Azizah Nawawi JCA (delivering majority judgment of the court):

INTRODUCTION

[1]The motion before this court is an application to strike out the appellant’s appeal on the ground that the notice of appeal is defective because the appellant has appealed against the decision given by the High Court dated 10 May 2023 (‘said order’), whereby the court had dismissed the appellant’s (defendant in the High Court) application to strike out part of the claim in the statement of claim pursuant to O 18 r 19(1)(a) or (b) or (d) of the Rules of Court 2012

[2]The grounds of the application are that the said order is a matter that cannot be appealed to the Court of Appeal pursuant to the amendment to s 68(1)(f)Courts of Judicature Act 1964

[3]The motion was allowed by a majority decision and this judgment constitutes the majority decision.

THE SALIENT FACTS

[4]The respondent is a company carrying out its business at a premise at No 24, Persiaran 118C, Desa Tun Razak Industrial Park, 56000 Cheras, Kuala Lumpur (‘the said premise’). The respondent is the tenant of the said premise, which is owned by a foreigner, Pan Mei-Yun (Passport No 200431769).

[5]The first appellant is the registered owner of premise No 22, that is the premise adjacent to the said premise. The second appellant is the tenant at premise No 22 and used the premise No 22 for its business.

[6]A fire incident occurred on 2 July 2021 at premise No 22, which spread to the said premise and several nearby premises.

[7]On 26 August 2022, the respondent filed a claim against the appellants for damages and/or losses suffered by the respondent for its business. The respondent also sued on behalf of the owner for losses/damages caused to the said premise due to the fire incident on 2 July 2021.

[8]On 12 December 2022, the appellants had filed a notice of application (‘application’) to strike out parts of the paragraphs and/or reliefs in the statement of claim.

[9]The application was dismissed by the learned judge on 10 May 2023. Hence, the appellants filed the notice of appeal dated 8 June 2023 against the said decision.

[10]On 28 July 2023, the respondent filed this motion to strike out the appellant’s appeal.

[11]On 19 October 2023, by a majority decision, this court had allowed the respondent’s motion with costs.

SUBMISSION OF PARTIESThe respondent’s submission

[12]It is the submission of the respondent that the notice of appeal is defective as the said order is a non-appealable matter pursuant to s 68(1)(f)CJA 1964s 68(1)(f)CJA 1964s 68(1)(f)CJA 1964s 68(1)(f)CJA 1964

[13]The respondent also submitted that the effect of the said order does not finally disposes of the rights of the parties because whatever allegations and/or issues raised by the appellant can still be tried and heard by the High Court during the full trial. Therefore, the same is not a final decision that is appealable.

The appellant’s submission

[14]The appellants took the position that the appellants’ rights to appeal is a substantive right of parties that accrued from the commencement of the case, that is when the respondent filed their writ and statement of claim against the appellants on/around 26 August 2022, prior to the implementation of the amendment to s 68(1)(f)CJA 1964

[15]It is therefore the submission of the appellant that since the right to appeal is a substantive right, such substantive rights are entrenched and ought not to be procedurally taken away by an amendment which took effect after the filing of the suit. The appellants relied on the common law Macnaghten test which has been referred to and was accepted by the Federal Court as the general proposition of law in the case of Lim Phin Khian v Kho Su Ming

[16]The Macnaghten test is derived from the case of Colonial Sugar Refining Co Ltd v Irving

To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolish