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2011 MarsdenLR 1360
HASNAH MOHAMMED HASHIM
MALAYAN BANKING BERHAD – Appellant
Versus
INTERGRATED GROWTH CAPITAL SDN BHD & ORS (NO 2) – Respondent
The court retains discretion to grant extensions for filing pleadings, but such discretion must be justified by valid grounds and compliance with procedural rules, with delays deemed excessive leading to dismissal.
Headnote:(A) Rules of the High Court 1980 - Order 3 Rule 5 - Extension of time for filing pleadings - Court discretion to grant or refuse extension must be based on material evidence justifying such discretion - The Plaintiff's application for extension of time was dismissed due to lack of valid grounds for delay and excessive time lapse. (Paras 2, 8, 12)
(B) Legal principles regarding discretion in time extensions - It is established that the court holds an unfettered discretion to grant extensions, but must consider adherence to rules and material justification for the delay in an application. The principles encourage facilitating justice rather than enforcing technicalities strictly. (Paras 5, 7)
Facts of the case:
The Plaintiff applied for an extension of time to file a Reply to the Amended Defence after more than a year, citing delays in receiving instructions, while the Defendants contested the relevance of the Reply to their amendments.
Findings of Court:
The Court found no valid ground for the delay, noting that the Plaintiff took an unreasonable amount of time to file the application, leading to the dismissal of the application with costs.
Issues: The key issues were whether the Plaintiff's reasons for delay justified an extension and the procedural implications of the timeline involved.
Ratio Decidendi: Courts must balance the need for procedural compliance with the necessity of ensuring justice, but substantial delays without valid justification can lead to dismissal of applications for extensions of time.
Result: Application for extension of time dismissed with costs.
| Table of Content |
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| 1. application for extension of time. (Para 2 , 3) |
Enclosure 63 is an application by the Plaintiff for extension of time pursuant to Order 3 Rule 5 of the Rules of the High Court 1980 (RHC) to file a Reply to the Amended Defence dated 10.2.2010. The Application is supported by an Affidavit in support of Chan Fook Weng, the Plaintiffs Credit Officer.
The Plaintiff filed the Writ of Summons and the Statement of Claim on 15.1.2002. The Defendants filed the Statement of Defence on 21.2.2002. By a Court Order dated 12.7.2007 the Defendants filed their Amended Statement of Defence. Subsequently the Plaintiff filed the Amended Writ and Statement of Claim on 19.11.2009.
By a Court order dated 23.7.2009, the 1st Defendant was wound-up and the Director-General of Insolvency was appointed as liquidator of the 1st Defendant. The 2nd and 3rd Defendants obtained an extension of time until 10.2.2010 from the Plaintiff to file their Amended Defence. The Plaintiff then sought an extension of time to file a reply vide a letter dated 24.2.2010 (Exhibit "MAY-2"). The reason for the delay according to the Learned Counsel for the Plaintiff was because they were waiting for instruction from the Plaintiff (paragraph 5(g) Affidavit in support of the application affirmed by Chan Fook Weng on 19.4.2011).
The Defendant contended that the Reply sought to reply to amendments made in the first amended defence and not the second amended defence.
Order 3 rule 5 RHC provides as follows:
"(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these ruler or by any judgment, order or direction, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
(3) The period within which a person is required by these ruler, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.".
Hashim Yeop Sani J (as he then was) in Ong Guan Teck & Ors. v. Hijjas Kasturi (1982) CLJ 616 (Rep) said that:
"It is trite law that the Court has an unfettered discretion to grant or refuse an extension of time. The first principle is that the rules of Court must prima facie be obeyed and in order to justify an extension of time, there must be some material on which the Court can exercise its discretion in favour of the applicant. For otherwise the party in breach of the rules would have an unfettered right to extension of time which would defeat the very purpose and object of the rules on limitation of period.".
Abdul Malik Ishak J (as he then was) in Rechik Kadir & Anor. v. Mohamed Shah Senusi (1997) 1 CLJ SUPP 508 referred to the observations of Suffian LP in the case of Tan Chwee Geok & Anor. v. Khaw Yen-Yen & Anor. (1975) 2 MLJ 188 FC :
"The Rules of the Supreme Court are intended to facilitate, not impede, the administration of civil justice.
In the bad old days in England from where we took our Rules, if you put a comma wrong you were thrown out of Court, so strict were they about technicalities.
But over the years this strictness gave way to common sense, and every time the Rules were amended it was with the object of removing fussy technicalities, and making it easier for parties to get justice.
This changed attitude was reflected in the remarks of Lord Collins MR about 70 years ago in Re Coles and Ravenshear (1907) 1 KB 1, 4:
Although a Court cannot conduct its business without a code of procedure, the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress; and the Court ought not be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice i
