1. ) JANACOM KONSORTIUM SDN BHD 2. ) JANACON TRADING SDN BHD 3. ) JANATHANAN A/L GOVINTHA NAIR v LE TOUR DU MONDE SDN BHD

Case Significance

Illustrates the central importance of the Record of Appeal to an appellate hearing and the limited scope of the court's inherent jurisdiction to entertain an appeal filed without one.

This High Court decision at Kuala Lumpur concerns an application by the appellants for an extension of time to file the Record of Appeal in a civil appeal from the Sessions Court, and the consequences of that application failing. The appellants, two companies and an individual who had been the defendants below, applied under Order 3 rule 5 and Order 92 rule 4 of the Rules of Court 2012 for an extension of time to file the Record of Appeal against a judgment obtained by the respondent, the plaintiff below. The court had to weigh whether the delay was genuine and not made in bad faith, whether it would prejudice the respondent, whether the irregularity was curable rather than an illegality, and whether the underlying appeal had merit, including whether the defendants retained any right to pursue a counterclaim. A significant obstacle was that, by an earlier decision in a related appeal, the Sessions Court judge had effectively struck out the defendants' counterclaim by declining to consolidate the appeals, so that even if an extension were granted and the appeal ultimately succeeded in setting aside the judgment, the defendants would have no surviving right to file their counterclaim. The court also declined to consider a written submission that had been filed out of time without any application for an extension or leave. On the merits of the extension application the court was not persuaded and dismissed it with costs, observing that responsibility for the conduct of the file had been candidly accepted by counsel appearing at the hearing. The respondent's counsel then submitted that, without a Record of Appeal, the appeal could not stand, because the cause papers and submissions considered by the Sessions Court judge would not be before the High Court; the appellants argued the court could still hear the merits under Order 92 rule 4. The court agreed with the respondent and dismissed the appeal for want of a Record of Appeal, with no order as to costs. The judgment is a useful illustration of the importance of the Record of Appeal to an appellate hearing and of the limits of the court's inherent jurisdiction to save an appeal filed without one.