Evrol Mariette Peters JC:

Introduction

[1] This was an appeal ("this appeal") by the appellants against the decision of the learned Sessions Court Judge ("SCJ") on 15 January 2020, in allowing the respondent's claim. For ease of reference, the appellants and respondent will be referred to respectively as the defendants and plaintiff.

The Background Facts

[2] The plaintiff, a former partner of Messrs Ravi Aida & Partners, commenced this action ("this suit") at the Sessions Court against all four defendants, for outstanding legal fees in the sum of RM274,500.

[3] The 2nd and 3rd defendants who were corporate advisers to one Tan Bon Kiat and his company AD Travels Sdn Bhd, had appointed Messrs Ravi Aida & Partners to provide legal services for Tan Bon Kiat. The 3rd defendant is a former partner of the 2nd defendant. The 1st defendant is a company operating for the family members of the 3rd and 4th defendants, whilst the 4th defendant is the former finance manager of the 2nd defendant, and a shareholder and director of the 1st defendant.

[4] The 2nd and 3rd defendants had agreed to settle the legal fees owed by Tan Bon Kiat to Messrs Ravi Aida & Partners, and had obtained the money from the 1st defendant. In return, Tan Bon Kiat had purportedly agreed to transfer five units of condominium in Pelita Indah, Johor Bahru to the 1st defendant to contra the payment for the legal fees that had been advanced by the 1st defendant to the 2nd and 3rd defendants.

[5] The plaintiff, however, had discontinued this suit against the 2nd defendant since the 2nd defendant had ceased to be in operation, after the demise of its sole proprietor one, Mr Timothy Oliver Sylvester. On the day of trial at the Sessions Court, on 11 November 2019, the plaintiff had withdrawn/ discontinued this Suit against the 3rd defendant.

[6] The case proceeded against the 1st and 4th defendants (collectively "the defendants"), and the learned SCJ allowed the plaintiff's claim. As a result thereof, the defendants filed this appeal, which was allowed for the following reasons.

The Applicable Law

[7] The starting point for an appellate Court is the presumption that any decision appealed against is correct in every respect. Therefore, to succeed in this appeal, the defendants in the present case must convince this Court that the decision appealed against is wrong; and if this Court was not so convinced, this appeal would fail.

[8] This is because the findings of the trial judge who had the advantage of seeing, hearing, assessing and evaluating the witnesses, must be respected. An appellate Court, therefore, should be cautious of upsetting the findings of the trial judge.

[9] I drew guidance from the following passage of Lord Thankerton in Watt (or Thomas) v. Thomas [1947] AC 487:

"(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion.

(2) The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

(3) The appellate Court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court."

[10]Watt (or Thomas) v. Thomas [1947] AC 487 has been assimilated into Malaysian jurisprudence through several cases including Chow Yee Wah & Anor v. Choo Ah Pat, [1978] 2 MLJ 41, UEM Group Bhd v. Genysis Integrated Engineers Pte Ltd & Anor; [2018] MLJ (Supp) 363; [2010] 9 CLJ