Jeffrey Tan J:

This is an application by the applicant/plaintiff (applicant) for enlargement of time to lodge notice of appeal against the whole of the decision, of the Batu Pahat Sessions Court, dismissing its claim against the respondents/defendants.

The rules governing the lodgement of civil appeals from the Subordinate Courts to the High Court provide that the "notice of appeal shall be filed within 14 days from the date on which the decision was pronounced" (O. 49 r. 2(2) of the Subordinate Courts Rules 1980) and that an appeal shall be brought by filing a notice of appeal as aforesaid "and by serving a copy of the notice on every party to the proceedings" (O. 49 r. 6(2) of the SCR 1980). The decision of the Batu Pahat Sessions Court was pronounced on 10 April 2001. Therefore, the applicant should have filed its appeal on or before 24 April 2001, and not, as was the case, on 11 May 2001. However, all is not lost, as time for lodgement of an appeal may be enlarged, either by the court appealed from or by this court (see Civil and Criminal Appeals in Malaysiaby Tan Kee Heng at p. 27 para 1.4.5; see also Lee Lan v. Lim Yoon Loy & Ors[1991] 3 CLJ 2393; [1991] 1 CLJ (Rep) 251, where the then Supreme Court held that the proper forum to apply for extension of time, even though the High Court has that power under item 8 of the Schedule to the Courts of Judicature Act 1964 to enlarge time, is the court appealed from).

But "an extension of time to file petition of appeal or to amend such petition out of time an appeal has never been granted as a matter of course" (Jumari bin Mohamad v. PP[1982] 1 MLJ 282, 284 per Mohamed Azmi J, as he then was). Formerly, under s. 531 of the Federated Malay States Civil Procedure Code, "a judge of the Supreme Court may, if he considers that special circumstances render an extension just, give leave to appeal within such extended time ... as he may think fit". Without special circumstances, leave was refused (see Sara binti Haji Mat Hassan v. Mariam binti Saaid[1949] 15 MLJ 256, and Karupiah Pillay v. K.P. Mohamed[1950] 16 MLJ 118). And it was spelt out even way back then, in In re Brooke David Deceased, M, Sayers and Another v. D.B. Davids and 4 Ors[1937] 6 MLJ 231, per Terrell Ag. CJ, that "in order to get leave the applicant must show merits and must also explain the reasons for the delay".

Presently, "the grant of extension of time is (still) discretionary to be exercised by the judge in each particular case" (see Lee Lan v. Lim Yoon Loy & Ors (supra), per Harun Hashim SCJ; see also Lee Guat Eng v. Tan Lian Kim[1985] 2 MLJ 196, 197). But the factors to be considered (it being the general framework for exercising that discretion) are (a) the length of the delay, (b) the reasons for the delay, (c) the chances of the appeal succeeding, (d) the degree of prejudice to the would be respondent if the application is granted (those factors were so first outlined by Chan Sek Keong J (as he then was) in Hau Kee Wee & Anor v. Chua Kian Tong & Anor[1987] 2 MLJ 146 and followed by the Singapore Court of Appeal in Pearson v. Chen Chien Wen Edwin[1991] 3 MLJ 208, which in turn was followed by the Court of Appeal in Ling Siok Seng v. Ting Sieh Chung[1998] 4 CLJ 169).

Broadly speaking, "when an application is made to the court for extension of time, the application should be on grounds sufficient to persuade the court to show sympathy" (Pearson v. Chen Chien Wen Edwin (supra)at p. 212, per Yong Pung How CJ; followed by Vettath v. Vettath[1992] 1 SLR 1). "There must be some relevant evidential material made available before the court may exercise discretion" (Soh Keng Hian v. American International Assurance Co Ltd[1996] 2 CLJ 449, per Gopal Sri Ram JCA). "... in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion ... otherwise, a party in breach would have an unqualified right