ALL UP SDN BHD. & CHUNG SIEW MEE vs JAHARA @ BABY BINTI AB. MOHAMAD (MJLR2009 a12),RAHMAN
[T22-40-2008]
1
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT TAWAU
SUIT NO.T(22) 40 OF 2008
BETWEEN
ALL UP SDN BHD .. 1ST 10 PLAINTIFF
CHUNG SIEW MEE .. 2ND PLAINTIFF
AND
JAHARA @ BABY BINTI AB. MOHAMAD .. DEFENDANT
15 GROUNDS OF DECISION
The defendant’s application is for an order that the order to
consolidate Suit No.T(22) 40 of 2008 with Suit No.T(22) 67 of 2007
be set aside and for Suit No.T(22) 40 of 2008 to proceed as one
action. The application is supported by the affidavit of Norazmi Bin
20 Alimat (“Norazmi”) affirmed on 6 March 2009 who acted as solicitor
for the defendant in Suit No.T(22) 40 of 2008. The grounds for the
application are as follows. On 4 February 2009 the defendant
received a letter courried by Messrs Liew Hon Min & Co informing
her to appear in person or by an advocate for the hearing of the
25 plaintiffs’ application for consolidation of the two suits. This
application was allegedly fixed for hearing on 10 February at Tawau
High Court. The defendant duly informed Norazmi about the letter.
[T22-40-2008]
2
On the morning of 9 February 2009 the defendant came to see
Norazmi to discuss about the matter after which Norazmi’s firm,
Messrs Rahman & Juhar was appointed by 30 the defendant to
represent her in the case. On the same day Norazmi called Messrs
Liew Hon Min & Co and spoke to one Miss Agnes who introduced
herself as a staff of Messrs Liew Hon Min & Co. She told Norazmi
that counsel in charge of the case was one Liew Hon Min who was
35 not in office at that time as he was in court.
After the telephone conversation Norazmi faxed a letter to Messrs
Liew Hon Min & Co informing the firm that in view of Rahman &
Juhar’s sudden appointment as solicitors for the defendant, he
would not be able to attend the hearing on 10 February 2009. The
40 letter also mentioned that Miss Agnes had confirmed that Messrs
Liew Hon Min & Co would stand in for Rahman & Juhar on the
hearing date, with instruction to get a new date.
There was no news from Messrs Liew Hon Min & Co after 10
February 2009. Messrs Rahman & Juhar was not informed of the
45 outcome of the hearing on 10 February 2009. Subsequently
Norazmi was informed by the defendant that on 12 February 2009
she received an undated “Draft Order for Consolidation” from
Messrs Liew Hon Min & Co for her approval. To her understanding
the draft order stated that the matter would be heard in chambers on
50 20 February 2009. She was confused as to why the draft order was
sent to her before the date of the hearing in chambers. She felt that
an injustice had been done to her as she was not given the
[T22-40-2008]
3
opportunity to argue her case as the actual date of hearing was
unknown to her. The truth of the matter is, the consolidation order
was already made on 20 February 2009 as can 55 be seen from the
attachment to Exhibit “NBA-1” of the affidavit in support of Norazmi.
Mr. G.B.B. Nandy Gaanesh, an advocate and solicitor had also filed
an affidavit in connection with this application. He averred that he is
counsel acting for the defendant in Suit No.T(22) 67 of 2007. He
60 confirmed that his firm Messrs Gaanesh & Co was neither served
with the notice of hearing nor with any letter by Messrs Liew Hon
Min & Co to inform him that the plaintiffs’ application for
consolidation of the two suits would be heard on 12 February 2009
and 20 February 2009 (the date stated in the draft order) although
65 his firm was and still is the solicitors on record for the defendant in
Suit No.T(22) 67 of 2007. This is odd because Messrs AY Partners,
Tawau who acted for the plaintiff in Suit No.T(22) 67 of 2007 were
apparently served with the notice of hearing as one Mr Tay Kok
Siong of the firm was present during the hearing either on 12
70 February 2009 or 20 February 2009.
In the circumstances it was contended that the order obtained by
Messrs Liew Hon Min & Co as solicitors for the plaintiffs in Suit
No.T(22) 40 of 2008 is irregular because the notice of hearing was
not served on his firm or on him as counsel for the defendant in Suit
75 No.T(22) 67 of 2007.
[T22-40-2008]
4
The defendant’s argument is that Suit No.T(22) 40 of 2008 and Suit
No.T(22) 67 of 2007 should not be consolidated as the questions of
law involved are different. There are no common issues between the
two suits and that further Suit No.T(22) 67 of 2007 is pending trial.
Mr Liew Hon Min, counsel for the plaintiffs in Suit 80 No.T(22) 40 of
2008, in his affidavit in opposition affirmed on 19 March 2009 (“Liew
Hon Min’s affidavit”) denied that Messrs Liew Hon Min & Co had
agreed to stand in for Rahman & Juhar on 10 February 2009.
According to him Miss Agnes never accepted any stand in
85 instruction from another counsel without first consulting him.
In opposition to Liew Hon Min’s affidavit the defendant filed another
affidavit, this time affirmed by Ahmad bin Abdul Rahman (“Ahmad”)
of Messrs Rahman & Juhar on 5 May 2009. He confirmed in
material particulars what Norazmi affirmed in his affidavit in support.
90 In reply to paragraph 10 of Liew Hon Min’s affidavit, Ahmad in
paragraph 9 avers that even if Mr Liew Hon Min could not find the
time to reply to their letter dated 9 February 2009, his secretary
could have asked to speak to any other lawyer in Messrs Rahman &
Juhar to inform them that Messrs Liew Hon Min & Co was not
95 available to stand in for them. He said the reason why Messrs
Rahman & Juhar requested Messrs Liew Hon Min & Co to stand in
for them was because Mr Liew Hon Min was well aware of the facts
pertaining to the matter of Suit No.T(22) 40 of 2008. He maintained
that Suit No.T(22) 40 of 2008 and Suit No.T(22) 67 of 2007 involve
100 different causes of action and should not therefore be consolidated.
[T22-40-2008]
5
Mr Liew Hon Min in his written submission dated 14 June 2009
submitted that the defendant’s counsel should blame himself for the
problem that he got himself into. He added that Norazmi was
completely lacking in common sense in expecting him to stand in for
the defendant as that would mean that he (105 Liew Hon Min) would
have to “shoot himself in the foot” by arguing against his client’s
application for consolidation. I am unable to comprehend the logic of
this argument. Messrs Rahman & Juhar’s request was merely for
Messrs Liew Hon Min & Co to stand in for them on 10 February
110 2009, not to argue the case or shoot anybody in the foot.
In my view having regard to what transpired between the
defendant’s counsel and Messrs Liew Hon Min & Co as disclosed in
the affidavits, the order granted on 20 February 2009 ought to be set
aside ex debito justitiae as it is obvious that it was obtained
115 irregularly.
Mr Liew Hon Min in his affidavit in opposition did not categorically
deny that Miss Agnes had confirmed with Norazmi that Messrs Liew
Hon Min & Co (as opposed to Mr Liew Hon Min himself as counsel)
would stand in for Rahman & Juhar on 10 February 2009. This is
120 how he answered Norazmi’s averment:
“6. In the past, my secretary Agnes Law had never accepted any stand in
instruction from another counsel without first consulting me. Thus I would give
her the benefit of the doubt.”
[T22-40-2008]
6
The last sentence above could only mean that Mr Liew Hon Min
believed his secretary’s words that she 125 did not give such
confirmation. It is very convenient indeed for Mr Liew Hon Min to
give her secretary “the benefit of the doubt”. But why, it may be
asked, was Miss Agnes not asked to affirm an affidavit to that
effect? I am inclined to believe that she did give the confirmation to
130 Norazmi and now conveniently denies it. In this connection the
observation of Lord Denning M.R. in Geoffrey Silver & Drake v
Baines [1971] 1 QB 396 is pertinent, where he said at page 402:
“This court has from time immemorial exercised a summary jurisdiction over
solicitors. They are officers of the court and are answerable to the court for
135 anything that goes wrong in the execution of their office. Even if the solicitor has
been guilty of no fault personally, but it is the fault of his clerk, he is accountable
for it: see Myers v Elman [1940] A.C. 282.”
It is unfair for the plaintiffs to have proceeded with the application for
consolidation in the absence of the defendant and knowing full well
140 that the defendant had requested Messrs Liew Hon Min & Co to
stand in for them, never mind the fact that Mr Liew Hon Min refused
to do so. The defendant’s request should not have been treated in
such cavalier manner.
Even if I am wrong on this point I am of the view that Suit No.T(22)
145 40 0f 2008 and Suit No.T(22) 67 of 2007 should not be
consolidated. The unchallenged assertion of Ahmad in his affidavit
in opposition is that the causes of action are different. Further the
affidavit of Norazmi shows that Suit No.T(22) 67 involves the issue
[T22-40-2008]
7
of forgery whereas Suit No.T(22) 40 of 2008 involves a
straightforward matter of whether the parties had 150 complied with the
terms and conditions of the agreement. There is also no challenge
to this assertion.
In the circumstances the defendant’s application was allowed in
terms of the summons in chambers dated 6 March 2009.
155
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
High Court Kota Kinabalu
160
Dated: 30th September 2009.
For the Defendant: Ahmad bin Abdul Rahman
of Messrs Rahman & Juhar.
165
For the Plaintiffs: Liew Hon Min of Messrs Liew Hon Min & Co.
1
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT TAWAU
SUIT NO.T(22) 40 OF 2008
BETWEEN
ALL UP SDN BHD .. 1ST 10 PLAINTIFF
CHUNG SIEW MEE .. 2ND PLAINTIFF
AND
JAHARA @ BABY BINTI AB. MOHAMAD .. DEFENDANT
15 GROUNDS OF DECISION
The defendant’s application is for an order that the order to
consolidate Suit No.T(22) 40 of 2008 with Suit No.T(22) 67 of 2007
be set aside and for Suit No.T(22) 40 of 2008 to proceed as one
action. The application is supported by the affidavit of Norazmi Bin
20 Alimat (“Norazmi”) affirmed on 6 March 2009 who acted as solicitor
for the defendant in Suit No.T(22) 40 of 2008. The grounds for the
application are as follows. On 4 February 2009 the defendant
received a letter courried by Messrs Liew Hon Min & Co informing
her to appear in person or by an advocate for the hearing of the
25 plaintiffs’ application for consolidation of the two suits. This
application was allegedly fixed for hearing on 10 February at Tawau
High Court. The defendant duly informed Norazmi about the letter.
[T22-40-2008]
2
On the morning of 9 February 2009 the defendant came to see
Norazmi to discuss about the matter after which Norazmi’s firm,
Messrs Rahman & Juhar was appointed by 30 the defendant to
represent her in the case. On the same day Norazmi called Messrs
Liew Hon Min & Co and spoke to one Miss Agnes who introduced
herself as a staff of Messrs Liew Hon Min & Co. She told Norazmi
that counsel in charge of the case was one Liew Hon Min who was
35 not in office at that time as he was in court.
After the telephone conversation Norazmi faxed a letter to Messrs
Liew Hon Min & Co informing the firm that in view of Rahman &
Juhar’s sudden appointment as solicitors for the defendant, he
would not be able to attend the hearing on 10 February 2009. The
40 letter also mentioned that Miss Agnes had confirmed that Messrs
Liew Hon Min & Co would stand in for Rahman & Juhar on the
hearing date, with instruction to get a new date.
There was no news from Messrs Liew Hon Min & Co after 10
February 2009. Messrs Rahman & Juhar was not informed of the
45 outcome of the hearing on 10 February 2009. Subsequently
Norazmi was informed by the defendant that on 12 February 2009
she received an undated “Draft Order for Consolidation” from
Messrs Liew Hon Min & Co for her approval. To her understanding
the draft order stated that the matter would be heard in chambers on
50 20 February 2009. She was confused as to why the draft order was
sent to her before the date of the hearing in chambers. She felt that
an injustice had been done to her as she was not given the
[T22-40-2008]
3
opportunity to argue her case as the actual date of hearing was
unknown to her. The truth of the matter is, the consolidation order
was already made on 20 February 2009 as can 55 be seen from the
attachment to Exhibit “NBA-1” of the affidavit in support of Norazmi.
Mr. G.B.B. Nandy Gaanesh, an advocate and solicitor had also filed
an affidavit in connection with this application. He averred that he is
counsel acting for the defendant in Suit No.T(22) 67 of 2007. He
60 confirmed that his firm Messrs Gaanesh & Co was neither served
with the notice of hearing nor with any letter by Messrs Liew Hon
Min & Co to inform him that the plaintiffs’ application for
consolidation of the two suits would be heard on 12 February 2009
and 20 February 2009 (the date stated in the draft order) although
65 his firm was and still is the solicitors on record for the defendant in
Suit No.T(22) 67 of 2007. This is odd because Messrs AY Partners,
Tawau who acted for the plaintiff in Suit No.T(22) 67 of 2007 were
apparently served with the notice of hearing as one Mr Tay Kok
Siong of the firm was present during the hearing either on 12
70 February 2009 or 20 February 2009.
In the circumstances it was contended that the order obtained by
Messrs Liew Hon Min & Co as solicitors for the plaintiffs in Suit
No.T(22) 40 of 2008 is irregular because the notice of hearing was
not served on his firm or on him as counsel for the defendant in Suit
75 No.T(22) 67 of 2007.
[T22-40-2008]
4
The defendant’s argument is that Suit No.T(22) 40 of 2008 and Suit
No.T(22) 67 of 2007 should not be consolidated as the questions of
law involved are different. There are no common issues between the
two suits and that further Suit No.T(22) 67 of 2007 is pending trial.
Mr Liew Hon Min, counsel for the plaintiffs in Suit 80 No.T(22) 40 of
2008, in his affidavit in opposition affirmed on 19 March 2009 (“Liew
Hon Min’s affidavit”) denied that Messrs Liew Hon Min & Co had
agreed to stand in for Rahman & Juhar on 10 February 2009.
According to him Miss Agnes never accepted any stand in
85 instruction from another counsel without first consulting him.
In opposition to Liew Hon Min’s affidavit the defendant filed another
affidavit, this time affirmed by Ahmad bin Abdul Rahman (“Ahmad”)
of Messrs Rahman & Juhar on 5 May 2009. He confirmed in
material particulars what Norazmi affirmed in his affidavit in support.
90 In reply to paragraph 10 of Liew Hon Min’s affidavit, Ahmad in
paragraph 9 avers that even if Mr Liew Hon Min could not find the
time to reply to their letter dated 9 February 2009, his secretary
could have asked to speak to any other lawyer in Messrs Rahman &
Juhar to inform them that Messrs Liew Hon Min & Co was not
95 available to stand in for them. He said the reason why Messrs
Rahman & Juhar requested Messrs Liew Hon Min & Co to stand in
for them was because Mr Liew Hon Min was well aware of the facts
pertaining to the matter of Suit No.T(22) 40 of 2008. He maintained
that Suit No.T(22) 40 of 2008 and Suit No.T(22) 67 of 2007 involve
100 different causes of action and should not therefore be consolidated.
[T22-40-2008]
5
Mr Liew Hon Min in his written submission dated 14 June 2009
submitted that the defendant’s counsel should blame himself for the
problem that he got himself into. He added that Norazmi was
completely lacking in common sense in expecting him to stand in for
the defendant as that would mean that he (105 Liew Hon Min) would
have to “shoot himself in the foot” by arguing against his client’s
application for consolidation. I am unable to comprehend the logic of
this argument. Messrs Rahman & Juhar’s request was merely for
Messrs Liew Hon Min & Co to stand in for them on 10 February
110 2009, not to argue the case or shoot anybody in the foot.
In my view having regard to what transpired between the
defendant’s counsel and Messrs Liew Hon Min & Co as disclosed in
the affidavits, the order granted on 20 February 2009 ought to be set
aside ex debito justitiae as it is obvious that it was obtained
115 irregularly.
Mr Liew Hon Min in his affidavit in opposition did not categorically
deny that Miss Agnes had confirmed with Norazmi that Messrs Liew
Hon Min & Co (as opposed to Mr Liew Hon Min himself as counsel)
would stand in for Rahman & Juhar on 10 February 2009. This is
120 how he answered Norazmi’s averment:
“6. In the past, my secretary Agnes Law had never accepted any stand in
instruction from another counsel without first consulting me. Thus I would give
her the benefit of the doubt.”
[T22-40-2008]
6
The last sentence above could only mean that Mr Liew Hon Min
believed his secretary’s words that she 125 did not give such
confirmation. It is very convenient indeed for Mr Liew Hon Min to
give her secretary “the benefit of the doubt”. But why, it may be
asked, was Miss Agnes not asked to affirm an affidavit to that
effect? I am inclined to believe that she did give the confirmation to
130 Norazmi and now conveniently denies it. In this connection the
observation of Lord Denning M.R. in Geoffrey Silver & Drake v
Baines [1971] 1 QB 396 is pertinent, where he said at page 402:
“This court has from time immemorial exercised a summary jurisdiction over
solicitors. They are officers of the court and are answerable to the court for
135 anything that goes wrong in the execution of their office. Even if the solicitor has
been guilty of no fault personally, but it is the fault of his clerk, he is accountable
for it: see Myers v Elman [1940] A.C. 282.”
It is unfair for the plaintiffs to have proceeded with the application for
consolidation in the absence of the defendant and knowing full well
140 that the defendant had requested Messrs Liew Hon Min & Co to
stand in for them, never mind the fact that Mr Liew Hon Min refused
to do so. The defendant’s request should not have been treated in
such cavalier manner.
Even if I am wrong on this point I am of the view that Suit No.T(22)
145 40 0f 2008 and Suit No.T(22) 67 of 2007 should not be
consolidated. The unchallenged assertion of Ahmad in his affidavit
in opposition is that the causes of action are different. Further the
affidavit of Norazmi shows that Suit No.T(22) 67 involves the issue
[T22-40-2008]
7
of forgery whereas Suit No.T(22) 40 of 2008 involves a
straightforward matter of whether the parties had 150 complied with the
terms and conditions of the agreement. There is also no challenge
to this assertion.
In the circumstances the defendant’s application was allowed in
terms of the summons in chambers dated 6 March 2009.
155
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
High Court Kota Kinabalu
160
Dated: 30th September 2009.
For the Defendant: Ahmad bin Abdul Rahman
of Messrs Rahman & Juhar.
165
For the Plaintiffs: Liew Hon Min of Messrs Liew Hon Min & Co.
