JUDGMENT

Lau Bee Lan J:

This is an appeal by the 1st, 2nd and 3rd appellants/1st' 2nd and 4th defendants (hereinafter referred to as the "1st, 2nd and 4th defendants" or "the defendants" as the case may be) against the decision of the learned Sessions Court Judge made on 27 January 2005 allowing the respondent's ("plaintiff") application with costs to be taxed unless agreed (encl. 2). At the outset the learned counsel for the plaintiff, Mr. Jonathan Chong, raised a preliminary objection: firstly, although they have been served with the record of appeal, no notice of appeal was properly served on them in conformity with O. 49 r. 6 of the Subordinate Courts Rules 1980 ("the SCR"); secondly, there was no proper appeal before the Court in that the record of appeal did not contain the sealed order and therefore the plaintiff would not know against what order the defendants are appealing against; instead what was in the record of appeal was merely the draft order at pp. 118-119 signed by both parties but not the registrar.

Mr. Ivan Hussein, learned counsel for the 1st, 2nd and 4th defendants replied that they had placed a copy of the notice of appeal in the pigeon hole of the firm of the plaintiff's counsel in the Court house. Subsequent to that when they sought the assistance of the learned counsel to approve the draft order so that it could be incorporated into the record of appeal, the learned counsel did not say anything on the notice of appeal not being served on their firm; as such they were not aware that they have not received the notice of appeal and were under the impression that they were aware of the notice of appeal; subsequently, when they served the record of appeal on the plaintiff, again they had no indication they did not receive the notice of appeal or that they objected to the record of appeal; otherwise they could make the necessary application to the Court to extend or abridge time to redress any oversight on their part.

To the Court's query whether there is proof that the defendants have served the notice of appeal, Mr. Ivan Hussein stated he had made a notation in his file copy of cover letter to Court to the effect "In pigeon hole at Court house". To the Court's question whether the plaintiff was raising this as a preliminary objection, Mr. Chong responded that the two points he has submitted on the competency of the appeal would be dealt with in the submission proper and to be fair, if the defendants needed to look into the matter, he had no objection to it. Mr. Ivan Hussein requested for time and a new hearing date was fixed.

On the date of hearing (28 October 2005), Mr. Ivan Hussein informed the Court that the defendants had filed a supplementary record of appeal dated 21 October 2005 enclosing the sealed copy of the order of the learned Sessions Court Judge dated 27 January 2005 and reiterated his earlier submission. In reply, Mr. Chong maintained since there was no proof of service of the notice of appeal in the form of proof of personal service on his firm, it ought to be taken there was no service of the notice of appeal and legally there was no appeal before the Court; the defendants had no business to file the supplementary record of appeal since it was not a case where he was unable to file the sealed order due to circumstances beyond his control but he did not go on with the sealing of the order; even if there is good reason for filing in of the supplementary record of appeal, it should be filed before the start of the appeal, so that by the time the appeal came for the hearing both Court and all parties would have known what is the order appealed against; whereas in this instant case, we had started the appeal and he argued the supplementary record of appeal should not be accepted now as it prejudices the plaintiff because the plaintiff prepared the appeal and hearing without the sealed order and not knowing the actual terms of the order. In reply thereto, Mr. Ivan Hussein submitted that there is no