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2024 MarsdenLR 2522
COURT OF APPEAL PUTRAJAYA
FIRDAUS KHAN PARIT KHAN & ANOR – Appellant
Versus
CIMB BANK BERHAD – Respondent
[Civil Appeal No: W-02(A)-475-03-2021]
The Court clarified that Rule 18(7A) allows for filing a Memorandum of Appeal after the 90-day period if the High Court's Written Judgment is unavailable, thus providing a necessary exception to the mandatory requirement.
Headnote:(A) Rules of the Court of Appeal 1994 – Rule 18(7) and Rule 18(7A) – Mandatory requirement for filing a Record of Appeal (RA) containing a Memorandum of Appeal (MA) within 90 days – Court clarifies that if the High Court's Written Judgment is unavailable, the appellant may file a Supplemental RA within 3 weeks of its availability. (Paras 1, 20, 31)
(B) Interpretation of Rules – The Court emphasizes that the imperative term 'shall' in r 18(7) mandates compliance, but r 18(7A) provides an exception when the High Court's Written Judgment is not available. (Paras 20, 21)
(C) Delay in Filing – The Court finds that the delay in filing the MA was due to the non-availability of the High Court's Written Judgment, thus justifying the extension of time. (Paras 31)
Facts of the case: The Defendants filed a RA within the 90 Days Period but omitted the MA due to the unavailability of the High Court's Written Judgment. The 2nd Defendant sought an extension to file the MA after the judgment was provided. (Paras 6, 10)
Findings of Court: The Court allowed the extension for the 2nd Defendant to file the SRA containing the MA, emphasizing that no prejudice was caused to the Plaintiff. (Paras 31)
Issues: The main issues were whether the omission of the MA constituted a breach of r 18(7) and whether the Court could allow an extension of time for filing the MA. (Paras 1, 20)
Ratio Decidendi: The Court ruled that r 18(7A) provides a necessary exception to r 18(7) when the High Court's Written Judgment is not available, allowing for a fair opportunity to file the MA. (Paras 20, 31)
Result: Enclosure 7 is allowed, granting an extension of time for the 2nd Defendant to file the SRA and awarding costs to the Plaintiff. (Paras 32)
JUDGMENT
(Notice Of Motion In Court Enclosure No. 7)
A. Introduction
[1] This judgment discusses the following questions:
(1) whether r 18(7) of the Rules of the of Appeal 1994 (RCA) has imposed a mandatory requirement for an appellant to file a Record of Appeal (RA) which contains a Memorandum of Appeal (MA) within 90 days from the date of the High Court's decision [90 Days Period (Filing of RA)] when the High Court's "Written Judgment or Grounds of Decision" (High Court's Written Judgment/Grounds of Decision) is not available before the lapse of the 90 Days Period (Filing of RA). This issue also concerns the following matters:
(a) an interpretation of rr 1A, 18(1) and (7A) RCA; and
(b) from the view point of the "stare decisis" doctrine, whether the "Broad Grounds" (Broad Grounds) of the Court of Appeal's decision in Aliff Syukri Kamarzaman v. Mohamad Syazwan Shuhaimi , [Civil Appeal No B-02(NCVC)-695-04-2022] (Aliff Syukri) binds the Court of Appeal with regard to the construction of r 18(7) and (7A) RCA; and
(2) if:
(a) rule 18(7) RCA mandatorily requires an appellant to file a RA which contains a MA before the expiry of the 90 Days Period (Filing of RA); and
(b) the appellant has filed a RA within the 90 Days Period (Filing of RA) but the RA does not contain the MA because the High Court's Written Judgment/Grounds of Decision is not available before the lapse of the 90 Days Period (Filing of RA)
- can the respondent raise a Preliminary Objection (Respondent's PO) or apply to the Court of Appeal to dismiss or strike out the appeal solely on the ground that the appellant has failed to comply with the mandatory r 18(7) RCA (Respondent's Dismissal/Striking Out Application)?
When the Respondent's PO has been raised or when the Respondent's Dismissal/Striking Out Application has been filed, whether the appellant can file an application to the Court of Appeal pursuant to r 93 RCA for an order to enlarge the 90 Days Period (Filing of RA) so as to allow the appellant to file a Supplemental RA (SRA) which contains the High Court's Written Judgment/Grounds of Decision and MA.
B. Background
[2] I shall refer to the parties as they were in the High Court.
[3] The plaintiff bank (Plaintiff) had filed a suit in the High Court against the defendants (Defendants).
[4] On 23 February 2021, the High Court had delivered a decision in favour of the Plaintiff against the Defendants (High Court's Decision).
[5] The Defendants appealed to the Court of Appeal against the High Court's Decision (This Appeal).
[6] The Defendants filed their RA on 17 May 2021 [within the 90 Days Period (Filing of RA)]. However, the RA omitted the MA. This was because the High Court's Written Judgment/Grounds of Decision had not been provided by the learned High Court Judge (as he then was) before the expiry of the 90 Days Period (Filing of RA). Hence, the Defendants could not prepare the MA and include it in the RA.
[7] The 90 Days Period (Filing of RA) lapsed on 24 May 2021.
[8] The 1st Defendant (1st Defendant) was adjudicated by the Court as a bankrupt on 22 September 2023. In this Appeal, Puan Hafizah Johor Ariff Johor, a Legal Officer attached to the Malaysian Department of Insolvency, represented the 1st Defendant. The Director General of Insolvency had given a sanction for the 1st Defendant to proceed with This Appeal pursuant to s 38(1)(a) of the Insolvency Act 1967.
[9] On 21 December 2023, the 2nd Defendant (2nd Defendant) filed a Notice of Motion in the Court of Appeal (Encl 7). Enclosure 7 had applied for, among others, an extension of time from the Court of Appeal for the 2nd Defendant to file a MA, which had been exhibited as Exh "AAR-1" [MA (2nd Defendant's Affidavit)] in an affidavit affirmed by the 2nd Defendant on 21 December 2023 (filed in support of Encl 7).
[10] At the time of the filing of Encl 7, the High Court's Written Judgment/ Grounds of Decision was not available.
[11] The learned High Court Judge provided a written judgment dat
