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2024 MarsdenLR 3405
HIGH COURT MALAYA PULAU PINANG
SIN KHENG HOOI – Appellant
Versus
GOVINDARAJU KUPPUSAMY – Respondent
[Civil Suit No: PA-23NCVC-6-05/2022]
A plaintiff must prove professional negligence on a balance of probabilities, and claims may be dismissed if time-barred or lacking merit.
Headnote:(A) Insolvency Act 1967 - Section 38(1)(a) - Limitation Act 1953 - Section 6 - Professional negligence claim against solicitor for negligent legal advice resulting in wrongful entry of private caveat - Plaintiff's claim dismissed as he failed to prove negligence and was time-barred. (Paras 47, 65)
(B) Burden of proof lies on the Plaintiff to prove negligence on a balance of probabilities. (Para 22)
Facts of the case:
The Plaintiff alleged professional negligence against the Defendant for advising him to lodge private caveats on properties unrelated to his civil suit, resulting in damages and bankruptcy. (Paras 2, 17)
Findings of Court:
The Plaintiff's claim was dismissed on grounds of failure to prove negligence and being time-barred under the Limitation Act. (Paras 47, 65)
Issues: Whether the Plaintiff is competent to maintain the action, if the claim is time-barred, and whether the Defendant was negligent. (Paras 21, 22)
Ratio Decidendi: The court found that the Plaintiff did not discharge his burden of proof to establish negligence and that the claim was time-barred as it was filed beyond the limitation period. (Paras 47, 65)
Result: Claim dismissed.
JUDGMENT
Introduction
[1] This case yet again highlights the perilous nature of the job of a professional who is liable to be sued by a client for professional negligence.
[2] This present case is a claim by the Plaintiff against his solicitor, the Defendant for professional negligence and breach of retainer arising from an allegation of negligent legal advice leading to a wrongful entry of a private caveat. The Plaintiff's claim is for damages suffered arising from the alleged negligence.
[3] I will in this judgment set out the salient background facts, the issues that have arisen that require adjudication and my analysis of the same with the ultimate goal of determining whether the Plaintiff has discharged the burden of proving on a balance of probabilities that the Defendant is negligent and/or breached his retainer as alleged.
Background Facts
[4] The salient background facts are largely undisputed and can be summarized as follows.
[5] Sometime in December 2012, the Plaintiff, a businessman had commenced a civil suit in the Penang High Court vide PA-22NCVC-848-12/2012 (hereinafter referred to as "Suit 848") against his late brother Sin Kheng Chuan and his sister-in-law, Saw Phek Lean. The substance of Suit 848 is of no relevance to the Suit at hand.
[6] Whilst the Plaintiff was initially represented by Messrs Sunny Khoo & Associates, he however in November 2014 decided to engage the Defendant who was practising as a sole proprietor in Messrs G Raju & Co to take over the conduct of the matter and to represent him in Suit 848.
[7] Very soon after the appointment of the Defendant, the Plaintiff on 6 November 2014 through the Defendant's legal firm lodged two private caveats on the following properties allegedly on the advice of the Defendant:
a. GRN 34843 held under Lot No 2805, Town of Gelugor, District of Timor Laut, State of Penang, registered under the name of the late Sin Kheng Chuan and one of the Defendants in Suit 848;and
b. GRN 13441 held under Lot No 594, s 3, Town of Jelutong, District of Timur Laut, State of Penang registered under the name of SKB Holdings Sdn Bhd where both the Defendants in Suit 848 were either the shareholders and/or directors at the material time.
(hereinafter collectively referred to as the "said properties").
[8] The said properties were in no way connected and/or related to the matter in Suit 848.
[9] It is the Plaintiff's case that the two private caveats were lodged on the said properties on the advice of the Defendant as the Defendant had required the Plaintiff to identify two properties owned by the Defendants in Suit 848 to ensure that any damages obtained in that Suit could be enforced.
[10] On 3 December 2014, SKB Holdings vide their solicitors, Messrs Choy & Associates wrote a letter to the Plaintiff indicating that the Plaintiff had no grounds to lodge the said private caveat and requested the removal of the private caveat lodged on Lot 594, Seksyen 3, Bandar Jelutong, Daerah Timur Laut, Pulau Pinang.
[11] As the Plaintiff did not remove such caveat, SKB Holdings then vide Originating Summons No 24NCVC-575-06/2015 (hereinafter referred to as "OS 575") sought to remove the said private caveat lodged on the said Lot 594.
[12] The Defendant represented the Plaintiff and resisted OS 575. However, vide High Court Order dated 1 October 2015. the private caveat lodged by the Plaintiff registered on the said Lot 594 was ordered to be removed with the consequential order for damages to be assessed before a Registrar.
[13] It is pertinent to note that the Plaintiff herein did not appeal against the above High Court Order dated 1 October 2015 removing the private caveat.
[14] The assessment of damages pursuant to the Court Order dated 1 October 2015 then proceeded whereafter on 24 May 2016, the Registrar assessed the damages and awarded a sum of RM308,915.88 in favour of SKB Holdings. Dissatisfied with the said decision, the Plaintiff filed an appeal in Chambers on 26 May 2016. Such appeal wa
