Au Kok Huei v 1. ) Fatt Kee Roast Fish Sdn. Bhd. (WA-23CY-64-12/2020)

FATT KEE ROAST FISH SDN. BHD

CHENG SOON FATT (NO. K/P: 780628-14-5951) …DEFENDAN-DEFENDAN

The Plaintiff’s counsel’s firm Tetuan Richard Tee & Chin (“the firm”) applied to discharge itself from representing the Plaintiff under Order 64 Rule 5 Rules of Court 2012 (“the Rules”).

Order 64 Rule 5 of the Rules stipulates as follows:

Application by solicitor that he has ceased to act (O. 64 r. 5)

Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given a notice of change in accordance with rule 1, or a notice of intention to act in person in accordance with rule 3, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter, and the Court or the Court of Appeal or Federal Court, as the case may be, may make an order accordingly, but unless and until the solicitor serves on every party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order, he shall, subject to the foregoing provisions of this Order, be considered the solicitor of the party till the final conclusion of the cause or matter, whether in the Court or the Court of Appeal or Federal Court.

An application for an order under this rule shall be made by a notice of application in Form 140 or, in the case of an application to the Court of Appeal or Federal Court, by motion, and the notice of application or notice of motion shall, unless the Court or the Court of Appeal or Federal Court, as the S/N S0iksA5RmkSEREkzbrfhFg case may be, otherwise directs, be served on the party for whom the solicitor acted. The application shall be supported by an affidavit stating the grounds of the application.

An order in Form 141 made under this rule shall not affect the rights of the solicitor and the party for whom he acted as between themselves.

Notwithstanding anything in paragraph (1), where the legal aid certificate of an assisted person within the meaning of the Legal Aid Act 1971 [Act 26] is revoked or discharged, the solicitor who acted for the assisted person shall cease to be the solicitor acting in the cause or matter, and if the assisted person whose certificate has been revoked or discharged desires to proceed with the cause or matter without legal aid and appoints that solicitor or another solicitor to act on his behalf, rule 2 shall apply as if that party had previously sued or defended in person Factors leading to the application

The Court determined that the main factor leading to this Application as is stated in the Application itself is fall out between the Plaintiff and the counsels representing him. This stemmed from the fact that the counsels from the firm failed to appear at a mediation session to resolve the dispute which was fixed by the High Court.

The Plaintiff felt that the counsels were malingering when giving excuse for their non-appearance at the mediation session leading the Plaintiff making disparaging remarks against the firm.

At the hearing of the application the Plaintiff appeared in person and informed the Court that he had paid all the legal fees of the firm for the close of the pleadings and the case management stage.

For the full trial the agreed fees with the firm was RM150,000 of which the Plaintiff had already paid RM50,000. The full trial had yet to be commenced. Decision on the application

Going by the Rules the Court has been empowered to “make an order accordingly” for an application under Order 64 Rule 5 of the

In this case as the trial has not commenced and the Plaintiff has already paid a part of the agreed fees in lieu of the full trial, the Court allowed the firm’s application to cease to act for the Plaintiff but to refund the RM50,000 already paid. This would be fair to the Plaintiff who would have to engage a new lawyer for the full trial. S/N S0iksA5RmkSEREkzbrfhFg Dated: 29.11.2023 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N S0iksA5RmkSEREkzbrfhFg PARTIES For the Plaintiff: Nama Peguamcara: Richard Tee; Caryn Shua Tetuan Richard Tee & Chin, Suite 5-2, Tingkat 2, Jalan 5/76B, Desa Pandan, 55100 Kuala Lumpur. For the Defendant: Nama Peguamcara: Foo Wen Cong Tetuan Foo & Chan S-15-13, Wisma YNH, Kiara 163, No. 8, Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur