Siti Norma Yaakob JCA:

[1] Proceedings were first commenced by the appellants on 25 August 1994, in the Commercial Division of the High Court, at Kuala Lumpur where as the petitioners, the appellants seek the winding up of the respondent under s 218(1)(f) and (i) of the Companies Act 1965, on the grounds that there has been oppression of minority rights and mismanagement of the affairs of the respondent.

[2] On the day of the scheduled hearing of the petition, the appellants applied orally to cross-examine the respondent's deponents who had filed lengthy affidavits in answer to the petition. The respondent reluctantly agreed to the application being made orally but opposed the application to cross-examine the deponents. Abdul Malek Ahmad J (as he then was) dismissed the application. The learned judge also ruled that the various affidavits filed by both parties are sufficient for a proper hearing of the petition without the need to cross-examine any deponent.

[3] In appealing against this decision, three issues were raised before us.

(1) Whether the learned trial judge's decision is appealable.

(2) Whether the learned trial judge had exercised his discretion correctly.

(3) Whether delay defeats the appellants' right to cross-examine.

[4] Our jurisdiction to hear and determine civil appeals is defined and limited by s 67(1) of the Courts of Judicature Act 1964 which states as follows:

The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought.

[5]Section 68 of the same Act lists out the circumstances of certain cases for which no appeal shall be brought to the Court of Appeal. These include:

(1) those cases where the amount or value of the subject matter (exclusive of interest) is less than RM250,000, except with leave of the Court of Appeal;

(2) where the judgment or order is made by the consent of parties;

(3) where the judgment or order relates to costs, except with leave of the Court of Appeal;

(4) where by written law, the judgment or order is expressly declared to be final.

[6] The issue raised is whether the dismissal of the appellants' oral application to cross-examine the respondent's deponents falls within the ambit of ss 67(1) and 68, in that it is a judgment or order which is appealable. The respondent maintains it is not, as it is only a ruling made in the course of interlocutory proceedings which does not determine the main issue or issues before the Court and for this relies on the New Zealand case of Re Alwinco Products Ltd [1985] 1 NZLR 710. There, the Court of Appeal held that the Court's jurisdiction to hear and determine appeals conferred by s 66 of the New Zealand Judicature Act 1908 (substantially similar to s 67(1) of our Act) is limited to the hearing of appeals against a "judgment", "decree" or "order". Thus a ruling by the learned trial judge in that case that a tender made by Alwinco Products Ltd (the company sought to be wound up) of all sums due to the petitioning creditor, was not sufficient in law to establish that Alwinco was able to settle its debts, was held to be a ruling which confers no right to appeal at all. The petitioning creditor was still entitled, despite its rejection of the tender, to proceed with its petition against Alwinco. The New Zealand Court of Appeal held that it had no jurisdiction to entertain an appeal from the judge's ruling and that the petitioning creditor was entitled to proceed as the ruling was not a judgment, a decree or an order. The Court of Appeal reasoned that the ruling was a step in the hearing of argument on a petition and it achieved no final disposal of what was before the High Court. A further hearing was necessary as "a ruling on a question of law not necessarily dec