1. ) Tan Hoo Eng 2. ) Lim Aun Soon 3. ) DYERA-TIM SDN. BHD. v 1. ) Lim Keck Eng 2. ) Moses Lim Kian Loong 3. ) Tan Kai Kiang 4. ) Eric Tan Kiam Hai 5. ) Dato' Abdul Halim Bin Jalil 6. ) Muhammad Azuan Bin Abdul Aziz 7. ) TETUAN AZRUL AFIFI & AZUAN

Case Significance

Illustrates the importance of complying with the rules governing the record and memorandum of appeal under the Rules of the Court of Appeal 1994, and the court's power to strike out an appeal that is not properly constituted despite the substantive merits below.

This Court of Appeal decision concerns the striking out of an appeal for non-compliance with the rules governing the conduct of appeals. The underlying dispute arose from settlement and supplementary agreements and involved allegations of fraud, coercion, intimidation and undue influence, and claims for specific performance and breach of contract, litigated in the High Court at Kuantan. On appeal, however, the matter turned on procedure. The respondents applied to strike out the appeal, relying on the appellants' failure to comply with the rules of the Rules of the Court of Appeal 1994, including the requirements as to the filing of the record of appeal and the memorandum of appeal, and Practice Direction Court of Appeal No. 1 of 2018. A recurring difficulty concerned the appellants' failure to file a memorandum of appeal and the state of the record of appeal, together with questions about the relationship between the oral grounds delivered at first instance, the transcript of the proceedings and the written grounds of judgment, engaging the analysis in the authority referred to as Firdaus Khan on when a record may proceed without full written grounds. The panel of Supang Lian, Mohd Nazlan bin Mohd Ghazali and Wan Ahmad Farid bin Wan Salleh JJCA considered whether the appellants' non-compliance could be cured or excused by an extension of time or an application to regularise the record. The court dismissed the appellants' motion to regularise the record of appeal and their related motion, and allowed the respondents' motions to strike out the appeal, so that the appeal could not proceed. The judgment is a useful illustration of the importance of complying with the rules governing the filing of the record and memorandum of appeal, and of the court's power to strike out an appeal that is not properly constituted. The judgment reinforces that the rules of appellate procedure are not mere formalities but conditions on which the right of appeal is exercised, and that an appellant who fails to file the memorandum of appeal and to put the record in proper order risks having the appeal struck out, however substantial the underlying grievance may be, unless the default is properly cured within the rules.