Sim Cheng Ho v 1. ) Lee Yen Pin (JB-12BNCvC-27-10/2025)

LEE YEN PIN

LEE YEN PIN (NO. K/P: 790623-01-5022) BERNIAGA SEBAGAI PRIME MANAGEMENT & ADVISORY

FADZILAH ONG CHEE SEONG & ASSOCIATES (DIDAKWA SEBAGAI SATU FIRMA) ... RESPONDEN-RESPONDEN GROUND OF JUDGMENT INTRODUCTION [1] This is an appeal by the Appellant against the decision of the Sessions Court dated 19.09.2025, which dismissed the Appellant's claim against the Respondents. The learned Sessions Court Judge held that: i. the Appellant's action was statute-barred under section 6(1)(a) of the Limitation Act 1953. ii. the pleaded case of conspiracy and fraud was not established; and iii. no legally recoverable loss or damage had been proven. [2] The Appellant appeals against all these findings. [3] Having carefully considered the record of appeal, the grounds of judgment of the Sessions Court, the written and oral submissions of counsel, and the applicable legal principles, this court is of the view that this appeal is devoid of merit. For reasons which follow, this Court dismiss the appeal and affirm the decision of the Sessions Court. SALIENT BACKGROUND FACTS [4] The material facts are largely undisputed and are borne out by the Appellant's own pleadings. [5] In March 2013, the Appellant and his then wife met the First Respondent to assist in managing their divorce. The First Respondent represented himself as a lawyer, although it later transpired that he was not a qualified advocate and solicitor. [6] In the course of events in 2013, two immovable properties belonging to the Appellant were transferred: a) one property was transferred on 11.06.2013; and b) the second property was transferred on 20.08.2013 after redemption from an existing charge and re-charging to another financial institution. [7] Crucially, the Appellant himself pleaded that by July and August 2013: a) he was aware that the second property was in the process of redemption and transfer. b) the First Respondent had informed him that there had been "mistakes" and advised him to seek another lawyer; and c) land searches conducted in August 2013 revealed that the first property had already been transferred. [8] By November 2013, further land searches confirmed that the second property had also been transferred and charged. [9] The present action was commenced on 07.01.2021, almost eight years after these events. ISSUES FOR DETERMINATION [10] The issues arising for determination in this appeal are: a) whether the Sessions Court erred in holding that the Appellant's claim was barred by limitation; b) whether the Sessions Court erred in finding that conspiracy and/or fraud had not been established; and c) whether the Sessions Court erred in holding that no recoverable loss or damage had been proven. Issue 1: Limitation Governing Principles [11] It is settled law that an action founded on fraud constitutes a tort and is therefore subject to section 6(1)(a) of the Limitation Act 1953, which prescribes a limitation period of six years from the date the cause of action accrues. This can be seen as follows :- 6 Limitation of actions of contract and tort and certain other actions

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.

An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action. [12] In tort, time begins to run when damage occurs and is capable of being discovered, not when the plaintiff subsequently appreciates the full legal implications of that damage. Accrual of the Cause of Action [13] The Appellant's own pleadings demonstrate that by no later than August 2013, he: a) knew that his properties were in the process of transfer; b) had been alerted that something had gone seriously awry; and c) had undertaken land searches confirming completed transfers. [14] By November 2013, the alleged damage was complete, actual, and known. At that point, all material facts necessary to ground a cause of action were in existence. [15] Accordingly, the cause of action accrued no later than November 2013. Computation of Time [16] Applying the statutory six-year limitation period, the last permissible date for commencing proceedings was in November 2019. [17] The present action, filed in January 2021, was therefore clearly out of time. Section 29 of the Limitation Act 1953 [18] The Appellant sought to rely on section 29 of the Limitation Act 1953, contending that time should run only from the date when he allegedly discovered that the First Respondent was not a lawyer. [19] This argument is fundamentally flawed for two independent reasons. [20] First, section 29 of the Limitation Act 1953 was never pleaded. It is trite that a court is confined to the case pleaded and cannot construct a new cause of action or defence not raised on the pleadings. This principle was discussed in Inas Teknik Sdn. Bhd v. T/N Foo Hiap Siong & Co [2023] CLJU 831 as follows :- [10] The rule of pleading is in line with the fundamental rule of natural justice i.e. the right to be informed of any adverse point so that one has the opportunity of stating the answer: Muniandy & Anor v. Muhammad Abdul Kader & Ors [1989] 1 CLJ Rep 116; [1989] 2 MLJ 416 at p 418. Also see Wisma Punca Emas Sdn Bhd v. Dr Donal R O'Holohan [1986] CLJU 46; [1986] 1 LNS 46; [1987] 1 MLJ 393; [2023] 8 MLJ 19 at 32 Gimstern Corporation (M) Sdn Bhd & Anor v. Global Insurance Co Sdn Bhd [1987] CLJ Rep 102; [1987] 1 MLJ 302 and Tan Ah Chim & Sons Sdn Bhd v. Ooi Bee Tat & Anor [1993] 4 CLJ 476; [1993] 3 MLJ 633. [11] Where the material facts vital to support the claim were not pleaded, the party is not allowed to succeed in its claim based on unpleaded material facts: AmBank (M) Berhad v. Luqman Kamil [2012] 3 CLJ 551; [2012] 3 MLJ 1 (Federal Court's decison). [12] In RHB Bank Bhd (menggantikan Kwong Yik Bank Berhad) v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665; [2010] 2 MLJ 188, the Federal Court held as follows at p 202: "[33] Second, the proposition of the Court of Appeal was not even pleaded by the respondent. The respondent's cause of action against the appellant was for breach of contract. Nowhere in the respondent's pleading, expressly or by implication, can we detect a claim for breach of a joint venture agreement arising out of a fiduciary duty placed upon the appellant in the capacity as principal of an agent. It is a cardinal rule in civil litigation that the parties must abide by their pleadings... [35] On this, we would like to add that it is not the duty of the court to invent or create a cause of action or a defence under the guise of doing justice for the parties lest it be accused of being biased towards one against the other. The parties should know best as to what they want and it is not for the court to pursue a cavalier approach to solving their dispute by inventing or creating cause or causes of action which were not pleaded in the first place. Such activism by the court must be discouraged otherwise the court would be accused of making laws rather than applying them to a given set of facts." [21] Secondly, even on the facts, the Appellant's own pleadings and earlier proceedings show that he was aware, well before 2015, that the First Respondent was not a qualified advocate and solicitor. The statutory threshold of "reasonable diligence" under section 29 of the Limitation Act 1953 is therefore not satisfied. Conclusion on Limitation [22] The Sessions Court was plainly correct in holding that the Appellant's claim was statute-barred. This finding alone is dispositive of the appeal Issue 2: Conspiracy and Fraud [23] Notwithstanding this Court's finding on limitation, the remaining issues will be briefly addressed on limitation. [24] The tort of conspiracy requires proof of: a) an agreement between two or more persons; b) an intention to injure the plaintiff; and c) acts done pursuant to the agreement which result in damage. [25] The Sessions Court found, as a matter of record, that the Appellant had withdrawn his claims against the alleged coconspirators pursuant to a consent order. [26] Once those alleged co-conspirators were no longer parties,the essential requirement of plurality collapsed. A conspiracy cannot exist in law where only one alleged conspirator remains. [27] The Appellant's attempt to argue that the withdrawal did not extinguish the conspiracy is misconceived. Unlike exceptional cases where cogent evidence of conspiracy subsists notwithstanding the absence of certain parties, no such evidence exists here. [28] The Sessions Court therefore committed no error in law or fact in concluding that conspiracy and fraud were not established. Issue 3: Loss and Damage [29] The Appellant also failed to establish any legally recoverable loss. [30] The properties in question were the subject of a consent order which confirmed their ownership in the hands of third parties. The Appellant is therefore bound by that outcome. [31] Claims for loss of rental income were unsupported by objective evidence and were, in any event, partially time-barred. [32] As for legal fees, it is settled beyond argument that litigation costs are not recoverable as damages. They are governed exclusively by the law on costs. [33] The Sessions Court was therefore correct in holding that no recoverable loss had been proven. Conclusion [34] In summary: a) the Appellant's action was plainly barred by limitation; b) the pleaded case of conspiracy and fraud was legally and factually unsustainable; and c) no recoverable loss or damage was established. [35] There was no misdirection in law, no misunderstanding of the facts, and no basis for appellate intervention. Order [36] The appeal is dismissed with costs. [37] The decision of the Sessions Court dated 19 September 2025 is affirmed. DATED ON 5th MARCH 2026 YA DATUK ZAMRI BIN BAKAR JUDICIAL COMMISSIONER HIGH COURT (1) MUAR Appellant's Counsel: MERSS. K SILADASS & PARTNERS Respondents Counsel: MERSS. K.H. TAN & CO.