Nyo Nyo Aye v Kevin Sathiaseelan A/L Ramakrishnan (W-02(NCVC)(W)-12-01/2018)

KEVIN SATHIASEELAN A/L RAMAKRISHNAN

MESSRS SYED ALWI NG & CO …RESPONDENTS [IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA CIVIL SUIT NO.: 22NCVC-219-04/2015 BETWEEN NYO NYO AYE (NRIC NO: 620805-64-5058-01) … PLAINTIFF

KEVIN SATHIASEELAN A/L RAMAKRISHNAN

MESSRS SYED ALWI NG & CO … DEFENDANTS Decided by the Honourable Judge Dato’ Mohd Firuz bin Jaffril sitting at the High Court of Malaya at Kuala Lumpur on 29th November 2017] 2 CORAM: IDRUS HARUN, JCA (NOW FCJ) SURAYA OTHMAN, JCA STEPHEN CHUNG HIAN GUAN, JCA JUDGMENT OF THE COURT INTRODUCTION [1] There are two appeals before us which are as follows: a) W-02(NCVC)(W)-2614-12/2017 (Appeal No 2614); and b) W-02(NCVC)(W)-12-01/2018 (Appeal No 12). [2] These two appeals arise from the decision of the Learned Judicial Commissioner (Learned JC), delivered on 29.11.2017 which dismissed the Plaintiff’s claim against the Defendants. The Plaintiff, Mrs Nyo Nyo Aye, had brought this present suit against the Defendants for breach of agreement (retainer) and/or professional negligence in the Defendants’ conduct of the Kuala Lumpur High Court Civil Suit No. S3-22-890-2007 (the 1st Suit). The Plaintiff had alleged that the Defendants, as her solicitors, had failed to inform and advise her and take the necessary actions which resulted in the 1st Suit being struck off by the High Court on 24.8.2009. At the end of the trial of this present suit, the Learned JC found the Defendants, as solicitors, were 3 in breach of agreement (retainer) and/or professionally negligent but however dismissed the Plaintiff’s claim on the basis that her claim was time-barred. [3] Both the Plaintiff and the Defendants were aggrieved with the decision of the Learned JC and each filed separate appeals contending that the Learned JC was plainly wrong in arriving at the said decision. Appeal No 2614 is the appeal by the Defendants (Kevin Sathiaseelan A/L Ramakrishnan - 1st Defendant and Messrs Syed Alwi Ng & Co - 2nd Defendant) against the decision of the Learned JC which held that the Defendants as solicitors were in breach of agreement (retainer) and/or professionally negligent in their duty as the Plaintiff’s solicitor in the the 1st Suit while Appeal No 12 is the appeal by the Plaintiff (Mrs Nyo Nyo Aye) against the decision of the Learned JC which held that her claim against the Defendants is time barred. [4] On the hearing date, by consent of both parties, the Defendants Appeal No 2614 was withdrawn on the agreement that the issues which were raised in Appeal No 2614 can also be raised in Appeal No 12 and that the Plaintiff will not raise any objection if there is any need to file a leave application or an appeal proper to the Federal Court. On that agreement by parties, we struck out Appeal 2614 and proceeded to hear Appeal No 12. [5] We then proceeded to hear the appeal, and after taking into consideration the submissions of parties, both oral and written, we were unanimous in our view that there were merits in the Plaintiff’s appeal. We therefore allowed the Plaintiff’s appeal and set aside the decision of the 4 Leaned JC on the issue of limitation. However, we are unanimous that there is no merits in the Defendants’ appeal. We therefore dismissed the Defendants’ appeal and we affirmed the decision of the Learned JC on the issue of the breach of agreement (retainer) and negligence. We then remitted the case to the High Court for assessment of damages. We now provide the reasons for our decision which will constitute the judgment of the court and for ease of reference, parties will be referred to as they were in the High Court. BRIEF FACTS [6] The facts of the case can be gleaned from the submissions of counsel and we reproduced here with some modification. The Plaintiff’s late husband Adamberage Ananda Rex De Alwis A/L Edward De Alwis passed away on 1.3.2006. [7] The Plaintiff had appointed the 2nd Defendant as her solicitors to initiate a civil suit against A. Maurice De Alwis, the executor of the estate of the Plaintiff’s late husband (“the Executor”). [8] The 1st Defendant was practicing with the 2nd Defendant and was the solicitor who received instructions and represented the Plaintiff in the probate matter. [9] The Plaintiff had retained the Defendants to set aside the grant of probate which was issued to A. Maurice De Alwis (“the Executor”), the 5 brother of her late husband (“Adamberage Ananda Rex De Alwis”). The Plaintiff’s late husband had purportedly left a will, which the Plaintiff claimed was forged. The Defendants were engaged to set aside the grant of probate and challenge the validity of the said will. [10] On 27.6.2006, on the instructions of the Plaintiff, the 2nd Defendant filed a caveat with the High Court to prevent any grant of probate to be issued without notice to the Plaintiff. Notwithstanding the aforesaid caveat, the High Court issued a grant of probate on 19.7.2006. [11] The Plaintiff then commenced legal proceedings against the Executor on 6.8.2007 vide Civil Suit No. S3-22-890-2007 (“the 1st Suit”), praying for a declaration that the alleged will tendered by the Executor to obtain the grant of probate of the estate of the Plaintiff’s late husband is null and void on the ground that it was forged. [12] On 28.3.2008, the Executor successfully applied and obtained an order for security for costs (“SFC Order”) against the Plaintiff requiring the Plaintiff to pay RM80,000.00 within fourteen (14) days from the date of receipt of the SFC Order, failing which, the 1st Suit would be struck off. [13] On 11.4.2008, by a Notice of Appeal to the Judge in Chambers, the 2nd Defendant filed an appeal for and on behalf of the Plaintiff to appeal against the decision of the Deputy Registrar in allowing the SFC Order (“Enclosure 18”). 6 [14] Subsequent to the lodging of the above appeal, the sealed SFC Order was served on the 2nd Defendant on 15.5.2008 and the said period for compliance would have expired on or before 29.5.2008. [15] On 23.5.2008, the Defendants filed an Application for Stay of the SFC Order (“Enclosure 22”) and on 28.5.2008, the Defendants secured an interim stay pending the disposal of Enclosure 22. [16] From 28.5.2008 to 7.11.2008, the SFC Order was stayed pursuant to the interim stay order. At the hearing of Enclosure 22 on 7.11.2008, the application for stay was dismissed by the Court. [17] At this juncture, the Plaintiff had only one (1) day to comply with the SFC Order, wherein the security for costs (“SFC”) had to be paid on or before 8.11.2008. [18] On 12.11.2008, by a Summons in Chambers, the Executor filed an application to strike off the 1st Suit (“Enclosure 38”). [19] On 14.11.2008, on the instructions of the Plaintiff, the 2nd Defendant filed a Notice of Appeal to the Judge in Chambers for and on behalf of the Plaintiff to appeal against the dismissal of Enclosure 22 (“Enclosure 39”). [20] The Plaintiff forwarded the SFC of RM80, 000.00 to the Defendants on 20.11.2008. The Defendants thereafter deposited the SFC in Court on 28.11.2008. 7 [21] On 24.8.2009, the Court dismissed Enclosure 18 and Enclosure 39, and allowed Enclosure 38. In allowing Enclosure 38, Civil Suit No. S3-22-890- 2007 (the 1st Suit) brought by the Plaintiff against the executor for a declaration that the alleged will tendered by the Executor to obtain the grant of probate of the estate of the Plaintiff’s late husband is null and void on the basis that it was forged was struck off. The 1st Suit was struck off for non-compliance of the payment of the SFC by the Plaintiff. [22] Arising from the above facts, the Plaintiff initiated this present Suit against the Defendants premised on the breach of the agreement (retainer) and professional negligence for causing the 1st Civil Suit No. S3-22-890- 2007 (the 1st Suit) to be struck off. [23] After a full trial, the Learned JC dismissed the Plaintiff’s claim against the Defendants on the ground that the Plaintiff’s claim was barred by limitation. At The High Court [25] The main issues before the Learned JC are as follows:

Whether the cause of action by the Plaintiff against the Defendants accrued on 24.8.2009, which is when the 1st Suit was struck off by the court on the application (Enclosure 38) by the Executor or on 8.11.2008 which was the last date for the Plaintiff to pay the SFC. 8

(ii) Whether the Defendants were negligent and/or in breach of the retainer (agreement) when the Plaintiff’s 1st Suit via Suit No. S3- 22-890-2007 was struck off by the court due to failure to deposit SFC in the sum of RM80, 000.00 within the time stipulated. Limitation [26] The Defendants in the High Court pleaded the defence of limitation. They argued that the cause of action arose on 8.11.2008 which is on the last day the SFC had to be paid. The Plaintiff responded by submitting that the cause of action arose on 24.8.2009 which is the date that the 1st Suit was struck off on the application (Enclosure 38) by the Executor. Breach of agreement (retainer) and negligence [27] The Plaintiff argued that the Defendant was in breach of the agreement (retainer) and negligent in failing to inform and advise her that the 1st Suit would be struck off if she failed to deposit the SFC. Further, the Defendants were negligent in failing to secure an application for an extension of time for her to comply with the SFC Order. The Defendants responded by arguing that they had advised the Plaintiff and that the Plaintiff’s failure to comply with the SFC Order was not due to their negligence but instead due to the financial difficulties faced by the Plaintiff. [28] On 11.10.2016, the Learned JC held that notwithstanding that the Plaintiff had been able to prove that the Defendants were in breach of agreement (retainer) and/or were negligent, the Plaintiff’s cause of action 9 against the Defendants was barred by limitation. The Learned JC then dismissed the Plaintiff’s claim against the Defendants. OUR DECISION [29] The Plaintiff’s claim against the Defendants was premised on the cause of actions for breach of the retainer agreement and professional negligence. The Learned JC dismissed the Plaintiff’s claim on the basis that it was time-barred. On the issue of limitation, the question was whether the plaintiff’s cause of action had accrued on 24.8.2009, which is when the 1st Suit was struck off by the court or on 8.11.2008 which was the last date for the Plaintiff to pay the SFC. [30] Upon perusal of the grounds of judgment (GOJ), the decision by the Learned JC on the issue of limitation can be found at paragraphs 35, 36, 37 and 38 as follows: “[35] Looking at the terms of the Order for SFC which inter alia states that a failure to deposit the sum of RM80,000.00 in Court within the stipulated period would result in the Civil Suit being struck off, I am off the view that the Plaintiff’s claim which was filed only on 29.4.2015, clearly exceeded the stipulated 6 year period. [36] I am also of the view that the Plaintiff cannot utilise the date of 24.8.2009 as the date the cause of action accrued as the act of negligence and/or breach of retainer complained off had accrued much earlier. Even without the defendants in the Civil Suit filing Enclosure 38 to strike off the said Civil Suit, by virtue of the non-compliance with Order for SFC and the 10 dismissal of the Plaintiff’s application for stay on 8.11.2008, the Civil Suit would have been automatically struck off. [37] In this regard, I am in agreement with the Defendants’ reliance on the Court of Appeal case of Shaik Ali v Shaik Mohamed (1963) 29 MLJ 386 and Pang Yeow Chow (practicing at Messrs YC Pang, Chong & Gordon) Advance Specialist Treatment Engineering Sdn Bhd [2015] 1 MLJ 490. A review of these cases shows that in a case wherein a particular suit was struck out on account of the negligence of a solicitor, the cause of action to sue for loss of chance will commence instantaneously and after the appeal against the striking out is dismissed. [38] In the above premise, notwithstanding the Plaintiff being able to proof that the Defendants were in breach of agreement (retainer) and/or negligent, I am constraint to hold that the Plaintiff’s cause of action is time barred.” [31] It is to be noted that the Learned JC at paragraphs [35] and [36] of his judgment found that the Plaintiff’s claim which was filed on 29.4.2015 had exceeded the stipulated 6 years period under the Limitation Act 1953 (Act 254). The Learned JC was of the view, that notwithstanding the summons in chambers application (Enclosure 38) by the Executor to strike off the 1st Suit, and the dismissal of the Plaintiff’s application for stay on 8.11,2008, the 1st Suit would have been automatically struck out in any event by virtue of the non-compliance by the Plaintiff with the Order for SFC to deposit the sum of RM80,000.00 within the stipulated time. Therefore, according to the Learned JC, the cause of action arose instantaneously after these two occasions i.e. from 8.11.2008 when the application for stay was dismissed. The stand taken by the Defendants is thus the same as that of the Learned JC. 11 [32] We had carefully considered the judgment of the Learned JC and the submissions, both oral as well as written, of learned counsel for the Plaintiff and Defendants. However, we respectfully disagreed with the findings of the Learned JC on this issue. [33] First, the law on limitation founded on a contract is trite, that it has a lifespan of six years from the date the cause of action accrues. Section 6(1) “6(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

actions founded on a contract or on tort;

…

…

… [34] Thus, in our case, when did the cause of action accrue? In the Federal Court’s case of The Great Eastern Life Assurance Co Ltd v Indra Janardhana Menon (representing the estate of the deceased, NVJ Menon) [2006] 2 MLJ 209; [2005] 4 CLJ 717 at p 215 (MLJ); p 724 (CLJ), the Court held that “a cause of action founded on contract accrues on the date of its breach and that time begins to run from that breach”: “The law on when a cause of action accrues is already well settled and very much entrenched in our jurisprudence which is this. A cause of action founded on contract accrues on the date of its breach and that time begins to run from that breach.” 12 [35] In our case, the Defendants in their defence pleaded limitation. So the question is, what was the date or when did the Defendants breach the contract of retainer? [36] In the case of Muhamad Solleh bin Saarani & Anor v Norruhadi bin Omar & Ors [2010] 9 MLJ 603, the Court held (at para 5) that “where the defence of limitation is raised, the burden to prove that the action was commenced within the limitation period shifts to the plaintiff” and “in negligence actions, since damage is an essential part of the cause of action, the period of limitation runs from the date of the damage and not of the act which causes the damage.” [our emphasis added]. “[5] In the present case, where the defence of limitation is raised, the burden to prove that the action was commenced within the limitation period shifts to the plaintiff (see Ong Ah Bee v Hii Chung Siong, Robin [1364] MD 2; [1993] 1 CLJ 504 at p 505). Under the Limitation Act, the time barred is absolute. 'It has been said that in negligence actions, since damage is an essential part of the cause of action, the period of limitation runs from the date of the damage and not of the act which causes the damage', per Steve Shim J (as he then was) (Beckhouse v Bonomi [1861] 9 HL Cas 503; Midland Bank Trust Co Ltd & Anor v Hett, Stubbs & Kemp (a firm) [1978] 3 All ER 571). In Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341, Lord Pearce said: I agree that when a defendant raises the statute of limitation the initial onus is on the plaintiff to prove that his cause of action occurred within the statutory period. When, however, a plaintiff has proven an accrual of 13 damage within the six years … the burden passes to the defendants to show that the apparent accrual of a cause of action is misleading and that in reality the cause of action accrued at an earlier date.” [emphasis added] [37] So in the present case, when did the breach occur or specifically when did the damage occur (as opposed to when the act which caused the damage occurred). To answer this, a look at the SFC Order which was granted by the Deputy Registrar dated 28.3.2008 is crucial. The SFC Order is as follows: “PERINTAH ATAS PERMOHONAN Defendan dinamakan diatas DAN SETELAH MEMBACA … DAN SETELAH MENDENGAR … MAKA ADALAH DIPERINTAHKAN bahawa Nyo Nyo Aye diperintahkan untuk mendepositkan ke dalam Mahkamah sejumlah wang sebanyak RM80,000.00 sebagai jaminan untuk kos dalam masa empat belas (14) hari dari tarikh Perintah Mahkamah diserah kepada Peguamcara Plaintif DAN DIPERINTAHKAN bahawa sementara jumlah jaminan kos tersebut dibayar oleh Nyo Nyo Aye ke dalam Mahkamah ini, tindakan Nyo Nyo Aye untuk menentusahkan kesahihan tandatangan simati dalam wasiat hendaklah digantung sementara dan sekiranya Nyo Nyo Aye gagal mendepositkan jumlah untuk jaminan kos seperti yang diperintahkan dalam masa yang ditetapkan, tindakan Nyo Nyo Aye seperti dalam Writ Saman bertarikh 6 haribulan Ogos 2007 dan apa-apa tindakan Nyo Nyo Aye untuk menentusahkan tandatangan simati hendaklah dibatalkan kos permohonan ini dijadikan kos mengikut kausa. Bertarikh pada 28 haribulan Mac 2008 14 Puan Siti Noraida Binti Sulaiman ……………………………………. Timbalan Pendaftar Mahkamah Tinggi Kuala Lumpur” [emphasis added] [38] The phrase used by the Deputy Registrar in the SFC Order is that the 1st Suit “hendaklah dibatalkan” if the Plaintiff fails to deposit the SFC within the stipulated time. [39] It was the Defendants’ case that the date of 24.8.2009 which was the date the High Court ordered the 1st Suit to be struck off, was only a confirmation of the failure by the Plaintiff to adhere to the SFC Order. This is so, since in any event, the 1st Suit was already struck off by virtue of the non-compliance of the SFC Order and at that point of time the purported damage had already accrued. The Defendants argued that the Plaintiff had failed to adhere to the SFC Order when the sum of RM80,000.00 was not deposited into Court within the stipulated time, as ordered by the Deputy Registrar, that is, on or before 8.11.2008. Thus the filing of the Summons in Chambers (Enclosure 38) by the Executor to strike off the 1st Suit was only administrative in nature. The Defendants stand was that the SFC Order is a final order explicitly stipulating that the 1st Suit shall be dismissed (“hendaklah dibatalkan”) in the event the Plaintiff failed to comply with the said SFC Order. In other words, non-compliance by the Plaintiff renders the 1st Suit to be struck off on 9.11.2008. In such circumstances, the Plaintiff’s cause of action for breach of agreement (retainer) and negligence would 15 therefore accrued on 9.11.2008 and six years thereon would have expired on 8.11.2014. In filing this present suit on 29.4.2015, the Defendants submitted that the Plaintiff’s action had already been time-barred. [40] It was the Plaintiff’s case that the cause of action only arose on 24.8.2009, which is when the 1st Suit was struck off by the High Court on the application of the Executor (Enclosure 38). The Plaintiff submitted that the SFC Order made by the Deputy Registrar on 28.3.2008 in the 1st Suit did not strike off the action/suit because the said Order merely said that the action “hendaklah dibatalkan” which according to the Plaintiff’s counsel means it ought to be struck off. This was obviously so since the learned Deputy Registrar did not have jurisdiction to issue an order that the 1st Suit will be automatically struck off in the event of non-payment of the SFC. The Plaintiff argued that it was for this reason that the Summons in Chambers application (Enclosure 38) was subsequently made to the Judge by the Executor in the 1st Suit to strike off the action and the Judge on 24.8.2009, did hear the application and strike off the suit. The Plaintiff further submitted that the Defendants, as solicitors who represented the Plaintiff in the 1st Suit, did not argue on behalf of the Plaintiff, when the application to strike off the 1st Suit was heard before the Judge that the said application was unnecessary as the 1st Suit had been automatically/instantaneously struck off in any event when there was a failure or non-compliance to pay the SFC by the Plaintiff. In other words, the Plaintiff argued that the Defendants had accepted the fact that the application to strike off the 1st Suit was necessary and is now estopped from singing a different tune. 16 [41] With all due respect, we are of the view that the Learned JC had erred in holding that the cause of action accrued on 9.11.2008 when the application for stay of the SFC Order was dismissed by the High Court Judge. We agreed with the Defendants’ counsel that the SFC Order by the Deputy Registrar which stated that the 1st Suit “hendaklah dibatalkan” means literally that it shall be dismissed (refer to Istilah Undang-Undang English-Malay/Malay-English by Rachel Jaques, Syahriman Baharom Shah, Roniha Abdul Rahim and Gavin A. Xavier published by Sweet & Maxwell Asia 1998 – Second reprint 2000). Be that as it may, there must be an application by counsel, whether written or oral, for the 1st Suit to be dismissed for non-compliance with the SFC Order. Until and unless an application is made in court, or until the Deputy Registrar/Judge pronounced the 1st Suit to be struck off, it remains alive. The 1st Suit, cannot on its own, automatically, due to the non-compliance of the Plaintiff with the SFC Order be struck off. [42] This was the reason why the Executor who was the Defendant in the 1st Suit No S3-22-890-2007 had made an application by way of Summons in Chambers (Enclosure 38) to have the 1st Suit be struck off for non-compliance of the SFC Order which application was heard and allowed by the High Court JC on 24.8.2009. The order of the High Court JC dated 24.8.2009 is as follows: “PERINTAH (Lampiran 38) ATAS PERMOHONAN Defendan yang dinamakan diatas DAN SETELAH MEMBACA Saman Dalam Kamar yang bertarikh 12 haribulan 17 November 2008, Afidavit Sokongan oleh pihak Defendan yang diikrarkan pada 12 haribulan November 2008, Afidavit Balasan oleh pihak Plaintif yang diikrarkan pada 4 haribulan Disember 2008, Afidavit Tambahan yang diikrarkan oleh En. Kevin Sathiaseelan a/l Ramakrishnan pada 4 haribulan Disember 2008, Afidavit Jawapan oleh pihak Defendan yang diikrarkan pada 16 haribulan Disember 2008, Afidavit Balasan (II) oleh pihak Plaintif yang diikrarkan pada 31 haribulan Disember 2008, Afidavit Jawapan oleh pihak Defendan diikrarkan pada 9 haribulan Januari 2009, Afidavit Balasan oleh pihak Plaintif yang diikrarkan pada 23 haribulan Januari 2009, Afidavit Jawapan oleh pihak Defendan yang diikrarkan pada 4 haribulan Februari 2009, Afidavit Balasan oleh pihak Plaintif yang diikrarkan pada 12 haribulan Februari 2009, Afidavit Jawapan oleh pihak oleh pihak Defendan diikrarkan pada 24 haribulan Februari 2009, Afidavit Balasan oleh pihak Plaintif diikrarkan pada 12 haribulan Mac 2009 dan Afidavit Jawapan oleh pihak Defendan diikrarkan pada 24 haribulan Mac 2009 yang kesemuanya difailkan di sini DAN SETELAH MEMBACA Hujahan Bertulis Peguamcara Defendan bertarikh 4 haribulan Ogos 2009 dan Hujahan Bertulis Peguamcara Plaintif bertarikh 4 haribulan Ogos 2009 dan ditetapkan untuk bicara/keputusan pada hari DAN SETELAH MENDENGAR En. N. Krishna Peguamcara bagi pihak Defendan dan tanpa kehadiran Peguamcara bagi pihak Plaintif MAKA ADALAH DIPERINTAHKAN bahawa lampiran 38 dibenarkan dengan Kos. Bertarikh pada 24 haribulan Ogos 2009 ……………………. Timbalan Pendaftar Mahkamah Tinggi Kuala Lumpur.” 18 [43] From the perusal of the above order, Mr Kevin Sathiaseelan A/L Ramakrishnan who represented the Plaintiff in the 1st Suit (who is the 1st Defendant in our present case) had filed a number of affidavits in reply affirmed on 4.12.2008, 31.12.2008, 23.1.2009, 12.2.2009 and 12.3.2009 presumably to oppose the application by the Executor. Notwithstanding the opposition, the High Court made the order “MAKA ADALAH DIPERINTAHKAN bahawa lampiran 38 dibenarkan dengan kos” meaning allowing the Executor’s application in enclosure 38 to strike off the Plaintiff’s 1st Suit. [44] The 1st Defendant, Mr Kevin Kevin Sathiaseelan A/L Ramakrishnan having acted for the Plaintiff Mrs Nyo Nyo Aye in the 1st Suit and having opposed the striking off application filed by the Executor to have the 1st Suit struck off, cannot now argue that the Striking Off Order of the High Court dated 24.8.2009 is of no consequence. If that was his stance, he should have argued or taken a stand that the application to strike off the 1st Suit was unnecessary as the said suit would have been automatically struck off in any event when there was a failure by the Plaintiff to pay or deposit into court the sum of RM80,000.00 as SFC. In other words, by his conduct as the Plaintiff Mrs Nyo Nyo Aye’s counsel in opposing the application to strike off the 1st Suit, he had accepted that the said application was necessary. Further, the Defendants as solicitors for the Appellant obviously did not advise the Plaintiff that the application to strike off was unnecessary to extinguish the 1st Suit. [45] Further, we are in agreement with the Plaintiff’s counsel that as a general rule, the court will not make or grant a useless order. Why should 19 the High Court on 24.8.2009 strike off the 1st Suit if it had already been automatically struck off on 9.11.2008? In this, the case in The High Court in Penang in Originating Summons No. PA-24-NCVC-30-01/2016 (unreported) of Thameez Nisha Hasseem v 1) Charijah Bt Ameerdin Mohamed Shariff 2) Maybank Allied Bank Berhad, which referred to the case of Pitt and another v Holt and another; Futter and another v Futter and Others [2013] 3 All ER 429 at p 476; UKSC 26 is illuminating. The case held that the court will not make or grant a useless order. “It is an old maxim that equity does not act in vain. To my mind that is good law and the court should not make orders which would be ineffective to achieve what they set out to do.” [46] As to when the cause of action accrued, as stated earlier, that “in negligence actions, since damage is an essential part of the cause of action, the period of limitation runs from the date of the damage and not of the act which causes the damage” Muhamad Solleh bin Saarani (supra) referred. In this context, the act which causes the damage is the non-compliance by the Plaintiff of the SFC Order, i.e. the failure to pay or deposit into Court the sum of RM80,000.00. But the date of damage only commenced when the Plaintiff Mrs Nyo Nyo Aye’s 1st Suit was struck off by the High Court on 24.8.2009. Thus the cause of action accrued on 24.8.2009 and would have expired 6 years therefrom which is on 23.8.2015. Since the present professional negligence suit was filed by the Plaintiff against the Defendants on 29.4.2015, the Plaintiff was well within the 6 years’ time limit. As such, the Plaintiff’s claim against the Defendants is not barred by limitation. 20 Breach of agreement (retainer) and negligence [47] On the issue of negligence, the Plaintiff argued that the Defendants were in breach of the agreement (retainer) and negligent in failing to inform and advise her that the 1st Suit would be struck off if she failed to deposit the SFC. Further, the Defendants were negligent in failing to secure an application for an extension of time for her to comply with the SFC Order. [48] The Defendants responded by arguing that they had informed and advised the Plaintiff and that the Plaintiff’s failure to comply with the SFC Order was not due to their negligence but instead due to the financial difficulties faced by the Plaintiff herself. The Defendants contended that the Plaintiff had no reasonable prospect of success in the 1st Suit that was struck off. Further, the Plaintiff had failed to call any expert to establish the standard of care which had allegedly been breached by the Defendants before the Defendants were required to call witnesses to rebut the same. As such, the Defendants submitted that the Learned JC was plainly wrong in holding that the Defendants were in breach of agreement (retainer) and negligent since the Learned JC had not considered all these factors before coming to his conclusion. Whether the Defendants had informed and advised the Plaintiff on the consequence of non-compliance of payment of the SFC [49] Upon perusal of the GOJ, it is our considered view that the Learned JC’s findings were correct as it was premised on the facts presented before him. The Learned JC had meticulously examined and scrutinized the 21 testimony of the witnesses before coming to his findings. With regard to the allegation that the Defendants had not informed and advised the Plaintiff on the consequence of non-compliance of payment of the SFC, the Learned JC at paragraph 29 stated as follows: “[29]………………..

(ii) …………………. Based on the testimony of the Plaintiff (PW-1), she was never informed nor advised that she had to pay deposit the sum of RM80,000.00 immediately after the application for stay was dismissed. In support of this fact, evidence was led to show that the Plaintiff had duly deposited the sum of RM80,000.00 towards security for cost to the 2nd Defendant’s client account on 20.11.2008. This payment was accepted by the Defendants without any caveat on the lateness of the payment. …………………….. Despite the fact that it was the Defendants’ case that the Plaintiff was fully aware of the deadline to comply with the Order for Security For Cost and also the court dates relating to the Stay Application and had consistently advised the Plaintiff to prepare the sum of RM80,000.00 in the event the Stay Application was dismissed, the only evidence adduced to this effect was the oral testimony of the 1st Defendant that he had duly informed the Plaintiff of the actual date of payment. There was no other evidence to show that the Defendants had informed or advised the Plaintiff of such. In fact, during his testimony DW-1 repeatedly said that he never informed the Plaintiff that she had 1 day left to make payment, the reason being she knew all along when she had to pay the sum ordered as security for cost (see pages 33, 61 and 67 NOP dated 3.05.2017). Being professionals, it would be reasonable to expect a legal firm to have at least issued correspondences in writing to the Plaintiff on a 22 matter of such great importance. Whilst evidence was indeed led to show that the Plaintiff later on had moved out from her family home due to action by the family of her late husband, it would have been reasonable to still issue letters to the Plaintiff for her collection as she did present herself at the 2nd Defendant firm from time to time. Minutes of meetings between the Plaintiff and the 1st Defendant were also non-existent. In so far as the so called contempt proceeding is concerned, I fail to see how a striking out application can be seen as committal proceedings. If it was a committal proceeding, then the Plaintiff’s suit should not have been struck out. In any event, this fact was never pleaded in the Defence. As there is nothing to show that the Defendants had given notice to the Plaintiff that the payment made by her was late, I have no alternative but to choose the Plaintiff’s version on this issue.

(ix)………………………. Based on the evidence before me, it was apparent that apart from the cause papers being filed for purposes of the stay, there was no documentary evidence nor independent evidence to show that the 1st Defendant had rendered such advice to the Plaintiff. Hence, I am constraint to hold that the 1st Defendant was negligent and/or in breach of the retainer when he failed to advise the Plaintiff diligently on the importance and/or the need for actions to be taken.” [our emphasis added] [50] It is pertinent to note from the above paragraph 29 in the GOJ that the Learned JC had made a finding of fact that the 1st Defendant had not informed the Plaintiff of the consequence of the non-payment of the SFC. This is so since the 1st Defendant (DW1) in his testimony had repeatedly said that he had never informed the Plaintiff that she had 1 (one) day left to make payment and that the reason the 1st Defendant gave for this failure to inform, 23 was due to the fact that the Plaintiff had known all along when she had to pay the sum ordered as SFC. The Learned JC held that there was no documentary evidence, nor independent evidence, to show that the 1st Defendant had rendered such advice to the Plaintiff and that the Defendants “being professionals, it would be reasonable to expect a legal firm to have at least issued correspondences in writing to the Plaintiff on a matter of such great importance.” Then the Learned JC went further to state that after accepting the SFC payment of RM80,000.00 from the Plaintiff on 20.11.2008, the Defendants could not show that they had given notice to the Plaintiff that the payment for the SFC was made late and that in such circumstances, the Learned JC held that “I have no alternative but to choose the Plaintiff's version on this issue” since “Based on the evidence before me, it was apparent that apart from the cause papers being filed for purposes of the stay, there was no documentary evidence nor independent evidence to show that the 1st Defendant had rendered such advice to the Plaintiff.” [51] To substantiate why he elected to accept the Plaintiff’s version, the Learned JC had correctly considered and adopted the case of Noorianti Zainol Abidin & Ors. v Tang Lei Nge [1990] 2 CLJ Rep 545, where the Court held that when confronted with a situation where there were conflicting versions, then the trial Judge should approach the case on the basis of which version was inherently probable or improbable, and if all things being equal, it is trite law that if the version of one of the parties is inherently probable, then the Judge has no choice but to accept that version forthwith. "the trial judge should not approach the case on the basis of deciding which story out of the conflicting stories that should be believed, but rather to 24 consider which version was inherently probable or improbable. All things being equal, it is trite law that if the version of one of the parties is inherently probable, then the judge has no choice but to accept that version forthwith.” There was no reasonable prospect of success in the 1st Suit [52] The Defendants contended that there is no loss suffered by the Plaintiff when the 1st Suit was struck off since the Plaintiff had no reasonable prospect of success in the said suit. The Defendants argued that the Plaintiff’s claim that her husband’s will was forged cannot be supported by the report of the handwriting expert, Mr. Harcharan Singh, dated 20.7.2009, since the report had a neutral conclusion. Then there was the testimony of the officer from Jabatan Kimia Malaysia who prepared both P3 and P4, Puan Nur Ikadewi Sarimin (SP2), who was called by the Plaintiff to testify during the course of the trial who had agreed in cross-examination that her conclusion as to whether the will was forged, based on a nine-point scale used in concluding opinions, was the lowest in scale for it to be a forgery. Further, the relationship between the Plaintiff and the deceased husband was estranged. Based on these factors, the Defendants submitted that the Plaintiff’s case has no reasonable prospect of success. The Court of Appeal’s case of Pang Yeow Chow (practicing at Messrs YC Pang, Chong & Gordon) v Advance Specialist Treatment Engineering Sdn Bhd [2015] 1 MLJ 490, which held that if there is a “loss of chance” to sue, there will not be any liability if there is no actual loss and/or reasonable prospect of the case succeeding at trial, was relied upon to support its contention. 25 [53] Upon perusal of the GOJ, at paragraph 30, the Learned JC had extensively addressed this issue as follows: “(ii) Whether the Plaintiff’s prospect of success was weak and the loss and damages suffered by the Plaintiff was speculative and not foreseeable? Answer: With reference to this issue, the 1st Defendant gave evidence that the Plaintiff had a really vague case or a very vague prospect of success (see beginning pages 49-55 of the NOP dated 3.5.2017). This was after the 1st Defendant read the report of the document examiner, Mr. Hacharan Singh’s report on whether the signature in the will of the Plaintiff’s husband was forged or genuine. According to the 1st Defendant, as the report did not conclude the signature in questioned is forged or genuine, that dealt a crucial blow to the Plaintiff’s action against the late husband’s family. According to the 1st Defendant, there are no other circumstances to establish that the will is a false document (see page 52). Contrary to the 1st Defendant’s view that the Plaintiff’s prospect was weak, the Plaintiff’s learned counsel successfully pointed out that there were a number of factors that he could rely upon to show that the signature of the Plaintiff’s late husband was forged. The series of questions from the Plaintiff’s learned counsel can be seen at pages 52 to 58 of the NOP dated 3.05.2017. The issues raised by the Plaintiff’s counsel can be summarised as follows:-

The 1st Defendant did not contact the legal firm of Meera & Amereson who purportedly had the Plaintiff’s late husband’s will in their possession. 26 This was despite the Plaintiff and her late husband living in Kuala Lumpur whilst the legal firm was based in Penang.

(ii) The will concerned was discovered after an advertisement was placed in the newspaper by the Plaintiff’s late husband’s family with no reference number, passport number and IC of the late Rex De Alwis.

(iii) The person who drafted the will did not know that a foreigner cannot own property in Myanmar, a fact which is known to Rex De Alwis.

(iv) The 1st Defendant did not even call the person who witnessed the signature of the late Rex De Alwis namely Vasantha s/o Amarasegaran to find out if he did attest to the will being executed. Still on the same issue, SP-2, Puan Nur Ikadewi via her report (exhibit P-3) had given opinion the signature in question may not have been written by the writer of the specimens. The Defendants did not call any expert to counter PW2’s report. Considering the issues raised by the Plaintiff’s counsel together with the report by SP-2, I can only conclude that the 1st Defendant’s view is rather weakly substantiated compared to that of the Plaintiff. In this regard, it is my finding that the Plaintiff’s prospect was not weak, speculative nor not foreseeable. Based on the principles propounded in Harrison v Bloom Camulin (supra), the Plaintiff’s claim in the Civil Suit was not in the category of a “nuisance claim” and had an appreciable chance to win.” [our emphasis added] [54] From paragraph 30 in the GOJ above, the Learned JC, with regard to the genuineness of the signature on the will of the Plaintiff's late husband, had considered the evidence of SP2 (Puan Nur lkadewi), who is a document 27 examiner with the Chemistry Department of Malaysia, who had given evidence that the signature in question may not have been written by the writer of the specimens. The Learned JC pointed out that the Defendants did not call any expert to counter the report made by SP2. The Learned JC also found that although the report of Mr. Harcharan Singh is not conclusive that the signature on the will was forged, this was not fatal as the Plaintiff could rely on 4 other factors raised by the Plaintiff’s counsel and listed above from Plaintiff's learned counsel successfully pointed out that there were a number of factors that he could rely upon to show that the signature of the Plaintiff's late husband was forged.” The Learned JC then held that “Considering the issues raised by the Plaintiff’s counsel together with the report by SP-2, I can only conclude that the 1st Defendant’s view is rather weakly substantiated compared to that of the Plaintiff. In this regard, it is my finding that the Plaintiff’s prospect was not weak, speculative nor not foreseeable. Based on the principles propounded in Harrison v Bloom Camulin (supra), the Plaintiff’s claim in the Civil Suit was not in the category of a “nuisance claim” and had an appreciable chance to win.” [55] Further, on this point, the Plaintiff’s counsel submitted to us that the Defendants who represented the Plaintiff in the 1st Suit should not have taken up the case against the Executor if they had felt that there is no prospect of success of winning the case. We are in agreement with this argument. A 28 lawyer should not have taken up a weak and hopeless case to court knowing that there is no prospect of success. This is unethical. A lawyer should only bring a case to court if they feel that they have a fairly good chance of winning. If the case is weak and hopeless, with no prospect of winning, it is incumbent upon the lawyer to advise the client, and to only proceed to file a case in court, despite the advice given, upon instruction of the client. Preferably, in such a situation, the advice by the lawyer should be in writing and the instruction to proceed by the client too, despite the advice given that the case is weak and hopeless, should also be in writing. Otherwise, as in this instant case, whereupon being sued for professional negligence, it is absurd to turn the table against the client by arguing that the case was weak and hopeless with no chance of winning. In such circumstances, the question that begged to be answered is, did the lawyer in the first place advice the client on the prospect of the case, and if he did, was the advice ignored. Otherwise, without any evidence that such an advice was proffered, the reasonable inference would be that, the lawyer in putting up such a defence is trying to save himself from a professional negligent suit which was of his own making in the first place. The Plaintiff’s failure to establish the standard of care which had been breached by the Defendant [56] The Defendants submitted that in a professional negligence case, the Plaintiff is required to establish that there is a duty of care, that duty of care was breached and damages ensued from the breach. The Defendants argued that the Plaintiff is required to establish the standard of care expected or required of a reasonable practitioner in that particular area of practice in 29 litigation. This, the Plaintiff failed to do and the Learned Judge was plainly wrong in finding the Defendants negligent when no expert was called to give such evidence. This failure to call an expert, the Defendants submitted is fatal. In support, the Defendants referred to the Court of Appeal cases of Shearn Delamore & Co v Sadacharamani a/l Govindasamy [2017] 1 MLJ 486 and Tetuan Theselim Mohd Sahal & Co & Ors v Tan Boon Huat & Anor [2017] 6 CLJ 368. [57] The Plaintiff responded by submitting that the standard of care in a professional negligence case is that of the standard expected of another professional in the same profession and cited the cases of the House of Lords in Arthur J S Hall & Co (a firm) v Simons; Barratt v Ansell (trading as Woolf Seddon (a firm)); Harris v Scholfield Roberts & Hill (a firm) [2000] 3 All ER 673 in support. [58] In the case of Shearn Delamore (supra), it involves an appeal which arose from the decision of the High Court Judge which held that the appellant as a professional firm of advocates and solicitors was liable in negligence in respect of an opinion given by the appellant relating to intellectual property rights to the respondent. The Court of Appeal there held that experts or professionals are required to be called to give evidence on the standard of care expected of a reasonable practitioner in that profession and in a professional negligence case, the burden is on the Plaintiff to establish that the standard of care has been breached before the Defendant is required to call his witness to rebut the same. 30 [59] In the case of Tetuan Theselim Mohd Sahal (supra), it involves an appeal which arose from the decision of the High Court which held the appellant was negligent as solicitors in the preparation of a sale and purchase agreement (SPA) for a purchase of a property by the respondent. The Court of Appeal held that evidence had to be called to establish the standard of care expected from a competent solicitor in conveyancing practice to determine whether the appellant had breached that standard of care. [60] In the case of Arthur J S Hall & CO (supra), as stated earlier, the standard of care in a professional negligence case is that of the standard expected of another professional in the same profession. Lord Steyn in his judgment referred to the observation made by Lord Diplock about a barrister’s overriding duty to the court as follows:- "...No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turns out to have been errors of judgment, unless the error was such as no reasonably well informed and competent member of that profession could have made..."