JUDGMENT

Elaine Yap Chin Gaik JC:

Introduction

[1] The Appellant appealed against the Judgment of the Sessions Court after trial on 20 September 2024. Referring to the parties as they were in the Court below, the Sessions Court had dismissed the Plaintiff's claim and allowed the Defendant's counterclaim.

[2] The appeal was met with an application by the Defendant to strike out the 12-volume Record of Appeal filed on 1 November 2024 ("AR") because it was filed unilaterally by the Plaintiff and various documents were excluded ("Enclosure 15"). In response, the Plaintiff applied for an extension of time to serve the draft index to the AR and validate the AR ("Enclosure 19").

[3] On 25 March 2025, this Court allowed Encl 15 and the consequential striking out of the Notice of Appeal dated 3 October 2024 and dismissed Encl 19. The Appellant is appealing against this decision.

The Reasoning

[4] Enclosure 15 was premised on the Plaintiff's non-compliance with O 55 r 4 of the Rules of 2012 ("RC") in preparing the AR, in that:

(a) The AR omitted the signed versions of the witness statements which had been amended before being tendered and marked (attaching only the unsigned versions), certificates tendered under s 90A of the Evidence Act 1950 and an Order of the Sessions Court in contested proceedings regarding the admissibility of certain documents. The Defendant argued that this breached O 55 r 4(1)(h) of the RC which provides that the AR "shall contain copies of ....all such documentary exhibits and other documents the parties shall consider relevant for the purposes of the appeal."

(b) The reason why there were excluded documents is that the Plaintiff had first breached O 55 r 4(4) of the RC which provides that "a draft index of the documents to be included in the record of appeal shall be sent by the solicitors for the appellant to the solicitors for the respondent who or, if more than one, any of whom may, within forty-eight hours, object to the inclusion or exclusion of any document." It is not disputed that the Plaintiff did not forward a draft index of the AR before the AR was finalized, compiled, filed and served on the Defendant. This was the principal complaint of the Defendant raised at the first case management on 7 November 2024 after the AR was served by e-mail on 3 November 2024.

[5] The Plaintiff argued that the documents which had been omitted from the AR were not relevant for the purposes of the appeal. The Plaintiff also argued that the non-compliance complained of can be cured by O 1A and O 2 r 3 of the RC and therefore sought the extension of time in Encl 19 to rectify the AR, if necessary.

[6] This Court first considered the non-service of the draft index to the AR and whether it is fatal. Based on case law, that appears to be the case. The Defendant referred to the following authorities and the propositions cited concerning mandatory procedural rules for the orderly conduct of litigation proceedings:

(a) Chuah Tim Lan v. RHB Bank Bhd & Anor; [2008] 6 MLJ 793; [2008] 6 CLJ 500; [2008] 6 AMR 650 ("Chuah Tim Lan") on the Court 's demand for adherence to mandatory rules based on the language used by the drafters and the incurability of breaches of such rules. One of the many breaches in that case was the non-service of the draft index to the appeal record (r 18(6) of the Rules of the of Appeal 1994). The Court of Appeal found that the non-compliance of the rules was not a mere irregularity and as such, no record of appeal was deemed to have been filed.

(b) Mazni Ibrahim v.Rosaidy Effandy Dari Tetuan Khairil & Co; [2013] 2 MLJ 499; [2013] 4 CLJ 453; [2013] 3 AMR 336 [CA] ("Mazni") on the attempted filing of excluded documents in a supplementary record of appeal, which filing would not have remedied the non-service of the draft record of appeal that necessitated it. The Court of Appeal held as follows:

"[20] ...Allowing Encl 8a would not have remedied non service of the draft record of appeal before it was filed.