Tetuan H T LIM & Partners v Teh Meng Teck (JA-12ANCvC-11-05/2024)

TEH MENG TECK

KEK YOKE PENG (NO. K/P:690518-01-5188) …RESPONDEN

This is an appeal against the decision of the learned Session Court Judge in granting enclosure 8 being an application by the Respondents (Defendants) to dismiss the suit registered as JA-A52NCVC-308-11/2023 (hereafter refers to as “suit 308”), filed by the appellant (lawyer Plaintiff HT Lim) against the Respondents. A. Background facts 18/12/2025 21:52:38 JA-12ANCvC-11-05/2024 Kand. 22 S/N niihNyUGoUCQhmuPr7hClw

The Respondents were named as the 2nd and 3rd Defendant respectively in suit 308 with one other known as Mr. Tay Kim Eng, was named as the 1st Defendant. The Respondents were sued by the lawyer Plaintiff HT Lim for failure to settle the lawyer Plaintiff HT Lim’s legal fees in which the lawyer Plaintiff HT Lim was engaged by the 1st Defendant to act for the 1st Defendant (as Plaintiff) in Guaman Sivil No. JA-22NCVC-219-12/2019. The legal fees, tabulated in the form of Bill of Cost is for a sum amounting to

The reason by the learned Session Court Judge in allowing enclosure 8 is that there was no privity of contract between the lawyer Plaintiff HT Lim and the Respondents as the ‘Warrant to Act’ in suit 219 (hereafter refers to as “WA”) was signed by the 1st Defendant. Neither the 2nd nor the 3rd Defendant, signed the said

The lawyer Plaintiff HT Lim contended that arising from the WA, the Defendants had agreed to pay the Plaintiff’s legal fees. Moreover, the Plaintiff contended that the 1st Defendant was updated of the status of suit 219 by the 2nd and 3rd Defendant. The 1st Defendant however, had failed to pay the Plaintiff its legal fees. This moved the Plaintiff to file suit 308 against all the Defendants.

Suit 219 was a suit involving a shophouse of the 1st Defendant at no.75 where the 1st Defendant (as Plaintiff in suit 219) contended S/N niihNyUGoUCQhmuPr7hClw she owned ½ share of the land whilst the other ½ share was owned by one deceased Teh Boon Ling. In suit 219, the 1st Defendant as Plaintiff, attempted to reclaim her ½ share that was transferred earlier to Teh Boon Ling on 13.1.2014.

The 2nd Defendant in suit 308 (son of deceased Teh Boon Ling) owns and runs his business at premise no.73 and no.75. The 1st Defendant (Plaintiff in suit 219) although earlier was the sole proprietor and owned this business, later withdrew herself from the business. The business was then registered to the 2nd Defendant (not a party in suit 219).

The 1st Defendant (Plaintiff in suit 219) made a claim against another Defendant in suit 219 (hereafter refers to as “the other Defendant”, also known as Teh Meng Chee). The other Defendant is the 2nd Defendant’s younger brother. The 2nd Defendant is the nephew of the 1st Defendant and the 3rd Defendant is the wife of the 2nd Defendant.

The 1st Defendant (Plaintiff in suit 219) alleged that there was undue influence and misrepresentation made by the deceased and the other Defendant to her. The said premise no. 73 and 75 were then transferred to the other Defendant based on the deceased’s will, upon the other Defendant obtaining a probate. S/N niihNyUGoUCQhmuPr7hClw

The lawyer Plaintiff HT Lim contended that as the 2nd Defendant’s mother and sister were potential witness in suit 219, the 2nd Defendant notified the lawyer Plaintiff HT Lim that the 2nd Defendant would be responsible for the payment of the legal fee in suit 219 of the Plaintiff (the 1st Defendant in suit 308).

Sine quo nan, the lawyer Plaintiff HT Lim contended that both the 2nd and 3rd Defendant were present during the meetings pertaining to the 1st Defendant’s suit. In fact, the cost for the legal service by the lawyer Plaintiff HT Lim was sought from the 2nd and 3rd Defendant and were paid by them.

The reasons for the 2nd and 3rd Defendant’s presence as explained by them were that the 1st Defendant is of old age (89 years old at the time of filing suit 308), a weak elderly, with vision and hearing problem and difficulty to walk.

The explanation offered by the 2nd and 3rd Defendant was in fact the observation noted by the learned Session Court Judge. One other reason for the 2nd and 3rd Defendant’s assistance (deposed in the Affidavit in Support to enclosure 8 “AIS”) is due to the 1st Defendant not one that is highly educated. S/N niihNyUGoUCQhmuPr7hClw

The lawyer Plaintiff HT Lim had maintained that he had carried out his tasks in accordance with the instruction obtained from the 1st, 2nd and 3rd Defendant. The 2nd and 3rd Defendant however in their AIS, deposed that they have obtained no interest in suit 219 except to help the 1st Defendant as he has no other child or next of kin to help him.

All the relevant actions taken by the lawyer Plaintiff HT Lim to defend the 1st Defendant’s interest in suit 219 such as filing of cause papers are reflected in the Detailed Bill of Cost dated 1.11.2022 for the said sum of RM116,202.35.

The learned Session Court Judge in allowing enclosure 8 concluded that there was no privity of contract between the lawyer Plaintiff HT Lim and the 2nd and 3rd Defendant as their presence was merely to assist the 1st Defendant due to the 1st Defendant’s old age and physical inability to be present physically except with the help from the other 2. C. Findings of the court

Thus, the 2 Defendants merely acted to relate whatever advice or instruction between the lawyer and the 1st Defendant as his client. The fact that the 2 Defendants were the ones who had brought the 1st Defendant to meet the lawyer Plaintiff HT Lim did not refute the S/N niihNyUGoUCQhmuPr7hClw other facts as observed by the trial Judge pertaining to the 1st Defendant’s fragile state.

The absence in the lawyer Plaintiff HT Lim’s pleading that there exists a contractual relationship between the lawyer Plaintiff HT Lim and the 2nd and 3rd Defendant, would only mean as found by the learned Session Court Judge that the presence of the 2nd and 3rd Defendant was only limited to assist and nothing more.

This, despite the request for the Plaintiff’s services were obtained from the 2nd and 3rd Defendant with payments also made by them both, but it was qualified as payment indeed was made on behalf of the 1st Defendant as the 1st Defendant was not familiar with online banking. This Court finds this, a reasonable explanation.

This can be seen from the invoices dated 28.10.2020, 14.4.2021 and 27.1.2022 exhibited as “KYP-1” were all directed to the 1st Defendant alone. The Bill of Cost exhibited as “KYP-2” sent subsequently by the lawyer Plaintiff HT Lim on 1.11.2022, however had named the 2nd and 3rd Defendant in it.

The lawyer Plaintiff HT Lim contended that the 2nd and 3rd Defendants are his clients as both the 2nd and 3rd Defendants have an interest to see that the 1st Defendant continues to be in possession of the ½ share of property number 75 in which the 2nd Defendant has his business in the other ½ share. This, however did S/N niihNyUGoUCQhmuPr7hClw not transpire in suit 219 as only the 1st Defendant was named as the Plaintiff.

Yet, to the contrary the learned Session Court Judge found the act by the lawyer Plaintiff HT Lim in naming the 2nd and 3rd Defendant in the Bill of Cost, is not a bona fide act and an afterthought. Most importantly, the finding by the learned Session Court Judge was arrived at based on the absence of any statement in the pleadings of the lawyer Plaintiff’s Statement of Claim to suggest any contractual relationship between the lawyer Plaintiff and the two Defendants.

Hence, even if there is a likelihood that the 2nd and 3rd Defendant have an interest to ensure the 1st Defendant remains in possession of the ½ share of premise no.75, by participating in conveying instructions to the lawyer Plaintiff, the lawyer Plaintiff had not made any request for the 2nd and 3rd Defendant to sign the WA.

The 2 Defendants were not approached by the lawyer Plaintiff to sign the WA. With the absence of any fact in the lawyer Plaintiff’s pleadings to suggest an existence of a contract between them, it is therefore not open to this Court to salvage this omission by the lawyer Plaintiff by allowing the expenses incurred by the lawyer Plaintiff be recovered in this suit 308. By doing so, would mean this Court viewed the availability or non, of a signed WA is of no relevance. S/N niihNyUGoUCQhmuPr7hClw

This omission could also be interpreted to the advantage of the 2 Defendants that the lawyer Plaintiff had rendered their presence was merely to assist the 1st Defendant and nothing more. This is added by the fact that the initial invoices exhibit “KYP-1” for the year commencing from 2020-2022 were issued on the 1st Defendant’s name only.

This appeal originated from suit 308. It is a suit filed by the lawyer Plaintiff for the non-payment by the 1st Defendant of the amount being the outstanding sum of his legal fees in suit 219. As a repetition, suit 219 was a suit by the 1st Defendant as Plaintiff. In suit 308, however the lawyer Plaintiff had named the 2nd and 3rd Defendant as parties, in addition to the 1st Defendant.

As rightly ruled by the learned Session Court Judge that there was no privity of contract existing between the lawyer Plaintiff and the other 2 Defendants in suit 219, it does not follow that they can now be named by the lawyer Plaintiff as Defendants in suit 308.

A WA that carries the names and signature of the 2 Defendants which is absent in suit 219, are crucial as a WA gives rise to a prima facie evidence of an agreement to a solicitor-client relationship existing between them.

Then the next question, if such relationship can be implied. In Gurbachan Singh s/o Bagawan Singh & Ors v. Vellasamy s/o S/N niihNyUGoUCQhmuPr7hClw Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals [2015] 1 CLJ 719; [2015] 1 MLJ 773, the Federal Court sparked a solicitor-client relationship based upon an implied retainer. His Lordship Richard Malanjum CJ (Sabah and Sarawak) (as His Lordship then was) observed at p 793: [36] A solicitor-client relationship may arise either:

by an express agreement between a solicitor and a client; or

where there is express assertion by a solicitor to act for the client; or

it may be implied.

Looking at all the above circumstances, this Court was of the view there was none. The 2nd and 3rd Defendant were not a party in suit 219, no pleadings by the lawyer Plaintiff in suit 308 to suggest either an express agreement or implied, seeking for the lawyer Plaintiff to act for the 2 Defendants which may give rise to an implied contractual relationship. Otherwise, this contention would have been made in the pleadings.

The 2nd and 3rd Defendant have blood relationship with all other parties named in suit 219 be it the Plaintiff (Tay Kim Eng) or the deceased (Teh Boon Ling), including the other Defendant (Teh Meng Chee named as 2nd Defendant in suit 219). The 2nd and 3rd Defendant therefore are at a cross road. S/N niihNyUGoUCQhmuPr7hClw

There is no misdirection on the part of the learned Session Court Judge in coming to her decision to allow enclosure 8. This Court having viewed the said Record of Appeal and having cross-referred the Grounds of Judgment of the learned Session Court Judge with the facts and exhibits presented, did not find the decision plainly wrong to justify an appellate intervention. For this reason, this appeal is dismissed. Sgnd (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA JOHOR BAHRU Dated 16th June 2025 Solicitors for the Appellant : Adrian a/l Jayaraj Paul Messrs Domnic Pragasam Tan & Co Respondent in Person : 1. Teh Meng Teck 2. Kek Yoke Peng S/N niihNyUGoUCQhmuPr7hClw