Reaplite Industry Sdn. Bhd. v NZ Bina Sdn. Bhd. (JA-24NCvC-570-08/2019)

This is an Originating Summons (‘OS’) dated 29.8.2019 filed by the Applicant (Reaplite Industry Sdn. Bhd.) to extend the time to file their Notice of Appeal dated 1.8.2019; which was indubitably filed out of time. The Respondent (NZ Bina Sdn. Bhd.), needless to say, stoutly takes issue with the same.

This OS emanates from a suit filed on 8.8.2018 at the Sessions Court at Johor Bahru bearing case number JA-A53-11-08/2018 (‘Sessions Court suit”) between Telekom Malaysia Berhad (the Plaintiff therein) and NZ Bina Sdn. Bhd. (the Defendant thereat and the Respondent in this OS).

The Applicant herein was joined as a third party in the said Sessions Court suit on 25.2.2019 (which Order can be found in the Affidavit in Reply affirmed by Norfaizah binti Zainal on behalf of the Respondent on 16.10.2019; and marked as Exhibit NZ-2).

The said Order was served on the Applicant herein on 13.3.2019; where they had 14 days to file and serve a Statement of Defence as the third party to that Sessions Court suit, upon a Statement of Claim being served upon them. The Respondent herein had duly filed and served the said Statement of Claim on 11.3.2019.

The Applicant herein failed to file and serve their Statement of Defence as required on or before 25.3.2019 pursuant to the terms of the Order dated 25.2.2019.

The Respondent then issued a notice dated 26.3.2019 under Rule 56 of the Legal Profession (Practice and Etiquette) Rules 1978 cautioning the Applicant that ‘Judgement in Default’ would be entered against them if they persisted in not filing their mandated pleading within 7 days.

The Applicant filed their Statement of Defence on 3.4.2019.

The Respondent then filed an application dated 10.4.2019 to set aside the said Statement of Defence for the Applicant’s failure to abide by the terms of the Order of 25.2.2019; which application was heard and set down for decision on 18.6.2019.

On 14.6.2019 the Applicant belatedly filed an application for extension of time to file their Defence; and served it upon the Respondent on 18.6.2019. As a consequence of this, the decision with regard to the setting aside of the Applicant’s Statement of Defence was deferred to 11.7.2019.

On 11.7.2019 the Sessions Court set aside the Applicant’s Statement of Defence and dismissed their application for the extension of time to file the same. The Respondent herein then entered Judgement in those proceedings against the Applicant herein (which Order can be found in the Affidavit in Reply affirmed by Norfaizah binti Zainal on behalf of the Respondent on 16.10.2019; and marked as Exhibit NZ-7).

The Applicant then filed and served a Notice of Appeal on 2.8.2019 (in Johor Bahru High Court No. JA-12A-15-08/2019) against the above said Order; which was itself out of time by 8 days (i.e. it ought to have been filed by 25.7.2019).

In any event, the case management for this Notice of Appeal was fixed on 2.9.2019, whereat the Applicant and/or their Counsel failed to appear. As a result, the appeal was struck out on the day.

Then the Applicant had caused the instant OS to be filed, which was heard by this Court on 3.12.2019.

In the case of Scott & English (M) Sdn. Bhd. V. Leikie Refrigeration & Stainless Steel Industries Sdn. Bhd. & Ors. [1994] 2 MLJ 424; [1994] 3 CLJ 114, the High Court set out a guiding framework of four criteria to be considered in situations involving extension of time to file an appeal. What was held there is as follows: “The grant of extension of time to appeal is a matter of discretion for the Court. The following are normally to be considered:

the length of the delay;

the reasons for the delay;

the chances of the appeal succeeding if time for appealing is extended; and

the degree of prejudice to the potential respondent if the application is granted.” Page 5 of 12 [Also see the case of Haliza Abdul Hamid v. Zalina Mohd Fadzil [2016] 10 CLJ 368]. The Applicant’s Stance [15] The Applicant’s learned Counsel stated that this OS was filed for the express purpose to extend the time to file their Notice of Appeal dated 1.8.2019; which was candidly acknowledged as having been filed out of time. [16] The reason for this delay was due to the fact that the directing minds of the Applicant had differing views as to the further dispatch of this matter. As the relevant personalities were in two minds, so to say, no decision could be made in a timely fashion. It was only after about a month that the decision was made to push ahead with an appeal; whereat their Solicitors were given instructions to proceed with the same. Hence and in consequence, the cause of the late filing of the said Notice of Appeal. [17] Further, the Applicant’s were of the view that no prejudice would be suffered by the Respondent over this delay, as the substantive matter between them (the Respondent) and Telekom Malaysia Berhad was still on-going at the Sessions Court at Johor Bahru. Learned Counsel touched upon the issues in that substantive matter, in an endeavour to fight a ‘rear guard action’, so to speak, and show the potential prejudice that his client (the Applicant) could face if they failed. Page 6 of 12 [18] Also, that any defects on the face of the OS may be cured by Order 1 A of the Rules of the Court 2012; that mandates that the Court shall have regard to justice. The Respondent’s Point of View [19] Learned Counsel for the Respondent had this to say with regard to the four criteria to be reflected upon in situations involving extension of time to file an appeal, in particular reference to the instant case. i) the length of the delay [20] The delay ostensibly was for a period of 8 days, however the explanation by the Applicant did not adequately address the fact that the actual time taken for them to take any action was 33 days from the last date that the Notice of Appeal was to be filed (i.e. 25.7.2019); to the time of the filing of this O.S. for extension of time on 29.8.2019. This must, urged learned Counsel, surely constitute unreasonable, nay ~ unconscionable ~ delay. ii) the reasons for the delay [21] The reason provided by the Applicant for the delay is untenable in law, in that disputes of an ‘administrative nature’ wherein consensus between the directing minds of the Applicant on the further conduct of this case could not be reached, is no excuse nor can it be used as reasonable justification, for the non-compliance of a clear and unambiguous provision of the procedural requirements of the law. Page 7 of 12 [22] Learned Counsel referred this Court to the case of Koperasi Jimat Cermat dan Pinjaman Keretapi Bhd. (now known as Kopersi Keretapi Bhd.) v. Kumar a/l Gurusamy [2011] 2 MLJ 433; where the Federal Court held at: “[4] Generally, a right of appeal is conferred by statute. It is a creature of statute. The case of Auto Dunia Sdn. Bhd. v. Wong Sai Fatt & Ors [1995] 2 MLJ 549 (FC) is the authority for this proposition. In that case, Edgar Joseph Jr FCJ stated that: It is [an] elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.” [23] (See also Pahang South Union Omnibus Co. Bhd. v. Minister of Labour and Manpower & Anor. [1981] 2 MLJ 199; [1981] CLJ 74; and Healey v. Ministry of Health [1954] 3 All ER 449 at p. 453 (CA)). iii) the chances of the appeal succeeding [24] Learned Counsel for the Respondent was firmly of the view that the Applicant had no chance of success in the potential appeal for the following reasons: a) failure to file and serve their Statement of Defence in time pursuant to an order of the Sessions Court dated 25.2.2019. Counsel was of the view that this was not only a mere breach of that order but was, in point of fact, a clear Page 8 of 12 MTJBS2-JA-24NCvC-570-08/2019 Reaplite Inds. SB v NZ Bina SB/fi contempt of the same; and of the Court ordering it. The following authorities were cited in support of this contention: David Ngui & Anor v. Zaramo Sdn. Bhd. & Anor [2009] 1 LNS 562; and Damai Jaya Realty Sdn. Bhd. v. Pendaftar Hakmilik Tanah, Selangor [2015] 1 LNS 7. Over and above this, the Applicant failed, ignored and/or omitted to heed the 7-day notice issued on behalf of the Respondent by its Solicitors under rule 56 of the Legal Profession (Practice and Etiquette) Rules 1978. b) The Applicant’s excuse that the Statement of Defence was filed out of time because their Solicitors had overlooked doing the needful in time was plainly unreasonably and totally unacceptable on the authority of the case of Dato’ Mohamad Salim Fateh Din v. Nadeswaran Rajah [2012] 8 CLJ 832; which concerned a ‘mistake of the Solicitor’. (Paragraph 8 of the Applicant’s Affidavit in Support dated 3.10.2019 and Exhibit NZ-6 of the Affidavit in Reply by Respondent dated 16.10.2019, refers). iv) degree of prejudice [25] The hearing of the substantive action at the Sessions Court has been set down for 24th to 26th February 2020. If this application were to be granted that trial would inevitably have to be postponed; and this in turn would occasion unnecessary costs and time wasted not only upon the Respondent but also to the Plaintiff in that action. Page 9 of 12 [26] Added to the above, Learned Counsel for the Respondent alluded to several other defects in this OS, which will be addressed below in the evaluation and findings by this Court. Evaluation and Findings [27] This Court cannot help but to observe that the Applicant had scant grounds to support their application to extend the time to file their intended appeal. Their ‘rear-guard action’ to show the potential prejudice that may be suffered by themselves, such as it was, does not fit into the description of what is provided for in the 4th criterion of the case of Scott & English (supra). The potential prejudice there concerned the Respondent, not the Applicant. Hence, that submission was a non-starter which this Court found unnecessary to enumerate herein. [28] In that vein, without the need to reiterate the points, this Court found much merit in the case for the Respondent as narrated above. Over and above that, it would be amiss if mention was not made of the following deficiencies apparent on the part of the Applicant’s position: a) It appears doubtful that the Applicant had adopted the correct mode for this application for the extension of time to file their appeal. Instead of this OS, perhaps the more appropriate mode for the said application would have been by way of a Notice of Application in Form 57 of the Rules of Court 2012 supported by an affidavit; b) An OS is usually adopted to commence a new suit. This action can hardly be considered as one ~ i.e. a ‘new suit’. Page 10 of 12 [For authority see page 40 of the textbook entitled “Civil and Criminal Appeals in Malaysia” 3rd Ed. by Tan Kee Heng and Order 5 rule 4 of the Rules of Court 2012]; c) This application perhaps ought to have been filed in the first instance at the court from which the decision intended to be appealed was made. [See page 38 of the textbook entitled “Civil and Criminal Appeals in Malaysia” 3rd Ed. by Tan Kee Heng; and the cases of: i) Majlis Pebandaran Kangar v. Sonati Development Corporation Sdn. Bhd. [2006] 4 CLJ 953; ii) Lee Lan v. Lim Yoon Loy & Ors. [1991] 1 CLJ Rep 251; and iii) Rajeanteran a/l Marimuthu v. Phoobalan a/l Sinnan @ Sinna Coundar [2019] 1 LNS 911. d) The OS itself, as it stands on the face of it, appears defective as it does not contain any intitulement that cites the relevant sections and indeed what the matter in contention is; which in turn could well have led the Respondent being caught by surprise and certainly prejudiced and/or embarrassed in the circumstances. [See Order 7 rule 2 (1A) of the Rules of Court 2012; and the case of Cheow Chew Khoon @ Teoh Chew Khoon yang berniaga sebagai Cathay Hotel v. Abdul Johari Abdul Rahman [1995] 4 CLJ 127]; Page 11 of 12 MTJBS2-JA-24NCvC-570-08/2019 Reaplite Inds. SB v NZ Bina SB/fi e) That the current application sails close to the wind of abusing the process of the Court ~ where the Notice of Appeal concerned had already been struck out on 2.9.2019 ~ as a result of the non-attendance of the Applicant and/or their Solicitors at a case management date for the appeal before the High Court of Johor Bahru. f) Further, the Applicant has failed to avail themselves of the possibility of applying to restore the appeal under Order 55 rule 10 (3) of the Rules of the High Court 2012 prior to filing this OS; and g) Order 1 A of the Rules of the Court 2012 could hardly have any application in a case like this. In point of fact, the justice of the case surely favours the Respondent; and so be it the finding of this Court. Final Order [29] For the reasons above, this Court dismisses the Applicant’s application to extend the time to file their Notice of Appeal dated 1.8.2019; and hereby orders the Applicant to pay costs in the sum of RM2,000.00 to the Respondent. -Signed- ............................................................ (Fredrick Indran X.A. Nicholas) Judicial Commissioner High Court of Malaya at Johor Bahru Page 12 of 12 COUNSEL For Applicant - Messrs. Y K Chin Advocates & Solicitors L1-86A, KSL City No. 33 Jln Seladang, Taman Abad 80250 Johor Bahru (Mr. Y S Chong) For Respondent - Messrs. Jaffar & Menon Advocates & Solicitors Unit 2-7-7 & 2-7-8 Tingkat 7 Menara KLH Business Centre No. 2 Jalan Kasipillay Off Jalan Sultan Azlan Shah (Jalan Ipoh) 51200 Kuala Lumpur