Ummi Marzita Binti Ahmad Marzuki v Zalil Bin Mohd Mess (Guaman No. WA-17D-23-08/2017)

that the Plaintiff had abused the court’s process since an application for an order of taxation under Section 126 and an order to tender the solicitor’s bill of cost under Section 130 of the Legal Profession Act 1976 must be commenced by way of a petition;

(ii) that the plaintiff’s application was filed beyond the time limit provided under Section 126 and Section 128 of the Legal Profession Act 1976;

(iii) that no leave was granted by the Honorable Court for the plaintiff to file such application in the OS;

(iv) that no notice was given by the plaintiff to the defendant to tax the cost as provided under Section 128 of the Legal Profession Act 1976;

that based on the Bills of Cost referred in the said OS, Order 59 Rule 17 (2) Rules of Court 2012 is not applicable; 3

(vi) that the plaintiff’s application to postpone Suit No. BA- 22NCVC-199-03/2017 is an abuse the court’s process and it is an attempt to confuse the Court; and

(vii) that this OS, filed in the Kuala Lumpur High Court is an abuse of process as the defendant’s business is located in Shah Alam, Selangor. [2] Having considered the defendant’s application and the submission of the parties, this court has dismissed the application with costs. The Salient Facts [3] At all material time, the plaintiff and her husband had appointed the defendant as their lawyer to attend to several legal matters:

to represent the plaintiff, her husband and 10 others in a

(ii) to prepare a Sale and Purchase Agreement for a property known as PN12765, Lot No. 381 Seksyen 87A, Bandar Kuala Lumpur, Daerah Kuala Lumpur, Wilayah Persekutuan between Magpa Properties Sdn. Bhd., the plaintiff and her husband; and

(iii) to prepare a shares and securities sales agreement and the supplementary agreement between the plaintiff, her husband and Exsim Development Sdn. Bhd. 4 [4] Consequential to the abovementioned legal works and services, the defendant had issued the bills of costs to the plaintiff’s husband’s name and served the same on the plaintiff’s husband. The said bills are:

Bill of cost in the sum of RM125,762.28 for the Civil Suit S6- 22-1352-2005;

(ii) Bill of cost in the sum of RM98,278.00 for preparation of the Sale and Purchase agreement with Magpa Properties Sdn Bhd;

(iii) Bill of cost in the sum of RM1,993,749.80 for the preparation of the share agreement with Exsim Development Sdn Bhd; and

(iv) Bill of cost in the sum of RM4,789.80 for the preparation of the supplementary agreement with Exsim Developement Sdn Bhd. [5] The plaintiff claimed that at all material time, the plaintiff’s husband had never consented to any of those bills of costs. [6] Thereafter, the plaintiff’s husband went to the defendant’s office to discuss on those bills of costs as the plaintiff contends that the bills are too high compared to the works done. However, the said discussion was not successful. 5 [7] Subsequently, the defendant served a notice of demand to the plaintiff to demand for amount of the bills of costs amounting to RM2,741,526.06. [8] Vide a letter dated 21.10.2016, the plaintiff informed the defendant that she is not agreeable with the amount in the bills of costs and asked for the details for the said bills of costs. [9] However, on 29.10.2016, the defendant served on the plaintiff an amended bill of costs by only inserting her name on the said bill of costs (the amended bill of costs). [10] Vide a letter dated 21.11.2016, the plaintiff and her husband again wrote to the defendant asking for the details of the bill of costs and stated that the plaintiff and her husband were never informed about the bills of costs orally nor was any quotation given to them regarding the bills of costs since the appointment of the defendant as their lawyer. [11] When the plaintiff did not make any payment for the Bills of costs, the defendant then filed an action under Suit No. BA-22NCVC- 199-03/2017 (Suit No. 199) to claim for the same. [12] Therefore, the plaintiff has filed this present action for the said impugned bills of costs to be taxed by the court. In this Originating Summons, the plaintiff is seeking the following prayers: 6

that the plaintiff be given leave to file this application;

(ii) that the plaintiff be given an extension of time to file this application;

(iii) that the defendant be directed to furnish the details of the bill of costs issued by the defendant to the plaintiff, which are as follows:

Bill of costs Ref. No. 3/ZMM/L-5019/2005 dated 30.12.2014 amounting to RM125,762.28;

Bill of costs Ref. No. 2/ZMM/CONV/ASB/2007 dated 30.12.2014 amounting to RM98,278.00;

Bill of costs Ref. No. 3/ZMM/CONV/ASB/2007 dated 30.12.2014 amounting to RM1,993,749.80; and

Bill of costs Ref. No. 1/ZMM/corp/ASBMH/2013 dated 30.12.2014 amounting RM4,789.80. (the “bills of costs”) pursuant to Order 59 Rule 17(2) ROC 2012 within 30 days from the date of judgment.

(iv) That all the above bill of costs be referred to the court to be taxed;

That the plaintiff agreed to pay the defendant the sum that will be taxed by the court; and 7

(vi) That the defendant’s action filed under Suit No. BA- 22NCVC-199-03/2017 to claim a sum of RM2,371,658.05 under the amended bill of costs be stayed pending the taxation of the above bill of costs by the court. Findings of the Court [13] The Federal Court in SIM KIE CHON v SUPERINTENDENT OF PUDU PRISON & ORS (1985) 2 MLJ 385 at page 386 held: “The principle governing the striking out of pleadings is clear in that it is only in plain and obvious cases that recourse should be had to the summary process under O. 18 r. 19 of the Rules of the High Court 1980: the summary procedure under this rule can only be adopted when it can be seen that a claim or answer is on the face of it ‘obviously unsustainable’.” [14] This view was reiterated by the Federal Court in BANDAR BUILDER SDN. BHD V UNITED MALAYAN BANKING CORPORATION BHD (1993) 3 MLJ 36 at page 43 held: “The principles upon which the courts act in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’.” 8 [15] Having considered the defendant’s application, I am of the considered opinion that the plaintiff’s application cannot be said to be obviously unsustainable. [16] On the defendant’s contention that the plaintiff’s application for the taxation of bills of costs pursuant to S. 126 and S.130 of the Legal Profession Act 1976 (the “LPA 1976”) must be filed by way of petition, I am of the considered opinion that under the ROC 2012, an action may be commenced by a writ or an Originating Summons. Since, the cases on bills of cost do not involve disputed facts, it is only proper that the plaintiff filed an Originating Summons. As such, it cannot be said that the plaintiff’s application, which was commenced by way of an Originating Summons was an abuse of court’s process. [17] On the issue that the plaintiff’s action was filed out of time, as section.126 of the LPA 1976 requires the application to be filed within 6 months from the receipt of the said bills, the plaintiff has also filed an application for an extension of time. [18] With regards to the issue of notice for taxation and the non-contentious bills, these issues involve facts which can only be considered at the substantive stage. [19] With regards to the issue of multiplicity of action, as the defendant had filed a writ in the Shah Alam High Court over the same bills of cost, I am of the considered opinion that this application is for the taxation of the bills of costs and it is only fair that the plaintiff can have access to the details of the charges. 9 [20] In the premise, the defendant’s application is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 16th March 2018 For the Appellant : Dayang Noor Ailani Messrs Zulpadli & Edham Kuala Lumpur. For the Respondent : Farah Bt Helmy Messrs Zalil Mohd & Partners Shah Alam, Selangor. Cases referred:

SIM KIE CHON v SUPERINTENDENT OF PUDU PRISON & ORS

2 MLJ 385.

BANDAR BUILDER SDN. BHD V UNITED MALAYAN BANKING