1. ) Vikneis A/L Balan (Seorang Pesakit Mendakwa Melalui Balan A/L Varatharajoo Sebagai Wakil Litigasi/Sahabat Wakil) v Tetuan Nm Tiong & Co (PA-12ANCvC-31-09/2024)

VIKNEIS A/L BALAN (Seorang pesakit mendakwa melalui Balan A/L Varatharajoo Sebagai Wakil Litigasi/sahabat wakil)

BALAN A/L VARATHARAJOO ... PERAYU-PERAYU DAN TETUAN N.M. TIONG & CO … RESPONDEN DALAM MAHKAMAH SESYEN DI BUTTERWORTH DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN SIVIL NO: PB-B52NCvC-58-11/2023 ANTARA TETUAN N.M. TIONG & CO … PLAINTIF 03/10/2025 10:25:49 PA-12ANCvC-31-09/2024 Kand. 39 DAN 1. VIKNEIS A/L BALAN (Seorang pesakit mendakwa melalui Balan A/L Varatharajoo Sebagai Wakil Litigasi/sahabat wakil)

BALAN A/L VARATHARAJOO ... DEFENDAN-DEFENDAN JUDGEMENT A.

This is an appeal by the Defendants (Appellants herein) against the decision of the learned Sessions Court Judge (SCJ) delivered on 17.10.2024, whereby the SCJ allowed the Plaintiff’s (Respondent herein) application for summary judgment pursuant to Order 14 of the Rules of Court 2012 (“ROC 2012”). For ease of reference, the parties shall continue to be referred to as the Plaintiff and the Defendants, as they were in the Sessions Court. B.

The Defendant was involved in a motor vehicle accident and sustained serious injuries. He initially engaged the Plaintiff to act as his solicitor in pursuing his accident claim. Subsequently, the Defendant terminated the Plaintiff’s services and appointed another solicitor. Following the termination, the Plaintiff rendered a bill of costs amounting to RM399,827.08.

On 19.9.2023, the Plaintiff commenced a civil action against the Defendants in the Sessions Court at Butterworth, claiming legal fees in the sum of RM400,427.08. In addition, the Plaintiff sought interest at the rate of 5% per annum pursuant to section 11 of the Civil Law Act 1956 as well as costs of the proceedings.

On 15.2.2024, the Plaintiff filed an application for Summary Judgment pursuant to Order 14 of the Rules of Court 2012. The learned SCJ allowed the said application. Dissatisfied with that decision, the Defendants have now appealed to this Court. C.

The learned SCJ committed no error in granting Summary Judgment in favour of the Plaintiff. The facts are straightforward and undisputed. The Defendants had appointed the Plaintiff as their solicitor, and the Plaintiff duly carried out substantial work and incurred expenses before the Defendants terminated the appointment on the third trial date. Following this termination, the Plaintiff served a Bill of Costs on the Defendants and their newly appointed solicitor pursuant to section 124 of the Legal Profession Act 1976 (“LPA”). Although the precise date of service in October 2022 could not be recalled and was not expressly admitted by the Defendants, the fact of service is deemed undisputed in light of the Defendants’ own indirect acknowledgment that service was effected prior to 17.10.2022.

Despite service of the Bill of Costs, the Defendants have not filed any petition for taxation under section 126 LPA. More importantly, by operation of section 128 LPA, they are now precluded from doing so as more than 27 months have elapsed since the date of service. The Plaintiff commenced this action more than one month after such service, thereby satisfying the statutory requirements.

In these circumstances, the Defendants have no valid defence. Their objections are irrelevant as the Bill of Costs has become absolute and can no longer be disputed under the LPA. Section 124 LPA provides that once delivery of a bill is proved, it shall not be necessary for the solicitor to prove its contents in the first instance, and the bill shall be presumed, until the contrary is shown, to be bona fide and compliant with the Act. The burden thus lay on the Defendants to challenge the bill by way of taxation, which they failed to do.

It is further submitted that the Plaintiff is under no obligation to initiate taxation on behalf of the Defendants. The statutory right to taxation is vested solely in the client, and it is for the client to invoke section 126 LPA if dissatisfied with the contents of the Bill of Costs. Having failed to do so within the statutory period, the Defendants are now barred by section 128 LPA from challenging the bill.

On the question of interest, section 11 of the Civil Law Act 1956 (CLA) vests the Court with discretion to award interest in proceedings for the recovery of debt, including claims for legal fees. In the present case, the learned SCJ properly exercised this discretion by awarding interest at the rate of 5% per annum from the date of service of the Bill of Costs. This order is consistent with the CLA and cannot be impugned.

Accordingly, the Plaintiff submits that the Defendants have failed to raise any bona fide triable issue. The decision of the learned SCJ in granting summary judgment is correct in law and fact, and the appeal ought to be dismissed. D.

The Defendants submit that the learned SCJ erred in law and in fact when granting SummaryJjudgment in favour of the Plaintiff. At the outset, the Plaintiff’s action is fundamentally defective for non-compliance with the mandatory provisions of Section 124 LPA and Order 59 Rule 3(1) of the Rules of Court 2012. Section 124 expressly prohibits an advocate and solicitor from commencing or maintaining an action to recover legal costs without first obtaining the leave of the High Court. In the present case, there is no evidence that the Plaintiff ever sought or obtained such leave prior to filing the action in the Sessions Court. The failure to fulfil this statutory pre-condition renders the proceedings procedurally defective and incapable of being maintained. Although this issue was raised before the Sessions Court, the learned SCJ failed to address it in her Grounds of Judgment.

Furthermore, the Plaintiff’s reliance on Section 128(2) of the LPA to preclude the Defendants from challenging the Bill of Costs is misplaced. While Section 128(2) imposes a time limit for taxation, it cannot be treated as an absolute bar in circumstances where special circumstances are shown. Section 128(1), read together with Section 128(2), allows the Court to disregard the statutory limitation when special circumstances exist. The Plaintiff’s Bill of Costs is patently excessive and oppressive, seeking RM150,000.00 for “getting up” in a matter that never proceeded to trial, together with an inflated claim of RM642,000.00 for party-to-party costs. Such figures, in the context of a Sessions Court accident claim, are manifestly disproportionate and unreasonable, thereby amounting to special circumstances warranting judicial scrutiny despite the lapse of the statutory period.

The Defendants further submit that the learned SCJ erred in awarding 5% interest on the Plaintiff’s claim. Section 133 of the LPA provides that the authority to grant interest on solicitor-and-client costs lies solely with the Registrar, not with the Sessions Court. By purporting to exercise this discretion, the SCJ exceeded her jurisdiction.

In addition, there exists a material contradiction in the Plaintiff’s own pleadings as to the amount claimed. Paragraph 8 of the Statement of Claim lists the sum of RM399,827.08, whereas paragraph 9 claims RM400,427.08 — a discrepancy of RM1,307.00. This inconsistency demonstrates that the claim is neither plain nor obvious, but rather raises genuine triable issues that require adjudication.

Taken together, these matters establish clear and substantial grounds showing that the Plaintiff’s action is procedurally defective, factually disputed, and legally untenable. The Defendants therefore submit that the learned SCJ erred in holding that no triable issues exist and in granting Summary Judgment to the Plaintiff E.

In making decision, I am guided by the trite principle that the appellate court would only intervene the trial court’s decision if the trial court judge has made decision which was plainly wrong. (see S QUARRY SAN BHD V DESARY DEVELOPMENT CORPORATION SDN BHD [2019] 1 LNS 93).

In a Summary Judgement application, it is trite law that the principles governing O.14 ROC 2012 are well-established, permitting summary judgment only in cases where there is no defence or where the issues are plain and obvious. Summary Judgment ought to not be entered in cases where there are material disputes of fact or law that require a trial to resolve. This is well elaborated in the precedent case of BANK NEGARA MALAYSIA V MOHD ISMAIL [1992] 1 MLJ 400.

Having considered the submissions of both parties, the main issues for determination are: (i) whether the Plaintiff’s action was maintainable in light of Section 124 of the Legal Profession Act 1976 (“LPA”); (ii) whether the Defendants are absolutely barred by Section 128(2) LPA from challenging the Bill of Costs, or whether “special circumstances” exist; and (iii) whether the learned SCJ was correct in awarding interest and in holding that there were no triable issues.

Compliance with Section 124 LPA

Section 124(1) LPA clearly provides that “No advocate and solicitor shall, without the leave of the Court, commence or maintain any action for the recovery of any costs…”. The requirement of leave is framed in mandatory terms. It is a statutory safeguard to ensure that disputes over legal costs are properly filtered before litigation is commenced.

In the present case, the Plaintiff has not shown that leave of the High Court was ever obtained before initiating proceedings in the Sessions Court. This omission was squarely raised before the learned SCJ but was not addressed in her grounds of judgment. In my view, the absence of leave constitutes a fundamental procedural defect. The requirement under Section 124 LPA is not a mere irregularity but a condition precedent to the maintainability of the suit. The Plaintiff’s action was therefore incompetent from the outset.

(ii) Application of Section 128 LPA and Special Circumstances 21. The learned SCJ held that the Defendants were barred by Section 128(2) LPA, as more than 27 months had passed since the delivery of the Bill of Costs. While Section 128(2) LPA creates a statutory time bar, it must be read with Section 128(1) LPA, which recognises that “special circumstances” may justify taxation out of time.

The Court of Appeal in Tetuan Azim, Tunku Farik & Wong v Tetuan Ong Partnership [2021] 6 MLJ 464 affirmed that “special circumstances” exist where a bill is demonstrated to be oppressive, excessive, or unreasonable. In the present case, the Plaintiff’s claim of RM150,000 for “getting up” in a Sessions Court matter that never proceeded to trial, together with further claims amounting to several hundred thousand Ringgit, prima facie raises serious concerns of disproportionality. Such allegations cannot be brushed aside by the mere passage of time.

I therefore find that the Defendants have demonstrated special circumstances sufficient to warrant judicial scrutiny of the Bill of Costs, notwithstanding the lapse of time under Section 128(2) LPA. The Learned SCJ erred in treating the statutory bar as absolute and in declining to consider whether such circumstances existed.

(iii) Award of Interest and Triable Issues 24. The learned SCJ also awarded interest at 5% per annum from the date of service of the Bill of Costs, relying on Section 11 of the Civil Law Act 1956. However, Section 133 LPA expressly provides that interest on solicitor-and-client bills lies within the Registrar’s authority in taxation proceedings. As this suit was initiated for the recovery of legal fees, the SCJ’s reliance on Section 11 CLA was misplaced. The award of interest was therefore made without proper legal foundation.

Furthermore, the discrepancies in the Plaintiff’s Statement of Claim (RM399,827.08 in one paragraph and RM400,427.08 in another) demonstrate inconsistencies in the quantum of the claim. Such inconsistencies go to the certainty of the debt claimed. In applications for Summary Judgment, the claim must be plain, obvious, and undisputed. The presence of contradictory figures supports the existence of a triable issue requiring adjudication.

In light of the above findings, I am satisfied that the learned SCJ erred in law and in fact in granting Summary Judgment. Accordingly, the appeal is allowed. The decision of the Sessions Court dated 17.10.2024 is hereby set aside, and the matter shall proceed to trial on the merits. Costs in the cause. Bertarikh 3 Oktober 2025 SGD (Rozana binti Ali Yusoff) Hakim Mahkamah Tinggi Pulau Pinang Kompleks Mahkamah Pulau Pinang Pulau Pinang Peguam bagi pihak Perayu : K. Saravana Kumar Nur Fadhilah Azizan Tetuan Messrs Jega Kumar & Partners Peguam bagi pihak Responden: Tiong Hou Yuen Tetuan N. M. Tiong & Co.