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2013 MarsdenLR 715
HIGH COURT MALAYA KUALA LUMPUR
LIAN MENG WAH – Appellant
Versus
TAN WAI MENG & ORS – Respondent
[Civil Suit No: S7-22-790-2008]
The initiation of bankruptcy proceedings by the defendants against the plaintiff constituted an abuse of legal process, resulting in a finding of tortious conspiracy to injure the plaintiff's career and livelihood.
Headnote:(A) Tort of Conspiracy - Abuse of Process - The defendants committed the tort of conspiracy to injure the plaintiff by initiating bankruptcy proceedings and filing a Certificate of Urgency containing false statements, injuring the plaintiff's reputation and career (Paras 60-84).
(B) Summary Judgment - The court found that no triable issue existed, allowing for a summary disposal of the plaintiff's claim (Paras 58, 62, 64).
(C) Defendants' Defenses - The court rejected defenses of estoppel, res judicata, and privilege, determining that the multiple proceedings against the plaintiff were abusive and mala fide (Paras 92-106).
Facts of the case:
The plaintiff filed suit seeking damages for conspiracy and abuse of process stemming from actions by the defendants, who were also advocates. He claimed injury from bankruptcy proceedings initiated against him without merit. (Paras 6-30).
Findings of Court:
The court concluded the defendants had acted maliciously and abused the legal process to cause harm to the plaintiff without any justification, ordering damages to be assessed (Paras 60-88).
Issues: The main issues included whether the actions taken by the defendants constituted an abuse of process and if the defenses raised were valid (Paras 92-94).
Ratio Decidendi: The court ruled that the defendants' actions were clearly intended to cause harm rather than to resolve legitimate legal grievances, leading to an abuse of the court's process (Paras 60-84).
Result: The plaintiff's application was allowed, and the defendants' counterclaim was dismissed with punitive costs.
| Table of Content |
|---|
| 1. plaintiff and defendants' professional backgrounds (Para 1 , 2 , 3 , 4 , 5) |
| 2. details of the letter of instruction and undertaking (Para 6 , 7 , 8) |
| 3. initial dispute leading to garnishment (Para 9 , 10 , 11 , 12) |
| 4. subsequent proceedings regarding the deposit (Para 13 , 14 , 15 , 16 , 17) |
| 5. bankruptcy notice issued against the plaintiff (Para 18 , 19 , 20 , 21 , 22) |
| 6. second garnishment and its effects on the plaintiff (Para 23 , 24 , 25 , 26) |
| 7. plaintiff’s suit seeking damages (Para 27 , 28 , 29 , 30) |
| 8. defendants' denial and counterclaims (Para 31 , 32 , 33 , 34 , 35) |
| 9. defendants' defenses and claims of res judicata (Para 36 , 37 , 39 , 40) |
| 10. plaintiff's rebuttal to defendants' claims (Para 41 , 42 , 43 , 44) |
| 11. striking out of the plaintiff's suit. (Para 45 , 46 , 47 , 48 , 49) |
| 12. court’s decision to allow plaintiff's application (Para 58 , 60 , 61 , 62) |
| 13. court's decision based on evidence and submissions. (Para 63) |
| 14. findings on conspiracy to injure (Para 82 , 84) |
[1] The plaintiff and all the 5 defendants were advocates and solicitors of the High Court of Malaya at the material time.
[2] The plaintiff is also a senior member of the Bar, having practised at the Bar since 1994.
[3] The 1st to the 3rd defendants were the partners of a legal firm, namely, M/s Nasir, Kenzin & Tan (the "firm") at the material time while the 4th and 5th defendants were the legal assistants in the firm.
[4] The 4th defendant is also the younger brother of the 2nd defendant.
[5] The plaintiff's pleaded case, as stated in his Statement of Claim dated 26 December 2004, is as follows:-
The Letter Of Instruction And The Letter Of Undertaking
[6] Based on a letter of instruction dated 3 November 2003 (the "letter of instruction"), which was issued by a vendor,namely, Mohd Nizar Omar and a purchaser, namely, Yusfida Arsat, the firm issued an irrevocable and unconditional letter of undertaking (the "letter of undertaking") to pay to the plaintiff a sum of RM 52,00000 (in respect of the sale and purchase transaction between the vendor and the purchaser) which was deposited with the firm (the "deposit").
[7] The letter of undertaking was signed by the 4th defendant on behalf of the firm, which acted as the plaintiff's stakeholders, in favour of the plaintiff.
[8] Nevertheless, the firm has refused to release the deposit to the plaintiff.
Kuala Lumpur Sessions Court Case No 9-52-2506-04
[9] As a result of a dispute between the plaintiff and the 4th defendant, the latter sued the plaintiff in the Kuala Lumpur Sessions Court in case No 9-52-2506-04.
[10] On 18 May 2004, the 4th defendant obtained summary judgment for a sum of RM 50,75000 (the "judgment sum") against the plaintiff.
The 1st Garnishment Proceeding
[11] On 17 July 2004, the 4th defendant successfully applied to garnish a sum of RM 20,00000 from the deposit to partially satisfy the judgment sum thereby leaving the balance judgment sum of RM 30,75000 still unpaid and owing to the 4th defendant.
[12] According to the plaintiff, the 4th defendant had deliberately done that although he knew that he could have applied to garnish the whole of the judgment sum from the deposit as the amount of the deposit, ie RM 52,00000 was clearly in excess of the judgment sum, ie RM50,75000.
Kuala Lumpur Sessions Court Case No 7-52-23768-2004
[13] On 4 October 2004, the plaintiff commenced an action in the Kuala Lumpur Sessions Court, ie case No: 7-52-23768-2004, against the 3 partners of the firm, ie the 1st to the 3rd defendants in the instant suit, for payment of the deposit, ie the sum of RM 52,00000, held by the firm as the stakeholders of the plaintiff, based on the letter of instruction and the letter of undertaking.
[14] On 21 January 2005, the plaintiff applied for summary judgment against the 3 partners of the firm, ie the 1st to the 3rd defendants' in the instant suit, for the deposit.
[15] On 12 August 2005, the learned Sessions Court Judge granted summary judgment to the plaintiff. The firm filed a n
