NYO NYO AYE 1) KEVIN SATHIASEELAN A/L RAMAKRISHNAN 2) MESSRS SYED ALWI NG & CO

NYO NYO AYE 1) KEVIN SATHIASEELAN A/L RAMAKRISHNAN 2) MESSRS SYED ALWI NG & CO

The Court held the cause of action accrued when actual damage occurred — namely when the underlying suit was struck off by the High Court on 24.8.2009 — therefore the plaintiff's claim filed 29.4.2015 was within the six‑year limitation period; the Court affirmed the High Court finding that the defendants breached the retainer and were negligent in failing to advise, seek extension or otherwise protect the client's position and remitted the matter for assessment of damages.

Citation
W-02(NCVC)(W)-12-01/2018 (Mahkamah Rayuan)
Parties
Appellant/plaintiff: Nyo Nyo Aye; Respondent/defendant: Kevin Sathiaseelan A/L Ramakrishnan; Respondent/defendant: Messrs Syed Alwi Ng & Co
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
24 July 2018
Case Number
W-02(NCVC)(W)-12-01/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (professional Negligence and Breach of Retainer Arising From Striking Off of Underlying Suit) / Court of Appeal Judgment Allowing Plaintiff Appeal on Limitation, Affirming Negligence Findings, Remitted to High Court for Assessment of Damages
Outcome
Plaintiff appeal allowed on limitation; High Court order on limitation set aside; Defendants' appeal dismissed on negligence; High Court finding of breach of retainer and negligence affirmed; matter remitted for assessment of damages.
Legal Topics
Breach of Retainer, Limitation Period, Security for Costs, Striking Off for Non Compliance, Loss of Chance, Assessment of Damages
Source Language
Malay/English
Civil Procedure Professional Negligence Contract Law Limitations Law Trusts and Estates Breach of Retainer Limitation Period Security for Costs +3 more

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Parties

Nyo Nyo Aye

Appellant/plaintiff

Kevin Sathiaseelan A/L Ramakrishnan

Respondent/defendant

Messrs Syed Alwi Ng & Co

Respondent/defendant

Procedural Posture

Civil Appeal (professional Negligence and Breach of Retainer Arising From Striking Off of Underlying Suit) / Court of Appeal Judgment Allowing Plaintiff Appeal on Limitation, Affirming Negligence Findings, Remitted to High Court for Assessment of Damages

Legal Issues

  1. 1 When did the cause of action accrue for negligence/breach of retainer (date of non‑compliance with SFC or date suit was struck off)?
  2. 2 Whether solicitors breached their retainer duty and were negligent in failing to advise, seek extension or otherwise prevent striking off
  3. 3 Whether the plaintiff had an appreciable prospect of success in the underlying probate action

Ratio Decidendi

The Court held the cause of action accrued when actual damage occurred — namely when the underlying suit was struck off by the High Court on 24.8.2009 — therefore the plaintiff's claim filed 29.4.2015 was within the six‑year limitation period; the Court affirmed the High Court finding that the defendants breached the retainer and were negligent in failing to advise, seek extension or otherwise protect the client's position and remitted the matter for assessment of damages.

Court Disposition

Plaintiff appeal allowed on limitation; High Court order on limitation set aside; Defendants' appeal dismissed on negligence; High Court finding of breach of retainer and negligence affirmed; matter remitted for assessment of damages.

Orders

  • Set aside High Court decision on limitation dated 29.11.2017
  • Affirmed High Court finding that defendants were negligent and in breach of retainer dated 29.11.2017