1. ) CIMB BANK BERHAD 2. ) JANNY CHEAH 3. ) LIM CHEW LIANG v TAN HOO ENG
Outcome
First, we allow the Appellants' applications for extension of time filed as Enclosure 148 in Appeal 202 and Enclosure 138 in Appeal 203.
Catchwords
Practice Areas
Judges (3)
Counsel (4)
Case Significance
A companion Court of Appeal ruling declining to strike out an AMLA-forfeiture appeal under Rule 18 and granting an extension of time, applying the restraint required before terminating an appeal for a curable default.
This Court of Appeal decision is a companion to a related appeal and concerns the same competing procedural applications — an application to extend time to file and serve the appeal records, and an application to strike out the Notices of Appeal and Memoranda of Appeal under Rule 18 of the Rules of the Court of Appeal 1994 — this time in an appeal to which a further individual appellant was party alongside the bank. The appeals arose from a forfeiture matter connected with proceedings under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, and the appellants had not perfected their appeals within the prescribed time.
The emphasis here falls on the strike-out limb and the threshold that must be crossed before an appeal is terminated for non-compliance. Rule 18 confers a discretion to strike out an appeal where the appellant has failed to file the appeal records as required, but the power is not exercised mechanically upon any default. The court asks whether the failure is deliberate or contumelious, whether it has caused the respondent real prejudice that cannot be compensated, and whether the interests of justice are better served by allowing the appellant a further, time-limited opportunity to comply. A default that is adequately explained and curable will ordinarily attract an extension of time rather than the drastic sanction of striking out, so that the substantive appeal is not lost on a procedural point.
Consistently with the related appeal, the Court found grounds to grant the extension of time and declined to strike out the appeal, allowing it to proceed. The judgment is a useful illustration of the restraint the Court of Appeal exercises before striking out an appeal under Rule 18, and of how an application to strike out and a cross-application to extend time are resolved together in favour of hearing the appeal on its merits where the default is curable.
Summary
This appeal was heard together with Appeal 202, involving CIMB Bank, Janny Cheah and Lim Chew Liang as appellants against Tan Hoo Eng in related AMLA proceedings concerning civil contempt orders. The Court of Appeal granted the same relief as in Appeal 202, allowing the extension of time to file appeal records and dismissing the striking out motions. The Court directed that both substantive appeals proceed to hearing on their merits as soon as practicable.
What was distinctive about this companion appeal?
It raised the same extension-of-time and strike-out applications under Rule 18 of the Rules of the Court of Appeal 1994 as the related appeal, but in an appeal that included a further individual appellant alongside the bank, the appeal records again not having been filed in time.
When will the Court strike out an appeal under Rule 18?
Only where the default is deliberate or contumelious or has caused irremediable prejudice; a curable, adequately explained default attracts an extension of time instead, and consistently with the related appeal the Court granted the extension and declined to strike out, allowing the appeal to proceed.
Judgment
Read the full judgment on the official Malaysia Courts portal.
Read on eJudgmentSource: eJudgment (a-05-203-05-2021)