WA-29PB-302-04/2022

LEONG SENG KIN (No. K/P: 740921-10-5573 / A2857435) ...RESPONDENTS 2 JUDGMENT (ENCLOSURE 30) INTRODUCTION [1] Hong Leong Bank Bhd (“the Applicant”) filed an application in Enclosure 1 under section 33B(4) of the Bankruptcy Act 1967 (“the Bankruptcy Act”) for an order to prohibit the Director General of Insolvency (“DGI”) from issuing a certificate of discharge to the Bankrupt, who is the Second Respondent (“R2”), for a period of two

years from the date of the order. BACKGROUND FACTS [2] The Senior Assistant Registrar (“SAR”) allowed the Applicant’s application on 08.07.2022 and made an order prohibiting the DGI from issuing a certificate of discharge to R2 for a period of two (2) years from the date of the order. [3] R2, being dissatisfied with the decision of the SAR, filed an appeal on 01.08.2022 to this Court against the decision of the SAR in Enclosure 12. [4] The Applicant then raised a preliminary objection to Enclosure 12 on the grounds that Enclosure 12 was filed out of time. [5] The SAR’s order was made on 08.07.2022. Order 56 Rule 1(3) of the Rules of Court 2012 (“ROC”) provides that an appeal against a decision of the registrar of the High Court to a judge in chambers shall be filed within 14 days after the judgment, order or decision appealed against was given or made. Order 56 Rule 1(3) of the ROC states as follows: “(3) Unless the Court otherwise orders, the notice shall be filed within fourteen days after the judgment, order or decision appealed against was given or made, …” [6] Thus, the last day for R2 to have filed an appeal was 22.07.2022. [7] However, the Notice of Appeal was filed on 01.08.2022, which was 10 days out of time. R2 had, therefore, failed to comply with the requirement under Order 56 Rule 1(3) of the ROC on the filing of the Notice of Appeal. 3 [8] R2 then filed an application in Enclosure 30 on 17.01.2023 for an extension of time to file his Notice of Appeal against the decision of the SAR given on 08.07.2022. [9] It is trite law that a Court has a discretion to allow an application for extension of time. Nevertheless, such discretion ought to be exercised in accordance with established principles. THE LAW [10] In the case of Bala Subramaniam Sengodan v Ahmad Sidique Abdul Latif & Anor Appeal (2015) 5 CLJ 623, the Court of Appeal speaking through Mohd Zawawi Salleh JCA (as he then was) provided a summary of the principles applicable to any extension of time sought. [11] His Lordship held as follows: “(iii) …in exercising its discretion, the court will consider:

The length of the delay

The reasons for the delay

The chances of the appeal succeeding if time for appealing is extended, and

The degree of prejudice to the respondent if the application is granted” [12] His Lordship Mohd Zawawi Salleh J (as he then was) in the case of Sohd Manufacturing Sdn Bhd v Bank Islam Malaysia Bhd (2011) LNS 1 995 at paragraph 10, also quoted with approval the case of Lee Hsien Loong v Singapore Democratic Party and Others (2008) 1 SLR (R) 757, where the Court said as follows: “…it is clear that the court will adopt a far stricter approach towards applications for extension of time for the filing and/or servicing of the notice of appeal relative to other situations. This is not without good reasons. The overriding concern in the context of appeals is that there be finality.” FINDINGS OF THE COURT [13] The Notice of Appeal in Enclosure 12 was filed 10 days out of time. R2’s application for extension of time (in Enclosure 30) was filed approximately six (6) months from the last day for R2 to lodge his appeal. 4 [14] The sole reason proffered by R2 in explaining the delay in filing the Notice of Appeal was that he had no knowledge of the order delivered on 08.07.2022. He contends that he was only informed of the same vide the DGI’s email to him on 22.07.2022.

14.1 The Applicant submits and this Court agrees with its submission that the sole reason given by R2 is an afterthought. R2 participated throughout the proceedings of Enclosure 1. R2 was in attendance during the case management fixed on 18.05.2022 and was fully informed of the Court’s direction and decision fixed;

14.2 R2 had every opportunity to contact either the DGI’s office or Court on the outcome of the decision, yet he chose not to do so;

14.3 The failure by R2 to file the Notice of Appeal on time is due to his own “could not care less” attitude and/or wilful ignorance of the decision date.

14.4 This attitude of R2 is reflected in the act of filing the application for extension six (6) months after the date for filing his appeal. [15] In Haliza Abdul Hamid v Zalina Mohd Fadzil [2016] 10 CLJ 368 at para 29, Mohd Nazlan Ghazali JC, when dismissing an application for extension of time, held that: “[29] It is true, as stated earlier, that the court must consider all the circumstances of the case. However, the Court of Appeal in Thiruchelvasegaram Manickavasegar v Mahadevi Nadchatiram [1998] 4 CLJ 883; [1998] 4 MLJ 297 made it clear that the primary point to consider when exercising discretion to extend time is whether the party can clearly demonstrate that there was no intention to ignore or flout the order and that failure to obey was due to extraneous circumstances. As discussed earlier, it certainly cannot be said that extraneous circumstances were at play in the instant case and the considerable delay and the reasons advanced to try to justify the same did little to alter the finding that the applicant was not serious or earnest in ensuring compliance, and the absence of any intention to disregard cannot be reasonably established. [30] In my view, the situation in the instant case is not dissimilar to that found in Nadarajan Verayan v Hong Tuan Teck (No 2) [2008) 1 CLJ 798; [2008] 1 MLJ 436. The delay of 17 days in the filing of a notice of appeal pursuant to the Legal Profession Act 1976 against the decision of the Disciplinary Board was held to be substantial. The application was thus refused since the applicant had at all material times knowledge of the 5 disciplinary proceedings against him but had refused to attend the same. The High Court ruled that the delay was not due to a mere oversight or inadvertence but instead attributed the same to the “could not care less” attitude of the applicant.” [16] This Court finds that R2 did not satisfy the test laid down by the Court of Appeal in the case of Bala Subramaniam cited earlier. R2 has failed to provide a satisfactory explanation for the delay in filing the Notice of Appeal, more so the six (6) months delay in filing this application for extension of time in Enclosure 30. [17] For the aforesaid reasons, this application is dismissed with no order as to cost. Dated 10th August 2023 …………t.t……………….. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE APPLICANT: PN NUR AFIQAH BINTI AZNI SOLICITORS FOR THE PLAINTIFF: TETUAN SIMON HUE & ASSOCIATES COUNSEL FOR THE FIRST RESPONDENT: FRANKY IRWAN ABDUL RASHID SOLICITORS FOR THE DEFENDANT: JABATAN INSOLVENSI MALAYSIA COUNSEL FOR THE SECOND RESPONDENT: MS REVATHI KANNAN SOLICITORS FOR THE DEFENDANT: TETUAN REVATHI & PARTNERS 6 Cases Referred to: ➢ Bala Subramaniam Sengodan v Ahmad Sidique Abdul Latif & Anor Appeal (2015) 5 CLJ 623 ➢ Sohd Manufacturing Sdn Bhd v Bank Islam Malaysia Bhd (2011) LNS 1 995 ➢ Lee Hsien Loong v Singapore Democratic Party and Others (2008) 1 SLR (R) 757 ➢ Haliza Abdul Hamid v Zalina Mohd Fadzil [2016] 10 CLJ 368 Legislation Referred to: ➢ Section 33B(4) of the Bankruptcy Act 1967 ➢ Order 56 Rule 1(3) of the ROC 2012 ➢