Tetuan Raja Badrol, Ramli & Azizi v Halimaton Binti Othman, 19-03-2010

• Judge: DATO’ HUE SIEW KHENG
• Judgment Date: 19 March 2010
• Court: High Court (Malaysia)
• Appellant: TETUAN RAJA BADROL, RAMLI & AZIZI
• Record Number: (MT-5) 12A-215-2009
• Respondent: HALIMATON BINTI OTHMAN

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DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU

DI DALAM NEGERI JOHOR DARUL TA'ZIM

RAYUAN SIVIL NO: (MT-5) 12A-215-2009

ANTARA

TETUAN RAJA BADROL, RAMLI & AZIZI

(didakwa sebagai sebuah firma amalan

Guaman undang-undang)

…PERAYU

DAN

HALIMATON BINTI OTHMAN

(No K/P: 560613-08-6050)

…RESPONDEN

DALAM MAHKAMAH SESYEN DI JOHOR BAHRU

DI DALAM NEGERI JOHOR DARUL TA'ZIM, MALAYSIA

SAMAN NO: 52-3684-2006 (S6)

ANTARA

HALIMATON BINTI OTHMAN

(No K/P: 560613-08-6050)

…PLAINTIF

DAN

TETUAN RAJA BADROL, RAMLI & AZIZI

(didakwa sebagai sebuah firma amalan

guaman undang-undang)

…DEFENDAN

DI DALAM KAMAR

DI HADAPAN Y.A. DATO' HUE SIEW KHENG

PESURUHJAYA KEHAKIMAN

DECISION

1. This appeal arose out of the decision of the learned sessions judge allowing the respondent-plaintiff’s application for summary judgment to be entered against the appellant-second defendant on 15.10.2009.

Background facts

2. The brief background facts are that the plaintiff appointed the first defendant, a lawyer from Messrs Raja Badrol, Ramli & Azizi (the second defendant) to represent her in the purchase of a property in the district of Pulai, Johor Bahru. A sale and purchase agreement dated 1.1.1993 was executed. The plaintiff had paid a sum of RM27,352.98 to the appellant on 24.1.2000.

3. A receipt was issued by the appellant from its client’s account and was expressed to be for “payment of balance for purchase price” (see ex. “HO-1” at p. 40 of the record of appeal).

4. The plaintiff secured a housing loan from the Government of Malaysia and on 2.10.2000 the appellant received the sum of RM27,352.98 from the Government of Malaysia vide a government voucher dated 21.10.2000 being part disbursement of the housing loan approved (see ex “HO-3” at p. 44 of the record of appeal).

5. The appellant however refused to refund the said sum of money to the plaintiff even though Notices of Demand were issued on 17.10.2005 (see ex. “HO-4” at pp. 46-49 of the record of appeal).

Issues

6. The issues raised by the appellant are–

1. limitation;

B) the appellant was not in existence at the time the sale and purchase agreement was entered into;

3. the letter of undertaking of the solicitor was not disclosed, neither the sale and purchase agreement;

3. estoppel and

3. failure to produce the Letter of Undertaking of the solicitor and the sale and purchase agreement and obscurity of surrounding facts.

1. Limitation

1. It is the contention of the appellant that the plaintiff’s action against it is time barred as the plaintiff’s claim against it, which is for the sum of RM27,352.98, was purportedly paid by the plaintiff to the first defendant on 21.1.2000. The plaintiff’s claim which was only filed on 19.5.2006 had run foul of section 6 of the Limitation Act 1950. The appellant’s contention is grounded on the submission that the sum of RM27,352.98 was an advancement simpliciter with no time specified for repayment. That being so, it was an advancement repayment as from the date of advance i.e. 21.1.2000.

2. Reliance was placed on the Singapore case of Tay Ivy v Tay Joyce [1992] 1 SLR 893. With respect, the facts of Tay Ivy’s case can be easily distinguished from the present case: in Tay Ivy’s case, the issue to be decided was the nature of the loan given by the plaintiff to the defendant.

3. The case at hand is not one of a loan, friendly or otherwise, but monies paid to a legal firm which was representing the plaintiff in a sale and purchase transaction for which the sum paid into the appellants clients’ account was acknowledged to be for the “payment of balance purchase price”.

4. The Government of Malaysia having refunded the plaintiff’s payment of balance purchase vide its voucher dated 2.10.2000, it was incumbent on the appellant to forward the refund to the plaintiff in due course. This was never done.

5. The sum was not a loan simpliciter and as such was not repayable from the date of advance. It was never the plaintiff’s claim that the said sum was advanced to the defendants as a loan. The plaintiff’s cause of action arose from the date the Notice of Demand was issued and therefore is not time barred.

2. Second defendant was not in existence at the date the sale and purchase was entered into

1. It is not disputed that the sale and purchase agreement was dated 1.10.93 and that the second defendant was only established on 2.5.1996.

2. These facts are to my mind not relevant because the plaintiff’s claim is based on the payment made to the second defendant which was acknowledged by the second defendant and a receipt issued to the plaintiff for the second defendant’s client account dated 24.1.2000. The second defendant by its own admission, was already in operation since 1996.

C. Estoppel

i. The second defendant contends that the plaintiff is estopped from proceeding further against the second defendant as she had entered judgment in default against the first defendant. The case of Guinness Anchor Marketing Sdn. Bhd. v Chellam Joe Vetha Thya Singh [1999] 7 CLJ 392 was referred to. Learned counsel for the appellant has misconstrued the judgment of Guinness Anchor’s case in holding forth as the learned...