Compliance with court procedures is mandatory and non-compliance may lead to the dismissal of an appeal.

[1] The present application before me by way of encl 7 deals with the Respondent/Defendant's application to strike out the Appellant's Notice of Appeal dated 20 November 2017.

[2] On 20 November 2017, the Appellant had filed an appeal, against the decision after full trial made by Session Court Judge, Puan Nurul Husna Binti Awang on 17 November 2017 whereby the trial Judge had dismissed the Appellant/Plaintiff's claim for the sum of RM205,000.00 against the Respondent/Defendant with scale cost for the sum of RM1,925.00 to be paid by the Appellant/Plaintiff to the Respondent/Defendant.

Background Of The Application

[3] The Appellant on 6 December 2017, filed the Record of Appeal together with the Memorandum of Appeal and personally served both documents to the Respondent on 8 December 2017.

[4] The Respondent sent a letter to the Appellant on 13 December 2017 stating that the Appellant has failed and/or neglected to give a draft index of the Record of Appeal to be approved by the Respondent's solicitor within 48 hours and that the Appellant's solicitor has failed to include the relevant documents referred during the full trial on 10 October 2017 in the same Record of Appeal.

[5] On 12 January 2018, the Appellant filed one Rekod Rayuan Tambahan which includes Ikatan Dokumen Bersama, Ikatan Dokumen Bersama Tambahan and Ikatan Dokumen Plaintif in the Records of Appeal and was served to Respondent on 17 January 2018 by courier.

[6] On 18 January 2018, the Respondent served on the Appellant the notice of application to strike out the Appellant's Notice of Appeal based on O 55 r 4(1)(h) Rules of 2012 together with a supporting affidavit dated 12 January 2018 via personal service.

Respondent's Brief Submission

[7] Failure to give draft index of the Record of Appeal to the Respondent solicitors in accordance with O 55 r 4(4) of the Rules of 2012 is a fundamental defect. Despite the letter sent by the Respondent solicitors informing that the Record of Appeal could not be considered as the agreed Record of Appeal between parties, the Appellant solicitors insist to use the Record of Appeal and did not take any steps to cure the irregularities of the said Record of Appeal and instead ignored the mistakes done. Therefore, the Appellant had failed to comply with the mandatory requirement as stated according to O 55 r 4(4) of the Rules of 2012 when the word "shall" has been used.

[8] In addition to that, the Respondent also submitted that the Appellant failed to include relevant documents that parties referred during the full trial on 10 October 2017 as stated in O 55 r 4(1)(h) Rules of 2012.

[9] The negligent act of the Appellant solicitor for not complying with the mandatory provision could not be remedied by way of any provisions referring Rules of 2012.

[10] Failure of the Appellant solicitor to include relevant documents that parties referred to during full trial on 10 October 2017 was not an accidental omission or oversight by them as it was intentionally disregarded despite reminders given by the Respondent solicitors.

Appellant's Brief Submission

[11] The Appellant's failure to serve the draft index of the Records of Appeal is not fatal and is therefore curable by O 2 r 1 Rules of 2012.

[12] There is no prejudice at all to the Respondent as all the documents requested by the Respondent has been filed by the Appellant before the Respondent filed this application.

[13] Further, Additional Records of Appeal which includes all the documents requested by the Respondent was filed before the date of appeal is fixed by the Court, hence there is no prejudice as the proceeding is not even started. Therefore, it should not nullify the whole proceeding by virtue of O 2 r 1 (1) Rules of 2012.

[14] This applica