VIKNESWARAN A/L NADAN v 1. ) Shathiswaran A/l Nadaraja (BA-12B-41-05/2023)

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AXA AFFIN GENERAL INSURANCE BERHAD …RESPONDEN-RESPONDEN [DALAM MAHKAMAH SESYEN DI SELAYANG DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO. BD-B53KJ-33-12/2018 ANTARA VIKNESWARAN A/L NADAN …PLAINTIF

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AXA AFFIN GENERAL INSURANCE BERHAD …DEFENDAN-DEFENDAN]

Enclosure 42 is the Appellant/Plaintiff’s application to amend the Notice of Appeal dated 30 May 2023. The application specifically aimed to clarify the scope of the original appeal and was opposed by the Third Respondent/Defendant.

For ease of reference, the parties shall be referred to as they were in the Court below.

The proposed amendments were set out in Exhibit MS-3 of Enclosure 43. Through the proposed amendment, the Plaintiff sought to expressly state that the appeal on liability encompassed an appeal against the learned Sessions Court Judge’s (SCJ) decision in allowing the Third Defendant’s counterclaim. Additionally, the Plaintiff sought to include an appeal on the issue of quantum, which, according to the Plaintiff, had been inadvertently omitted from the original Notice of Appeal.

The Plaintiff advanced several grounds in support of the application. First, it was submitted that the issue concerning the adequacy of the Notice of Appeal was raised for the first time during the hearing of the appeal on 26 August 2024. Second, the Plaintiff explained that the omission of the appeal on quantum was due to an error in preparing the original Notice of Appeal. Third, following the appointment of Mr. Krishna Dallumah as lead counsel, it was his view that an amendment was necessary to ensure that the Notice of Appeal was both procedurally proper and legally competent.

It was further submitted that the Plaintiff had always intended to pursue an appeal on the issue of quantum. According to the Plaintiff, this intention was evident from the contents of both the Memorandum of Appeal and the Amended Memorandum of Appeal, which were exhibited at MS-2 of Enclosure 43.

In addition, the Plaintiff had already advanced arguments on the issue of quantum in the written submission filed as Enclosure 27. The Plaintiff also contended that no prejudice would be caused to the Third Defendant, as the Third Defendant had likewise filed an appeal on the issue of quantum.

In opposing the application, the Third Defendant raised several objections, on legal and equitable grounds. It was first contended that this Court lacked the jurisdiction to grant the relief sought by the Plaintiff.

The Third Defendant further objected on the grounds of delay. It was pointed out that there had been a lapse of 17 months since the filing of the original Notice of Appeal, and that no reasonable explanation had been provided for this prolonged delay. According to the Third Defendant, the timing of the application suggested it was an afterthought, raised only when the adequacy of the Notice of Appeal was questioned during the hearing.

Allegations of bad faith were also raised. The Third Defendant contended that the application was filed mala fide, and that the omission in the original Notice of Appeal was not merely inadvertent, but reflective of a negligent and lackadaisical attitude by the Plaintiff’s solicitors.

In totality, the Third Defendant submitted that the application constituted an abuse of the court’s process. It was argued that allowing such an application at this stage would not only disrupt the orderly conduct of the proceedings but would also result in unnecessary delays and a waste of judicial resources.

Having carefully considered the cause papers and the parties’ submissions, the relevant rules, and the authorities cited, this Court is of the view that the application to amend the Notice of Appeal is properly brought under Order 55 rule 9 of the Rules of Court 2012, which permits the Court to allow amendments to the Memorandum of Appeal, notice of cross-appeal, or other parts of the record of appeal on such terms as it thinks fit. Although the Rules of Court 2012 do not contain a specific provision dealing exclusively with the amendment of a Notice of Appeal, this gap is addressed through the combined operation of Order 55 rule 4(1)(f)—which recognises the Notice of Appeal as part of the record of appeal—and Order 55 rule 9, thereby empowering this Court to consider such amendments where appropriate.

In Ansar Farooq Mohammed Qamaruddin Rahman & satu lagi v Erich Steiger & satu lagi [2019] CLJU 252, the High Court permitted a similar request to amend the Notice of Appeal based on comparable factual circumstances. The Court referenced Vengadasalam a/l Munusamy & Anor v Sankaran Kurty a/l Anandhan & Anor [2018] 1 LNS 1772, which explained that Order 20 rule 8 of the Rules of Court 2012 allows courts to permit amendments to documents in proceedings, except judgments or orders, if it promotes the ends of justice.

The High Court in Dato' Tan Heng Chew v Tan Kim Hor & 2 Ors [2007] 1 LNS 492 further clarified that both rules 5 and 8 of Order 20 of the Rules of the High Court 1980 confer a general discretion on the court to allow amendments not only to pleadings, but to other documents as well, where such amendments would aid in determining the real question in controversy between the parties.

Based on the above authorities, this Court is satisfied that it has the jurisdiction to allow the proposed amendment to the Notice of Appeal. However, the exercise of this discretion must be judicious and must take into account the specific circumstances of each case.

The primary objection raised by the Third Defendant was that the application was filed after an unreasonable delay of 17 months. Upon examination of the procedural history, this Court finds that the delay must be viewed in context. The record shows that the hearing of the appeal had been deferred on several occasions due to pending consolidation applications and multiple applications for extensions of time to file written submissions. Most notably, the issue regarding the adequacy of the Notice of Appeal was raised for the first time only on 26 August 2024, and Enclosure 42 was filed on 19 September 2024—less than one month later. In the circumstances, the delay in filing this application cannot be said to be inordinate or unexplained.

The Court also notes that the Plaintiff had indicated from the outset an intention to appeal on the issue of quantum. This is evident from the Memorandum of Appeal, the Amended Memorandum of Appeal, and the Plaintiff’s Written Submission. The substance of the appeal, including quantum, had thus been made known to the opposing party early on.

Further, the Third Defendant himself has filed a cross-appeal on the issue of quantum. As such, the inclusion of quantum in the Plaintiff’s appeal does not introduce a new issue that would prejudice the Third Defendant or deprive him of the opportunity to respond. The issue will be fully ventilated in the course of the appeal, regardless of this application.

The Third Defendant also raised concerns about the conduct of the Plaintiff’s solicitors, alleging negligence and a lackadaisical attitude, and characterised the present application as an abuse of the court’s process. However, the Court does not find sufficient basis to accept that contention. The Plaintiff has complied with all directions of this Court, particularly concerning the timely filing of written submissions. It is also worth noting that the adjournment on 26 August 2024 was occasioned by the late filing of the Third Defendant’s own written submissions. In this context, it would be unfair to attribute the delay in the proceedings solely to the Plaintiff.

The Court is mindful of the overriding objective of the Rules of Court 2012, as reinforced in Order 1A and Order 2, which emphasise the need to administer justice in a manner that prioritises substance over form. The Court of Appeal in Redang Paradise Vacation Sdn Bhd v Yap Chuan Bin & Other Appeals [2017] 10 CLJ 296 affirmed that matters should be decided on their merits and not struck out or dismissed merely for procedural irregularities unless prejudice or exceptional reasons are clearly shown.

In the present case, the Plaintiff’s application is not without basis. The error in the original Notice of Appeal appears to have been inadvertent, and steps were taken promptly to rectify it once discovered. No prejudice has been demonstrated, and the amendment is necessary to allow this Court to consider the appeal in its proper scope.

For these reasons, this Court finds that the objections raised by the Third Defendant are without merit. The application to amend the Notice of Appeal is a necessary procedural step to regularise the record and to ensure that the appeal is adjudicated on its merits. In the interest of justice, the application is therefore allowed.

Accordingly, Enclosure 42 is allowed. The Notice of Appeal dated 30 May 2023 is hereby amended in the terms proposed by the Plaintiff, as set out in Exhibit MS-3 of Enclosure 43.

Costs of RM2,000.00 are awarded to the Third Defendant, to be paid forthwith by the Plaintiff, due to the inconvenience and costs incurred by the Third Defendant as a result of this application. Dated: 7 May 2025 -sgd-JAMHIRAH ALI JUDGE High Court of Malaya at Shah Alam (NCvC 1) To the parties’ solicitors: For the Appellant : Krishna Dallumah (Messrs G.Dorai & Co.) For the 1st & 2nd Respondents: Thanajayan a/l P.Manichavasagam (Messrs M.Thanajayan & Co.) For the 3rd Respondent : J.S.Naicker & Rosmaria Binti Daud (Messrs Naicker & Assoc.)