1. society
2. social institution
3. divorce

IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR
(CIVIL DIVISION)
CIVIL APPEAL NO. 12BNCvC-182-10/2014
BETWEEN
… APPELLANT
MS COOLING SDN BHD
AND
… RESPONDENT
GERIMIS BAIDURI SDN BHD
GROUNDS OF JUDGMENT
(In respect of enclosure 12)
Enclosure 12
1.
This
is
the Application by the Respondent /
Defendant
(“Respondent”) to strike out the Appeal (enclosure 1) filed by the
Appellant / Plaintiff (“Appellant”).
Court’s Decision given on 11.3.2015 regarding enclosure 12
2.
The Application of the Respondent is allowed.
Enclosure 1 is
accordingly struck out. Costs of RM2,500.00 are to be paid by the
Appellant to the Respondent.
Grounds of Decision
The Notice of Appeal was not filed in accordance with Form 111 of
the Rules of Court 2012 (“ROC”).
3.
The Notice of Appeal (enclosure 1) is worded as follows:
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“AMBIL
PERHATIAN
bahawa
Perayu
Plaintif
yang
dinamakan di atas tidak berpuas hati dengan keputusan
Puan Jumirah binti Marjuki, Hakim, Mahkamah Sesyen
Kuala Lumpur yang diberikan di Mahkamah Sesyen di Kuala
Lumpur pada 29 haribulan September 2014 dengan ini
merayu kepada Mahkamah Tinggi Kuala Lumpur terhadap
sebahagian keputusan yang memutuskan bahawa tuntutan
Perayu / Plaintif terhadap Responden / Defendan ditolak
tanpa perintah terhadap kos.
Bertarikh pada 2 haribulan October 2014”.
5.
Form 111 is the Form for Notice of Appeal (After Trial) required
under O.55 r.3 of the ROC.
6.
O.55 r.3(1) and (2) of the ROC provide:
“Notice of appeal against a decision made after trial
(O.55, r.3)
3. (1) A notice of appeal against a decision made after trial
shall substantially be in Form 111 and shall be filed in the
Court from which the decision is appealed from.
(2)
Any appellant may appeal from the whole or part of a
judgment or order and the notice of appeal shall state
whether the whole or part only, and what part, of the
judgment or order is complained of.” (emphasis added).
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7.
O.55 r.3(1), by the use of the word “shall” makes it mandatory for
the Notice of Appeal (“NOA”) to be substantially in compliance with
Form 111. Amongst other things, Form 111 under “NOTES” at the
bottom gives the direction “(1) Insert name of appellant”.
8.
It is observed that in this case, the Appellant did not insert the
name of the Appellant. Instead, the NOA, inter alia, merely states
“Perayu / Plaintif yang dinamakan di atas”.
This is not in
compliance with the mandatory requirement of Note (1) of Form
111.
9.
It is further observed that the NOA of the Appellant merely states
that the Appeal is in respect of “sebahagian keputusan” i.e. a part
of the decision. This is not in compliance with the requirement of
O.55 r.3(2) of the ROC which, with the use of the word “shall”,
makes it mandatory for the Appellant to state what part of the
judgment or order (“Judgment”) is complained of. Thus, the NOA
is vague on the nature and scope of that particular part of the
Judgment which is the subject matter of the Appeal.
This is
prejudicial to the Respondent because the Respondent would be
left guessing as to what exactly is the appeal all about. Moreover,
it causes uncertainty and difficulty to the Judge to write the
Grounds of Judgment (“Grounds”) upon the filing of the NOA. If
the NOA states the part of the Judgment which is being appealed,
it would assist the Judge to write the Grounds, inter alia, with more
focus and precision on that part of the Judgment. It is only fair and
in the interest of justice that the Appellant be required to state the
part of the Judgment which is being appealed so as to enable the
Respondent to respond to and prepare for the Appeal.
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10.
In this case, the Appellant obviously failed to comply with the
statutory requirements of Form 111 and O.55 r.3(1) and (2) of the
ROC.
No legal or effectual service of the NOA
11.
Order 55 r.3(4) of the ROC provides:
“ (4) A duplicate copy of the notice of appeal must be
served by the appellant within the time limited for the filing of
an appeal on all respondents.” (emphasis added).
12.
Even though the Appellant had served the unsealed copy of the
NOA on 3.10.2014, i.e. within the required 14 days from the date
of the decision appealed from, the Appellant did not comply with
the requirement in the first limb of O.55 r.3(4) of the ROC, namely
to serve a duplicate copy of the NOA to the Appellant. The words
“must be served” makes it imperative for a duplicate copy of the
filed and sealed copy of the NOA to be served on the Respondent.
13.
The NOA is dated 2.10.2014. However, it was filed with the Court
Registry only on 7.10.2014.
This means that even before the
NOA was filed, the Appellant’s Solicitors had already served a
copy of the unfiled and unsealed NOA on the Respondent’s
Solicitor on 3.10.2014. Clearly this is not legal or effectual service
of the NOA on the Respondent since the Appellant’s appeal did
not exist on 3.10.2014 as a matter of fact.
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14.
In Dollar Valley (M) Sdn. Bhd. V. Rimba Raya Sdn Bhd. & Ors
[2004] 4 MLJ 6 the Court, in following the Supreme Court decision
in Lee Lan V. Lim Yoon Loy & Ors, [1991] 3 MLJ 419 held:
“It is trite that an appeal does not exist without the filling of a
notice of appeal and that the same be served on the relevant
parties.
The issue before this court now is whether the
notice of appeal filed by the appellant in the present case is a
good notice. On a defective notice of appeal, the Supreme
Court in the case of Lee Lan –v- Lim Yoon Lay & Ors [1991]
3 MLJ 419 held that the notice of appeal which need to
be filed and served under O49 of the Subordinate Courts
Rules, 1980 must be indorsed with the date of filing of
the said notice by the court whose decision is appealed
from. Without it, such notice is defective and not a good
notice and does not bring an appeal into existence.”
(emphasis added).
15.
Applying the same principle in Dollar Valley (supra), I hold that the
Appellant’s NOA in the present case is a defective NOA at the time
when it was served on 3.10.2014 on the Respondent. The NOA
that was filed on 7.10.2014 was not served on the Respondent.
This is a fatal procedural error which is not curable.
Filing of the Cross Appeal (enclosure 11) by the Respondent is not
a fresh step taken
16.
The Appellant relied on O.2 r.2(1) and (2) of the ROC which
provide:
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“Application to set aside for irregularity (O.2, r.2)
2. (1) An application to set aside any proceedings, any step
taken in any proceedings or any document, judgment or
order therein for non-compliance with these Rules shall not
be allowed unless the application is made within a
reasonable time and before the party applying has taken
any fresh step after becoming aware of the irregularity and
the non-compliance has occasioned a substantial
miscarriage of justice or occasioned prejudice that cannot be
cured either by amendment or an appropriate order for costs.
(2) An application under this rule may, after notice of the
irregularity has been given to the other party, be made by
notice of application and the grounds of objection shall be
stated therein.”.
17.
The Appellant submitted that by filing the Cross Appeal, the
Respondent had taken a fresh step after becoming aware of the
irregularity and non-compliance by the Appellant and therefore the
Respondent’s Application to strike out the NOA should not be
allowed under O.2 r.2(1) of the ROC.
18.
With respect, I do not think that the filing of the Cross Appeal by
the Respondent is a fresh step as envisaged by O.2 r.2(1) of the
ROC. In my view, the Cross Appeal is a separate matter from the
Appellant’s NOA.
As submitted by learned Counsel for the
Respondent, the Respondent was merely riding on the Appellant’s
appeal to lodge its Cross Appeal. The Respondent would have
lodged its own appeal even if the Appellant had not lodged any
appeal. By filing the Cross Appeal, the Respondent did not waive
its rights to object to the irregularity of the Appellant’s actions
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under the above O.2 r.2(2) of the ROC.
In this case, the
Respondent, after filing the Cross Appeal, then proceeded to file
this Application in enclosure 12.
19.
It is to be noted that the NOA was filed on 7.10.2014.
The
Appellant then proceeded to file on 5.11.2014 the Record of
Appeal within 1 month from the date of filing the NOA as required
under O.55 r.4(1) of the ROC. The Respondent had no choice but
to respond to the steps taken by the Appellant, and then
proceeded to file its Cross Appeal on 5.11.2014. This step taken
by the Respondent, in response to the Plaintiff’s filing of the NOA
and followed by the filing of the Record of Appeal, cannot be held
against the Respondent.
20.
Even though the Record of Appeal was filed on time in compliance
with O.55 r.4(1) of the ROC, it does not cure the initial irregular
service of the NOA on the Respondent.
Until today, the
Respondent has not been served with a duplicate copy of the NOA
filed on 7.10.2014.
21.
I am mindful of O.1A of the ROC which provides:
“
Order 1A
COURT OR JUDGE SHALL HAVE REGARD TO JUSTICE
Regard shall be to justice (O.1A)
1A. In administering these Rules, the Court or a Judge
shall have regard to the overriding interest of justice and not
only to the technical non-compliance with these Rules.”.
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22.
However, I am of the firm view that for matters where the ROC
contains specific provisions which make it mandatory or imperative
for compliance, as in the case of O.55 r.3(1) and (2), and O.55
r.3(4), then O.1A of the ROC cannot be relied upon to override
these specific and express provisions. Otherwise, any party can
freely decide not to comply with any of the requirements of the
provisions the ROC and then seek protection and immunity under
O.1A of the ROC.
That would certainly be going against the
principles of the rule of law, and it is also an abuse of the Court
process and procedure.
No unreasonable delay in filing this Application
23.
The Appellant served the purported NOA on the Respondent on
3.10.2014.
This Application was filed 3 months later i.e. on
5.1.2015. The Respondent’s explanation for the time taken to file
this Application is because it was waiting for the Appellant’s
response to the Respondent’s request regarding the documents
which the Respondent insisted must be inserted into the Record of
Appeal.
Via its letter dated 26.11.2014, learned Counsel the
Appellant made it clear to learned Counsel for the Respondent that
he has no intention to accede to the Respondent’s request. Hence
this Application was filed only after that for the purpose of not only
setting aside the appeal, but also incorporating all other
irregularities of the appeal as well, instead of making multiple
applications against the Appellant.
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24.
I find the explanation given by the Respondent acceptable. I am
satisfied that in view of the above situation between both parties,
there is no unreasonable delay in the filing of this Application by
the Respondent.
Dispute on Record of Appeal should be referred to the Registrar
etc.
25.
Learned Counsel for the Appellant did not agree to include the
Respondent’s ID documents in the draft Index of the Record of
Appeal on the ground that they are not exhibits. Here, I am of the
view that the Appellant has an obligation to include all relevant
documents which the Respondent would be relying on for the
appeal. O.55 r.4(1)(h) of the ROC, inter alia, provides that the
Record of Appeal “shall contain copies of …. all such documentary
exhibits and other documents the parties shall consider relevant
for the purposes of the appeal.” (emphasis added). Thus, it is
rather high-handed of learned Counsel for the Appellant to exclude
the Respondent’s ID documents, which, though they are not
exhibits, are “other documents” which the Respondent considers
relevant for the appeal. It is the responsibility of the Judge, and
not that of learned Counsel for the Appellant at this stage, to
decide during the Hearing of the Appeal on the admissibility of the
Respondent’s ID documents.
26.
O.55 r.4(5) of the ROC provides:
“In the event of the parties being unable to agree the matter
shall be referred to the Registrar of the High Court who may
require the parties to attend before a Judge of the High
Court.”.
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27.
Either party may refer the disagreement on the documents to the
Registrar. However, the Appellant’s exclusion of the Respondent’s
ID documents should not be a ground for the Respondent to strike
out the Appellant’s appeal.
28.
Based
on
the
above
considerations,
I
therefore
ordered
accordingly.
Dated
27 March 2015
-sgd( DATUK YEOH WEE SIAM )
Judge
Civil Division
High Court, Malaya, Kuala Lumpur
Counsel/Solicitors for the Appellant
Ms Kabina Levan
Messrs Oh Teik Keng & Partners
Counsel/Solicitors for the Respondent
Mr. Woon Fei Hong
Messrs FH Woon & Associates
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