JCW

[Consequential Order to extend time after first order given by the Court of Appeal was breached] Justin was the counsel for the Defendants/Appellants in this case. In this case, pursuant to the Defendants’ 1st Appeal (CA), the following order was made by CA on 25.8.2021 [CA’s Order (25.8.2021)], among others: (1)the Defendants’ 1st Appeal (CA) was dismissed {Paragraph (a) [CA’s Order (25.8.2021)]}; and (2)the HC’s Dismissal (Defendants’ Striking Out Application) was varied wherein the Plaintiffs were required to join Mr. Soo and Ms. Lim as co-plaintiffs or co-defendants in the Suit within 14 days from the date of CA’s Order (25.8.2021) {14 Days Period [Paragraph (b)]} and if the Plaintiffs fail to do so, the Suit shall stand as struck off {Paragraph (b) [CA’s Order (25.8.2021)]}. Pursuant to Paragraph (b) [CA’s Order (25.8.2021)], on 2.9.2021 the Plaintiffs filed an application to join Mr. Soo and Ms. Lim as parties in the Suit [Plaintiffs’ Joinder Application (HC)]. The Plaintiffs’ Joinder Application (HC) was supported by an affidavit purportedly affirmed on 2.9.2021 by the second plaintiff (2nd Plaintiff) before a Commissioner for Oaths, Tengku Fariddudin bin Tengku Sulaiman (CFO). The Defendants objected to the Plaintiffs’ Joinder Application (HC) on the ground that, among others, the 2nd Plaintiff’s affidavit had not been affirmed before the CFO. The learned HC Judge struck out the Plaintiffs’ Joinder Application (HC) with - (1)no order as to costs; and (2)liberty to file a fresh Plaintiffs’ Joinder Application (HC) subject to “direction” (arahan) which may be obtained by the Plaintiffs from the CA with regard to the 14 Days Period [Paragraph (b)] (time period for the Plaintiffs to join Mr. Soo and Ms. Lim as parties in the Suit) The following three questions shall be decided in this judgment: (1)whether the CA is functus officio and cannot extend the 14 Days Period [Paragraph (b)]. This issue discusses the CA’s discretionary power under r 93 read with r 1A of the Rules of the Court of Appeal 1994 (RCA); (2)can the CA vary Paragraph (b) [CA’s Order (25.8.2021)] and order the Plaintiffs to file an application in the HC to join all relevant parties in the Suit within 14 days from the date of the order of this CA on 18.4.2023 (instead of the requirement for the Plaintiffs to obtain an order from the HC to join Mr. Soo and Ms. Lim in the Suit)? This concerns an interpretation of the purpose of CA’s Order (25.8.2021); and (3)whether the CA can vary Paragraph (b) [CA’s Order (25.8.2021)] pursuant to - o(a)r 105 RCA; and o(b)s 69(4) and (5) of the Courts of Judicature Act 1964 (CJA); without any appeal or application by the Plaintiffs to the CA. The Court stated that they were not able to find any previous Malaysian case which has decided on the above questions. The Court inter-alia allowed the variation of the Court Order and amongst others ordered that the Plaintiffs shall file an application to join all relevant parties in the HC within 14 days from the date of this order of CA (18.4.2023) and upon such a failure, the Suit shall be struck out