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2011 MarsdenLR 418
COURT OF APPEAL PUTRAJAYA
PUBLIC BANK BERHAD – Appellant
Versus
DATUK MOHD ALI HJ ABDUL MAJID & ANOR – Respondent
[Civil Appeal No:. M-02-17-2009]
The claim for professional negligence regarding unliquidated damages was determined to be a liquidated claim requiring no assessment; sufficient particulars were provided to affirm the Appellant's losses.
Headnote:(A) Limitation Act 1953 - Section 6(3) - Professional Negligence - Claim for damages arising from negligence in prosecuting winding up petition - Appellant sought RM899,190.13 for losses due to Respondents' negligence in handling legal proceedings against a third party - Summary judgment was granted but later ordered for assessment - The Respondents admitted negligence but contended for unliquidated damages - Court clarified the claim as a liquidated sum, adequately particularized based on supporting affidavits. (Paras 1, 5, 6, 8)
(B) Legal Costs and Professional Fees - The Respondents contested claims for legal costs and professional fees asserting lack of evidence - The court found clear affirmation of these payments in the Appellant's affidavit, criticizing the Judge's finding on the insufficiency of evidence. (Paras 7, 8)
Facts of the case:
The Appellant's claim focused on damages resulting from the Respondents' failure to properly manage a winding up petition against ODA Holdings. Following a defective notice, the winding up petition was dismissed, and a delay meant the initial judgment could no longer be enforced.
Findings of Court:
The court determined that the loss was established and did not require further assessment, allowing the appeal against the lower court's decision to assess damages.
Issues: Whether the claim was for liquidated or unliquidated damages and evidentiary requirements for the alleged legal costs and fees.
Ratio Decidendi: The court held that the claim for a specific, ascertained amount was valid and did not necessitate an assessment of damages. The Respondents' professional negligence was established, and the evidence for claims was found sufficient.
Result: Appeal allowed. Orders for assessment set aside; summary judgment affirmed with costs awarded to the Appellant.
| Table of Content |
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| 1. claim for damages due to negligence. (Para 1 , 2) |
[1] In the COURT below, the Appellant's claim against the Respondents was for damages in the sum of RM899,190.13 plus RM26,202.55 plus RM13,691.70 (see page 86 of the Appeal Record), it being the alleged damages suffered by the Appellant on account of the negligence of the Respondents, who were the partners of a firm of solicitors known as Tetuan Mohd Ali & Co, to competently prosecute its winding up petition against its customer, one ODA Holdings (M) Development Corporation Sdn. Bhd. In short, the claim was founded on the professional negligence of the Respondents.
[2] In relation to that claim, the Appellant applied for and was granted summary judgment by the learned Senior Assistant Registrar. However, on appeal by the Respondents to Judge-in-Chambers, the learned Judge ordered damages to be assessed. Against that order of assessment by the learned Judge, the Appellant bank appealed.
