Nik Hashim JC:

The respondent, Dato' V. Sivaparanjothi, filed an application by way of summons-in-chambers under O 18 r 19 of the Rules of the High 1980 (the Rules) to strike out the petition of the petitioner, Pengkalen Holdings Bhd that the solicitor's Bill of Costs No VSP/127/96 of the respondent be taxed pursuant to Legal Profession Act 1976, s 128(1) ('the Act'). The grounds of the application are that the petition discloses no reasonable cause of action (r 19(1)(a)), scandalous, frivolous and vexatious (r 19(1)(b)) and abuse of the process of the Court (r 19(1)(d)).

The respondent is the sole proprietor of the legal firm Messrs V Siva & Partners. The firm was appointed on 17 May 1996 to represent the petitioner in the takeover bid by Malayan United Industries Bhd ("MUIB") and in an action in the High Court Malaya at Kuala Lumpur (Commercial Division) Sivil Suit No D2-22-337-96 between Loyal Design Sdn. Bhd as plaintiff and the petitioner and six of its directors as defendants. The petitioner claimed that the Bill of Costs of RM960,569.50 comprising RM850,000 for professional fees, RM42,500 for 5% service tax and RM68,069.50 for actual and expected disbursements, was very high and excessive. Hence the petition for taxation.

In considering whether any proceedings are vexatious the Court is entitled to look at affidavits as to the history of the case, and if in the light of the history the action is vexatious, the case can be struck out and the action dismissed ( Re Vernazza[1959] 2 All ER 200 ; Jamir Hassan v. Kang Min, [1991] 3 CLJ 2490 [1992] 2 MLJ 46).

Similarly, I would apply the above-mentioned principles to the present case. Since the application to strike out the application is not limited solely on the ground under para (a) of r 19(1), but also on paras (b) and (d) thereof, the Court is therefore entitled to scrutinise the evidence in order to decide whether the petition is obviously unsustainable or bound to fail. Accordingly, the Court will do likewise in this case. Thus, this ruling answers the petitioner's counsel earlier objection over the reference of JB Tan's affidavit by the respondent's counsel in support of his argument to strike out the petition.

It is pertinent to note that the petitioner had appointed the respondent as solicitor to act for them and by the Directors' Resolutions dated 23 May 1996 they have agreed to make payment to Messrs V. Siva & Partners in respect of the legal fees or any other related expenses which may be incurred in relation thereto. Subsequent to the appointment, the respondent retained four advocates and solicitors to assist him. The first part of the Bill of RM500,000 was paid on 27 May 1996, while the balance of RM460,569.50 was paid on 26 July 1996 being the full settlement of the Bill. Two official receipts for the payments thereof were issued by the respondent. The first receipt was for "being part payment towards irrefundable fees professional and disbursements", while the second one stated for "being full settlement towards irrefundable professional fees and disbursements vide Bill No VSP/127/96". On 16 August 1996 there was a change of Board of Directors and Managers following th