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

Shows the strictness with which appellate time limits under the Rules of Court 2012 are enforced: an appeal against a refusal to set aside a default judgment can be struck out without reaching the merits where the Record of Appeal is filed late and the only explanation is the appellant's own oversight.

This High Court decision at Kuala Lumpur is an appeal from the Sessions Court in a debt action, and it turns entirely on the appellants' failure to keep to procedural time limits. In the Sessions Court the respondent company had obtained a judgment in default of defence against the appellants — two corporate defendants and an individual defendant — and the appellants' application to set that default judgment aside and to obtain an extension of time to file a defence and counterclaim had been dismissed. Dissatisfied, they appealed to the High Court. Before the appeal could be heard on its merits, however, the appellants filed their Record of Appeal late and were obliged to apply for an extension of time. The High Court refused that application. It found that the supporting affidavit for the extension application had itself been filed outside the 14-day period fixed by the Rules, and held that a delay caused by the appellants' own mistake was tidak sepatutnya — not proper — and was not a reasonable and justifiable ground on which to grant an extension of time. Having refused the extension, Judicial Commissioner Suzana binti Muhamad Said dismissed the extension application, struck out the appeal, and treated the accompanying application to stay execution as academic because the appeal had been struck out. Because the extension was refused at the threshold, the merits of whether the default judgment should have been set aside — and whether any proposed defence and counterclaim disclosed a triable issue — were never reached. The judgment is a useful illustration of the strictness with which the courts police appellate time limits under the Rules of Court 2012: an appeal against the refusal to set aside a default judgment may never reach the merits where the appellant fails to file the Record of Appeal in time and can offer nothing better than its own oversight to explain the delay.