Procedural non-compliance with service rules renders an appeal incompetent, emphasizing the necessity of adhering to mandatory requirements for the orderly conduct of justice.

Ahmad Shahrir Mohd Salleh J:

Introduction

[1] In this judgment, the parties are referred to as they were before the trial court. This was an appeal by the plaintiff against the decision of the learned Magistrate in dismissing her claim.

[2] The defendants raised a preliminary objection to strike out the appeal. The defendants argued that the plaintiff had failed to serve a physical copy of the record of appeal on the defendants within the prescribed time frame stipulated under O 55 r 4(8) of the Rules of court 2012. The defendants posited that this procedural non-compliance rendered the appeal defective and liable to be struck out.

[3] Upon a careful consideration of the arguments presented by both parties, I found merit in the defendants' preliminary objection and struck out the appeal.

Brief Background Of Facts

[4] The plaintiff commenced an action against the defendants for the sum of RM32,871.16 which represented the outstanding payment allegedly due for renovation works carried out at the defendants' premises. In response, the defendants filed a counterclaim in the total sum of RM43,075.00 for costs to be incurred for rectification works and for remedial works done.

[5] At the conclusion of a full trial on 28 August 2023, the learned Magistrate dismissed the plaintiff's claim with RM2,500.00 costs. Simultaneously, the learned Magistrate allowed the defendants' counterclaim in part in the sum of RM40,775.00 with RM5,000.00 costs. The plaintiff appealed against the decision.

[6] The plaintiff filed the notice of appeal on 14 September 2023. It was filed out of time by three days. Consequently, the plaintiff filed a notice of application (encl 3) seeking an extension of time to file the notice of appeal. On 27 May 2024, this court allowed the plaintiff's application.

[7] In accordance with O 55 r 4(1) of the Rules of court 2012, the plaintiff was required to file and serve the record of appeal, including the memorandum of appeal pursuant to paragraph (d), within 30 days from the date of the order. That was on or before 26 June 2024.

[8] On 26 June 2024, the plaintiff filed the record of appeal. However, the memorandum of appeal was not included. On the same day, the plaintiff's solicitors emailed a copy of the record of appeal to the defendants' solicitors. The email enclosed a covering letter dated 26 June 2024 which stated that the record of appeal was being served and requested acknowledgment of receipt by way of a signed duplicate of the said letter. Despite this, no physical copy of the record of appeal was served on the defendants.

[9] Subsequently, on 26 July 2024, the plaintiff filed the memorandum of appeal (encl 23) and an additional record of appeal (Enclosure 24). These documents were physically served on the defendants on 29 July 2024.

[10] On 14 August 2024, the defendants filed a letter to this court (encl 25) raising a preliminary objection premised on three grounds, namely:

(a)that the plaintiff filed the record of appeal without the memorandum of appeal,

(b)that the plaintiff failed to effect physical service of the record of appeal on the defendants as required under O 55 r 4(8) of the Rules of court 2012, and

(c) that the plaintiff had filed the memorandum of appeal and additional record of appeal on 26 July 2024 without first obtaining the court's leave to extend the time for such filing.

[11] In reply, the plaintiff filed a letter dated 14 August 2024 (Enclosure 26). The plaintiff contended,:

(a)that this court had directed the plaintiff to file the memorandum of appeal on or before 26 July 2024,

(b)that service of the record of appeal by email was valid and sufficient, particularly in light of the parties' prior course of conduct in communicating and accepting service of documents via email, and

(c) that the objection was without basis as there existed a mutual understanding between the parties that service would be effected by email.

[12] Following this, the defendants filed a further letter (Enclosure 27), also