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 taxation in the Court of Appeal and the taxation of the plaintiff's bill of costs was fixed on 28 September 2007 and then adjourned to 7 December 2007 because counsel for the plaintiff was absent. It was again fixed for taxation on 16 May 2008.

[5] The first plaintiff passed away on 3 March 2008. According to the defendant after the death of the first plaintiff the defendant's cause of action against the first plaintiff was transmitted to his estate and Md. Zaini bin Haji Mohd Noor, as a son and one of the beneficiaries to the deceased's estate, was the proper person to be appointed as the representative of the estate of the deceased for the purpose of the proceedings for taxation.

[6] We heard the application on 15 May 2008 and after hearing submission from learned counsel for the defendant we unanimously dismissed the defendant's application with costs.

[7]Rule 41 of the Rules provides:

Where by reason of marriage, death or bankruptcy, or any other event occurring after the commencement of an appeal, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the appeal, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court, upon an allegation of such change, or transmission of interest or liability, or of any such person interested having come into existence.

[8] The defendant did not state in its supporting affidavit whether any letters of administration had been granted in respect of the deceased's estate and also did not state how many beneficiaries were there to the estate. If a personal representative of the deceased has been appointed then that personal representative would have the right to represent the estate and as such Md. Zaini bin Haji Mohd Noor would not be a proper person to represent the estate in taxation proceedings. Furthermore, the defendant did not say whether the other beneficiaries had agreed to the appointment of Md. Zaini bin Haji Mohd Noor as the representative of the estate of the deceased for the purpose of taxation proceedings.

[9] We were mindful that under r. 41 of the Rules the defendant is permitted to make this application ex parte. However, the person sought to be appointed to represent the estate of the deceased must give his consent to represent the estate. In this case the defendant did not state whether Md. Zaini bin Haji Mohd Noor had consented to the defendant's application. Pratt v. London Passenger Transport Board; Green v. Vandekar [1937] 1 All