The court upheld that strict adherence to procedural timelines is crucial, and failure to provide a valid reason for delays undermines an application for extension of time.

Evrol Mariette Peters J:

Introduction

[1] This was the Appellant's application in encl 4 ("this Application") for an extension of time to file the Record of Appeal. For ease of reference, the Appellant and Respondent will be referred to as First Defendant and Plaintiff respectively.

The Factual Background

[2] The Plaintiff filed a claim at the Sessions Court against the First Defendant, and the Housing Controller, who was the Second Defendant for, amongst others, a declaration that the Letter of Approval issued by the Second Defendant to extend the completion time of a housing development project ("the Project") from 36 months to 48 months, was null and void; and for the First Defendant to pay to the Plaintiff liquidated ascertained damages ("LAD") in the amount of MYR286,088.70 for late delivery of vacant possession of the Plaintiff's unit and late completion of the common facilities.

[3] Upon application by the Plaintiff under O 14A and/or O 33 of the Rules of 2012 ("Rules of ") to dispose of the matter on points of law, the learned Sessions Court Judge ("SCJ") had decided in her favour. Dissatisfied, the First Defendant appealed vide Notice of Appeal dated 18 October 2021. Upon receiving the Notice of Appeal, the Court gave its direction at the case management dated 21 October 2021, for the Record of Appeal to be filed by the First Defendant.

[4] Pursuant to O 55 r 5(3) of the Rules of , the First Defendant was required to file and serve the Record of Appeal within one month from the date of filing of the Notice of Appeal, which would have been on 18 November 2021. The provision reads:

Order 55 - Appeals to high from subordinate courts

...

Rule 5 - Notice of Appeal against any decision other than a decision made after trial

(1) An appeal from any decision other than a decision made after trial by the Subordinate Court shall lie to a Judge in Chambers of the High Court.

(2) The appeal under this rule shall be brought by filing a notice of appeal in Form 111A in the Registry of the relevant Subordinate Court, with a copy extended to the Registry of the High Court within fourteen days from the date on which the decision was pronounced and shall within the time limited for the filing of the appeal serve a duplicate copy of the notice on every other party to the proceedings.

(3) Within one month after the filing of the notice of appeal under this rule, the appellant shall file the record of appeal in the High Court and serve each respondent with a copy of such record of appeal, and the record shall contain copies of-

(a) the application for the decision;

(b) all pleadings filed;

(c) all affidavits filed in support of or in opposition to the application; and

(d) the order or draft order of the decision appealed from:

Provided that the record of appeal shall not include the notes of evidence, the grounds of judgment or any memorandum of appeal.

[Emphasis Added]

[5] The First Defendant, however, failed to do so, and filed this Application on 9 December 2021, which was dismissed for the following reasons.

Contentions, Evaluation, And Findings

[6] At the outset it was crucial to bear in mind that the burden was on the First Defendant to satisfy the Court why this Application should be allowed. Although there is a plethora of cases on how a Court should deal with the issue of delay, an apt point to start would be the Privy Council case of Ratnam v. Cumarasamy , 1964 MarsdenLR 476 , where the guidelines pertaining to applications for extension of time, were distilled as follows:

[6] The Rules of Court must prima facie be obeyed, and in order to justify a Court in extending the time during which some step in procedure requires to be taken there must be some material upon which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.

[Emphasis Added]