Pacific & Orient Insurance Co. Berhad v TETUAN K. SUGANTHI & COMPANY (WA-17D-42-12/2023)

Preamble

menurut, antara lain, Seksyen-Seksyen 121, 126, 130, 132, 134 Akta Profesyen Undang-Undang 1976, dan Aturan 59 Kaedah 17, Aturan 59 Kaedah 16, Aturan 59 Kaedah 23, Kaedah-Kaedah Mahkamah 2012 dan di dalam format dan bentuk menurut, antara lain, Aturan 59 Kaedah 7 dan Borang 117, Kaedah-Kaedah Mahkamah 2012 (selepas ini dirujuk sebagai “Bil-Bil Kos bagi Penetapan tersebut”); dan

Schedule

Jadual Akta Mahkamah Kehakiman 1964, bidangkuasa sedia ada Mahkamah Yang Mulia ini, dan di bawah keadaan khas (special circumstances) untuk Bil Kos bagi Penetapan tersebut disediakan oleh Defendan berkenaan Bil di dalam Appendiks 5 Bil(1) tersebut; 6. Bahawa tanpa prejudis kepada yang di atas, Plaintif bersetuju untuk membayar kepada Defendan jumlah-jumlah sebagaimana yang diperintahkan oleh Mahkamah adalah perlu dibayar kepada Defendan melalui penaksiran/penetapan Bil-Bil Kos bagi Penetapan tersebut, jikalau ada, setelah penolakan dan/atau “set-off” dan/atau tuntutan balas sepenuhnya menurut prayer-prayer 1, 1.1 sehingga 1.3 di atas; …”. 15. The Defendant had summarised the Plaintiff’s grounds for taxation of the Bills in the following manner: (a) Appendix 1 and Appendix 2 being time barred bills; (b) Appendix 1, Appendix 2, Appendix 3, Appendix 4 and Appendix 5 being gross bills, unjustified sum, not itemised; (c) disbursements under Appendix 1, Appendix 2, Appendix 3, Appendix 4 and Appendix 5 must be supported with documentary proof; (d) Appendix 1, Appendix 2, Appendix 3, Appendix 4 and Appendix 5, there are “item-item yang terkandung dalam sesetengah bil-bil” which are overlapping and/ or double charging; (e) Appendix 1, Appendix 2, Appendix 3, Appendix 4 and Appendix 5, the bills are not reasonable, unjustifiable, arbitrary and excessive; (f) Appendix 1, Appendix 2, Appendix 3, Appendix 4 and Appendix 5, due to “kecacatan serius”, professional negligence and breach of duty of care and fundamental breach in Suit 33 by the Defendant, the Defendant is not deserving of the Bills being paid. 16. The parts of the O.S. which the Defendant had applied to be struck out and among the reliefs in encl. 24 are as follows: “2. That paragraphs 1.1 to 1.5 of the Originating Summons dated 19/12/2023 (hereinafter referred to as “the Originating Summons No-2”) in paragraphs 2,3 and 4 be struck out on grounds set out at Paragraphs A, B, E, F, and G of the Grounds of this Application (‘the Grounds’) hereinafter set out; 3. That paragraphs 2, 3, 4, 5, 6, 7, and 8 of the Originating Summons at page 5 and 6 (as defined in the Grounds below), be struck out on grounds at paragraphs A, B, C and E, F, and G of the Grounds hereinafter set out;- 4. That paragraph 5 of the Originating Summons No- 2 be struck out on grounds that the Legal Profession Act 1976 has specific provisions as to limitation as to time, such that any general provision under the Legal Profession Act 1976 or of the Limitation Act do not apply to or cannot be called in aid of the Plaintiff's prayer No.5; 5. 1. That the Plaintiff's complaints at paragraphs 1.1, 2, 1.3, 1.4, 1.5 at paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Originating Summons be struck out for multiplicity on grounds as set out in paragraphs A, B, and D and E, F and G of the Grounds hereinafter set out: 6. All other proceedings and or actions for this or any related action be postponed or stayed pending the final decision of the Defendant’s application in Originating Summons No 1 (hereinafter referred to as Originating Summons No:1) is heard and decided; 7. Further that all filing of Affidavit In Reply of the Defendants in Originating Summons No 2 is stayed until the Hearing and Decision of the Counter Claim in Originating Summons No. 1 which has been fixed for Hearing on 09/01/2024. 8. The cost of this application is borne by the Plaintiff fon a solicitor client basis, with interests payable on costs; and 9. This Application is filled without prejudice to our right to Counter Claim …”. The Legal Principles 17. O. 18, r. 19(1) of the RC 2012 reads as follows: “Striking out pleadings and endorsements (O. 18, r. 19) 19. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”. 18. In SS Motor Century Sdn Bhd v Wawasan Sinar Gemilang Sdn Bhd and 4 ors [2025] AMEJ 1249, I had set out the trite legal principles which are applicable when a court is faced with a striking out application, or in the instant case, applications, in these words: “[16] In considering the instant application, I am guided by the trite legal principles as follows: (a) it is only in plain and obvious cases that recourse should be had to the summary process under O.18, r. 19(1) of the RC 2012, namely where a claim is on the face of it obviously unsustainable. The degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail of the issues of law and/ or fact. The summary procedure cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action. The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious [see Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC) and Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 (FC)]. The discretionary power may only be exercised in plain and obvious cases where the case has no chance of success [see Pengiran Othman Shah Bin Pengiran Mohd Yusoff v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) [1996] 1 MLJ 309 (CA)]. So long as the SoC discloses a reasonable cause of action, however weak the claim is, it cannot be struck off summarily [see Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 2 CLJ 457 (CA) and Dato’ Raja Ideris Raja Ahmad & Ors v Teng Chang Khim & Ors [2012] 2 CLJ 288 (CA)]. The court will assume that the contents of the statement of claim are true [see Tuan Haji Ishak Bin Ismail & Ors v Leong Hup Holdings Bhd and Other Appeals [1996] 1 MLJ 661 (CA)]; (b) in determining an application pursuant to limb (a) of O.18, r. 19(1) RC 2012, O. 18, r. 19(2) provides that no evidence shall be admissible on an application under the said limb. This means that limb (a) must be considered without having regard to the AIS and AIR. The court must be satisfied that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief which it asked for (see Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 (CA) and Amanah Raya Bhd v. Ong Chin Hoo [2019] 6 CLJ 41); (c) in the context of limb (b) of O.18, r. 19(1) RC 2012, the word “scandalous” means wholly unnecessary and irrelevant and not merely unpleasant allegations. The words “frivolous or vexatious” refer to a groundless action of statement with no prospect of success, often raised to embarrass or annoy the other party to the action. The court has to consider the affidavit evidence adduced by the parties (see Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 (CA) and Thong’s case (supra)]; (d) if a party introduces a pleading which is unnecessary or tends to delay, prejudice or embarrass the trial, the pleading becomes one which is susceptible to be struck out pursuant to limb (c) of O.18, r. 19(1) RC 2012. A pleading becomes embarrassing when it is not clear what is being pleaded (see Duta Arif Sdn Bhd & Ors v Chartered Development Corp & Ors [2008] 6 MLJ 139); and (e) as regards limb (d) of O.18, r. 19(1) RC 2012, an abuse of the process of the court refer to situations where the court’s process is used for an unlawful object and not for the actual purpose intended to achieve justice. The judge is entitled to consider the affidavit evidence [see Thong’s case (supra)].”. 19. The relevant provisions in the Legal Profession Act 1976 [Act 166] (‘LPA 1976’) for present purposes are quoted below for ease of reference: “Where remuneration of advocate and solicitor not subject of agreement 121. (1) Where the remuneration of an advocate and solicitor in respect of contentious business done by him is not the subject of an agreement made pursuant to section 116, the solicitor’s bill of costs may at the option of the advocate and solicitor either contain detailed items or be for a gross sum: Provided that – (a) at any time before service upon him of a writ or other originating process for the recovery of costs included in a gross sum bill and before the expiration of three months from the date of the delivery to him of the bill, the party chargeable therewith may require the advocate and solicitor to deliver to him in lieu of the cost a bill containing detailed items, and the gross sum bill shall thereupon be of no effect; (b) where an action is commenced on a gross sum bill, the Court shall, if so requested by the party chargeable therewith before the expiration of one month from the service on that party of the writ or other originating process, order that the bill shall be taxed; (c) if a gross sum bill is referred to taxation, whether under this section or otherwise, nothing in this section shall prejudice any rules of court with respect to taxation and the advocate and solicitor shall furnish the taxing officer with such details of any of the costs covered by the bill as the taxing officer may require. (2) Subsection (1) shall not apply to fees paid to an advocate and solicitor who is briefed as a senior counsel. … No advocate and solicitor to sue for costs until delivery of bill of cost 124. (1) Except as authorized by this Act, no advocate and solicitor shall without the leave of the court commence or maintain any action for the recovery of any costs due for any business done by him until the expiration of one month after he has delivered to the party to be charged therewith, or sent by post to, or left with him at, his office or place of business, dwelling house or last known place of abode, a bill of costs, which bill shall be signed either by the advocate and solicitor, or in the case of a partnership, by any of the partners, either with his own name or with the name or style of the partnership, or by another advocate and solicitor employed by the first-named advocate and solicitor or the partnership, or be enclosed in or accompanied by a letter, signed in the like manner, referring to the bill. (2) Where a bill is proved to have been delivered in compliance with subsection (1) it shall not be necessary in the first instance for the advocate and solicitor to prove the contents of the bill and it shall be presumed until the contrary is shown to be a bill bona fide complying with this Act. … An order for taxation of costs to be made within 6 months of delivery of bill of costs 126. (1) An order for the taxation of a bill of costs delivered by any advocate and solicitor may be obtained by a petition as a matter of course by the party chargeable therewith, or by any person liable to pay the cost either to the party chargeable or to the advocate and solicitor, at any time within six months from the delivery of the bill, or, by the advocate and solicitor after the expiration of one calendar month, and within a year from, the delivery. (2) The order shall contain such directions and conditions as the court thinks proper, and any party aggrieved by any order of Court may apply by summons in chambers that the same may be amended or varied or set aside. (3) In any case where an advocate and solicitor and his client consent to taxation of a solicitor’s bill the Registrar may proceed to tax the bill notwithstanding that there is no order therefor. … Order for taxation of advocate and solicitor’s bill on notice given 128. (1) After the expiration of six months from the delivery of a bill of costs, or after payment of the bill of costs, no order shall be made for taxation of a solicitor’s bill of costs, except upon notice to the advocates and solicitors and under special circumstances to be proved to the satisfaction of the Court. (2) No such order for taxation shall in any event be made after the expiry of one year from the delivery of the bill of costs. … Order for delivery of solicitor’s bill of costs by way of petition 130. (1) An order for the delivery of a solicitor’s bill of costs, and for delivery up of any deeds, documents or other papers in the possession of the advocate and solicitor may, subject to any lien which such advocate and solicitor may have, and for the taxation of the bill when delivered, be obtained on a petition of course. (2) Upon the petition being filed, the Registrar shall mark the order thereon forthwith, and draw up the order if necessary. (3) Subject to this section, the Court shall have the like jurisdiction as the High Court in England to make an order under subsection (1). … Bill of costs to follow Rules of Court 132. Bills of costs for taxation as between advocate and solicitor and client shall be drawn in the manner provided by the Rules of the High Court, and the taxation shall be governed by the Rules. Registrar may allow interest on money disbursed by counsel 133. The Registrar may allow interest at any rate and from any time as he thinks fair and reasonable on moneys disbursed by an advocate and solicitor for his client, and on moneys of the client in the hands of the advocate and solicitor and improperly retained by him. Costs of order of taxation payable by solicitor 134. (1) In case any order for taxation is made upon the application of the party chargeable or liable, or of advocate and solicitor, the costs of the order and taxation, except when the order has been made after the expiration of one year, shall be paid according to the event of such taxation – (a) if the bill when taxed is less by a sixth part than the bill delivered, then the advocate and solicitor shall pay the costs; (b) if the bill when taxed is not less by a sixth part, then the party chargeable or liable, if the application is made by him, or if he attends the taxation, shall pay the costs. (2) Every order for any reference under section 125 shall direct the Registrar to tax the costs of the reference, and to certify what, upon the reference, is found to be due to or from the advocate and solicitor in respect of the bill, and of the costs of the reference, if payable. (3) The Registrar shall certify any special circumstances relating to the bill or taxation. (4) The court may thereupon make any order as it considers fair and reasonable respecting the payment of the costs of such taxation. (5) Where any such reference is made, but it is otherwise not authorized except under special circumstances, the Court may give any special directions relative to the costs of the reference.”. 20. The Court of Appeal in Tetuan Azim, Tunku Farik & Wong v. Tetuan Ong Partnership [2021] 10 CLJ 258 discussed the provisions in ss 126 and 128 of the LPA 1976 and on the issue of limitation period in the following excerpt from the judgment: “[16] The application to tax the bill was filed on 12 December 2018. In the premises, there was a delay of six months. Counsel for respondent’s argument is that time only ran when the insurer demanded payment from the respondent on 12 June 2018. Even if that argument is accepted, there was still a delay and it was not a delay of only one day as contended by counsel for respondents. This because s. 126 does not merely say that an application for taxation should be made within six months of delivery of the bill of costs. Instead it says that “an order for taxation” of the bill “may be obtained” within six months of the delivery of the bill. Section 128(1) also says that no order for taxation can be made six months after delivery of the bill of costs. Therefore, not only the application to tax must be made before the expiry of six months but the order to tax must also be obtained within the said six-month period. Thus, even if time ran from 12 June 2018, the respondent was late because the order for taxation cannot obtained immediately as the application must be served on any aggrieved party. [17] However, in our view, the limitation period in s. 126 ran from the time the bill of costs was delivered to the insurer on 19 December 2017 by Mr Wong Hok Mun of the appellant law firm. Our reasons are as follows. Section 126(1) which provides for the limitation period, refers to a “bill of costs delivered by any advocate and solicitor”. It also says that the order for taxation may be obtained within six months from the “delivery of the bill”. In the instant case, the advocate in question is Mr Wong Hok Mun. It is not disputed that he delivered the bill of costs to the insurer on 19 December 2017. It is also not disputed that the party chargeable is the insurer and therefore Mr Wong Hok Mun was only obliged to deliver the bill of costs to the insurer. Section 126(1) only refers to “delivery” of the bill of costs by the advocate in question. There is no reference to further “delivery” of the bill of costs from the “party chargeable” (the insurer) to a party “liable” (the respondent) to pay the costs. There is also no stipulation that the limitation period only runs from the time when a bill of costs is received by a party liable to pay costs. As we noted earlier, in any event, in this case the insurer notified the respondent about the bill of costs in December of 2017 but no action was taken to tax the same until the end of 2018. [18] Thus, whether the limitation period commenced from the time the demand notice was sent by the insurer as contended by the respondent or from the time the bill of costs was delivered by the advocate to the insurer, there was a delay in moving the court to obtain an order for taxation.” (emphasis added). 21. The Court of Appeal also considered the issue on whether the High Court was correct in finding that there were special circumstances which overrode the limitation period imposed by s 126 of the LPA 1976. In this regard, the Court explained that: “[20] Three conditions are stipulated in s. 128 to tax a bill outside the six-month limitation period: (i) notice to the advocate; (ii) special circumstances proved to the satisfaction of the court; and (iii) the order for taxation must be made within one year of the delivery of the bill of costs. … [22] In respect of special circumstances, the learned High Court Judge gave two reasons, ie, that the bill was not itemised and that the costs was excessive. His Lordship’s reasons are found in the following paragraphs: [23] In the present case, the said bill dated 19 December 2017 to the insurer only states in lump sum the professional charges in the sum of RM12,720. It was not itemised in detail particulars and it costs. [24] This itself a special circumstance and the defendant only attended case managements before consent judgment was recorded. [25] I have also considered the schedule of work done stated in the said bill and find that the total amount of RM13,694.60 is excessive and unreasonable. [23] The authorities relied on by His Lordship are the Court of Appeal case of Tan Tek Sin & Anor v. Tetuan Nora Hayati & Associates [2015] 1 CLJ 89 and the High Court case of Phuah Choon Hwang & Ors v. Hassan & Kong Yeam [1986] 1 CLJ 513; [1986] CLJ (Rep) 579. Before us, counsel for respondent relied on the same cases to support his argument that special circumstances are present in this case. Our careful reading of the two cases leads us to conclude that the said cases did not deal with the issue of “special circumstances” under s. 128. In both cases, more than one year lapsed by the time the application for an order to tax the solicitors’ bill was made. Section 128(1) enacts that no order for taxation shall in any event be made after the expiry of one year from the delivery of the bill of costs. This stipulation was acknowledged by Azahar Mohamed JCA (as His Lordship then was) in Tan Tek Sin & Anor v. Tetuan Nora Hayati & Associates (supra) in the following passage: [26] Undeniably s. 128 of the LPA prescribes a time limit for an aggrieved party to refer a bill of costs for taxation and in particular provides that such order for taxation shall not in any event be made after the expiry of one year from the delivery of the bill of costs. There is indeed no provision under the LPA that specifically provides for extension or enlargement of time to file an application for taxation of a bill of costs, after one year from its delivery to the aggrieved party. … [27] We shall consider now whether the two reasons given by the learned High Court Judge constitute special circumstances under s. 128(1) to extend time. We are mindful that “special circumstances” is not defined in s. 128. But, we should think that an extraordinarily good reason must be furnished to the court to extend time. The learned High Court Judge said that the professional charges of RM12,720 (inclusive of GST) was not itemised with details. In our view, this is not a case where a large lump fee was issued without any details or explanation. An explanation and details were given in the bill of costs that were not considered by the learned High Court Judge. At the bottom of the bill there is a “Schedule of Workdone. …” (emphasis added). 22. The High Court in Tan Ching Peng & Anor v. T Y Teh & Partners [2024] CLJU 1425 applied the legal principles as enunciated by the Court of Appeal as aforesaid and held as follows: “[14] Based on the principles enunciated in Tetuan Azim Tunku Farik & Wong (supra) under Section 128 of the LPA, the Plaintiffs shall move this Honourable Court and obtain the order for taxation of the said Note of Charges within 1 year from 30.8.2022 (not merely filing this action into this Honourable Court within 6 months of its delivery), failing which the Court has no power to order the said Note of Charges taxed. [15] Clearly, the Plaintiffs have failed to do so with a delay of more than one year in obtaining an order from this Honourable Court for taxation of the said Note of Charges. [16] Further, in the case of Lim Goay Hooi v. Tetuan Choy & Associates; Lim Ho Peng (Proposed Intervener) [2021] CLJU 2248; [2021] 1 LNS 2248; [2021] MLRHU 2166, the High Court held that:- [20] In Tetuan Kang & Kang v. Kirana Studio Sdn Bhd [2015] 1 CLJ 431; [2014] MLRHU 1432 and Awan Timur Palm Oil Mill Resources (Perak) Sdn Bhd v. Shahrizal & Nasir [2021] CLJU 71; [2021] MLRHU 21 it was opined that if a client does not avail himself of the avenue provided in Section 126(1) and/or Section 128(1) of the LPA then his remedy is extinguished by virtue of Section 128(2) of the LPA. An order of taxation of tax invoices or bill of costs outside the period provided in Section 128(2) of the LPA is not permissible. In similar vein the following statement of law in Technointan Holding Sdn Bhd v. Tetuan Tan Kim & Teh Hong Je [2006] 7 CLJ 541; [2006] 3 MLRH 78; [2007] 1 MLJ 163 is instructive to the issue at hand: [25] It is abundantly clear that the petition being presented beyond the six-month limitation prescribed in s. 126(1) is conspicuously unmaintainable as the petitioner's cause of action against the solicitors had lapsed and extinguished, thereby disclosing no reasonable cause of action and attracting the application of O. r. 19(1)(a). [21] I fully subscribe to the interpretation given in the abovementioned cases. The court in such circumstances have no powers to extend time or grant leave to such person for an order to tax his bill of costs in view of s. 128(2) of the LPA. The issue of special circumstances under s. 128(1) does not even arise to be considered where the maximum period of one year have lapsed to bring an application for an order to tax the solicitors' bill of costs. In such circumstances the proposed intervener's right to challenge the tax invoices have been extinguished by effluxion of time. (emphasis added) (See: Tetuan Kang & Kang v. Kirana Studio Sdn Bhd [2015] 1 CLJ 431; [2014] MLRHU 1432) … [20] Given the above, I am of the view that the conditions provided in Tetuan Azim Tunku Farik & Wong (supra) have not been met by the Plaintiffs. Further, there was no prior notice from them to dispute the said Note of Charges and following Tetuan Dennis Nik & Wong (supra), it is this Court views that only when this condition has been met that the Court is to consider whether there are any special circumstances to challenge the said Note of Charges. [21] Therefore, as this condition is not met, this Court need not consider whether there are any special circumstances alleged by the Plaintiff in his Affidavit.”. 23. In SP Veloo & Co v Affin Bank Bhd [2017] MLJU 1042, the following excerpts from the judgment by the Court of Appeal on the interplay between the relevant provisions in the LPA 1976 on the bill of costs are equally instructive: “[10] If there is no agreement for fees the LPA 1976 envisages at least three types of bill for purpose of costs between the solicitor and client. They are as follows: (a) gross bill (s.121 LPA 1976) (b) detailed bill (s.121 LPA 1976) (c) itemise bill of costs for taxation (s.132 LPA 1976). [11] It must be noted that a solicitor’s bill can be a gross bill or detailed bill. A detailed bill mentioned in section 121(1) of LPA 1976 has nothing to do with a bill of costs for purpose of taxation under RHC 1980 or RC 2012. Courts in their decisions have often created confusion by asserting a detailed bill must be in the form of bill of taxation as set out in RHC 1980 and that too when dealing with section 121 of LPA where RHC 1980 or RC 2012 does not come into operation at all. Section 121 is independent of section 132 of LPA 1976. RHC 1980 or RC 2012 only comes into operation when it relates section 132 of LPA. [12] There is also a difference in phrase in the use of bill of costs in section 121 and section 128. Section 121(1) refers to solicitor’s bill of costs. Section 128 refers to an order for taxation of costs. The distinction is not one of an apple and an orange but one of a marble and pumpkin. This distinction is further emphasised by section 126(1) which states ‘an order for taxation of bill of costs’. The bill referred to here is the bill presented by the solicitor under section 121 and not the bill of costs related to taxation mentioned in RHC 1980 or RC 2012. Even section 130 refers to delivery of solicitor’s bill of costs and that bill can be a subject matter of taxation of bill of costs. If the court orders taxation of solicitor’s bill of costs, the taxation of the bill must follow the procedure set out for taxation of bill of costs under RHC 1980 and now under RC 2012. … [18] Section 126 must be read with section 121. Section 126 simply sets out the step to be taken if the client is not satisfied with the solicitor’s bill of costs, be it gross or itemised bill. The time period of one month, six months and a year stated in the section is important. … [20] Section 128 must be read together with sections 121 and 126 for purpose of clarity. The law gives a right to a client to get the solicitor’s bill of costs taxed. The application must be made within six months and that can be done as of right. However, the application can also be made after the 6th month and within a year upon special circumstances been proved to the satisfaction of the court. The threshold test here is very high. [21] What is important to note is that if section 128 timeline is not adhered to by the client, he will not have the privilege to get the solicitor’s bill of costs to be taxed through the court process. What will be left to address his grievance will only be related to a common law right to dispute the claim. It is very unlikely for the courts to entertain a complaint on the solicitor’s bill of costs when the statutory mechanism was not adhered. …” (emphasis added). 24. In RHB Trustees Bhd (as trustee for the Linggiu Valley Orang Asli (Jakuns) trust) v Messrs Rosley Zechariah Advocates & Solicitors (sued as a firm) & Anor [2026] 5 CLJ 317, I had alluded to the broad grounds of judgment by the Court of Appeal in delivering a unanimous decision on 4.7.2024 in allowing the plaintiff’s appeal against the decision by the High Court which allowed the defendant’s application to strike out the O.S. The relevant part of the said broad grounds is re-produced below: “[14] Section 126(1) provides two situations where a bill of costs of an advocate and solicitor could be ordered to be taxed. [15] First, a party chargeable or a party liable to pay may petition the bill of costs to be taxed provided that (i) the bill of costs has been delivered by the advocate and solicitor, and (ii) the application for an order for the bill of costs to be taxed must be made within 6 months from the delivery of the bill. [16] The second situation is the advocate and solicitor may petition for the bill of costs to be taxed provided that (i) the application can only be made after 1 month from the delivery of the bill of costs, and (ii) it must be made within a year after the delivery of the bill of costs. [17] Another relevant section for the order for taxation of an advocate and solicitor’s bill of costs is s. 128 of the LPA. In a situation where the time limit of 6 months to petition to the court for an order of taxation has expired (refer to s. 126(1)) or that the bill of costs has been paid, the general rule is that no order for taxation shall be made. However, the exception is provided if (i) a notice is given to the advocate and solicitor, and (ii) special circumstances are proven to the satisfaction of the court. [18] It is to be noted that s. 128(2) of the LPA states “no such order for taxation shall in any event be made after the expiry of one year from the delivery of the bill of costs.” Therefore, the proviso in s. 128(1) is subject to sub-s (2). In other words, a bill of costs can no longer be ordered to be taxed after the expiry of 1 year from the delivery of the bill of costs. … [20] … We note that in the OS action, RHB sought, inter alia, a prayer for an extension of time to file the action. However, it is unclear which provision RHB had relied on to file the OS action to petition for a court order for the respondents’ bills to be taxed. In the intitulement, it mentioned, inter alia, ss. 121 and 126 of the LPA. Both the sections allow the party chargeable with the solicitor’s bill to petition for an order of the court for the bill to be taxed, and which section to apply depends on the circumstances of the case. Further, the sections impose a time frame when a party could rely on them. [21] In essence, the appellant’s counsel submitted that the respondents did not provide the appellant with a detailed bill of costs in order to trigger the operation of the time frame as stated in s. 126 of the LPA. The appellant’s counsel has submitted that “bill of costs” in s. 126(1) means a detailed items bill so to trigger the time frame of 6 months to petition for the bill to be taxed. The appellant’s counsel submitted that the bills in question are not detailed items bills. … [24] Based on the appellant’s counsel’s submission, it was incumbent upon the High Court to examine whether the respondents’ bills of costs are detailed items bills or gross sum bills. This is important because in order to rely on s. 121(1)(b), the appellant must satisfy the court that the respondents’ bills of costs are gross sum bills. As such, this issue alone is sufficient to raise a question fit to be tried by the judge to be determined in the full hearing of Enclosure 1 in the OS action. … [35] It is trite law that so long as the statement of claim discloses some cause of action or raises some questions fit to be tried or decided by the judge, then a striking out application should not be allowed. We find that the learned HCJ should not have struck out the OS action without first determining the question whether the bills of cost in question are detailed items bills or gross sum bills. Further, it was also incumbent upon the learned HCJ to consider whether s. 121(1)(b) could be applicable if he makes a finding that the bills of cost in question are indeed gross sum bills. In addition, the learned HCJ did not determine whether the term “bill of costs” in s. 126 refers to only a detailed items bill. These questions are sufficient to be fit to be tried or decided by the judge in the OS action.”. The Parties’ Submissions 25. On the second continued hearing date on 13.3.2026, the Defendant’s counsel informed that she will not proceed with the grounds of application premised on incomplete service and out of jurisdiction, and instead its main ground would be that, by applying ss 126 and 128 of the LPA 1976, the Plaintiff’s application for taxation of the Bills was out of time. 26. The crux of the Defendant’s submission was that the Plaintiff has no reasonable cause of action against the Defendant; and the claim was frivolous and vexatious and an abuse of court process because, among others – (a) the Plaintiff was out of time to challenge the Bills due to its own acquiescence and waiver; (b) the Plaintiff’s actions were an afterthought as all the matters or issues were raised only after the Defendant had requested payment from the Plaintiff for the outstanding bills in Suit 33. The Plaintiff deliberately delayed payment of the invoices and in the end, the Plaintiff offered to pay a minimal amount towards the invoices in question; (c) the Bills are related to the files held by the Defendant which have been transferred, successfully resolved and/ or held by the Defendants in protecting the Plaintiff’s interest and have no relevance to Suit 33 or Suit 172 [see the correspondence between the Plaintiff and the Defendant dated 7.6.2023, 8.6.2023, 27.6.2023 and 1.8.2023 in exhibits “SK-10” and “SK-11” of the Defendant’s Affidavit In Reply (‘AIR’) No. 1 (encl. 36); the bill in Appendix 4, Bill No (6) was issued after the Defendant successfully resolved the case for the Plaintiff; and the Plaintiff has paid for 18 out of the total of 53 bills]; (d) the Plaintiff had always accepted the Defendant’s format of billing [see exhibit “HM-1” in the Defendant's AIR No. 3 (encl. 45) where, after receiving the Defendant’s letter dated 7.6.2023, the Plaintiff gave instructions to continue to handle the Plaintiff’s case and to attempt to settle. A consent judgment was accordingly recorded on 19.6.2023. The bill was issued on 22.6.2023 (based on the same format as the bills which were received and paid by the Plaintiff for around 20 years and the Bills currently being disputed by the Plaintiff) and it was duly paid by the Plaintiff on 13.7.2023]. The Plaintiff now unreasonably raised irrelevant issues; (e) the Plaintiff has raised the allegation of negligence in the assessment of costs; however, it did not state any remedy for it. This was merely to prejudice, and tarnish the professional image of, the Defendant in the eyes of the Court in the present proceedings; and (f) the Plaintiff fabricated a claim against the Defendant for professional negligence. All the previous suits are repeated actions taken by the Plaintiff with the intent to oppress, harass, selectively victimize the Defendant and persecute the Defendant following the Defendant’s refusal to accept the quantum meruit offer for the reduced amount vide the Plaintiff’s letter dated 31.5.2023. The taxation of the Bills was similarly with the ulterior motive to bully and oppress the Defendants into psychological and financial submissions. 27. In response, the Plaintiff contended that – (a) the Defendant’s application to strike out paragraphs 2 to 8 in the O.S. on the basis that the said paragraphs are frivolous and vexatious are devoid of merit as these paragraphs set out the material and necessary facts forming the Plaintiff’s cause of action and provide context to the reliefs sought. Any issues concerning the relevance or admissibility of the Plaintiff’s pleadings can be addressed through a trial and proper evidentiary procedures; (b) the Defendant had furnished the Plaintiff with voluminous bills. The legal fees were disputed by the Plaintiff as to quantum, duplicity, fairness and reasonableness and this led to the filing of the O.S. Exercising the statutory right under ss 126 and 128 of the LPA 1976 for taxation cannot be characterised as mala fide, oppressive or an abuse of process; (c) the Defendant’s reliance on the Plaintiff’s historical payment of earlier bills is misplaced. Each bill must be assessed on its own merits. The number of bills, the length of prior dealings and past payment of unrelated invoices is irrelevant and cannot amount to a waiver of the Plaintiff’s right to seek taxation; (d) its application for taxation of the Bills of Cost, with the exception of Appendix 5 to the O.S., is within the stipulated time as the 1st set of Bills was served on the Plaintiff on 22.6.2023 while the 2nd Bill was served on 6.7.2023. The O.S. was filed on 19.12.2023, which was before the expiry of the six months period. The final date to tax the Bills as provided under s 128 of the LPA 1976 was 18.12.2024; (e) as regards sub-s 128(1) of the LPA 1976, a case of special circumstances has been proven because the hearing was postponed several times as the parties were negotiating a global settlement for all the pending suits and there was no Judge in the Kuala Lumpur High Court (BKK1) during the material period. Reference was made to the meaning of “special circumstances” as elucidated in Leong Poh Shee v. Ng Kat Chong [1966] 1 MLJ 86 where the court adopted a passage in Mallal’s Supreme Court Practice at p 573 viz. “Special circumstances must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common.”. The Plaintiff additionally invoked the legal maxim actus curiae neminem gravabit (an act of the Court shall prejudice no man); and (f) the instant application was a tactical manoeuvre by the Defendant to engineer a procedural deadlock and delay the proceedings in order to use the rights of the statutory bar in s 128 of the LPA 1976. It is inequitable for the Defendant to benefit from a delay of its own making compounded by the administrative vacancy of Judges in the Court to shield its fees from being taxed before the Registrar. The Court should refuse to sanction this procedural trap as holding the Plaintiff as being statutorily barred under these unique and engineered circumstances would result in manifest injustice and a total eclipse of the Court’s supervisory jurisdiction over its officers. Analysis and Findings of the Court 28. Firstly, two observations were made, namely – (a) the Defendant’s application under limb (a) of O. 18, r. 19(1) of the RC 2012 was a non-starter because, as alluded to earlier, O. 18, r. 19(2) of the RC 2012 provides that no evidence shall be admissible on an application under the said limb. This means that limb (a) must be considered without having regard to the affidavit evidence. In this case, it was not possible for the Court to be satisfied that the O.S. as it stands is insufficient to entitle the Plaintiff to the reliefs sought. Clearly, there was a need for affidavit evidence before the Court can make any determination on the issues or matters raised in relation to encl. 24; and (b) based on the O.S. alone, it was unclear as to which provision of the LPA 1976 that the Plaintiff was seeking to tax the Bills as the intitulement refers to ss 121, 126, 128, 130, 132 and 134 of the LPA 1976 while no provision was mentioned in the body of the O.S.. In its written submission, the Plaintiff was evidently relying only on s 126 of the LPA 1976. 29. Secondly, after careful consideration of the cause papers and the submissions of the parties, my findings were as follows: (a) There was no agreement between the parties on the legal fees. Therefore, applying sub-s 121(1) of the LPA 1976, the Defendant’s Bill of Costs may at its option either contain detailed items or be for a gross sum. (b) In P.W. Textile Manufacturing Sendirian Berhad v. Messrs Gan Teik Chee & Ho (sued as a firm) [2024] CLJU 3219, the court said: “35. A bill is a “lump sum bill” or a “gross sum bill”, when a lump sum figure is shown to represent the costs of the detailed items and work done in a bill. (See the Singapore Court of Appeal decision in Harry Lee Wee v Haw Par Brothers International Ltd [1980] 2 MLJ 228; the High Court decisions in Mindvalley Labs Sdn Bhd v Messrs Rao & Kamal (a legal firm in partnership) [2016] 1 LNS 1303; [2016] MLJU 1090; and Fintree Capital Sdn Bhd v Tetuan Syed Ibrahim & Co [2023] 5 CLJ 733 at 744). 36. D, when issuing Bill 124 and Bill 136 to P, merely lumped all the items and work carried out. And charged a lump sum of RM 500,000 (for Bill 124) and RM 200,000 (for Bill 136), without providing the corresponding fees against each of these individual items and work carried out. As such, I consider Bill 124 and Bill 136 to be “lump sum bills” or “gross sum bills”.”. In RHB Trustees Berhad (supra), I found, among others, that – “49. I have scrutinised the 10 Invoices and, in my view, the Invoices were not gross sum bills but rather detailed bills of costs because – (a) based on the case authorities submitted by the D1, namely, Tetuan Azim Tunku Farik & Wong v Tetuan Ong Partnership [2021] 10 CLJ 258 and HMJ Shaharom & KS Wee v Kumpulan Wang Amanah Pencen [2013] 3 CLJ 423 a solicitor’s bill can be a gross bill or detailed bill; (b) in this case, the Plaintiff did not demand for bills containing detailed items from D1 even though the 10 Invoices were delivered to the Plaintiff on 3.1.2020, 10.2.2020 and 17.2.2020. By merely stating in the letter dated 17.2.2020 that it intends to tax the Bills, the Plaintiff cannot be said to have made a request for detailed items under s 121(1)(a) of the LPA 1976; and (c) looking at the format of the Invoices where each description of work was particularised, I was inclined to conclude that the Invoices were detailed bill of costs akin to the bills in Tetuan Azim Tunku Farik (supra), where the Court of Appeal held that an explanation and details were given in the bill of costs. This can be contrasted with the bill as sent by the lawyers in HMJ Shaharom (supra), which was a gross sum bill as it contained a lump sum fee without any description of the work done. Similarly, in Dato’ Pahlawan Ramli bin Yusuff v Tetuan Vin Law & Co (suing as a firm) [2026] 7 MLJ 288, I found that the first bill which was served by the respondent on the appellant was a gross sum bill. Thereafter, the appellant requested for a break-down of the fees. I held that the said request was in fact for a detailed bill.”. After having scrutinised the Bills in the present application, I find that the Bills were itemised and the Defendant had set out the particulars of the legal work performed with a sum being shown against each item. In other words, each description of work was particularised. Hence, I had no difficulty in concluding that the Bills are detailed bill of costs, and not gross sum bills, similar to the bills in Tetuan Azim Tunku Farik & Wong and RHB Trustees Berhad. (c) The Defendant has been the Plaintiff’s panel solicitors for approximately 20 years. They have maintained a long-term professional relationship during which the Defendant has consistently provided legal services and the Plaintiff has received and paid multiple countless bills without objection (see, for example, exhibits “SK-6” and “SK-13” in encl. 36). The Bills are in the same manner, style and format issued to the Plaintiff all these years and yet the Plaintiff claimed that they are gross bills. In this regard, I agree with the Defendant’s submission that the Bills are detailed or itemised bills for the following reasons: (i) implicitly approved through a consistent pattern of conduct; (ii) the Defendant’s previous bills which have been accepted by the Plaintiff were detailed bills impliedly approved by the Plaintiff; (iii) by contending that the Defendant’s disbursement should be supported with documentary proof and that there are certain items in the Bills that are overlapping and being double charged, the Plaintiff has inadvertently admitted that the Bills are indeed detailed bills; and (iv) the principle of estoppel applies. (d) The O.S. was filed within six months of delivery of the Bills but the Plaintiff did not obtain an order for taxation within one year from the said delivery. The last of the Bills was served on 25.8.2023 and hence, the Plaintiff had until 24.2.2024 to obtain the order for taxation pursuant to s 126 of the LPA 1976. However, no such order was obtained; no notice as required under sub-s 128(1) of the LPA 1976 was sent to the Defendant; and no application for extension of time, except as per paragraph 5 in encl. 1, was made. Therefore, applying sub-s 128(2) of the LPA 1976 and the case authorities as cited by the Defendant, namely Tetuan Azim, Tunku Farik & Wong and S.P. Veloo, and the decision by the Court of Appeal in RHB Trustees, clearly the Plaintiff’s application for taxation of the Defendant’s invoices was statutorily barred under sub-s 128(2) of the LPA 1976. In this regard, the Plaintiff’s attempt to establish special circumstances is of no assistance to it. (e) The Plaintiff contended that 43 out of 104 of the Bills are time-barred and only 61 Bills are within the 6-year period as provided under s 6 of the Limitation Act 1953 [Act 254]. The Defendant responded in great detail (see paragraphs 21 – 31 of the Submission In Reply, encl. 57). In my considered view, this was obviously a live issue which has to be determined at the hearing of encl. 1. Conclusion 30. In the premises, the Defendant’s application was allowed in part whereby paragraphs 1.4, 1.5, 2, 5 and 6, and part of paragraph 3 which states “sementara proses penaksiran/penetapan Bil-Bil Kos bagi Penetapan tersebut dan Keterangan Dokumentari Sokongan tersebut masih dilangsungkan dan”, in the O.S. are struck out pursuant to limbs (b), (c) and (d) of O. 18, r. 19(1) of the RC 2012 with costs in the cause. DATED: 19.6.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Plaintiff: Datuk Jagjit Singh Messrs. Jagjit Singh & Co. Solicitors for the Defendant: Suganthi Kuppusamy (Hema Malini Kolandasamy, Dashini Sugumaran and Kireeninderjit Kaur a/p Harbir Singh with her) Messrs. K. Suganthi & Co.