Tan Poh Lee v Tan Boon Thien (WA-22NCvC-703-10/2018)

LOW CHOW YENG (P) …DEFENDAN-DEFENDAN 15 JUDGMENT (Enclosure 447) INTRODUCTION 20 [1] This is an application by:

1.1 Lim Tian Huat of Messrs Rodgers Reidy & Co, Chartered Accountants (AF:001974), an Administrator Pendente Lite (APL - applicant) for the estate of Tan Kim Choo@Tan Kim Choon.

1.2 Appointed by a Court Order dated 07.12.2018 (L.33). 25 1.3 Seeking an order for Administrator Pendente Lite Invoice No. P- 00301 (invoice) dated 30.10.2023 for the amount RM593,376.96 be affirmed and approved by this Court and other relevant reliefs deemed appropriate and reasonable by this Court.

1.4 The affidavit in support of this application is found in L.448. 30 04/04/2024 10:32:05 Kand. 469 [2] The parties have no objection except for the First Defendant (D1), who is objecting to this invoice because it was exorbitant, excessive and ought to be “taxed” by this Court. 35 [3]

3.2 After perusing the cause papers and hearing counsels’ submissions, I allowed the APL’s application with costs of RM7,000.00 to be paid by D1 to the APL within 30 days from the date of the order.

3.1 D1, dissatisfied with the said decision, is now appealing. My reasons 40 are as follows: SALIENT FACTS [4] In a nutshell:

4.1 The deceased Tan Kim Choo @ Tan Kim Choon left behind a 45 substantial estate as set out in the Schedule A and B, as listed in the respective Wills dated 06.03.2008 and 08.06.2016, as contained in the Deed of Gift coupled with a Power of Attorney dated 27.09.2016 (DG) and as contained in the Power of Attorney dated 27.06.2016 (PA).

4.2 The APL is appointed to oversee the administration and preserve the deceased’s estate pending the final determination of the Probate Action or until further ordered by the Court. Clauses 3, 4 and 5 of the appointment order in L.33 stipulate that: 55 “Clause 3: “The Administrator Pendente Lite do submit an account of his administration of 60 the estate to this Court within one (1) month of the date of this order and thereafter at two (2) monthly intervals by way of Affidavit to be filed in these proceedings with a copy to be served on the Plaintiff’s solicitors.” Clause 4: 65 “The remuneration of the Administrator Pendente Lite be determined and/or approved by the Court upon application by the Administrator Pendente Lite at the commencement of the Administration and from time to time thereafter following each interval of accounting as envisaged in paragraph 3 above or as may be expedient.” 70 Clause 5: “The Administrator Pendente Lite shall be indemnified for all outgoings incurred on behalf of the estate in the exercise of his powers and duties under this Order, to be paid out of the estate's assets with the approval of the Court.”” 75

4.3 Since the appointment of APL for work carried out in the administration and preservation of the deceased's estate as entrusted by the Court on 07.12.2018 (L.33), the Court approved his invoices on 80 several occasions:

Court’s Order dated 28.04.2021 (L.336): APL Invoice No: P-00337 dated 11.01.2021 for RM136,429.71 and APL Invoice No: P-00343 for RM331,006.88; and

(ii) Court’s Order dated on 07.04.2023 (L.405): 85 APL Invoice No: P-00161 dated 21.10.2022 for RM428,062.55 (L.405) since the appointment of APL for work carried out in the administration and preservation of the deceased's estate as entrusted by the Court in L.33. 90 4.4 Now Administrator Pendente Lite seeks approval for APL Invoice No: P-00301dated 30.10.2023 for RM593,376.96. THE PARTIES ARGUMENTS [5] All parties save for D1 have no objection to APL’s application in L.447, representing more than a year’s work from the last bill of 95 charges for services rendered, expenses incurred for lawyers' services, etc.

THE FRIST DEFENDANT (D1) 1 D1 argued that:

The claim under the Invoice, which primarily consists of “review and execution” of documents such as affidavits, is exorbitant, unreasonably excessive, and unsupported. No receipts are attached as proof of work done.

The works conducted are not complicated and do not merit the 105 amount invoiced.

The meetings and rent collections/arrangements in the report do not provide particulars or breakdowns of the charges incurred.

The matter should be referred to the Registrar for examination 110 under O.72 r.20(3) RC 2012.

The Administrator’s solicitors bill is unsupported, unreasonable, and excessive with double charges. Therefore, D1 asks that L.447 by the APL be dismissed. 115 THE APPLICANT/ADMINISTRATOR PENDENTE LITE (APL)

5.2 In contrast, APL submitted that:

The bona fide expenses and fees contained in the Invoice are 120 for considerable work undertaken for the deceased’s estate between October 2022 and October 2023. It is issued in compliance with the terms of the Court order in L.33. The fee lies strictly within the discretion of the Court, taking into consideration the difficulty factor, the complexity of the matter, 125 and the time and effort to attend to the tasks citing Tetuan Azim, Tunku Farik & Wong v Tetuan Ong Partnership [2021] 10 CLJ 258, CA.

D1 is bound by res judicata and issues estoppel concerning their objection that had previously been raised and rejected by 130 the Court (D1’s submissions at L.265, L.398, respectively).

The Court then found no merit in the issues raised and rejected it. The authorities being used are the same ones that were relied upon by D1 in opposing the earlier application by APL in L.207 and L.390). D1 did not appeal both decisions.

Particularisation had been made contrary to D1’s allegations. The invoices must be read with the reports filed with affidavits served on all parties.

The Court must reject the repeated baseless allegations of excessiveness without proper basis, as it did in L.207 and 140 L.390:

The court rejected D1's position that the matter should be referred to the Registrar for examination in L.207 and L.309. Applying res judicata to arrest such a baseless argument being regurgitated in L.447 is appropriate.

Similar allegations of excessiveness are unsupported, as in L.207 and L.309, which the Court rejected. D1 cannot repeat them (res judicata) in L.447.

Also, a similar baseless allegation of duplicity in charges between Administrator Pendente Lite and the solicitor had been raised earlier 150 and rejected by the Court. Any fees between the solicitor and the Administrator and the solicitor are governed by the Legal Profession Act 1976. D1 is not the person who determines the appropriateness of the professional fees. It is for the Court to decide.

The alleged ‘depletion’ in the value of the deceased’s estate or that it 155 is “not in its interest” is baseless since the estate administration is not on a gratis and will basis, which will necessarily incur costs and expenses.

The Court must take cognisance that D1 himself caused many of the matters that required legal services and the Administrator’s 160 services. Therefore, APL asks that L.447 be allowed with costs against D1. THE LAW 165 [6] Probate & Administration Act 1959 In a nutshell:

6.1 Section 19 Letters of Administration Pendente Lite “Pending any probate action, letters of administration may be granted to such person as the Court may appoint. Limited so that the administrator shall not be 170 empowered to distribute the estate and shall subject to such control and direction of the Court, as the Court deems fit; and subject to that limitation, the administrator so appointed shall have all the rights and powers of a general administrator.”

6.2 The appointment of an Administrator Pendente Lite ensures that the 175 deceased’s estate is properly managed and preserved for those entitled to it based on the outcome of the Court proceeding.

6.3 Pending any Probate Action is defined in s.2. It refers to any matter in which a petition for probate or administration is contested (that requires reference to a Judge under O.71 r.38(I) RC 2012, as well 180 as to an application for amendment or revocation (see also O.71 r.36 RC 2012.

6.4 The Court of Appeal in Fatimah Bee Alias Batcha Ammal v Mohideen Batcha Attorney of Shaik Dawood [1946] MLJ 112, CA reversed the decision of the lower court in Mohideen Batcha v 185 Fatimah Bee Alias Batcha Ammal [1947] MLJ 10 and held that there was a pending action as a contentious suit had commenced, as soon as an appearance had been entered in answer to a warning of a caveat.

6.5 Administration pending trial (O 72 r 20) RC 2012 190

An application under section 19 of the Probate and Administration Act 1959 for the grant of administration may be made to the Registrar by writ.

An administrator to whom a grant is made under section 19 of the Act must, at the time when he begins proceedings for taxation of his costs, or at such 195 other time as the Registrar may direct, produce at the Registry an account (verified by affidavit) of the money and other property received or paid or otherwise dealt with by him in his capacity as an administrator.

Unless the Court otherwise directs, the account shall be referred to the Registrar for examination, and the Registrar shall give such directions as 200 may be necessary for the examination of the administrator’s costs.

Except where the remuneration of the administrator has been fixed by a Judge, the Registrar shall, on the completion of the examination of the administrator’s account and taxation of his costs, assess and provide for the administrator’s remuneration. 205 IN SHORT:

6.6 An application for a grant of administration Pendente Lite may be made to the registrar by writ: Oh Jin Ghee v Abdul Hamid [1952] MLJ 108. Whilst proceeding for taxation of his costs or as the 210 Registrar directs, the administrator must produce at the Registry an account, verified by an affidavit, of all the moneys and property dealt with in his capacity as an administrator. The registrar shall assess and provide for the administrator’s remuneration accordingly unless the judge has already fixed such remuneration: O.72 r.20(4) RC 215 2012.

6.7 An administrator pending suit may be sued like a general administrator whilst his functions continue: Re Toleman, Westwood v Booker [1897] 1 Ch 866, 66 LJ Ch 452.

6.8 His functions commence from the order appointing him and 220 continue until the final decree in the action, not until the grant has passed the seal: Taylor v Taylor (1881) 6 PD 29, 50 LJP 45. FINDINGS [7] I have duly considered the relevant cause papers on L.447 and the 225 parties' respective submissions in canvassing for their position in the present suit. By and large, I am unpersuaded by D1's position in objecting to APL's application for approval of the Invoice.

7.1 I have reviewed the cause papers on L.207 and L.309 concerning the APL’s application for approval of his professional charges. As 230 the APL pointed out, similar arguments are present in objecting to L.207 and L.309 as with the present L.447 by D1, which the Court rejected and approved the invoices therein.

7.2 It is my judgment that D1's objection lacks merit and is undeserving of further consideration. From the facts, I agree with the APL that D1 235 himself caused several matters that needed legal services and the Administrator’s services.

7.3 I refer to the APL’s affidavit in support at L.448, where the APL via the exhibit “LTH-2” has listed and itemised under:

Professional Fees for work done (21 items altogether) as APL 240 and quoted RM201,180.00.

(ii) Out of pocket expenses at RM4,475.32 where the APL has itemised, I stated here in brief, for courier & postage expenses, travelling expenses, printing, telecommunication including fax, company search, storage and miscellaneous (for commissioner 245 of oath, stamp, SSM filling. It is noted that the APL did not claim for accommodation; and

(iii) Invoice from the solicitor for APL with SST (6%) at RM365,700.00 which was itemised in detail as per the solicitor’s invoice dated 16.10.2023 for seven (7) Court’s Proceedings/ 250 cases, altogether.

7.4 I believe, the amount claimed by the APL is for a year’s work administering a vast asset of the late Tan Kim Choo @ Tan Kim Choon [refer to L.6, Schedule A (13 landed assets) and Schedule B (12 bank accounts local and overseas), is reasonable, not excessive 255 and neither exorbitant. As for the solicitor’s fees for APL, as rightly pointed out by the learned counsel any fees between the solicitor and the APL are governed by the Legal Profession Act 1976 and the professional fees are reasonable and is proper. It is to be reminded that the work by the said APL is not “on a gratis and will basis” and 260 all his expenses are viewed and approved by the Court. The Court notes it, that D1 himself caused many of the matters that needed legal services and the APL’s services and he cannot now claim that the APL’s fees are depleting the assets of the estate. 265 [8] From D1's repetitive arguments, I find no legitimate cause in D1’s objection. The APL (a chartered accountant) and the solicitor are both professionals who are aware of their duty to this Court and I have no ground to suspect them. At the same time, I have also examined, gone through the said invoices, and I find it reasonable and well supported by 270 documentations and therefore I hold it unnecessary to refer the APL’s account to the Registrar for examination. CONCLUSION [9] All things considered, based on the facts, all-cause papers, and 275 written and oral arguments of respective counsels, I find that enclosure 447, the APL’s fees for a year’s work, is reasonable in the circumstances and costs of RM7,000 is awarded against D1, payable to the APL within 30 days from the date of this Order. Dated 04.04.2024. 280 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA 285 KUALA LUMPUR PARTIES Renu Zechariah 290 Messrs Rosley Zechariah Counsel for the Administrator Pendente Lite (APL) Dinesh Athinarayanan, together with Khor Sher Ren Messrs Azri, Lee Swee Seng & Co. 295 Counsels for the First Defendant Sarah Arina Hashimarime Messrs Tuan. Mohd Zain & Co. Counsel for Third and Fourth Defendant 300