9 dated 25.1.2019 and we did not find any averment from the Appellant denying the fact as stated by the Respondent above. It is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon 25 a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted (See: The Court of Appeal in Ng Hee Thong [1995] 1 MLJ 281): Alloy Automotive Sdn Bhd v. Perusahaan Ironfield Sdn Bhd [1986] CLJ Rep 45; [1986] 1 MLJ 382; Overseas Investment 30 19 Pte Ltd v. Anthony William O'Brien & Anor [1988] 2 CLJ Rep 5 82; [1988] 3 MLJ 332. [42] We agreed with the Respondent that in the circumstances, the Appellant did not come to Court with clean hands. The Appellant must show not only it is not inequitable for the court to grant but 10 also it is not contrary to the accepted principle upon which the court exercises its discretion. See Tengku Jaffar bin Tengku Ahmad-V-Karpal Singh [1993] 3 MLJ 156. [43] Based on the above, it is clear from the facts of the case and the 15 evidence adduced during the trial that the Appellant no longer had any rights to the contra units in the Settlement Agreement dated 14.5.2009, be it in law or in equity. Conclusion 20 [44] In the result, it is our unanimous decision that the Appellant has failed to show sufficient grounds which warrant an exercise of discretion by this Court to grant an extension of time to file Notice of Appeal in favour of the Appellant. We dismissed the 25 Appellant’s Notice of Motion in enclosure 5 with no order as to Costs. 30 20 Dated this 12 June 2019 5 Sgd KAMALUDIN MD. SAID JUDGE 10 COURT OF APPEAL MALAYSIA PUTRAJAYA Parties 15