James Foong J:

This is an application (enclosure 51) by the plaintiff for inter alia the following orders:

(a)that the plaintiff's be granted enlargement of time to file notice of appeal against the decision of the Senior Assistant Registrar granted against the plaintiffs' on 30 June 1992 and/ or, (b)that the notice of appeal dated 8 July 1992 filed by the plaintiff against the said SAR's decision be treated as filed within time.

The facts of this case are as follows. On 30 June 1992, the Senior Assistant Registrar dismissed the plaintiff's application to enter final judgment against the defendants. The dismissal was apparently on a preliminary issue taken by the defendants. The plaintiff's solicitor then filed a notice of appeal to the Judge on 8 July 1992. Under O. 56 r. 1(3) of the High Court Rules, the time limit to file this appeal must be within 5 days from date of the SAR's decision. By filing the notice of appeal on 8 July 1992, the plaintiff were 2 days out of time. This situation remain as it was for almost 1 1/2 years until the plaintiff's new solicitors realised that an application should be made for enlargement of time since the notice of appeal was filed out of time. To remedy this situation, they are now making this application.

The main reason given by the plaintiff for the delay in filing the notice of appeal is that they required instructions to appeal from their head office in Sarawak. By the time this instruction for appeal came through, they were 2 days late in filing the notice of appeal. Further, the plaintiff's seem to blame their previous solicitors for not making this application for enlargement of time as soon as possible. Nevertheless, the plaintiff's Counsel argued that no where in the High Court Rules, is there a time frame set for making this application.

The plaintiff's Counsel also submitted that under O. 3 r. 5(1) of the High Court Rules, this Court may order extension or abridgement time.

After hearing submissions by both Counsel and after considering the facts of this case and the authorities as tendered by both parties, I dismissed the plaintiff's application.

The principles to be applied for the consideration of whether to grant or refuse an application of this nature are as follows:

(1)the length of the delay; (2)the reasons for the delay; (3)the chances of the appeal succeeding if time for appeal is extended; (4)the degree of prejudice to the respondent if the application is granted. (See the case of Development & Commercial Bank Bhd. v. Tan Ong Hwa [1992] 2 MLJ 764).

However in this case, 2 stages are involved. The first being the plaintiff filing the notice of appeal 2 days out of time and the second, involves the plaintiff making this application for enlargement of time about 1 1/2 years later. For the latter, as submitted by plaintiff's Counsel there is no time limit.

In the case of Development & Commercial Bank Bhd. v. Tan Ong Hwa when the notice of appeal was filed out of time, it was rejected by the Court officials. This lead the applicant in that case to file 1 an application for enlargement of time about 2 / months later. In 2 this present case, there was no rejection of the notice of appeal filed out of time. Presumably, the plaintiff only became aware of the necessity to make an application for enlargement of time when the new solicitors took over this matter much later.

When a Court of law considers such an application of this nature the facts and circumstances relating to both the delay in filing the notice of appeal and the application for enlargement of time must taken into account and the principles as stated in the D & C

Bank case should be considered equally in both situations and as a whole. This would mean that this Court should also consider the length and reason for the delay in filing the application for enlargement of time in this case and, whether this lateness in application would prejudice the respondent.

Though no time limit is specified i