Appadurai A/l Ponnusamy

v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
[1998] 7 MLRH Anor 901

APPADURAI A/L PONNUSAMY

v.
PENTADBIR HARTA PESAKA APPALASAMY A/L
NOOKIAH, DECEASED & ANOR

High Court, Alor Setar

Mohd Hishamudin J
[Originating Summons No 24-1252 Of 1996]
31 October 1998

JUDGMENT
The present application concerns a piece of land known as lot no. 290 Mukim
Sungai Ular, Daerah Kulim, Kedah. The original owners were one Lim Chiang
Wong and one Lim Chiang Por (hereinafter to be called 'original landowners'). The
land was jointly purchased by 63 persons, all of whom were members of the
'Kesatuan Kebangsaan Pekerja-Pekerja Ladang' (hereinafter to be called
'Kesatuan'). The plaintiff was one of them.
It is the plaintiff's claim that he and one Appalasamy a/l Nookiah collected from
the members various sums of money ranging from RM500 to RM 7,000 per
member to pay for the land which was priced at RM240,000. The collection, which
amounted to RM219,828 (hereinafter to be called 'initial payment'), was paid to the
original landowners subsequent to the [2] execution of the agreement on 9 August
1983 (hereinafter to be called 'first agreement'). However, only the plaintiff and the
said Appalasamy, who is now deceased, were signatories in this agreement. Messrs
Rajadurai & Co. acted for the purchasers while Messrs Cheong Wai Meng & Van
Buerle for the landowners.
After this initial payment, the 'Kesatuan' members were unable to raise the balance
sum. By reason of the inordinate delay in completing the contract, the original
landowners threatened to forfeit the initial payment. A meeting of all the
contributors was convened, sometime in March 1995, to discuss the course of
action to be taken. At the said meeting, it was unanimously agreed that the land be
sold to pay off the original landowners and any remaining sum distributed among
the contributors in proportion to their earlier contributions.
A purchaser, Sri Awona Sdn. Bhd. (hereinafter to be called 'Sri Awona'), was
found and the land was sold at RM435,060. The second defendant, a firm of
solicitors, was retained by the plaintiff and the deceased in this transaction while
Messrs Lim Kiam Hoon & Co. acted for Sri Awona. Upon execution of the
contract on 9 July 1995 (exh. AP-3 to encl. 1) (hereinafter to be called 'second
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
902 Anor [1998] 7 MLRH

agreement'), Sri Awona paid to the second defendant a sum of RM150,000. A

second instalment of RM50,000 was paid on 1 November 1995. It was agreed that
the balance sum of RM235,060 should be held by Messrs Lim Kiam Hoon & Co.,
as stakeholders, to be released in accordance with clause 3 of the Second Schedule
of the second agreement. (The said provision provided that the money should be
paid within four (4) months from the date of the second agreement or upon
obtaining approval for the [3] conversion and subdivision of the said land into
commercial and/or residential and/or industrial project and for the approval of the
layout plan, whichever was the later.)
The second defendant used the sale proceeds received from Sri Awona to pay off
the original landowners through the latter's solicitors. Due to the delay in
completing the first agreement, the original landowners insisted on interest and it
was agreed by both parties to the first agreement that the former should be paid
RM125,000 as full and final settlement. Messrs Cheong Wai Meng & Van Buerle
issued a receipt, exh. AP-4 in encl. 2, for this payment.
By the plaintiff's calculation, there was still RM75,000 left with the second
defendant as, up to that date, Sri Awona had paid RM200,000. He sought the
release of this RM75,000 with a view of distributing it to the members of the
'Kesatuan' who had, earlier on, contributed to the purchase of the land. However,
the plaintiff claims that Encik Shaik Anwar Raja (hereinafter to be called 'Encik
Shaik Anwar'), one of the second defendant's partner refused to release the money.
He was told that the money had to be retained to pay brokerage fee to a person by
the name of Maniam. This Maniam was alleged to have procured the purchaser,
Sri Awona, and, for that, he had to be paid RM135,000. The plaintiff objected to
this payment and insisted that the RM75,000 should be released to him. The
second defendant was equally adamant in its refusal. When it was obvious that the
second defendant was not going to release the money, the plaintiff appointed the
present solicitor, Messrs Subbiah & Co., to assist him. Although an exchange of
correspondence took place [4] between the two solicitors, the parties were unable
to settle this matter out of Court. Hence, the plaintiff filed the present application.
The original application named the estate of the late Appalasamy as the first
defendant. However, the Court was informed by Encik Ranjit, the learned counsel
for the plaintiff, that the plaintiff did not intend to pursue against the estate of the
deceased for the time being as no letters of administration had been extracted. The
plaintiff was, therefore, only seeking the following two reliefs against the second
defendant:
3. ;Suatu Deklarasi bahawa Tetuan Anwar & Maikal tidak berhak untuk
membuat bayaran sebanyak RM50,000.00 kepada satu Encik Maniam
daripada wang pendahaiuan yang diterima daripada Sri Awona Sdn. Bhd.
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
[1998] 7 MLRH Anor 903

4. ;Suatu Deklarasi bahawa Tetuan Anwar & Maikai membayar wang sebanyak
RM75,000.00 yang kini sepatutnya dalam pegangan mereka kepada Plaintif untuk
dibahagi-bahagikan kepada orang-orang yang disebut di Perenggan 2 di atas,
berdasarkan sistem pro-rata berasaskan amaun-amaun yang disumbangkan oleh
mereka dahulu.

Encik Shaik Anwar filed an affidavit in reply (encl. 9) on behalf of the second
defendant. In it he denies the plaintiff's claim. He alleges that it was the plaintiff
and the deceased who had sought him out to assist in the sale of the land. They
impressed upon him the urgency of a sale as by that time they had already received
the original landowners' threat of forfeiture. [5] He was given a written mandate to
sell the land at only RM300,000. He also claims that at the same time, he was
informed by them that the son-in-law of the deceased, one Maniam a/l
Ponnusamy, had been issued with a letter of option.
According to Encik Shaik Anwar, he met the said Maniam who informed him that
a buyer could be found through the assistance of one Dr. Lai Nam Kuang
(hereinafter to be called 'Dr. Lai') from Bukit Mertajam, Penang. On his
instructions, Maniam arranged a meeting between the three of them, that is,
Maniam, the said Dr. Lai and himself. At this meeting, it was proposed that Dr.
Lai and Maniam be allowed to retain the excess, if any, in the event that they were
able to sell the land at a price higher than RM300,000 since the asking price for the
land was only RM300,000 (hereinafter to be called 'proposal'). According to Encik
Shaik Anwar, acting on the strength of the letter of mandate, he agreed to the said
proposal and a letter to Dr. Lai to the following effect was issued (exh. SAR-1B of
encl. 13): Our Ref:Your Ref:Date: AM/KUL/HS/011511/6/1995
Dr. Lai Nam Kuang
54, Aston Road,
Bukit Mertajam,
Pulau Pinang.
Dear Sir,
Sale and Purchase of Property Known as Lot 290,
Mukim of Sg. Ular, District of Kulim
_______________________________
We refer to the above matter and to the meeting between your goodself, Mr.
Maniam and our En. [6]
Anwar at your office on 9th June 1995.
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
904 Anor [1998] 7 MLRH

We now confirm the following:-

1. ;Our client has ageed to sell the said property at RM 300,000/- with
vacant possession.
2. ;RM 100,000/- deposit payable upon execution of the Sale and
Purchase agreement. Balance of Purchase Price is payable within 4
months of execution of Sale and Purchase Agreement or upon approval
of Layout Plan to be submitted by the Purchaser whichever is earlier.
3. ;No commission or "brokerage" is payable to you but you are entitled
to the difference if any between the Purchase Price and the Selling Price
of RM 300,000/- on your undertaking to pay any tax levied on the excess
amount.

Thank you.
Yours Faithfully,
sgd.
............................
c. ;c. 1. Appadurai s/o Ponnusamy Ladang Padang Meiha, Padang Serai,
Kedah.
2. ;Applasamy s/o Nookaiah No. 1207, Jalan Bukit Awi, 09000 Kulim,
Kedah.
3. ;Maniam s/o Ponnusamy 42, Taman Bunga Mawar, 09000 Kulim, Kedah.

This proposal, Encik Shaik Anwar alleges, was communicated to both the plaintiff
and the deceased and that neither of them raised any objection.
The second defendant's stand is that it had always been ready and willing to release
the proceeds of the sale. However, the release was subject to two conditions, that
is, it should be to both the plaintiff and the deceased and not just to either one of
them and, secondly, the amount to be released must be as determined by the
second defendant. This stand, [7] Encik Shaik Anwar submits, had been
communicated to the plaintiff through Messrs Subbiah & Co. vide the second
defendant's letter of 27 April 1996 (exh. AP-11 of encl. 2) which carried with it a
statement of account. The letter and the statement of account appears as follows:
Our Ref: AM/KUL/HS/0115
Your Ref: ST/K/96-L/005/AP/fi
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
[1998] 7 MLRH Anor 905

27-4-1998
M/S SUBIAH & COMPANY,
Advocates & Solicitors,
No:16, 1st Jalan Raya,
09000 Kulim,
Kedah.
Dear Sirs,
Re: PROPERTY: LOT NO. 290, MUKIM OF SUNGAI ULAR, KULIM,
KEDAH.
____________________________________________________________
Your letter dated 23rd March 1996 refers.
We enclose herewith the following:-
1. ;A copy of the Sale and Purchase Agreement dated 9th July 1995.
2. ;A statement of the sums of moneys received and disbursed.
3. ;A copy of letter of Option by the Vendors to one Maniam s/o
Ponnusamy.

The balance purchase price will be paid by the Purchaser as per Clause 3 of
the Second Schedule of the said Sale and Purchase Agreement.
We hereby confirm that we have not received the balance purchase price form
the Purchaser. In this regard we have already written to the Purchaser vide our
letters dated 13/2/96 and 17/3/96. A copy of same is enclosed for your
reference. [8]
We shall not release the balance purchase price amounting to RM 152,000
(300,000 - 125,000 - 10,000 -4,000 - 9,000) to Mr. Applasamy. We have on
many occassions assured Mr. Appadurai (your client) that we will only release
the balance purchase price to both Mr. Applasamy and Mr. Appadurai and
not to either one of them.
Thank you.
Yours faithfully
(Signature illegible)
c. ;c. i) Mr. Applasamy s/o Nookaiah.
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
906 Anor [1998] 7 MLRH

ii) ;Mr. Maniam s/o Ponnusamy.

Total payments received from the Purchaser as at 25/3/96. RM 150,000/-dated

9/7/95. + RM 50,000/-dated 1/11/95 RM 200,000/-
Moneys disbursed as at 25/3/96. 1)RM 125,000/-To M/S Cheong Wai Meng
Solicitors for the original Vendors. 2)RM 50,000/-To Mr. Maniam part payment of
moneys due to him (RM 135,000.00 - RM 50,000/-) 3)RM 10,000/-Fee to M/S
Anwar & Maikal 4)RM 4,000/-To Mr. Appadurai 5)RM 9,000/-To Mr.
Appalasamy (RM 4,000/- + Rm5,000/- paid by Mr Appalasamy as interest
payment to the Original Vendors) __________ RM 198,000/- __________ Sgd.
Illegible
[9]
Both parties filed in written submissions. Although neither party indicated to the
Court whether or not the balance purchase price had already been forwarded by
Messrs Lim Kiam Hoon, the second defendant in its written submissions gave an
account of the total sale proceeds. This statement, which differs from the statement
attached to its letter of 27 April 1996, appears as follows:
(i) ;RM50,000 to Maniam;
(ii) ;RM10,000 to the second defendant being the legal fees due;
(iii) ;RM4,000 paid to the plaintiff;
(iv) ;RM9,000 previously paid to the deceased and
(v) ;RM85,000 to Dr. Lai.

The issue before this Court is, therefore, whether or not the proposed deductions
by the second defendant is right in law.
I shall now deal with item (i). For the second defendant, Encik Shaik Anwar
contends that Maniam must be paid as the plaintiff and the deceased had issued
him a letter of option on which the latter had acted for the benefit of the deceased
and the plaintiff.
An English translation of the said option, exh. AP-1 to encl. 23, appears as follows:
We, Applasamy s/o Nokaiya I/C No:0129095 of Lot 1207 Jalan Bukit Awi,
09000 Kulim and Appadurai [10] s/o Ponnusamy I/C No:2838892 of Padang
Meha Estate, Padang Serai,
hereby give option to Maniam s/o Ponnusamy, II/C No:8016263 of house
No:362, Jalan Pondok Labu, Kulim to purchase Lot 290 Mukim Sungai Ular,
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
[1998] 7 MLRH Anor 907

Kulim Dirstict, a land area of 9 relong 323 Jemba 20 feet, for a purchase price of
RM300.000/- three hundred thousand only to the abovementioned from 12.5.1995
to 27.5.95.
12.5.1995 till 27.5.1995.N. APPLSAMYP. APPA DURAI(Sgd) illegible(Sgd)
illegible01290952938892

The reply by Encik Ranjit Singh, the learned counsel for the plaintiff, is both
concise and direct to the point. He submits that the provisions in the Valuers,
Appraisers And Estate Agents Act, 1981 renders the letter of option unenforceable
because there was no evidence to show that Maniam had the legal authority to act
as a broker.
Encik Ranjit, in his submission on the legal authority of Maniam as a broker, refers
to s. 2 of the Act which reads as follows:
s. ;2 Interpretation.
"estate agency practice" means acting or holding oneself out to the public as
ready to act, for reward, as an agent in respect of the sale or other disposal of
land and buildings and of any interest therein or the purchase or other
acquisition of land and buildings and of any interest therein or in respect of
the [11] leasing or letting of land and buildings and of any interest therein;

In the present case, what was done by Maniam falls within the above defination as
Maniam had assisted in the disposal of the land by procuring Sri Awona. And,
Maniam had assisted with the expectation of a reward.
s.22B(1) of the Act which makes registration a condition precedent for a person
seeking to conduct real estate practice reads as follows:
22B Estate Agency practice.
(1) ;Subject to the provisions of this Act, a registered estate agent who has been
issued with an authority to practise by the Board shall be entitled to practise his
profession and shall be authorised to undertake estate agency practice including
negotiations for sales, purchases, lettings and leasing by agreement or tender.
(2) ;..............
In the absence of such a registration, Maniam's act amounts to an offence under s.
30(h). The said section reads as follows:
30. ;Offences.
Any person who -
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
908 Anor [1998] 7 MLRH

(a) ;....................
(b) ;....................
(c) ;.................... [12]
(d) ;....................
(e) ;....................
(f) ;....................
(g) ;....................
(h) ;not being a person acting under the immediate personal direction and
supervision of a registered valuer, appraiser or estate agent carries out or
undertakes to carry out any work provided under section 19 or 22B,

commits an offence and is liable on conviction to a fine not exceeding five

thousand ringgit and to a further penalty of five hundred ringgit for each day
during the continuance of such offence.
In addition, s. 22C(1)(c) of the Act disallows the said Maniam from claiming the
said brokerage fees. This provision reads as follows:
22C Restriction on estate agency practice.
(1) ;No persons shall unless he is registered estate agent -
(a) ;....................
(b) ;....................
(c) ;undertake any of the work specified in section 22B; or
(d) ;be entitled to recover in any court any fees, charges or remuneration for any
professional advice or services rendered as an estate agent .

[Own emphasis]
In view of the abovestated legal provisions, it is clear that no brokerage fees could
be paid to Maniam.
Item (ii) is the professional fee due to the defendant. There is absolutely no doubt
that the [13] the second defendant is entitled to professional fee. However, the
issue is how much is the second defendant entitled to? For the plaintiff, Encik
Ranjit contends that the second defendant's fees must be within the Solicitors Scale
of Fees and that works out to only RM2,675. Encik Shaik Anwar argues that the
second defendant is entitled to the agreed fees of RM10,000. This is because, apart
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
[1998] 7 MLRH Anor 909

from the usual conveyancing matters, the second defendant had to find a purchaser
for the land and, at the same time, negotiate a settlement with the original
landowners. It is also the second defendant's allegation that it was solely through
Encik Shaik Anwar's efforts that the original landowners' initial demand of
RM148,960 was reduced to RM125,000.
The Legal Profession Act, 1976 which governs the remuneration of advocates and
solicitors is exhaustive. Part IX of the Act lays down the manner in which a
solicitor may recover his costs, which under s. 2, is given a wide defination so as to
include solicitors fees. The section states:
3. ;Interpretation.
'costs' includes fees , charges, disbursements, expenses and remuneration.
[Emphasis added.]

S. 124 lays down a condition precedent which a solicitor must comply with in the
recovery of fees and it reads as follows:
124. ;No advocate and solicitor to sue for costs until delivery of bill of costs. [14]

(1) ;Except as authorised by this Act, no advocate and solicitor shall without the
leave of the court commence or maintain any action for the recovery of any costs
due for any business done by him until the expiration of one month after he has
delivered to the party to be charged therewith, or sent by post to, or left with him
at, his office or place of business, dwelling house or last known place of abode, a
bill of costs, which bill shall be signed either by the advocate and solicitor, or in the
case of a partnership, by any of the partners, either with his own name or with the
name or style of the partnership, or by another advocate and solicitor employed by
the first-named advocate and solicitor or the partnership, or be enclosed in or
accompanied by a letter signed in the like manner, referring to the bill.
(2) ;.......................................
From the above provisions, it is obvious that a solicitor is obliged to first serve his
client with his bill for services rendered before proceeding with any subsequent
legal action. In the present application, there is no evidence that the second
defendant has complied with this condition precedent of serving its bill on the
plaintiff. As such, the Court cannot permit the second defendant to arbitrarily
withhold the sum of RM10,000 as its professional fees.
As to item (iii), the second defendant in its affidavit made an allegation that the
plaintiff was given RM4,000 soon after the receipt of the RM200,000 from Sri
Awona. In support of this allegation, the second defendant tendered as exh.
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
910 Anor [1998] 7 MLRH

SAR-1C in encl. 13, copies of payment vouchers issued by it. Although no reason
was given in the affidavit for the payment the second defendant in its written
submission alleged that it was for the expenses incurred by the plaintiff relating to
the said land. [15]
It is my judgment that the second defendant cannot be allowed to make this
deduction. The sale proceeds belongs to all the 63 members of the 'Kesatuan'. As
solicitor, the second defendant was only a stakeholder and it had no power to
release the money to the plaintiff. Further, exh. SAR-1C to encl. 13 shows that the
payments to the plaintiff was not for expenses incurred but for a loan of RM2,000
wherein the first RM1,000 was released on the 22 July 1995 and the second
RM1,000 on 16 October 1995. Therefore, the proper course of action for the
second defendant to take is to file a civil action to recover the loan it chose to give
to the plaintiff.
On item (iv), it was alleged that the deceased was paid RM9,000 by the second
defendant for the purpose of paying the interest due to the original landowners.
There was, however, no documentary evidence to show that the second defendant
did pay out the money. There was also no explanation given as to why this
additional sum of RM9,000 should be paid when the parties to the first agreement
had already agreed to a settlement of RM125,000. No reason was also given as to
why the alleged payment should be made through the deceased when both parties
were represented by their respective solicitors at all material times. Under the
circumstances, this item also should not be allowed.
Encik Shaik Anwar contends that the payment to Dr. Lai under item (v) should be
made as the plaintiff is bound by the terms of the letter of mandate. He submits,
firstly, that the letter of mandate cloaks him with the authority to consent to the
proposal with Maniam and Dr. Lai. Secondly, the plaintiff and the deceased
having failed to object at the time when they were [16] first informed of the
proposal are now estopped from objecting to it.
The letter of mandate (exh. SAR-1 in encl. 9) which is the subject of dispute
appears as follows:
27/5/1995.
APPADURAI S/O PONNUSAMY,
APPLASAMY S/O NOOKAIAH,
NO:1207, JLN. BUKIT AWI,
KULIM, KEDAH.
MESSRS. ANWAR & MAIKAL,
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
[1998] 7 MLRH Anor 911

1ST FLOOR, NO:159F,

JALAN TUNKU PUTRA,
09000 KULIIM, KEDAH.
Dear Sir,
Sale & Purchase of Property known as Lot No:290
Mk. Sg. Ular, District of Kulim.
We refer to the above matter and hereby confirm the following:-
1) ;We irrevocably authorise you to negotiate on our behalves the Sale of
the said property.
2) ;The Sale price is RM 300,000/- with vacant possession.
3) ;RM 100,000 deposit payable upon execution of the Sale and Purchase
agreement. Balance of Purchase price is payable within 4 months of
execution of Sale and Purchase Agreement or upon approval of layout
Plan to be submitted by the Purchaser whichever is earlier. [17]
4) ;We also hereby irrevocably authorise you to negotiate and obtain the
title deeds from Mr. Lim Chiang Poh and Mr. Lim Chiang Weng and or
their Solicitors upon payment of the sum of money due to them from us
pursuant the Sale & Purchase Agreement between us dated the 9th day of
August 1983.

Yours faithfully,
sgd. sgd.
Applasamy s/o Nookaiah Appadurai s/o Ponnusamyi

In reply, Encik Ranjit submits that the letter of mandate merely authorises the
second defendant to sell the land at RM300,000. No where does it, as alleged by
Encik Shaik Anwar, give the second defendant the authority to consent to Dr. Lai's
proposition that the said Dr. Lai be allowed to retain any amount in excess of
RM300,000 in the event that the land is sold at a price above RM300,000. Encik
Ranjit, therefore, contends that Encik Shaik Anwar, as the second defendant's
agent, was clearly acting in excess of his authority when he chose to agree to Dr.
Lai's proposal.
I agree with Encik Ranjit. The letter of mandate merely authorises a sale at the
price of RM300,000. Nowhere in the letter does Dr. Lai's name appear. I also find
 Appadurai A/l Ponnusamy
v.
Pentadbir Harta Pesaka Appalasamy A/l Nookiah, Deceased &
912 Anor [1998] 7 MLRH

that Encik Shaik Anwar's allegation that the plaintiff and the deceased were
informed and accepted the proposal to be unsupported by any evidence and
remains only a bare statement. Encik Shaik Anwar's submission in relation to this
point, therefore, is unsustainable. [18]
It is also pertinent to state here that even if the Court were to find the agreement
between Dr. Lai and Encik Shaik Anwar to be within the purview of the letter of
mandate, the said agreement cannot be enforced. This is because, like Maniam,
Dr. Lai's role in procuring Sri Awona for payment also falls within the definition of
estate agency practice and, as stated in the earlier part of my judgment, Dr. Lai
must show proof that he is a registered estate agent before any payment can be
made to him. In the absence of such evidence, any payment to Dr. Lai would
defeat the provisions of the Valuers, Appraisers And Estate Agents Act, 1981. This
Court, therefore, clearly cannot allow the deduction under item (v).
Accordingly, the plaintiff's application in respect of prayers '3' and '4' is allowed
with costs.

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