Tong Kim Soo v Tirai Prospektif Sdn Bhd (B-04(IM)-287-06/2018)

DALAM MAHKAMAH RAYUAN MALAYSIA 5 (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO.: B-04(IM)-287-06/2018 ANTARA 10 TONG KIM SOO (berniaga atas nama dan … PERAYU Gaya ‘Boss Commercial Trading’) (No. Pendaftaran Perniagaan: CA0238728-U) DAN 15 TIRAI PROSPEKTIF SDN BHD … RESPONDEN (No. Syarikat: 765691-A) [Dalam Mahkamah Tinggi Di Shah Alam 20 Dalam Negeri Selangor Darul Ehsan, Malaysia (Bahagian Rayuan) Rayuan Sivil No.: BA-12A-38-08/2017] Antara 25 Tong Kim Soo (berniaga atas nama dan … Perayu gaya ‘Boss Commercial Trading’) (No. Pendaftaran Perniagaan: CA0238728-U) 30 Dan Tirai Prospektif Sdn Bhd … Responden (No. Syarikat: 765691-A) [Dalam Perkara Mahkamah Sesyen Di Shah Alam 35 Dalam Negeri Selangor Darul Ehsan, Malaysia Saman No.: BA-A52-2-01/2017] Antara 40 Tirai Prospektif Sdn Bhd … Plaintif (No. Syarikat: 765691-A) Dan Tong Kim Soo (berniaga atas nama dan … Defendan 45 gaya ‘Boss Commercial Trading’) (No. Pendaftaran Perniagaan: CA0238728-U) 2 CORAM 5 HAMID SULTAN ABU BACKER, JCA HANIPAH FARIKULLAH, JCA KAMALUDIN MD SAID, JCA 10 GROUNDS OF JUDGEMENT Introduction 15 [1] We heard the Appellant’s (Defendant at the Shah Alam Session Court) appeal against the decision of the learned Judicial Commissioner (“the learned JC”) in dismissing the Appellant’s application in enclosure 5 for extension of time to file and serve Record of Appeal and Memorandum of Appeal. The application 20 was made to regularise the appeal process against the decision of the Session court which granted the Respondent (Plaintiff) for summary judgment on 1.8.2017. [2] The learned JC had considered the Appellant’s Notice of 25 Application, Affidavit in Support affirmed by the Appellant’s Solicitor and the Respondent’s Affidavit in Reply affirmed by the Respondent. [3] The Notice of Appeal was filed on 11.8.2017. The Appellant’s new 30 solicitors filed a Notice of Change of Solicitors on 5.9.2017 and served it to the Respondent’s solicitor on 7.9.2017. The Appellant served the draft index to the Respondent after the handover of 3 cause papers and documents on 12.9.2017 which was replied on 5 20.9.2017. [4] The Appellant claimed that the Record of Appeal was to be filed on 28.9.2017 but was rejected by the court registry as they wanted the appeal registration number to process the filing. The 10 Appellant claimed that the record of Appeal was served to the Respondent’s solicitor on 28.9.2017. It was alleged that the current solicitor was only able to obtain the appeal registration number in early November 2017 and the Record of Appeal was filed on 10.11.2017. The Notice of Application for extension of 15 time was filed on 28.12.2017. [5] It is not disputed that there was sixty (60) days delay after filing the Notice of Appeal. 20 [6] At this juncture, the law is trite that Record of Appeal must be filed within one month after the date of Notice of Appeal (See Order 55 rule 5(3) of the Rules of Court 2012 (ROC 2012)). [7] Having heard the Appellant’s application, it was decided by the 25 learned JC that Order 55 (3) of ROC 2012 is a mandatory provision of court rules that must be complied with. The Court found that there was an inordinate delay and non-compliance on the Appellant’s part. 30 4 5 [See: Abdul Hamid Mohd Amin v Ramacon Corporation Sdn Bhd [2016] 3 CLJ 111; and Duli Yang Maha Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & another Appeal [2009] 4 CLJ 329] 10 [8] The Appellant’s reason for the delay as averred in the Affidavit was due to change of solicitors that it was the previous solicitor’s mistake for not updating the current solicitors and that there was no notice from the Court. Having considered the Affidavit evidence, the learned JC found that there was no honest mistake 15 on the delay by the Appellant hence, the reason stated by the Appellant were not valid reasons for the delay. The Appellant’s application in enclosure 5 was dismissed. [9] In the Federal Court case of Chia Hua Sawmill Co Sdn Bhd v 20 Tuan Yusoff bin Tuan Mohamed [1974] MLJ 58, the appellant failed to serve their notice of appeal within the prescribed one-month period. The Federal Court dismissed the appellant’s application for an extension of time and held as follows: - 25 “Here is a clear admission that the failure to serve the notice was due to the solicitor’s mistake. Needless to say that such mistake is not a ground for granting special leave. The must be so for the obvious reason that it is not possible to draw a dividing line between a mistake which can support he exercise 30 5 of a discretionary power and that which cannot. A mistake is a 5 mistake whatever may be the reason for it”. [10] For an application to extend time to succeed there must be circumstances which warrant the exercise of the court’s discretion in favour of the applicant. There is also a long line of cases which 10 show further that a mistake or oversight on the part of the applicant’s solicitor or on the part of the solicitor’s clerk is not a sufficient ground for granting an extension of time to file a notice of appeal or a memorandum or petition of appeal. 15 [See: Tan Chai Heng v Yeo Seng Choon [1981] 1 MLJ 271] [11] The omission in the part of a solicitor to be vigilant can hardly be described as an acceptable explanation 20 [See: Yeo Yoo Teik v Jemaah Pengadilan Sewa, Pulau Pinang & Anor [1996] 2 MLJ 54] [12] The burden is on the Appellant to satisfy the Court that it should exercise its discretion to grant an extension of time. The Court 25 had held that the Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified 30 6 right to an extension of time which would defeat the purpose of 5 the rules which is to provide a time table for the conduct of litigation. [See: Ratnam v Cumarasamy [1965] 1 MLJ 228] 10 [13] There is a presumption that the judge had rightly exercised his discretion and the appellate court must not reverse the judge’s decision. [See: Vasudevan v T Damodaran & Anor [1981] 2 MLJ 150] 15 [14] Be that as it may, it is always trite that the granting of extension of time was discretionary to be exercise by the judge in each particular case. The factors to be considered were; 20

(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 anything done or left undone, been non-compliance with 25 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. 30 10

(2) These Rules are a procedural code and subject to the 5 overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective.

(3) The Court or Judge may, on the ground that there has 10 been such non-compliance as referred to in paragraph

(1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise its or his discretion under these Rules to allow such amendments, if any, to be made and 15 to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity. [5] In the fifth edition of Janab’s Key to Civil Procedure at p.3 20 on non-compliance, the author had this to say: The previous Order 1A and Order 2 of the RHC 1980 have been further fortified to ensure that cases are heard on merits. The court before striking out, must consider the 25 overriding interest of justice and not only the technical non-compliance of the rules. This overriding interest of justice concept is sufficiently wide enough to encompass the position and jurisprudence relating to non-compliance in the UK. 30 11 [6] In the light of O 1A and O 2 of the ROC 2012, it is not an 5 option anymore for the courts to strike out a matter for non-compliance of the rules without giving an opportunity to the litigant to regularize the proceedings or to condone the irregularity by the fiat of the court. It is only in extremely rare cases where the non-compliance cannot be condoned at all, 10 the court will be obliged to strike out the matter. Those are the cases where the respondent can demonstrate prejudice as well as can establish that the breach cannot be compensated by costs.” 15 [See also Kenanga Investment Bank Bhd v Swee Joo Bhd & Ors and another appeal [2017] MLJU 2095] [18] Following the above principle, we found, there is nothing mentioned in the grounds of judgment that the learned JC had 20 considered the merit of the case or the chances of the appeal succeeding and the degree of prejudice to the Respondent if the application was granted. [19] At the High Court, the Appellant in the written submission had 25 submitted before the learned JC that the Session Court judgment was recorded under summary proceeding i.e. Order 14 of ROC 2012 thus means no full trial was held to properly determine the dispute between the two parties despite there are several issues or question in dispute which ought to be tried and this was the 30 12 basis of the appeal where the Appellant has seek for the said 5 judgment to be overturned and for full trial to be conducted to allow the dispute between the Appellant and the Respondent be heard on its merits. It was contended that the Appellant’s Affidavit in Reply disclosed five (5) triable issues that was under looked by the Session judge. 10 [20] It was also submitted that the Respondent is not substantially prejudiced if the Court exercise it discretion to extend time in filing the Record of Appeal on the ground that the Respondent had accepted the Record of Appeal without any protest despite it was 15 served on them out of time. It was further submitted that the Respondent failed to show in what way they will be prejudiced if the application is granted by the Court. It was contended that the Respondent will not be exposed to any prejudice element even though the application to extend time is granted. 20 [21] Our preliminary view is that since the learned JC failed to address the points submitted by the Appellant in her grounds of judgment, we think that it is fair by way of rehearing to consider the merit of the case or the chances of the appeal succeeding and the degree 25 of prejudice to the Respondent if the application was granted. [22] Section 69 (1) of the Court of Judicature Act (CJA 1964) provides that appeals shall by way of re-hearing. Section 69 of CJA 1964 states: 30 13 “Hearing of appeals 5

69. (1) Appeals to the Court of Appeal shall be by way of re-hearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary 10 power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

(2) The further evidence may be given without leave on 15 interlocutory applications, or in any case as to matter which have occurred after the date of the decision from which the appeal is brought.

(3) Upon appeals from a judgment, after trial or hearing of any 20 cause or matter upon the merits, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal. 25

(4) The Court of Appeal may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires. 30 14

(5) The powers aforesaid may be exercised notwithstanding 5 that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties although the respondents or parties have not appealed from or complained of the decision.” 10 [23] We heard and considered the merit of the case. [24] The Respondent’s case can be summarised as follows - 15 1. By a letter of offer dated 29.4. 2016, the Respondent at the Appellants request had agreed to let to the Appellant a Shop lot at G53A, Ground Floor, Segamat Johor on the terms and conditions in the said letter of offer, which were duly accepted by the Appellant as the Appellant had 20 signed the part on the acceptance of the tenancy on the terms and conditions in the said letter of offer.

2. By Clause 22.8 of the letter of offer, the Appellant was to execute the Tenancy Agreement as provided in the said 25 letter of offer, however the Appellant failed to execute the same.

3.

Pursuant to the above, the Appellant had sought some amendments to the terms and the amendments were 30 15 agreed upon by the Appellant and the Respondent. 5 Notwithstanding the aforesaid the Appellant failed to execute the Tenancy Agreement and by reason thereof the Appellant had repudiated the Contract and the Respondent proceeded to accept the repudiation and terminated the Contract.

4. By the said suit the Respondent sought and was granted the following reliefs: -

29.4.2016 binds parties despite several amendments to the terms 5 and conditions in the said letter of offer. [28] The learned Session court judge in her grounds of judgment inter alia found at page 11 of the letter of offer, provides that- 10 “Upon acceptance of this letter of offer the terms and conditions found herein shall be binding and shall have full force and effect as between the parties herein until such time when a Sub Tenancy Agreement shall have been executed between the parties” 15 [29] The learned Session court judge found that the Respondent had informed the Appellant the date of commencement and termination of tenancy agreement. There were discussions on the amendments of the terms and conditions which were agreed by 20 the Respondent. However, the Appellant failed to execute the tenancy agreement hence, the terms and conditions in the letter of offer were still applicable. [30] The Respondent was relying on Clause 22.8 of the letter of offer 25 which states that: - “In the event that the Sub Tenancy Agreement is not signed within fourteen (14) days after the notice has been sent by the Sub Landlord or the Sub Landlord solicitors to execute the 30 19 same or if the Sub Tenant refused to take up the Sub Tenancy 5 after accepting this offer, the total initial Security Deposit stated herein will be forfeited and the Sub Landlord reserve the right to claim for the monthly Gross rental of the whole un expired term. The Sub Tenant shall within fourteen (14) days from the date of termination deliver vacant possession of the 10 Demised Premise to the Sub Landlord in the manner and in the same condition as at the commencement of this Sub Tenancy, failing which the Sub Tenant shall be charged a sum equivalent to double the Monthly Gross Rental until the date of actual delivery of vacant possession to the Sub Landlord.” 15 [31] The learned, Session court judge accepted the above Clause as giving the Respondent’s right to terminate the letter of offer, forfeiting the deposits, delivery of vacant and other claims. In other words, on the facts of the case there is no triable issue of 20 the Respondent’s claim that merit a full trial. [32] Having acquainted with the background facts, it is our unanimous view that there are no likelihood chances of the appeal succeeding and the issue whether the Respondent will not be 25 prejudice if the application was granted does not arise. In other words, there is no merit in the Appellant’s defence to warrant a full trial. 30 20 [33] We were satisfied that the Appellant’s appeal has no merit. It is 5 our unanimous decision that the appeal is dismissed with Costs of RM 5,000.00 subject to allocator fee. The deposit if paid is to be refunded to the Appellant. Dated this 16 August 2019 10 Sgd KAMALUDIN MD. SAID JUDGE 15 COURT OF APPEAL MALAYSIA PUTRAJAYA Parties 20

1. Charlotte Diana Williams for the Appellants (Messrs Jeeva partnership)

2. Deborah J. Kaur for the Respondent 25 (Messrs Soraya Jabid, Deborah & Co.)