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2021 MarsdenLR 1756
HIGH COURT MALAYA SHAH ALAM
CHIA WAI CHEONG – Appellant
Versus
KOH MING KWANG – Respondent
[Civil Appeal No: BA-11A-6-02-2020]
The court may grant extension of time for filing appeal documents, prioritizing substantive justice over procedural technicalities.
Headnote:(A) Rules of Court 2012 – Order 1A – Application for extension of time – The discretion to extend time is within the court's prerogative, considering justice and compliance with procedural rules – Court allows extension of time to file Notice of Appeal and Appeal Records given the exceptional circumstances and competing interests noted. (Paras 23-41)
Facts of the case: The appellant/defendant sought an extension for filing appeal records after the default judgment was issued against him in the 2nd Suit No 103, following a prior suit that was struck out.
Findings of Court: The court found merit in the defendant's application due to the peculiar circumstances and dismissed technical delays in favor of substantive justice.
Issues: The legitimacy of the default judgment and the fairness of the proceedings considering the history between the parties were central to the court's determination.
Ratio Decidendi: The court emphasized that procedural non-compliance should not overshadow fundamental justice and allowed the appeal based on balancing justice over strict procedural adherence.
Result: Application for extension of time granted.
Introduction
[1] It is doubtful whether this court's decision dated 10 December 2020 (which granted extension of time for the appellant/defendant to file his Appeal and records so as to regularize his late Notice of Appeal filing of the same) is appealable in view of the Federal court's decisions in the cases of Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Malaysia & Anor, [2020] 2 MLJ 1, Kempadang Bersatu Sdn Bhd v. Perkayuan Oks No 2 Sdn Bhd; [2019] 4 MLJ 614; [2019] 4 CLJ 131 and the court of Appeal's judgments in Datuk Seri Ting King Sing v. Datuk Seri Ong Tee Keat; [2014] 6 AMR 179 (dismissal of discovery application) and Syarikat Tingan Lumber Sdn Bhd v. Takang Timber Sdn Bhd; [2003] 2 MLJ 495; [2003] 2 CLJ 177; [2003] 3 AMR 13 (ruling on inadmissibility of evidence).
[2] The respondent/plaintiff and the appellant/defendant have been and still are, next door neighbours at all material times.
[3] The defendant constructed a wall along the boundary between the defendant's house and the plaintiff's house.
[4] The plaintiff has complained that the wall was higher than 5 feet permitted by the local authority and was not built with holes: paragraph 2 of Plaintiff's Statement of Claim.
[5] The plaintiff alleged that when the defendant was constructing the renovation works including the boundary wall, the workers trespassed into the plaintiff's land and some concrete was left on the floor within the plaintiff's land area: paras 5, 6, 8 of Plaintiff's Statement of Claim.
[6] The plaintiff alleged that the defendant left the wall in "very dangerous condition ie with steelbars protruding like nails which injured the plaintiff's: para 3 of Plaintiff's Statement of Claim.
[7] According to the plaintiff, the pillars at the rear of wall and protruding steel bars of the wall encroach onto the plaintiff's land area: paras 7 and 9 Statement of Claim.
[8] On or about 26 January 2018 the plaintiff filed Magistrate court Suit No BA-A77-26-01 12018 ("Previous Suit No 26") in the small claims court against the defendant, claiming for alleged damages in connection with the fencing wall: para 1 of the Defendant's Defence and Counterclaim.
[9] The defendant filed his Defence and Counterclaim in the Previous Suit No 26.
[10] The plaintiff's Previous Suit No 26 was struck out by the court: para 1 of the Defendant's Defence and Counterclaim.
[11] Subsequently, the plaintiff on or about 19 July 2019 filed the second suit via Magistrate court, Suit No BA-A72-103-07/2018 ("the 2nd Suit No 103") against the defendant.
[12] In the Statement of Claim in the 2nd Suit No 103, the plaintiff claims for (a) Damages of RM100,000.00 (or such amount as the court may award), costs, general and special damages, exemplary damages, and other ancillary reliefs.
[13] The plaintiff asserted that the Writ and Statement of Claim were served on the defendant by registered post and on 23 August 2019 the plaintiff obtained judgment in default of appearance against the defendant.
[14] On 24 September 2019 the defendant filed his application to set aside the default judgment, contending that the Writ was not received by the defendant and alternatively that the defendant has bona fide defence and counterclaim on merits.
[15] In the 2nd Suit No 103 the defendant also filed his Defence and Counterclaim dated 6 September 2019: pp 18-19 of Appeal Records.
[16] In the Defence & Counterclaim in the 2nd Suit No 103, the Defendant pleaded inter alia that:
(1) The plaintiff's Suit No 26 was struck out by the court: paragraph 1;
(2) In early 2017, there was a chain-link-fencing erected by the plaintiff which encroached into the defendant's land but the plaintiff refused to shift it despite having been notified by the defendant: para 2;
(3) On 21 March 2017 the defendant lodged a police report to avoid quarrel when the defendant's contractor had to carry out the works: para 3;
(4) Being unhappy with it, the plaintiff filed a small claims action in the Previous Suit No 26
