Mokhtar Sidin JCA:

In respect of Appeal No. W-04-60-96 the appellant is Ahmed bin Abdul Rahman while the respondents are SPK-Sentosa Corporation Berhad and Mahkamah Perusahaan Malaysia. In respect of Appeal No. W-04-59-96 the appellant is SPK-Sentosa Corporation Berhad and the respondent is Ahmed bin Abdul Rahman. These appeals had been fixed for hearing at the same time. As such for matter of convenience and to avoid any confusion we will refer to Ahmed bin Abdul Rahman as the appellant, SPK-Sentosa Corporation Berhad as the 1st respondent and Mahkamah Perusahaan Malaysia as the 2nd respondent. The 2nd respondent are not concerned with the outcome of these appeals and as such no one represented them at the hearing.

These appeals arose from two separate originating summonses filed by the appellant and the 1st respondent against Award No. 263/95 made by the 2nd respondent. Since there were two separate applications, each application was given a separate reference number. The High Court ordered the two originating summonses be heard together, whereupon it dismissed both applications and confirmed Award No. 263/95 made by the 2nd respondent. When the appeals came before us, they were accompanied by two motions, one by the appellant dated 9 July 1997 (encl. 10a) and the other by the 1st respondent dated 23 April 1998 (encl. 14a).

The appellant's motion is to strike out the notice of appeal and the appeal record filed by the 1st respondent. The 1st respondent's motion is for an extension of time to file a supplementary record of appeal and chronology of events. With the consent of both parties, we heard the two motions together as the outcome of one will also determine the other.

Mr. T.J. Su, counsel for the appellant, submitted that the order under appeal is dated 30 July 1996 and the 1st respondent filed its notice of appeal on 28 August 1996. It then obtained an extension of time to file its record of appeal. A letter dated 21 January 1997 from the court informed the 1st respondent that the notes of evidence and grounds of judgment were ready. There is no evidence when the 1st respondent received the letter and as such the letter is deemed to have been received on 21 January 1997. Mr. Su submitted further that by virtue of that letter, the 1st respondent was to file the record of appeal on or before 21 February 1997. On 5 February 1997, solicitors for the 1st respondent sent the draft index to the appellant's solicitors (p. 30 of encl. 14a). The appellant's solicitors realised that the draft index was in respect of the wrong appeal. It was clear that the draft index was sent in respect of originating summons No. R2-125-95 when it was intended for originating summons No. R2-124-95. On the same date, ie, on 5 February 1997 the appellant's solicitors spoke to the 1st respondent's solicitors and pointed out the mistake and followed it up with a letter dated 5 February 1997. There was no reply to this letter but instead solicitors for the 1st respondent proceeded to file the appeal record on 13 February 1997. Mr. Su indicated that had the 1st respondent's solicitors come back to him, he might be able to assist the 1st respondent in enclosing the necessary documents. Since solicitors for the 1st respondent did not do so they became authors of their own problems.

Under the circumstances, Mr. Su contended that the 1st respondent's appeal record is defective and no attempt had been made to rectify such defect. In applying to set aside the notice of appeal and the record of appeal filed by the 1st respondent, the appellant cited the following breaches committed by the 1st respondent:

(a) Failure to provide a draft index for the approval of the appellant's solicitors.

(b) Failure to include in the record of appeal a copy of the notice of motion for an order of certiorari.

(c) Failure to include in the record of appeal a copy of the order granting leave by the High Court dated 15 January 1996.

(d) Failure to include in the