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2025 MarsdenLR 4625
HIGH COURT MALAYA KUALA LUMPUR
LIM CHEE YONG – Appellant
Versus
THONG HOE KHIN – Respondent
[Civil Suit No: WA-12BNCC-28-08/2023]
Non-compliance with procedural requirements under the Rules of Court 2012 can lead to striking out of appeals, emphasizing the importance of adherence to timelines and proper service methods.
Headnote:(A) Rules of Court 2012 - Order 55 and Order 62 - Appeal procedures - Appellant's appeal was struck out for failing to comply with the prescribed requirements and timelines for service and filing of appeal documents. Time limits outlined include notice of appeal within 14 days, service of documents, and filing complete records, all of which were violated. (Paras 6, 8, 9, 10, 25)
(B) Compliance with Court Rules - The appellant's failure to comply is characterized by delays and improper service methods, emphasizing the necessity of adherence to procedural rules for justice to be served. (Paras 14, 18, 22)
Facts of the case:
The respondent filed a Striking Out Application against the appellant, who had appealed a dismissal of a claim for investment return, citing multiple non-compliances with the ROC. Appellant filed a notice of appeal and record of appeal, but various deadlines were missed and incomplete documents submitted.
Findings of Court:
The court found that the appellant's actions demonstrated disregard for the ROC requirements, justifying the striking out of the appeal.
Issues: The core issues involve the timing and methods of service of documents as per the ROC and the consequences of non-compliance.
Ratio Decidendi: The court held non-compliance with the ROC as critical, determining that proper and timely service of documents is essential to maintain procedural fairness.
Result: Striking Out Application allowed, with costs.
| Table of Content |
|---|
| 1. procedural requirements for filing appeals under roc (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. non-compliance with roc requirements noted (Para 8 , 10) |
| 3. invalid reliance on electronic service without a practice direction (Para 9 , 11 , 12 , 13 , 14 , 16 , 21) |
| 4. failure to explain late filings leads to deficiencies (Para 18 , 19 , 20 , 22 , 24) |
A. Introduction
[1] The respondent filed an application to strike out the appellant's appeal ("Striking Out Application"), alleging multiple non-compliances by the appellant with the provisions of the Rules of Court 2012 (" ROC ").
[2] The Court allowed the Striking Out Application, for the reasons explained below.
B. Introduction
[3] The appellant's claim against the respondent for the return of his investment and profit on the investment, was dismissed by the Sessions Court after a full trial. The appellant filed an appeal against the decision of the Sessions Court.
[4] However, in the filing of the appeal, the respondent claimed that the appellant had on multiple occasions, failed to comply with the requirements and timelines imposed under the ROC .
[5] The respondent therefore filed the Striking Out Application, to strike out the appeal.
[6] Order 55 of the ROC sets out the requirements and timelines on the filing of appeals to the High Court from the subordinate courts. These requirements and timelines state that:
a. The appellant shall file a notice of appeal within fourteen days from the date of the decision appealed from (O 55 r 2);
b. The appellant shall serve a duplicate copy of the notice of appeal on all respondents within the time limited for the filing of an appeal (O 55 r 3(4));
c. The appellant shall apply for the notes of proceedings and grounds of judgment to the Court appealed from, within the time limited for the filing of an appeal (O 55 r 3(5));
d. In the case of an appeal from a decision after trial, the appellant shall file a record of appeal, which shall contain a copy of inter alia, a memorandum of appeal, within one month from the filing of the notice of appeal (O 55 r 4(1)); and
e. The appellant shall serve a copy of the record of appeal on all respondents within the time limited for the filing of the record of appeal (O 55 r 4(8)).
[7] In the present case, the Sessions Court dismissed the appellant's claim on 15 August 2023. The following steps were taken by the appellant:
a. The appellant filed the notice of appeal on 29 August 2023;
b. The appellant served the unsealed notice of appeal on the respondent by e-mail on 29 August 2023 at 4.29pm, and the sealed notice of appeal by e-mail on 1 September 2023 and by hand on 4 September 2023;
c. The appellant applied for the grounds of judgment of the Sessions Court on 5 September 2023;
d. The appellant filed the record of appeal on 29 September 2023; and
e. The appellant served the record of appeal by e-mail on 29 September 2023 at 3.14pm, and by hand on 5 October 2023.
[8] Having considered the provisions of O 55 of the ROC , the Court notes that:
a. The appellant was required to file the notice of appeal within fourteen days from the date of the decision of the Sessions Court on 15 August 2023, ie. by 29 August 2023. The notice of appeal was filed within time, on 29 August 2023;
b. The appellant was required to serve a duplicate copy of the notice of appeal on the respondent within the time limited for the filing of an appeal, ie. by 29 August 2023. In this regard, the appellant had filed the following documents out of time:
i. The unsealed notice of appeal, which was served by e-mail after 4.00pm on 29 August 2023, and is deemed under O 62 r 8 of the ROC to be served on 30 August 2023; and
ii. The sealed notice of appeal, which was served by e-mail on 1 September 2023, and by hand on 4 September 2023;
c. The appellant was required to apply for the notes of proceedings and grounds of judgment to the Sessions Court, within the time limited for the filing of an appeal, ie. by 29 August 2023. The appella
