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2022 MarsdenLR 2529
HIGH COURT MALAYA KUALA LUMPUR
ALI REZA ZIBA HALAT MONFARED & ANOR – Appellant
Versus
CHEW BEN BEN & ORS – Respondent
[Suit No: WA-22NCvC-506-09/2017]
A client under an irrevocable Power of Attorney cannot unilaterally change solicitors without formal revocation, and failure to comply with ethical requirements in solicitors' conduct may lead to disqualification of representation.
Headnote:(A) Powers of Attorney Act 1949 – Validity of Power of Attorney – Change of Solicitors – In this case, the court set aside the notice of change of solicitors as the right to appoint counsel must comply with established rules. The 1st Plaintiff, detained abroad, attempted to change representation without proper authority from the registered Power of Attorney (PA). (Paras 12, 25, 38)
(B)
Professional Ethics – The conduct of the new solicitors was found to be improper and constituted a tactical abuse of process, failing to adhere to the Bar Council Rules and Legal Profession (Practice and Etiquette) Rules regarding notice and consent required for changing representation. (Paras 29-36)
Facts of the case:
The 1st Plaintiff is an Iranian detained in Tehran, and the 2nd Plaintiff, who has a power of attorney, represented him in legal matters regarding a property dispute. A notice was filed by purported solicitors, claiming to represent the 1st Plaintiff without proper authority.
Findings of Court:
The conduct of the purported solicitors was questionable, and the notice was set aside because the authority of the alleged new representation was invalid under the existing Power of Attorney arrangement.
Issues
: The core issue was whether the 1st Plaintiff had the legal capacity to appoint new solicitors while under an irrevocable Power of Attorney in favor of the 2nd Plaintiff.
Ratio Decidendi:
The court held that the 1st Plaintiff could not revoke the authority granted to the 2nd Plaintiff without a formal revocation of the Power of Attorney and that any appointment made in anticipation of a change without proper authority invalidates the new solicitors' standing.
Result:
The application to set aside the notice of change of solicitors was allowed.
JUDGMENT
[Enclosure 204 -Plaintiffs' Solicitors' Application To Set-Aside The Notice Of Change Of Solicitors]
Introduction
[1] This is an application ('this Application') whereby the solicitors for the Plaintiffs sought an order to set aside the notice of change of solicitors dated 24 June 2022 filed by another firm.
Brief Facts
[2] The 1st Plaintiff is an Iranian who is the registered proprietor of the property registered under Title No PN35412, Lot 9517, Mukim Ampang, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan, Kuala Lumpur ('the Property'). Meanwhile, the 2nd Plaintiff is a Malaysian and a holder of the power of attorney of the 1st Plaintiff in respect of all dealings over the Property. This arrangement was based on a power of attorney dated 24 November 2015 ('the PA') which was duly registered at the High Court of Malaya in Ipoh (bearing Registration Number: 4396/2015).
[3] The Plaintiffs' main suit against the Defendants ('this Suit') revolved around the alleged sale and purchase agreement entered into between the 1st Plaintiff and the 1st and 2nd Defendants in respect of the Property. The 2nd Plaintiff initiated this action together and/or on behalf of the 1st Plaintiff and appointed Messrs Michael Chow as the Plaintiffs' Solicitor ('the Plaintiffs' Solicitors'). However, on 24 June 2022, a Notice of Change of Solicitors in encl 196 ('the Notice') was sent via email to the Plaintiffs' Solicitors notifying him that the 1st Plaintiff had appointed Messrs Azim Kelvin Zaeffri & Associates ('the Purported Solicitors') to handle the current dispute.
[4] Dissatisfied with the Notice, the Plaintiffs' Solicitors filed this Application to set aside the Notice and ultimately to set aside the appointment of the Purported Solicitors.
The Parties' Submission
[5] In essence, the Plaintiffs' Solicitors had raised abundant grounds to support this Application. Firstly, the Plaintiffs' Solicitors submitted that the Notice was filed without their consent. Hence, the Notice violates r 11.06 of the Bar Council Rules and Rulings and r 54 of the Legal Profession (Practice and Etiquette) Rules 1978. To support their submission, the Plaintiffs' Solicitors cited the case of Techcrew Sdn Bhd v. Nurhamizah binti Hamzah & Ors.
[6] The Plaintiffs' Solicitors further contended that the documents which led to the filing of the Notice were questionable as it was known that the 1st Plaintiff is currently detained in the Tehran prison.
[7] Moreover, it is the Plaintiffs' Solicitors' submission that the 1st Plaintiff is estopped from denying the authority of the Plaintiffs' Solicitors to act in this case. This is because up until the Notice was filed, the Plaintiffs' Solicitors were the ones who appeared in all proceedings related to this action. Therefore, the 1st Plaintiff cannot then at the 11th-hour file the Notice to change his solicitors.
[8] The Plaintiffs' Solicitors also argued that the Notice was premature. This is due to the fact that the appointment of the Plaintiffs' Solicitors is related to the core of the Plaintiffs' claim: The appointment of the Plaintiffs' Solicitors was based on the PA that was given by the 1st Plaintiff to the 2nd Plaintiff. The question of the authenticity of the PA should not be raised at this juncture because it is a question of the crux of the case that has yet to be decided by this Court.
[9] The Purported Solicitors on the other hand, submitted that the 1st Plaintiff has never authorised the 2nd Plaintiff to initiate this action against the Defendants. There was also no need for the Purported Solicitors to get consent from the Plaintiffs' Solicitors for their appointment. To support this, they quoted the case of Messrs Albert Ding, Lee & Partners v. Cho Chooi Mei, .
[10] The Purported Solicitors also contended that the 1st Plaintiff had spoken with them and had instructed them to withdraw this action. The Purported Solicitors had attached several documents in their affidavits to show t
