[2017] 1 LNS 1812 Legal Network Series

IN THE HIGH COURT OF MALAYA AT PENANG

IN THE STATE OF PENANG, MALAYSIA.

[CIVIL APPEAL NO: PA - 12ANCVC - 21 - 06/2017]

BETWEEN

B.H.O. SDN BHD

(Company No: 165081 - T) … APPELLANT

AND

1. WESAW TRADING SDN BHD

(Company No: 414023 - P)
2. O & G OFFSHORE SDN BHD
(Company No: 879794 - X) ... RESPONDENTS

(In the matter of Sessions Court, Butterworth

In the State of Penang, Malaysia.
Summons No: B52 - NCVC - 09 - 06/2016

BETWEEN

WESAW TRADING SDN. BHD.

(Company No: 414023 - P) … PLAINTIFF

AND

O & G OFFSHORE SDN. BHD.

(Company No: 879794 - X) ... DEFENDANT

1
[2017] 1 LNS 1812 Legal Network Series

AND

B.H.O. SDN. BHD.

(Company No: 165081 - T) … THIRD PARTY)

JUDGMENT

Introduction

[1] The parties in this case are referred to as they were at the trial
court. The third party filed an application under Order 18 rule
19(1)(b) and/or (d) of the Rules of Court 2012 to strike out the
defendant’s claim dated 26.05.2017 against the third party and to set
aside the third party notice dated 08.12.2017 under Order 16 rule 6 of
the Rules of Court 2012.

[2] On 04.05.2017, the learned Sessions Court Judge dismissed the

third party’s application and on 18.05.2017, the third party filed an
appeal against that decision. The notice of appeal is dated 17.05.2017.
At the hearing of the appeal by the third party, the defendant raised a
preliminary objection.

[3] In its preliminary objection, the defendant contends that the

appeal is not competent before this court on the following grounds:

(a) firstly, that the notice of appeal dated 17.05.2017 was not
served on the defendant within the time limited to appeal
pursuant to Order 55 rule 5(2) of the Rules of Court 2012;
and

(b) secondly, the record of appeal was not served on the

defendant within the time limited for filing the record of

2
[2017] 1 LNS 1812 Legal Network Series

appeal pursuant to Order 55 rule 4(8) of the Rules of Court

2012.

[4] The third party concedes there is delay but argues that they are
mere technical non-compliance and is curable in the interest of
justice.

[5] I shall first consider the preliminary objection before proceeding

with the appeal proper. If the preliminary objection is upheld, I will
not proceed to consider the appeal proper. If the preliminary objection
is dismissed, I shall then proceed to consider the appeal on its merits.

Background

[6] The learned Sessions Court Judge dismissed the third party’s
application on 04.05.2017. On 18.05.2017, the third party filed the
notice of appeal. The notice of appeal is dated 17.05.2017. The notice
of appeal was only served on the defendant on 23.05.2017. The record
of appeal was served on the defendant on 20.06.2017.

Deliberations of the parties in respect of the preliminary objection

Contention of the respondent/ defendant

[7] In advancing its arguments for the preliminary objection, the

learned counsel for the defendant contends that the appeal is invalid
for non-compliance of rules on the grounds that -

(a) the Notice of Appeal dated 17.05.2017 was served out of

time under the Order 55 Rule 5(2) of the Rules of Court
2012; and

3
[2017] 1 LNS 1812 Legal Network Series

(b) the Record of Appeal was served out of time under the
Order 55 Rule 4(8) and Order 55 Rule 5(3) of the Rules of
Court 2012.

[8] With regard to service of the notice of appeal, the learned

counsel for the defendant submits that there was a delay of 4 days
between the date the notice of appeal should have been served on the
defendant, namely on 18.05.2017, and the date it was actually served,
namely on 23.05.2017. The learned counsel for the defendant refers to
the decision of the Federal Court in the case of Tan Ting Kok v.
Cheong Lep Keen & Anor [1969] 1 MLJ 153 FC and the decision of
the Court of Appeal in the case of Gurbachan Singh v. Seagrott &
Campbell [1962] 28 MLJ 370 whereby it was observed that an appeal
which is not properly brought before the court because the notice of
appeal was not properly served on the respondent cannot be proceeded
with.

[9] The learned counsel for the defendant also refers to the decision
of the Court of Appeal in the case of Majlis Perbandaran Kangar v.
Sonati Development Corp. Sdn. Bhd. [2007] 1 MLJ 133 CA whereby it
was held that an appeal is not brought until the notice of appeal is
both filed and served and where the notice of appeal was not served,
the appeal had not been properly brought and utterly incompetent. The
learned counsel for the defendant also argues that the court in Mat
Sanusi bin Mohamad & Anor v. Jeevaratnam a/l Thevaraj [2016] 1
MLJU 805 held the view that failure to serve the endorsed copy of the
notice of appeal within time is a serious procedural defect which
could render the whole appeal invalid. The court in Mat Sanusi bin
Mohamad further held that such non-compliance of the procedural
rules is a defect which is not curable because it is a fundamental non-
compliance with the basic process of bringing about an appeal.

4
[2017] 1 LNS 1812 Legal Network Series

[10] The learned counsel for the defendant submits that failure of the
third party to serve to the defendant the notice of appeal within the
prescribed time is not curable under Order 1A of the Rules of Court
2012 because the provision for service of the notice of appeal is
mandatory and there was no application for extension of time to serve
the notice of appeal made by the third party. The learned counsel for
the defendants further refers to the cases of MBf Cards Services Sdn
Bhd v. Chew Ah Too @ Chew Hoe Kee [2009] 1 MLJ 684, Bun Fui
Min & Anor v. Seliang ak Tuah [2010] 9 MLJ 707 and RNS Oil and
Gas Sdn Bhd v. Norhayati binti Ahmad Kamal [2016] MLJU 934.

[11] In respect of service of the record of appeal, the learned counsel

for the defendant submits that there was a delay of 1 day between the
date the notice of appeal was filed, namely on 18.05.2017, and the
date it was actually served on the defendant, namely on 20.06.2017.
The learned counsel for the defendant refers to the decision of the
Federal Court in the case of Ng Yit Seng & Anor v. Syarikat Jiwa
Mentakab Sdn. Bhd. & Ors [1981] 2 MLJ 194 and submits that the
appeal should be dismissed because the third party has failed to
comply with the statutory provision requiring service to the defendant
of the record of appeal.

[12] The learned counsel for the defendant reiterates his earlier
submissions that the non-compliance is fatal and cannot be cured
under Order 1A of the Rules of Court 2012 because of the mandatory
nature of Order 55 Rule 4(8) of the Rules of Court 2012. The learned
counsel for the defendant refers to the case of Abdul Hamid Mohd
Amin v. Ramacon Corporation Sdn Bhd [2016] 3 CLJ 111 for the
proposition that non-compliance of a mandatory provision cannot be
regarded as a technical non-compliance capable of being remedied
under Order 1A of the Rules of Court 201. The learned counsel for the
defendant further refers to the case of Ahmad Sabri Abu Hassan v.
Maybank Islamic Bhd [2016] 6 CLJ 871 whereby in that case, the

5
[2017] 1 LNS 1812 Legal Network Series

court upheld the preliminary objection and dismissed the appeal on

similar grounds with that which is advanced by the learned counsel
for the defendant.

Contention of the appellant/third party

[13] In support of his arguments for the third party, the learned
counsel for the third party contends that this court may abridge or
extend the period within which a person is required by the rules to do
any act on such terms as the court may think just pursuant to Order 3
Rule 4 of the Rules of Court 2012. The learned counsel for the third
party refers to the case of Lee Guat Eng v. Tan Lian Kim [1985] 1
LNS 26.

[14] The learned counsel for the third party also refers to the case of
Scott & English (M) Sdn Bhd v. Leikie Refrigeration & Stainless Steel
Industries Sdn Bhd & Ors [1994] 3 CLJ 114 and submits that an
extension of time is a discretion of the court and in considering
whether to allow an extension of time, the length of 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 would-be
respondent if the appeal is granted are relevant considerations.

[15] The learned counsel for the third party relies on the case of
United Malayan Banking Corp Berhad v. Ernest Cheong Yong Yin
[2001] 1 MLJ 561 whereby it was observed that -

“A procedural and technical objection such as this should not be

allowed to obstruct the process of giving justice to the deserving
party by going into the substantive issues before the court.”,

and contends that the delay is not inordinate and the Defendant did
not suffer any prejudice by the delay which cannot be compensated
with cost. The learned counsel for the third party apologizes for the

6
[2017] 1 LNS 1812 Legal Network Series

unintentional delay and submits that the delay was not inordinate or
unreasonable.

Analysis and decision

[16] In computing time prescribed by the Rules, Order 3 rules (1) and
(2) of the Rules of Court 2012 are pertinent provisions for
consideration. They read as follows:

““Month” means calendar month (O. 3, r. 1)

1. Without prejudice to the Interpretation Acts 1948 and 1967

[Act 388], the word “month”, where it occurs in any judgment
order, direction or other document forming part of any
proceedings in Court, means a calendar month, unless the
context otherwise requires.

Reckoning periods of time (O. 3, r. 2)

2. (1) Any period of time fixed by these Rules or by any

judgment, order or direction for doing any act shall be reckoned
in accordance with the following provisions of this rule.

(2) Where an act is required to be done within a

specified period after or from a specified date, the period begins
immediately after that date.

(3) Where an act is required to be done within or not less

than a specified period before a specified date, the period ends
immediately before that date.

(4) Where an act is required to be done within a

specified number of clear days before or after a specified date,
at least that number of days must intervene between the day on
which the act is done and that date.

7
[2017] 1 LNS 1812 Legal Network Series

(5) Where, apart from this paragraph, the period in

question, being a period of seven days or less, would include the
day before the weekly holiday or public holiday, that day shall
be excluded.”.

[17] Order 3 rule 1 of the Rules of Court 2012 provides that the word
“month” means calendar month but specifically qualifies that such a
meaning applies to any judgment, order, direction or other document
forming part of any proceedings in Court. It does not apply to the
provisions of the Rules itself. In respect of the definition of the word
“month”, section 3 of the Interpretation Acts 1948 and 1967 enacts as
follows:

“Definitions

3. The following words and expressions have the meanings

hereby respectively assigned to them, that is to say -

“month” means a month reckoned according to the

Gregorian calendar;”.

For purposes of computation of time, section 54 of the Interpretation

Acts 1948 and 1967 enacts as follows:

“Computation of time

54. (1) In computing time for the purposes of any written

law-

(a) a period of days from the happening of an event or

the doing of any act or thing shall be deemed to be
exclusive of the day on which the event happens or
the act or thing is done;

(b) if the last day of the period is a weekly holiday or a

public holiday (referred to in this subsection as

8
[2017] 1 LNS 1812 Legal Network Series

excluded days) the period shall include the next

following day which is not an excluded day;

(c) where any act or proceeding is directed or allowed to

be done or taken on a certain day, then, if that day
happens to be an excluded day, the act or proceeding
shall be considered as done or taken in due time if it
is done or taken on the next following day which is
not an excluded day; and

(d) where any act or proceeding is directed or allowed to

be done or taken within any time not exceeding six
days, excluded days shall not be reckoned in the
computation of the time.

(2) Where no time is prescribed within which anything

shall be done, that thing shall be done with all convenient
speed and as often as the prescribed occasion arises.”.

[18] In the case of Jeow Fong Mei v. Chong Mee Yoke [1996] 1 MLJ
387 CA, the Court of Appeal had the occasion to deal with the
meaning of the expression ‘calendar month’. His Lordship Abdul
Malek Ahmad J (later JCA) speaking for the Court of Appeal observed
that in computing time by calendar months, the time had to be
reckoned by looking at the calendar and not by counting the days. His
Lordship also gave the example that one calendar month is to be
calculated from that day of the month numerically corresponding to
the day of the following month, less one. (See also: Dato’ Valumalai
V. Muthusamy v. Dato’ Dr. Tan Chin Woh [2010] 5 CLJ 758).

[19] Based on these parameters, I shall now proceed to consider the

delay complained of by the defendant.

9
[2017] 1 LNS 1812 Legal Network Series

[20] Order 55 rule 5(2) of the Rules of Court 2012 provides for the
filing of the notice of appeal within 14 days from the date the decision
is pronounced and service of its duplicate copy to all parties. In order
for an appeal under the Rules to be properly before this court, it must
both be filed and served within 14 days from the date the decision is
pronounced.

[21] The decision of the learned Sessions Court Judge in dismissing

the third party ‟ s application was pronounced on 04.05.2017. The third
party filed the notice of appeal on 18.05.2017, exactly on the 14 th day
of the time limited to appeal. The notice of appeal was only served on
the defendant on 23.05.2017. There is a delay of 5 days for service of
the notice of appeal to the defendant calculated from the deadline for
service of the notice of appeal, namely on 18.05.2017, to the date the
notice of appeal was served on the defendant, namely on 23.05.2017.
It is not a delay of 4 days as contended by both the learned counsel
for the defendant and the learned counsel for the third party.

[22] Order 55 rule 4(8) of the Rules of Court 2012 effectively

provides for the record of appeal to be served on each respondent
within one month after the filing of the notice of appeal. The notice of
appeal was filed on 18.05.2017 whereas the record of appeal was only
served on the defendant on 20.06.2017. There is a delay of 3 days for
the service of the record of appeal to the defendant calculated from
the deadline for service of the record of appeal, namely on
17.06.2017, to the date the record of appeal was served on the
defendant, namely on 20.06.2017. It is not a delay of 1 day as
contended by both the learned counsel for the defendant and the
learned counsel for the third party.

[23] Time as provided under Order 55 of the Rules of Court 2012 is

mandatory as the operative word “shall” suggest. It is in my view so
elementary a principle that any reference to decided cases as an

10
[2017] 1 LNS 1812 Legal Network Series

authority for the proposition is not necessary. The consequence of this

is far-reaching. Where the notice of appeal and the record of appeal
were not filed and served within the mandatory period prescribed
under the Rules 2012, the appeal before this court would become
incompetent.

[24] The Federal Court in the case of Duli Yang Amat Mulia Tunku
Ibrahim Ismail Ibni Sultan Iskandar Al - Haj v. Datuk Captain
Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 FC held that
technical non-compliance of any rule may be remedied under Order
1A of the then Rules of the High Court 1980 where there is oversight
by a party provided the discretion exercised by the court does not
supersede a mandatory requirement under the Rules. In speaking for
the Federal Court, His Lordship Zaki Tun Azmi CJ (as he then was)
clarified that the technical non-compliance referred to under Order 1A
of the Rules then refers to non-compliance with a rule which is not
fundamental or mandatory in nature.

[25] This court further considers the provisions of Order 2 rule 3 of

the Rules of Court 2012 which prohibits the court from allowing any
preliminary objection made solely on the ground of non-compliance of
the Rules unless it causes substantial miscarriage of justice or
prejudice which are incurable by amendment or cost or both. Order 2
rule 3 of the Rules of Court 2012 reads -

“Preliminary objection for non-compliance of rules not

allowed (O. 2, r. 3)

3. A Court or Judge shall not allow any preliminary objection

by any party to any cause or matter or proceedings only on the
ground of non-compliance of any provision of these Rules
unless the Court or Judge is of the opinion that such non-
compliance has occasioned a substantial miscarriage of justice

11
[2017] 1 LNS 1812 Legal Network Series

or occasioned prejudice that cannot be cured either by

amendment or an appropriate order for costs or both.”.

[26] With respect, I am unable to agree with the submission of the

learned counsel for the third party that these are technical non-
compliance which do not occasion a failure of justice and should be
curable with the aid of Order 1A of the Rules of Court 2012. I am also
of the considered view that the third party could not shield itself using
Order 2 rule 1(1) of the Rules of Court 2012. The Federal Court in
Tong Lee Hwa & Anor. v. Malayan Banking Berhad [1978] 1 MLJ 257
FC held that an appeal can only be said to be brought when the notice
of appeal is served on the respondent. And in the case of Majlis
Perbandaran Kangar v. Sonati Development Corp. Sdn. Bhd. (supra.),
the Court of Appeal held the view that an appeal which has not been
properly brought is incompetent.

[27] A notice appeal or record of appeal which was not served within
the time prescribed under the Rules may still be salvaged if an
application for extension of time setting out the reasons is made. In
the present appeal, there is no such application made by the third
party despite acknowledging the delay in serving on the defendant the
notice of appeal and the record of appeal. The learned counsel for the
third party merely offers an apology for it and pray that the third party
not be shut out and for justice to prevail over technicalities.

[28] On the same vein, I hold the considered view that an appeal
which is incompetent causes prejudice to the respondent which could
not be cured by an amendment or an order for cost. The non-
compliance by the third party in respect of service of the notice of
appeal and record of appeal within the prescribed time is compounded
by the third party’s failure to apply for extension of time. On these
premise, I hold the considered view that the prohibition in respect of

12
[2017] 1 LNS 1812 Legal Network Series

preliminary objection under Order 2 rule 3 of the Rules of Court 2012

do not apply in view of the facts of the present case.

[29] With respect, I am unable to agree with the learned counsel for
the third party. The Rules exist for a legal reason and litigants could
avoid technicalities if they too make use of the provisions under the
Rules to avail themselves. But where litigants chose to ignore the
Rules and do nothing to bring their case back on track, they do so at
their own peril. The Rules does not recognize apologies as a substitute
of compliance of mandatory provisions and neither do this court.

[30] In the final analysis, I find that the appeal before this court is
not competent based on the reasons discussed, I hereby uphold the
preliminary objections and strike out the appeal with RM2,000.00
cost.

Dated: 24 NOVEMBER 2017

(AHMAD SHAHRIR MOHD SALLEH)

Judicial Commissioner
High Court
Penang

COUNSEL:

For the appellant / third party - Alex Wong Tian Hong; M/s. Alex
Wong & Co.

For the 2 nd respondent/defendant - Caryn Shua Yee Hann; M/s.

Richard Tee & Chin

13
[2017] 1 LNS 1812 Legal Network Series

Case(s) referred to:

Tan Ting Kok v. Cheong Lep Keen & Anor [1969] 1 MLJ 153 FC

Gurbachan Singh v. Seagrott & Campbell [1962] 28 MLJ 370

Majlis Perbandaran Kangar v. Sonati Development Corp. Sdn. Bhd.

[2007] 1 MLJ 133 CA

Mat Sanusi bin Mohamad & Anor v. Jeevaratnam a/l Thevaraj [2016]
1 MLJU 805

MBf Cards Services Sdn Bhd v. Chew Ah Too @ Chew Hoe Kee
[2009] 1 MLJ 684

Bun Fui Min & Anor v. Seliang ak Tuah [2010] 9 MLJ 707

RNS Oil and Gas Sdn Bhd v. Norhayati binti Ahmad Kamal [2016]
MLJU 934

Ng Yit Seng & Anor v. Syarikat Jiwa Mentakab Sdn. Bhd. & Ors
[1981] 2 MLJ 194

Abdul Hamid Mohd Amin v. Ramacon Corporation Sdn Bhd [2016] 3

CLJ 111

Ahmad Sabri Abu Hassan v. Maybank Islamic Bhd [2016] 6 CLJ 871

Lee Guat Eng v. Tan Lian Kim [1985] 1 LNS 26

Scott & English (M) Sdn Bhd v. Leikie Refrigeration & Stainless Steel
Industries Sdn Bhd & Ors [1994] 3 CLJ 114

United Malayan Banking Corp Berhad v. Ernest Cheong Yong Yin

[2001] 1 MLJ 561

Jeow Fong Mei v. Chong Mee Yoke [1996] 1 MLJ 387 CA

14
[2017] 1 LNS 1812 Legal Network Series

Dato’ Valumalai V. Muthusamy v. Dato’ Dr. Tan Chin Woh [2010] 5

CLJ 758

Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al -
Haj v. Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4
CLJ 329 FC

Tong Lee Hwa & Anor. v. Malayan Banking Berhad [1978] 1 MLJ 257
FC

Legislation referred to:

Interpretation Acts 1948 and 1967, ss. 3, 54

Rules of Court 2012, O. 1A, O. 2 r. 1(1), 3, O. 3 r. 1 (1) and (2), 4, O.

16 r. 6, O. 18 r. 19(1)(b) and/or (d), O. 55 r. 4(8), 5(2)

Rules of the High Court 1980, O. 1A

15