TANG BOON KOK v 1. ) H'ng Bok Chuan (PA-12ANCvC-39-11/2024)

H’NG BOK CHUAN (No. K/P: 631221-07-6019)

H’NG HUP CHOONG (No. K/P: 721108-07-5611) ...PEMOHON DAN TANG BOON KOK (661221-07-5347) ...RESPONDEN [DALAM MAHKAMAH TINGGI DI PULAU PINANG DALAM NEGERI PULAU PINANG RAYUAN SIVIL NO.: PA-12ANCVC-39-11/2024 ANTARA TANG BOON KOK (No. K/P: 661221-07-5347) …PERAYU/PLAINTIF

H’NG BOK CHUAN (No. K/P: 631221-07-6019) 10/06/2025 15:06:44

H’NG HUP CHOONG (No. K/P: 721108-07-5611) …...RESPONDEN-RESPONDEN/DEFENDAN] GROUNDS OF JUDGMENT Introduction [1] This is an application for leave [Kebenaran Merayu Kandungan 1] filed by the Applicants (Defendants) on 19 Mac 2025 against the decision of this Court on 20.02.2024 which has allowed the Respondent’s (Plaintiff) appeal. [2] The decision of the Learned Sessions Court Judge, which was in favour of the Applicants (Defendants), was set aside with costs in the cause and the case to be proceeded before the Learned Sessions Court Judge. To facilitate reference to the submissions and cause papers filed, the parties in this proceeding are referred to as they were in the High Court. Facts [3] This Court considers the facts of the case as outlined in the Grounds of Judgment and the arguments and written submissions presented by the parties involved. [4] The Plaintiff, who is the shareholders of Heng Hock Carrier Sdn Bhd, Great Carrier Utara Sdn Bhd, and Desiran Bakti Sdn Bhd have filed a writ of summons at the lower Court. The Plaintiff is seeking damages amounting to RM 183,334.00, along with interest and costs, due to a breach of trust, in addition to interest and costs. [5] A judgment of default was entered against the Defendants on 22 April 2021 whereby the Defendants jointly and severally shall pay RM 183,334.00 to the Plaintiff. The Defendants subsequently filed an application to set aside the judgment in default (Enclosure 68) on 30 April 2021 and another application (Enclosure 74) to stay the execution of the Judgment in Default on 7 May 2021. [6] Before the disposal of Enclosure 68 and 74, the Plaintiff had filed a Notice of Application (ex-parte) dated 7 May 2021 (Enclosure 79) seeking an Order of the Garnished Person to Show Cause against the Defendants which was granted on 18 May 2021 (Enclosure 93). [7] The Plaintiff through his previous solicitors, Messrs. Lim, Ho, Cheong & Lok had served the order in Enclosure 93 on the financial institutions on 19 May 2021 and had caused the Defendants’ accounts to be frozen whereby Malayan Banking Berhad had garnished a total amount of RM 237,055. 59, which was an amount exceeding the said Judgment Amount. On 21 May 2021, the Defendants had filed an application under Enclosure 97 to set aside Enclosure 93. [8] On 19 August 2021, the Sessions Court dismissed both Enclosure 68 and 74. Consequently, the Defendants filed an appeal regarding the ruling on Enclosure 68 to the Penang High Court under Civil Appeal No. PA- 12ANCvC-60-08/2021 (Appeal 60). [9] On 25 August 2021, Enclosure 93 was granted approval, leading to the issuance of an Order of Absolute Garnishment (Enclosure 147), which garnished the amount of RM 236,710.69, while Enclosure 97 was dismissed. As a result, the Plaintiff received RM 237,055.69 (or RM 236,710.69 after deducting costs of RM 345) from Malayan Banking Berhad, a fact that remains undisputed. [10] The Defendants subsequently filed an appeal regarding the ruling in Case No. 97 to the Penang High Court under Appeal No. PA-12ANCVC- 61-08/2021 (Appeal 61). [11] On 8 March 2024, the Penang High Court granted both appeals 60 and 61, issuing an order:

Bagi rayuan 60 tersebut: “1. Rayuan di Lamp. 1 dibenarkan.

Penghakiman Ingkar Pembelaan Mahkamah Sesyen bertarikh 22 April 2021 (iaitu JID tersebut) diketepikan;

Sejumlah RM 236,710.69 atau apa-apa jumlah yang melebihi atau ke atas jumlah RM 236,710.69 yang digarnis oleh Responden melalui Perintah Orang Digarnis Mutlak bertarikh 25 Ogos 2021 dikembalikan kepada Perayu-perayu pada atau sebelum 8 April 2024.

Tindakan dikembalikan semula ke Mahkamah Seyen untuk Bicara.

Kos sebanyak RM 7,000.00 dibayar oleh Responden kepada Perayu-perayu tertakluk kepada fi alokatur pada atau sebelum 8 April 2024; dan

Pembelaan dan Tuntutan Balas bertarikh 12 Mac 2020 adalah dilaraskan (regularize) dan diterima sebagai sebahagian kertas kausa dalam tindakan

Bagi Rayuan 61 tersebut: “1. Rayuan di Lamp. 1 dibenarkan.

Perintah Orang Digarnis Untuk Menunjukkan Sebab bertarikh 18 Mei 2021 (iaitu Lamp. 93) tersebut diketepikan.

Sejumlah RM 236,710.69 atau apa-apa jumlah yang melebihi atau ke atas jumlah RM 236,710.69 yang digarnis oleh Responden melalui Perintah Orang Digarnis Mutlak bertarikh 25 Ogos 2021 dikembalikan kepada Perayu-perayu pada atau sebelum 8 April 2024.

Tindakan dikembalikan semula ke Mahkamah Seyen untuk Bicara.

Kos sebanyak RM 7,000.00 dibayar oleh Responden kepada Perayu-perayu tertakluk kepada fi alokatur pada atau sebelum 8 April 2024; dan

Pembelaan dan Tuntutan Balas bertarikh 12 Mac 2020 adalah dilaraskan (regularize) dan diterima sebagai sebahagian kertas kausa dalam tindakan Mahkamah Sesyen.” [12] In this context, on 5 April 2024, Messrs. TG Lee sent a letter to the Plaintiff's solicitors requesting the repayment of RM 236,710.69 along with associated costs; however, the Plaintiff did not make any payment. Instead, on 26 April 2024, the Plaintiff submitted a Notice of Application seeking a summary judgment. [13] Through this application [Enclosure 183], the Defendants sought to have the proceedings stayed until the Plaintiff fulfils the payment of RM 251,270.00, as ordered by the High Court of Malaya in Penang in Civil Appeal Nos. PA-12ANCVC-60-08/2021 and PA-12ANCvC-61-08/2021 with costs. [14] Having considered the application in Enclosure 183 and having read the affidavits and having heard the submissions of both parties, the Learned Sessions Court Judge has allowed the Defendants' application as set out in paragraph 1 of the Enclosure 183 for the stay of civil proceedings No. PBA52NCvC-127-12/2019 under Order 92 of the Rules of Court 2012 with costs in the cause. [15] The Learned Sessions Court Judge referred to the case of Koh Hooi Siang (suing as administrator of the estate of Low Yew Sun) & Ors v Tay Yew Chong [2018] MLJU 1382 where Mohamad Shariff JC (at the time) stated that: “It is trite that the burden and onus is on the Defendant in this case to prove special circumstances and this must be explained and/or shown in the Affidavit. Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257, 269 (FC): “..the onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavits filed in support of the application (see Syarikat Bepekat v Lim Lim Kei Kok (1983) 1 MLJ405. When it is alleged that there is a danger of the unsuccessful party not being repaid if its appeal is successful for any reason like, for instance, the insolvency of the other party, this must be shown in the affidavit (see The Annot Lyle (1886) 11 PD 114..” Preliminary observation of the right to appeal [16] This is an application for leave to appeal against the decision of the High Court. [17] Before this Court proceeds with the full reasons for the decision of the appeal which has been ordered, this Court wishes to refer to the preliminary legal question for the Court of Appeal to be decided, namely whether the decision of the High Court is subject to Sections 3 and 67 of the Courts of Judicature Act 1964 (‘the CJA’), and can be appealed at this stage. [18] In clarifying this issue, this Court relies on the decision of the Federal Court, namely in Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ

[19] This Court quotes part of the said decision which itself answers the question of Sections 3 and 67 of the CJA 1964. The relevant judgment is as follows: “[5] It is against the above background, we have to decide on this fundamental question: whether the High Court’s decision on an amendment application was appealable to the Court of Appeal. The issue of whether a decision is appealable is a jurisdictional matter. It concerns the jurisdiction of the Court of Appeal, and a question of jurisdiction can be raised at any time. The Federal Court in Chan Yock Cher v Chan Teong Peng [2005] MLJU 673 accepted that a jurisdiction error would arise where a court pronounces upon a lower court decision that was not appealable. The decision of the Federal Court in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 established the proposition of law that courts have the inherent jurisdiction to set aside orders or judgments that are null and void on the grounds of want of jurisdiction whether at appellate stage or otherwise. [6] The right to appeal in civil matters under s 67 of the Courts of Judicature Act 1964 (‘the CJA’) is subject to the definition of ‘decision’ as found in s 3 of the CJA. Section 67(1) of the CJA provides that the Court of Appeal has jurisdiction to determine appeals from any ‘judgment’ or ‘order’ of any High Court in civil matters: 67 Jurisdiction to hear and determine civil appeals

The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought. (Emphasis added.) [7] The construction of the word ‘decision’ is a matter of importance in this case. While the term ‘decision’ is not expressly used in s 67(1), the words ‘judgment’ and ‘order’ are contained in the definition of ‘decision’ in s 3 of the CJA: ‘Decision’ means judgment sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties; [8] The Federal Court in Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614 clarified that the use of the words ‘judgment’ and [2020] 2 MLJ 1 at 12‘order’, rather than the s 3 defined ‘decision’ in s 67(1), was intended to exclude ‘sentence’ as it is not a form of decision made in a civil matter. The Federal Court held that it was clear and unambiguous that the definition of ‘decision’ as per s 3 was applicable to civil appeals in as much as it applied to criminal appeals: [13] The present position in the law holds that an appeal does not lie against a decision in an amendment application made in the course of a trial and, further, such a decision does not finally dispose of the rights of the parties. In my opinion, the judgment in Kempadang, which is the decision of this court represents the law on the subject matter as we apply today. It is important to note that Kempadang concerns the interpretation of a statutory provision. Any decision of the Federal Court must be treated with utmost deference. More significantly, in my opinion, it is not a good policy for us at the highest court of the land to leave the law in a state of uncertainty by departing from our recent decisions. That will put us in a bad light as the Federal Court will then purports to be in a state of quandary when deciding a case. It is also a bad policy for us to keep the law in such a state of uncertainty particularly upon a question of interpretation of a statutory provision that comes up regularly for consideration before the courts. [9] Hence, the uncertainty on whether s 3 applied to civil appeals in the absence of the word ‘decision’ in s 67(1) has been laid to rest in Kempadang where the Federal Court held that the principles underlying the application of s 3 in criminal appeals were applicable in civil appeals: [39] In the case of Dato’ Seri Anwar Ibrahim at p 595 (MLJ); p 636 (CLJ) the court pointed out the underlying reasons for the amendment to the definition of ‘decision’ in s 3 of the CJA which came into effect on 31 July 1998 in the following manner: The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA is to stop parties from stalling before a trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. Apart from that the definition of ‘decision’ by itself is sufficiently clear and it is the court’s duty to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion [10] The Federal Court in Kempadang further held that the definition of s 3 acts as an additional exclusion of the types of matters that cannot be appealed against. The Federal Court’s opinion on this, which I accept as a correct statement of law, reads as follows: [26] Civil matters which are not appealable to the Court of Appeal am listed in sub-s 68(1). For instance, there can be no appeal against a judgment or order made by consent of parties or a judgment or order, which has been declared final by a statute. Another restriction to appeal can be discerned from the provision of s 3 of the CJA when it qualifies the word ‘decision’ as opposed to ‘ruling’ of the court. [11] The decision is a clear authority to support the proposition that s 67(1) read with ss 3 and 68(1) of the CJA precluded a litigant’s right of appeal against a High Court decision in an amendment application made in the course of trial that does not finally dispose of the rights of parties. Otherwise, it would allow parties in civil matters to circumvent the restrictions imposed by the definition of ‘decision’ in s 3 of the CJA and thereby appeal against every decision of trial court, which would indisputably delay the administration of justice. The intention of the Legislature is clear on the matter. It is to limit and filter the number of appeals to the Court of Appeal. What it means in practice is that it is intended to filter appeals so as to prevent the appellate courts from being inundated with appeals and to prevent delays to the administration of justice. The legislative provisions are likewise clear in precluding from appeals decisions made in the course of trial and which do not finally dispose of the rights of parties. It has to be noted here that an aggrieved party would not be prejudiced by the filtering effect of s 3 of the CJA as it would still be open to the aggrieved party to raise the offending ruling in the appeal proper at the conclusion of the entire trial (see Karpal Singh a/l Ram Singh v Public Prosecutor [2012] 5 MLJ 293). [12] There is another point worth noting. There have been a series of appellate court decisions that have read the definition of ‘decision’ in s 3 of the CJA as prescribing a restriction on the right of appeal in civil matters (see Wong Kie Chie & Ors v Kathryn Ma Wai Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals [2017] 3 MLJ 350; [2017] 5 CLJ 707, Christopher ak Bandi @ Josny v Tumbung ak Nakis & Anor (Jamil bin Sindi, third party) [2016] 4 MLJ 100, Datuk Seri Tiong King Sing v Datuk Seri Ong Tee Keat & Anor [2015] 1 MLJ 847 and [2020] 2 MLJ 1 at 14Syarikat Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd [2003] 2 MLJ 495). [13] The present position in the law holds that an appeal does not lie against a decision in an amendment application made in the course of a trial and, further, such a decision does not finally dispose of the rights of the parties. In my opinion, the judgment in Kempadang, which is the decision of this court represents the law on the subject matter as we apply today. It is important to note that Kempadang concerns the interpretation of a statutory provision. Any decision of the Federal Court must be treated with utmost deference. More significantly, in my opinion, it is not a good policy for us at the highest court of the land to leave the law in a state of uncertainty by departing from our recent decisions. That will put us in a bad light as the Federal Court will then purports to be in a state of quandary when deciding a case. It is also a bad policy for us to keep the law in such a state of uncertainty particularly upon a question of interpretation of a statutory provision that comes up regularly for consideration before the courts.” [20] Since the Sessions Court has yet to hear the case and decide on the merits of the case, the rights of the Plaintiff and the Defendant have not been conclusively determined, putting the Court's ruling that remitted this matter to continue with a full trial unappealable. [21] Therefore, on this matter, while maintaining the utmost respect and without undermining the power of the Court of Appeal to adjudicate upon it, this application for leave should not be entertained. Analysis and findings [22] The Learned Sessions Court has determined that the inability/refusal to pay the specified amount ordered serves as a compelling justification for staying the hearing of the Plaintiff's case until compliance with the previous High Court order dated 8 March 2024. [23] The compliance of the Order of the High Court is mandatory. In this case, this Learned Sessions Court Judge found that the Defendants were entitled to request that the case be stayed due to failure to comply with the Court's order. [24] Actually, the failure to comply with the Court's order is a form of contempt of Court which allows the Plaintiff's case to be dismissed or the Plaintiff to be prosecuted for contempt of court. The Plaintiff's failure to comply with the Court's order allows the case to be dismissed by the Court. [25] This Court found that the Application under Order 92 rule 4 of the Rules of Court 2012 gives the Court the power to strike out the Plaintiff's action against the Defendant, but the Sessions Court, conversely, granted the application to stay the Plaintiff's case until the judgment is settled. [26] This Court is of the view and decides that an application for adjournment or a stay of hearing of the case should be allowed if the Plaintiff is the one who made the application to stay all the proceeding arising from the order dated 8 March 2024. [27] In this case, the order dated 8 March 2024 can be implemented by the Defendant through various enforcement actions and applications to stay the case is not a reasonable action. However, to apply that the Plaintiff’s case be adjourned or stayed until the Plaintiff complies with the Court's order is an abuse of Court process. In fact, the Learned Sessions Court Judge is entitled to dismissed or struck out this case under Order 92 of the Rules of Court 2012 and not to adjourn or stay it. [28] In this case, the Court referred to the case of Nanjing Changjiang Waterway Engineering Bureau v Dato' Ir Goh Nai Kooi @ Gah Mai Kwai & Anor [2022] MLJU 2434, where the application to dismiss the case due to failure to comply with the Court of Appeal's order to deposit a deposit. [29] For the convenience of all parties, this Court refers to the chronology of Nanjing Changjiang Waterway Engineering Bureau (supra) as summarized and is now presented below:

The Plaintiff had previously filed this suit against the Defendants vide the Writ and Statement of Claim dated 22-11-2019 (Enclosure 1)(“the Statement of Claim”).

The First Defendant then vide Notice of Application dated 20-03-2020 (Enclosure 16) applied to strike out the Statement of Claim and vide Notice of Application dated 20-03-2020 (Enclosure 18) applied for a security for costs against the Plaintiff.

The Second Defendant also vide Notice of Application dated 10-02- 2020 (Enclosure 11) applied for a security for costs and vide Notice of Application dated 15-05-2020 (Enclosure 26) applied to strike out the Statement of Claim.

The Defendants’ Applications for security for costs against the Plaintiff were dismissed on 03-03-2021. On the same day, the Defendants’ Application to strike out the Statement of Claim were allowed by this Honourable Court.

Both the Defendants then appealed against the dismissal of Enclosure 11 and Enclosure 18 respectively where both appeals were heard together by the Court of Appeal on 19-01-2022.

The Court of Appeal had unanimously allowed both the appeals and ordered that the Plaintiff shall pay cost of RM35,000.00 to the Plaintiff’s Solicitors (for each the Defendant) as stakeholder within one (1) calendar month from the date of the Orders failing which the Plaintiff’s action is to be struck out.

In other words, the Plaintiff is required to pay the cost of RM35,000.00 (for each the Defendant) to its solicitors on or before 19-02-2022 failing which the Plaintiff’s action is to be struck out in limine. [30] In that case, the Court found that the Application by the Defendant to strike out the Plaintiff’s case under Order 92 rule 4 of the ROC 2012 was rightly done. Order 92 rule 4 of the ROC 2012 gives the court the power to strike out the Plaintiff's action against the Defendant. Compliance with the Order of the Court of Appeal is mandatory and there is no solid basis for the Court to give a different interpretation as the said order. The decision of this case by the High Court of Penang was affirmed by the Court of Appeal on 1 August 2023. [31] In Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2) [1974] 1 LNS 136; [1976] 1 MLJ 131), held that: “It is important to stress that initiation of a suit in a court of law demands the suit will be heard expeditiously and completed without any inhibition midway. Therefore, where an application for stay of proceedings is intended to merely stop or suspend the proceedings; it will be refused.” [32] In Jagdis Singh Banta Singh vs. Outlet Rank (M) Sdn Bhd [2013] 3 CLJ 47, the court held as follows: - “…………….

It is important to stress that initiation of a suit in a court of law demands the suit will be heard expeditiously and completed without any inhibition midway. Therefore, where an application for stay of proceedings is intended to merely stop or suspend the proceedings it will be refused. Some applicants, on seeing the weakness of their client’s case, would resort to application for stay and thereby waste the time of the other party and the court. The party simply cannot resort to the interlocutory of stay proceedings on having the slightest disagreement with any ruling of a trial judge. Courts are enjoined not to encourage such unwholesome practice. [33] In Kandanpani a/l Muthucami & Anor v. Manducekap Hi-Tech Sdn. Bhd. and others (2009) 8 CLJ 498, it was held that: “The clear principle that emanates from these various decisions is that where the application for a stay of proceedings rests solely on the ground of non-payment of costs, or on non-payment coupled with inability to pay, it cannot succeed. If however, the action is vexatious, or the plaintiffs in the course of it, act vexatiously towards the defendants, the court has jurisdiction to stay proceedings till the costs which the plaintiffs have been ordered to pay have been paid.” [34] Based on the above cases, it is my considered view that the Defendant who failed to pay costs which he had been ordered to pay is liable to be attached for contempt, and being in contempt, he is not entitled to be heard. For this reason alone, this application ought to be dismissed. In this case, the argument raised by the Defendant is that the Plaintiff did not come to Court with clean hands because he did not comply with the order of the Court. Therefore, the Defendant is not entitled to be heard. [35] This Court agrees with this argument if this stay application is filed by the Plaintiff to suspend the implementation or enforcement of the order. But in this case, it is the Defendants who requested that the Plaintiff's case be stayed and it is the Plaintiff's failure to comply with the order of the Court. In fact, the Defendant can take enforcement action if the Plaintiff did not not apply for a stay of hearing of the Plaintiff's case. The Plaintiff ought to have applied a stay, as the non-compliance with the order is attributable to the Plaintiff rather than the Defendant. [36] The order granted by the Sessions Court is as follows: “Segala prosiding guaman ini ditangguhkan atau digantung sehingga Plaintiff membuat bayaran seperti berikut.... “ Based on the above application which has been granted, the following situation arises:

Until when will these proceedings remain suspended? The continuation of the proceedings is contingent upon the receipt of payment.

(ii) What is the current status of the parties involved and the case in court? Is it adjourned indefinitely? [37] There is no specified time frame, and should the Plaintiff choose to comply, the Defendant will refrain from taking any measures to dismiss the claim or any other rights to enforce the order against the Plaintiff. [38] With regard to the Notice of Cross-Appeal, there is no need to decide as it is a “ruling” where the Respondent itself has stated that "the oral application to amend has not been entertained by the Learned Sessions Court”. Following is a copy of the reasons put forward in supporting the cross-appeal: [39] Therefore, during the hearing of this appeal, the Notice of Cross-Appeal by the Respondents considered that the issue appealed was a “ruling” and not an “order” and this Notice of Cross-Appeal was invalid and void based on Section 3 of the Courts of Judicature Act 1964 (CJA). Sections 3 CJA reads: “Section 3 of the Court of Judicature Act 1964 “decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties.” [40] In Tetuan J & S Holdings Sdn Bhd v A Karim Bin Hassan [2000] 6 MLJ 739, The Court ruled that:

If the order or decision finally disposes of the principal matter or the subject matter in dispute thereby bringing a conclusion to the whole of the proceedings without further date of hearing, the order or decision in those circumstances is appealable. The decision or ruling made by the learned magistrate on the preliminary objection was not a final decision as it had only disposed of the preliminary objection thereby leaving scope for the parties to proceed with the hearing on the principal or main subject matter which will determine the rights of the parties (see p 748A-B, C-D). The word ‘decision’ in O 49 r 6 of the Subordinate Courts Rules 1980 does not apply to the decision made by the learned magistrate on the preliminary objection (see p 749B-C). [41] Based on the above reasons, it is the view of this Court that the ruling made by the Sessions Court is proper and is a non-appealable order. Therefore, it is the view of this Court that the Notice of Cross-Appeal filed by the Defendants is an incompetent appeal. [42] In Asia Pacific Higher Learning Sdn Bhd (supra), The Federal Court held that: “As a general rule, a judicial decision made in want of jurisdiction or in breach of statute would be considered a nullity that is amenable to review at any stage of the proceedings and the court has inherent powers to set aside non-appealable orders exercisable on its own motion even if parties did not raise objections as to want of jurisdiction. ……………… “On the other hand, declining to read s 3 as instilling an additional exclusion of the appellate jurisdiction of the Court of Appeal would offend the rule that permits additional words to be read into statutory provisions to prevent an absurdity from resulting. As such, the decision made by the High Court in the amendment application was not appealable. Since the decision of the High Court in the amendment application was not appealable, the defendants’ appeal against the decision of the High Court was incompetent and not properly brought before the Court of Appeal. Therefore, the Court of Appeal had no jurisdiction to hear and determine the appeal and it committed a jurisdictional error when it heard the appeal.” [43] To sum up, these considerations mean that the Court can only decide on a Plaintiff appeal and is not obligated to hear and rule on the Defendants' cross-appeal as it was incompetent and not properly brought before this Court. [44] Given these factors, it is unnecessary for this Court to determine whether the Defendant should file an appeal by means of a separate Notice of Appeal, since allowing this appeal makes that decision pointless. Conclusion [45] For all the above reasons, I find that there was no proper basis for the exercise of the Sessions Court's discretion to grant a stay of proceedings under its inherent jurisdiction under Order 92 r. 4 Rules of Court 2012. [46] The appeal against the decision of the Sessions Court Judge is allowed. Costs in the cause. …………sgd…………… AZIZAN MD ARSHAD Judge High Court (3) Pulau Pinang Dated: 24 Mac 2025 Counsel for the Appellant: Lim Ee Theng Tetuan Lim, Lim & Associates Peguambela & Peguamcara No. 7-1 & 9-1, Lorong Usahaniaga 1 Taman Usahaniaga 14000 Bukit Mertajam Pulau Pinang. Counsel for the Respondent: Lim Yeong Shin Tetuan Tai Hwa & Co Peguambela & Peguamcara Unit 2-5C (5th Floor) Wisma TC2 Jalan Anggerik Vanilla Q 31/ Q Kota Kemuning 40460 Shah Alam Selangor Legislations referred to:

Sections 3 and 67 of the CJA 1964

Order 92 rule 4 of the Rules of Court 2012 Cases referred to:

Koh Hooi Siang (suing as administrator of the estate of Low Yew Sun) & Ors v Tay Yew Chong [2018] MLJU 1382

Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1.

Nanjing Changjiang Waterway Engineering Bureau v Dato' Ir

Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2) [1974] 1 LNS 136; [1976]

Jagdis Singh Banta Singh vs. Outlet Rank (M) Sdn Bhd [2013] 3

Kandanpani a/l Muthucami & Anor v. Manducekap Hi-Tech Sdn. Bhd. and others (2009) 8 CLJ 498

Tetuan J & S Holdings Sdn Bhd v A Karim Bin Hassan [2000] 6