Tengku Faizwa Binti Tengku Razif v Zhao Yueming (BA-12ANCvC-6-01/2021)

This present appeal before me arose from the decision given by the Sessions Court on 28.12.2020 in dismissing the Appellant’s Notice of Application dated 11.09.2020 for an extension of time to appeal against the Sessions Court Order dated 12.03.2019 to the High Court.

The appeal was heard on 15.03.2022. Upon review of the Record of Appeal, I had proceeded to determine the appeal on the following preliminary point: 24/06/2022 09:47:28 BA-12ANCvC-6-01/2021 Kand. 42 “Whether the Appellant’s appeal against the Sessions Court decision in dismissing her application for extension of time to file her affidavit in reply can be heard in light of the fact that her main appeal against the Sessions Court decision to allow Summary Judgment to be entered against her was dismissed by the Shah Alam High Court on 28.12.2020?”

The following are my grounds of judgment. For purposes of convenience the parties herein shall be referred to in their original capacity as in the Sessions Court proceedings.

The Plaintiff is a Chinese citizen having the address of service at Unit 12-17, Menara K1, Lorong 3/137C, Off Jalan Klang Lama, 58200 Kuala Lumpur. The Defendant is an individual having her last known address at No 15, Jalan 4H, Ampang Jaya, 68000 Ampang, Selangor Darul Ehsan.

Circa 12.04.2017, the Plaintiff and the Defendant executed a friendly loan agreement dated 12.04.2017 wherein the Plaintiff had advanced to the Defendant a sum of RM 100,000.000. The Defendant had undertook to repay the advanced money to the Plaintiff on or before 10.7.2017 or on demand by the Plaintiff in writing via a seven (7) days’ notice.

Despite the Plaintiff’s few requests and demands towards the advanced money, the Defendant had failed to settle the repayment of the money. As a result, the advanced money of RM 100,000.00 was due and payable by the Defendant to the Plaintiff.

On 13.11.2018, the Plaintiff filed a civil suit against the Defendant in Shah Alam Sessions Court. Thereafter, on the 28.12.2018, the Plaintiff filed an application for leave to enter summary judgment against the Defendant under Order 14 of the Rules of Court 2012.

On 12.03.2019, Shah Alam Sessions Court Judge allowed the Plaintiff’s application for summary judgment with costs of RM 3,000.00. Almost 6 months later, the Defendant filed a notice of appeal dated 11.09.2020 to appeal against the Sessions Court Order. The said appeal was registered as Shah Alam High Court Appeal No: BA-12ANCVC-94-09/2020.

On the same date i.e. 11.09.2020, the Defendant also filed an application for an extension of time to appeal against the Sessions Court Order. The learned Sessions Court Judge dismissed the Defendant’s application for extension of time on the 28.12.2020 and hence the Defendant proceeded with the present appeal before me.

The gist of the Defendant’s appeal can be summarized as follows:

The Defendant had given sufficiently reasons to explain the delay in filing of the Notice of Appeal to appeal against the Sessions Court Order for Summary Judgment. According to the Defendant, she was not properly informed by her Previous Solicitors and genuinely did not know that the Plaintiff had successfully obtained the Sessions Court Order against her until the bankruptcy proceedings. The Defendant was also not informed that she had only 14 days to appeal against the decision of the Sessions Court Judge.

(ii) It is clear that when the Defendant had finally obtained proper legal advice of her rights and legal remedies from her present solicitors, she had acted promptly by filing notice of appeal and the application for abridgment of time to appeal;

(iii) The Defendant did not intentionally delay the filing of this Notice of Appeal and did not disregard Order 55 Rule 5(2) of the Rules of Court 2012;

(iv) The Defendant should not be faulted by the failure or negligence of her previous solicitors to properly advise the Defendant as the courts are now free to consider the application on its merit; and

The Sessions Court Judge found that the Defendant failed to give a reasonable explanation for her delay in filing the application. The learned Sessions Court Judge erroneously held that the Defendant was relying on the “mistake by her previous solicitors” as its ground/reason for delay. A distinction ought to be made between a mistake of a solicitor and the negligence of a solicitor in failing to properly advise and inform the Defendant who was completely ignorant of the law and the proceedings against her. Court’s Analysis and Findings [11] As stated earlier the Defendant had lodged to notices of appeal:

against the Sessions Court decision allowing Summary Judgment to be entered against her on 12.03.2019 (Enclosure 7).

(ii) against the Sessions Court decision in dismissing her application for extension of time to file the notice of appeal against the summary judgment decision (Enclosure 21); and [12] The appeal before this Court concerns Enclosure 21. [13] The relevant provision on powers and discretion of the Court under the Rules of Court 2012 pertaining to the extension of time is laid down in Order 3 rule 5 of the Rules of Court 2012 which reads as follows: “5. Extension of time

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules or by any judgment, order or direction, to do any act in any proceedings.

The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent in writing without an order of the Court being made for that purpose.” [14] In the case of Express Solution Sdn. Bhd. v Hicom Indungan Sdn. Bhd. [2019] MLJU 1447, the Court referred to the principle enunciated in the case Abdul Rahim Ponniah Bin Abdullah v. Kulim Intensive Driving Centre Sdn. Bhd. (2000) 6 MLJ 584 with reference to an application under Order 3 Rule 5 of the Rules of the High Court 1980 held that:- “....The discretion of the court to extend time under O 3 r 5 if the Rules of the High Court 1980 (‘the RHC1) must be exercised judicially and only in cases where there are merits..”. [15] In addition, Order 92 Rule 4 of the Rules of Court 2012 also provides an inherent power of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [16] As there were two (2) notices of appeal lodged, the two (2) appeals ended up before two (2) different High Courts in Shah Alam: Enclosure 21 ended before this Court, whilst Enclosure 7 before Justice Khadijah Idris. [17] The appeal for Enclosure 7 before Justice Khadijah Idris was duly heard on 02.07.2021. At the end of the appeal, the learned High Court Judge dismissed the Defendant’s appeal against the summary judgment entered against her. The Defendant did not appeal against the decision of Justice Khadijah Idris. [18] In light of the decision by Justice Khadijah Idris, I then posed a preliminary legal question to the Defendant’s counsel as to whether the present appeal before me is academic and ought to be dismissed? [19] In answer to the question posed, Mr. Raymond Mah, counsel for the Defendant contended that the current appeal is not academic and has proper legal standing on the basis that if the appeal before me is allowed, the Defendant can then proceed to have her appeal heard by filing another notice of appeal to the High Court. [20] With the greatest of respect to the Defendant’s counsel, I take the view that the above contention is misconceived. It is not possible for me to agree with such contention mainly for two (2) reasons:

Mr. Mah’ s submission fails to take into account of the fact that the summary judgment appeal has been dismissed by Justice Khadijah Idris. I take the view that the present appeal before me is a backdoor attempt to challenge the summary judgment entered by the lower Court without appealing to the Court of Appeal against the decision by Justice Khadijah Idris;

(ii) To allow the present appeal would mean that this Court is allowing two (2) notices of appeal to be filed against the summary judgment. In this case, the first notice of appeal led to the appeal before Justice Khadijah Idris, whilst the 2nd notice of appeal would emanate from the decision of this Court in allowing the appeal on Enclosure 21. [21] I therefore took the view that with the decision on the summary judgment appeal by the Defendant being dismissed by Justice Khadijah Idris, the present appeal before me is purely academic as it no longer has legal standing to go on. I opine so as even if I were to allow the present appeal before me, my decision allowing so cannot override the decision of Justice Khadijah Idris in dismissing the Defendant’s appeal against the summary judgment Conclusion [22] In the upshot, the Defendant’s appeal is dismissed. In light of the unfortunate circumstances that has be fallen to the Defendant, I am not inclined to award any order of costs against her. I order so accordingly. Dated 6th April 2022 ………………………………….. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Plaintiff: Mah Weng Kwai & Associates Level 10-1, Tower B, Menara Prima Jalan PJU 1/39, Dataran Prima 47301 Petaling Jaya Selangor [Ref: M7727/RM/VF (ASH)] Solicitors for Defendant: EZ Pang & Co Unit 20-2 Menara K1, Lorong 3/137C Off Jalan Klang Lama 58200 Kuala Lumpur [Ref: MIS170042.LODTKF(CC)]