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  • Writer's pictureGavin Jayapal

To appeal or cross-appeal- that is the question…

…and a resounding answer is to be found in the Court of Appeal decision of Leisure Farm v Kabushiki Kaisha Ngu [2015] 4 MLJ 453.


*for the purposes of this article, the appeal being discussed lies from the High Court to the Court of Appeal. It applies to appeals from the Subordinate Courts to the High Court, with Order 55 of the Rules of Court 2012 serving as a substitute.


What is an appeal?


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Before delving into the decision, an appeal is essentially “the right of a superior Court and invoking its aid and interposition to redress the error of the court below” (Attorney-General v Sillem (1864) 10 HLC 704, quoted with approval in PP v Kirubakaran [1974] 2 MLJ 23).

An appeal is a re-hearing and must be brought by issuing and serving a Notice of Appeal (Rule 5, Rules of the Court of Appeal 1994 (“RCA 1994”)).


Of particular importance would be Rule 5(4) RCA 1994, which states:


(4) Any appellant may appeal from the whole or part of a judgment or order and the notice of appeal shall state whether the whole or part only, and what part, of the judgment or order is complained of.


What is a cross-appeal?


A cross-appeal is a subset of a Notice of Appeal. Cross-appeals are dealt with by Rule 8(1) RCA 1994:


 (1) It shall not be necessary for a respondent to give notice of appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the High Court should be varied, he may, at any time after entry of the appeal and not more than ten days after the service on him of the record of appeal, give notice of cross-appeal specifying the grounds thereof, to the appellant and, any other party who may be affected by such notice, and shall file within the like period a copy of such notice, accompanied by copies thereof for the use of each of the Judges of the Court.

A cross-appeal is a mechanism allowing for a respondent in an appeal to be heard on particular matters arising from the decision of the High Court. This will, of course, be matters which are contrary to the interests of the respondent.


The Court of Appeal clarifies when one appeals and when one cross-appeals- Leisure Farm v Kabushiki Kaisha [2015] 4 MLJ 543


Notwithstanding its exotic name, the Leisure Farm appeal dealt with an issue fundamental to the Malaysian system of appeals.


Facts


Leisure Farm was a dispute pertaining to the sale and purchase of shares. The Plaintiff/Appellant had signed a Memorandum of Understanding (MOU) with the 1st Respondent/Defendant.


The MOU envisaged the sale of 100% of the shareholding in the 2nd Respondent/Defendant. In breach of the MOU, the 1st Respondent/Defendant refused to execute the Sale and Purchase Agreement (S&P).


The Plaintiff/Appellant sued, seeking specific performance of the MOU.


Findings made by the trial judge


The trial judge found that a valid and binding contract had come from the MOU. Accordingly, the Plaintiff/Appellant was entitled to relief. The trial judge allowed the Plaintiff/Appellant an award of damages in lieu of specific performance.


At the appellate Court


The Plaintiff/Appellant appealed against specific portions of the High Court’s Judgment (p. 550).


It must be made absolutely clear that in the Plaintiff/Appellant’s Notice of Appeal, not the entirety of the High Court Judge’s decision was being appealed against.   


The cross appeal


Following on from the Notice of Appeal, the 1st Respondent/Defendant delivered a Notice of Cross-Appeal.


The Notice of Cross-Appeal dealt with issues that were beyond the ambit of the Notice of Appeal.


Preliminary Objection raised by the Appellant/Plaintiff


At the hearing of the appeal, the Appellant/Plaintiff raised a preliminary objection (“the PO”). The PO was premised on the assertion that the Notice of Cross-Appeal could not be sustained by the Notice of Appeal as the former was not encapsulated within the ambit of the Notice of Appeal.


As a visual example, imagine that the High Court Judge’s decision laid down issues (A)-(Z).

The Notice of Appeal dealt solely with issues (A)-(E).


The Notice of Cross-Appeal dealt instead with issues (J)-(M).


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In such circumstances, would the Notice of Cross-Appeal sustain itself, or would it be doomed to fail?


Decision of the Court of Appeal


Having read and heard submissions from eminent Counsel (p. 547 of the Judgment is a veritable ‘Who’s Who’ of the legal fraternity), the Court of Appeal upheld the PO and dismissed the Notice of Cross-Appeal.


Ratio decidendi


The ratio decidendi  of the Court of Appeal is contained at pages 555 to 559 of the Judgment.


In-brief, the Court of Appeal held that the Notice of Cross-Appeal would have to be limited to issues contained within the Notice of Appeal:


In our considered view, those words used did not carry with it a meaning that there could be a total or wholesale setting aside or review (of the substantive judgment or any findings of the court); the extent of any contention under a cross-appeal, in our scenario here, was to be limited to a modification or some slight difference to be made to that part only of the judgment appealed against.
[26] This was also consistent with the scheme of things, as we viewed it, envisaged under r 5 of the RCOA 1994. There it was provided for an appeal to be lodged against the whole or part of any judgment or order of court and such an appeal (in contrast to a cross-appeal) was by a re-hearing. The word ‘re-hearing’ used here clearly anticipated a review or regurgitation before the appeal court of all the points and arguments taken at the court below. Hence if it was the substantive finding of the court that was intended to be attacked, it behoved upon the party aggrieved to file a proper notice of appeal ( Form 1 of the RCOA 1994 also refers).

Leisure Farm was appealed to the Federal Court and dismissed on 02.08.2016. As it stands, the decision of the Court of Appeal is binding precedent.


Current position of law in Malaysia with regard to cross-appeals


Leisure Farm was considered and applied in Election Commission of Malaysia v See Chee How [2016] 3 MLJ 365 ([81] In the appeal before us, the High Court’s refusal to grant prayers (a) and (b) of the application is a decision that is adverse to the respondents and appealable at their instance. The respondents should have filed a separate notice of appeal if they wanted the decision to be reversed or set aside, and not by filing a cross-appeal as was done in this case.)


All litigants will now have to be vigilant when dealing with their respective Notices of Appeal. Imagine a simple scenario:


A sues B for Prayers (1), (2) and (3).


A is the Plaintiff; B is the Defendant.


B counterclaims for Prayers (4), (5) and (6).


After trial, the Judge allows Prayers (1), (3), (5) and (6).


Both A and B will now have to deliver their respective Notices of Appeal. A will have to deliver one for Prayer (2) and B will have to deliver one for Prayer (4).


This will be obviated if A delivers a Notice of Appeal appealing against the entirety of the High Court Judge’s decision (from which B will then be able to cross-appeal).


Potential for confusion


There is a real risk that Leisure Farm may lead to confusion.


If A has Prayers (1), (2) and (3) dismissed, but B has Prayers (4) and (6) allowed, A would certainly file a Notice of Appeal confined solely to issues (1), (2), (3), (4) and (6).


Issue (5) would be left out as A would not want to pursue the same.


B, who has defeated A’s claim and succeeded in his own Counterclaim, would certainly be hesitant to deliver a Notice of Appeal for issue (5) as in his (B’s) mind, he has already succeeded. Why ought he deliver a Notice of Appeal?


Assume that the Judgment is delivered on 01.08.2016. A only files his Notice of Appeal (confined solely to issues (1), (2), (3), (4) and (6)) on 01.09.2016 (exactly within the time frame of 1 month). B would then be out of time to file his Notice of Appeal due to the decision of Leisure Farm.


Assistance from foreign jurisdictions


It must be acknowledged that there is a necessity for an appellate Court to confine itself solely to issues contained within the Notice of Appeal. To put it colloquially, the Notice of Appeal is the “seed” from which all other aspects of the appeal “sprout”.


If the Notice of Cross-Appeal is not contained within the Notice of Appeal, it cannot technically “sprout”.


Other Commonwealth jurisdictions have seen the same issue raised. A key element seen in the judgements there would be that the judges tempered their decisions with the overarching requirement to do justice to the parties (found also in Rule 1A RCA 1994).


CANADA


In Johnston v Town of Petrolia [1897] 17 PR 332, the Ontario Court of Appeal made a specific finding that a respondent could not maintain a cross-appeal but ought to have proceeded by way of an independent appeal. However, the Court then added:


No doubt, the time had expired when the motion came on to be heard, and leave is now necessary; but I think, under the circumstances, it ought to be given, as the plaintiff has all along shewn that his intention was to appeal, first, by serving notice of cross-appeal, and next, by serving the present notice of motion for leave at a time when he was really in a position, had he known it, to have served a good notice without leave. No session of the Court has been lost, for his appeal may be set down for the January Court, which is the earliest Court for which it could have been regularly set down.”

Justice and the overarching need for merit over technical non-compliance was at the forefront of the judge’s mind.


NEW ZEALAND


Likewise in New Zealand, the Court of Appeal in Re Parker (Deceased), Crow v Weston [1948] NZLR 9 heard a Preliminary Objection almost identical to that in Leisure Farm and decided as follows:


The Preliminary Objection, delivered by Tripe (Counsel for the last-named Respondent):
The cross-notice on appeal is not of itself sufficient to set an appeal on foot, as it derives its validity from the appeal. All the parties were aware of the facts, and should have been on their guard; and they should have protected themselves by one of them giving formal notice, of appeal When a respondent has given notice and the appellant withdraws a validly-existing appeal, the respondent may elect to proceed with or to withdraw his notice: The Beeswing (6); but here there is no validly-existing appeal If the cross-notices were in time and held to be good even though the appeal was bad, and the appellant were still allowed to proceed on such cross-notices under R 6 (as to which there is no time-limit), this would render nugatory the whole purpose and effect of R 19. The notice under R 6 is only effective as to matter raised by the appeal itself, and, if any matter is to be raised by the respondent on appeal that is not in issue as a result of the appellant's notice of appeal, a substantive appeal must be lodged by such respondent.
Decision of Smith, Callan and Cornish JJ:
Accordingly, we are unable to accede to the argument that the notice under R 6 given by Mrs Peters must be treated as valid, even though it was given within the time within which she could have given an independent notice of motion on appeal if there were no other valid notice of motion on appeal then subsisting.
On the other hand, we think that the circumstances require us to give special leave to appeal to the parties before the Court who desire to appeal. Having regard to the facts that the negotiations for the settlement of the terms of judgment were spread over a period of two years and involved several references to the learned trial Judge, and that the notice from Mrs Peters was given within the time within which she could have filed a notice of appeal, and that it was not patent that no argument was required to show that the appellant's notice of motion on appeal was out of time, Mrs Peters should have special leave to appeal; and she is granted special leave accordingly. 
What we have to decide is whether it would be just, in the circumstances, to grant an adjournment until the next sittings of the Court of Appeal.
See also:
T & T Drainage v Rennell [BC200960933] (Decided by Venning J in the High Court of Auckland)
AUSTRALIA
Australia has had to deal with this issue in a contemporaneous setting.
In Tabtill v Creswick [2011] QCA 66, the Supreme Court of Queensland (Court of Appeal Division) had to deal with a scenario almost identical to that seen in Leisure Farm.
The facts of Tabtill are illustrative. It is regrettable that large portions need to be reproduced, but the judgement of Fraser JA is illuminating and instructive:
[3] On 27 October 2010 the defendant filed a notice of cross appeal against the decree of specific performance of the May agreement and the order dismissing his counterclaim. The notice of cross appeal contends that the defendant should have succeeded in his counterclaims against the plaintiffs for an order that the May agreement be set aside and against the plaintiffs and other cross-respondents (companies controlled by members of the Creswick family) for orders designed to vindicate the defendant’s allegations that John Creswick had forged his father’s signature on 105 documents over many years.
[4] On 17 November 2010 Tabtill’s solicitors, who also represented the other plaintiffs and cross-respondents, wrote to the defendant’s solicitors contending that the cross appeal was ineffective because it was not limited to issues raised in Tabtill’s appeal. The following day the defendant’s solicitors responded that in their opinion the cross appeal was in proper form.
The defendant maintained that the cross appeal was valid but in submissions on his behalf dated 14 March 2011 the defendant applied in the alternative for an order that the cross appeal stand as an appeal and that the time within which to appeal be extended for that purpose.
Application to strike out cross appeal
[6] Both counsel acknowledged that it was unnecessary to decide whether the cross appeal was competent if, as I have concluded, the defendant should be granted any necessary extension of time for appealing. Nevertheless, in deference to counsels’ detailed written submissions I will express my views about this issue.
[7] The cross-respondents contended that the defendant’s cross appeal is incompetent because it does not seek any variation of the order against which Tabtill appealed, that is, the order dismissing Tabtill’s claim in relation to the Crump Street properties. The cross appeal challenged unrelated parts of the trial judge’s decision.
[13] Tabtill did not appeal from the decision which the defendant wished to challenge. The statement in Tabtill’s notice of appeal under r 747(1)(a) confined the subject matter of its appeal to part of the order dismissing all but one of the plaintiffs’ claims, namely so much of that order as dismissed Tabtill’s claims in relation to the Crump Street properties. That was “the decision appealed from” by Tabtill for the purposes of r 754. The defendant’s cross appeal does not seek any variation of that decision. For these reasons the better view is that the notice of cross appeal is incompetent.
 [20] In the result, the cross-respondents were unable to point to any substantial prejudice occasioned by the defendant’s delay in appealing. In light of the prompt cross appeal it should not be presumed that there is any likelihood of prejudice.
[28] For these reasons it is in the interests of justice to grant the necessary extension of time.
Orders
[51] I order that:
The notice of cross appeal filed on 27 October 2010 by the defendant stand as a notice of appeal and the time for appealing is extended as necessary for that purpose.

Malaysia- An unenviable position


The decision of the Court of Appeal in Leisure Farm was not tempered with the justice and fairness seen in other jurisdictions.


Formalities have taken precedence over substance and it is truly regrettable that the Federal Court did not seize the opportunity to redress the obvious error that the Court of Appeal had fallen into.


All hope is not lost, though. In Rajamani Meyappa Chettiar v Eng Beng Development [2016] 3 MLJ 660, the Court of Appeal appears to have distanced itself from POs taken on the basis of the Notice of Appeal/Notice of Cross-Appeal issue. In a decision delivered on 04 March 2016, the Court of Appeal stated as such:


THE SEVENTH DEFENDANT’S CROSS-APPEAL
[118] At the outset of the proceedings learned counsel for the plaintiff raised a preliminary objection to the seventh defendant’s notice of cross-appeal dated 5 May 2015, on the ground that it was incompetent as it seeks to set aside the decision of the High Court finding fraud against the seventh defendant and more specifically the finding that the seventh defendant had actual knowledge of the fraud and was privy to it.
[119] It was argued that a separate notice of appeal ought to have been filed by the seventh defendant, citing Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu & Ors [2015] 4 MLJ 543; [2015] 3 CLJ 489. The basis of the objection was that the cross-appeal does not relate directly to the appeal brought by the plaintiff. Leisure Farm was followed in another Court of Appeal case of Pengerusi Suruhanjaya Pilihanraya Malaysia (Election Commission of Malaysia) v See Chee How & Anor [2016] 3 MLJ 365; [2015] 8 CLJ 367. Incidentally my learned brother Justice Mohd Zawawi Salleh and myself were panel members in that appeal.
[120] We dismissed the preliminary objection as we were of the view that the notice of cross-appeal was proper. In any event we felt that it was more important that the case to be decided on the merits rather than on a technical defect in the notice of appeal, if at all there was any.

Leisure Farm is a correct statement of the law but it is a misstatement of equity. It is hoped that baseless POs are relegated to embarrassments of the past. Appeals ought to be conclusively heard and disposed of on their merits.


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