Arifin Zakaria JCA:

This action was commenced by the respondent/plaintiff in the Sessions Court against the appellants/defendants. At the conclusion of the trial, the learned Sessions Court judge gave judgment in favour of the respondent. On 19 February 1998, the appellants filed their notice of appeal. Form 141 was issued by the Sessions Court on 9 April 1998. On 21 May 1998, the appellants filed the appeal record incorporating the memorandum of appeal dated 18 May 1998. On 8 October 1998, the appellants filed the same memorandum of appeal with the prescribed filing fee. On 14 December 1998, the respondent's solicitors gave notice of preliminary objection on the ground that the memorandum of appeal was filed out of time. By notice of motion dated 25 May 1999, the appellants applied for extension of time to file and serve the memorandum of appeal. The notice of motion was heard by the learned High Court judge together with the appeal on 1 November 1999 whereby she dismissed the notice of motion and allowed the preliminary objection of the respondent. The appeal was dismissed with costs. The appellants now appeal against the said decision of the learned High Court judge.

It is the contention of learned counsel for the appellants that the learned High Court judge had, in the circumstances of this case, erred in the exercise of her discretion in dismissing the appellants' application for extension of time to file the memorandum of appeal. It is settled law that the appellate court should be slow to interfere with the exercise of judicial discretion by the court below and secondly, there is a presumption that the court below has rightly exercised its discretion. For support, we would refer to the following authorities namely - Ratnam v. Cumarasamy & Anor [1965] 31 MLJ 228; Vasudevan v. T Damodaran & Anor [1981] CLJ 84; [1981] CLJ (Rep) 101, The "Lung Yung" The "Lung Yung" & "Thai Yung" Owners & Ors v. Sadit Timber Sdn Bhd & Ors [1983] 2 CLJ 246; [1983] CLJ (Rep) 252. In Ratnam v. Cumarasamy (supra), Lord Guest expressed the view that "The court will not interfere unless it is clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice (Evans v. Bartlam)". Adopting the position in Vasudevan v. T. Damodaran & Anor, Abdoolcader FJ in The "Lung Yung" stated thus "The exercise of judicial discretion by him is not to be lightly interfered with and there is a presumption that he has rightly exercised it ...". The appellate court will only interfere if it is satisfied that the judge in whom the primary discretion is vested has failed to take into account relevant considerations. (See Paya Terubong Estates Sdn Bhd v. Pusaka Warisan Sdn Bhd [1998] 2 CLJ 909). Guided by the above stated principles, we will now consider the issues at hand.

It is not in dispute that in the present case, the memorandum of appeal was filed twice, once together with the appeal record which was filed on 21 May 1998, and the second time it was filed separately on 8 October 1998. We agree with the learned counsel for the respondent that in view of the fact that no requisite filing fees was paid with regard to the first memorandum of appeal, therefore, on that ground alone, it is defective and ought not to be considered by the court.

Further, O. 49 r. 3A(1) of the Subordinate Courts Rules 1980 ("SCR") clearly does not require the memorandum of appeal to be included in the appeal record, therefore, it is no excuse for the appellants to file the memorandum of appeal together with the appeal record. Apart from that, the prescribed time for the filing of the appeal record is six weeks from the service of Form 141 whereas the prescribed time for filing of the memorandum of appeal as provided in O. 55 r. 2(1) of the Rules of the High Court 1980 ("RHC") is 14 days from the date of service of Form 141.

For the above reasons, we hold that the application