Tan Sow Mooi v Rainbow Paradise Beach Resort Hotel (PA-12BNCvC-15-06/2023)

DAN RAINBOW PARADISE BEACH RESORT BERHAD [NO.SYARIKAT: 200001031543 (531450-H)]

CHAMPSURF SDN BHD [NO.SYARIKAT: 200101002617 (538373-P)] …RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI GEORGETOWN DALAM NEGERI PULAU PINANG GUAMAN SIVIL NO: PA-A52NCVC-94-08/2021 ANTARA TAN SOW MOOI (NO.K/P: 580206-07-5264) …PLAINTIF

RAINBOW PARADISE BEACH RESORT BERHAD [NO. SYARIKAT: 200001031543 (531450-H)]

CHAMPSURF SDN BHD [NO. SYARIKAT: 200101002617 (538373-P) …DEFENDAN-DEFENDAN) JUDGMENT 14/02/2024 15:37:15 PA-12BNCvC-15-06/2023 Kand. 44 (LEAVE TO FILE ADDITIONAL MEMORANDUM OF APPEAL AND TO INSERT MISSING PAGES IN THE RECORD OF APPEAL) PRELUSION [1] The Appellant-Plaintiff (P) and the Respondents-Defendants (Ds) went to trial in the Sessions Court (SC). The SC dismissed P’s claim. P appeals to the High Court. [2] In this Appeal proceeding, P files an Application for leave to file an Additional Memorandum Of Appeal (to supplement the Memorandum Of Appeal (MOA) already filed), and to insert certain missing pages into the Record Of Appeal (ROA). [3] P’s Application is Enclosure 11 in this Appeal proceeding. [4] Should Enclosure 11 be allowed? WHAT IS SOUGHT IN THIS APPLICATION? [5] In this post-trial Appeal, P’s ROA, including the MOA, was filed by her previous solicitors. When she changed her solicitors, her current solicitors were of the view that two things needed to be done for her

file an Additional MOA to add to her presently filed MOA; and

to re-file one of the volumes of her ROA, Part C (Volume 2-A), which has left out pages 381 – 414 (missing pages). THE MISSING PAGES IN THE ROA IN THE COURT FILE [6] Let us first address the issue of the missing pages. P’s previous solicitors must have inadvertently omitted the missing pages from one of the volumes of the ROA, because the pages were only missing from the electronically-filed version of the ROA. The hard copy version of the ROA contains the missing pages. [7] In other words, the Court file does not have the missing pages. The hard copy ROA that was served on Ds’ solicitors contains the missing pages. P, through her current solicitors, is applying to regularise the Court file for this Appeal. [8] I hence find that there is no prejudice to Ds if leave is given to P’s current sols to electronically re-file that volume of the ROA, so that this Court has the complete version of the ROA, with missing pages 318 – 414 intact. AN ADDITIONAL MOA TO SUPPLEMENT THE CURRENT MOA Ds’ arguments [9] Moving back to the issue of leave to file an Additional MOA, Ds oppose Enclosure 11 on two main grounds—

if P is allowed to file an Additional MOA, Ds will have to do additional work, and as such, costs should be awarded against P in favour of Ds;

if P is allowed to file an Additional MOA, P will be able to raise the issues of fact that arose at the trial in the SC, and res judicata will apply to prohibit P from doing so. DECISION [10] I allow Enclosure 11. My reasons include the following grounds. [11] First, Order 55 Rule 9 of the Rules Of Court 2012 (ROC) provides that this Court can allow amendments to the MOA, on such terms as this Court “thinks fit”. [12] The clear terms of Order 55 Rule 9 are set out here for reference—

Amendments (O. 55, r. 9) The High Court may at any time allow amendment of the memorandum of appeal or notice of cross appeal or other part of the record of appeal on such terms as it thinks fit. [emphasis added] [13] Second, Order 20 Rule 8(1) of the ROC 2012 provides that this Court can order any document to be amended on such terms as is just and in such manner as this Court may direct, if the purpose of the amendment is to facilitate the determination of the real issue in dispute between the parties. [14] Order 20 Rule 8(1) is set out below for reference—

Amendment of certain other documents (O. 20, r. 8)

For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner, if any, as it may direct. [emphasis added] [15] Third, Order 2 Rule 1(2) provides that the ROC 2012 is subject to an overriding purpose, which is to enable the Court to deal with matters justly, not to fetter the Court from dealing with matters justly. [16] Order 2 Rule 1(2), together with the preceding Order 2 Rule 1(1) are set out below for reference— Order 2. Effect of non-compliance

Non-compliance with Rules (O. 2, r. 1)

Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. [emphasis added] [17] Fourth, P asserts that—

the present MOA is incomplete;

the present MOA does not address or deal with the SC’s findings of fact, nor the evidence that the SC evaluated or omitted to evaluate in its Grounds Of Judgment;

the present MOA does not address or deal with the legal principles and generally the issues that the SC evaluated or omitted to evaluate in its Grounds Of Judgment. [18] Hence, to my mind, if it is so, then P’s Proposed Additional MOA is of pivotal importance to P’s Appeal. [19] Fifth, on the issue of prejudice caused to Ds in the sense that they may have to do additional work, I am of the view that no prejudice is caused upon Ds because they have to deal with and respond to P’s grounds stated her MOA in any event. I do not think that it is fit and just to shut out P from adding grounds to her MOA. [20] Instead, I am of the view that is fit and just to allow P to say what she needs to say in her MOA. Since now, with the advice and assistance of her current solicitors, she wishes to add more paragraphs to her MOA, she should be permitted to do so and not prohibited from doing so. [21] Sixth, I am also of the view that Ds are not prejudiced, because the Appeal is not fixed for hearing yet. And the parties have yet to file their respective Written Submissions and Submissions In Reply. In this regard, I find that there is no need for me to consider making an order of costs that will compensate for any procedural prejudice caused to Ds, as I find that Ds are not prejudiced or not sufficiently prejudiced to the extent that they should be compensated by costs. [22] Seventh, I find that it is fit and just to order costs of this Enclosure 11 proceeding to be made costs in the cause. This way, the ultimately successful party will be awarded the costs of the Appeal proper, as well as the costs of this Enclosure 11 proceeding. [23] Eighth, I am guided and bound by the principle that a litigant should not suffer for the mistakes or shortcomings of his or her solicitors. The Court’s duty is “to see that justice is done”, but without any injustice to the opposite side—(1) Tenaga Nasional Bhd v Prorak Sdn Bhd & Anor [2000] 1 MLJ 479 (CA); [2000] 1 AMR 1071; [2000] 1 CLJ 553; [1999] 1 MLRA 604; and (2) Masjaya Trading Sdn Bhd v Kedah Cement Sdn Bhd [2004] 4 AMR 606 (CA); [2004] 4 CLJ 18; [2004] 1 MLRA 762. [24] In Tenaga Nasional Berhad v Prorak (supra), the Court Of Appeal propounded (at MLJ page 483)— Whenever possible, where there is no risk of sacrifice of principle in the name of justice or at the altar of convenience, we do our best to ensure that a lay client does not suffer because of the mistake of his legal advisers. We do so in the interests of justice. When we act, we always bear in mind what Lord Denning said in Doyle v Olby (Ironmongers) Ltd [1969] 2 All ER 119 at p 121 : We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side… [25] Ninth, I do not comprehend the purport of Ds’ argument that if P is allowed to file an Additional MOA, then P will be able to raise the issues of fact that arose at the trial, which will offend the principle of res judicata. I find this argument untenable. [26] This Appeal is an appeal from the post-trial Judgment of the SC. It is inevitable, actually imperative, that the parties, particularly P (as Appellant), raise issues of fact that arose at the trial when arguing the Appeal. CONCLUSION [27] For these reasons, I allow Enclosure 11. I grant P leave to file and serve her Additional MOA, and to re-file her complete ROA that contains the missing pages to regularise her ROA in the Court file, with costs of RM7K to be in the cause, which means that the ultimately successful party in this Appeal will get this RM7K costs for this interlocutory proceeding, in addition to the costs of the Appeal proceeding. Costs are of course subject to the allocatur. Dated: 14 February 2024 signed KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors For the Appellant: Shaleni Anpualagan [Lee Hishammuddin Allen & Gledhill (Georgetown)] For the Respondents: Nur Aiman Shazwin Bt Shafaai [San Law Chambers (Penang)] Legislation referred to:

Order 55 Rule 9 of the Rules of Court 2012.

Order 20 Rule 8(1) of the Rules of Court 2012.

Order 2 Rule 1(2) of the Rules of Court 2012.

Order 2 Rule 1(1) of the Rules of Court 2012. Cases referred to:

Tenaga Nasional Bhd v Prorak Sdn Bhd & Anor [2000] 1 MLJ 479 (CA); [2000] 1 AMR 1071; [2000] 1 CLJ 553; [1999] 1 MLRA 604.

Masjaya Trading Sdn Bhd v Kedah Cement Sdn Bhd [2004] 4 AMR 606 (CA); [2004] 4 CLJ 18; [2004] 1 MLRA 762.