1. ) MASHUDAN BIN KAMAR 2. ) Kharil Bin Sulaiman (Menuntut Sebagai Pengamanah Persekutuan Guru-guru Melayu Johor, Cawangan Batu Pahat) 3. ) HAJI SANUSI BIN HAJI LAMBING 4. ) HJ ABDUL KADIR BIN HJ MUHAMMAD 5. ) ZAMILAH BINTI HAJI EKHWAN 6. )

1. ) MASHUDAN BIN KAMAR 2. ) Kharil Bin Sulaiman (Menuntut Sebagai Pengamanah Persekutuan Guru-guru Melayu Johor, Cawangan Batu Pahat) 3. ) HAJI SANUSI BIN HAJI LAMBING 4. ) HJ ABDUL KADIR BIN HJ MUHAMMAD 5. ) ZAMILAH BINTI HAJI EKHWAN 6. )

The preliminary objection was dismissed because the Respondent's cross-appeal was a permissible procedural device to preserve its rights vis-a-vis the third parties in the event the Appellants succeeded, no party was prejudiced, the Court of Appeal may exercise its wide powers under s.69 CJA to hear all parties and do substantive justice, and the Appellants' late challenge was barred by delay under r.103 RCA 1994.

Citation
J-02(NCvC)(W)-2088-11/2021 (Mahkamah Rayuan)
Parties
Appellant: Mashudan bin Kamar; Appellant: Kharil bin Sulaiman; Appellant: Haji Sanusi bin Haji Lambing; Appellant: Hj Abdul Kadir bin Hj Muhammad; Appellant: Zamilah binti Haji Ekhwan; Appellant: Haji Ekhwan bin Mohd Othman @ Dairy; Respondent (defendant in High Court): Bank Islam Malaysia Berhad; 1st Third Party: Omar bin Kassim; 2nd Third Party: Zul Azam bin Md Dahlan; 3rd Third Party: Sabaruddin bin Ali
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
1 March 2023
Case Number
J-02(NCvC)(W)-2088-11/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) / Preliminary Objection Raised at Hearing of Appeal
Outcome
Preliminary objection dismissed
Legal Topics
Notice of Cross Appeal, Competency of Cross Appeal, Striking Out, Third Party Proceedings, Remittal, Costs
Source Language
Malay/English
Civil Procedure Appeals Trusts Professional Negligence Civil Remedies Notice of Cross Appeal Competency of Cross Appeal Striking Out +3 more

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Parties

Mashudan bin Kamar

Appellant

Kharil bin Sulaiman

Appellant

Haji Sanusi bin Haji Lambing

Appellant

Hj Abdul Kadir bin Hj Muhammad

Appellant

Zamilah binti Haji Ekhwan

Appellant

Haji Ekhwan bin Mohd Othman @ Dairy

Appellant

Bank Islam Malaysia Berhad

Respondent (defendant in High Court)

Omar bin Kassim

1st Third Party

Zul Azam bin Md Dahlan

2nd Third Party

Sabaruddin bin Ali

3rd Third Party

Procedural Posture

Civil Appeal (court of Appeal) / Preliminary Objection Raised at Hearing of Appeal

Legal Issues

  1. 1 Whether the Respondent's Notice of Cross-Appeal was competent
  2. 2 Whether a cross-appeal may set aside findings against third parties not appealed by the appellant
  3. 3 Whether the preliminary objection was raised late and barred by delay

Ratio Decidendi

The preliminary objection was dismissed because the Respondent's cross-appeal was a permissible procedural device to preserve its rights vis-a-vis the third parties in the event the Appellants succeeded, no party was prejudiced, the Court of Appeal may exercise its wide powers under s.69 CJA to hear all parties and do substantive justice, and the Appellants' late challenge was barred by delay under r.103 RCA 1994.

Court Disposition

Preliminary objection dismissed

Orders

  • Preliminary objection dismissed
  • Costs of RM5,000.00 to be paid by the Appellants/Plaintiffs to the Respondent/Defendant