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2025 MarsdenLR 4946
HIGH COURT MALAYA KUALA LUMPUR
RAJA NOR HISHAM RAJA HIZAT – Appellant
Versus
NUR SYUHADA ISMAIL – Respondent
[Civil Suit No: WA-24NCvC-512-02/2024]
Substantial disputes of fact require conversion of originating summons to writ action, allowing for cross-examination and resolution through proper legal procedures.
Headnote:(A) Rules of Court 2012 - Order 5 r 2, Order 28 r 8, Order 24 r 3 - Originating Summon not suitable for substantial disputes of fact; conversion to Writ Action granted. The court recognizes the need for cross-examination in disputes involving conflicting accounts. The Plaintiff sought the return of documents and funds held by the Defendant, establishing a prima facie case for a solicitor-client relationship. (Paras 36, 41, 50)
(B) Solicitor-Client Relationship - The Plaintiff was entitled to direct transfer of documents to new solicitors following termination of the Defendant's services. (Paras 42, 50)
Facts of the case:
The Plaintiff, a landowner, engaged the Defendant as a solicitor for a sale of property, yet faced non-compliance regarding the release of a stakeholder deposit and subsequent complications due to unauthorized renovations. (Paras 1-16)
Findings of Court:
The court found that the issues required a writ action due to substantial factual disputes, and ordered the transfer of all relevant documents to the Plaintiff's new solicitors and the provision of a Statement of Account. (Paras 36, 50)
Issues: Whether the Originating Summon was an appropriate legal mechanism, and the Plaintiff's entitlement to the return of documents and funds held by the Defendant. (Paras 36, 48)
Ratio Decidendi: The court determined that substantial disputes of fact necessitate the conversion of originating summons to writ actions, enabling proper examination and resolution through cross-examination of witnesses. (Paras 41, 49)
Result: Parts of the Plaintiff's prayers allowed; Originating Summon converted to Writ Action.
| Table of Content |
|---|
| 1. facts regarding ownership and transaction (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. details of the sale and the plaintiff's concerns (Para 7 , 8 , 9 , 10 , 11 , 12) |
| 3. actions taken by the plaintiff following transaction issues (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 4. plaintiff's legal claims and demands (Para 21 , 22 , 23 , 24) |
| 5. plaintiff's argument for stakeholder status (Para 25 , 26 , 27 , 28) |
| 6. defendant's opposition and counterclaims (Para 29 , 30 , 31 , 32 , 33 , 34) |
| 7. court's observations on dispute resolution (Para 35 , 36 , 37 , 38 , 39 , 40 , 41) |
| 8. orders for discovery and document transfer (Para 42 , 43 , 44) |
| 9. court's final conclusions (Para 49 , 50) |
[Originating Summons]
A. Introduction
Background Facts
[1] The Plaintiff is a registered owner of a piece of land held under GRN 111047, Lot 546, s 2, Bandar Banting, District of Kuala Langat, State of Selangor with a 2-storey terraced house bearing postal address at No. 78, Jalan Baiduri 6, Taman Baiduri, 42700 Banting, Selangor ("the Property").
[2] The Defendant is a practising advocate and solicitor being a member of the Malaysian Bar and is a partner of Messrs Syuhada Ismail & Co
[3] The Plaintiff intended to sell the Property and had appointed the Defendant's firm of Messrs Syuhada Ismail & Co as her solicitor to protect her interests. Amongst the main duties of the Defendant is to represent the Plaintiff in the preparation of the sale and purchase agreement and all other relevant documents, being a stakeholder, trustee and agent for monies received for and on behalf of the Vendor/the Plaintiff and manage all matters relating to the sale and purchase of the Property.
[4] On 28 July 2023, the Plaintiff had paid a legal fee of RM 1,000.00 to the Defendant.
[5] On 18 October 2023 at about 3.00 pm, one of the Defendant's legal assistants in the name of Syafiqa binti Mohammad attended to the Plaintiff, at the Plaintiff's residential address for the purpose of getting her to sign the sale and purchase agreement together with other relevant documents.
[6] A sale and purchase agreement dated 23 October 2023 ("the SPA") was entered between the Plaintiff (interchangeably referred to as "the Vendor") and a buyer in the name of Chee Han Guan ("the Purchaser") upon terms and conditions contained therein.
[7] Clause 1.01 and Item 5 of the First Schedule of the SPA provides that a deposit in the sum of RM65,000.00 shall be paid in the following manners:
i. Earnest Deposit in a sum of RM12,243.00 had been paid to the appointed real estate agency, i.e., The Roof Realty Sdn Bhd (1147810-W) prior to the execution of the SPA; and
ii. the balance deposit in the sum of RM52,757.00 only shall be paid by the Purchaser to the Vendor's solicitor namely the Defendant's legal firm upon signing the SPA.
[8] Based on the terms and conditions of the SPA, the balance deposit of RM52,757.00 which was paid by the Purchaser to the Defendant, as the Plaintiff/Vendor's solicitors upon execution of the SPA was to be held as a stakeholder fund by the Defendant for the Plaintiff, as provided under cl 1.03 of the SPA, until the Plaintiff executed the SPA.
[9] The Defendant's legal assistant in the name of Syafiqa informed the Plaintiff that the Balance Deposit of RM52,757.00 which was held as a stakeholder sum will be released to the Plaintiff a few days after the executed SPA being stamped.
[10] The Plaintiff had requested from Syafiqa to release the Balance Deposit, but Syafiqa refused, failed and/or neglected to release the said balance deposit to the Plaintiff.
[11] Not long after that, the Plaintiff felt disappointed after she found out that the Property was trespassed, and renovation works was carried out without her consent and knowledge. The Plaintiff also did not receive any monies upon signing and stamping of the SPA.
[12] The Plaintiff tried several times to contact Syafiqa through her mobile phone and contacted the Defendant through her mobile phone but to
