ENERGISER PROPERTIES SDN.BHD v CHOY KAM LEE beramal dibawah nama gaya K.L.CHOY & CO (AA-12B-10-04/2024)

Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331; [1995] 1 MLRA 738; [1995] 4 CLJ 283; [1995] 3 AMR 120 2871, to argue that an unpleaded defence may still be considered, those cases are clearly distinguishable. In both cases, the material facts supporting the legal issues were in fact pleaded, unlike the present case, where the appellant agency relationship. 125 [10]. From the outset, the appellant were not payable due to a property contra arrangement, not that it acted merely as an agent. The appellant never disputed the quantum of the legal fees, and the Sessions Court Judge correctly observed that the defence was premised solely on the alleged set-off by land 130 transfer. [11]. In conclusion, the court finds that the appellant acted as principal throughout, and its conduct, coupled with the absence of any pleaded agency defence, renders Section 183 inapplicable. The late introduction of this defence is both procedurally barred and factually 135 unmeritorious. The appellant remains personally liable Issue 2: -Barred under Section 6 of the Limitation Act 1953 [12]. The appellant contends that the claim is statute-barred under Section 6 of the Limitation Act 1953. However, this submission is 140 both legally and factually misconceived. The respondent services were rendered continuously between 2008 and 2013, and dealings until at least 2017. The Sale and Purchase Agreement executed on 23 March 2016, together with the related 145 correspondence, constitutes an explicit a clear acknowledgment of the debt under Section 26(2) of the Limitation Act 1953 and satisfies the requirement of being in writing under Section 27 of the same Act. This acknowledgment effectively postpones the accrual date of the cause of action and restarts the limitation period. 150 Therefore, the Sessions Court correctly held that the 2021 suit was filed within the time limit. Furthermore, the limitation defence was neither clearly pleaded nor seriously pursued as a principal issue during the trial. [13]. The court also accepts that the delay in commencing the action 155 was not deliberate but arose from ongoing negotiations and arrangements made in good faith to settle the legal fees through the sale and transfer of property owned by the defendant. The evidence demonstrates that both parties continued discussions and correspondence relating to this settlement well after 2013, 160 culminating in the 2016 Sale and Purchase Agreement and further dealings in 2020 2021, when partial payment was made through the Green View Garden transaction. These events collectively demonstrate mutual acknowledgment and extension of time. [14]. In the circumstances of this appeal, the respondent 165 filing suit ought not to be characterised as laches or inaction. Instead, the p including attempts to contra the fees through the sale of property and staggered payments. The law does not penalise a party for pursuing 170 a settlement in good faith. As observed by the Court of Appeal in Krishnasamy a/l Kuppusamy & Anor v Pengarah Hospital Sultanah Aminah & Ors and Other Appeals [2024] 4 MLJ 907; [2023] CLJU 2226: 175 Limitation Act can give way to estoppel. Indeed, there are dicta in Turberville v West Ham Corporation [1950] 2 KB 208 which suggest that a defendant will not be heard to rely on a statute of Limitation if his acts or statements during the currency of the period have induced the plaintiff to delay 180 In this case, the d and Purchase Agreement and partial payments, induced the plaintiff to delay formal action. Accordingly, the defendant cannot now rely on 185 limitation to defeat the claim. [15]. The claim filed in November 2021 is therefore within the statutory limitation period and lawfully maintainable. The Sessions . [16]. In addition, upon scrutiny of the d 190 testimony, it becomes clear that the defendant has since changed their position and is now attempting to resile from an arrangement that they had earlier acknowledged and agreed to. I append here the-examination: Babu : Okay good. So, there is a 1 million pending payment. You 195 say no.. no, you cannot deduct this amount, pay me that amount in full. Did the plaintiff pay you Mr Chang? SD 1: Partially. Babu: Okay, good. Now let's look at page 160. There is about 1 million payment due to you held by the Plaintiff. Now, how 200 much was released to you? RM600,000.00. Babu: You agree with me that the Plaintiff only wanted to release 500,000.00 to you only. Then you met him in his office and you ask. Then you all agree that another 100,000.00 to be 205 given. So, 600,000.00 was released to you correct? Yes, no? Was there any such a meeting Mr Chang? I think there was such a meeting. Babu: Correct. And that explains why in page 161 there is 2 cheques. One for 500 and for 100 thousands. Correct? 210 is there. Babu: Correct, okay. So, the balance 400 was with the Plaintiff, correct? SD 1: Yes. Babu: Let's go back to page 160. Let's look at the 3rd line "And the 215 balance of RM400,000.00 will be released upon or once you settle the outstanding matters which your Mr K.K. Chang has promised many times to obtain a clean Title Deed and is registered in my favour" So the condition is that set off the matter which is your fees or contra it or you give me the title. 220 Clean title registered in the name of the Plaintiff, I will release the 400,000.00. I put it to you that was the arrangement on 15th of April 2021, agree disagree? SD 1: No. Babu: Mr Chang you left the office of the Plaintiff with 600,000.00 225 left 400,000.00 with him. I put it to you that is a clear evidence that it was the agreed arrangement. Agreed, disagree? SD 1: Disagree. 230 [17]. The d , as referred to above during cross-examination, which was left unchallenged during re-examination, leads the court to conclude that the retention of RM400,000 by the plaintiff was made with the knowledge and acquiescence of the defendant at the meeting on 15 April 2021. The 235 defendant acknowledged attending a meeting where he requested the plaintiff to increase the amount released from RM500,000 to RM600,000. This request was acceded to, and two cheques were subsequently issued, one for RM500,000 and another for RM100,000, as corroborated by documentary evidence at pages 378- 240 379 of the Record of Appeal. The p remaining RM400,000 pending settlement of outstanding matters, including delivery of a clean title deed, was consistent with this mutual understanding. The d-examination, in the face of clear contemporaneous documents and absence of re- 245 examination, lack credibility. Issue 3: Estoppel, Constructive Trust, and Alleged Breach of Section 124 of the LPA [18]. The appellant's contention that the respondent is estopped from recovering legal fees due to the alleged contra property agreement is 250 unsustainable. The agreement was never perfected, as the transfer failed due to the appellant's own default. There was no clear, unequivocal representation by the respondent that he would forgo his right to payment. [19]. The a 255 inconsistent with its agency defence. By asserting agency, the appellant seeks to disclaim all liability for the legal fees, claiming to have acted solely on behalf of the Koperasi. In contrast, the estoppel argument presumes liability but seeks to avoid payment on the ground that the respondent is precluded due to the alleged contra of 260 property agreement. These two positions are inherently inconsistent and cannot logically coexist. This inconsistency reveals that the appellant is merely attempting to evade payment of a debt it previously acknowledged and had begun paying, only to refuse without valid basis subsequently. 265 [20]. On the issue of the alleged breach of constructive trust regarding the RM400,000 retained by the respondent from the proceeds of the Green View Garden transaction, the court finds no basis to support such a claim. The respondent a transparent exercise of right of set-off for legal fees arising from the 270 same project. It is undisputed that the RM1 million received originated from the sale of the appellant Under Clause 6 of the Sale and Purchase Agreement, the stakeholder funds became payable to the Appellant three days after the Memorandum of Transfer was presented to the Land Office. At that point, the Respondent was 275 entitled to retain RM400,000 from that amount as set-off against his outstanding legal fees. There is no evidence of any misappropriation or breach of duty that would justify the imposition of a constructive trust. [21]. The argument that the respondent's conduct breached Section 280 124 of the Legal Profession Act 1976 is also misconceived. The respondent's actions arose from a genuine dispute over entitlement to fees and involved no dishonesty. The retention of stakeholder monies under a claim of set-off was communicated to the appellant. These are civil matters and a right entrenched law for the individual 285 to commence such action for legal redress, not disciplinary breaches. Conclusion [22]. For the reasons above, the appeal is dismissed. The Sessions 290 Court correctly found that the appellant is liable for the unpaid fees, that Section 183 of the Contracts Act 1950 is inapplicable, and that the limitation defence fails. The arguments on estoppel, constructive trust, and professional breach are equally without merit. The respondent is entitled to judgment in the sum claimed. The appellant 295 shall pay RM10,000 as costs of this appeal to the respondent. Dated : 12 November 2025 300 [MOSES SUSAYAN] JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 305 310 For the appellant : Siti Aishah binti Mohamed Azahari 315 (together with Y.K Cheong) Advocates and Solicitors [Messrs BH Koh, Soong, Zarin & Partners] Ipoh, Perak 320 For the respondent : Babu Raj s/o Raja Gopal Advocates and Solicitors [Messrs K.L.Choy & Co.] Ipoh, Perak 325 Headnotes: CONTRACT: Advocate and solicitor Recovery of legal fees Claim for unpaid fees for litigation services rendered over multiple years 330 Whether defendant acted as principal or agent Whether plea under s. 183 of Contracts Act 1950 available Whether plaintiff estopped Whether constructive trust or breach of fiduciary duty established. LIMITATION: Legal fees Continuous services and subsequent property settlement agreement Whether debt acknowledged in 335 writing within meaning of s. 26(2) and s. 27 of Limitation Act 1953 Whether limitation period postponed Whether delay induced by ongoing negotiations Whether claim time-barred.