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

1 IN THE COURT OF APPEAL MALAYSIA (APELLATE JURISDICTION) CIVIL APPEAL NO.: W-02(NCVC)(W)-2145-10/2017 BETWEEN PMB TIJARI BERHAD (COMPANY NO: 310220-X) [Formerly known as KFH IJARAH HOUSE (MALAYSIA) BERHAD] … APPELLANT AND

1. METRO MEGAMAS SDN BHD (COMPANY NO: 809886-H)

2. SAJAD HUSSAIN (UNITED KINGDOM PASSPORT NO: 534756092) … RESPONDENTS (In the High Court in Malaya at Kuala Lumpur In the Civil Suit No: 22NCVC-531-09/2015 Between

1. METRO MEGAMAS SDN BHD (Company No: 809886-H)

2. SAJAD HUSSAIN (United Kingdom Passport No: 534756092) …PLAINTIFFS And PMB TIJARI BERHAD (Company No: 310220-X) [Formerly known as KFH IJARAH HOUSE (MALAYSIA) BERHAD] … DEFENDANT) 2 CORAM: ZALEHA BINTI YUSOF, JCA ABDUL KARIM BIN ABDUL JALIL, JCA SURAYA BINTI OTHMAN, JCA JUDGMENT OF THE COURT (MAJORITY) BACKGROUND FACTS [1] The Respondents/Plaintiffs filed a suit against the Appellant, vide Civil Suit No. 22NCVC-531-09/2015 at the High Court in Malaya at Kuala Lumpur (the Civil Suit). [2] The Respondents/Plaintiffs claim was for negligent misstatements and/or fraudulent representations allegedly made by the Appellant/Defendant pertaining to the availability of funding for a project known as “Projek Tebusguna Persisiran Pantai Negeri Perlis”. The Respondents/Plaintiffs alleged that their reliance on the Appellant/Defendant negligent statements and/or fraudulent representations caused them to suffer losses. Therefore, the Respondents/Plaintiffs prayed for RM4,000,000.00 being special damages for wasted expenditure, RM225,000,000.00 being general damages for loss of profits, exemplary damages and punitive damages. 3 [3] On 21.9.2017, the High Court allowed the Respondents/Plaintiffs claim for RM4,000,000.00 with interest at 5% per annum in the sum of RM4,000,000.00 from 19.2.2010 until full settlement with costs of RM60,000.00. However, their claims for general damages, exemplary damages and punitive damages were dismissed. [4] Aggrieved by the said decision, the Appellant/Defendant on 19.10.2017 filed an appeal to this Court. The Respondents/Plaintiffs on 21.12.2017 filed a Notice of Cross-Appeal. [5] Subsequently, the Appellant/Defendant on 22.11.2018 filed a Notice of Motion in Enclosure 28 together with an Affidavit in Support to amend their Notice of Appeal. [6] On 19.2.2019, after we heard the Appellant/Defendant’s Notice of Motion in Enclosure 28, the motion was, by majority, allowed. Justice Zaleha Yusof by a dissenting decision, dismissed the motion. [7] For the purpose of this appeal, the parties will be referred to as they were at the High Court; the Respondents as Plaintiffs and the Appellant as Defendant. Enclosure 28 [8] The Defendant on 22.11.2018 filed a Notice of Motion in Enclosure 28, seeking to amend its Notice of Appeal. Enclosure 28 was premised on the basis that the Defendant intends to clarify and to make it clear that the 4 Defendant’s appeal is against part of the High Court’s Judgment dated 21.9.2017 (“the said Judgment”) in respect of both liability and quantum in allowing the Plaintiffs claim for RM4,000,000.00 and not just in respect of quantum as alleged by the Plaintiffs. The filing of Enclosure 28 arose by virtue of a preliminary point raised by the Plaintiffs’ solicitor on the actual date of hearing of the Defendant’s substantive appeal, whereby the Plaintiffs contended that the Defendant’s appeal is only in respect of the High Court’s finding on quantum. [9] The Defendant’s Notice of Appeal (Original Notice of Appeal) filed on 19.10.2017 read as follows: “NOTIS RAYUAN SILA AMBIL PERHATIAN BAHAWA PMB TIJARI BERHAD (No. Syarikat: 310220-X), yang tidak berpuas hati dengan keputusan Yang Arif Hakim Mohd Zaki bin Abdul Wahab yang diberikan di Mahkamah Tinggi Kuala Lumpur pada 21 haribulan September 2017 merayu kepada Mahkamah Rayuan terhadap hanya sebahagian sahaja daripada keputusan tersebut selepas perbicaraan penuh yang memutuskan bahawa Defendan membayar kepada Plaintif-Plaintif:-

21.

(1) The Court may at any time allow amendment of any notice of appeal, or notice of cross-appeal, or memorandum of appeal, or other part of the record of appeal on such terms as it thinks fit.” [13] The Defendant submitted that pursuant to Rule 21(1) of the Rules of the Court of Appeal 1994, it is fit for the Court to grant leave to amend its Original Notice of Appeal. The Defendant further submitted that the objection taken by the Plaintiffs as a preliminary point at the last hearing date of the substantive appeal is purely tactical and an afterthought which was meant to defeat the Defendant’s appeal by way of a mere technicality. [14] In response, the Plaintiffs submitted that the Defendant’s appeal was strictly, expressly and solely against quantum and not on liability. The Plaintiffs contended that the Defendant has no grounds for the amendment sought in their Notice of Motion. The Plaintiffs further submitted that the Defendant’s Notice of Motion in Enclosure 28 is an abuse of process and should be dismissed with costs. DECISION [15] After hearing arguments, the Court, by a majority, allowed the motion in Enclosure 28 and Justice Zaleha Yusof, by a dissenting decision, dismissed the motion. We now give our reasons. 8 [16] In this case, the Original Notice of Appeal was filed on 19.10.2017 and the Record of Appeal was filed on 13.12.2017. It is not in dispute that both the Original Notice of Appeal and the Record of Appeal were filed within the time stipulated. No objection was raised by the Plaintiffs on the Original Notice of Appeal at that point in time. Subsequently, both parties exchanged their written submissions and again at that point in time, no objection was taken or raised by the Plaintiffs regarding the Defendant’s Original Notice of Appeal. However, on the actual date of hearing of the substantive appeal on 29.10.2018, the Plaintiffs raised a preliminary point against the Defendant’s Original Notice of Appeal contending that the Defendant’s appeal is confined only to the High Court’s decision on quantum and not on liability, as the Defendant’s Original Notice of Appeal did not state or spelt out that the Defendant’s appeal is against liability. [17] We noted that this preliminary point was raised by the Plaintiffs after almost a year from the date the Original Notice of Appeal was filed and served on the Plaintiffs. Apart from that, upon perusing the written submissions filed by the Plaintiffs for the purpose of the appeal, we also noted that the Plaintiffs had submitted against both liability and quantum. Therefore, we were of the view that the Plaintiffs were very clear as to the nature of the appeal filed by the Defendant and this motion to amend the Original Notice of Appeal in Enclosure 28 has not in any way prejudiced the Plaintiffs in defending their case. We were also of the view that the step taken by the Defendant, that is, the filing of Enclosure 28 was made by the Defendant out of an abundance of caution based on the preliminary point raised by the Plaintiff on 29.10.2018. 9 [18] Further, in the affidavit in support of the motion in Enclosure 28, the Defendant had stated that the amendments proposed were essentially to clarify and to make clear that the Defendant’s appeal is against part of the High Court’s Judgment dated 21.9.2017 in respect of liability and quantum in allowing the Defendant’s claim for RM4,000,000.00 and not just in respect of quantum as contended by the Plaintiffs. We felt what the Defendant meant by “appeal against part of the Judgment only” (the words used in the Original Notice of Appeal read as follows: “rayuan terhadap sebahagian sahaja daripada keputusan tersebut”), was that the Defendant are appealing only in part in respect of the High Court’s whole decision and that part is the part where the High Court had allowed the Plaintiffs claim for special damages of RM4,000,000.00 which relates to the High Court's finding of the alleged negligent misstatement of the Defendant. It must be noted that the High Court had dismissed the Plaintiffs claim for general damages of RM225,000.00 and the Plaintiffs claim for fraudulent misrepresentation which dismissal the Defendant is not appealing against as the dismissal was in favour of the Defendant. Due to this, (not appealing against the whole decision of the High Court), we felt the word “part” was used by the Defendant. [19] In Tan Chwee Geok & Anor v Khaw Yen-Yen & Anor [1975] 2 MLJ 188, the Federal Court held as follows: “The Rules of the Supreme Court are intended to facilitate, not impede, the administration of civil justice. In the bad old days in England from where we took our Rules, if you put a coma wrong you were thrown out of court, so strict were they about technicalities. 10 But over the years this strictness gave way to common sense, and every time the Rules were amended it was with the object of removing fussy technicalities, and making it easier for parties to get justice.” [Emphasis added] [20] In Hock Seng Construction Sdn Bhd & Anor v Yeoh Poh Owi & Anor [2001] 4 CLJ 1, Abdul Hamid Mohamad (then JCA), (dissenting), observed as follows: “The paramount function of the court is not the mere disposal of cases but the dispensation of justice. The appellants' counsel was to be blamed for the error but that did not warrant or justify the dismissal of the motion and the subsequent dismissal of the appeal itself without the benefit of a hearing of arguments on the merits.” [21] Pursuant to Rule 21(1) of the Rules of Court of Appeal 1994 (P.U.(A) 524/94), this court has the power to allow amendments to be made to any Notice of Appeal. [22] Thus, based on the above reasons, we are of the considered view that the Defendant’s Motion in Enclosure 28 to seek to amend the Original Notice of Appeal was with the intention to clarify what the Defendant meant from the onset when it states the words “appeal against part of the decision only” (“rayuan terhadap sebahagian sahaja daripada keputusan tersebut”) in the Original Notice of Appeal. What the Defendant meant was that it is appealing in part the whole of the decision of the High Court dated 21.9.2017; and that the part the Defendant is appealing against is in respect to both liability and 11 quantum on the decision of the High Court in allowing the Plaintiffs claim for special damages of RM4,000,000.00 which relates to the High Court's finding of the alleged negligent misstatement of the Defendant. The Defendant’s clear intention to appeal on both liability and quantum and the Plaintiffs not having been misled to think otherwise is evinced from the written submissions of both parties which addressed these two issues, implying that both the Defendant and the Plaintiffs, especially so the Plaintiffs, had come prepared to argue the same. Therefore, the Plaintiffs are not prejudiced by the amendments proposed by the Defendant. [23] In the circumstances, we felt that this is a fit and proper case where the Court should exercise its discretion to allow the motion in Enclosure 28 and then proceed to hear the substantive appeal on merits. Enclosure 28 is allowed. Costs is in the cause. Order accordingly. -sgd-Dated: 7th July 2020 (SURAYA OTHMAN) Judge Court of Appeal Malaysia 12 CASE(S) REFERRED TO: 1) Tan Chwee Geok & Anor v Khaw Yen-Yen & Anor [1975] 2 MLJ 188; and 2) Hock Seng Construction Sdn Bhd & Anor v Yeoh Poh Owi & Anor [2001] 4 CLJ 1. LEGISLATION REFERRED TO: Rule 5 and Rule 21(1) of the Rules of the Court of Appeal 1994 (P.U. (A) 524/94) COUNSEL: For the Appellant - Mohd Hafarizam Harun (with him Aaron Mathews, Nor Emelia Iszeham and Shahrul Azwan) Messrs Abdul Rahman Saad & Associates C-2-1 Pacific Place Commercial Centre Jalan PJU 1A/4, Ara Damansara 47301 Petaling Jaya Selangor Darul Ehsan For the Respondents - Prakash Menon (with him Renu Zechariah, Manmohan Singh Kang and M. Shubashini) Messrs Rosley Zechariah 17-5, Level 17 Oval Tower @ Damansara (Menara Permata Damansara) 685, Jalan Damansara 60000 Kuala Lumpur