TECHWARE ENTERPRISE SDN BHD 1. ) FOO YEN LENG, MENDAKWA SEBAGAI WASI KEPADA HARTA PUSAKA FOO PEI LENG, SIMATI 2. ) FOO BOON KHENG, MENDAKWA SEBAGAI WASI KEPADA HARTA PUSAKA FOO PEI LENG, SIMATI 3. ) FOO BOON KHENG

PA-12ANCvC-15-04/2025 Kand. 20 31/03/2026 18:16:35 DALAM MAHKAMAH TINGGI MALAYA DI GEORGETOWN DALAM NEGERI PULAU PINANG, MALAYSIA RAYUAN SIVIL NO. PA-12ANCVC-15-04/2025 ANTARA TECHWARE ENTERPRISE SDN BHD (NO. SYARIKAT: 313594-A) …PERAYU DAN 1. FOO YEN LENG (NO. K/P: 770510-07-6146) 2. FOO BOON KHENG (NO. K/P: 840123-07-5363) [KEDUA-DUANYA MENDAKWA SEBAGAI WASI-WASI KEPADA HARTA PUSAKA FOO PEI LENG, SIMATI] 3. FOO BOON KHENG (NO. K/P: 840123-07-5363) …RESPONDEN-RESPONDEN [DALAM MAHKAMAH SESYEN GEORGETOWN DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN SIVIL NO.: PA-A52NCVC-114-08/2024] ANTARA 1. FOO YEN LENG (NO. K/P: 770510-07-6146) 2. FOO BOON KHENG (NO. K/P: 840123-07-5363 S/N 82tvO7JNfUeccT/eaHW8g 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal [KEDUA-DUANYA MENDAKWA SEBAGAI WASI-WASI KEPADA HARTA PUSAKA FOO PEI LENG, SIMATI] 3. FOO BOON KHENG (NO. K/P: 840123-07-5363) …PLAINTIF-PLAINTIF DAN TECHWARE ENTERPRISE SDN BHD (NO. SYARIKAT: 313594-A) …DEFENDAN GROUNDS OF JUDGMENT INTRODUCTION [1] The Appellant files an application for an extension of time to file the Record of Appeal in Enclosure 3. The application arises from the Appellant’s failure to comply with the prescribed timeline for filing the Record of Appeal following the filing of the Notice of Appeal. BRIEF FACTS [2] The Appellant filed a Notice of Appeal on 26.04.2025 against the decision of the Sessions Court Judge given on 15.4.2025 in respect of an application under Order 14 of the Rules of Court 2012 (ROC 2012). [3] Pursuant to Order 55 rule 5(3) of the ROC 2012, the Appellant is required to file the Record of Appeal on or before 25.05.2025. S/N 82tvO7JNfUeccT/eaHW8g 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal [4] Only on 30.05.2025, the Appellant’s solicitors emailed the draft index to the Record of Appeal to the Respondents’ solicitors, which was after the expiry of the deadline. [5] The matter was then fixed for a case management on 03.06.2025 before the Senior Assistant Registrar, where the Appellant was directed to file a proper application for an extension of time to file the Record of Appeal. [6] Thereafter, the Appellant filed the application for an extension of time to file the Record of Appeal on 11.6.2026. CONTENTION OF PARTIES Appellant’s Contention [7] The Appellant contended that the delay in filing the Record of Appeal had been explained in the Affidavit in Support, where it was stated that the delay was due to the Appellants’ solicitors being involved in an office relocation. [8] The Appellant submitted that the intention to pursue the appeal was clearly demonstrated by the timely filing of the Notice of Appeal, and that only the Record of Appeal was not filed within the prescribed 30 days. [9] It was further contended that the delay was not intentional and that the Appellant had clearly and unequivocally explained that the delay was justified with valid reasons. [10] Further, the Appellant submitted that the Respondent has failed to state what prejudice would be suffered if the Record of Appeal is allowed to be filed out of time. S/N 82tvO7JNfUeccT/eaHW8g 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal [11] The Appellant then submitted that it is more just and equitable for the appeal to be heard on its merits rather than being defeated by technical objections, particularly where no prejudice has been shown. [12] It was further contended that any delay can be compensated by way of costs, and that the appeal should be allowed to proceed on its merits. [13] Reliance was also made to the case of Hafizzuddin Nordin v Pacific & Orient Insurance Co Berhad [2014] MLRHU 1507 and a Federal Court case of Lee Guat Eng v Tan Lian Kim [1985] 1 MLRA 504 to support the proposition of the Appellant that this Court has the discretion to grant an extension of time and to regularise a non-compliance where appropriate, in the interest of justice. Respondent’s Contention [14] On the other hand, the Respondent contended that the Appellant has failed to provide a satisfactory and credible explanation for the delay in filing the Record of Appeal. [15] The Respondent submitted that the Appellant’s reliance on office relocation as an excuse, is untenable. [16] It was argued that the new address of the Appellant’s solicitors had already taken effect from 01.04.2025, and despite any transition, it was the responsibility of the Appellant’s solicitors to prioritise and manage their cases effectively. S/N 82tvO7JNfUeccT/eaHW8g 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal [17] The Respondent further submitted that the installation of computers and office setup had been completed by 09.05.2025, and the Appellant still had more than two weeks to file the Record of Appeal, but failed to do so. [18] The Respondent contended that the Appellant made no effort to seek consent from the Respondents’ solicitors for any late filing and also failed to promptly apply for an extension of time until a case management session by the Senior Assistant Registrar, which was after the deadline to file the Record of Appeal had lapsed. [19] The Respondent further submitted that granting an extension would unduly prejudice the Respondent, who has a legitimate expectation of finality. [20] The Respondent argued that the Appellant has neither adequately explained the delay nor demonstrated any genuine effort to comply with Order 55 rule 5(3) of the ROC 2012, where compliance is mandatory. ISSUE [21] Whether the Appellant has shown sufficient and bona fide reasons to justify an extension of time under Order 55 Rule 5 of the ROC 2012? ANALYSIS AND FINDINGS [22] Order 55 of the ROC 2012 is a mandatory provision. Under Order 55 Rule 5(4)(1), it stipulates that “In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of notice of appeal prepare and file the requisite number of copies of the record of appeal in the High court...”. S/N 82tvO7JNfUeccT/eaHW8g 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal [23] In this regard, the Court of Appeal in Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, held that the use of the word “shall” in Order 55 of the ROC 2012 connotes the mandatory nature of the provision – “[15] Clearly the use of the word "shall" connotes the mandatory nature of the requirement. Failure by the appellant to adhere to the need to provide the solicitors to the respondent the draft index quite palpably deprive of the latter the right to object to the inclusion or exclusion of any document and may have the effect of undermining the integrity and credibility of the appeal record …” (Emphasis Added) [24] Likewise, the Court of Appeal in Capital Insurance Bhd v. Kasim Mohd Ali [1999] 1 MLRA 572, held that “In our view the Rules and Practice Directions made by this court are to be obeyed and not to be broken. We would like to stress here that parties to an appeal must adhere and comply strictly to those Rules and Directions. Of late we found that there were numerous instances where parties had not adhered or complied to those Rules and Directions and we want to make it clear that they do so at their own risk...”. [25] Before going any further, this Court has also observed that- 26.04.2025 The Appellant filed Notice of Appeal 25.05.2025 Last day to file Record of Appeal 30.05.2025 The Appellant's solicitors emailedthe Respondents' (Friday) @ 8.01 solicitors for comments on the draft index to the Record pm of Appeal and Case Chronology 11.06.2025 Application for extension of time filed. S/N 82tvO7JNfUeccT/eaHW8g 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal [26] Furthermore, in Exhibit “ZZ-3” of the affidavit in support (Enclosure 4) of the Appellant’s application in Enclosure 3, the Appellant’s counsel has written to the Bar Council to notify that the firm has moved to a new location effective 1 April 2025, and clearly, this appeal was filed after the relocation and not during the transition period of relocation. [27] Therefore, this Court finds that the delay is not justified merely because the firm was relocated; furthermore, the relocation occurred much earlier, before the filing of the Notice of Appeal. [28] The Respondents submitted that it was the Appellant's solicitors' responsibility to prioritise and manage their cases effectively, even during the office relocation. The installation of computers and office setup was completed by 9.5.2025. The Appellant had more than two weeks (from 10.5.2025) to complete and file the Record of Appeal, yet failed to do so. Further, despite the expiry of the deadline, they have not made any effort to seek the Respondents' consent for any late filing and have failed to promptly apply for an extension of time or to show the urgency of the matter. It was also submitted that the granting of the extension would prejudice the Respondents. [29] Thus, this Court is inclined to the Respondents’ submission and is convinced that the reason for the delay was not justified for this Court to allow an extension of time to file the Record of Appeal. The Appellant filed the extension only on 11.6.2025, when the Record of Appeal was due on 25.5.2025, as the Notice of Appeal was filed on 26.4.2025. S/N 82tvO7JNfUeccT/eaHW8g 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal [30] Most importantly, Order 55 of the ROC 2012 is a mandatory provision drafted for compliance, not otherwise, and the Appellant has failed to do so. CONCLUSION [31] Having considered the documents filed herein, including submissions by the parties and the applicable principles on granting an extension of time, this Court is of the considered view that the Appellant has failed to establish sufficient and bona fide reasons to justify an extension of time under Order 55 Rule 5 of the ROC 2012. Thus, Enclosure 3 is dismissed with costs. [32] Accordingly, an appeal is incompetent without a complete and proper record of appeal (see Pembinaan Kogo Sdn Bhd & Yang Lain lwn. Lpi Capital Bhd [2006] 2 MLRA 98; [2006] 6 MLJ 651; [2006] 4 CLJ 255; [2006] 6 AMR 26 [CA]); therefore, this Court has struck off the Notice of Appeal. DATED: 26 MARCH 2026 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of The High Court High Court 3 Georgetown, Pulau Pinang S/N 82tvO7JNfUeccT/eaHW8g 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal For the Appellant: Mohd Nazreev Bin Mohd Najeeb Tetuan N. Ahilan & Associates For the Respondent: Wan Sau Shon Tetuan Lee & Shon S/N 82tvO7JNfUeccT/eaHW8g 9 **Note : Serial number will be used to verify the originality of this document via eFILING portal