Azimah Omar JCA:

A. Introduction

[1] The substantive Appeal against the High Court 's decision in dismissing the Appellant's Originating Summons (to declare that the Appellant's Application for a Certificate of Proposed Strata Plan ("CPSP") under s 8A of the Strata Titles Act 1985 ("STA") was in order and that the Respondent's dismissal of the Appellant's Application was wrong and improper) is not yet before this Court . It is to be noted that the CPSP is crucial for onward subdivision and issuance of individual strata title under s 9 of the same STA.

[2] The immediate issue for determination before us essentially concerns the Appellant's Notice of Motion in Encl 24, whereby the Appellant had moved this Court to apply for leave to adduce new evidence relating to a different and prior strata development also undertaken by the Appellant which the Appellant contended would be material and relevant for the upcoming hearing of the Substantive Appeal (pursuant to s 69 of the Courts of Judicature Act 1964 ("CJA")).

[3] These new evidence of the other prior strata development were somehow not exhibited by the Appellant during the proceedings of the Originating Summons before the High Court below.

[4] These new evidence sought to be adduced/admitted in the hearing of the substantive Appeal by the Appellant were exhibited in the Affidavit deposed by Lok Peng Chuan, the Liquidator acting for the Appellant, filed in support of Encl 24.

[5] The Appellant posits an argument that (by virtue of a recent Court of Appeal decision in Krishnasamy Kuppusamy & Anor v. Pengarah Hospital Sultanah Aminah & Ors And Other Appeals; [2024] 4 MLJ 907 ("Krishnasamy")) the Courts no longer have to consider the requirements or conditions for admitting new evidence under r 7(3A) of the Rules of of Appeal 1994 ("RCA 1994"), as the Court of Appeal in Krishnasamy had found that the provision was ultra vires the parent provision (and parent Act) of s 69(2) of the Courts of Judicature Act 1964 ("CJA 1964"). Thus, the parties' submissions also turned to address the true context of the decision in Krishnasamy, and the prevailing status and position of r 7(3A) of the RCA 1994.

[6] Considering the Appellant's insistence above, the imminent issues for us to determine are: firstly, whether or not the Appellant's reading of Krishnasamy was proper to its true context and secondly, whether or not we (the Court of Appeal) ought to follow the decision in Krishnasamy regarding an Application to admit or adduce further evidence pursuant to s 69 of the CJA (especially in light of the conditions prescribed under r 7(3A) of the RCA 1994 before such further evidence be allowed to be admitted).

[7] The Appellant in this case is Cempaka Mewah Sdn Bhd (in creditors' voluntary liquidation) (Liquidators appointed on 17 April 2003), c/o KPMG Corporate Restructuring PLT, which is the developer of the housing development project known as Cape Nautica Villas ("CNV Project"). The Appellant was also the developer for the prior PD Marina International Resort Phase 2 (Straits View Villas) ("SVV Project").

[8] The Respondent is the Director of Survey and Mapping Negeri Sembilan Darul Khusus, who has the authority, among others, to issue a CPSP under s 8A of the STA.

B. Brief Facts

[9] The Appellant intends to proceed with subdivision and the issuance of individual strata titles under s 9 of the STA. Thus, on 13 February 2017, the Appellant submitted an Application for the CPSP together with its supporting documents to the Respondent via the surveyor appointed by the Appellant, which is Jurukur Pembangunan Sdn Bhd.

[10] Upon reviewing the Application, the Respondent discovered that the Application was not in order and thereby dismissed the same on the grounds that:

(a) the car parks were not shown as an accessory parcel in the proposed strata plan although it was contained in section 6 of the Fifth Schedule of the Sale and Purchase Agreement for the CNV Project dated 16 August 1996 betwee