Raja Nor Hisham Binti Raja Hizat v Nur Syuhada Binti Ismail (Beramal Sebagai Tetuan Syuhada Ismail & Co) (WA-24NCvC-512-02/2024)

The Plaintiff is a registered owner of a piece of land held under GRN 111047, Lot 546, Section 2, Bandar Banting, District of Kuala Langat, State of Selangor with a 2-storey terraced house bearing postal address at No. 78, Jalan Baiduri 6, Taman Baiduri, 42700 Banting, Selangor (“the Property”). 18/08/2025 11:27:52

The Defendant is a practising advocate and solicitor being a member of the Malaysian Bar and is a partner of Messrs Syuhada Ismail & Co.

The Plaintiff intended to sell the Property and had appointed the Defendant’s firm of Messrs Syuhada Ismail & Co as her solicitor to protect her interests. Amongst the main duties of the Defendant is to represent the Plaintiff in the preparation of the sale and purchase agreement and all other relevant documents, being a stakeholder, trustee and agent for monies received for and on behalf of the Vendor/the Plaintiff and manage all matters relating to the sale and purchase of the Property.

On 28.07.2023, the Plaintiff had paid a legal fee of RM1,000.00 to the Defendant.

On 18.10.2023 at about 3.00 pm, one of the Defendant’s legal assistants in the name of Syafiqa binti Mohammad attended to the Plaintiff, at the Plaintiff’s residential address for the purpose of getting her to sign the sale and purchase agreement together with other relevant documents.

A sale and purchase agreement dated 23.10.2023 (“the SPA”) was entered between the Plaintiff (interchangeably referred to as “the Vendor”) and a buyer in the name of Chee Han Guan (“the Purchaser”) upon terms and conditions contained therein.

Clause 1.01 and Item 5 of the First Schedule of the SPA provides that a deposit in the sum of RM65,000.00 shall be paid in the following manners: i. Earnest Deposit in a sum of RM12,243.00 had been paid to the appointed real estate agency, i.e., The Roof Realty Sdn Bhd (1147810-W) prior to the execution of the SPA; and ii. the balance deposit in the sum of RM52,757.00 only shall be paid by the Purchaser to the Vendor’s solicitor namely the Defendant’s legal firm upon signing the SPA.

Based on the terms and conditions of the SPA, the balance deposit of RM52,757.00 which was paid by the Purchaser to the Defendant, as the Plaintiff/Vendor’s solicitors upon execution of the SPA was to be held as a stakeholder fund by the Defendant for the Plaintiff, as provided under Clause 1.03 of the SPA, until the Plaintiff executed the SPA.

The Defendant’s legal assistant in the name of Syafiqa informed the Plaintiff that the Balance Deposit of RM52,757.00 which was held as a stakeholder sum will be released to the Plaintiff a few days after the executed SPA being stamped.

The Plaintiff had requested from Syafiqa to release the Balance Deposit, but Syafiqa refused, failed and/or neglected to release the said balance deposit to the Plaintiff.

Not long after that, the Plaintiff felt disappointed after she found out that the Property was trespassed, and renovation works was carried out without her consent and knowledge. The Plaintiff also did not receive any monies upon signing and stamping of the SPA.

The Plaintiff tried several times to contact Syafiqa through her mobile phone and contacted the Defendant through her mobile phone but to no avail. The Plaintiff then lodged a police report under the Report No.: BANTING/013942/23 dated 11.12.2023 to protect her interest.

Since the Plaintiff had failed to contact Syafiqa and the Defendant, the Plaintiff sent the renovation photographs of the said Property to a real estate agent named Normala who then uploaded the renovation photographs in the WhatsApp group of the Property.

In consequence of the illegal renovation done by the said Purchaser without the approval from Majlis Perbandaran Kuala Langat, Selangor, the Plaintiff had been served with a Notice of Offence on

14.11.2023 under Street, Drainage, and Building Act 1974 (“Act 133”).

On 15.12.2023, the Plaintiff terminated the appointment and services of the Defendant as the solicitor for the Plaintiff in the SPA.

On 18.12.2023 at 8.52 pm, Syafiqa had send a WhatsApp message to the Plaintiff informing her that the Defendant shall instruct the Purchaser’s solicitor to hold the SPA transaction (which the Plaintiff perceived to mean suspending the transaction) on the grounds that the Plaintiff was insane during the time of executing the SPA. The Plaintiff was further informed that the Defendant shall not be liable for any delay and/or penalty in relation to the said SPA.

On 19.12.2023, the Plaintiff appointed Messrs Adliza Subra Siti & Partners to be her solicitor and to take over the conduct as solicitor for the Plaintiff under the SPA.

On 19.12.2023, Messrs Adliza Subra Siti & Partners sent a Notice of Demand to the Defendant enclosing together the Notice of Termination and Discharge dated 15.12.2023.

Via the Notice of Demand, the Plaintiff demanded from the Defendant to transfer the entire file related to the SPA transaction together with all documents, drafts, notes and any other documents in relation to the transaction of the Property that had been delivered to the Defendant and/or its employees and surrender the balance deposit sum of RM52,757.00 together with an interest of 8% per annum to Messrs Adliza Subra Siti & Partners within forty-eight (48) hours from the receipt of the Notice of Demand which was served on the Defendant through the Defendant’s email at sico.firm@gmail.com.

On 19.12.2023 at 5.10pm, the Defendant replied to the Notice of Demand enclosing their invoice dated 14.08.2023 for the SPA. The Defendant not only demanded that the Plaintiff settle their legal fees and disbursements in the sum of RM7,349.25 but also questioned the said Notice of Termination and Dischage and questioned the appointment of Messrs Adliza Subra Siti & Partners.

On 31.01.2024, the Plaintiff received a WhatsApp message from Syafiqa whereby informing her that the Purchaser would proceed with legal action against the Plaintiff due the suspension of the SPA.

On 03.01.2024, the Plaintiff filed a complaint about the Defendant and Syafiqa to the Bar Council Disciplinary Board.

On 07.02.2024, the Plaintiff filed this Originating Summon against the Defendant together with a certificate of urgency.

In the Originating Summons, the Plaintiff prayed for: “(i) Bahawa Defendan menghantarserah semua dan keseluruhan fail berkenaan Perjanjian Jual Beli bertarikh 23-10-2023 termasuk semua dokumen, salinan-salinan deraf, nota dan dokumen lain yang ada dalam simpanan Defendan sebagai peguamcara Penjual (Plaintif) dalam hal ehwal Perjanjian Jual Beli bertarikh 23-10-2023 kepada Tetuan Adliza Subra Siti & Partners, yang beralamat di A-3- 27, Plaza Medan Putra, Jalan Medan Putra 6, Medan Putra Business Centre, Bandar Manjalara, 52200 Kuala Lumpur (“Peguamcara Saya”), yang dilantik oleh saya sebagai Pemohon dalam tempoh masa 48 jam (atau suatu masa yang ditetapkan oleh Mahkamah Yang Mulia ini) dari tarikh Perintah ini;

(ii) Bahawa Defendan membayar baki deposit berjumlah RM52,757.00 yang dipegang sebagai Pemegang Amanah berserta dengan faedah pada kadar 8% setahun untuk 3 bulan iaitu sebanyak RM1,055.00 dan masih berterusan sehinggan tarikh penyelesaian penuh; dan/atau;

(iii) Bahawa Defendan membayar segala wang pertaruhan dan apa-apa jumlah lain yang dipegang oleh Defendan sebagai Peguamcara Penjual (Plaintif) dalam urusan Perjanjian Jual Beli bertarikh 23-10-2023 kepada Tetuan Adliza Subra Siti & Partners, yang beralamat di A-3- 27, Plaza Medan Putra, Jalan Medan Putra 6, Medan Putra Business Centre, Bandar Manjalara, 52200 Kuala Lumpur, yang dilantik oleh saya sebagai Pemohon dalam tempoh masa 48 jam (atau suatu masa yang ditetapkan oleh Mahkamah Yang Mulia ini) dari tarikh Perintah ini;

(iv) Bahawa Defendan menghantarserah kepada Tetuan Adliza Subra Siti & Partners yang beralamat di A-3-27, Plaza Medan Putra, Jalan Medan Putra 6, Medan Putra Business, Bandar Manjalara, 52200 Kuala Lumpur yang dilantik oleh saya sebagai Pemohon satu akaun kewangan yang menyenaraikan butir-butir semua penerimaan wang serta perbelanjaan berkaitan urusan jual beli yang dikendalikan oleh Defendan sebagai Peguamcara Penjual (Plaintif) dalam tempoh masa 48 jam (atau suatu masa yang ditetapkan oleh Mahkamah Yang Mulia ini) dari tarikh Perintah ini;

Tindakan pelaksanaan komital terhadap Defendan di bawah A.45 k.4 dan k.5 Kaedah-Kaedah Mahkamah 2012;

(vi) Kos;

(vii) Faedah pada kadar 8% setahun daripada 24-10-2023 sehingga tarikh penyelesaian penuh; dan

(viii) Lain-lain relif yang difikirkan adil dan suaimanfaat oleh Mahkamah Yang Mulia ini

In the instant case, pursuant to the execution of the SPA, the Plaintiff submitted that the Defendant was holding the balance deposit of RM52,757.00 as a stakeholder. The Plaintiff also submitted that the SPA is still a valid contract and thus seek the return of all documents pertaining to the SPA and the balance deposit to the Plaintiff’s new counsel.

The Plaintiff relied on Clause 1.01 and Item 5 of the First Schedule of the SPA and submitted that the SPA has been executed by the Purchaser and the Purchaser’s solicitors had already transferred and/or remitted the balance deposit to the Defendant.

The Plaintiff also submitted that the Defendant had previously undertaken that the balance deposit will be released to the Plaintiff after the SPA has been stamped. However, it was not done by the Defendant.

Based on the above facts and authorities, the Plaintiff submitted that there exists a Solicitor-Client relationship between the Plaintiff and the Defendant. Hence, the Plaintiff relied on such a relationship to file the instant application.

In opposing the Plaintiff’s application, the Defendant submitted that pursuant to a letter of confirmation cum undertaking (“Letter of Confirmation Undertaking”), the Plaintiff was well aware and had full knowledge that the balance deposit were never paid to the Defendant.

The relevant extract from the Letter of Confirmation cum Undertaking reads as follows: “2. Deposit Instead of RINGGIT MALAYSIA SIXTY FIVE THOUSAND (RM65,000-00) only as stated in the Sale and Purchase Agreement, actual deposit is RINGGIT MALAYSIA SEVEN THOUSAND AND SEVEN HUNDRED (RM7,700-00) Only being part payment of the three point one eight percent (3.18%) from the Actual Purchase Price paid to the Vendor’s appointed Real Estate Agency. The Roof Realty Sdn Bhd (1147810-W) prior to the date of this

Premised on the above, the Defendant submitted that it is apparent that at all material times, the Plaintiff is fully aware that no deposit would be paid by the Purchaser to the Plaintiff through the Defendant.

The Defendant also denied having received any deposits and submitted that the Plaintiff had failed to produce any documentary evidence to support its claim.

In opposing the return of the documents pertaining to the said SPA, the Defendant submitted that they are entitled to hold on to the documents as a solicitor’s lien until full settlement of the outstanding legal fees owed to the Defendant.

The Defendant also submitted that they are not privy to the SPA. The Defendant further submitted that the right legal recourse for the Plaintiff is against the Purchaser and not the Defendant. B. Findings and Decision of the Court 35. After a careful deliberation and appraisal of the facts and evidence adduced by both parties through their affidavits and exhibits, and having considered the submissions by both parties, I have decided to allow parts of the Plaintiff’s prayers. I shall address the issues in turn.

On the outset, this Court find that Originating Summon is not the right mode to settle the issues and/or disputes as there are substantial dispute of facts between the parties.

I refer to Order 5 rule 2 and Order 28 rule 8 the Rules of Court 2012 as follows: “Order 5 rule 2

Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ.” “Order 28 rule 8

Where, in the case of of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

Where the Court decides to make such an order referred to in rule (1), Order 34 shall apply with the necessary modifications.

This rule applies notwithstanding that the cause or matter in question could not have been begun by writ.

Any reference in these Rules to an action begun by writ shall, unless the context otherwise requires, be construed as including a reference to a cause or matter proceedings in which are ordered under this rule to continue as if the cause or matter had been so begun.”

I further refer to the case of Lim Pey Lin v. Chia Foon Tau & Anor [2002] 1 CLJ 420 where Low Hop Bing J (as His Lordship then was) eloborated the term “diametrically opposite views” as a situation where there exists a substantially disputed facts, which would render the originating summons procedure unsuitable or inappropriate. His Lord Ship also held that various inconsistencies manifested in the affidavits could only be resolved by viva voce evidence, going through the process of cross-examination and re-examination.

I also refer to the case of ISM Sendirian Berhad v. Quennsway Nominees (Tempatan) Sdn Bhd & Ors [2016] 2 CLJ 294 where Abu Bakar Jais JC (now PCA) held that it would be prudent and fairer for the matter to be heard as a writ action, given the need for witnesses to testify, as there were numerous conflicting and disputed facts put forward by the parties.

Guided by the above authorities, the Court is empowered to convert the Originating Summons into a Writ Action when it seems that there is a substantial dispute of facts.

In the instant case, I find that there is a substantial dispute of facts pertaining to the existence of the stakeholder sum in the SPA transaction. Such dispute can only be resolved in a writ action and pleadings, and by calling of witnesses and going through the process of cross-examination and re-examination. I find that such dispute of facts could not be resolve through affidavits.

Therefore, I order this Originating Summon to be converted to Writ Action. I shall now discuss the other issue in dispute the discovery. Order for Discovery 43. The Plaintiff in the instant case also seek for the following order in Prayer (i) and (iv) as follows: “(i) Bahawa Defendan menghantarserah semua dan keseluruhan fail berkenaan Perjanjian Jual Beli bertarikh 23-10-2023 termasuk semua dokumen, salinan-salinan deraf, nota dan dokumen lain yang ada dalam simpanan Defendan sebagai peguamcara Penjual (Plaintif) dalam hal ehwal Perjanjian Jual Beli bertarikh 23-10-2023 kepada Tetuan Adliza Subra Siti & Partners, yang beralamat di A-3- 27, Plaza Medan Putra, Jalan Medan Putra 6, Medan Putra Business Centre, Bandar Manjalara, 52200 Kuala Lumpur (“Peguamcara Saya”), yang dilantik oleh saya sebagai Pemohon dalam tempoh masa 48 jam (atau suatu masa yang ditetapkan oleh Mahkamah Yang Mulia ini) dari tarikh Perintah ini; …

(iv) Bahawa Defendan menghantarserah kepada Tetuan Adliza Subra Siti & Partners yang beralamat di A-3-27, Plaza Medan Putra, Jalan Medan Putra 6, Medan Putra Business, Bandar Manjalara, 52200 Kuala Lumpur yang dilantik oleh saya sebagai Pemohon satu akaun kewangan yang menyenaraikan butir-butir semua penerimaan wang serta perbelanjaan berkaitan urusan jual beli yang dikendalikan oleh Defendan sebagai Peguamcara Penjual (Plaintif) dalam tempoh masa 48 jam (atau suatu masa yang ditetapkan oleh Mahkamah Yang Mulia ini) dari tarikh Perintah ini;

This Court also refer to Order 24 rule 3 of the Rules of Court. As for Prayer (i) of the Plaintiff’s claim, I am in agreement with the Plaintiff that since the Notice of Termination and Discharge has been served to the Defendant by the Plaintiff, the Plaintiff is entitled to direct that all files, documents, drafts, notes and any other relevant documents relating to the SPA to be transferred to the Plaintiff’s new solicitors.

Additionally, for Prayer (iv) of the Plaintiff’s claim, I find that it is crucial that the Defendant’s Statement of Account be disclosed to fully ascertain the existence of the alleged stakeholder sum.

Therefore, by virtue of Order 24 rule 3 of the Rules of Court 2012 which empowers this Court to make an order for discovery, I order that the Defendant is to furnish their Statement of Account to the Plaintiff.

To balance the fairness between the parties, the Defendant shall only furnish their Statement of Account to the Plaintiff from the date where they were appointed by the Plaintiff until the date when the Plaintiff issued to the Defendant, the Notice of Termination and Discharge. C. Conclusion 49. To sum up, I find that there is a substantial dispute of facts which can only be resolved by viva voce evidence, going through the process of cross-examination and re-examination.

I also find that the Plaintiff is entitled to direct that all files, documents, drafts, notes and any other relevant documents relating to the SPA to be transferred to the Plaintiff’s new solicitors since the Plaintiff has issued a Notice of Termination and Discharge against the Defendant.

Lastly, I find that it is crucial that the Defendant’s Statement of Account be disclosed to fully ascertain the existence of the alleged stakeholder sum. Dated 15 August, 2025 --------------------------------------------------------- YA DR. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For The Plaintiff : Subramaniam a/l Paramasivam Messrs. Adliza Subra Siti & Partners For The Defendant : Mohd Hafiz bin Mahmud Messrs. Nurul Hafidzah & Associates Table of Authorities Cases ISM Sendirian Berhad v. Quennsway Nominees (Tempatan) Sdn Bhd & Ors [2016] 2 CLJ 294 Lim Pey Lin v. Chia Foon Tau & Anor [2002] 1 CLJ 420