Ummi Marzita Binti Ahmad Marzuki v Zalil Bin Mohd Mess (WA-17D-23-08/2017)

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 3

(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. [2] Having considered the application and the submission of the parties, this court has allowed 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 suit

(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] Consequential to the abovementioned legal works and services, the defendant had issued the bills of costs issued to the plaintiff‟s husband‟s name and served the same on the plaintiff‟s husband. The said bills are: 4

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. [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 sum in the bills of costs and asked for the details for the bills of costs. 5 [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. [13] The defendant‟s application to strike out the plaintiff‟s Originating Summons has been dismissed with costs. The Findings of the Court [14] The first issue raised by the defendant is that there is a multiplicity of action, as the defendant had filed a suit in Shah Alam, vide BA- 22NCVC-199-03/2017. However, this issue was already raised by the defendant in the defendant‟s application to strike out the plaintiff‟s 6 Originating Summons. The defendant‟s application was dismissed by this Court and the decision was affirmed by the Court of Appeal. As such, the issue of multiplicity of action is redundant. [15] The next issue raised by the defendant is that the plaintiff‟s Originating Summons was filed out of time as section 126(1) of the Legal Profession Act 1976 (“LPA 1976”), which provides that an application for taxation of the bill may be made within 6 months from the delivery of the bill. In the present case, since the bill was served on the plaintiff on 29.10.2016, the 6-month period has lapsed, as this application was only filed on 2.8.2017. [16] However, the plaintiff also relied on section 128 of the LPA 1976, which reads: “(1) After the expiration of six months from the delivery of a bill of costs, or after payment of the bill of costs, no order shall be made for taxation of a solicitor’s bill of costs, except upon the notice to the advocates and solicitors and under special circumstances to be proved to the satisfaction of the Court.

No such order for taxation shall in any event be made after the expiry of one year from the delivery of the bill of costs.” [17] In the present case, even though this application was filed after the expiration of 6 months, the application was still filed with one year from the delivery of the bill. Added to that, notice was also given to the defendant vide a letter dated 21.11.2016 that the plaintiff was not 7 agreeable to the said bills. Therefore, the next issue is whether there are any special circumstances that warranted this court to grant this application. [18] This issue on special circumstances was considered by the Court of Appeal in Tan Tek Sin & Anor v Tetuan Hayati & Assoc (sued as a firm) [2015] 2 MLJ 1, where the Court made the following findings: “[30] Applying the principles from the authorities that we have adverted to earlier, the most important question which we must now ask is whether there were special circumstances in the present case which would require the exercise of the court's inherent jurisdiction to grant an order to compel the defendant to prepare a detailed bill of costs even if more than one year had lapsed since the delivery of the bill to the plaintiffs. [31] In this regard, we have read with care the judgment of Mohamed Dzaiddin J in Phuah Choon Hwang & Ors v. Hassan & Kong Yeam. In our view, it was implicit within the judgment of that case that the contention of the petitioners that the bills involved were "oppressively" excessive had lent credence to the existence of special circumstances that warrant the intervention of the court under its inherent jurisdiction. In the Singaporean Court of Appeal case of Haw Par Brothers International Ltd v. Harry Lee Wee [1980] 1 LNS 26; [1980] 2 MLJ 8, it was held that where a solicitor's bill did not have specific sums shown against each item as detailed, itemised or narrated within the bill, but rather a 8 final lump sum figure shown to represent the costs of all the items, would in itself, constitutes special circumstances for the exercise of the court's discretion to order for the bill to be taxed.” (emphasis added) [19] In the present case, in respect of bill of cost in the sum of RM125,762.28 for the civil suit S6-22-1352-2005, the charges are for, inter alia, “..fee professional kami dalam menfailkan Saman Dalam Kamar untuk membatalkan Writ Saman di bawah Aturan 18 Kaedah 19 Kaedah Mahkamah Tinggi…” [20] In respect of the above bill, the defendant states that there was a „Surat Perlantikan Peguam‟ dated 4.1.2006, where the parties have agreed to the fee of RM120,000.00. However, the sum stated therein was disputed by the plaintiff, as she said that the figure therein was not agreed by the plaintiff when she sign the said „Surat Perlantikan Peguam’. This averment by the plaintiff was not disputed by the defendant. (Ng Hee Thoong & Anor v. Public Bank Bhd. [1995] 1 CLJ 609). Added to that, the fees charged is only in respect of an application to strike out the writ, but subsequently the parties have entered into a consent order. Therefore, I am of the considered opinion that the sum claim is grossly excessive which would be a special circumstance that warrants the court to order the bill to be taxed. 9 [21] In respect of the bill of cost in the sum of RM98,278.00 for preparation of the Sale and Purchase agreement with Magpa Properties Sdn Bhd, an amount of RM89,450.00 was charged. [22] In respect of the bill of cost in the sum of RM1,993,749.80 for the preparation of the share agreement with Exsim Development Sdn Bhd, there were no details in the said bill other than the preparation of the share agreement. [23] In respect of the bill of cost in the sum of RM4,789.80 for the preparation of the supplementary agreement with Exsim Development Sdn Bhd, there were no details in the said bill other than the preparation of the share agreement. [24] All the above bills are pertaining to the preparation of the respective agreements. In view of the oppressive amount claimed by the defendant for the preparation of the agreements, I am of the considered opinion that this would amount to a special circumstance that warrants the court to order the bill to be taxed. Conclusion [25] Premised on the reasons enumerated above, I find that there is merit in the application and the same is allowed with costs. 10 (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appelliate and Special Powers Division 2) KUALA LUMPUR Dated: 8 May 2019 Counsels/Solicitors for the Plaintiff Dayang Noor Ailani Binti Puyungan Razali [Tetuan Zulpadli & Edham, Kuala Lumpur] Counsels/Solicitors for the Defendants Farah Binti Helmi [Tetuan Zalil Mohd & Partners] REFERENCES: 1) Tan Tek Sin & Anor v Tetuan Hayati & Assoc (sued as a firm) [2015] 2 MLJ 1 2) Phuah Choon Hwang & Ors v. Hassan & Kong Yeam 3) Haw Par Brothers International Ltd v. Harry Lee Wee [1980] 1 LNS 26; [1980] 2 MLJ 8 4) Ng Hee Thoong & Anor v. Public Bank Bhd. [1995] 1 CLJ 609