A lawyer's failure to call witnesses does not constitute negligence if the dismissal of the case is primarily due to the client's conduct.

Introduction

[1] The Plaintiffs' claim against the Defendant a lawyer, is for losses suffered as a result of the negligence and breach of fiduciary of the Defendant in representing them in a civil proceeding in the High Court Shah Alam.

[2] The Shah Alam High Court Suit No 22NCVC-351-04/2013 ("Suit 351") was for a claim of proceeds of sale of 2 pieces of land to wit QT(M) 2505, Lot 30 Mukim of Petaling, Shah Alam ("Puchong Land") and HS(M) 6361, PT No 7284, Mukim Sungai Buluh, District of Petaling ("Subang land").The present case is however limited to the sale of the Puchong land

Brief Facts

[3] The Plaintiffs in this case are husband and wife. The Defendant represented the 1st Plaintiff and his deceased mother in Suit 351. In Suit 351 both the 1st Plaintiff and his deceased mother claimed that the Puchong land was bought from the funds of the partnership firm of Kong Ming Trading and therefore belonged to all the partners.

[4] The 1st Plaintiff contends that although the Puchong land was bought from the funds of the partnership it was registered in the name of his brother Lin Kai Weng upon the advise of the Bank granting the loan for the purchase of the said land by a letter dated 31 March 1992.

[5] Following this an amended the sale and purchase agreement was drawn up by the lawyer reflecting the said Lin Kai Weng as the purchaser. The land was ultimately registered in the name of the said Lin Kai Weng.

[6] The High Court dismissed the Plaintiffs claim in Suit 351 and the Plaintiffs in this case allege that the dismissal of the case was due the non-calling of 2 material witnesses ie the Bank officer who gave the advise and the lawyer who drew up the amended sale and purchase agreement. The Plaintiff contends that both this witnesses would have testified the actual reasons why the Puchong land was only registered in the name of Lin Kai Weng.

[7] The Plaintiffs allege that it was the duty of the Defendant to properly advise them that the calling of this 2 witnesses was necessary. The Defendant not only did not advise the Plaintiffs on the importance of this 2 witnesses but also failed to call them as witnesses in Suit 351.

[8] The Plaintiff further led evidence by way of a valuation report prepared by licensed Valuer, Subramaniam a/l Arumugam (SP 2) to prove the value of the Puchong land to be RM 20 million. The Plaintiffs are claiming that their losses amount to RM 4 million each which they are now claiming from the Defendant.

Negligence/ Breach Of Duty

[9] The Court at the outset determined that as a lawyer representing the Plaintiffs in the Suit 351 the Defendant had a duty of care towards the Plaintiffs as his client. The Court accepted the evidence of the Defendant that at every step of the proceedings he had discussed the case with the Plaintiffs and had informed the Plaintiffs of the progress of the case.

[10] The Court however is of the view that the duty of calling the necessary witnesses lie with the lawyer. The Plaintiffs being laypersons will not be in a position to advise the lawyer of the necessary witnesses to be called. The Court in this case finds as a fact that it was the Defendant who decided that the 2 witnesses as admitted to him while testifying, were not relevant and therefore not necessary to be called.

[11] The next matter to be determined by the Court is whether the failure to call this 2 witnesses caused the Plaintiffs claim in Suit 351 to be dismissed? This will in turn determine whether the Defendant was in breach of his duty of care.

[12] To determine the reasons for the dismissal of the case the Court had to look at the Grounds of Judgment of the High Court Judge who dismissed the Plaintiffs