Hasan Lah JCA:

[1] By an ex parte notice of motion dated 8 May 2008 the appellant ("the defendant") applied for an order under r. 41 of the Rules of the Court of Appeal 1994 ("the Rules") that this appeal and all the proceedings related thereto be carried on between the defendant and one Md. Zaini bin Haji Mohd Noor, in place of Haji Mohd Noor bin Haji Yakub ("the first plaintiff") who had passed away on 3 March 2008, as representative of the estate of Haji Mohd Noor bin Haji Yakub and the other respondents (who were the second and third plaintiff in the High Court).

[2] The defendant's application was supported by an affidavit affirmed by Dato' Khow Choon Thiew @ Khoo Kiap Leng, a director of the defendant. The grounds for the application were set out in the said affidavit-in-support.

[3] It was stated in the said affidavit that the defendant had appealed against the decision of the High Court of Alor Setar given on 12 February 1996. On 12 July 1999 the defendant's appeal was allowed by the Court of Appeal with the order that the costs of the appeal and the costs at the court below be paid by the plaintiffs to the defendant.

[4] The defendant began proceedings for taxatio