Lee Heng Moy v Lau Keen Fai, 26-10-2010

• Judge: YA DATUK NURCHAYA ARSAD
• Judgment Date: 26 October 2010
• Court: High Court (Malaysia)
• Record Number: 22-90-2005

IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA

CIVIL SUIT NO: 22-90-2005

BETWEEN

LEE HENG MOY …… PLAINTIFF

AND

LAU KEEN FAI …….. DEFENDANT

GROUNDS OF JUDGEMENT

1. APPLICATION

This is defendant’s application under O18 R 19 to strike out plaintiff’s claim.

2. HELD

The application is allowed with no order as to cost.

3. FACTS

The plaintiff appointed defendant’s firm as her solicitor for sale and purchase and other lands transaction. However, the plaintiff alleged negligence on defendant’s part by failing to perform all the duty entrusted to him. Thus the plaintiff’s claim that the defendant.

1. To transfer all the title in plaintiff’s name

2. To hand over all the IDT in defendant’s possession to the plaintiff

3. To refund all fees that the plaintiff has previously paid and

4. To pay general damages.

4. FINDINGS

The plaintiff argued firstly is that there is delay for 2 years on part of the defendant in filling this application.

In the case of BLUE VALLEY PLANTATION BHD V PERIASAMY KUPPANNAN & ORS (2010) 4 CLJ 753 the court held that although the court may at any stage of proceedings make an order under O18 R19 … nevertheless, we do not think that the words ‘at any stage of the proceedings’ ‘ should be literally interpreted so as to mean that a party to a proceedings is at liberty to make the striking out application at any time he wishes however so late. We take the view that as a general rule the application must be made promptly and in any event it should not be allowed after a very long delay and all the more so where the long delay is unexplained.

This argument is solely based on technical grounds. According to Order 1A and Order 2 r3 RHC the court shall have regard to the justice of the particular case, and not only to the technical non-compliance of the rules. What more in this instant case the rule does not even indicate any mandatory requirement that a striking out application must be undertaken at a specific time frame.

The court may even allowed the application to be made after pleadings are closed as state in the case of BOO ARE NGOR V CHUA MEE LIANG (2009) 6 MLJ 145. Thus, this court decides to hear the merit of this application instead.

The defendant stated that this action is frivolous and vexatious because all the course paper including the writ of summon and statement of claim was filed by plaintiff’s brother (Lee Heng Yau) as the based on the Power of Attorney executed by the plaintiff.

However, Lee Heng Yau has no locus standi to do so. Plaintiff did not fall under one of the category under Order 76 R 2 which categories the person under disability. Furthermore, his action is in contradiction with Legal Profession Act 1976.

In LEE HENG MOY V TAN KIM LEONG & 5 ORS (2006) 2 AMR 344 the court held that the facts showed that the writ and the statement of claim were signed by Lee Heng Yau on behalf of the plaintiff. Pursuant to Legal Profession Act 1976, this could not be done by an individual on behalf of another individual acting under a power of attorney except an advocates and solicitors. Only an advocate and solicitors had the power to do so. An attorney with powers donated under the power attorney act 1949 is not a person excepted under s38 (1) (a) to (m) of LPA. This meant that the provisions of the LPA would take precedence over any provision in the Act did not specify the limitations of any power of representations under a deed donating the power. Therefore where a power has been donated pursuant to the act, that representations would cease on its own under the provisions of the LPA. It is trite that the LPA is a specific legal provision while the act provides for general provisions. Therefore the general provisions would give away to the specific legal provision. It was clear that Lee Heng Yau was an unauthorized person under S36(1) of the LPA.

The plaintiff main argument about this issue is that she is a housewife with no legal background and cannot find any lawyers to represent her.

Another issue brought forward by the defendant is that the same action already commenced by the plaintiff in Session Court Klang based on the same facts, issues and the same subject matter.

In LESCO DEVELOPMENT CORP SDN BHD V MALAYSIA BUILDING SOCIETY BHD (1988) the court held that it is undesirable to allow a situation where two different courts would try and determine the same issue arising between the same parties relating to the same parties relating to he same subject matter.

In LAI KIM LOI V DATO LAI FOOK KIM & ANOTHER (1989) 2 MLJ 290 the court held that although the issues raised and the relief sought are not totally similar, yet the substantial duplication of issues and relief sought in the writ of summons and in the petition amounted to multiplicity of actions and in all the circumstances of the case, the petition presented is vexatious and is an abuse of the process of the court and ought to be struck out as the learned judge had done and not stayed or the petition be allowed to be amended as suggested by counsel for the petitioner. The learned judge had exercised his discretion correctly in striking out the petition.

However, the plaintiff stated that she brings that action to recover money and she initiate this action to compel Defendant to handover the title which within the jurisdiction of this court.

In Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 the court held that the principles upon which the court acts 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’. It cannot be exercised by a minute examination of the...