Rulings that do not finally dispose of rights are non-appealable under the Courts of Judicature Act.

[1] This appeal by the first and second respondents arose out of my ruling to allow the appeal by the appellant (the proposed intervenor in the court below) to intervene in the proceedings in the Sessions court (case no JA-12A-25-07/2021) and to apply to set aside the judgment in default which was obtained against the third respondent (case no JA-12A-26-07/2021). The appellant was the insurer for the third respondent. In my considered view taken under advisement, the ruling I made is not a decision which finally disposes the rights of the parties herein and ergo not appealable. My reasons are as follows.

The Law

[2] In the Courts Of Judicature Act 1964 (Act 91) it is stated:

Section 3 :

"decision" means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties;

Non-appealable matters

68. (1) No appeal shall be brought to the court of Appeal in any of the following cases:

(a) when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit, except with the leave of the court of Appeal;

(b) where the judgment or order is made by consent of parties;

(c) where the judgment or order relates to costs only which by law are left to the discretion of the court, except with the leave of the court of Appeal;

(d) where, by any written law for the time being in force, the judgment or order of the High court is expressly declared to be final;

(e) where a High court dismissed any application for a summary judgment;

(f) where a High court dismissed any application to strike out any writ or pleading; and

(g) where a High court allowed any application to set aside a judgment in default.

[3] Paragraphs (e), (f) & (g) of the above section were inserted very recently videAct A1661 which was given the royal assent on 31 August 2022 and published in the gazette on 5 September 2022. The date of coming into operation of the amendment was 1 October 2022. The appeal in this case was lodged on the 16 December 2022 which was after the coming into operation of the amendments to the Courts of Judicature Act 1964 .

[4] In this case, I only allowed the proposed intervenor to intervene and apply to set aside the judgment in default which was obtained against the third respondent. To my mind, when the law doesn't allow an appeal against a setting aside of a judgment in default, a fortiori the same should pertain to a ruling allowing a party to apply to set aside a judgment in default. To hold otherwise would render the recent amendments to the Courts of Judicature Act 1964 otiose as it is a sine qua non or prerequisite to setting aside a judgment in default that an application has to be made.

[5] Furthermore my ruling is not a decision which finally disposes of the rights of the parties. The proposed intervenor will still have to convince the Sessions court to set aside the judgment in default and if he succeeds, then have the matter heard on the merits.

[6] The Malaysian Civil Procedure (White Book) 2018 edition states:

""decision"-The definition must be given its ordinary and natural meaning: Dato' Seri Anwar bin Ibrahim v. PP , [2011] 5 MLJ 535 at 28, CA, per Abdul Malik Ishak JCA. The definition was applied in an action under s 226(3) of the Companies Act 1965 to determine whether leave of the winding-up court is mandatory (Mechanalysis Sdn Bhd (In Liquidation) v. Appraisal Property Management Sdn Bhd; [2016] 11 MLJ 566; [2016] 8 CLJ 81, HC).

A decision must have the effect of finally disposing of the rights of the parties: Dato' Seri Anwar Ibrahim v. PP, [1999] 1 MLJ 321 at 326; [1999]