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2021 MarsdenLR 1742
COURT OF APPEAL PUTRAJAYA
HING NYIT ENTERPRISE SDN BHD – Appellant
Versus
BINA PURI CONSTRUCTION SDN BHD – Respondent
[Civil Appeal No: 08-479-12/2019]
The Court dismissed the application for extension of time to appeal due to a significant delay without valid justification, emphasizing the discretionary nature of such extensions and the need for sufficient grounds.
Headnote:(A) Rules of Appeal 1994 – Extension of time for filing a notice of appeal – Motion dismissed due to inordinate delay of approximately 3 years – The Applicant's reasoning for delay, primarily due to the pursuit of an Impeachment Suit, was not accepted by the Court – The Court found no valid justification for the delay and noted the Applicant's election not to appeal against the 2014 Judgment, leading to estoppel. (Paras 15-20)
(B) Legal principles on granting extension of time – The power to extend time is discretionary and not granted as a matter of course; relevant factors include length and reasons for delay, chances of appeal success, and prejudice to the respondent. (Paras 13-14)
(C) The Respondent’s contention that it would suffer prejudice if the Motion were granted was found to hold merit due to the interminable litigation faced. (Para 25)
Findings of Court: The Court determined that the Applicant failed to provide valid reasons for the substantial delay in filing the Motion and deemed the actions an abuse of process.
Issues: The main issues involved the justification for the delay in filing the appeal and whether the proposed appeal had any merit.
Ratio Decidendi: The court emphasized that allowing applications for extensions to devolve into disputes about the merits of the substantive appeal is counterproductive and discouraged such arguments during extension considerations.
Result: Motion dismissed with costs awarded to the Respondent.
JUDGMENT
[1] This Notice of Motion ("the Motion") is filed by the Applicant for the following orders:
(1) That the Applicant be granted an extension of time from the due date of 18 May 2017 to file and serve on the Respondent, the Notice of Appeal to the Court of Appeal against the High Court Order dated 19 April 2017.
(2) That the Applicant do file and serve the Notice of Appeal within fourteen (14) days after the grant of this Order.
(3) That the Applicant do file and serve the record of appeal within 90 days after the filing and service of the Notice of Appeal.
(4) The costs of this application be costs in the cause; and
(5) Such further and/or other relief as this Court deems fit and proper to grant.
[2] We heard the Motion and after due deliberation and having carefully considered the submissions of both parties, we found that there are no merits in the Motion and unanimously dismissed the Motion with costs. We propose to give reasons for our decision with respect to the Motion.
Salient Facts
[3] The Respondent was the main contractor for the project known as "The Proposed Tourist Recreational and Commercial Development (Phase II-KK Times Square) on TL01753305 Along Coastal highway at Sembulan, Kota Kinabalu, Sabah". The Applicant was engaged as one of the sub-contractors by the Respondent for sub contract work known as "R.C Structural Work to Shopping Mall, Shops and elevated Car Park, Part of the Basement Work' ("the said sub contract") for the contract sum of approximately RM60 million.
[4] On 1 August 2014, the Applicant filed a claim against the Respondent for a mandatory injunction to compel the Respondent to deliver the scaffoldings owned by the Applicant or the sum of RM782,521.13. On 24 September 2014, the Applicant filed an application for summary judgment to claim for the value of the said Scaffoldings and the same was granted on 5 March 2015 for the sum of RM782,521.13. The Respondent returned some scaffoldings to the Applicant and the remaining balance was paid by way of cash in the sum of RM216,761.19 on 2 April 2015.
[5] On 3 November 2014, the Respondent filed their Defence and Counterclaim ("the said Counterclaim") against the Applicant for the overpayment for the alleged overpaid sum of RM13,544,690.45 ("the said Overpayment") in the draft final accounts.
[6] On 19 April 2017, the said Counterclaim for the sum of RM8,637,695.31 was allowed after a full trial ("the said 2014 Judgment") based on the Court Expert ("the said Expert") jointly appointed by the parties pursuant to an agreement ("the said Agreement") between the parties. The Applicant did not appeal against this judgment.
[7] On 19 May 2017, the Applicant filed High Court Suit No BKI-22NCVC-60/5-2017 ("the Impeachment Suit") to impeach and set aside the said 2014 Judgment against the Respondent and 5 others on grounds of fraud and conspiracy to defraud on the following grounds:
(1) That there is serious fraud and/or conspiracy to defraud practiced by the Respondent and their counsel jointly and severally in concealing the said Agreement for an appointment of the said Expert. The parties had agreed on the scope and duty of the said Expert in the use of the agreed revised plan to conduct valuation of the final work done;
(2) That the said Expert had proceeded to re-measure the work done using the Bentley computer software only and disregarded the said Valuation of works in the said Agreement;
(3) That the said Expert had excluded from the said Valuation, the actual work done in the drawings attached to the 149 Request for Inspection Forms (RFI) and those based on sketches only; and
(4) That the said Expert was not an independent expert but is in fact a consultant previously engaged by the Respondent and that this fact was not revealed to the Applicant.
[8] On 3 July 2017, the Respondent and others filed applications to strike out the said Impeachment Suit. On 25 September 2017, the Respondent's application to strike out the said Impeachment Suit
