RHB Trustees Berhad v Tetuan Rosley Zechariah (WA-12BNCvC-142-10/2022)

“Justice is blind”. This is a phrase based on the metaphor of the Roman goddess of justice, Justicia, who is often depicted blindfolded and holding scales in one hand and a sword in the other hand. It symbolises that a court of law will dispense justice that is not dependent on creed, race or identity of the litigants, but only on the evidence presented.

For that reason, the court does not view as relevant the fact that the Appellant’s ultimate client is the Linggiu Valley Orang Asli (Jakuns) Trust or that the Respondent is a firm of solicitors. All men are equal under the hot Malaysian sun.

The appeal before me concerns a suit filed on 19-11-2020 at the Sessions Court by a law firm Tetuan Rosley Zechariah for non-payment of 10 bills by a client RHB Trustees Berhad, a professional trust firm. [“Bills”]. The Bills were for work rendered by the law firm and sent to the client between 03-01-2020 and 17-02-2020. The Bills are set out in the Statement of Claim at paragraph 6.

The details of the work done by the law firm are set out in a letter from Tetuan Rosley Zechariah to RHB Trustees Berhad dated 13-02-2022. [See Enclosure 7 Appeal Record volume 5 part C2 page 18-46]. The Bills were also enclosed.

This letter was sent after RHB Trustees Berhad had terminated their services and replaced them with another law firm.

Tetuan Rosley Zechariah obtained judgment on 29-09-2022 after a full trial at the Sessions Court. The Sessions Court had allowed judgment on the ground the 6-month period to dispute i.e. tax the Bills had expired under Section 126 of the Legal Profession Act [“LPA”]. [See Enclosure 9 Ground of Judgment paragraphs 8-22].

The Sessions Court had also relied on a decision by the Kuala Lumpur High Court dated 22-12-2021 to dismiss an Originating Summons WA- 17D-30-12/2020 [“OS 30”] filed by RHB Trustees Berhad to tax the Bills on the ground the 6-month period to tax the bills had expired under Section 126 of the LPA and there were no special circumstances put up by RHB Trustees Berhad to extend time under Section 128[1] LPA. [See Enclosure 9 Ground of Judgment paragraphs 25-27].

The grounds of decision of the High Court is at appendix 1 of Enclosure 11 the respondent’s Submission in particular paragraphs 17-25.

RHB Trustees Berhad appealed to me. I dismissed the appeal on 19- 06-2023. The crux of the appeal before me was on quantum as set out by counsel for RHB Trustees Berhad in Enclosure 17 appellant’s Written Submissions in reply at paragraph 4 which reads - It is the Appellant’s position that at all material times the bills/invoices issued by the Respondent shall be paid by the Appellant upon the same being taxed. The issue taken by the Appellant is the quantum of the Appellant’s bill/invoices and this is clear from the Appellant’s Statement of Defence and evidence during the trial. [Emphasis added]

RHB Trustees Berhad has filed an appeal to the Court of Appeal. These are my Grounds of Judgment.

RHB Trustees Berhad will be cited as the appellant and Tetuan Rosley Zechariah as the respondent.

The relevant submissions of the Appellant’s case reproduced verbatim below is as follows. [See Enclosure 16 Appellant’s Submission paragraphs 19 - 23].

From the exchange of correspondence between the respondent and the appellant (and through the appellant’s solicitors Messrs Kesavan), at all material times, the respondent was fully aware that the appellant was unhappy with the quantum quoted in the respondent’s fee quote and the amounts stated in the Bills and had consented to having the Bills taxed by the court.

The respondent had agreed for the Bills to be taxed by the court via the respondent’s letter dated 18-02-2020. [Kindly refer to the 6 respondent’s Letter dated 18-2-2020 at pages 49-55, Record of Appeal Volume 5, Part C (2)].

The respondent on 05-10-2020 through a Notice of Demand demanded the outstanding amount as stated in the respondent’s Bills. The appellant, through the appellant’s solicitors responded to the respondent’s Notice of Demand by stating to the respondent that the parties have agreed that the Bills are to be taxed and informed the respondent to do so. However, the respondent has failed to tax the respondent’s Bills and commenced legal action at the Kuala Lumpur Sessions Court on 19-11-2022 against the appellant which is the subject matter of this appeal.

Due to the respondent’s failure to tax the respondent’s Bills, the appellant had on 03-12-2020 proceeded to file Originating Summons 30 for an order for taxation. [Kindly refer to the Originating Summons dated 03-12-2020 at pages 46-125, Record of Appeal Volume 5, Part C (2)].

Both the respondent and Messrs. Isharidah, Ho, Chong & Menon filed an application to strike out the said Originating Summons and the Kuala Lumpur High Court on 22-12-2021 allowed the said applications.

The respondent’s case reproduced verbatim below is as follows. [See Enclosure 11 respondent’s Submission paragraphs 3-11].

The respondent’s claim was filed for the appellant’s non-payment of the Bills. The claim was filed in the Kuala Lumpur Sessions Court [KLSC] on 19-11-2020.

The first trial of the respondent’s claim proceeded on 27-12-2021 and the appellant’s lawyer was Mr Sri Murugan of Messrs Sri Murugan & Co.

Midway during the trial on 27-12-2021 when the respondent’s witness was testifying, Mr Sri Murugan walked out of the proceedings. Apart from this act of walking out, the appellant had also not complied with any of the KLSC’s case management directions. [See Enclosure 8 Appeal Record at pages 58-60 and 63-68].

The respondent completed their case and secured a judgment on 27- 12-2021 [“1st Judgment”]. [See Enclosure 8 Appeal Record at PDF Pages 70-71].

The appellant appealed to the Kuala Lumpur High Court vide Appeal No WA-12BNCVC-1-01/2022 against the 1st judgment [“KLHC Appeal 1”].

On 26-04-2022 the KLHC Appeal 1 was allowed. The judge set aside the 1st judgment and ordered that the matter be remitted back to the KLSC for a re-trial before another Sessions Court judge. The respondent had appealed to the Court of Appeal.

However, circumstances overtook the respondent’s appeal to the Court of Appeal as the re-trial commenced, proceeded on 02-08-2022, 03-08-2022, 08-08-2022, and 09-08-2022 and concluded.

After having read the submissions as directed to be filed by the new KLSC judge, the KLSC judge allowed the plaintiffs claim and granted Judgment on 29-09-2022 [the “Judgment”] [See Enclosure 3 Appeal Record at pages 48-49].

The appellant not being satisfied with the judgment has appealed vide this Appeal before me. [See Enclosure 3 Appeal Record at pages 64- 66].

The appellant in its Written Submissions Enclosure 16 at paragraph 24 has put up 7 issues for this appeal. They said issues 1-3,5 and 6 are related and should be dealt with together. Issues 4 and 7 are stand alone. [See Enclosure 16 Appellant’s Written Submission at paragraph 26].

The 7 issues according to the appellant are - a. Whether the appellant owes and has to pay the respondent the amounts under the Bills that have been delivered? [“First Issue”]; b. Whether the respondent’s claim should be dismissed on the grounds that the commencement of respondent’s action is contrary 9 to Section 124 of the Legal Profession Act 1976? [“Second Issue”]; c. Whether the respondent has yet to deliver the 'Bill of Costs' and all related issues to the appellant to-date? [“Third Issue”]; d. Whether the appointment of the respondent by the appellant through the appellant’s letter dated 11-04-2019 is based on conditional terms, and if yes, whether or not the respondent has complied with the terms contained in the appointment letter and all related issue fully? [“Fourth Issue”]; e. Whether the respondent’s services have been terminated on the grounds that the fees are excessive and whether or not the respondent has carried out his duties and all related issues at the material time negligently as pleaded in the appellant’s Statement of Defence? [“Fifth Issue”]; f. Whether the appellant at all material times agreed to pay for the respondent’s services subject to the respondent’s Bills being taxed, and if so, whether this taxation and all related issues were mutually agreed upon? [“Sixth Issue”]; g. Whether the interest imposed by the respondent on the respondent’s Bills violates the Solicitors' Remuneration Order 2005 and all related issues? [“Seventh Issue”]

The respondent in its Submission in Reply at Enclosure 14 put up an indignant rebuttal of the appellant’s Submissions and says the appellant is abusing the process with frivolous points.

The respondent says the appellant’s Submission that it was the respondent who ‘agreed’ to tax the Bills is false and untrue in light of the testimonies of the witnesses who worked for the Appellant i.e. Tony Chieng Siong Ung/PSP4 [“TC”] and Amirus/PSD1 and documents which showed otherwise. [See Enclosure 14 The Respondent’s Submission in Reply paragraph 14]. Analysis of the court Issue 1 to 3, 5 and 6

I find that issues 1 to 3, 5 and 6 are to a certain extent red herrings in the modern sense of the idiom, which is something that obfuscates and distracts from the real issues.

The evidence of the appellant’s own witnesses in court [i.e. Tony Chieng Siong Ung/SP4/TC] who is the Executive Director and Chief Executive Officer of the appellant and Amirus Anis/SD1 who is the Senior Manager of the appellant and legally trained and had practised law before]; and the correspondence show the appellant had admitted and agreed that services were rendered by the respondent and the appellant was refusing to pay the Bills on the issue of quantum only. And that was why the appellant said to the respondent they would tax the Bills - [See: Testimony of saksi Defendan 1/PSD1 Amirus Anis found in Enclosure 5 at PDF Page 154 (Notes of Proceedings of 09-08- 2022)]. [SP is Respondent’s/Plaintiff’s counsel Renu Zechariah. SD is Appellant’s/Defendant’s counsel Ragumaren Gopal] SP: Okay. Cik Amirus can you please confirm if these 10 invoices were delivered to you on the dates as stated in the Statement of Claim. Bundle A. PSD1: Yes confirm. SP: Would you please confirm that there are 10 invoices in issue here and these 10 invoices was for that quantum and delivered on those dates. PSD1: Yes confirm See: Testimony of TC/ Tony Chieng Siong Ung/ PSP4 found in Enclosure 5 at PDF Pages 41, 50-52, 70, 72 (Notes of Proceedings of 08-08-2022), where TC testified the defendant only disputes the quantum of the 10 Unpaid Absolute Bills Page 41 SP: No fine. Thank you, thank you. Okay. And have also not said to me personally a few times that if work is done it has to be paid for. SP: Yes? PSP4: All of the people. SP: Okay. Thank you. PSP4: Yes, yes. SP: Thank you. Must, work done must pay ah. Okay. No, that’s all I wanted. YA: He says that payment is not the issue. It’s, it’s the amount which is the issue. Pages 50 -51 SP: Okay, so what is exactly your objection to the 10 invoices? The quantum, is that it? … PSP4: Yes. Yes, we have been talking about quantum all this – SP: Wait. Only the quantum is being objected to you in this proceedings. You meaning Defendant lah, not you. SP: Okay yes. Okay, so I’m, I’m, I, I accept that. You have told that to me many times. PSP4: Okay, okay, thank you. SP: Okay. Only one ground, quantum. Okay, so your other defences of negligence and fee quote all not given, all is, is not relevant lah. It’s only quantum? SD: No, no not relevant YA: No, he said just now already. See: Testimony of Amirus found in Enclosure 5 at PDF pages 164 (Notes of Proceedings of 09-08-2022) SP: And are now instructed to file an application in Court so you who has written this letter have confirmed that you have been instructed to file an application in Court to tax, correct? PSD1: Confirm. SP: And item 8 says we undertake to pay your bills after having the same taxed by Court. See: Testimony of Amirus found in Enclosure 5 at PDF pages 165, 171 (Notes of Proceedings of 09-08-2022) Page 165 SP: No agree what you didn’t tax it? Sorry PSD1: We didn’t file within the time. YA: Yes. SP: Yeah okay. YA: She agreed she agreed. Page 171 SP: I referred to that letter already. So, would you agree then, after the time period that’s set out in the LPA, and after this claim was filed, you appointed lawyers to file OS 30, to seek an order for taxation? YA: Agree, disagree? PSD1: Ya, we did file. SP: After SP: After this claim was filed, and after the 6-month period. See: Testimony of Amirus found in Enclosure 5 at PDF page 177 (Notes of Proceedings of 09-08-2022) SP: Okay and page 11, page 11 one of the prayers that the Defendant is asking is at F. Can you look at F? Next page. SP: Yes? Can you read that? PSD1: That in the event this action is found to be filed beyond the time frame permitted under the LPA to seek extension, then the extension of time be granted to file and commence this action and then this action be deemed to have been filed within time. SP: Yes. So, you are seeking an extension of time, if the Court-PSD1: Yes. PSD1: Yes. I’m, I’m saying yes. SP: Yes yes, an extension of time in, if you filed out of time of the Legal Profession Act. YA: Yes lah. SP: And you agree that the court did not grant this entire OS even your extension of time? PSD1: Correct.

From the above admissions made in court by the two witnesses, it is clear the appellant’s proposed issues 1-3, 5 and 6 can be reduced to two relevant issues. They are - 15 i. 1st issue - Factual issue. There was an agreement to tax the Bills. Who is to file a petition to tax the Bills? ii. 2nd issue - Whether the appellant is out of time to tax the Bills? 1st issue - Factual issue. There was an agreement to tax the Bills. Who is to file a petition to tax the Bills?

The first issue is a factual issue. There was an agreement between parties to tax the Bills. The dispute is who is to file a petition to tax the Bills.

The appellant alleged the respondent had agreed to tax and by failing to tax, but instead to sue the appellant in the Sessions Court, the respondent was in the wrong. This is what the appellant submitted in Enclosure 16 appellant’s Written Submission paragraph 21 - The Appellant, through the Appellant’s solicitors responded the Respondent’s Notice of Demand by stating to the Respondent that the parties have agreed that the invoices are to be taxed and informed the Respondent to do so. However, the Respondent has failed to tax the Respondent’s bills and commenced legal action at the Kuala Lumpur Sessions Court on 19.11.2022 against the Appellant which is the subject matter of this Appeal. [Emphasis added]

The respondent disagrees and says the evidence shows the appellant had agreed to take steps to tax the Bills.

I agree with the respondent. In my view the allegation by the appellant is incorrect and contrary to the evidence. My reasons are as follow - i. In Originating Summons 30, the High Court judge had made a finding of fact that the appellant and the appellant’s solicitors had agreed in writing to file an application for taxation but failed to do so. [See Ground of Judgment in annexure 1 of Enclosure 11/t Enclosure 11 the respondent’s Submission at paragraph 24]. ii. In my view, this finding is correct. It is also supported by the correspondence exchanged between the parties in Appeal Record Enclosure 7 Volume 5 Part C2 page 47 paragraphs 7-9, page 54 item 7 “The Taxation” where the respondent reminded the appellant that there are time periods to tax the Bills, page 72, page 74 and page 75 paragraphs 3 and 4. iii. It must be noted the appellant is not a layman who is ignorant of the law but a professional trustee company and also represented by solicitors. iv. The excerpts of the testimony of Amirus set out above show the appellant did file Originating Summons 30 to tax the Bills but they didn’t file within time. 2nd issue - Whether the appellant is out of time to tax the Bills?

The 2nd issue is whether the appellant is out of time to tax the Bills.

Section 126(1) of the LPA reads as follows - 126 An order for taxation of costs to be made within 6 months of delivery of bill of costs

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. [Emphasis added] [41] Section 128 of the LPA provides that: - 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.

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. [Emphasis added] [42] In my view a client who wishes to dispute the fees charged by his solicitor’s bill, not being a gross sum bill, must comply with the following timelines under the LPA - i. Section 126(1) LPA requires a client who disputes a bill of his solicitor to obtain an order for the taxation of the bill delivered by his solicitor by a petition at any time within six months from the delivery of the bill. ii. Under Section 128(1) LPA after the expiration of six months from the delivery of a bill of costs no order shall be made for taxation of a solicitor's bill of costs, except under special circumstances to be proved to the satisfaction of the court. iii. Under Section 128(2) LPA 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. [43] Failure to challenge the bill within the timelines stipulated under the LPA means the amount claimed in the bill had become final and payable. It could not be disputed or challenged by the client anymore. [See Lim Kien Seng & Anor v Manoharan Kandasamy [2021] 2 CLJ 307 FC, SP Veloo & Co v Affin Bank Bhd [2017] MLJU 1042 CA at [28], Muhammed Shareef bin Mohamed Sagubar v Tetuan Idris & Associates and another case [2022] 8 MLJ 447 HC at [19-20], Awan Timur Palm Oil Mill Resources (Perak) Sdn Bhd v Tetuan Shahrizal & Nasir [2021] MLJU 29 HC and Lim Goay Hooi v Tetuan Choy & Associates; Lim Ho Peng (Proposed Intervener) [2021] 1 LNS 2248 HC]. Application of law to the facts of our case [44] The Bills were for work rendered by the respondent and sent to the appellant between 03-01-2020 and 17-02-2020. In my view the appellant was outside the 6-month window to tax the Bills when they filed the Originating Summons 30 on 03-12-2020. [45] This was also the reason why the High Court judge struck out Originating Summons 30. The High Court judge also held there were no cogent reasons put up by the appellant for an extension of time to be granted. [See the Grounds of Decision of the High Court at Annexure 1 of Enclosure 11/ the respondent’s Submission paragraphs 17-25]. [46] The amounts cannot be challenged now. The Bills have now become absolute by virtue of Section 126(1) read with Section 128(1) of the LPA. [47] The appellant during submissions placed much emphasis that they are trustee acting for the Linggiu Valley Orang Asli (Jakuns) Trust. While the court has sympathy, the court is a court of law. We decide according to the law. Parliament in its wisdom has enacted in the LPA certain timelines for a client to challenge his solicitor’s bill for the simple reason a solicitor should be paid for his services without further delay if a client doesn’t challenge the bill by the said timelines. Fourth Issue - Whether the appointment of the respondent by the appellant through the appellant’s letter dated 11-04-2019 is based on conditional terms, and if yes, whether or not the respondent has complied with the terms contained in the appointment letter and all related issue fully? [48] The appellant contends that the respondent has failed to provide a fee quote for the services that was to be rendered by the respondent to the appellant. [49] This allegation is a bare allegation, unsupported by the evidence. It has no merits. Much water has flown under the bridge. The appellant had gladly without protest accepted the legal services provided by the respondent from April 2019 to February 2020. The respondent had attended at the High Court, Court of Appeal and Federal Court numerous times acting for the appellant in 13 matters and achieved many victories. [50] The appellant is now estopped from changing its position after accepting the benefits. See Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 FC. [51] Further, during trial the appellant’s witness TC admitted that the appellant’s other alleged defences of negligence and fee quote all not given are no longer relied on and they are challenging on only quantum-See: Testimony of TC/Tony Chieng Siong Ung/PSP 4 found in Enclosure 5 at PDF pages 50-51 (Notes of Proceedings of 08- 08-2022), where TC testified the appellant only disputes the quantum of the 10 Unpaid Absolute Bills Pages 50 -51 SP: Okay, so what is exactly your objection to the 10 invoices? The quantum, is that it? … PSP4: Yes. Yes, we have been talking about quantum all this – SP: Wait. Only the quantum is being objected to you in this proceeding. You meaning Defendant lah, not you. SP: Okay yes. Okay, so I’m, I’m, I, I accept that. You have told that to me many times. PSP4: Okay, okay, thank you. SP: Okay. Only one ground, quantum. Okay, so your other defences of negligence and fee quote all not given, all is, is not relevant lah. It’s only quantum? SD: No, no not relevant YA: No, he said just now already. Allegation of negligence against the respondent [52] The appellant pleaded in paragraph 12 of its Statement of Defence five instances of negligence by the respondent which had allegedly caused losses. [53] No evidence was led in support. This is a finding of fact by the trial judge [See GOJ paragraph 43]. Neither were there submissions made before me. [54] In fact, during trial the appellant’s witness TC admitted that the appellant’s other alleged defences of negligence and fee quote all not given are no longer relied on and they are challenging on only quantum - See: Testimony of TC/Tony Chieng Siong Ung/PSP 4 found in Enclosure 5 at PDF pages 50-51 (Notes of Proceedings of 08- 08-2022), where TC testified the appellant only disputes the quantum of the 10 Unpaid Absolute Bills Pages 50 -51 SP: Okay, so what is exactly your objection to the 10 invoices? The quantum, is that it? … PSP4: Yes. Yes, we have been talking about quantum all this – SP: Wait. Only the quantum is being objected to you in this proceedings. You meaning Defendant lah, not you. SP: Okay yes. Okay, so I’m, I’m, I, I accept that. You have told that to me many times. PSP4: Okay, okay, thank you. SP: Okay. Only one ground, quantum. Okay, so your other defences of negligence and fee quote all not given, all is, is not relevant lah. It’s only quantum? SD: No, no not relevant YA: No, he said just now already. [55] It is also significant that the appellant had not even deemed it fit to file a counterclaim for such alleged losses, if indeed they are true. [56] The court would like to stress that it behoves a party not to make allegations of negligence against a solicitor without cogent evidence. More so, when it’s just abandoned like in the instant case. [57] Lastly, I have considered all the other issues raised by the appellant. I find no merits in them. The appellant’s witness Tony Chieng Siong Ung/PSP4 who is the Executive Director and Chief Executive Officer of the appellant has testified that the appellant is only disputing the quantum of the Bills. I will not set out again the transcripts which I had set out above. Decision [58] I dismiss the appeal with costs of RM 10,000 subject to allocatur. ……….(signed)…….……. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 13th July 2023 COUNSEL: 1) Ragumaren Gopal, David Ragumaren & Amelia Gasper for appellant. (G. Ragumaren & Co. (Kuala Lumpur)) 2) Renu Zechariah and Cheryl Kwan for respondent. (Rosley Zechariah (Kuala Lumpur)) CASES REFERRED TO: 1) Awan Timur Palm Oil Mill Resources (Perak) Sdn Bhd v Tetuan Shahrizal & Nasir [2021] MLJU 29 HC. 2) Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 FC. 3) Lim Goay Hooi v Tetuan Choy & Associates; Lim Ho Peng (Proposed Intervener) [2021] 1 LNS 2248 HC. 4) Lim Kien Seng & Anor v Manoharan Kandasamy [2021] 2 CLJ 307 FC 5) Muhammed Shareef bin Mohamed Sagubar v Tetuan Idris & Associates and another case [2022] 8 MLJ 447 HC. 6) SP Veloo & Co v Affin Bank Bhd [2017] MLJU 1042 CA. LEGISLATION REFERRED TO: 1) Section 124 of the Legal Profession Act 1976. 2) Section 126 of the Legal Profession Act1976. 3) Section 128 of the Legal Profession Act1976. 4) Solicitors' Remuneration Order 2005.