1. ) CIMB BANK BERHAD 2. ) JANNY CHEAH v TAN HOO ENG

Case Significance

A Court of Appeal ruling allowing an extension of time to perfect appeals in an AMLA forfeiture matter and refusing to strike them out under Rule 18, preferring a merits determination over a curable default.

This Court of Appeal decision concerns two related procedural applications in appeals arising out of a forfeiture matter connected to proceedings under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. The appellants, a bank and an individual, had lodged appeals but had not filed and served the appeal records within the time prescribed, and the competing applications before the Court were the appellants' application for an extension of time to file and serve the appeal records and the respondent's application to strike out the Notices of Appeal and Memoranda of Appeal under Rule 18 of the Rules of the Court of Appeal 1994.

The two applications pull in opposite directions and are governed by well-settled principles. The court's discretion to extend time is exercised to secure substantive justice, weighing the length of the delay, the explanation for it, the absence of serious prejudice to the respondent, and the prospects of the intended appeal, so that a litigant is not shut out of an appeal on the merits for a procedural lapse that can be remedied. Rule 18, by contrast, empowers the court to strike out an appeal where the appellant has failed to comply with the requirements for the appeal records; but striking out is a serious step, and the court will not resort to it where the default is explicable and can be cured by an extension of time on terms.

Balancing these considerations, the Court found reason to allow the extension-of-time application and correspondingly declined to strike out the appeals, so that the appeals could proceed to be heard on their merits. The judgment is a useful illustration of the interplay between an application to extend time to perfect an appeal and an application to strike it out under Rule 18 of the Rules of the Court of Appeal 1994, and of the court's preference for determining appeals on their merits rather than terminating them for a curable procedural default.