1. ) DEVAN A/L KENKARGARO 2. ) SARATHA A/P KENKARGARO v 1. ) MOHAMMAD NASHAFIQ BIN NASARUDIN 2. ) HARIZAN BIN ROSLAN 3. ) JSW TRANSPORT AGENCY

Case Significance

Confirms that a notice of cross-appeal is not a substitute for a properly filed appeal, that it may only answer the appeal actually brought, and that an attempt to use it to raise unappealed issues out of time is incompetent and liable to be struck out under Order 18 rule 19 of the Rules of Court 2012.

This High Court decision at Johor Bahru concerns the competency of a notice of cross-appeal in a civil matter. The appellants applied, by Enclosure 8, to set aside or strike out the first respondent's notice of cross-appeal (Enclosure 5) and a related application for an extension of time to file it (Enclosure 6), invoking Order 18 rule 19(1) of the Rules of Court 2012 together with the court's inherent jurisdiction. The core question was whether the cross-appeal had any legal basis to exist and, if not, whether the court should exercise its power under Order 18 rule 19 to strike it out as an incompetent cross-appeal, made by the wrong procedure and amounting to an abuse of process. The court emphasised at the outset that the application raised more than a technical question of time or formality: it went to the competency of a cross-appeal, a matter settled by Federal Court authority. The governing principle, the court held, is that a cross-appeal cannot be used to raise or revive issues that the party had to challenge by filing its own appeal; it is confined to responding to the appeal actually brought, and cannot be turned into a vehicle for mounting a fresh appeal out of time. Finding the cross-appeal to be substantively incompetent, the court allowed the appellants' application, set aside and declared void the first respondent's notice of cross-appeal, and ordered costs in the cause. It followed that the extension-of-time application had become academic and fell away, there being no competent cross-appeal to validate or revive. The judgment is a useful statement that a cross-appeal is not a substitute for a properly filed appeal and cannot be used to smuggle in unappealed issues, and that the integrity of the appellate process justifies striking out an incompetent cross-appeal rather than curing it by an extension of time.