Yip Kah Hong & Anor v Lim Heng Eng & Anor

Appellant(s): Yip Kah Hong Dan Yip Kah Hoe (Kedua-duanya Bersesama Sebagai Wakil Estet Yip Chee Pooi, Si Mati (No. K/p: 720916-08-5805)

Respondent(s):

• Lim Heng Eng
• Pendaftar Hakmilik Pejabat Tanah Dan Galian Perak

• YA Datuk Supang Lian
• YA Datuk Dr Shahnaz Binti Sulaiman
• YA Dato' Sri Mohd Radzi bin Harun

• The dispute concerns a bungalow property originally owned by the deceased husband of the first respondent, which was transferred in 2012 to the appellants' late father for a stated consideration below market value, with the High Court later finding the transfer documents (Sale and Purchase Agreement, transfer Form 14A, and Statutory Declaration) were forged and that the transferor lacked mental capacity due to dementia, rendering the transfer null and void with damages awarded against the transferee's estate.
• The transferee died during the pendency of the appeal, and his sons were substituted as appellants (as legal representatives of his estate) after a Court order appointing them.
• Following the substitution, four interlocutory applications arose: the appellants sought extensions of time to serve the notice of appeal, to file the record of appeal, to amend the record of appeal, and to file a supplementary record of appeal out of time, while the first respondent sought to strike out the appeal for procedural defects and on the merits (alleging fraud/illegality in the underlying transaction).

• Whether the Court should exercise its discretion under the Rules of the Court of Appeal 1994 (particularly Rule 102, read with Rules 1A and 3A) to extend time and cure procedural non-compliance in service and filing of appeal documents, applying the established four-factor test (length of delay, reasons for delay, merits of the appeal, and prejudice to the respondent).
• Whether the first respondent's application to strike out the appeal, being interlocutory in nature, should be allowed on the grounds of an incomplete record of appeal and/or alleged illegality in the underlying property transaction, or whether such matters should instead be ventilated at the substantive hearing of the appeal.
• Whether the dismissal of a striking-out application causes prejudice to the applicant, and the broader policy consideration of preventing interlocutory applications from unduly delaying substantive appellate determination.

• The Court allowed all three of the appellants' applications (extension of time to serve/file the notice of appeal and record of appeal, leave to amend the record of appeal, and leave to file the supplementary record of appeal out of time), finding the delays minimal, adequately explained (partly due to the death of the original appellant and delay in appointing legal representatives), and any prejudice to the respondent compensable by costs.
• The Court dismissed the first respondent's striking-out application, holding that the alleged defects in the record of appeal were rendered moot by the amendments allowed, and that the allegation of fraud/illegality in the property transaction was a substantive matter to be ventilated at the hearing of the appeal rather than resolved at the interlocutory stage.
• The Court emphasised that dismissal of a striking-out application causes no prejudice to the applicant since the matter proceeds to be heard on its merits, and that procedural irregularities under Rule 102 of the RCA 1994 are curable where doing so serves the interests of justice and does not finally dispose of the parties' substantive rights; costs of RM3,000 per application were ordered accordingly.