Lee Kuang Guat v Chiang Woei Chen (BA-23NCVC-20-09/2017)

This is an application by the Defendant under Order 18 Rule 19 (1)(a) and / or (b) and/ or (d) of the Rules of Court 2012 (“ROC 2012”) dated 16 November 2017 (enclosure 8) to strike out the Plaintiff’s Writ of Summon dated 13 September 2017 (Enclosure 1).

The Defendant’s claimed that the Plaintiff’s claim is frivolous and vexatious that amounts to an abuse of Court’s process; 2

The cause papers for this application are as follows:

Affidavit Sokongan Chiang Woei Chien affirmed on 16 November 2017 (Enclosure 9);

Affidavit Foo Tiang Kuang affirmed on 16 November 2017 (Enclosure 10);

Affidavit Jawaban Plaintiff Lee Kuang Guat affirmed on 5 December 2017 (Enclosure 11);

Affidavit Jawaban Kedua Plaintiff Lee Kuang Guat affirmed on 5 December 2017 (Enclosure 12);

Affidavit Balasan Foo Tiang Kuang affirmed on 14

Affidavit Balasan Defendant Chiang Woei Chien affirmed on 15 December 2017 (Enclosure 14).

To simplify the above affidavits, the Plaintiff is alleging that the Defendant being a solicitor (purportedly) acting for his goodself has committed a “professional negligence”and breach of duty of care as solicitors for not persuing the writ summons filed in 2011 thereby causing him to lose out the estate claim upon a fatal accident involving the Plaintiff’s daughter on 14 September 2008.

Having gone through the pleadings and affidavits filed by the respective parties, I have concluded the facts below:

On 14 September 2008, the Plaintiff’s daughter (the late Lee Chu Ling) had met an accident which succumb to death on 15 September 2008; 3

In para 3 of the Plaintiff Statement of Claim (Enclosure 1), he averred that sometime in October 2008, he met he met a solicitor by the name of Mr. FOO (later known as Foo Tiang Kuang) for legal assistance to help him made an estate claim;

Under para 4 of Mr. FOO affidavit (Enclosure 10), at the material time he was working in a law firm known as Messrs. Louis KH Wong & Co. and he confirmed knowing the Plaintiff including such meeting pertaining to the estate claim. During the meeting he got the Plaintiff to sign a document “Warrant To Act” which allow him to act on it and later had engaged the Defendant for assistance;

Again, under para 4(d) of Mr. FOO Affidavit Balasan (Enclosure 13), in instructing the Defendant, FOO had signed a letter dated 4 August 2011 purportedly asking the Defendant to file a writ summons for the estate claim in order to stop the limitation of three years period while awaiting for the Plaintiff to provide more documents, mainly the deceased’s monthly salary slips and/ or income tax submission for the purpose of the estate claim; 4

By then, under para 4.1 of the Defendant’s Affidavit in Support (Enclosure 9), the Defendant agreed to it and had filed a Writ of Summons as per the letter dated 4 August 2011 above;

Similarly, under para 4.2 and 4.3 of Enclosure 10, at that material time, FOO had averred that the said Plaintiff had also appointed another law firm Messrs. G. Dorai & Co. for the same claim;

Again, under para 4(a) of Enclosure 1, there was a complete silence from the Plaintiff between October 2008 till October 2016. Under para 5 of the said Affidavit, until November 2016, the Plaintiff averred that he and his son went to see the Defendant purportedly wanted to know the progress of the estate claim and had supplied the Defendant salary slip and “Borang Cukai Pendapatan LHDN”;

To this effect, as per para (g) above, under para 4.6 of Enclosure 9, the Defendant did not deny meeting the Plaintiff sometime in October till November 2016;

In para 4.7 of Enclosure 9, by 19 December 2016, the Defendant had received a letter from Messrs. Manian K. Marappan & Co. purportedly the 5 solicitors acting for the Plaintiff, requesting all related documents plus the Writ of Summons to be returned to the Plaintiff, in which the Defendant did so;

Nevertheless, under para 8 and 9 of Enclosure 1, by 13 September 2017, the Plaintiff had filed the present suit against the Defendant, alleging among others that the Defendant had committed breach of duty of care as a solicitor for not persuing the writ summons filed in 2011 thereby causing him to lose out the estate claim;

In reply to the Plaintiff’s writ summons, the Defendant averred in para 4 of his Statement of Defence and para 5 of Enclosure 9 in that he was never the solicitors appointed by the Plaintiff as there was no such solicitor-client relationship between them and had only acted upon FOO’s instruction vide letter dated 4 August 2011. In other words, the Defendant would only owed such duty of care towards FOO or Messrs. Louis Wong & Co. THE BRIEF ARGUEMENTS

In summary, the thrust of the Defendant’s submissions were as follows: 6

There is no solicitor-client relationship between the Plaintiff and the Defendant, thus no duty of care existed;

Any solicitor-client relationship if existed, it was between the Plaintiff and Messrs. Louis Wong and/ or Messrs. G. Dorai & Co.;

The Defendant’s duty of care is towards FOO or Messrs. Louis Wong due to the instruction vide letter dated 4 August 2011 by FOO;

The Plaintiff has sued the wrong party and the proper defendant ought to be Messrs. Louis Wong and/ or Messrs. Dorai & Co.;

The damage has been barred due to the Plaintiff’s own laches and indolent actions;

Because of the Plaintiff’s own delay, his estate claim is doomed to failure from the inception and his continuing of filing the suit against the Defendant is clearly an abuse of the court process.

In answer, counsel for the Plaintiff, Messrs. Manian K. Marappan & Co. had raised the following objection, namely:

Mr. FOO is an agent for the Defendant and the Defendant is a solicitor appointed by the Plaintiff in charge of the estate claim;

Mr. FOO had no power or any authority to instruct any solicitor as the appointment was made by the Plaintiff; 7

Messrs. G. Dorai & Co. was never the Plaintiff solicitor and no such appointment was made to that effect;

Defendant was the Plaintiff’s solicitor as he had filed an estate claim at the High Court Shah Alam but had never communicated with the Plaintiff until the Plaintiff himself met him sometime in October and

The document “Warrant to Act” to appoint the Defendant as his solicitor is not required under the law;

The High Court Shah Alam has fixed on 6 October 2011 for Case Management of the estate claim but nevertheless was struck off due to non attendance of the Defendant

Sometime in October or November 2016, the Plaintiff and his second son went to the Defendant’s office for some discussion but the Defendant was very busy and will contact later but to date nothing was done by the Defendant either to call for meeting or request for some documents. THE LAW OF STRIKING OUT

The principles governing a striking out application are automatically set out in Bandar Builder Sdn. Bhd. & 2 Ors. v. United Malayan

1 MLRA 611 (FC). It is only in plain and obvious cases where 8 it is clear that the claim is unsustainable is the power to summarily strike out a case exercised. Mohamed Dzaiddin SCJ delivering the judgment of the Federal Court as follows: “….the principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r.19….are well settled. It is only in plan and obvious cases that recourse should be had to the summary process under this rule………and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” …….The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defence raised are not arguable……..”

The above case and principles was also followed in the Court of Appeal judgment in Enersafe Sdn. Bhd. v. Megarina Sdn. Bhd.

2 CLJ 1021 (CA), Zulkefli Makinuddin JCA (as he then was) had said this: “….(12) We find it is most appropriate here to state the well established principle in that the power of striking out pleadings under O.18 r.19…..as invoked by the appellant in this case is too well known that it can only be exercised when the respondent’s claim on the face of it is obviously bound to fail……” 9

This court is always reminded by plethora of cases that the power to strike out summarily without a trial is a drastic power which should be exercised with utmost caution and should only be exercised in plain and obvious cases (see Tractors Malaysia Berhad v. Too Chee Hing (1975) 2 MLJ 1, Bandar Builders Sdn. Bhd. v. United Malayan Banking Corporation Bhd. (1993) 3 MLJ 36) .

It is now trite that in order to show solicitor commits negligence, the burden of proof lies on the Plaintiff to prove the following element as in the case of: Shearn Delamore & Co. v. Sadacharamani

Duty of care’

Breach of standard of care

Breach of duty of care

The breach caused the damages

In order to determine whether the duty of care existed, I am guided by the Court of Appeal decision in the case of: Meridian Asset Management Sdn. Bhd. v. Amtrustee Bhd. & Anor (2015) 4 CLJ 674 (CA) as follows:

Whether the damages suffered by the Plaintiff is one that is reasonable foreseeable

Whether there is a relationship of proximity between the Plaintiff and the Defendant

Whether it is fair and reasonable that the Defendant should owe the Plaintiff a duty of care 10 FINDING OF THIS COURT

Having scrutinized the above, I shall now consider the rival contentions of the parties. ISSUE 1 Is there any solicitor-client existed? Any duty of care owes by the Defendant?

In considering the first issue, it is a privilege to read in detail the Federal Court judgment in the case of: Gurbachan Singh Bagawan Singh & Ors. v. Vellasamy Pennusamy) (2015) 1 CLJ 719, Richard Malanjun CJ (Sabah & Sarawak) delivering the judgment of the court as follows: “….(35) It is trite law that in an action against a solicitor by his or her erstwhile client the threshold issue is whether a solicitor-client relationship exists between the plaintiff-client and the defendant-solicitor. In the absence of such relationship the defendant-solicitor in his professional capacity owes no duty to the plaintiff-client..

A solicitor-client relationship may arise either

by an express agreement between a solicitor and a client; or 11

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

it may be implied;

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:

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

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

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 assistance; and 12

that it was reasonable for the purported client to believe that the solicitor was representing him;

It is therefore a matter to determine whether a solicitor-client relationship exists. Hence it is essential to consider such evidence adduced including the words and conduct of the parties towards each other………but unilateral belief by a purported client that the solicitor would represent him or her would not be suffice……..”

I have scrutinized all the documents submitted before me, I found out that the Plaintiff averred that he went to see Mr. FOO about a month’s time after his daughter’s fatal accident, that was sometime in October

He purportedly signed some document including a document “Warrant To Act” appointing Messrs. Louis Wong & Co. as his solicitor. To this effect, I found that the Plaintiff did not deny in any of his affidavit. In exhibit “CWC-1 Enclosure 9”, a letter dated 29 September 2008 from Messrs. G. Dorai & Co. claiming that they acted for the Plaintiff on the similar fatal accident claim. Again, on this issue, I hardly find anything explained by the Plaintiff in any of his affidavit. 13

Since FOO has confirmed in his affidavit that the Plaintiff had signed the document “Warrant To Act” after he had asked the Plaintiff to sign it so that he could prevail over Messrs. G. Dorai& Co. in the same claim. As such he later instructed the Defendant to file a Writ of Summons for the Plaintiff so as to cater the 3 year limitation period. In the meantime, the Plaintiff further pleaded that he met the Defendant only sometime in November 2016 and had handed over relevant documents to the Defendant. To this, the Defendant did not deny meeting the Plaintiff sometime October-November 2016 but that was the first and only time they met each other.

Upon examining the fact, to my mind the Plaintiff had only met FOO and later signed the Warrant To Act to appoint FOO or Messrs. Louis Wong. There was nothing on the appointment of the Defendant as his solicitor. There was also no direct communication made between the Plaintiff and the Defendant at that material time. They only met each other sometime in November 2016. Even if it is true that the Defendant’s conduct in filing the Writ of Summons in 2011, he was acting under the instruction of FOO, and not of the Defendant. Moreso it was filed due to the avoiding of 3 year limitation period of an estate claim according to Section 7(5) of the Civil Law Act 1956 pending the Plaintiff supplying documents in relation to monthly salary slip or Income Tax. Having said this, it is my considered view that the Defendant’s duty of care is towards FOO or Messrs. Louis Wong. The Plaintiff was only reasonably to rely on FOO or Messrs. Louis Wong & Co. or Messrs. G. Dorai & Co. to provide assistance at the material time. Furthermore, the Plaintiff has never sought for 14 advice or assistance from the Defendant at the material time but only in November 2016 which came too late because his estate claims was by then had already been time barred, it was doomed to failure in any event. The question that comes to my mind is how could there be a solicitor-client relationship when no such appointment been made or created between them?? To conclude on this issue, I must stress that there is no such direct appointment of the Defendant as a solicitor for the Plaintiff. There was no solicitor - client relationship existed between them. It was a mere belief by the Plaintiff on the expectation of the Defendant as the solicitor of the Plaintiff, nevertheless such belief is not sufficient to create any relationship between them. ISSUE 2 Wrongly suit against the Defendant?

Having considered the issue of solicitor-client relationship, the next question that comes to my mind is: If the argument that just because a writ of summons was filed by the Defendant, hence a solicitor-client relationship is existed, then what about the effect of the document “Warrant To Act” signed by the Plaintiff (though the Plaintiff claiming not known what he signed)and the clear representation made in the letter of Messrs. G. Dorai & Co.? Would these simply to sign a document “Warrant To Act” and representation of Messrs. G. Dorai & Co. be made recognized as part of the existence of the relationship between them? To my mind, the existence of these two documents has truly confirmed the existence of the solicitor-client relationship as 15 per in the case of Gurbachan Singh’s (supra). These two letters have made clear representation and self explanatory

Having read the content of these two documents, it has represented that both Mr. FOO and/ or Messrs. Louis Wong and Messrs. G. Dorai & Co. were acting for the Plaintiff on a similar estate claim as a result of the subject fatal accident since all the facts and circumstances of the case pointing towards such relationship in which the Plaintiff might sought for legal advice and assistance. In that situation both the firm have expressly or impliedly agreed to provide such assistance and reasonably knew that the Plaintiff would rely on them. Thus, to my mind the solicitor-client relationship if ever existed pointing to between the Plaintiff and Messrs. Louis Wong and/ or Messrs. G. Dorai & Co. In so doing, I must stress again that the action and suit taken by the Plaintiff towards the Defendant is nonetheless without any merit and justification. ISSUE 3 Estate claim has time barred – whose fault?

Under Section 7(5) Civil Law Act 1956, an estate claim (upon fatal accident) must be filed within 3 years from the date of death. For an estate claim to be succeeded, the Plaintiff must also show proof of any “labour or other gainful activity” of his deceased daughter prior to her death. From the fact, the accident occurred on 14 September 2008 and the daughter has passed away on 15 September 2008. As such the 3 years to file an estate claim would expired on 14 16 September 2011. By virtue of Mr. FOO’s letter dated 4 August 2011, instructed the Defendant to file a writ summons in order to stop the limitation time. The Defendant has taken immediate action and has filed it on 12 September 2011. Thereafter, the Defendant did not receive any further instruction from FOO. In FOO’s Affidavit said that the Plaintiff took a longer time to supply him relevant documents namely the monthly salary slips and income tax document. The Defendant confirmed this. In his pleading, the Plaintiff himself confirmed that he only supplied those salary slips and LHDN documents to the Defendant when he went to see the Defendant in November 2016. To my mind, even if the writ summons was filed on time and continue, the Plaintiff’s failure to supply such documents of the deceased would still render the estate claim doomed. It even worst when the Plaintiff only supplied such documents by November 2016 and the statutory period of 3 years has already passed. As such, it was not related to the Defendant’s conduct. The limitation period has already passed due to the Plaintiff’s own laches, indolent and delay.

On the other hand, I hardly find any evidence produced by the Plaintiff to substantiate his averment that he had contacted Mr. FOO incessantly between 2008 till 2016. Be that as it may. Having perused the Plaintiff’s Affidavit, I hardly find any exhibit on LHDN documents, salary slips or the employment letter to prove “gainful activity” of the daughter prior to her death. Having said this, to my mind without these mentioned documents, this suit would be futile, a frivolous and vexatious action and obviously unsustainable. 17 ISSUE 4 Abuse of the Court process?

On the fact before me, I found that the Plaintiff has engaged more than one solicitor i.e. Messrs. Louis Wong, Messrs G. Dorai & Co. and/ or Defendant (if any) and lastly Messrs. Manian K. Marappan & Co. for one similar estate claim. To my mind, this has caused multiple representation and inconveniences to parties. The delay, indolent due to the Plaintiff ‘s own laches has nothing to do with the Defendant. From the various choices and chances, the Plaintiff may approach any one of the solicitors for opinion during the period of 2008 till 2016, albeit he only did it in 2016 when the estate claim has well been time barred. In the absence of any evidence to show that the Plaintiff has taken the necessary steps during the material time, the Plaintiff still continue to file this suit against the Defendant. To my mind, the Plaintiff is not sincere and bona fide to the subject suit. As such, I shall conclude it as an abuse of the court process.

In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the Defendant’s application for striking out under Order 18 Rule 19(1)(a), (b) or (d) and Order 92 Rule 4 of the Rules of Court 2012 is hereby allowed with cost of RM 5000.00. Order accordingly. 18 Dated 11 January 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff Mr. Manian K. Marappan with Wong Zu Hao (Messrs. Manian K. Marappan & Co.) For the Defendant Mr. C.S Lam (Messrs. C.S. Lam & Co.)