KIRANJIT RANDHAWA & CO (sebuah firma guaman yang didaftarkan di bawah Badan Peguam Malaysia) v GOO HUEY KIAM (BA-11ANCvC-4-01/2022)

High Court of Malaysia30 Jan 2023

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1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN CIVIL APPEAL NO. BA – A11 ANCVC – 4 – 01/2022 & BA – A11 ANCVC – 6 – 01/2022 BETWEEN PLAINTIFF/APPELLANT KIRANJIT RANDHAWA & CO (sebuah firma guaman yang didaftarkan dibawah Badan Peguam Malaysia) AND DEFENDANTS/RESPONDENTS SGV BUILDERS SDN BHD GOO HUEY KIAM WILLIAM CHU PEH CHAW 20/03/2023 08:16:08 BA-11ANCvC-4-01/2022 Kand. 36 JUDGMENT [1] The present appeal pertains four different cases; and there were four different applications filed by the defendants to strike out the plaintiff’s writ of summons and statement of claim (SOC). All four applications were heard and allowed with costs of RM1000 each. The enclosure numbers at the magistrate’s court are 101, 62, 63 and 65. [2] The four different cases are namely; 1986, 2026, 2027 and 2028 – 11/2020, which were consolidated and heard together. [3] Albeit, two different notices of appeal were filed in this court pertaining four cases disposed of summarily by the magistrate’s court, the appeals lodged are in the main on the order made by the magistrate striking out the plaintiff’s writ and SOC, pursuant to O18 r 19 of the Rules of Court 2012 (ROC). [4] An issue was raised during hearing of this appeal by counsel for the defendants/respondent that there ought to be four different notices of appeal, as there are four different cases with four decisions. The objection raised was not sustained, as the fact remains all four cases are consolidated and heard together, thus one notice of appeal would suffice. Therefore, filing of two different notices of appeal does not prejudice the defendants in any manner whatsoever, as the defendants’ and their solicitors are fully aware of all four cases and its respective decision handed down by the magistrate. Their appraisal of the cases is fortified by the submissions advanced, both written and oral. [5] Additionally, O2 ROC as well as the overriding Order 1A ROC applies. It provides this court with curative jurisdiction and power to dismiss such objection raised with regard to lodgement of notices of appeal, as raised in enclosure 9 and to proceed with merits of the appeal, so that substantial justice prevails. [6] Claim by the plaintiff against defendants, is pure and simple, which is for legal fees and/or costs unpaid by the defendants as their clients, for legal services rendered. Opportune at this juncture, for reference to be made to the grounds of judgment by the magistrate which inter alia points toward the following: Plaintif gagal kemukakan dokumen untuk menunjukkan “written authority” daripada plaintif atau perjanjian bertulis yang wujud serta ditandatangani antara defendan-defendan dengan plaintif, berkenaan amaun dan cara pembayaran bagi yuran-yuran guaman dan kos-kos mengenai urusan berkaitan. Tiada sebarang bil kos yang pernah dikemukakan oleh plaintif mahupun diterima oleh defendan-defendan. Hanya Mahkamah Tinggi yang mempunyai bidangkuasa selaras dengan pemakaian Akta 1976 mengenai prosiding penetapan/pentaksiran bil kos berkenaan tuntutan fi-fi dan/atau yuran-yuran guaman antara peguam dan anak guamnya. Plaintif telah gunapakai prosedur yang salah/tidak bertepatan dengan membuat tuntutan-tuntutan fi-fi professional dan/atau yuran-yuran guaman yang dikenakan oleh firma guaman plaintif terhadap defendan-defendan. Sekiranya bil kos dikemukakan secara teratur kepada defendan-defendan dan defendan-defendan tidak bersetuju dengan jumlah yang tercatit dalam bil kos tersebut maka pihak-pihak boleh failkan petisyen di Mahkamah Tinggi bagi taksiran bil kos tersebut dibawah seksyen 125 & 126 LPA. [7] On the mode and manner, as prescribed by law, for plaintiff to bill the defendants for legal fees is sequentially the following: • A written agreement may be entered on the fees payable by an advocate & solicitor (A & S) which would act as a swift base to recover his fees. • If there is no written agreement, an A & S may recover his fees through issuance of bill of costs which may at his option be either for a gross sum or detailed items as rendered by section 121(1) of the Legal Profession Act 1976 (Act 166/LPA). • But the stark fact is, there is a distinction to be drawn between solicitor’s bill of costs and an order for taxation of costs; reference is made to section 121 (1) (b), 126, 128 and 132 LPA. • If a gross sum bill of costs is delivered, taxation is permitted under section 121 (1) (b) LPA. • However, If the party chargeable fails to petition for an order for taxation of costs within one year from the delivery to him of the bill of costs, the amount stated in the bill would ipso facto be converted into a debt due and payable to the A & S. • Pursuant to section 124 (2) LPA, where a bill of costs is proved to have been delivered in compliance with section 124 (1) LPA, it shall not be necessary for the A & S to prove the contents of the bill of costs, as it shall be presumed until the contrary is shown to be a bill bona fide complying with the LPA. Therefore, content of the bill of costs could only be disproved by contradicting evidence from the defendants. [8] Contention by counsel for defendants is that the plaintiff in this case had only issued invoices followed by a notice of demand against the defendants and there is no service of a bill of costs on them before the civil action is instituted. It is also argued a detailed bill of costs has to be delivered to entitle an A & S to sue for the same. The pro forma invoices issued are not bill of costs. Therefore, issue to be decided is, whether the sum prayed for by plaintiff is crystallised and claimable from the defendants? Contrary to law, and swayed by submission of counsel for defendants, the magistrate has found that she has no jurisdiction to hear the case by plaintiff as only the High Court has jurisdiction to do so. [9] However, pursuant to the factual matrix, the following are apparent: • The defendants are entitled to request for a detailed bill. • Upon service of the invoices, the defendants never responded in any manner until the plaintiff instituted the civil actions. • In the premise, as pleaded by the plaintiff, the defendants are aware of the invoices issued for legal fees. [10] Ensuing from the above, this court’s findings are: • The civil actions pursued by plaintiff are premised on a plausible cause of action in contract; wherein it had rendered legal services to the defendants; for which legal fees are chargeable; which remains unpaid despite demands made for its payment. • A reasonable cause of action exist as there are material facts forming subject matter of the action by plaintiff against defendants premised on a claim sanctioned by law for recovery of legal fees and since the defendants chose not to pay the said fees, remedy is available under the law for the plaintiff to sue, which it did. Thus, in law the plaintiff cannot be deprived of its rights to the legal fees. (See: Lim Kean v Choo Koon (1970) 1 MLJ 158). • Prima facie, claims made by plaintiff are not conspicuously unsustainable, and the writ and SOC by plaintiff ought not be struck out summarily without a trial. • In issue is conduct of both parties on the payment of legal fees due and payable by the defendants as well as the mode and manner by which it is chargeable. • The issues of law with regard to the mode and manner by which the legal fees are chargeable to the defendants by the plaintiff is much entwined with conduct of parties, necessitating viva voce evidence at a full trial. • It is not a case where the defendants are not aware of the legal fees chargeable and to be paid by them. They have all joined issue by hiding behind the legal provisions under the LPA, on the mode and manner by which the legal fees are chargeable. • Undeniably the LPA sets forth the mechanism as to the mode and manner by which the legal fees are chargeable by the plaintiff. (See: Lim Kien Seng & anor v Manoharan Kandasamy (2021) 2 CLJ 307). But there is divergence on the applicable law vis a vis provisions under the LPA as to how it is chargeable which is, to reiterate is dependent on conduct of parties, subject to evidential proof by plaintiff during the trial. It is then for the trial court to appreciate and evaluate the evidence proffered in order to arrive at a finding of fact premised on the law applicable, but not to dismiss the civil actions pursued by the plaintiff summarily pursuant to O18 r 19 ROC. • In the absence of an agreement to recover legal fees pursuant to section 116 LPA; section 121 (1) LPA applies, which entitles the plaintiff to bill the defendants for a gross sum. • Pursuant to proviso (a) to section 121 (1) LPA, the defendants are also entitled under the law to request from the plaintiff to deliver a bill of costs containing detailed items at any time before service of the writ of summons on them for recovery of costs but before expiration of three months from the date of the delivery of the gross sum bill. If that takes place, the gross sum bill shall be of no effect. But on the facts on record, there has not been such a request by defendants. • The much-argued issue on taxation of costs by counsel for defendants, would only come about pursuant to section 121

(1)(b) LPA, whereby upon commencement of a writ action by the plaintiff on the gross sum bill (like in this case) and upon request by defendants before expiration of one month from service of the writ, the High Court may order for the bill of costs be taxed. Again, on the facts, there is no such request by the defendants. In any event, there is a dichotomy between a solicitor’s bill of costs and taxation of the bill of costs. Both counsel for defendants and the magistrate who was swayed by his submission, had erred in law by mingling both the issues, when the issue at hand is on the issuance of the bill of costs by the plaintiff for legal services rendered, for which payment is not forthcoming from the defendants. • All the same, pursuant to section 121 (1) (c) LPA, the gross sum bill of costs may be referred to taxation either under section 121 (1) (b) or otherwise, which is to mean vide application to the High Court or may even include an application to the trial court. To reiterate, on the facts, there is no such request, aside submission by counsel for defendants, that only the High Court has jurisdiction for taxation of costs, but there is no evidence on record as to the steps taken by the defendants. Section 128 LPA would only be applicable, when the defendants have taken the necessary steps if they are dissatisfied with the bill of costs issued by the plaintiff, which in this case is a premised on a gross sum. • Therefore, steps to be taken by defendants are sequential, which is on receipt of the bill of costs from the plaintiff for a gross sum, they could have requested for a detailed bill of costs and if they are not agreeable to the detailed sum, leave of the trial court or the High Court could have been obtained to proceed with taxation of costs. Consequentially, the defendants, if they are dissatisfied with the gross sum charged and demands a detailed bill of charges, they have to put up with the consequences, if the amount of the detailed bill turns out to be larger than the gross sum first charged. (See: Siew Kuen Williams v Yong Siew In (1984) 1 MLJ 95). • It is also trite that since there is no evidence on the facts that there has been a written authority, except for the statement by the plaintiff as solicitors, the onus of proof is on the plaintiff to prove on a balance of probabilities that there has been such a written authority and the defendants are bound thereon to pay legal fees for legal services rendered by the plaintiff. Moreover, the defendants in their pleading has put the plaintiff to strict proof of their averments. • On the facts, it is also apparent the obligation to pay legal fees commences once the defendants engage services of the plaintiff as an A & S, but of course subject to proof, as alluded to above. It is decided in the case of Siew Kuen Williams v Yong Siew In, referred above, that in the case of a solicitor and client bill, the obligation to pay becomes due the moment the client engages the services of an advocate. There is therefore no necessity for any order of court to precede the taxation of such a bill of costs. [11] In the upshot, it is clear the magistrate has erred both on the facts and law, when she struck out the writ and SOC by plaintiff. Premised on the findings above, she could not have decided so, thus justifying appellate intervention. Taking cue from the decision of the apex Court in the case of Tengku Dato’ Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Anor Appeal (2018) 2 CLJ 641, and for the reasons alluded to above, the magistrate had decided to strike out the plaintiff’s writ of summons and SOC, based on findings that could not reasonably be explained or justified. Flowing from that, appeal by plaintiff to this court is allowed with costs to be paid by defendants. [12] Appeal by plaintiff is thus allowed with costs of RM8000 and the trial of the case is also ordered to proceed before another magistrate, to ensure a fresh view on the facts and law. [13] It is emphasised, decision of this court is now rendered not appealable pursuant to section 68(1)(f) of the Courts of Judicature Act 1964 (Act 91). Since this court had allowed the appeal by plaintiff against the striking out order made by the magistrate and for the case now to proceed to trial before another magistrate, the rights of the defendants are not finally disposed of. (See interpretation of the of the word “decision” in section 3 of Act 91). Dated 20 March 2023 SGD. Muniandy Kannyappan Judge, High Court NCVC 11 Shah Alam. Counsel for appellant/plaintiff – Kiranjit Kaur Randhawa and Ashrul Haikal of Messrs. Kiranjit Randhawa & Co Counsel for respondent/defendant – Teng Weng Leong of Messrs. Teng Weng Loong & Co.

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Case metadata

Court: High Court of Malaysia
Decision date: 30 Jan 2023
Case number: BA-11ANCvC-4-01/2022
Coram: YA Tuan Muniandy a/l Kannyappan
Practice area: Legal Profession - claim by solicitor for legal fees at the sessions court - claim struck out pursuant to O18 r19 ROC - on appeal - claim found not be conspicuously unsustainable - reasonable cause of action disclosed - solicitor entitled to issue a gross sum bill of costs - no request from defendants for a detailed bill - legal fees due and payable becomes claimable - non-compliance with section 121 LPA - appeal allowed with costs - decision made is non-appealable - application of amendment to section 68 (1) CJA
Version: Alasan Penghakiman 1
Published: 29 Dec 2023
Source ID: 7f9b0c9a-0a77-4d48-9080-66f549fcd930

Catchwords

Legal Profession - claim by solicitor for legal fees at the sessions court - claim struck out pursuant to O18 r19 ROC - on appeal - claim found not be conspicuously unsustainable - reasonable cause of action disclosed - solicitor entitled to issue a gross sum bill of costs - no request from defendants for a detailed bill - legal fees due and payable becomes claimable - non-compliance with section 121 LPA - appeal allowed with costs - decision made is non-appealable - application of amendment to section 68 (1) CJA

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KIRANJIT RANDHAWA & CO (sebuah firma guaman yang didaftarkan di bawah Badan Peguam Malaysia) - appellant - ejudgment_parties
1. ) GOO HUEY KIAM - respondent - ejudgment_parties
2. ) WILLIAM CHU PET CHAW - respondent - ejudgment_parties

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KIRANJIT RANDHAWA & CO (sebuah firma guaman yang didaftarkan di bawah Badan Peguam Malaysia) v GOO HUEY KIAM (BA-11ANCvC-4-01/2022)

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KIRANJIT RANDHAWA & CO (sebuah firma guaman yang didaftarkan di bawah Badan Peguam Malaysia) v GOO HUEY KIAM (BA-11ANCvC-4-01/2022)

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