Perintis Gemilang Sdn. Bhd. v 1. ) Chee Bee Gaik (WA-22NCvC-765-12/2024)

CHEE BEE GAIK (No. K/P: 550717-10-5608)

CHEE SOON AUN (No. K/P: 540429-10-5081)

LIM KIM CHEW (No. K/P: 510618-01-5125)

SARINA BT JUSOH (yang beramal di bawah nama dan gaya Tetuan Sulaimi, Sharmini & Partners) …DEFENDAN-DEFENDAN Grounds of Judgment Introduction 1. The Plaintiff has filed this action, by way of a writ of summons, against four defendants in December 2024. The 4th Defendant is an advocate & solicitor. Some four months later in April 2025, the Plaintiff filed an application pursuant to Order 15 Rule 6 Rules of Court 2012 for leave to add two advocates & solicitors, who are partners of the same law firm as the 4th Defendant, as the 5th 07/10/2025 21:39:34 WA-22NCvC-765-12/2024 Kand. 39 Defendant and 6th Defendant respectively. The existing defendants objected to the Plaintiff’s application.

After reading the cause papers and hearing submissions of counsel, I decided that this Court ought to exercise its discretion to allow the Plaintiff’s said application to add Kursiah Sharmini binti Hassan as the 5th Defendant and Solahuddin bin Zainal Ariffin as the 6th Defendant. They are both partners of the existing 4th Defendant practising law under the name of Messrs. Sulaimi, Sharmini & Partners.

The Plaintiff adduced as evidence a letter dated 2nd February 2024 issued by the Bar Council which confirms that the proposed defendants are partners of the same law firm as the 4th Defendant, i.e. Messrs. Sulaimi, Sharmini & Partners.

Learned counsel for the Plaintiff submitted at length on the authorities applicable to applications for joinder of parties. As I have decided that this Court ought to exercise its discretion to allow the Plaintiff’s said application to add the two partners of the 4th Defendant as defendants, I shall focus on the points raised by the Defendants in their affidavits and their learned counsel’s submissions, and discuss at greater length the objections raised by the Defendants.

As mentioned above, the Plaintiff’s said application to add the two new defendants was opposed by the Defendants.

It was submitted by the Defendants that all communication and transactions were with only the 4th Defendant (Sarina Jusoh) and that neither the proposed 5th Defendant (Kursiah Sharmini) nor the proposed 6th Defendant (Solahuddin) had dealt with the Plaintiff in the past.

It was further argued that the 1st, 2nd and 3rd Defendants appointed only the 4th Defendant to act for them and had no intention to appoint the proposed 5th Defendant or proposed 6th Defendant.

As a point of law, it was submitted by learned counsel for the Defendants that the 4th Defendant, the proposed 5th Defendant and the proposed 6th Defendants did not agree to jointly bear liability, and that there was no partnership agreement between them that imposes joint responsibility.

Lastly, it was submitted that the 4th Defendant, the proposed 5th Defendant and the proposed 6th Defendant were practising as partners but from different locations, i.e. at different branches of the said law firm. In essence, the Defendants are contending that partners of the same firm who manage different branches of the firm are not liable for the conduct of their partners in other branches. Analysis of the Facts and Law 10. It is trite that the Court has a discretion to add parties at any stage to ensure complete determination of the issues between them. This discretionary power is set out in Order 15 Rule 6(2)(b) Rules of Court 2012. Order 15 rule 6 reads as follows: “6.Misjoinder and non-joinder of parties (O. 15, R 6).

A cause or matter shall not be defeated by reason of the misjoinder or nonjoinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application:

order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

order any of the following persons to be added as a party, namely:

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter”

In TAJJUL ARIFFIN MUSTAFA v. HENG CHENG HONG [1993] 1 MLRA 237, the Supreme Court explained the general principles governing application for the joinder of parties to an action. Even though reference in Tajjul Ariffin Mustafa (supra) was to the Rules of High Court 1980, the same principles are still applicable due to similar wording of O.15 r.6 under the current Rules of Court 2012. The following passage of the Supreme Court’s judgment provides guidance: “[28] To revert to the question of law posed at the outset, we consider that the following general principles as to parties may be distilled from the Rules of Court and the authorities thereon.

The principle of overriding importance is that all necessary and proper parties, but no others, should be before the Court at the same time to enable the effectual and complete determination and adjudication to be made by the Court of all questions and issues between the parties which arise for decision. (See RHC O 15 rr 4 and 6).

To this end, no action will be defeated by reason of mere mis-joinder or non-joinder of any party which is capable of being remedied and is no defence. (See Abonloff v. Oppenheimer [1882] 30 WR 430). The joinder of parties is permitted as of right in a wide area of circumstances or otherwise with the leave of the Court. (See RHC O 15, r 4.)

Additionally, the Court has extensive discretionary powers - to add, substitute or strike out parties who are not proper or necessary, and for these purposes the Court may even act of its own motion. (See RHC O 15 r 6).”

I find that in this case there was no delay by the Plaintiff in filing the said joinder application. The writ was issued in December 2024 and the said application was filed within 4 months, in April 2025, before the matter is ready for trial between the Plaintiff and the existing defendants. This is a pertinent point because had the Plaintiff’s application been filed after the existing parties have finalised their common bundle of documents, etcetera, and are ready for trial, the Court would have to seriously consider whether its discretionary power ought to be exercised in favour of allowing a late application to add new defendants, especially if it would lead to postponement of trial.

There is no dispute about the existence of a Letter of Undertaking dated 3rd August 2023 issued by Messrs. Sulaimi, Sharmini & Partners (“the Letter of Undertaking”) which led to the Plaintiff paying RM400,000 on 4th August 2023.

Since the 4th Defendant, the proposed 5th Defendant and the proposed 6th Defendants are partners of the same law firm, the Partnership Act 1961 is applicable to them.

S. 11 Partnership Act 1961 states: “Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he is a partner…”

From the plain words of S.11 of the Partnership Act 1961, there is no doubt that it renders a partner jointly liable for the obligations of the firm incurred while he is a partner. The Defendants herein do not dispute the fact that the proposed 5th Defendant and the proposed 6th Defendants are partners of the same law firm together with the 4th Defendant at the time of issuance of the Letter of Undertaking. Even if the periods when the proposed 5th Defendant and the proposed 6th Defendants respectively were partners of the same law firm are to be disputed, it would still just be a triable issue that warrants a trial, and would not defeat the Plaintiff’s application to join them as co-defendants with the existing four defendants. GUAMAN NO.: WA-22NCvC-765-12/2024 17. With respect, even if it is true that the 4th Defendant, the proposed 5th Defendant and the proposed 6th Defendants did not agree between themselves to jointly bear liability, and that there was no partnership agreement between them imposing joint responsibility, it would all still depend on the evidence adduced at the future trial and the application of the law, inter alia, the Partnership Act 1961, for this Court to determine if they are jointly liable. The partners of a firm may agree between themselves to indemnify each other but they may not use their partnership agreement to avoid the application of s.11 of the Partnership Act 1963.

After the Bar Council confirmed on 2nd February 2024 that the proposed 5th and 6th Defendants are partners of the said law firm, a demand letter was sent to all three partners on 6th February 2024. Thus, those two persons did have prior notice of the Plaintiff’s intention to sue them. Legally, so long as the cause of action is not barred by the Limitation Act 1953 or any other law, the Plaintiff is at liberty to mount a claim against them. The strength of the Plaintiff’s claim shall be determined in the future but it is not an obviously unsustainable one – in light of s.11 Partnership Act 1953.

The proposed amendments to the Plaintiff’ Statement of Claim that would be made due to the joinder of the two new defendants would not change the Plaintiff’s cause of action as it would be similar to the Plaintiff’s plea against the existing 4th Defendant – based on the same factual matrix. Further, the existing Defendants are at liberty to amend their Defence. Counsel for the Plaintiff: Ramesh Lachman SOLICITORS FOR THE PLAINTIFF: MESSRS NITH, GOWRI, LACHMAN & PARTNERS Advocates & Solicitors D-3-31, Block D, 8 Avenue Business Centre, Jalan Sungai Jernih 8/1 Section 8, 46050 PETALING JAYA, SELANGOR. Counsel for the Defendants: Khong Jin Teong SOLICITORS FOR THE DEFENDANTS: MESSRS JT KHONG LAW CHAMBERS Advocates & Solicitors Level 10-10, Wisma Trax, No.1, Jalan Lima Off Jalan Chan Sow Lin, 55200 KUALA LUMPUR.

TAJJUL ARIFFIN MUSTAFA V. HENG CHENG HONG [1993] 1 MLRA 237.

S.11 Partnership Act 1961.

Limitation Act 1953

Order 15 Rule 6 Rules of Court 2012