1. ) Baharul Azman Bin Omar (Sebagai Wakil Diri Si Mati Khadijah Binti Hj Puteh) v 1. ) zulhazmi bin zakaria (PA-22NCvC-10-01/2018)

BAHARUL AZMAN BIN OMAR [Sebagai Wakil Diri Simati Khadijah binti Hj Puteh (NO. K/P: 330614075106)]

BAHARUL AKMAR BIN OMAR

BAHARUL AZMAN BIN OMAR

SITI NOOR HALMA BINTI OMAR (NO. K/P: 520920075312) …PLAINTIF-PLAINTIF

TETUAN TERMIZI & CO …DEFENDAN-DEFENDAN JUDGMENT (AFTER TRIAL) PRELUSION [1] The Plaintiffs are the beneficiaries of the estate of Omar Bin Arshad (Estate). In an earlier case, the Estate i.e. the beneficiaries were granted RM350K in compensation (the RM350K compensation money). 27/04/2023 08:48:15 PA-22NCvC-10-01/2018 Kand. 146 Page 2 of 40 [2] The 1st Defendant (D1) was the Advocate and Solicitor who had the conduct of the earlier case. The 2nd Defendant (D2) was the firm of solicitors on record for the Plaintiffs in the earlier case. D1 practised law in D2. [3] Instead of paying the RM350K compensation money to the Estate or to the beneficiaries of the Estate, the Defendants paid RM295K out of the RM350K compensation money to Baharul Azhar Bin Omar (Baharul Azhar), who is one of the beneficiaries of the Estate. Also, the Defendants retained the balance RM55K for themselves, as fees and expenses. [4] The Plaintiffs sued the Defendants for negligence—for paying RM295K to Baharul Azhar, and retaining RM55K as fees and expenses, without the consent of the beneficiaries. [5] The Plaintiffs seek RM1 million in general damages, RM200K in aggravated damages and RM300K in exemplary damages. The Defendants’ defence [6] In their Defence, the Defendants pleaded that—

they were appointed by Baharul Azhar;

they took instructions from and communicated only with Baharul Azhar;

they owed no duty of care to the Plaintiffs. Page 3 of 40 THE ISSUES TO BE TRIED [7] The agreed issues to be tried are—

Whether the Defendants owed a duty of care to the Plaintiffs;

Whether the Defendants breached that duty of care by paying RM295K out of the RM350K compensation money to Baharul Azhar, and retaining RM55K as legal fees and expenses, without the consent of the other beneficiaries of the Estate;

If the Defendants breached the duty of care, how much damages are they entitled to? A FEW PRELIMINARY MATTERS [8] A few preliminaries—

The 2nd and 4th Plaintiffs discontinued their claims before the trial. The 1st Plaintiff (P1) and the 3rd Plaintiff (P3) pursued their claims. I will refer to P1 and P3 together as “the Plaintiffs”.

I will refer to the 1st Defendant (Zulhazmi Bin Zakaria) as D1, and the 2nd Defendant firm of solicitors (Tetuan Termizi & Co.) as D2.

I will refer to D1 and D2 together as D1D2. [9] The trial took 5 days to finish. Page 4 of 40 [10] The List Of Witnesses who testified at the trial is set out here— THE PERTINENT FACTS [11] The Plaintiffs are two of the 10 beneficiaries of the Estate. [12] From about 1994, there was a land acquisition exercise involving the Estate’s land. There were allegations of wrongdoing related to the acquisition. [13] In 2007, the Estate filed a suit against the authorities and persons whom the Estate asserted caused loss and harm to the Estate in the land acquisition exercise. The suit was Penang High Court Civil Suit No. 22- 130-2007 (Suit 130). [14] In the intitulement of Suit 130, the plaintiff was stated as “Harta Pesaka Allahyarham Haji Omar Bin Arshad @ Omar Bin Chat (melalui Hj. Baharul Azhar Bin Omar sebagai wakil waris-waris yang sah)”. Page 5 of 40 [15] The firm of solicitors initially on record for the plaintiff in Suit 130 was Tetuan Mohd Zawahid & Co. (Tetuan Zawahid). The Advocate and Solicitor practicing in Tetuan Mohd Zawahid & Co. who acted for the plaintiff in Suit 130 was D1. [16] D1 then left Tetuan Zawahid and joined D2. Later, D2 took over the conduct of Suit 130 from Tetuan Zawahid, and D2 had conduct of Suit 130 again. [17] It suffices for the purpose of this Judgment to say that Suit 130 resulted in the outcome where the Estate was granted the RM350K compensation money. The Court Order for this RM350K compensation sum was recorded in August 2010 (on 25.8.2010). D2 was, at the time, on record as the solicitors for the plaintiff in Suit 130. And D1 was the Advocate and Solicitor who had conduct of the case. [18] In December 2011, RM295K was paid out to Baharul Azhar. The balance RM55K was retained by D1D2. [19] None of the RM350K reached any of the other beneficiaries of the Estate. Baharul Azhar kept the RM295K that was released to him, for himself. [20] A few of the other beneficiaries, including the Plaintiffs, sued Baharul Azhar for their share of the compensation money. The High Court found in their favour. Baharul Azhar appealed to the Court Of Appeal. The Court Of Appeal dismissed his Appeal. But Baharul Azhar refused to pay the other beneficiaries their share of the money. Page 6 of 40 [21] The Plaintiffs blame D1D2 for not getting their share of the compensation money. They hence sued D1D2 for negligence. FIRST ISSUE—DID D1D2 OWE A DUTY OF CARE TO THE PLAINTIFFS? [22] Whether D1D2 owed a duty of care to the Plaintiffs swivels around the question of whether there was a solicitor-client relationship between D1D2 and the beneficiaries. In other words, whether D1D2’s client was Baharul Azhar, or the beneficiaries. First Issue: Duty of care—the pertinent principles on duty of care and the solicitor-client relationship [23] To glean the applicable and pertinent principles in a claim of negligence against an Advocate and Solicitor, I am both guided and bound by the judgment of the Court Of Appeal in Lee Kuang Guat (suing as the father of the deceased, Lee Chu Ling) v Chiang Woei Chien (practising as Chiang Chambers, Advocates and Solicitors) [2021] 3 MLJ 505 (CA); [2021] 3 CLJ 237; [2020] AMEJ 1892, which cited the Court Of Appeal case of Wong Kiong Hung & Anor v Chang Siew Lan & Anor Appeal [2009] 4 MLJ 183 (CA); [2009] 4 AMR 64; [2009] 3 CLJ 751, and the Federal Court case of Gurbachan Singh Bagawan Singh & Ors v Vellasamy Pennusamy & Other Appeals [2015] 1 MLJ 773 (FC); [2015] 2 AMR 1; [2015] 1 CLJ 719. [24] Lee Kuang Guat (supra) was a case where an advocate and solicitor filed a personal injury suit for the plaintiff, whose daughter died in a vehicular accident. The advocate and solicitor took instructions to file a suit from a tout. The advocate and solicitor never met the plaintiff. The Page 7 of 40 advocate and solicitor did not collect any deposit for fees and expenses. The plaintiff did not issue a warrant to act to the advocate and solicitor. The advocate and solicitor filed the suit nevertheless. [25] As it turned out, the suit was struck out because the advocate and solicitor did not attend the first case management before the Registrar. The plaintiff then filed suit against the advocate and solicitor for negligence. The High Court held that the advocate and solicitor was not negligent. The High Court found that there was no solicitor-client relationship between the parties. The Court Of Appeal, however, reversed the decision of the High Court. The Court Of Appeal found that there was a solicitor-client relationship between the parties. [26] From Lee Kuang Guat, I gleaned the following propositions—

There are four criteria for a claim of negligence against an advocate and solicitor:

the advocate and solicitor owes a duty of care to the client;

(ii) there is a breach of that duty of care;

(iii) the breach caused loss or damage to the client; and

(iv) the damage is not too remote i.e. it is a foreseeable consequence of the breach.

There is a duty of care when there is a solicitor-client relationship.

The solicitor-client relationship can be express or implied. Page 8 of 40 [27] In Lee Kuang Guat (supra), the Court Of Appeal, through Justice Nantha Balan JCA, enunciated— [76] As for the issue of negligence, the learned judge [note: trial court] opined as follows: Whether The Second Defendant Is Liable For The Tort Of Negligence [62] In Wong Kiong Hung & Anor v Chang Siew Lan & Another Appeal [2009] 4 MLJ 183; [2009] 3 CLJ 751, Low Hop Bing JCA held: [27] To succeed in the tort of negligence against the solicitor, it is incumbent on the client to establish that:

(1)the solicitor owes the client a duty of care;

(2)there is a breach of that duty by the solicitor;

(3)the client has thereby suffered damage; and

(4)the damage is not too remote a consequence of the breach. Whether The Second Defendant Owes The Plaintiff A Duty Of Care [63] Since the court has found that a solicitor and client relationship exists between the second defendant and the plaintiff, it is without doubt that the second defendant owes the plaintiff a duty of care in its discharge of its professional duties as a solicitor… [77] …we think that it is also highly relevant to refer to the case of Gurbachan Singh Bagawan Singh & Ors v Vellasamy Pennusamy & Other Appeals [2015] 1 MLJ 773; [2015] 1 CLJ 719; [2015] 2 AMR 1 (FC) where the Federal Court opined that the facts and circumstances attendant upon the event or occasion could give rise to an implied solicitor-client relationship and once there is such Page 9 of 40 a relationship, then all the relevant duties and obligations which are attendant upon that relationship will fall on the shoulders of the solicitor. [78] The opinion of the Federal Court is to be found in the following paragraphs: Solicitor-Client Relationship [36] A solicitor-client relationship may arise either:

(a)by an express agreement between a solicitor and a client; or

(b)where there is express assertion by a solicitor to act for the client; or

(c)it may be implied. [37] Where it is to be implied it is for the purported client in an action against a solicitor to prove the existence of a solicitor-client relationship between them. Proof of such relationship requires an objective consideration of all the facts and circumstances in order to come to a reasonable conclusion:

(a)that the purported client has sought for advice or assistance from the solicitor;

(b)that the assistance sought for was within the professional competence of the solicitor;

(c)that the solicitor expressly or impliedly agreed to provide such assistance or reasonably should know that the purported client would reasonably rely on him to provide the assistance; and

(d)that it was reasonable for the purported client to believe that the solicitor was representing him. [38] It is therefore a matter of evidence to determine whether a solicitor-client relationship exists. Hence, it is essential to consider Page 10 of 40 such evidence adduced including the words and conduct of the parties towards each other… . [41] It has been held that ‘the giving of instructions by a client to a solicitor constitutes the solicitor’s retainer by that client. It is not essential that the retainer must be in writing. It may be oral. It may be implied by the conduct of the parties in the particular case’. . [43] Once a solicitor-client relationship exists and thus a retainer, it ‘put into operation the normal terms of the contractual relationship including in particular the duty’ of the solicitor ‘to protect the interests’ of his client ‘in matters to which the retainer relates by all proper means’. [additional bold print emphasis are mine] [28] Further, I am also guided by the UK case law authority on the negligence of solicitors of Midland Bank Trust Co Ltd & Anor v Hett, Stubbs & Kemp (a firm) [1978] 3 All ER 571; [1978] 3 WLR 167; [1979] Ch 384, at All ER page 596, paragraph a-b, where Oliver J. of the Chancery Division propounded that a solicitor has a duty to “exercise that care and skill on which they must have known perfectly well that their client relied”. In other words, solicitors have a duty “not to injure their client by failing to do that which they had undertaken to do” and which the clients “relied on them to do”. [29] On the evidence, I find that D1D2 owed a duty of care to the Plaintiffs, as I find that there was a solicitor-client relationship between them and the Plaintiffs. The evidence that support my finding are as follows.

First Issue: Duty of care—the evidence The intitulement on the Writ in Suit 130 discloses that the plaintiff in Suit 130 is the Estate, namely the beneficiaries [30] First, the RM350K compensation money was the result of the successful litigation in Suit 130. The intitulement on the Writ in Suit 130 states that the plaintiff in Suit 130 was the “Harta Pesaka Allahyarham Haji Omar Bin Arshad @ Omar Bin Chat (melalui Hj. Baharul Azhar Bin Omar sebagai wakil waris-waris yang sah)”, which is the Estate. [31] It is a fact that Baharul Azhar was never formally appointed as the administrator of the Estate. Until the present day, the Estate does not have a court-appointed administrator. During oral submissions, D1 himself and counsel for D2 agreed that Baharul Azhar was not the formal administrator of the Estate. It was also agreed that Baharul Azhar was the beneficiaries’ representative to prosecute Suit 130. [32] I find that the plaintiff in Suit 130 was clearly not Baharul Azhar in his personal capacity. Instead, the plaintiff was the Estate, and Baharul Azhar was named only as the representative of the beneficiaries of the Estate. In other words, Suit 130 was brought for the benefit of the beneficiaries of the Estate.

The Statement Of Claim in Suit 130 was prepared by D1 [33] Second, the Statement Of Claim in Suit 130 was prepared by D1, together with Encik Mohd. Zawahid, the principal lawyer in Tetuan Zawahid. D1 admitted to this in cross-examination (refer Notes Of Evidence (NOE), Enclosure 126, at page 157)— Page 12 of 40 En Zul, saya pohon untuk kamu rujuk kepada muka surat 7 sehingga muka surat 16, Bundle B. Itu merupakan writ saman dan penyata tuntutan bagi Kes 22-130-2007. Betul. Kamu setuju saya katakan bahawa kamu mempunyai pengetahuan berhubung writ saman dan penyataan tuntutan ini? Setuju. Dan kamu juga setuju saya katakan bahawa kamu yang sediakan writ saman dan penyataan tuntutan ini bersama-sama dengan En Zawahid? Betul, setuju. Rujuk kepada muka surat 7, En Zul. Kita lihat kepada tajuk kepada intitulement tersebut , ‘Harta pusaka Allahyarham Haji Omar Bin Arshad @ Omar Bin Chat, melalui Haji Baharul Azhar Bin Omar sebagai wakil waris-waris yang sah’. Setuju bahawa Baharul Azhar adalah wakil waris-waris yang sah? Setuju. [34] I find that since it was D1 who prepared the Statement Of Claim, together with Encik Mohd Zawahid, D1 knew or should have known that the plaintiff in Suit 130 was the Estate (the beneficiaries), not Baharul Azhar.

The Sijil Faraid discloses 10 beneficiaries of the Estate Page 13 of 40 [35] Third, the Sijil Faraid for the Estate contains a list of 10 named beneficiaries. The Sijil Faraid was given to Encik Mohd Zawahid, and D1 sighted it. D1 hence had the knowledge that the Estate had 10 beneficiaries, which included the Plaintiffs. This is the oral evidence that came out during D1’s cross-examination (refer NOE, Enclosure 126, page 161)— Saya rujuk kamu kepada muka surat 40, Ikatan B. Page 40 Yang Arif, Bundle B, iaitu Sijil Faraid. Kamu setuju dengan saya Sijil Faraid ini telah diberikan kepada kamu semasa penyediaan writ saman dan penyataan tuntutan 22-130-2007? Diberikan kepada En Zawahid. Ya, kamu mempunyai pengetahuan sebab kamu menyediakan bersama-sama dengan En Zawahid. Soalan saya, kamu setuju atau tidak Sijil Faraid ini telah diberikan oleh Baharul Azhar kepada kamu semasa penyediaan writ saman dan penyataan tuntutan 22-130- 2007? Saya ada tengok. Jadi kamu setujulah. Setuju, ya? Saya ada tengok sijil ini. Memandangkan jawapan kamu, kamu ada tengok ya En Zul. Jadi kamu setuju bahawa dalam Sijil Faraid ini terdapat 10 nama bagi harta pusaka Omar Bin Arshad, setuju? Setuju. Page 14 of 40 [36] The Sijil Faraid is reproduced here. It discloses that there are 10 beneficiaries to the Estate and their respective shares (proportions) in the Estate— Page 15 of 40 [37] The Sijil Faraid was given to Tetuan Zawahid. Tetuan Zawahid’s clients were the beneficiaries. [38] D1 sighted the Sijil Faraid. So, just as the beneficiaries were Tetuan Zawahid’s clients, the beneficiaries were D1’s clients too.

Tetuan Zawahid was appointed by the beneficiaries to act for them [39] Fourth, at the beginning, in 2005, the beneficiaries, through Baharul Azhar, appointed Tetuan Zawahid to work with their then-solicitors: Messrs. Pushpam & Co. (Messrs. Pushpam). [40] On behalf of the beneficiaries, Baharul Azhar wrote a letter dated 30.11.2005 (November 2005 letter), where he wrote, under his name: “dan bagi pihak 9 orang yang lain”, to Tetuan Zawahid, appointing Encik Mohd Zawahid as counsel, to work with Messrs. Pushpam, to obtain compensation for the Estate. This is the letter of appointment to represent the beneficiaries for the purpose of filing Suit 130. [41] It is evident by this November 2005 letter that the beneficiaries appointed Tetuan Zawahid to represent them. It was not to represent only Baharul Azhar. [42] This November 2005 letter is reproduced here— Page 16 of 40 [43] Another piece of documentary evidence that reinforces this fact of representation was Tetuan Zawahid’s letter of 25.5.2006 to Messrs. Pushpam (May 2006 letter). About five months after the November 2005 letter, the beneficiaries instructed Tetuan Zawahid to take over the conduct of the case from Messrs. Pushpam. The 3rd para of the May 2006 Page 17 of 40 letter states that Tetuan Zawahid “have been instructed by the beneficiaries” of the Estate to take over conduct of the matter. [44] The May 2006 letter is reproduced here— Page 18 of 40 [45] D1, as the solicitor who had conduct of Suit 130, would have had access to, and should have had knowledge of, the terms of this appointment, which is that Baharul Azhar, on behalf of the 9 other beneficiaries, appointed Tetuan Zawahid to act for them. This is an irresistible fact. I find, on the balance of probabilities, that it was the beneficiaries who appointed Tetuan Zawahid, perhaps with Baharul Azhar as the spokesperson. The beneficiaries were the clients, not Baharul Azhar alone.

When D1D2 took over the case, they represented the beneficiaries, not Baharul Azhar alone [46] Fifth, Encik Mohd Zawahid of Tetuan Zawahid testified that it was the family (the beneficiaries of the Estate) who appointed him to act for them. He represented the family. Although only a few of the family members met with him, he testified that he represented the whole family (refer NOE, Enclosure 124, page 285)— Jadi perwakilan pada permulaan penyataan tadi, your appointment was made by the family? Dikatakan Yang Arif, berdasarkan kepada famili tapi yang hadir adalah Baharul Azhar dan juga Nizam Hairil, Ok. En Zawahid, boleh kamu sahkan bahawa kamu sebagai peguamcara peguam keluarga simati Hj Omar Bin Arshad perlu mendapat arahan daripada ahli keluarga sebelum kes Mahkamah tersebut dipersetujui? Boleh kamu sahkan penyataan ini? Page 19 of 40 Boleh. [47] When Encik Mohd Zawahid was appointed, it was clear to him that the instructions for him to act did not come from Baharul Azhar alone. He knew that the instructions came from the beneficiaries. This is what he testified (refer NOE, Enclosure 126, pages 312-313)— Ada pada permulaannya Yang Arif, pada masa itu adalah yang datang jumpa saya adalah Baharul Azhar, Yang Arif. Ok. Bersama dengan Norazmi? Apa nama dia? Nizam? Nizam Hairil. Bersama dengan dia? Ya. Dan tahu tak En Zawahid apa peranan dia? Dia akan berbincang dengan yang lain-lain termasuk mak dia, Baharul Akmar, Arwah Khadijah Bt Puteh dan juga, yang tidak dinyatakan di sini, ada lagi tiga orang lagi, Yang Arif. Jadi dari mula lagi ada lima orang yang datang jumpa dengan En Zawahid? Tidak, Yang Arif. Yang datang berjumpa hanyalah Nizam dengan Baharul Azhar, tapi disampaikan bahawa orang yang lain-lain itu ada berbincang dalam perbincangan mereka. Page 20 of 40 Dan adakah En Zawahid diberitahu yang arahan datang daripada mereka atau dari siapa? Saya boleh mengatakan bahawa mesti, semestinya, ada arahan daripada sebilangan besar, boleh dikatakan, Yang Arif. Sebab ada yang tidak participate daripada awal. Termasuk siapa, nama-nama mereka? Siri Noor Halma, Baharul Akmar, Arwah Khadijah Bte Hj Puteh. [48] And if Tetuan Zawahid represented the family (the beneficiaries of the Estate), then when D2 took over the conduct of Suit 130, and D1 handled the case, it is reasonable to conclude that D1D2 took over the conduct of the case from Tetuan Zawahid on the same terms of representation as for Tetuan Zawahid.

The beneficiaries contributed towards D1D2’s Bill and D1D2 knew about it [49] Sixth, in July 2010, D1D2 issued a Bill dated 15.7.2010 for RM975.00. D1D2 issued it to Baharul Azhar. [50] A couple of days after the Bill was issued, Baharul Azhar wrote a letter dated 17.7.2010 to inform his fellow beneficiaries and to ask them to respectively contribute towards the payment of the Bill. It must be noted here that a copy of this letter was extended to D2. (It was “c.c.-ed” to D2.) [51] A month later in August 2010, Baharul Azhar wrote a reminder dated 18.8.2010 to his fellow beneficiaries to ask for their urgent contribution to pay D2’s Bill. Again, a copy of this reminder was extended to D2. Page 21 of 40 [52] As these two letters were extended to D2, I find, on the balance of probabilities, that D1D2 knew or should have known that the beneficiaries were paying for their services i.e. paying their Bill. I find that these two letters infer and impute on D1D2 a solicitor-client relationship with the beneficiaries.

First Issue: Duty of care—findings [53] Under the first issue, I find D1D2’s plea that they were appointed by Baharul Azhar; that they took instructions from and communicated only with Baharul Azhar; that they owed no duty of care to the Plaintiffs—to be untenable. [54] I find that D1D2 owed a duty of care to the Plaintiffs to protect the Plaintiffs’ interests and rights over the RM350K compensation money , as there was a solicitor-client relationship between them. SECOND ISSUE—DID D1D2 BREACH THEIR DUTY OF CARE WHEN THEY PAID THE COMPENSATION MONEY TO BAHARUL AZHAR AND DEDUCTED THEIR OWN FEES? [55] On the evidence, I find that D1D2 breached their duty of care when they paid the RM350K compensation money to Baharul Azhar and deducted their own fees. The evidence that lead me to this finding is set out below.

Second Issue: Breach of duty of care—the evidence D2 admitted that all the beneficiaries have rights over the compensation money [56] Firstly, the principal partner in D2: Encik Ahmad Termizi, admitted in cross-examination that all the beneficiaries have their respective rights Page 22 of 40 to the RM350K compensation money. In other words, the RM350K compensation money from Suit 130 was for all the beneficiaries— Setuju saya katakan bahawa writ saman 22-130-2007 dan perintah persetujuan yang direkodkan atas nama Allahyarham Haji Omar Bin Arshad adalah dibuat di atas kapasiti wakil waris-waris? Ya, setuju. Jadi setuju saya katakan wang pampasan tersebut adalah hak bersama waris-waris? Ya, setuju berdasarkan perintah 22-130 [57] From this admission, I find that even though D2 acknowledged that the RM350K compensation money belonged to the beneficiaries, D1D2 nevertheless chose to release RM295K to Baharul Azhar. I find this conduct to be either a negligent act or a negligent omission. [58] It was a negligent act in the sense that D1D2 should have protected the interests of the respective beneficiaries (who were their clients) over the compensation money, but they did not. It was a negligent omission in the sense that D1D2 failed to protect the beneficiaries’ rights to the compensation money.

D1D2 were notified that the Plaintiffs sought their share of the RM350K compensation money, and yet did not give them the money [59] Secondly, although the beneficiaries notified D1D2 about their rights to the RM350K compensation money, D1D2 ignored their notice. Page 23 of 40 [60] On 18.8.2010, Baharul Azhar wrote a letter to all the 10 beneficiaries of the Estate (including himself), to ask each beneficiary to pay their share of RM97.50 to D2, to settle D2’s Bill for RM975.00. All the 10 beneficiaries’ names were stated in the letter. And the letter was copied to D2. [61] This letter reinforces the fact that D1D2 knew that the plaintiff in Suit 130 was the Estate, and therefore the RM350K compensation money, which constituted the beneficiaries’ winnings from the Suit 130 litigation, was for the benefit of the beneficiaries. [62] On 25.8.2010, the presiding Court in Suit 130 recorded a Consent Order for the payment of the RM350K compensation money to the Estate. [63] On 30.12.2010, Tetuan Zawahid, on behalf of the Plaintiffs and other beneficiaries of the Estate, wrote a letter dated 30.12.2010 to D2, for the attention of D1, demanding for their clients’ share of the RM350K compensation money (December 2010 letter). D1D2 ignored the December 2010 letter. [64] Despite being so notified, and unbeknown to the Plaintiffs, on 9.12.2011, a year later, D1D2 paid out to Baharul Azhar RM295K of the RM350K compensation money, as well as paid themselves the balance RM55K in legal fees and expenses.

The Plaintiffs and other beneficiaries demanded for the compensation money [65] Thirdly, as there was no response to the December 2010 letter, Tetuan Zawahid issued a letter dated 4.1.2012 to D2, again to the attention of D1 (January 2012 letter). (Note: On the face of the letter, it Page 24 of 40 was erroneously dated 4.10.2011, but at the trial the parties agreed that the correct date was 4.10.2012). This January 2012 letter again demanded for the RM350K compensation money, without any deductions, to be paid to the beneficiaries within 48 hours of receiving the letter. [66] D1D2 disregarded the January 2012 letter of demand, as they had already issued the RM295K cheque in Baharul Azhar’s name, and deducted the balance RM55K as fees and expenses, without the beneficiaries’ consent.

There was no documentary evidence authorising D1D2 to take instructions only from Baharul Azhar or to pay the compensation money solely to Baharul Azhar [67] Fourthly, D1D2 did not produced any evidence to prove, or for an inference to be drawn, that they were instructed by the beneficiaries to take instructions only from Baharul Azhar, or that they were authorised to release any monetary remedy from Suit 130 solely to Baharul Azhar. [68] For instance, D1D2 could have got, but did not get, a letter from the beneficiaries that instructed D1 or D2 to take instructions from Baharul Azhar relating to the conduct of Suit 130, or to pay the RM350K compensation money to Baharul Azhar. [69] D1 admitted to this in cross-examination (NOE, Enclosure 126, page 162 -163)— Page 25 of 40 Kamu setuju dengan saya kamu tidak ada surat untuk memaklumkan waris-waris lain tentang duit yang kamu telah terima, duit pampasan yang telah kamu terima, setuju? WSW Maklumkan kepada En Baharul Azhar? Soalan saya, kamu tidak maklumkan kepada waris-waris yang lain. Setuju? Setuju. . Saya ulang sekali lagi soalan saya. Semasa kamu melepaskan wang pampasan tersebut kepada En Baharul Azhar, kamu tidak meminta surat kuasa dari beliau untuk menerima wang daripada, untuk menerima wang bagi pihak wakil-wakil waris yang lain. Setuju atau tidak? Tak setuju. Tak setuju? Setuju.

There was no evidence that D1D2 obtained the beneficiaries’ consent to deduct RM55K from the RM350K compensation money [70] Fifthly, there is no documentary nor oral evidence that D1D2 procured the beneficiaries’ consent to deduct RM55K from the RM350K compensation money as legal fees and expenses. Page 26 of 40 [71] Similarly, D1D2 could have got, but did not get, a letter from the beneficiaries consenting to the deduction of RM55K as legal fees and expenses. Or, D1D2 could have, but did not communicate to the beneficiaries that they were deducting RM55K from the RM350K compensation money.

There was no Bill from D2 for RM55K [72] Sixthly, Encik Ahmad Termizi verified that the balance RM55K was paid out (or deducted) from the RM350K compensation money, for legal fees and expenses (refer NOE, Enclosure 126, page 215)— En Termizi, setuju saya katakan wang yang dikeluarkan kepada Baharul Azhar adalah sebanyak 295,000 berdasarkan kepada cek di muka surat 22, betul? Betul. Jadi kita ada baki dalam 55,000? Ya, betul. Sebagai fees guaman dan juga perbelanjaan. Sila sahkan? Ya, saya sahkan 55,000 adalah pembayaran baki guaman. [73] From the documentary evidence, D2 issued two Bills. One was Bill No. 74/09 dated 3.11.2009 for RM5,200.00. The other was Bill No.40/10 dated 15.7.2010 for RM975.00. But there was no Bill for the RM55K for legal fees and expenses. Page 27 of 40 [74] There was, however, a Receipt for RM52,500.00 issued by D1 under D2’s letterhead. This Receipt was issued to Baharul Azhar, but not to either the Estate or the beneficiaries.

The presiding Court in Suit 105 (by the Plaintiffs against Baharul Azhar) made a finding that Baharul Azhar was merely a representative of the beneficiaries [75] Seventhly, when the RM350K compensation money was not paid out to be shared by the beneficiaries of the Estate, four of the beneficiaries (including the Plaintiffs) filed Penang High Court Suit 22NCVC-105- 07/2014 (Suit 105) against Baharul Azhar, as the money was paid only to him and he refused to share it with the other beneficiaries. [76] The plaintiffs in Suit 105 were Khadijah Binti Hj. Puteh (the mother-widow), and Baharul Akmar Bin Omar, Baharul Azman Bin Omar and Siti Noor Halma Binti Omar. They sued Baharul Azhar. [77] The presiding Court in Suit 105 made a finding of fact that in Suit 130, Baharul Azhar was the representative of the beneficiaries of the Estate: see paragraph 16 of the presiding Court’s Grounds Of Judgment— “Hence, based on the writ and statement of claim of Civil Suit 22-130-2007 [Suit 130], the Defendant here [Baharul Azhar in Suit 105] acted as the Plaintiff there [Baharul Azhar in Suit 130] as a representative of the beneficiaries on behalf of the estate of the late Haji Omar bin Chat and not in his personal capacity as claimed.” [Notes and emphasis mine] Page 28 of 40 [78] Baharul Azhar was not a party to Suit 130 in his personal capacity. In other words, in Suit 130, he did not sue in his personal capacity. He sued merely in his capacity as the informal representative of the beneficiaries of the Estate, but not as the formal court-appointed legal representative of the Estate. I agree with this finding of fact.

D1D2 did not notify Baharul Azhar that the RM295K was to be distributed among the beneficiaries [79] Eighthly, D1D2 could have notified, but did not notify Baharul Azhar that the compensation money was for the Estate or the beneficiaries. Such a notice to Baharul Azhar would have placed an obligation on him to share the money with the other beneficiaries. But D1D2 did not do this, or cause it to be done.

Baharul Azhar amended the intitulement on the Writ of Suit 130 to reflect that he is the plaintiff in Suit 130 [80] Ninthly, I would like to mention a piece of evidence that, although it does not bear heavily on my Judgment here, discloses an inference that reinforces my finding that D1D2’s clients in Suit 130 were the beneficiaries of the Estate and not Baharul Azhar alone. [81] Baharul Azhar, quite after-the-event, in January 2013 (after D1D2 had paid the RM295K to him and deducted the RM55K for themselves in December 2011), applied to amend the intitulement of the Order dated 25.8.2010—the Order to pay the Estate the RM350K compensation money. Page 29 of 40 [82] On the intitulement of the Order, the named plaintiff was amended from “Harta Pesaka Allahyarham Haji Omar Bin Arshad @ Omar Bin Chat (melalui Hj Baharul Azhar bin Omar sebagai wakil waris-waris yang sah)”—to “Baharul Azhar Bin Omar”. The amendment was allowed by Court Order dated 22.1.2013. [83] The RM350K compensation money was already paid out by then. It was paid out in December 2011. The amendment was granted in January 2013, more than a year after the RM350K was paid out by D1D2. [84] I must point out, however, that the amendment was not applied for by D1D2. It was applied for by a firm called Tetuan Zamri Ibrahim & Co., who represented Baharul Azhar. [85] The amended intitulement is reproduced here— Page 30 of 40 [86] I cannot help but think that in all likelihood, Baharul Azhar instructed Tetuan Zamri Ibrahim & Co. to seek the amendment, in an attempt to “legitimise” the payment of the compensation money to himself. This infers and reinforces to me that more likely than not, Suit 130 was filed to procure Page 31 of 40 compensation for all the beneficiaries, and certainly not for Baharul Azhar alone. But Baharul Azhar absconded with the whole compensation sum. And D1D2, as solicitors, should have known that they represented the beneficiaries and owed them a reasonable duty of care to protect their rights to the compensation money.

Second Issue: Breach of duty of care—findings [87] Even though D1D2 met with and communicated with Baharul Azhar, as they were the solicitors for the Estate (and ultimately the beneficiaries), D1D2 owed a duty to take reasonable care in relation to the beneficiaries. The duty to take reasonable care includes the duty to ensure that the RM350K compensation money is paid to the Estate or to the beneficiaries. [88] Paying the RM295K solely to Baharul Azhar is, in my view, a breach of D1D2’s reasonable duty of care. [89] D1D2’s failure or refusal to pay the compensation money to the beneficiaries directly caused the beneficiaries to suffer loss and damage. The beneficiaries were deprived of their share of the money. [90] This loss or damage was not too remote. D1D2’s act of releasing RM295K solely to Baharul Azhar and taking RM55K as their legal fees and expenses are the two foreseeable and causational events that deprived the beneficiaries of the compensation money. THIRD ISSUE—HOW MUCH ARE D1D2 LIABLE FOR IN DAMAGES? [91] As I find that D1D2 were negligent, it follows that they are liable to the Plaintiffs for damages. It is trite that the purpose of damages is to put Page 32 of 40 the Plaintiffs back in the same position that they were in, as if D1D2 were not negligent. [92] If D1D2 were not negligent, the Plaintiffs would have been given their respective share of the RM350K compensation money. So, the starting point in assessing damages to compensate the Plaintiffs is to determine how much money they would have been given.

Third Issue: Damages—findings [93] The evidence that lead me to the amount of damages to award the Plaintiffs is the Sijil Faraid. The Sijil Faraid specifies that P1 (the estate of Khadijah binti Hj. Puteh) has a 15/120 share in the Estate, and P3 (Baharul Azman bin Omar) has a 14/120 share in the Estate. [94] These two fractions work out to RM43,750.00 for P1 and RM40,833.33 for P3. I accordingly award these respective amounts to P1 and P3. [95] Next, there is a Table of payments made by the beneficiaries to prosecute Suit 130. The Table is described as the “Rumusan Kutipan Dan Bayaran”. D1D2 agreed that P1 paid RM1,800.00 and P3 paid RM300.00. [96] As for interest, since D1D2 paid out the RM295K to Baharul Azhar on 9.12.2011, I order interest for the benefit of the Plaintiffs, at 5% per annum on the respective amounts, to be calculated from 9.12.2011 to the date of full payment. Page 33 of 40 [97] This means that for P1, I order the payment of 5% per annum on RM43,750.00 from 9.12.2011 to the date of full payment, and 5% per annum on RM1,800.00 also from 9.12.2011 to the date of full payment. [98] For P3, I similarly order the payment of 5% per annum on RM40,833.33 from 9.12.2011 to the date of full payment, and 5% per annum on RM300.00 also from 9.12.2011 to the date of full payment. [99] As for general damages, I find that the Plaintiffs did not produce or give any evidence of the quantum of damages that they suffered. The only evidence available was that P1 passed away in December 2020, and that she did not get to enjoy the use of the compensation money from the time that it was paid out in December 2011, to December 2020 when she passed away. And similarly for P3—he did not get to enjoy the use of the money from December 2011. [100] As there is no evidence of any suffering, I award RM1,000.00 as nominal damages to P1, and RM1,000.00 as nominal damages to P3 as well. AGGRAVATED DAMAGES [101] The Plaintiffs also prayed for aggravated damages to be ordered against D1D2. [102] The principles governing an award of either or both aggravated and exemplary damages were propounded in the celebrated case of Rookes v Barnard [1964] 1 All ER 367 (HL); [1964] AC 1129; [1964] 2 WLR 269. Page 34 of 40 [103] Aggravated damages are additional damages for the injury to the Plaintiffs’ feelings, which were caused specifically by any bad and dishonourable conduct on the part of D1D2. The conduct that I am to assess is D1D2’s conduct in committing the wrong that is the subject matter of this suit i.e. the negligence, as well as D1D2’s conduct throughout this suit. [104] The manner of bad and dishonourable conduct that warrants aggravated damages has been described as conduct that is accompanied by malevolence (nastiness), spite (hate), insolence (disrespect), malice (ill will) and arrogance (pride). [105] I am guided by the judgment of the High Court in Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 (HC); [2022] AMEJ 1566; [2022] MLJU 2923, where Justice Amarjeet Singh Serjit Singh lucidly summarises the principles relating to aggravated damages, in this manner— [41] Thus, aggravated damages are given as additional compensation where there is injury to the feelings of the plaintiff that is caused by or exacerbated as a result of exceptional conduct of the defendant. The conduct must be high-handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v. Barnard [1964] AC 1129 at page 1232 as follows: I doubt whether the facts disclosed in the summing up shows even a case for aggravated damages ... present there seems to be no evidence that the Respondents were motivated by malevolence or spite against the appellant ... Again in so far as disclosed in the summing up there Page 35 of 40 was no evidence of offensive conduct or of arrogance or insolence, (emphasis added) [42] The principles stated above show that there are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; secondly, intangible loss suffered as a result by the plaintiff, that is injury to feelings or personality… [additional bold print emphasis are mine] [106] I find that D1D2 have exhibited or demonstrated no bad or dishonourable conduct against the Plaintiffs. There is no evidence to disclose otherwise. [107] During the trial, D1D2 conducted themselves courteously and appropriately. In fact, I find that D2’s principal lawyer: Encik Ahmad Termizi to be forthright when he was answering cross-examination questions. [108] I see no evidence nor ground to invoke the exceptional measure of ordering aggravated damages as an additional remedy. I therefore make no award for aggravated damages. EXEMPLARY DAMAGES [109] The Plaintiffs prayed for exemplary damages against D1D2 as well. [110] Exemplary damages are damages that would be ordered against D1D2 to punish them, to deter them, or to show the Court’s displeasure towards their behaviour. It is an exceptional remedy, and are only awarded under “very exceptional circumstances”—see Khaw Cheng Page 36 of 40 Poon & Ors v Khaw Cheng Bok & Ors And Another Appeal [2005] 6 MLJ 540 (CA); [2005] 5 AMR 185; [2005] 3 CLJ 753. [111] I go back to Big Junkyard (supra) for an apt enunciation of the principles governing the award of exemplary damages— [43] The next issue is whether a case for exemplary damages has been made out. The purpose of exemplary damages is to show the court’s abhorrence to “outrageous” conduct which conduct or behaviour is punishable. The purpose is to punish the defendant. There are two parts in granting exemplary damages. The first part is to clear the threshold. The plaintiff has to first show that he falls within one of the three categories enunciated in Rookes v. Barnard (recently reiterated by the Federal Court in Koperal Zainal bin Mohd Ali & Ors v. Selvi a/p Narayan (joint administrator and dependant of Chandran a/l Perumal, deceased) & Anor [2021] 3 MLJ 365 and Tenaga Nasional Bhd v. Evergrowth Aquaculture Sdn Bhd & Other Appeals [2021] 9 CLJ 179). [44] The failure to cross this threshold is fatal for a claim for exemplary damages. The three categories are:

(i)oppressive, arbitrary or unconstitutional action by the servant of the government; or

(ii)where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; or

(iii)where exemplary damages is expressly authorised by statute. [45] Once the plaintiff has cleared this threshold the plaintiff must show “outrageous” conduct. The principle is stated by Lord Devlin in Rookes v. Barnard as follows: Page 37 of 40 In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct and to deter him from repeating it, then it can award some larger sum. (emphasis added) [46] The Court of Appeal in Sambaga Valli gave a description of what may amount to “outrageous” punishable conduct: [33] The exemplary damages or punitive damages-the two terms now regarded as interchangeable - are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant’s tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a ‘contumelious disregard’ for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may aiso [sic] have an important function in vindicating the rights of the plaintiff. [47] If this part is cleared, only then the court goes into the question of assessing the measure of exemplary damages to be awarded… [additional emphasis mine] [112] I find that in this suit, there is no such “very exceptional circumstance” that warrants an award of exemplary damages against D1D2. [113] The Plaintiffs submit that D1D2 caused the Plaintiffs to be deprived of their share of the RM350K compensation money. They argue that they Page 38 of 40 have been deprived of the money for a long while, namely, from August 2010 (the Order of 25.8.2010) until February 2023 (the present day). They contend that even though the beneficiaries, through the December 2010 letter, notified D1D2 that the beneficiaries must be given their rightful share of the RM350K compensation money, D1D2 still refused to release the money to them. [114] I am of the view that these factors that are put forth are the circumstances that constitute the vicissitudes of litigation. D1D2 have to be given the opportunity, in fact, the right, to vigorously defend their position against the Plaintiffs’ claim. And so I hold that D1D2 should not be punished for it. CONCLUSION [115] In conclusion, for the reasons set out above, I allow the Plaintiffs’ claim in the following terms—

D1D2 are to pay P1 the sum of RM43,750.00, with interest on this amount at 5% per annum from 9.12.2011 until the date of full payment;

D1D2 are to pay P1 the sum of RM1,800.00, with interest on this amount at 5% per annum from 9.12.2011 until the date of full payment;

D1D2 are to pay P1 the sum of RM1,000.00, with interest on this amount at 5% per annum from the date of judgment (29.3.2023) until the date of full payment; Page 39 of 40

D1D2 are to pay P3 the sum of RM40,833.33, with interest on this amount at 5% per annum from 9.12.2011 until the date of full payment;

D1D2 are to pay P3 the sum of RM300.00, with interest on this amount at 5% per annum from 9.12.2011 until the date of full payment;

D1D2 are to pay P3 the sum of RM1,000.00, with interest on this amount at 5% per annum from the date of judgment (29.3.2023) until the date of full payment;

D1D2 are to pay P1 and P3 costs of RM70,000.00, which are subject to the allocatur. Dated: 27 April 2023 signed KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors For the 1st and 3rd Plaintiffs: Roshidah Osman and Siti Azizah Mulian [Messrs. Roshidah Osman & Partners (Pulau Pinang)] Page 40 of 40 For the 1st Defendant: Zulhasmi Bin Zakaria in person For the 2nd Defendant: Mohd Adlizan Mohd Noor [Messrs. Termizi & Co. (Kuala Lumpur)] Cases referred to:

Lee Kuang Guat (suing as the father of the deceased, Lee Chu Ling) v Chiang Woei Chien (practising as Chiang Chambers, Advocates and Solicitors) [2021] 3 MLJ 505 (CA); [2021] 3 CLJ 237; [2020] AMEJ 1892.

Wong Kiong Hung & Anor v Chang Siew Lan & Anor Appeal [2009] 4 MLJ 183 (CA); [2009] 4 AMR 64; [2009] 3 CLJ 751.

Gurbachan Singh Bagawan Singh & Ors v Vellasamy Pennusamy & Other Appeals [2015] 1 MLJ 773 (FC); [2015] 2 AMR 1; [2015] 1

Midland Bank Trust Co Ltd & Anor v Hett, Stubbs & Kemp (a firm) [1978] 3 All ER 571; [1978] 3 WLR 167; [1979] Ch 384, at All ER page 596, paragraph a-b.

Rookes v Barnard [1964] 1 All ER 367 (HL); [1964] AC 1129; [1964]

Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 (HC); [2022] AMEJ 1566; [2022] MLJU 2923.

Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors And Another Appeal [2005] 6 MLJ 540 (CA); [2005] 5 AMR 185; [2005] 3 CLJ 753.