Dali Bin Hashim 1. ) ABDUL HALIM BIN MOHD NOOR 2. ) TETUAN CHUAH HALIM & CO 3. ) AHMAD ZAKI BIN BAKAR 4. ) BANK ISLAM MALAYSIA BERHAD

Dali Bin Hashim 1. ) ABDUL HALIM BIN MOHD NOOR 2. ) TETUAN CHUAH HALIM & CO 3. ) AHMAD ZAKI BIN BAKAR 4. ) BANK ISLAM MALAYSIA BERHAD

The plaintiff's claim was time-barred under the Limitation Act because the deceased could and should have discovered the alleged fraud no later than the date of the mortgage default notice in 2005; res judicata did not apply because the earlier judgment concerned a different lot; defendant 2 (the law firm) was not liable for defendant 1's personal acts given the partnership evidence and prior orders; the plaintiff failed to prove fraud on the balance of probabilities and handwriting expert opinion was not conclusive against credible testimony; therefore the plaintiff's claim was dismissed with costs, defendant 3's counterclaim was dismissed and defendant 4's counterclaim was allowed.

Citation
PA-22NCvC-3-01/2018 (Mahkamah Tinggi)
Parties
Plaintiff (personal Representative of Deceased Estate): Dali bin Hashim (representative of estate of Hashim bin Saad); Defendant 1: Abdul Halim bin Mohd Noor; Defendant 2: Tetuan Chuah Halim & Co; Defendant 3: Ahmad Zaki bin Bakar; Defendant 4: Bank Islam Malaysia Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
9 December 2022
Case Number
PA-22NCvC-3-01/2018 (Mahkamah Tinggi)
Procedural Posture
Civil Property/contract/tort (fraud) / Trial Judgment (final Decision)
Outcome
Plaintiff's claim dismissed with costs; Defendant 3's counterclaim dismissed; Defendant 4's counterclaim allowed.
Legal Topics
Fraudulent Transfer, Limitation Period (discoverability), Res Judicata, Partnership Liability for Partner's Acts, Mortgage/charge Validity, Handwriting Expert Evidence
Source Language
Malay/English
Property Law Contract Tort (fraud) Partnership Law Limitation/statute of Limitations Civil Procedure Evidence Fraudulent Transfer +5 more

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Parties

Dali bin Hashim (representative of estate of Hashim bin Saad)

Plaintiff (personal Representative of Deceased Estate)

Abdul Halim bin Mohd Noor

Defendant 1

Tetuan Chuah Halim & Co

Defendant 2

Ahmad Zaki bin Bakar

Defendant 3

Bank Islam Malaysia Berhad

Defendant 4

Procedural Posture

Civil Property/contract/tort (fraud) / Trial Judgment (final Decision)

Legal Issues

  1. 1 Whether the plaintiff's claim was time-barred under the Limitation Act
  2. 2 Whether doctrine of res judicata barred the claim
  3. 3 Whether the law firm (defendant 2) is vicariously liable for acts of defendant 1

Ratio Decidendi

The plaintiff's claim was time-barred under the Limitation Act because the deceased could and should have discovered the alleged fraud no later than the date of the mortgage default notice in 2005; res judicata did not apply because the earlier judgment concerned a different lot; defendant 2 (the law firm) was not liable for defendant 1's personal acts given the partnership evidence and prior orders; the plaintiff failed to prove fraud on the balance of probabilities and handwriting expert opinion was not conclusive against credible testimony; therefore the plaintiff's claim was dismissed with costs, defendant 3's counterclaim was dismissed and defendant 4's counterclaim was allowed.

Court Disposition

Plaintiff's claim dismissed with costs; Defendant 3's counterclaim dismissed; Defendant 4's counterclaim allowed.

Orders

  • Plaintiff's claim dismissed with costs to the defendants
  • Defendant 3's counterclaim dismissed