Firdaus Khan Bin Parit Khan v CIMB Bank Berhad [2024] 4 MLJ 

Court of Appeal Putrajaya

Application for Extension of Time to File Memorandum of Appeal 

1. In this case, the Plaintiff (CIMB Bank) had successfully obtained a decision in its favour from the High Court against the two Defendants. Dissatisfied with the High Court’s ruling delivered on 23 February 2021, the Defendants decided to appeal to the Court of Appeal.
2. To proceed with the appeal, the Defendants filed the Record of Appeal (RA) on 17 May 2021 which is within the 90-day timeframe mandated by the Rules of the Court of Appeal 1994 (RCA). However, the RA submitted did not include the Memorandum of Appeal (MA) because the High Court had not yet released its written judgment or reasons for decision by that time.
3. Once the 90-day deadline passed on 24 May 2021, the second Defendant later filed a motion (Enclosure 7) on 21 December 2023 to request additional time to file the missing MA. Eventually, the High Court’s written judgment was released on 20 March 2024. Following this, the second Defendant filed a Supplemental Record of Appeal (SRA) on 20 April 2024, which included the judgment and the MA.
4. The Plaintiff opposed this motion, arguing that subrule 18(7) of the Court of Appeal Rules imposed a strict obligation for the MA to be included in the original RA within the 90-day limit. They further contended that there had been an unreasonable delay of almost two and a half years and that no valid explanation was provided for this delay.
5. In response, the second Defendant claimed there was a mutual understanding between parties that the MA would only be filed after receiving the High Court’s written judgment. They also argued that dismissing the motion would result in severe injustice to the Defendants, while allowing it would not harm the plaintiff. The second Defendant also invoked the court’s inherent powers to grant the extension in the interest of fairness.

1. Whether there was mandatory requirement under subrule 18(7) of Rules of the Court of Appeal 1994 (‘RCA’) for Appellant to file MA within 90 days from date of High Court’s decision
2. Whether appeal should be dismissed or struck out due to breach of r 18(7) of RCA.

1. The Court analysed this issue by distinguishing three possible scenarios involving the availability of the High Court’s written judgment.
2. In the first scenario, where the written judgment is available within the 90-day timeframe, the Court confirmed that rule 18(7) of RCA imposes a mandatory obligation to file the MA within that period as part of the Record of Appeal (RA). However, if the Appellant fails to comply, they may apply for an extension of time under rule 93 of RCA to submit a Supplemental Record of Appeal (SRA) later.
3. For the second scenario, where the written judgment is only released after the 90-day deadline, the Court held that Rule 18(7A) of RCA overrides the general requirement in rule 18(7) of RCA. Under rule 18(7A), the Appellant is given three weeks from the date they are notified of the availability of the judgment to file the MA and complete the SRA. This rule was introduced through the 2012 amendments and aims to prevent injustice by allowing time to properly draft the MA based on the actual reasoning of the trial judge.
4. The Court reasoned that it would be unfair and impractical to expect an Appellant to prepare a meaningful memorandum without knowing the basis of the High Court’s decision. In such cases, forcing the Appellant to speculate on the grounds of appeal may result in inefficiency, unnecessary applications, and procedural objections.
5. In the third scenario, where the High Court’s written judgment is not made available at all, the Court has discretion under rule 18(7B) to order the Appellant to proceed with the appeal anyway. In such rare circumstances, the Appellant may still be directed to file a memorandum of appeal without having the benefit of the trial court’s reasoning, so that the Court of Appeal and parties have something to work with during the hearing.
6. Overall, the Court adopted a context-sensitive approach, giving effect to the rules in a way that aligns with justice and fairness, as reinforced by rule 1A of the RCA.

2. Whether appeal should be dismissed or struck out due to breach of rule 18(7) of RCA

1. The Court of Appeal considered whether a failure to comply with rule 18(7) specifically, failing to include the memorandum of appeal (MA) within the 90-day filing period automatically justifies striking out or dismissing an appeal.
2. The Court concluded that a breach of rule 18(7) does not automatically void the appeal. Under rule 102, non-compliance with procedural rules does not render proceedings invalid unless the court directs otherwise. Furthermore, rule 3A prevents the Court from allowing a preliminary objection based solely on a technical breach unless it results in a substantial miscarriage of justice. In this case, no such prejudice to the Respondent was shown.
3. The Court emphasized that if the reason for the delay in filing the MA is due to the absence of the High Court’s written judgment, then this constitutes a valid and sufficient explanation. According to subrule 21(3), an appeal can only be dismissed for delay if no reasonable justification is provided. Therefore, when the written judgment is not yet available, the delay is excusable.
4. The Court also cautioned that striking out an appeal on purely procedural grounds without allowing it to be heard on its merits can cause serious injustice to the Appellant, especially when no further appeal to the Federal Court is possible under paragraph 96(a) of the Courts of Judicature Act 1964. This is because procedural dismissals may not qualify as appealable “judgments” under that provision.
5. Regarding applications for an extension of time, the Court observed that if the delay was beyond the Appellant’s control (e.g., awaiting the High Court’s judgment), then refusing the extension would be unfair. Even if there is some delay, any minor prejudice to the Respondent can be dealt with by ordering costs, rather than striking out the appeal entirely.
6. In short, the Court adopted a balanced and justice-focused approach, emphasizing that procedural rules should not override the substantive right to appeal, especially when the breach causes no actual harm and can be remedied.

1. The Court of Appeal allowed the Appellant’s application for an extension of time to file the Supplemental Record of Appeal (SRA) containing the memorandum of appeal and the High Court’s written judgment. The Court ruled that the Appellant’s failure to include the memorandum of appeal within the initial 90-day period under Rule 18(7) of the Rules of the Court of Appeal 1994 (RCA) was not fatal to the appeal, given that the High Court’s written judgment had not been available during that time.
2. The Court found that the situation fell within the scope of Rule 18(7A), which provides a further three-week window to file the necessary documents once they become available. It also held that procedural breaches alone do not justify striking out an appeal unless they cause substantial injustice. Therefore, the Respondent’s objection and application to dismiss the appeal were dismissed.

1. The Court emphasized that technical non-compliance with procedural rules should not defeat an appeal, especially when no substantial prejudice is caused to the opposing party. This is reinforced by Rules 1A and 3A of the RCA.
2. Subrule 18(7) of RCA is not absolute in all circumstances. This is due to the fact that while subrule 18(7) of RCA requires that a memorandum of appeal be filed within 90 days, this rule is subject to Rule 18(7A), which allows flexibility where the High Court’s written grounds are not yet available.