MALAYAN BANKING BERHAD 1. ) XXXX 2. ) Nor Akhfa Binti Jalal 3. ) Izma Bt Idris 4. ) Chen Kait Leong

MALAYAN BANKING BERHAD 1. ) XXXX 2. ) Nor Akhfa Binti Jalal 3. ) Izma Bt Idris 4. ) Chen Kait Leong

The Court of Appeal held that the Defendants were professionally negligent for failing to timely file the appeal record and to prosecute/reinstate proceedings within limitation, that the Plaintiff lost a real and substantial chance to recover sums from the Borrower and Guarantors, expert evidence was not necessary in this contentious litigation to establish standard of care, the principal debtor clause did not negate limitation and the Plaintiff was entitled to recover legal fees (RM127,994) and additional damages for loss of chance (RM622,006) to reach the agreed settlement measure of RM750,000.

Citation
W-02(NCvC)(W)-2194-10/2018 (Mahkamah Rayuan)
Parties
Appellant; Plaintiff: Malayan Banking Berhad; Respondent; Defendant: Tan Soek Phee; Respondent; Defendant: Nor Akhfa binti Jalal; Respondent; Defendant: Izma bt Idris; Respondent; Defendant: Chen Kait Leong
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
10 April 2023
Case Number
W-02(NCvC)(W)-2194-10/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (professional Negligence; Solicitor Negligence) / Court of Appeal Grounds of Judgment (decision Dated 04/08/2023)
Outcome
Appeal W-02(NCVC)(W)-2194-10/2018 allowed; Appeal W-02(NCVC)(W)-2220-10/2018 dismissed
Legal Topics
Solicitor Negligence, Loss of Chance, Damages, Refund of Legal Fees, Limitation, Principal Debtor Clause
Source Language
Malay/English
Professional Negligence Civil Procedure Contract (guarantee) Banking Law Limitation Law Solicitor Negligence Loss of Chance Damages +3 more

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Parties

Malayan Banking Berhad

Appellant; Plaintiff

Tan Soek Phee

Respondent; Defendant

Nor Akhfa binti Jalal

Respondent; Defendant

Izma bt Idris

Respondent; Defendant

Chen Kait Leong

Respondent; Defendant

Procedural Posture

Civil Appeal (professional Negligence; Solicitor Negligence) / Court of Appeal Grounds of Judgment (decision Dated 04/08/2023)

Legal Issues

  1. 1 Whether the solicitors (Defendants) were professionally negligent for failing to file appeal records and to prosecute/reinstate suit within limitation
  2. 2 Whether plaintiff proved loss of a chance and prospect of success sufficient to recover damages
  3. 3 Whether expert evidence was necessary to establish standard of care in contentious litigation

Ratio Decidendi

The Court of Appeal held that the Defendants were professionally negligent for failing to timely file the appeal record and to prosecute/reinstate proceedings within limitation, that the Plaintiff lost a real and substantial chance to recover sums from the Borrower and Guarantors, expert evidence was not necessary in this contentious litigation to establish standard of care, the principal debtor clause did not negate limitation and the Plaintiff was entitled to recover legal fees (RM127,994) and additional damages for loss of chance (RM622,006) to reach the agreed settlement measure of RM750,000.

Court Disposition

Appeal W-02(NCVC)(W)-2194-10/2018 allowed; Appeal W-02(NCVC)(W)-2220-10/2018 dismissed

Orders

  • Defendants to pay Plaintiff further RM622,006.00 (being the difference to reach the Plaintiff's claimed RM750,000.00)
  • High Court award of RM127,994.00 for refund of legal fees affirmed (with previous order for interest at 5% per annum from 30 May 2016 as per High Court judgment)