DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. W – 02 – 949 – 1999
PEWIRA AFFIN BANK BERHAD … PERAYU
(dahulu dikenali sebagai
Pewira Habib Bank Malaysia Berhad)
LIAN HUAT SENG MARKETING SDN. BHD. … RESPONDEN
(Dalam perkara Mahkamah Tinggi Malaya di Kuala Lumpur Guaman No. D4-22-2004-1989
Pewira Affin Bank Berhad … Plaintif
(dahulu dikenali sebagai
Pewira Habib Bank Malaysia Berhad)
1. Lian Huat Seng Marketing Sdn. Bhd.
2. Lian Huat Seng Plastic Industries Sdn. Bhd.
3. Ng Lak (P)
4. Low Kim Chuan … Defendan-
5. Lau Ly Shung @ Law Lai Seng Defendan)
Coram: Datuk Richard Malanjum, JCA
Dato’ Hashim Bin Dato’ Hj. Yusoff, JCA Datuk Abdul Wahab Patail, JCA
JUDGMENT OF THE COURT
1. In the Notice of Motion (Enclosure 10(a)) in 02-949-1999, the Applicant/Respondent, Lian Huat Seng Marketing Sdn. Bhd. (“LHS”) is asking that the Appellant’s, Perwira Affin Bank Bhd. (“PABB’), Notice of Appeal dated 03/12/1999 be struck off for want of prosecution with costs and without liberty to file afresh. Together with that application the LHS in Notice of Motion (Enclosure 12(a)) in 02-950-1999, who is the Appellant therein, is asking for an extension of time to file the Appeal Record.
2. The two applications were heard together. After hearing submissions from the respective counsel, we granted order in terms of Enclosure 10(a) and struck off the Appeals.
3. We now give our reasons for doing so.
4. The chronology of events will show what transpired leading to these applications:-
5. On 20/09/1989 in Kuala Lumpur High Court Civil Suit No. D4-22-2004-1989 the PABB, filed a writ against inter alia, the LHS and thereafter obtained a Judgment in Default of Appearance against the LHS on 21/11/1989.
6. On 18/09/1990 the LHS applied to set aside the said Judgment in Default and it was granted by the learned Senior Assistant Registrar (SAR) on 08/03/1991. PABB thereafter on 18/03/1991, lodged a Notice of Appeal to the Judge in Chambers against the decision of the learned SAR.
7. Pursuant to the Court’s directions on 08/03/1991 LHS’s solicitors filed a Notice of Appearance on 13/03/1991, followed by the LHS Defence on 28/03/1991. Thereafter the PABB filed an amended Statement of Claim dated 18/08/1991.
8. On 17/12/1991 the PABB filed an application for summary judgment against the LHS, but it was struck off due to nonattendance of the parties on 18/03/1993.
9. Pursuant to the Court Order dated 08/03/1991, LHS filed a Notice of Taxation which was heard and disposed of on 24/06/1993 (some 3 months after the PABB’s Summary Judgment application was struck out).
10. On 08/10/1996 (some 3M> years later) the PABB applied to reinstate the Summary Judgment application which had been struck out. The said application was dismissed by the learned SAR on 04/02/1997.
11. On 27/12/1996, the LHS then applied to have the PABB’s suit dismissed for want of prosecution. This application was allowed by the SAR and the PABB’s suit was dismissed for want of prosecution on 20/06/1997.
12. The PABB then appealed to the Judge in Chambers against both the Court Orders dated 04/02/1997 and 20/06/1997 respectively on 05/02/1997 and 27/05/1997. The learned Judge dismissed both appeals on 15/11/1999.
13. On 03/12/1999, the PABB filed 2 separate Notices of Appeal dated 03/12/1999 respectively to this Court. Thereafter the PABB’s application dated 30/12/1999 for extension of time to file the Appeal Record was allowed by the Court on 25/01/2000. The PABB was given 3 weeks from the date of receipt of the Notes of Proceedings from the High Court to file the Appeal Record.
14. Learned counsel for the LHS before us, submitted that the PABB’s appeal should be struck off for want of prosecution. Reference to the affidavit of the Director of the LHS company shows that the PABB has been contumelious in its delay in prosecuting its appeal. Except for a single letter to the High Court Judge’s Secretary dated 03/12/1999 to request for the Notes of Evidence which was copied to the LHS’s solicitors, no other step has been taken by the PABB in furtherance of its appeals. Even after the PABB obtained an extension of time to file its Appeal Record from the Court of Appeal, it still did not take any further steps to further or prosecute its appeals. Looking at exhibit “YKL 5” in Enclosure 10(b), the learned High Court Judge’s Secretary had informed by letter dated
10/09/2002 addressed to the PABB’s solicitors, Messrs Shook Lin & Bok, that the Notes of Evidence and the Grounds of Judgment of the said case were ready and that they could be obtained at anytime during office hours.
15. It was submitted for the reason aforesaid, that PABB’s failure to prosecute both its appeals with reasonable diligence and dispatch had resulted in great prejudice to LHS in that:-
(a) PABB’s claim is purportedly for banking facilities pursuant to a letter of offer dated 12/08/1983;
(b) As the PABB’s claim refers to purported transactions dating as far back as 1983, LHS would have difficulty in locating all of its witnesses as some of its directors and managers have since resigned without leaving any forwarding addresses.
(c) Furthermore the 3rd Defendant in the High Court case, i.e. Ng Lak (P) who would have been a relevant witness for LHS’s Defence has since passed away on 07/04/1992.
(d) PABB purported claim for interest is on a sum of RM 1,461,912.00 at 10% per annum calculated on the daily outstanding balance from 06/07/1989 until date of full payment. By prolonging its prosecution of its claim, the PABB’s claim for interest would have been unfairly increased to astronomical proportions.
16. Learned counsel for the PABB in his reply submitted that the previous lawyer who handled this matter was the one who did not do any follow up. As far as he was concerned, he had taken the appropriate action. He however admitted that there was no follow up done earlier until they were reminded by LHS’s counsel.
17. The main issue before us is whether the PABB’s Notices of Appeal and/or Appeals should be struck off for want of prosecution.
18. As submitted by the learned counsel for PABB, its solicitors, Messrs Shook Lin & Bok by letter dated 03/12/1999 had written to the secretary of the High Court Judge requesting for the Notes of Evidence to enable them to file their Appeal Record not later then 13/01/2000. Then on 30/12/1999, PABB’s solicitors by letter (exhibit HMT-2) wrote to the learned President of the Court of Appeal for an extension of time to file the Appeal Record pursuant to Practice Direction of the Court of Appeal No. 1 of 1996. This application for extension of time was allowed by the learned President of the Court of Appeal vide letter dated 25/01/2000 (exhibit HMT-3) and PABB was to file the Appeal Record within 3 weeks from the date of receipt of the Notes of Proceedings.
19. The High Court then issued a latter dated 16/09/2002 to inform the PABB’s solicitors Messrs Shook Lin & Bok, that the Notes
of Evidence and the Grounds of Judgment were ready and that they could be fetched at anytime during office hours (exhibit HMT-4).
20. The only explanation given by PABB’s solicitors as seen in the affidavit of Adrian Hii Muo Teck dated 18/05/2004, in Enclosure 12(a) at paragraph 8, is that they “did not receive the letter and were not aware of it until informed by the Respondent’s solicitors in April 2004”. Thereafter PABB’s solicitors straight away collected the Notes of Evidence and the Grounds of Judgment on 20/04/2002 and filed the Appeal Record on 26/04/2004.
21. It is difficult for us to accept the argument by the learned counsel for PABB that no prejudice had occasioned to LHS on account of the previous solicitor’s, who was handling the matter, failure to do any follow up action. We fully agree with LHS’s counsel submission as to why the LHS had been greatly prejudiced on the grounds as submitted by her in paragraph 15 (a) – (d) above.
22. Solicitors for PABB should have acted expeditiously to fetch the Notes of Evidence and Grounds of Judgment from the High Court Judge’s secretary as soon as they were notified. We cannot accept the excuse given by the solicitor that they had not received the High Court’s letter dated 16/09/2002 addressed to them because LHS’s solicitors were aware of the said letter which was carbon copied to them.
23. For the reasons aforesaid we granted order in terms of Enclosure 10(a) in W-02-949-1999 and dismissed the application in Enclosure 12(a) in W-02-950-1999 with costs to be taxed in both Notices of Motion. The two appeals are also struck off for want of prosecution and without liberty to file afresh.
24. My learned brothers, Richard Malanjum, JCA (as he then was) and Wahab Patail, J have read this Judgment in draft and have expressed their agreement with it.
(DATO’ HASHIM BIN DATO’ HJ. YUSOFF)
Court Of Appeal, Malaysia
Dated: 22nd July, 2008 Parties:
(1) Jayne Koe, M/s Cheah Teh & Su for the Applicant
(2) Adrian Hii Muo Teck, M/s Shook Lin & Bok for the Respondent