Gopal Sri Ram JCA:

[1] Two motions came before us. One of them (encl. 11A) was by the appellant. I will refer to it as the appellant's application. In this application the appellant sought to obtain an order to validate the notice of appeal it had filed on 15 June 2006 or alternatively for an extension of time to file a notice of appeal. The other motion was by the respondent (encl. 7A). I will refer to it as the respondent's application. It sought to strike out the appeal. The facts relevant to these applications are as follows.

[2] The parties to this litigation entered into a contract. The appellant terminated that contract. The respondent brought an action for breach of contract. There was a trial. The judge who tried the case found for the respondent. He ordered damages to be assessed. His decision was handed down on 4 February 2005. The appellant then filed its notice of appeal on 17 February 2005. But it never served it on the respondent. Later, on 26 April 2005 it sent a notice of withdrawal of the same date to the respondent's solicitors for their signature. The respondent's solicitors signed it and returned it to the appellant's solicitors. The notice of withdrawal was filed and the appeal discontinued. The assessment of damages proceeded before the registrar of the High Court at Kangar. After the assessment was completed the appellant did not appeal against the decision of the registrar to the judge in chambers. Instead it appealed directly to this court by way of its notice of appeal dated 15 June 2006. On 14 June 2006 the respondent filed its application to strike out the appeal. It was not until 25 July 2006 that the appellant filed its application.

[3] The main thrust of the appellant's case was that it had withdrawn its earlier appeal acting on the advice of its former solicitor. However no evidence from the former solicitor was filed to confirm that this was indeed the case. In the absence of such evidence the respondent is really at sea because it is unable to meet the mere allegation by the appellant that such advice was given. Further, as pointed out by learned counsel for the respondent, this allegation is not credible as the real reason for the withdrawal appears to be that the notice of appeal in the earlier appeal was never served on the respondent's solicitors. So there was no appeal properly brought by the appellant in the first place.

[4] According to the authorities as they stand today, an appeal is only properly brought within the meaning of the rules of court when the notice of appeal is both filed and served on the respondent. Service on the respondent must be effected within the period limited for filing the appeal, that is to say, within 30 days of the decision of the High Court.

[5] The starting point is Gurbachan Singh v. Seagrott & Campbell (No 2); [1962] MLJ 370. In that case, Suffian J gave his judgment on 3 April 1962. The appellant filed his notice of appeal on 1 or 2 May 1962. He served the notice of appeal on the respondent on 9 May 1962. The relevant rule of court was O. 58 of the Rules of the Supreme Court 1957. Let me set out the relevant provisions of that rule of court.

First, r. 1A(1) which reads:

Appeals to the Court of Appeal shall be by way of re-hearing and shall be brought by giving notice of appeal.

Next, r. 2:

Notice of appeal shall be served on all parties directly affected by the appeal ... at the time of filing the notice of appeal.

Then, r. 15:

No appeal shall, except by special leave of the full Court of Appeal, be brought after the expiration of one month _.

[6] Let me pause to say that r. 1A(1) of RSC 1957 is in pari materia with the present r. 5(1) of the Rules of the Court of Appeal 1994; that r. 2 of the former is similar to r. 6 of the latter save that r. 6 uses the expression "within the time limited for the filing of the notice of appeal" and not "at the time of filing the notice of appeal"; and lastly that r. 15 of the former is similar to r. 12 of t