Vincent Ng J:

In the legal fraternity one often hears of novel points of law and novel approach to resolve points of law. It has often been said to lawyers that, vis-à-vis their client and the court their hallowed and preeminent duty is to the court, but seldom has it been said of lawyers that they battle tooth and nail for their client's cause but then fight hammer and tongs for their clients'demise over their legal fees. Unfortunately, the case at hand before me is perhaps one such uncommon instance of a battle over a relatively paltry fee of RM11,425.51 allegedly due to the lawyer (the defendant) from his client (the plaintiff company) through the novel route of a threat to wind up the plaintiff company by issuance of a Companies Act 1965, ss. 218 (1) (e) read with Companies Act 1965, ss. 218 (2) (a) (the Act). Be that as it may, even had it been the absurd fee of only RM501 (RM1 'exceeding five hundred ringgit'in s. 218(2)(a)), the same principles of law would be applicable. Indeed, this battle is set to continue, as the lawyer has lodged an appeal to the Court of Appeal against my decision, and I have thus to put my forensic ruminations on paper. On the bench in the distant past, I have presided over cases of other tactics used by lawyers to secure payment of, at times, exorbitant fees. But such stories may perhaps make interesting reading material in a judge's post-retirement or post-resignation memoirs should he decide to write one or he may perhaps potter around writing a few novels in the vain hope of hitting the 'Harry Potter'gong of success. I shall now first discuss the law and then the lawyer's case.

The plaintiff had applied vide a summons-in-chambers (encl. 4) for an interim injunction to prevent the defendant from presenting a winding up petition pursuant to Companies Act 1965, ss. 218 until the disposal of the declaratory reliefs sought by the plaintiff being, inter alia, that the defendant's bill amounting to RM11,425.51 is excessive, unreasonable and invalid, and that the defendant is not entitled to the said amount which is disputed. An injunction was first grantedex parte on 8 September 2003, and encl. 7 is the defendant's application to set aside the ex parte injunction.

While having to deal with the issue at hand, being the perennial topic of how does a lawyer earn his keep in the form of fees for his professional services rendered (in the present case, to his erstwhile charge), my ruminations also afforded an opportunity to discuss, as an aside to the real issue at hand for determination, the three great controversies in the realm of commercial law, namely: (A) the law on injunctions to restrain abuse of process in filing petitions for winding-up of companies; (B) the correct procedure on applications for injunctions to restrain abuse of process; and (C) the correct construction to be placed on Companies Act 1965, ss. 218 (2) (a).

A. The Law On Injunctions To Restrain Abuse Of Process In Filing Petitions For Winding-up Of Companies

Though the route taken by the defendant (lawyer) to secure his fees may be novel, the submission by his counsel, Mr. David Ho is not as novel as that taken by a counsel in another action for injunction (see my decision in Guaman Sibil No. D1-24-129-2004) to restrain the filing of a winding-up petition under s. 218(1)(e) read with s. 218(2) of the Act. Counsel in that case made a startling submission that: " the touchstone consideration that the court would have to undertake, is whether the defendant's claim is bound to fail " ; in other words, the onus is thrown upon the plaintiff (the company) to satisfy the court that the defendant's claim is bound to fail before it could succeed to secure an injunction. In support of the application for an injunction learned counsel in that action cited the following five authorities, namely:

(a) Charles Forte Investments Ltd v. Amanda [1964] Ch 240; [1963] 2 All ER 940 (Charles Forte)

(b) Bryanston Finance Ltd v. de Vries (No.