Tetuan Najib Hisham Isa v Mohamed Basri bin Noor Mohamed (BA-17D-2-05/2024)

MOHAMED BASRI BIN NOOR MOHAMED (No K/P: 880627-26-5247)

NAFISAH BINTI ABDUL RAHMAN (No K/P: 681225-09-5044) ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosures 1 and 31)

Enclosure 1 is the Plaintiff’s application for recovery of legal fees due under an agreement for costs for contentious business done by the Plaintiff for the Defendants. The Plaintiff seeks payment of

After careful consideration of the cause papers and submission, this Court allowed the application in Enclosure 1 against only the First Defendant. This Court also dismissed Enclosure 31. The following are the reasons for the decision.

In the Plaintiff’s affidavit in support (Enclosure 2), Najib bin Zakaria averred that –

he is the sole proprietor of the Plaintiff;

(ii) the Defendants were investigated by the authorities for offences under section 420 Penal Code and 4(1) Anti-Money Laundering, Anti-Terrorism Financing and Proceeds Of Unlawful Activities Act 2001 (AMLA);

(iii) in the course of these investigations, several freezing orders were made in respect of the Defendants’ vehicles (Exhibit “NZ-1”);

(iv) the First Defendant appointed the Plaintiff to act for him and the 2nd Defendant, his mother vide a Warrant to Act and the Proposal for Legal Service dated 29.9.2022;

the First Defendant signed the written agreement agreeing to pay the Plaintiff RM1.6 million in legal fees (Exhibit “NZ-2”);

(vi) the First Defendant paid RM20,000.00 as deposit;

(vii) the Plaintiff attended when the First Defendant gave his statement to the police, wrote representation letters to the Attorney General’s Chambers (AGC) and filed cause papers to secure the release of the vehicles (which was later withdrawn on the First Defendant’s instructions);

(viii) at the First Defendant’s request, the fees were restructured wherein he gave an undertaking to pay the Plaintiff RM700,00.00 if the matters were resolved with either the Government of Malaysia or the complainant (Exhibit “NZ-4”);

(ix) as a result of several meetings with the authorities and the complainant, the Plaintiff secured a consent judgment between the First Defendant and the complainant in Suit No: BA-22 NCVC-387-09/2023 (Exhibit “NZ-5”);

on 13.3.2024, the Plaintiff billed the First Defendant for RM776,400.00 (Exhibit “NZ-6”); and

(xi) to date, the Defendants have yet to pay the bill.

In his affidavit in reply (Enclosure 20), the First Defendant averred that –

the Plaintiff was appointed to represent him and not the 2nd

(ii) there were other communications with the Plaintiff that payment of the fees was dependent on the facts and circumstances of the cases against him;

(iii) the fees were reduced to RM700,00.00 and only payable if he was able to recover 40% of his assets frozen by the authorities;

(iv) he had no knowledge of whom the Plaintiff met to resolve his problem because he was in discussion with the complainant;

the Plaintiff never showed him the draft copy of the consent judgment to get his consent to the terms contained therein whereby he was suffered losses beyond the claim by the complainant; and

(vi) he was dissatisfied with the Plaintiff’s work and that the claim was excessive.

In their affidavit in reply (Enclosure 21), the Plaintiff exhibited a copy of the representation letter dated 8.9.2022, sent to the AG’s Chambers on the First Defendant’s behalf. Chronology of proceedings

Enclosure 1 was filed on 7.5.2024. Although the Plaintiff filed an affidavit of service that the cause papers were served on the Defendants personally on 23.5.2024, there was some issue with service and they were directed to re-serve the papers.

The First Defendant filed his affidavit in reply on 21.10.2024. Despite directions for filing submissions, the First Defendant never filed any submissions for Enclosure 1.

On 20.2.2025, the First Defendant’s solicitor was allowed to withdraw from acting for him and at the First Defendant’s request, he was given ample time to appoint a new counsel. The 2nd Defendant was present on 20.2.2025 having just been served with the cause papers. She was unrepresented.

On the next date on 10.4.2025, both the Defendants did not attend Court. The First Defendant informed the Court that he was hospitalized. On the following date on 25.8.2025, the First Defendant appear in Court with a bandage wrapped around his head and produced a medical certificate for 2 days. He informed Court that he had appointed his new solicitor but they were not present. The 2nd Defendant was present but said nothing.

On 3.9.2025, Messrs Loh Vellu & Partners filed a notice of appointment to act for the Defendants. Solicitors attended Court on 4.9.2025 and asked that Enclosure 31, the Defendants’ application to convert the proceedings to a writ action be heard first. The parties were told in no uncertain terms that the Court was minded to proceed with Enclosure 1 expeditiously. Enclosures 1 and 31 were fixed to be heard together. Issue 1 - Did the 2nd Defendant appoint the Plaintiff

A perusal of all the documents exhibited by the Plaintiff clearly show that at all material times they were dealing only with the First Defendant. Although notices under AMLA were issued against the 2nd Defendant, there is no evidence to suggest that she appointed the Plaintiff to act for her.

In the absence of any supporting documents, this Court does not accept the Plaintiff’s arguments that the 2nd Defendant was the First Defendant’s nominee and the appointment for representation was for both of them. Issue 2 – can the Plaintiff enforce the agreement for their costs.

Enclosure 1 is premised on sections 116 and 118 Legal Profession Act 1976 (Act 166) which are reproduced here – “116. (1) Subject to any written law, an advocate and solicitor may make an agreement in writing with his client respecting the amount and manner of payment for the whole or any part of his costs in respect of contentious business done or to be done by such advocate and solicitor, either by a gross sum, or otherwise, and either at the same rate or at a greater or lesser rate than the rate at which he would otherwise be entitled to be remunerated.

Every such agreement shall be signed by the client and shall be subject to this Part.” and “118. (1) No action or suit shall be brought or instituted upon any agreement as is referred to in section 116, but every question respecting the validity or effect of any such agreement may be examined and determined, and the agreement may be enforced, varied or set aside by suit or action by summons, motion or petition by any person or the representatives of any person being a party to such agreement, or being alleged to be liable to pay, or being or claiming to be entitled to be paid the costs, fees, charges or disbursements in respect of which the agreement is made, by the Court in which the business or any part thereof was done, or a Judge of the Court, or, if the business was not done in any Court, then by the High Court or a Judge of the High Court.

Upon any such summons, motion or petition, if it appears to the Court or a Judge that such agreement is in all respects fair and reasonable between the parties, the agreement may be enforced by the Court or a Judge by rule or order, in the manner and subject to the conditions, if any, as to the costs of the summons, motion or petition as the Court or the Judge thinks fair and reasonable.

If the substantive terms of any agreement are deemed by the Court or the Judge to be unfair or unreasonable, the agreement may be declared void, and the Court or Judge may thereupon order the agreement to be given up for cancellation, and may direct the cost, fees, charges and disbursements incurred or chargeable in respect of the matters included therein to be taxed, in the same manner and according to the same rules as if the agreement has not been made: Provided that the Court or Judge may amend or ratify the agreement where not all the substance of the agreement is unfair or unreasonable.

The Court or the Judge may also make such order as to the costs relating to the summons, motion or petition and the proceedings thereon as to the Court or the Judge seems fair and reasonable.

When the amount agreed under such agreement has been paid by or on behalf of the client or by any person chargeable with or entitled to pay the same, any Court or a Judge having jurisdiction to examine and enforce the agreement may, on application by the person who has paid the amount within twelve months after payment and, if it appears to the Court or Judge that the special circumstances of the case require the agreement to be reopened, reopen the agreement and order the costs, fees, charges and disbursements to be taxed, and the whole or any portion of the amount received by the advocate and solicitor to be repaid by him, on such terms and conditions as to the Court or Judge seems fair and reasonable.

Where any agreement is made by the client in the capacity of guardian or of trustee under a deed or will, or of committee of any person or persons whose estate or property will be chargeable with the amount payable under the agreement or with any part of the amount, the agreement shall before such payment be laid before the Registrar for his examination and the Registrar may disallow any part thereof, or may require the direction of the Court or a Judge to be taken thereon by summons, motion or petition.

If in any such case:

the client pays the whole or any part of the amount payable under the agreement without the previous approval of the Registrar or the Court or the Judge, he shall be liable at any time to account to the person whose estate or property is charged with the amount paid, or with any part thereof, for the amount so charged; and

the advocate and solicitor accepts payment without such approval, any court which would have had jurisdiction to enforce the agreement may, if it thinks fair and reasonable, order him to refund the amount so received by him under the agreement or any part thereof.”

In the present case, the Plaintiff has produced contemporaneous documents that clearly evidenced there was a written agreement between the Plaintiff and First Defendant for the payment of RM1.6 million as fees (Exhibit “NZ-2” Enclosure 2). That fee structure was later renegotiated to RM700,000.00 and again reduced into writing (Exhibit “NZ-4” Enclosure 2).

Exhibit “NZ-4” offered 2 options; namely, a fee of RM700,00.00 if matters were resolved by way of settlement or RM1.6 million as agreed originally if matter resolved other than by settlement. In the present case the matter was resolved by way of settlement and the recording of the consent judgment.

Contrary to the First Defendant’s averments, the renegotiated fee was not subject to matters being resolved on a certain percentage in his favour. As against these documents, the First Defendant’s averments amount to bare denials.

This Court is satisfied that the First Defendant is liable for the fees he agreed to pay.

Enclosure 31 is the Defendants’ application to convert this application to a writ action and for case management directions under O.34 Rules of Court 2012 be given. The Defendants asked for a stay of Enclosure 1 and 4 pending the hearing of this application.

In his affidavit in support (Enclosure 32), the First Defendant averred that there were inconsistencies and contradictions in the affidavits and that this conflict would be best resolved by oral evidence given during a trial.

The First Defendant also referred to Civil Suit No: BA-22NCVC-254- 06/2025 (Suit 254) against the Plaintiff and others to set aside the consent judgment dated 27.12.2023 on the grounds of deceit and fraud.

The Plaintiff opposed the application on the grounds that it was merely a delay tactic on the part of the Defendants.

This Court finds that Enclosure 31 was filed at the 11th hour to counter Enclosure 1. The application has no substance. The issue in the Plaintiff’s application is for leave to enforce the agreement to pay their costs and is supported by contemporaneous documents.

As against that, the First Defendant’s response was a mere denial of the agreement, alleging conversations via Whatsapp regarding the terms for payment. The 2nd Defendant has remained silent.

Suit 254 filed the First Defendant to set aside the consent judgment on the grounds of fraud is still at its infancy. It is open to the First Defendant to amend his pleadings to seek a refund of the fees payable to the Plaintiff.

There is nothing to be gained by converting the Plaintiff’s action to a writ action other than to further delay this matter which was instituted almost a year and a half ago. This Court finds that application is nothing more than an abuse of process.

For these reasons, this Court allows the Plaintiff’s application in Enclosure 1 against the First Defendant and dismisses the same against the 2nd Defendant.

This Court grants the following orders –

the Plaintiff is given leave to enforce the agreement for payment of costs;

(ii) the First Defendant is directed to pay the Plaintiff the sum of RM776,400.00 as costs for legal services rendered with interest thereon at 5% per annum from 13.3.2024 till date of full and final settlement; and

(iii) costs.

Enclosure 31 is dismissed with costs.