MOHD MUSYRIFF BIN AHMAD TAJUDDIN v 1. ) NADIRAH BINTI AHMAD 2. ) AZUDEN BIN AZIZ 3. ) ABDUL RAHAMAN BIN WAN LAH
Outcome
For the foregoing reasons, I therefore dismiss this Application with cost of Rm3,500.00 each to the Plaintiff and First Defendant.
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Case Significance
Holds that an extension of time to pursue an Order 37 assessment of damages will be refused where the applicant fails to give a credible, evidenced explanation for a lengthy and unreasonable delay.
This High Court decision at Alor Setar concerns an interlocutory application by the second and third defendants for an extension of time to proceed with an assessment of damages under Order 37 of the Rules of Court 2012. The assessment had been ordered following an earlier order concerning the alienation of land, and the Court of Appeal had, in December 2021, directed that the assessment of damages be determined by the High Court. The applicants sought more time to have that assessment carried out, and the court's task was to decide whether the delay had been adequately explained and justified.
The governing principle is that a party seeking an extension of time must place before the court, on affidavit, a proper and plausible explanation for the delay, and must discharge the evidential burden of justifying it; a court exercising its case-management powers looks to the interests of justice, but is not obliged to excuse delay that is left unexplained. The applicants' affidavit evidence sought to attribute the delay in part to encroachment or interference with the land by the plaintiff, an explanation the court found unacceptable on the material before it.
The court drew on recent authority, including Bunyak Anak Gadin v Superintendent of Land, in which a delay of almost a decade in obtaining a valuer's assessment of the damages arising from an adjudged infringement was held to be plainly excessive and unreasonable, it being implausible that a qualified valuer could not assess the value or the damage over so long a period. The court also noted that the applicants had failed to produce any affidavit in support from the third defendant and had not shown any coherent or plausible circumstances to justify the delay. Finding the delay unexplained and unjustified, the court dismissed the extension-of-time application. The judgment illustrates that an extension of time for a damages assessment will be refused where the applicant fails to give a credible, evidenced explanation for a lengthy delay.
What did the applicants have to show to obtain an extension of time?
The court held that a party seeking an extension of time must give, on affidavit, a proper and plausible explanation for the delay and discharge the evidential burden of justifying it. While the interests of justice are considered, a court is not obliged to excuse delay that is left unexplained.
Why was the extension refused?
The court found the applicants' explanation, attributing the delay partly to encroachment by the plaintiff, unacceptable, noted the absence of any supporting affidavit from the third defendant, and, drawing on Bunyak Anak Gadin v Superintendent of Land, held that a lengthy delay in obtaining a valuer's assessment was plainly excessive and unjustified. It dismissed the application.
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Judgment
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