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2024 MarsdenLR 2431
COURT OF APPEAL PUTRAJAYA
PREMALLA NAVANTHAPANY SAMY – Appellant
Versus
TETUAN OTHMAN HASHIM & CO & ANOR – Respondent
[Civil Appeal No:W-02(NCVC)(W)-2454-12-2022]
The court affirmed that a solicitor's advice not to appeal is valid if based on sound legal principles and the client fails to prove negligence or breach of fiduciary duty.
Headnote:(A) Professional Negligence – The Appellant's claim against the Respondents for professional negligence and breach of fiduciary duty was dismissed by the learned Judicial Commissioner – The Appellant failed to prove that the Respondents breached their duty of care or fiduciary duty – The advice given by the 2nd Respondent not to appeal was deemed sound based on the prevailing law and circumstances. (Paras 11-12, 47-48)
(B) Duty of Care – To establish negligence, the Appellant must prove the existence of a duty of care, breach of that duty, and resultant damage. (Paras 13-14)
(C) Loss of Chance – The Appellant must demonstrate actual loss and a reasonable prospect of success in the original claim to recover damages. (Paras 50-56)
Facts of the case: The Appellant entered into a Sale and Purchase Agreement for land that was already charged to a bank, leading to foreclosure and auction. The Appellant's claim for negligence arose from the 2nd Respondent's advice against appealing a High Court decision. (Paras 2-9)
Findings of Court: The learned JC found no breach of duty by the Respondents, affirming that the advice given was appropriate given the circumstances. (Paras 47-48)
Issues: The main issues included whether the Respondents breached their duty of care and fiduciary duty, and whether the Appellant suffered a loss of chance. (Paras 11)
Ratio Decidendi: The court held that the Appellant did not prove that the Respondents acted below the standard of care expected of a competent solicitor, and the advice against appeal was justified. (Paras 47-48)
Result: Appeal dismissed with costs of RM15,000.00 to the Respondents.
JUDGMENT
Introduction
[1] This is the Appellant's appeal against the decision of the learned Judicial Commissioner ("JC") in dismissing the Appellant's claim for professional negligence and breach of fiduciary duty against the Respondents.
Background Facts
[2] The Appellant, in a Sale and Purchase Agreement dated 5 January 2015 ("SPA"), agreed to purchase a piece of land known as P.T. 25974, H.S.(D) 96596, Mukim dan Daerah Petaling, Selangor Darul Ehsan ("the said Land").
[3] However, the said Land was already charged to RHB Bank Berhad ("RHB") as security for a loan by the seller, Normawati prior to the signing of the SPA. Normawati defaulted on her loan, leading to the foreclosure of the land by RHB and its subsequent auction to My Home Properties Sdn Bhd ("MHP").
[4] Later, the Appellant engaged the 2nd Respondent as her counsel. The 2nd Respondent is a partner in the 1st Respondent firm. In this case, the 1st Respondent is being sued for vicarious liability for the 2nd Respondent's alleged professional negligence.
[5] Acting upon the Appellant's instruction, the 2nd Respondent filed a personal caveat dated 30 April 2015 on the said Land. Subsequently, the 2nd Respondent filed a suit in the High Court of Shah Alam against Normawati seeking, among other things, for specific performance of the SPA. The Appellant's action was registered as Civil Suit No: 22NCVC-451-08-2015 ("the Initial Suit"). In the Initial Suit, the High Court had granted an order for specific performance in favour of the Appellant.
[6] Subsequently, the 2nd Respondent filed a suit on behalf of the Appellant seeking for a declaration that the Appellant is the rightful owner of the said Land. MHP had also filed a separate suit claiming the same. The suits were registered as Civil Suit No: BA-22NCVC-373-06-2016 and BA-22NCVC-188-03-2017 ("the Subsequent Suits"). Both of these suits were heard together before the High Court of Shah Alam.
[7] On 11 March 2019, after a full trial, the High Court delivered its judgment in favour of MHP and declared MHP to be the rightful owner of the said Land. DW2, who was an advocate and solicitor from the 1st Respondent firm, attended the proceeding for the Appellant when the judgment was pronounced. DW2 had advised the Appellant not to proceed with an appeal against the said decision. This is the core issue in the present appeal, the details of which will be addressed later in this judgment.
[8] The Appellant then filed a suit against the Respondents for professional negligence, breach of fiduciary duty and loss of chance allegedly suffered by the Appellant as a result of the Respondents' advice, which was claimed to be against the Appellant's best interest as their client.
[9] The learned JC dismissed the Appellant's suit, hence this appeal.
[10] We pause here to note that the Respondents had also filed an appeal against the decision of the learned JC in Civil Appeal No: W-02(NCVC)(W)-85-01-2023. However, when the matter came up before us, the Respondents decided to withdraw their appeal, and there was no objection from the Appellant. We subsequently struck out the appeal with no order as to costs.
Issues
[11] Before us, learned counsel for the Appellant raised the following issues to be determined by this Court, namely:
a. whether the learned JC had erred in finding that the Respondents had not acted in breach of their duty of care towards the Appellant;
b. whether the learned JC had erred in his finding that the Respondents had not breached their fiduciary duty towards the Appellant; and
c. whether the learned JC had wrongly applied the doctrine of loss of chance in holding that the Appellant would not have succeeded in her appeal even if an appeal was filed against the decision in the Subsequent Suits.
Our Findings
[12] We have perused the appeal records and heard the submissions from all parties in this appeal. We have reached a unanimous decision, and our decision is as follows.
First Issue: Professional Negligence
[13] Fi
