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2022 MarsdenLR 2320
HIGH COURT MALAYA JOHOR BAHRU
FINJAYA SDN BHD – Appellant
Versus
TANG TWANG LOI & ORS (ENCL 11) – Respondent
[Civil Appeal No: JA-12ANCvC-13-02/2021]
Procedural technicalities should not obstruct substantive justice, allowing fresh evidence when relevant and credible.
Headnote:(A) Civil Procedure – Appellate Procedure – Application to adduce fresh evidence – Order 55 r 7 of the Rules – Delay in filing application not causing prejudice – Typographical errors in cause papers curable – Relevant fresh evidence presented that could influence the outcome of the case – Application to intervene allowed with costs. (Paras 8-30)
Facts of the case: The Plaintiffs filed a suit for breach of a sale and purchase agreement, leading to garnishee proceedings against the Defendants. The Proposed Intervener sought to intervene, contesting the garnishment of funds held in trust.
Findings of Court: The delays were perceived as technical, and the Proposed Intervener was allowed to provide fresh evidence due to its potential influence on the case.
Issues: Whether there was inordinate delay in filing the application and whether the fresh evidence could have influenced the appeal.
Ratio Decidendi: The court emphasized that procedural technicalities should not obstruct substantive justice, allowing the application based on the relevance and credibility of the fresh evidence.
Result: Application allowed with costs.
JUDGMENT
Introduction
[1] This was an application by the Appellant ("the Proposed Intervener) in encl 11 to adduce fresh evidence in the hearing of the appeal ("the Appeal") in the High Court. For ease of reference, the Appellant was referred to as the Proposed Intervener, the First and Second Respondents as the Plaintiffs, whilst the Third and Fourth Respondents as the First and Second Defendants, and the Fifth Respondent as the Garnishee.
The Factual Background
[2] The Plaintiffs, as individual purchasers filed a civil suit in the Sessions Court against the First and Second Defendants, as the developer and proprietor of the land respectively, for breach of a sale and purchase agreement, entered into between the parties.
[3] Summary judgment was entered against the First and Second Defendants on 23 September 2020. The Plaintiffs, as judgment creditors, proceeded to execute the judgment and initiated garnishee proceedings against the First and Second Defendants, as judgment debtors.
[4] The Proposed Intervener filed an application to intervene in the garnishee proceedings at the Sessions Court, based on the averment that the monies in two Malayan Banking accounts, namely 501123641438 ("Account 1438") and 501123637686 ("Account 7686") were being garnished by the Plaintiffs, and that the monies in Account 7686 should not have been garnished as it was held in trust by the First Defendant for the Proposed Intervener, and would, therefore, affect the latter's rights.
[5] The application to intervene was dismissed by the learned SCJ on 9 February 2021. As a result thereof, the Proposed Intervener filed its notice of appeal on 23 February 2021.
[6] Subsequently, on 19 May 2021, the Proposed Intervener filed this Application ("this Application") to introduce fresh evidence at the Appeal, namely, letters from the solicitors for the Garnishee, the First and Second Defendants, as well as the Proposed Intervener, dated 17, 19 and 21 February 2021 respectively.
[7] This Application, which was resisted by the Plaintiffs, was allowed for the following reasons.
Contentions, Evaluation, And Findings
Whether There Was Inordinate Delay In Filing This Application
[8] At the outset, the Plaintiffs contended that there was delay by the Proposed Intervener in filing this Application.
[9] I am mindful that, as a general rule, Courts should not tolerate indolence on the part of the litigant. This was emphasised in several cases including Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd , , and Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd ; [1996] 1 CLJ 241; [1996] 1 AMR 215.
[10] In the present case, it was obvious that the delay in filing this Application was not resisted to on the basis of prejudice. Whilst this did not mean that tardiness was condoned by this Court, based on the case of High Century Sdn Bhd v. Liew Foot and Sons Construction Sdn Bhd , , the delay in this case, if any, was a mere technical non-compliance which should not stand in the way of justice and fairness.
[11] In any event, in the present case, the Proposed Intervener had explained that any delay, if at all, was due to the time required to verify the contents of the fresh evidence that it had sought to introduce. In my view, the Proposed Intervener had provided an explanation which was not unreasonable, and bearing in mind that the appeal date had not been fixed at the time this Application was filed, I did not see how it could have prejudiced the Plaintiffs. Furthermore, I was unable to agree with the Plaintiffs that the delay was deliberate as it was highly improbable that the Proposed Intervener would delay its very own appeal.
[12] In fact, the delay was on the part of the Plaintiffs in filing their affidavit in reply to the affidavit in support of this Application. Timelines were provided to both the Proposed Intervener and Plaintiffs with regard to filing their affidavits in support and affidavit in reply. The Plaintiffs were supposed to file their
