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2024 MarsdenLR 1207
HIGH COURT MALAYA GEORGETOWN
TECHWARE ENTERPRISE SDN BHD – Appellant
Versus
TAN YANG TEE – Respondent
[Civil Appeal No: PA-12ANCVC-25-06/2023]
A party's failure to comply with procedural deadlines can result in the dismissal of an appeal, especially when no cogent reasons for the delay are provided.
Headnote:(A) Rules of Court - Order 14 and Order 55 - Liquidated ascertained damages for late possession of property - Defendant failed to file Notice of Appeal within prescribed time and sought extension of time - Court found no cogent reasons for delay and dismissed application for extension - Appeal struck out as incompetent. (Paras 51, 50, 52)
(B) Extension of Time - Principles for granting extension considered - Delay excessive and unjustifiable, with no cogent reasons presented by Defendant - Prejudice to Plaintiff outweighs any alleged prejudice to Defendant. (Paras 34, 50)
Facts of the case:
Plaintiff purchased property from Defendant and claimed liquidated damages for late delivery of possession. Defendant failed to appeal within the mandated period after a summary judgment was granted in favor of Plaintiff.
Findings of Court:
The Court found that Defendant's failure to comply with the time limit for filing an appeal was not a mere technicality but a fatal omission, resulting in an incompetent appeal.
Issues: The main issues were whether the Defendant should be granted an extension of time to file their Notice of Appeal and whether the summary judgment should be affirmed.
Ratio Decidendi: The Court ruled that the Defendant's excuses for the delay were insufficient and emphasized the importance of adhering to procedural rules to ensure justice.
Result: Application for extension of time dismissed; appeal struck out.
JUDGMENT
(Extension Of Time To File Notice Of Appeal Out Of Time)
Prelusion
[1] The Plaintiff (P) is a purchaser. The Defendant (D) is a developer. P purchased a property in D's project.
[2] In the Sessions Court , P sued D for liquidated ascertained damages (LAD) for delivering vacant possession of the property late. P applied for summary judgment under O 14 of the Rules Of 2012 (Rules of ). The Sessions Court granted summary judgment in P's favour.
[3] D did not file and serve their Notice Of Appeal within the prescribed time mandated by the Rules of Court . D eventually filed their Notice Of Appeal 42 days late (out of time). The Notice Of Appeal is encl 1.
[4] In this appeal proceeding, D also filed an application for an extension of time (EOT) to file their Notice Of Appeal. This application is Enclosure 4.
[5] Should encl 4 be allowed? In other words, should D be given the EOT to file their Notice Of Appeal out of time?
[6] Also, should encl 1 be allowed ie should the Sessions Court 's summary judgment against D be affirmed?
Preliminaries
[7] This Grounds Of Judgment is for both encl 4 and Enclosure 1.
Plaintiff's Claim In The Sessions Court
[8] P purchased a property in D's property development project called "The Retreat". P paid the deposit and entered into a sale and purchase agreement with D (SPA). D issued a receipt for the deposit payment.
[9] Under the SPA, D was obligated to deliver vacant possession of the property in 36 months. If D failed to do so, D was to pay P LAD, calculated according to a prescribed formula.
[10] D was also obligated to complete the common facilities in 36 months. If D failed to do so, D was to pay P LAD computed according to another prescribed formula.
[11] P asserted that D was late to deliver vacant possession of the property and late to complete the common facilities by a certain number of days. P prays for the respective LAD amounts, with interest and costs.
Pertinent Proceedings In The Sessions Court
[12] P applied to enter Judgment summarily against D under O 14 of the Rules of (P's SJ Application).
[13] At the P's SJ Application case management (CM) on 16 January 2023 before the Sessions Court , D was given an extension of time (EOT) to file and serve an affidavit in reply (AIR) by 23 January 2023. But despite the EOT given, D filed their AIR on 25 January 2023 and served their AIR on P on 27 January 2023 — both dates were after the Court -directed deadline: 23 January 2023. Thus began D's failure to comply with deadlines — deadlines given by the Court as well as deadlines mandated by the Rules of Court .
[14] At the CM on 13 February 2023, which D's solicitors attended, the Sessions Court gave directions for written submissions and submissions in reply to be filed respectively by the parties, and fixed P's SJ Application for hearing on 13 April 2023.
[15] D filed their written submissions and submission in reply, but did not attend P's SJ Application hearing on 13 April 2023. The Sessions Court heard P's SJ Application and ordered that Judgment be entered summarily against D. The Sessions Court 's Order dated 13 April 2023 states that the Sessions Court , after reading all the affidavits filed in the proceeding, and after reading all the written submissions filed by the parties, and after hearing P's solicitors (and recording that D's solicitors were absent) — ordered a Judgment to be entered against D under O 14 of the Rules of .
Pertinent Chronology Showing Defendant'S Further Non-Compliance With Deadlines
[16] I set out here the pertinent chronology that shows D's further non-compliance with deadlines:
(1) 13 April 2023 — The Sessions Court 's Order and Judgment under O 14
(2) 27 April 2023 — D's deadline (last day) to file and serve a Notice Of Appeal against the Sessions Court 's Order and Judgment (under O 55 r 5(2) of the Rules of : 14 days from the date of the decision appealed against)
(3) 8 June 2023 — D filed a Notice Of Appeal: Enclosure 1, which wa
