Techware Enterprise Sdn Bhd v Foo Yen Leng, Mendakwa Sebagai Wasi Kepada Harta Pusaka Foo Pei Leng, Simati (PA-12ANCvC-15-04/2025)

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1 DALAM MAHKAMAH TINGGI MALAYA DI GEORGETOWN DALAM NEGERI PULAU PINANG, MALAYSIA RAYUAN SIVIL NO. PA-12ANCVC-15-04/2025 ANTARA TECHWARE ENTERPRISE SDN BHD (NO. SYARIKAT: 313594-A) …PERAYU

Preamble

Pursuant to Order 55 rule 5(3) of the ROC 2012, the Appellant is required to file the Record of Appeal on or before 25.05.2025. [4] Only on 30.05.2025, the Appellant’s solicitors emailed the draft index to the Record of Appeal to the Respondents’ solicitors, which was after the expiry of the deadline. [5] The matter was then fixed for a case management on 03.06.2025 before the Senior Assistant Registrar, where the Appellant was directed to file a proper application for an extension of time to file the Record of Appeal. [6] Thereafter, the Appellant filed the application for an extension of time to file the Record of Appeal on 11.6.2026. CONTENTION OF PARTIES Appellant’s Contention [7] The Appellant contended that the delay in filing the Record of Appeal had been explained in the Affidavit in Support, where it was stated that the delay was due to the Appellants’ solicitors being involved in an office relocation. [8] The Appellant submitted that the intention to pursue the appeal was clearly demonstrated by the timely filing of the Notice of Appeal, and that only the Record of Appeal was not filed within the prescribed 30 days. [9] It was further contended that the delay was not intentional and that the Appellant had clearly and unequivocally explained that the delay was justified with valid reasons. [10] Further, the Appellant submitted that the Respondent has failed to state what prejudice would be suffered if the Record of Appeal is allowed to be filed out of time. [11] The Appellant then submitted that it is more just and equitable for the appeal to be heard on its merits rather than being defeated by technical objections, particularly where no prejudice has been shown. [12] It was further contended that any delay can be compensated by way of costs, and that the appeal should be allowed to proceed on its merits. [13] Reliance was also made to the case of Hafizzuddin Nordin v Pacific & Orient Insurance Co Berhad [2014] MLRHU 1507 and a Federal Court case of Lee Guat Eng v Tan Lian Kim [1985] 1 MLRA 504 to support the proposition of the Appellant that this Court has the discretion to grant an extension of time and to regularise a non-compliance where appropriate, in the interest of justice. Respondent’s Contention [14] On the other hand, the Respondent contended that the Appellant has failed to provide a satisfactory and credible explanation for the delay in filing the Record of Appeal. [15] The Respondent submitted that the Appellant’s reliance on office relocation as an excuse, is untenable. [16] It was argued that the new address of the Appellant’s solicitors had already taken effect from 01.04.2025, and despite any transition, it was the responsibility of the Appellant’s solicitors to prioritise and manage their cases effectively. [17] The Respondent further submitted that the installation of computers and office setup had been completed by 09.05.2025, and the Appellant still had more than two weeks to file the Record of Appeal, but failed to do so. [18] The Respondent contended that the Appellant made no effort to seek consent from the Respondents’ solicitors for any late filing and also failed to promptly apply for an extension of time until a case management session by the Senior Assistant Registrar, which was after the deadline to file the Record of Appeal had lapsed. [19] The Respondent further submitted that granting an extension would unduly prejudice the Respondent, who has a legitimate expectation of finality. [20] The Respondent argued that the Appellant has neither adequately explained the delay nor demonstrated any genuine effort to comply with Order 55 rule 5(3) of the ROC 2012, where compliance is mandatory. ISSUE [21] Whether the Appellant has shown sufficient and bona fide reasons to justify an extension of time under Order 55 Rule 5 of the ROC 2012? ANALYSIS AND FINDINGS [22] Order 55 of the ROC 2012 is a mandatory provision. Under Order 55 Rule 5(4)(1), it stipulates that “In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of notice of appeal prepare and file the requisite number of copies of the record of appeal in the High court...”. [23] In this regard, the Court of Appeal in Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, held that the use of the word “shall” in Order 55 of the ROC 2012 connotes the mandatory nature of the provision – “[15] Clearly the use of the word "shall" connotes the mandatory nature of the requirement. Failure by the appellant to adhere to the need to provide the solicitors to the respondent the draft index quite palpably deprive of the latter the right to object to the inclusion or exclusion of any document and may have the effect of undermining the integrity and credibility of the appeal record …” (Emphasis Added) [24] Likewise, the Court of Appeal in Capital Insurance Bhd v. Kasim Mohd Ali [1999] 1 MLRA 572, held that “In our view the Rules and Practice Directions made by this court are to be obeyed and not to be broken. We would like to stress here that parties to an appeal must adhere and comply strictly to those Rules and Directions. Of late we found that there were numerous instances where parties had not adhered or complied to those Rules and Directions and we want to make it clear that they do so at their own risk...”. [25] Before going any further, this Court has also observed that-