JA-24-8-08/2019
High Court of Malaysia10 Dec 2019
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“aintiff to the Defendant, the December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 4 Defendant issued a Statutory Notice pursuant to section 466(1)(a). Companies Act 2015 to the Plaintiff, giving the Plaintiff a 21 days period from the date of receipt of the Notice pursuant to”
“word is a good as gold. December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 9 [25] The issue of the ramifications of the notice under section 466 (1) Company Act is not for this Court to consider in deciding both Enclosures (1) and (4). [26] This Court, ruled that a debt of R”
“hat he consented to the Consent Judgment after having explained and understood the Consent Judgment by the Counsel (Mr Sivasankar) [11] This Court is entitle to take judicial notice under section 57 Evidence Act 1950, of proceedings in Courts in Malaysia, even more so when it is before this Court. [12] In fact, the min”
“nt to Enclosure 4 with cost. [22] Hence, since I found that there was such a bill which was given more than a month before Notice under section 466(1) Companies Act 2015. [23] Since, Section 124(1) Legal Profession Act has been complied with, then after a full month is over, Section 124(2) of the Act comes into operati”
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1
This is an application by the Plaintiff (Enclosure 1) pursuant to Order 9 Rule 1, Rules of Court 2012 seeking the following prayers. a) that Messrs G. Ravi is estopped from filing a winding up petition against the Plaintiff (Company Registration Number 780513-V) that is premised on a Statutory Notice dated 24/7/2019. b) The cost of the Originating Summon is to be borne by the Plaintiff. c) Any other reliefs that the Court deems just and fit
2
On the other hand, the Defendant filed an application (Enclosure 4) pursuant to Order 18 Rules 19 (1)(a) Rules of Court 2012 for the following orders. a) The Originating Summon (ex parte) date 7/8/2018 (Enclosure 1) be struck out. b) All other proceedings in this action is to be stayed pending the final determination of their application. c) any other orders that is deemed fit and proper by the Court. December 10, 2019
3
Mr Lee Wei Shooi, is a Director in the Plaintiff’s Board of Directors and has obtained the services of Messrs Lau Kok Guan Liana & Kuan on 2/2/2019 as the Plaintiff’s Solicitors and to act for the Plaintiff in an action between the Plaintiff v. Manjong Bio Ocean Sdn Bhd (Reference No.JA-22NCC-57-12/2018). Messrs Lau Kok Kuan, Liana & Kuan then engaged Mr. G. Ravi, a partner practising under the name of Messrs G. Ravi as a counsel for the Plaintiff.
4
In the proceedings that follow, the Plaintiff filed a Notice for the Change of Solicitors from Messrs Lau Kok Kuan, Liana & Kuan to Messrs G.Ravi vide Enclosure 26 of the case JA-22NCC-57- 12/2018 (1st case). The case was heard before this Court. In that action, the Plaintiff (1st case) entered into a consent judgment with the Defendant of the first case i.e JA-22NCC-57- 12/2018 (1st case).
5
During the proceedings in the 1st case when the Consent Order was entered, Mr. Lee Wei Shooi was present and gave, on oath, his consent for the consent order (for the 1st case) to be entered between parties. Mr C. Sivasankar from Messrs G Ravi was present and there was no complaint by Mr Lee against the presence of Mr C Sivasankar or Messrs G Ravi.
6
Following that, the Defendant issued a bill of cost to the sum of RM69,500.00 to the Plaintiff on 25/5/2019. However, since no payment was forthcoming from the Plaintiff to the Defendant, the December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 4 Defendant issued a Statutory Notice pursuant to section 466(1)(a). Companies Act 2015 to the Plaintiff, giving the Plaintiff a 21 days period from the date of receipt of the Notice pursuant to section 466(1)(a) (“the Said Notice”) to make good the payment demanded, failing which the Defendant will initiate a winding up proceeding against the Plaintiff.
7
As against the issuance of the said Notice, the Plaintiff now seeks a Fortuna Injunction against the Defendant to prevent the Defendant from initiating such proceedings.
8
The issues before this Court are as follows: i. whether the Defendant was the Solicitors on record acting for the Plaintiff in the suit JA-22NCC-57-12/2018. ii. whether there is a debt due and payable to the Defendant by the Plaintiff amounting to RM69,500.00. iii. whether on the facts of circumstances of this case, a Fortuna Injunction is appropriate (Enclosure 1) or whether the application (Enclosure 4) to strike out Enclosure 1 is appropriate. i. Whether the Defendant was Solicitor on record acting for the Plaintiff in the suit JA-22NCC-57-12/2018.
9
After perusing over the affidavits and exhibit by all parties, I found in Enclosure 6 which is the affidavit-in-reply of the Defendant December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 5 affirmed by Mr. Ravichantiran Ganesan and found at paragraph 10 of the averments which states that on 7/5/2019 there was a Notice of Change of Solicitors which was Enclosure No. 26 of Suit JA-22NCC-57-12/2018 (the 1st suit).
10
Further, before this Court when the Consent was entered between the Plaintiff (also Plaintiff in JA-22NCC-57-12/2018). The Director of the Company (Mr. Lee Wei Shooi) was present on 22/7/2019 and he affirmed on oath that he consented to the Consent Judgment after having explained and understood the Consent Judgment by the Counsel (Mr Sivasankar)
11
This Court is entitle to take judicial notice under section 57 Evidence Act 1950, of proceedings in Courts in Malaysia, even more so when it is before this Court.
12
In fact, the minutes of proceedings reads as follows Enclosure 26 of Suit No. JA-22NCC-57-12/2018 is a notice that the Defendant as a Solicitors firm now acts on behalf of the Plaintiff in our present case (also the Plaintiff in the 1st suit) replacing Tetuan Lau Kok Guan, Liana & Kuan.
13
This Notice of Change of Solicitor was made pursuant to Order 64 Rule 1, Rules of Court 2012.
14
I have scrutinised the Enclosure 26 and found it to be valid and good in law. I do not think that I may, after finding Enclosure 26 good in law and valid, choose to ignore it when the Enclosure 26 was further supported by Mr. Lee Wei Shooi, who was personally December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 6 present and by his conduct, as a Managing Director of the Plaintiff (a Company), that the Plaintiff recognised the Defendant as its Solicitors in the 1st suit. Denying the obvious is akin to hiding behind a blanket and say that the sun has not arisen at 12 noon!
15
I therefore, ruled that the Defendant was indeed the Solicitors for the Plaintiff in the 1st suit (who is incidentally, also the Plaintiff in the instant case). ii. Whether there is a debt due and payable to the Defendant by the Plaintiff amounting to RM69,500.00
16
Having ruled that the Defendant was the Solicitors on record for the Plaintiff in the 1st suit ( who are the Plaintiff in our instant case), I now look at the conduct at paragraph 6.
17
I have perused over all the Cause Papers and found that no bills was exhibited by either party.
18
However, the Plaintiff admitted that they did receive the bill for the services rendered but refused to pay on account that they do not recognised the Defendant as their Solicitors in the earlier Suit.
19
Based on NG HEE THONG & ANOR v. PUBLIC BANK BERHAD [1995] 1 CLJ 609, it was held that “It is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 7 issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted.” Hence since there is no averment to the contrary, I find that there it was not denied that invoices / bill were issued to the Plaintiff by the Defendant in respect of the services rendered in the earlier Suit. iii. whether in the facts of circumstances of this case a Fortuna Injunction is appropriate (Enclosure 1) or whether the application (Enclosure 4) to strike out Enclosure 1 is appropriate.
20
This Court has earlier ruled that the Plaintiff owed the Defendant to the sum of RM69,500.00. I find no reason to grant a Fortuna Injunction (Enclosure 1).
21
I allow the striking out against Enclosure 1 pursuant to Enclosure 4 with cost.
22
Hence, since I found that there was such a bill which was given more than a month before Notice under section 466(1) Companies Act 2015.
23
Since, Section 124(1) Legal Profession Act has been complied with, then after a full month is over, Section 124(2) of the Act comes into operation. 124 No advocate and solicitor to sue for costs until delivery of bill of cost December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 8
1
Except as authorized by this Act, no advocate and solicitor shall without the leave of the court commence or maintain any action for the recovery of any costs due for any business done by him until the expiration of one month after he has delivered to the party to be charged therewith, or sent by post to, or left with him at, his office or place of business, dwelling house or last known place of abode, a bill of costs, which bill shall be signed either by the advocate and solicitor, or in the case of a partnership, by any of the partners, either with his own name or with the name or style of the partnership, or by another advocate and solicitor employed by the first-named advocate and solicitor or the partnership, or be enclosed in or accompanied by a letter, signed in the like manner, referring to the bill.
2
Where a bill is proved to have been delivered in compliance with subsection (1) it shall not be necessary in the first instance for the advocate and solicitor to prove the contents of the bill and it shall be presumed until the contrary is shown to be a bill bona fide complying with this Act. [24] This presumption under section 124(2) Legal Profession Act has many purposes, among others : a. it treats Advocates and Solicitor on a different plane as compared to other professions. b. It spare the Solicitors the cumbersome process of Court proceedings possibly because they are, by the nature of the profession, part and parcel of Court process. c. Advocates and solicitors are expected to display the highest standards of ethics and etiquettes and hence their word is a good as gold. December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 9 [25] The issue of the ramifications of the notice under section 466 (1) Company Act is not for this Court to consider in deciding both Enclosures (1) and (4). [26] This Court, ruled that a debt of RM69,500.00 has been made out against the Plaintiff by the Defendant. [27] Dated at Johor Bahru, in the State of Johore, this day the 10th December 2019. t.t AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Johor Bahru Johor Darul Ta’zim Curia Advisari Vult Counsels : For The Plaintiff : Allen Loh For The Defendant : Ravichanthiran a/l Ganesan Solicitors : Messrs Allen Loh & Co No.29-01, Jalan Setia Tropika 1/25 Taman Setia Tropika 81200 Johor Bahru. Johor. December 10, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya Bin Awang Mahmud 10 Messrs G Ravi No. 193, Level 1, Jalan Sutera, Taman Sentosa, 80150 Johor Bahru. Johor. Hearing Date : 30th September 2019. Decision Date : 10th December 2019.
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