Syed Muhammad Hafiz Bin Syed Ahmad v YTS ARCHITECTURE SDN BHD (BA-12BNCC-23-12/2025)

In this appeal, the parties shall be referred to as if they were in the Sessions Court.

This is an appeal by the Defendant against the decision of the learned Sessions Court Judge (“the SCJ”) on 1.10.2025 (after full trial) to allow the Plaintiff’s claim.

Enclosure 3 is the Notice of Application by the Defendant pursuant to Order 2 rule 1 and Order 3 rule 5 of the Rules of Court 2012 for an extension of time to file and serve the notice of appeal dated 3.12.2025 (“the Notice of Appeal”).

After perusal of the cause papers and upon hearing submissions by the counsels, I have dismissed Enclosure 3 based on the reasons which I shall explain hereafter.

The Plaintiff commenced an action in the Sessions Court against the Defendant for the repayment of a loan amounting to RM 430,000.00. The Defendant did not dispute taking the sum of RM 430,000.00 from the Plaintiff but argued that it was not a loan.

The Defendant appointed Messrs Badrul, Samad, Faik & Co (“the 1st Law Firm”) to represent him.

The SCJ fixed the trial on 28.7.2025 and 29.7.2025. The SCJ also directed the parties to file and exchange their witness statements.

On 22.7.2025, the 1st Law Firm requested for an adjournment of the trial on the following reasons: -

The lawyer in charge of the matter, Mr Amirrul Adli, had resigned from the 1st Law Firm;

The partner in charge of the matter, Mr Badrul Hisham, was undergoing chemotherapy treatment and has not renewed his practicing certificate. [9] The SCJ rejected the request to adjourn the trial. [10] On the day of the trial, 28.7.2025, Mr Nazmi bin Mohd Asrar (“Mr. Nazmi”) appeared on behalf of the Defendant and requested for an adjournment of the trial on the reason that the Defendant is unwell. [11] The SCJ again rejected the request to adjourn the trial and directed the trial to proceed. [12] The Plaintiff proceeded to call their only witness and tendered his witness statement. Mr Nazmi did not cross-examine the witness. Thereafter, the Plaintiff close their case and decision was delivered by the SCJ on 1.10.2026. [13] The Defendant then appointed Messrs Hisham & Amirrul (“the 2nd Law Firm”) on 7.10.2025 to represent him to appeal to the decision of the SCJ. [14] However, the 2nd Law Firm failed to take any action on this matter. The Defendant then appointed Messrs Muzalina Mustapa & Co (“the 3rd Law Firm”) on 27.11.2025 to take conduct of this matter. [15] The 3rd Law Firm proceeded to file the Notice of Appeal, by which time there had been a delay of 48 days. Summary of the Defendant’s case (in supporting Enclosure 3) [16] The Defendant raises five (5) grounds in support of Enclosure 3: -

The delay in filing the Notice of Appeal was caused by the 2nd Law Firm;

The delay is not unreasonable and is supported by cogent reason;

The Defendant’s appeal has merit and raises arguable issues;

The rules of professional ethics prohibit a solicitor from affirming an affidavit on behalf of his client;

The Defendant’s application does not prejudice the Plaintiff. Summary of the Plaintiff’s case (in opposing Enclosure 3) [17] The Plaintiff argues that the Defendant has not given any cogent reasons as to why he has failed to lodge the Notice of Appeal earlier. Blaming his previous solicitors is not a cogent reason. [18] the Plaintiff also states that the Defendant failed to set out and explain why he has a meritorious appeal. [19] As to the issue of the Plaintiff’s solicitor affirming the affidavit, the Plaintiff submits that all the matters deposed by the solicitor are procedural matters that are within her personal knowledge and by reason of the solicitor having conduct of the action. Findings by the Court [20] The Plaintiff had opposed Enclosure 3 by way of an affidavit in reply affirmed by the Plaintiff’s solicitor, Alicia Sabrina Gomez on 22.12.2025 (Enclosure 5) (“the Plaintiff’s Affidavit”). The Defendant objected to the Plaintiff’s Affidavit on the basis that “Peguamcara Responden tidak mempunyai locus untuk mengikrarkan affidavit jawapan bagi pihak Responden dan seharusnya anak guam beliau yang merupakan Responden dalam kes ini yang mempunyai locus untuk mengikrarkan Afidavit Jawapan”. The Defendant also relied on Rule 28 of the Legal Profession (Practice and Etiquette) Rules 1978. [21] However, I find no merits in this objection. All the matters deposed by the Plaintiff’s solicitor are procedural matters that are within her personal knowledge, by reason of her having conduct of the action. [22] In Malayan Banking Bhd v Charterfield Corporation Sdn Bhd [2001] 6 CLJ 407, the High Court held that a solicitor may depose an affidavit on behalf of the litigant if three conditions are fulfilled. The first condition is that the facts to be deposed must not be contentious or disputed question of facts. The second condition was that the facts to be deposed must be from the deponent’s knowledge. The third condition to be fulfilled was that the deponent must have been authorised by the plaintiff to depose the affidavit. [23] Similarly, in Nazlan Hashim & Anor v Mohamad Akmal Mohd Rashid [2015] 1 LNS 1211, the High Court found no merits in the respondent’s objections to the affidavits where the facts deposed by the appellants’ solicitor is clearly within his knowledge, or at the very least based on the records of his firm. [24] In deciding whether or not to allow the Defendant’s application for an extension of time, I have considered the principles set down in Nazlan Hashim & Anor v Mohamad Akmal Mohd Rashid [2015] 1 LNS 1211, where it was held that there are four factors that the court would consider when determining an application for an extension of time: -

The length of the delay;

The reasons for the delay;

The merits of the applicant’s appeal; and

The prejudice to the respondent. [25] There is a delay of 48 days in the filing of the Notice of Appeal. The length of delay is substantial. In Nazlan Hashim & Anor v Mohamad Akmal Mohd Rashid, the application for extension is disallowed where the delay was closed to a month late, prompting Mohamed Zaini Mazlan JC (as His Lordship then was) to remark: - “[25] In my opinion, where the period given is substantial, such as thirty days, an applicant seeking for an extension of time has an onerous burden to justify the delay, as opposed to a shorter period of time, such as fourteen days. If the matter concerned involves complex issue of law or involves voluminous documents and intricate facts, that to me could avail an applicant seeking for an extension of time some justification, on the basis that they required more time to analyse the decision and to come to a decision. This was not the case here, for it was not a complex case.” [26] The Defendant has attributed the delay to “… bahawa kelewatan memfailkan Notis Rayuan kerana saya telah mengarahkan peguamcara terdahulu Tetuan Syarikat Hisham & Amirrul untuk memfailkan rayuan”. [27] I don’t find this reason cogent. As held by the Court of Appeal in Gurdev Kaur Bhag Singh v BSN Commercial Bank (M) Sdn Bhd (2003) 1 CLJ 429, where the explanation for the delay in filing the notice of appeal is put to the former solicitor, in that it was alleged that he did not do his work and did not keep the applicant informed of the status of the case, is not a good reason to exercise the court’s discretion and grant leave. The applicant can always seek remedy elsewhere if she has any grievance against her former solicitor. It is settled law that mistake of one’s solicitor is not necessarily a good excuse. [28] The Defendant also failed to demonstrate and set out why he has a meritorious appeal. The Defendant merely states that “… pihak Defendan harus diberi peluang untuk membuat permohonan ini kerana saya mempunyai fakta-fakta dan dokumen untuk membuktikan bahawa saya tidak berhutang RM 430,000.00 kepada Plaintiff”. [29] The Plaintiff has also painstakingly pointed out the Defendant’s attitude in approaching the trial at the Sessions Court was lackadaisical. Not only did the Defendant failed to file his witness statement on time as per the directions from the SCJ, the Defendant also did not attend on the first day of the trial after the SCJ rejected the 1st Law Firm’s adjournment application. There was no application filed by the Defendant subsequently to reopen his case, demonstrating that he has no intention to defend the action filed by the Plaintiff against him. [30] Lastly, I do not accept the Defendant’s contention that the Plaintiff has suffered no prejudice. In Ratnam v Cumarasamy and another [1965] 1 MLJ 228, the Privy Council emphasized that the rules of court must prima facie be obeyed and that an extension of time is not granted as of right. Lord Guest, in delivering the judgment of the Privy Council, held as follows: - “The Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which 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 provide a time table for the conduct of litigation. The only material before the Court of Appeal was the affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged and that his reason for this delay was that he hoped for a compromise. Their Lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material upon which they could exercise their discretion in favour of the appellant. In these circumstances their Lordships find it impossible to say that the discretion of the Court of Appeal was exercised upon any wrong principle.” Conclusion [31] Accordingly, for the reasons above, Enclosure 3 is dismissed with costs fixed at RM 2,000.00. Dated the 6th April 2026. (SEOW HOCK PENG) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Appellant/ Defendant : Saidatul Muzalina binti Mustapa (Messrs Muzalina Mustapa & Co) For the Respondent/ Plaintiff : Michael Yap Chih Hong Sunitha Sreenivasan (PDK) (Messrs Tommy Thomas)

Malayan Banking Bhd v Charterfield Corporation Sdn Bhd [2001] 6 CLJ 407

Nazlan Hashim & Anor v Mohamad Akmal Mohd Rashid [2015]

Gurdev Kaur Bhag Singh v BSN Commercial Bank (M) Sdn Bhd

1 CLJ 429

Ratnam v Cumarasamy and another [1965] 1 MLJ 228