JUDGMENT

Steve Ritikos JC:

[On Enclosure 34]

The Application

[1] This is an application by the 1st Defendant [in Encl 34] for leave to be given for the 1st Defendant to file the Affidavit in Opposition out of time and for an order that the 1st Defendant do file the said Affidavit in Opposition out of time within 14 days for the date of the order and cost of this application to follow the cause. The intended Affidavit in Support to be filed is in respect of opposing the plaintiff's Originating Summons.

Cause Papers

[2] The cause papers to be referred to, where necessary, are:

(i) The Originating Summons dated 6 March 2025 ("OS") [Encl 1];

(ii) the Affidavit in Support affirmed by Mursinih Binti Kekeng on 6 March 2025 [Encl 2];

(iii) the Notice of Application dated 2 October 2025 [Encl 34];

(iv) the Affidavit in Support affirmed by Normah Binti Omar on 10 September 2025 ("AIS") [Encl 35];

(v) the Affidavit in Opposition affirmed by Mursinih Binti Kekeng on 22 October 2025 ("AIO") [Encl 37]; and

(vi) the Affidavit in Reply affirmed by Normah Binti Omar on 10 September 2025 ("AIR") [Encl 38].

Brief Facts

[3] The plaintiff filed the Originating Summons [Encl 1] on the 6 March 2025 together with an Affidavit in Support [Encl 2] on the same date.

[4] The OS was duly served on the 1st Defendant together with the Affidavit in Support [Encl 2] on 7 March 2025. Pursuant to the Rules of 2012, the 1st Defendant was required to file her Affidavit in Opposition on or before the 21 March 2025. Despite full knowledge of the proceedings, attendance at Court mentions, and the grant of indulgence by the Court , the 1st Defendant failed to comply with procedural timelines.

[5] The 1st Defendant now seeks further indulgence to file her Affidavit in Opposition after a delay of more than 6 months.

The Issue

[6] The only issue for determination is whether the 1st Defendant has discharged the burden of satisfying this Court that it should exercise its discretion to grant an extension of time under O 3 r 5 of the Rules of 2012.

Findings Of The Court

[7] In TP Guan Heng Sdn Bhd & Anor v. Loh Soo Chun & Another Case, the Court held that in deciding whether to grant an extension of time, the Court must consider:

(i) the factual matrix of the case;

(ii) the competing interests of the parties;

(iii) the question of prejudice; and

(iv) where the overall justice of the case lies.

[8] The Court further identified the relevant factors as:

(v) the length of delay;

(vi) the reasons for the delay; and

(vii) the merits, if any.

[9] In Tong Kim Soo v. Tirai Prospektif Sdn Bhd; [2020] 3 CLJ 353 the Court of Appeal stated:

"The burden is on the appellant to satisfy the Court that it should exercise its discretion to grant an extension of time. The Court had held that the Rules of Court must prima facie be obeyed, and in order to justify a Court in extending the time during which some step in procedure requires to be taken there must be some material upon which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation".

[10] The Court in Prolink Marketing Sdn Bhd v. Cl Resources Sdn Bhd further held that non-compliance of a mandatory provision of the Rules of 2012 which is fundamental in nature will not be regarded as technical non-compliance of a rule that may be remedied under O 1A Rules of 2012, as held by the Federal Court in the case of Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah Mohd Noor & Another Appeal; [2009] 4 MLJ 149; [2009] 4 CLJ 329; [2009] 5 AMR 296:

"The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O 1A RHC (now ROC 2012) is for the Court or judge to give heed to justice over technical non-compliance. It must not supersede