Tai Choi Yu …Appellant v Ma Boon Lan …Respondent (Q-02 (IM)-916-05 / 2016)

And

UOB Kay Hian Pte Ltd Tai Choi Yu …DEFENDANTS] CORAM DAVID WONG DAK WAH, JCA HAMID SULTAN BIN HAJI ABU BACKER, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA 2

This was an appeal by the Second Defendant/Appellant against the decision of the learned High Court Judge in Enclosure 49 and Enclosure 57.

The learned High Court Judge had allowed Ma Boon Lan’s/3rd Party’s Notice of Application made under Order 18 rule 19 (1) (b) and (d), Order 16 and Order 92 rule 4 of the Rules of Court 2012 (Rules of Court) in Enclosure 49 to set aside, strike out and/or dismiss the Second Defendant’s/Appellant’s Statement of Defence and Counterclaim.

The learned High Court Judge had also dismissed the Second Defendant/Appellant’s application in Enclosure 57 under Order 34 rule 1(3) and (4) and rule 2(2) and Order 28 rules 1 and 8 of the Rules of Court to dismiss the Plaintiff’s/Ma Suan Tong’s claim, amongst others.

The Second Defendant/Appellant being dissatisfied with the above decisions now appeal to the Court of Appeal.

On the hearing day of the Second Defendant’s/Appellant’s appeal on 20.4.2017, the Respondent raised preliminary objections on two grounds, which preliminary objections he had intimated earlier to the Second Defendant/Appellant vide his solicitor’s letter ref. APK/CT-42/2014

(2)/Lo dated 1.12.2016 3

First, there were some inconsistencies with the intitulement of this appeal vide Notice of Appeal dated 14.4.2016, particularly in relation to the name of the parties cited. In the Notice of Appeal dated 14.4.2016, the Appellant named was Tai Choi Yu and the Respondent named was Ma Boon Lan. However, the intitulement in the Memorandum of Appeal dated 7.6.2016 and the rest of the cause papers and documents filed therein, the Appellant named was Tai Choi Yu and the First Respondent named was Ma Suan Tong and the Second Respondent/3rd Party named was Ma Boon Lan.

Secondly, there was inconsistency in the scope of this very appeal. The Appellant vide his Notice of Appeal indicated that he was appealing against the “whole of the decision” of the learned High Court Judge delivered on 6.4.2016 but in his Memorandum of Appeal, he stated that he was only appealing “against part of the decision”.

The Respondent objected to these inconsistencies as they are grave and serious in nature. The Respondent contended that these inconsistencies would have a dire and serious effect on the Respondent as the Respondent would be placed in a very difficult position to respond to this appeal. The Respondent would also be highly prejudiced if this appeal is allowed to proceed as the scope and direction of this appeal are vague and uncertain.

The Appellant on the other hand contended that the appeal before the Court was a fit and proper appeal and there would be no prejudice caused to the Respondent. The Appellant further argued that the Respondent’s preliminary objections were frivolous and scandalous. 4

Having perused the Record of Appeal filed herein particularly the Notice of Appeal and the Memorandum of Appeal and having examined the intitulement of this appeal, we were satisfied that there were indeed inconsistencies made to the names of the parties cited and there was in fact inconsistency in relation to the scope of this appeal.

We were of the view that these inconsistencies were not only grave in nature but were also fundamentally wrong as this appeal could not have been proceeded without causing serious injustice and prejudice to the Respondent. In other words, we were of the view that there was no competent appeal before us.

Evidently, the inconsistencies were too obvious to be ignored and were not mere irregularities which can be cured under Order 1A of the Rules of Court. In the Federal Court case of Duli Yang Amat Mulia Tungku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor and another appeal [2009] 4 MLJ 149, at paragraph 46, page 163, Zaki Azmi (C.J. as he then was) (delivering judgment of the Court) held as follows: “[46] The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O 1A of the RHC is for the court or judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. Order 1A cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus in this case, O 1A of the RHC does not apply as the respondents had intentionally disregarded O 6 r 7(2A) for their own reasons.” [Emphasis added] In the absence of any application by the Appellant/Second Defendant to amend the inconsistencies, and we noted that the Appellant/Second 5 Defendant had ample time to do so since 1.12.2016, prior to the hearing of this appeal, the preliminary objections by the Respondent must be allowed.

As such, it was our unanimous decision to allow the Respondent’s preliminary objections and accordingly this appeal was struck out with costs of RM 1,000.00 subject to the payment of allocatur’s fee. The deposit was to be refunded. t.t. (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated: 7th November 2017 Counsel for the Appellant: Tai Choi Yu From Messrs. Tai Choi Yu & Co. Counsel for the Respondent: Mr. Louis Achuk From Messrs. Kadir, Wong Lin & Co.