Abu Mansor Ali JCA:

This is an appeal against the decision of this Court given on 30 September 1996 refusing the application of the appellant for extension of time to file and serve their memorandum and appeal record out of time.

The facts of this case are as follows. The appellant was respondent in the Court below (hereinafter called "the appellant") and the present respondents were applicants (hereinafter called "the applicants").

The applicants commenced an action against the appellant in Kuala Lumpur High Court in Notice of Motion No. D3-25-8-94 on 11 May 1994 praying for a declaration that the trade mark "Enkei" was solely owned by the applicants and that the Registrar of Trade Marks Malaysia do delete the registered trade mark "Enkei" No. 86/00087 which was registered in the name of the appellant. The notice of motion was first fixed for hearing on 5 October 1994 but the appellant applied for a postponement of this hearing.

On 5 October 1994, in the absence of the appellant or their solicitors, the Judge granted the applicants the order in terms of their application that trade mark "Enkei" was at all material time owned by the 1st applicant and that the trade mark registered No. 86/00087 in the name of the appellant be deleted. As a result, the appellant applied by motion praying inter alia, for an order that the Judge's order of 5 October 1994 be vacated and or stay be granted. The appellant's application was refused by the learned Judge on 25 March 1995 and the appellant now appeals to the Court of Appeal. The appellant filed their appeal on 11 April 1995.

It is an undisputed fact that at the date of the argument, the appellant had not filed their memorandum and record of appeal. Hence this application before us. The respondents strongly opposed this application.

Before us Raja Aziz Addruse and Philip Choong with him appeared for the appellant and Miss Ambiga Sreenevasan appeared for the respondents.

Before us Raja Aziz informed the Court that the appellant (Alloy Automotive) was initially represented by Darshan Singh & Co., Advocates and Solicitors. The appellant in appealing against the High Court's order of 5 October 1994 had not filed their memorandum of appeal and appeal record. He cited the reason for not having done so was the mistake of the solicitors. Raja Aziz asked the Court to scrutinise a few circumstances. He stressed that the conduct of the solicitors had caused his client great hardship. A search of the Court records was made and the appellant found so many things amiss and after a notice to show cause why this appeal should not be struck out was issued, it was revealed that the record of appeal had not been filed.

Raja Aziz sought to argue and cited Gatti v. Shoosmith [1939] 3 All ER 916 CA where the Court of Appeal in England held, where, owing to a misreading of the rule, the applicant therein was a few days too late in entering an appeal, there was nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal; whether the matter shall be so treated must depend on the facts of each case and in that case the discretion of the Court ought to be exercised, and leave to appeal was given. Counsel also sought to ask the Court to distinguish Chong Kueng Ying & Ors. V. Lovis Lavagna [1971] where the Court held the mistake of the legal adviser was not sufficient ground for granting leave. He sought to point out the leave being applied therein was for special leave and did not apply to his situation as his application was just for leave.

Miss Ambiga for the respondents contended that there was no inadvertence by the solicitors as stated by the appellant's Counsel. In respect of this delay, it was clear from paras. 2, 3 and 4 of Mr. Darshan Singh's affidavit affirmed on 25 September 1996 (Darshan's affidavit) that he was blaming his client for not having given him the required instruction to proceed with the appeal. She added that, on the contrary, it