DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN SIVIL NO.: 11ANCVC-44-08/2016 ANTARA

Transcription

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN SIVIL NO.: 11ANCVC-44-08/2016 ANTARA YEOH LIANG CHUAN (No. K/P: ). PERAYU DAN JAGJIT SINGH (mendakwa sebagai pemilik tunggal Tetuan Jagjit Singh & Co).RESPONDEN DALAM PERKARA GUAMAN NO: BA-72-NCVC /2016 DALAM MAHKAMAH MAGISTRET SHAH ALAM DI NEGERI SELANGOR DARUL EHSAN ANTARA JAGJIT SINGH (mendakwa sebagai pemilik tunggal Tetuan Jagjit Singh & Co) DAN.RESPONDEN YEOH LIANG CHUAN (No. K/P: ). PERAYU 1

2 GROUNDS OF JUDGMENT Heard on 8 May 2017 Introduction [1] This is an application by the Appellant for: (a) an Extension of Time (EOT) (until the date of ) to file the Appeal Record; and (b) be given leave to tender fresh evidence at this appeal by filing an Additional Appeal Record to enclose one official receipt of the Respondent dated for the sum of RM5, [2] The Appellant who was initially self-represented had filed its Notice of Appeal within time but delayed in filing its Appeal Record by 12 days as affirmed in its Affidavit of [3] The parties, in this judgment, will be known as the Plaintiff, who was the Respondent and the Defendant, who was the Appellant. 2

3 Facts [4] The Defendant was sued by the Plaintiff who is a senior lawyer and sole proprietor of Tetuan Jagjit Singh & Co., for the sum of RM53, being the alleged balance legal fees due to the Plaintiff's firm for acting for the Defendant with regards to Defendant's Petition for Divorce (Kuala Lumpur High Court Petition No. 58/ ) (paragraph 5 of Plaintiff s Statement of Claim, page 24 of the Appeal Record). [5] The Defendant claimed that the Defendant had initially engaged another legal firm by the name of Tetuan Nazrin Nasir T. Anandan & Go to file the Petition for Divorce in However, subsequently, Mr. Anandan had a heart attack and another legal firm, namely Lai Yoong Rita & Co was appointed by the Defendant to replace Tetuan Nazrin Nasir. [6] The Defendant, sometime in 2004 appointed the Plaintiff to take over the handling of the Petition for Divorce when Ms. Rita decided to migrate to Australia. 3

4 [7] According to the Defendant, when the Plaintiff was engaged, the agreed total fee was RM 6,500. An initial sum of RM1, was paid on (Receipt No.7110) and the balance sum of RM 5, was paid on ( Receipt No. 7453) as full settlement. [8] The Plaintiff denied that the payment of RM5,000 after the payment of RM1,500 was a full settlement and averred that the Petition for Divorce proceedings took 7 years (from ) (paragraph 14, page 5 of Plaintiff s Submission In Reply) and had explained the details as in the invoice No. A387/8/02 dated which is the basis of Plaintiff s claim at the Magistrates Court. [9] The Defendant claimed that when the Plaintiff received the sum of RM 5,000.00, he issued an Official Receipt No (Exhibit Y-3) as exhibited in the Affidavit of Yeoh Liang Chuan affirmed on where the Plaintiff's legal firms Official Receipt No stated that the sum of RM 5, paid was in "full and final settlement of all legal fees and disbursements". The Plaintiff claimed that the invoice for the RM5,000 was issued on after the Petition for Divorce case was completed 4

5 and till today the Defendant failed to pay the balance of the legal fees of the Plaintiff. [10] The Plaintiff had sued the Defendant at the Magistrates Court Shah Alam on and the Plaintiff obtained a Judgment in Default of Appearance dated The Defendant claimed that he applied to set aside the Judgment in Default but failed as he was unable at that time to locate the said Official Receipt issued by the Plaintiff on The Magistrate Court at Shah Alam dismissed the Defendant s application to set aside the JID on [11] The Defendant claimed that he filed a Notice of Appeal within time on and served on the Defendant s solicitors Messrs Akberdin & Co by letter of but having not heard from them, served again the Notice of Appeal on [12] The Defendant claimed that when the Defendant filed this application for EOT to file the Appeal Record and to introduce fresh evidence only then the Plaintiff for the first time complained that he did not receive the defendant s letter of

6 Defendant s Submission [13] The learned counsel for the Defendant submitted that the grounds for this Application are as stated at paragraphs 1-11 of the said Notice of Application and adopting the Affidavit of the Defendant, Yeoh Liang Chuan affirmed on and on [14] The Defendant s counsel submitted that the Defendant was acting in person until the counsel took over the matter recently and this was explained in the Defendant s Affidavit affirmed on as to why the Appeal Record was filed 12 days late where at the case management on , the date to be filed, the Defendant thought that the appeal record is to be filed in the next case management on The Defendant s counsel asserted that at the case management of , the Plaintiff s counsel was also not present. It was also submitted that when the Defendant engaged the counsel in mid-september 2016, upon the counsel s advice, the Defendant filed the Appeal Record on [15] The Defendant contended that if there was a delay in serving the Notice of Appeal to the Plaintiff s counsel, the Plaintiff s counsel should 6

7 have informed the Defendant and therefore the Plaintiff had waived his right to allege late service and is estopped from raising preliminary objection. [16] The Defendant s counsel submitted that the application made where there was no trial, is an interlocutory appeal and under Order 55 rule 5 of the Rules of Court 2012 (ROC 2012), the Defendant had complied as the requirement to serve the Notice of Appeal within 14 days is not mandatory for interlocutory appeals and relied on the ROC 2012 An Annotation Vol 2 at page [17] The Defendant s counsel contended that there is nothing wrong in seeking two prayers in one application as the first prayer is for EOT to file the Record of Appeal and if this Court grants that application, the counsel for Defendant will seek an Order for the introduction of fresh evidence under the second prayer. The counsel submitted that in seeking two prayers in one application will save Court s time and if there is a need to file separate application to introduce fresh evidence, counsel is prepared to withdraw the second prayer with liberty to file afresh. 7

8 [18] The Defendant s counsel also submitted Rule 17 and Rule 18 of the Legal Profession (Practice and Etiquette) Rules 1978: Finally, we rely on Rule 17 and Rule 18 of the Legal Profession (Practise and Etiquette) Rules 1978, which state as follows, and we quote: Rule 17: No Deception of the Court An Advocate and solicitor shall not practice any deception on the Court". Rule 18: Advocate and solicitor to conduct with candour, courtesy and fairness. The conduct of an advocate and solicitor before the court and in relation to other advocates and solicitors shall be characterized by candour, courtesy and fairness. [19] The counsel for the Defendant also relied on the English Court of Appeal case of Ladd v Marshall [1954] 3 All ER 745 and quoted Lord 8

9 Denning s three conditions in order to justify the reception of fresh evidence. [20] The counsel for the Defendant submitted that the official receipt No.7453 of the Respondent for RM5, was dated and it was difficult for Defendant to locate the receipts earlier as it had been more than 9 years and only found it. The counsel for the Defendant also submitted that the Plaintiff also failed to show its official receipts at the Magistrates Court. Plaintiff s Submission [21] The learned counsel for the Plaintiff submitted that the Defendant breached Order 32 rule 1 of the Rules of Court 2012 where each application in Chambers must be made b way of Notice of Application in the Form 57. It was contended that the Defendant s two applications of the Defendant was made in one Notice of Application when it should be filed separately, resulting in a defective application by the Defendant. [22] The Plaintiff s counsel submitted that not only the Appeal Record was delayed but the Notice of Appeal was delayed which should have been filed on but was filed on The Plaintiff s counsel submitted 9

10 that based on Order 55 rule 5(2) and (3) of the ROC 2012, it is a mandatory compliance for the Defendant. [23] The Plaintiff s counsel submitted that the defect cannot be cured under Order 2 of the ROC 2012 and relied on a number of cases namely the case of Dato Ahmad Sudin v Dato Ariffin Man [2014] 1 LNS 1434 which discussed extensively on the issue of Order 2 and the case of Mazni Ibrahim v Rosaidy Effandy [2013] 4 CLJ 453 that without the Appeal Record, the appeal is defective. [24] In relation to the application to introduce fresh evidence, the Plaintiff s counsel submitted that based on the detailed services rendered by the Plaintiff for the Defendant s Petition for Divorce proceedings at the Kuala Lumpur High Court, the divorce case had taken 7 years and it is illogical to consider RM5,000 for full settlement of the professional fees and the payment of RM5,000 made in 2006 also proved to show that the divorce proceeding was still ongoing. [25] The Plaintiff s counsel submitted that the Defendant never objected to the bill issued for the professional service rendered following section 121 of the Legal Professional Act 1976 which should be done within the three 10

11 months from the date of the delivery to the Defendant and therefore the Defendant had waived its right to object based on the case of Tan Kian Beng & Satu Lagi v Gan & Lim [2013] 10 CLJ 745. THE COURT S FINDING [26] After considering the submissions by both counsels, I allowed the appeal for EOT and dismiss the application for fresh evidence with liberty to file afresh. Although this Court retains the discretion to allow appeal albeit delay, it must be used sparingly and ultimately depends on the facts and circumstances of each case. Reverting to Defendant s factual background to his application, this Court finds that the Notice of Appeal was filed on (pages of Bundle of Cause Papers) and a copy was served on the Plaintiff s counsel on where proof of posting was tendered (page 63 of Bundle of Cause Papers). The Defendant again served on the Plaintiff s counsel on which was before the of the case management. The Plaintiff s Affidavit mentioned that its counsel did not appear on for the reason of not aware of the case management date as there was no appeal case number is not convincing as the letter of by the Defendant indicated the case number and its intention to 11

12 appeal. The Court takes the view that the Notice of Appeal was properly served: Amanah Merchant Bank Bhd v Lim Tow Choon [1994] 2 CLJ 1. [27] In relation to the Appeal Record delayed by 12 days, the Defendant admitted for the delay and explained his misunderstanding that the filing date was the second case management date and not on and that the Plaintiff s counsel was also not present on This Court exercises its discretion in allowing the application for EOT until to streamline with the time line for filing the Appeal Record where this Court finds that it will not be prejudicial to the Plaintiff. [28] In relation to the application to introduce one official receipt as fresh evidence, it is the discretion of the Court to admit fresh evidence. However, this Court viewed that both the two limbs of Order 55 rule 7 of ROC 2012 must be complied with which this Court finds that the Defendant failed on the second limb that is the fresh evidence, if true, would have had or would have been likely to have a determining influence upon the decision of the Subordinate Court. Based on the Defendant s Affidavit, this Court finds that there was no factual allegation for fresh evidence to be adduced where the Defendant did not produce any documentary evidence in relation to the final payment of the professional services rendered that is and 12

13 this Court rely on the case of Tetuan Tanjung Teras Sdn Bhd v Tetuan Syn Tai Hung Trading Sdn Bhd [2003] 4 MLJ 465. In addition, upon careful perusal of the receipts (pages of the Bundle of Cause Papers) where the same receipt was referred (receipt no. 7453) and the demand made by the Plaintiff to the Defendant (pages of the Bundle of Cause Papers), this Court finds that there is no true fresh evidence that will have an influence on the Defendant s case, this application must fail. [29] Based on the foregoing, this Court allowed the application for EOT with cost and dismissed the application to introduce fresh evidence with cost. Dated: 13 August 2017 (DATIN ZALITA BINTI DATO ZAIDAN) Judicial Commissioner Shah Alam High Court 13

14 COUNSEL FOR DEFENDANT/ APPELLANT: Messrs Y. S. Woo & Proctor B-1-3, Prima Avenue Klang Jalan Kota KS-1, Klang (Ref: GP/L/1734/16) Tel: Fax: COUNSEL FOR PLAINTIFF/ RESPONDENT: FARAHDINAH BINTI ABU BAKAR Tetuan Akberdin & Co No. AAG/6, Block D Tingkat Bawah, Jalan Plumbum AA7/AA, Pusat Komersial Seksyen 7, Shah Alam, Selangor (Ref: AK/L/3784/15 (Appeal)) Tel: /66 Fax: