Tenaga Nasional Berhad (TNB) v MAHADEVAN A/L K SUBRAMANIAM

Case Significance

Confirms that a solicitor's mistake, together with an inordinate and unexplained delay, will not ordinarily justify extending time to file a notice of appeal against a Magistrates' Court decision.

This High Court decision at Kuala Lumpur concerns an application by originating summons for leave to extend the time to file and serve a notice of appeal against a decision of the Magistrates' Court. The plaintiff, a utility company, had sued in the Magistrates' Court over the alleged tampering of an electrical meter at the defendant's premises, and that suit was dismissed. The plaintiff instructed its solicitors to appeal, but the notice of appeal was not filed in time. There was a delay of at least nine months, which arose because the solicitor handling the matter had wrongly filed the extension application in the Magistrates' Court and had failed to file it in the High Court.

The court's task was to decide whether that delay should be excused. The governing principle is that an extension of time is a discretionary indulgence that requires the applicant to give an acceptable explanation for the delay, and that the delay must not be inordinate and inexcusable. The court held that the delay here was inordinate and inexcusable, and, crucially, that the mistake of the solicitor handling the matter was not a sufficient ground to excuse it. Drawing on authority including Chin Hua Sawmill Co Sdn Bhd v Tuan Yusoff bin Tuan Mohamed, it reiterated that a solicitor's mistake is not, without more, a ground for granting special leave, because no principled dividing line can be drawn between a mistake that supports the exercise of the discretion and one that does not; a mistake is a mistake, whatever its reason.

Applying those principles, the court found that no acceptable explanation had been given for the flagrant breach of the rules, and it declined to extend the time, dismissing the originating summons. The judgment is a clear application of the rule that a solicitor's error, and an inordinate and unexplained delay, will not ordinarily justify extending time to appeal.