THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CORMMERCIAL DIVISION) SUIT NO: D2-22-987-2002
INDAH DESA SAUJANA CORP SDN. BHD. & 2 ORS
PUBLIC BANK BERHAD GROUNDS OF JUDGMENT
This is an application by the Plaintiff pursuant to Order 3 Rule 5 Rules of the High Court 1980 (RHC) for leave for extension of time to file a Notice of Appeal under Order 56 Rule 2 RHC.
The Plaintiff intends to appeal against the decision of the Registrar ordering a Security of Costs of RM50,000.00 against the 1st and 2nd Defendants made on 9.7.2009. The security for costs in the sum of RM50,000.00 must be deposited within 45 days of the Order which would have been on 24.8.2009.
The Defendant filed a Notice of Appeal on 17.7.2009 on the quantum of RM50,000.00. The Plaintiff however did not file any appeal against the Order within 10 days of the Order as required under Order 56 Rule 1(3) RHC.
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The Plaintiff failed to pay the security for costs as ordered and had notified the Defendant that would not be paying until the disposal of the appeal. The Defendant then withdrew its appeal. The Plaintiff subsequently filed the application for extension of time to appeal against the order of the Registrar on 10.9.2009.
The power of the Court to grant extension of time is discretionary but must be granted with caution. In Soh Kian Hian v. AIA Co. Ltd 1 MLJ 191 the Court of Appeal reminded that,
“..It is axiomatic that this court is seized of a wide discretion to extend
time in proper and deserving cases. But it is not unprincipled discretion. There must be some relevant evidential material made available to us before we may exercise discretion.”
In this case the Plaintiff only decided to appeal on 10.9.2009 after the Defendant had withdrew the notice of appeal. The reason given by the Plaintiff for filing the notice of appeal is that the since the Defendant had withdrew the notice of appeal they were now compelled to file the appeal. No other reasons were given.
The guiding principles for the Court when considering application for enlargement of time are as follows:-
1) length of the delay;
2) reasons for the delay;
3) chances of the appeal succeeding if the extension is granted; and
4) degree of prejudice to the Respondent if the extension is granted.
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Applying the principles above the Court in Development & Commercial Bank Bhd. v. Tan Ong Hwa  2 MLJ 764 was of the view that the delay seven days was not unreasonable or unjustifiable after taking in to the consideration that part of the delay was due to the inefficiency of the postal service. However, in Cheviot Industries (M) Sdn. Bhd. v. Lean Hup Brothers Co.  1 CLJ (Rep) 411 it was held if the delay was due the oversight or mistake on the part of the solicitors to advise their client of the time limited to file a notice of appeal were not fall within “some material” or “instances” which warrant the court’s discretion in favour of the application,
“The issue is whether an oversight or mistake on the part of the defendant’s solicitors to advise the client, the defendant, of the time limited to file a notice of appeal is sufficient ground for granting an extension of time to file a notice of appeal. I answer this issue in the negative as failure to advise the defendant could not have prevented the solicitors for filing a notice of appeal if they wanted to. The fact that they did not, can only mean that they had considered that the defendant had no merits to appeal in the first place.”
Plaintiff only filed the application two months after the Order was granted and only decided to appeal after the Defendant withdrew even though the Plaintiff could have also filed their notice within the time stipulated.
The next issue which I would have to consider is whether the appeal can succeed if the extension is granted and if it will prejudice the Defendant if the extension is granted.
The arguments on security for costs have been fully ventilated by both parties before the Registrar who have heard and considered those arguments and awarded security for cost.
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Therefore the Application by the Plaintiff pursuant to Order 3 Rule 5 Rules of the High Court 1980 (RHC) for leave for extension of time to file a Notice of Appeal under Order 56 Rule 2 RHC is dismissed with cost.
(HASNAH BINTI DATO’ MOHAMMED HASHIM)
High Court of Malaya at Kuala Lumpur.
14 May 2010.