DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)

RAYUAN SIVIL NO. R2-12-XXX-2015

ANTARA

MARION DALY & ANOR. PERAYU

DAN

ANDREW LEE & ORS. RESPONDEN

(Dalam perkara Mahkamah Sesyen di Kuala Lumpur

Saman No.: 12-52-xxx-2010)

ANTARA

ANDREW LEE & ORS. APPELLANT

DAN

MARION DALY & ANOR. RESPONDEN

APPELLANTS WRITTEN SUBMISSION

Dengan Izin Yang Arif,

1.0 NOMENCLATURE

1.1 This submission is filed in respect of the Appellants appeal against the decision of the
Session Court Judge wherein the learned Judge had dismissed the appellants application
to set aside the judgement in default obtained by the Respondent on matter the respondent
does not owed the duty of care towards the intended beneficiaries.

1.2 In the course of this submissions the Respondents would cross-refer to the Appellants
Submission (AS) and also Appellants Bundles of Authorities (ABA). The record of
Appeal would be abbreviated to RR throughout this written submissions.

1.3 Briefly, this is an appeal by the Appellants against the decision pronounced by the
learned Session Court Judge, Abbas Singh J whereby he had dismissed the Appellants
application to set aside the judgement in default [Please refer to p. 9 of RR].

2.0 THE RELEVANT MATRIX OF EVENTS AND FACTS

2.1 The Respondent prays to this Honorable Court dismiss the Appellants appeal as the
relevant matrix of events and facts will show that the that Learned Sessions Court Judge
had indeed did not erred in her judgement in any way.
2.2 Mr. Hanz Isaac (the deceased) and his wife lived at 24 Casamas Court, a gated
community in the heart of Kuala Lumpur. They have 2 children, Marion and Daphne.

2.3 Marion married twice, first to Peter Daly, and later to Peters cousin Dennis Daly. She
lived next door at 22 Casamas Court. She moved there to be close to her parents after her
father had a stroke in 2003. Marion had three girls: Elaine and Elena by her first
marriage, Maria by her second.

2.4 Daphne, the other daughter, also lived nearby, four or five minutes walk away. She was
married to Stephen Andre, and they had two boys, Steve and Bront.

2.5 Mrs Isaac died on 23 March 2013.

2.6 There was then a family row between Mr Isaac and Daphne (Mrs Andre) about the
removal of a money box belonging to Mrs Isaac.

2.7 Marion (Mrs Daly) sided with her sister.

2.8 Mr Isaac felt so strongly that he made a will cutting both of his daughters out of his
estate. There was no evidence that he had previously made a will.

2.9 The will, executed on 4 May 2013, was prepared by the defendant firm of solicitors,
Messrs Andrew Lee & Associates. The first defendant, Mr Andrew Lee had known Mr
Isaac for some years. Mr Isaac's estate consisted principally of a house worth
RM2,700,000, about RM100,000 in a building society and insurances totalling some
RM100,000. By his will Mr Isaac appointed his former son-in-law Peter Daly, his
granddaughter Elaine and Mr Lee to be his executors. He gave RM10,000 each to two of
his grandchildren, Maria and Bront.

2.10 Apart from these small legacies he left his estate equally between Peter Daly, Elaine and
Elena.

2.11 He left nothing to either daughter.

2.12 By mid-August 2013 they were reconciled. Mr. Isaac became concerned at the terms of
the will he had made. He told his daughters what he had done and what he wished to
happen.
2.13 Mr. Isaac told Mr Lee on the telephone that he wanted to change his will.

2.14 Marion Daly also spoke to Mr Lee on the telephone about her father's wishes. Mr Lee
suggested that Mr Isaac should jot down what he wanted and he, Mr Lee, would deal with
it.

2.15 Mr Isaac destroyed his copy of the May 2013 will.

2.16 In the middle of September Mr. Stephen Andre wrote out a letter addressed to Mr Lee
setting forth instructions for the new will: Marion and Daphne were to have
RM1,000,000 each, the five grandchildren RM180,000 each, Marion and Daphne were to
be responsible for the legal costs, and they were to dispose of the contents of the house.

2.16.1 The letter said: I have destroyed the original will I trust the above is as
required.

2.16.2 The letter was signed by Mr Isaac.

2.16.3 It was posted to the solicitors and received by them on 17 September.

2.17 Appointments were made for Mr Lee to call round to see Mr Isaac on three successive
Thursdays but Mr Lee did not keep them.

2.18 On 16 October he dictated an internal memorandum to a member of the firm's probate

department, which read: Re: Mr. Hanz Isaac New Will. Ganesan Sabapathy drew up a
Will which is filed away under reference 30C. Please see Mr Isaac's instructions in his
letter received on the 17th Sept. I have considered the matter and feel possibly a new Will
should be drawn up if an addendum cannot be made. Would you be kind enough to do it
as soon as possible and let me know the amount of your costs. Mr Isaac is a friend of
mine and I will pop along to his house to witness the Will and obtain costs. I have an
appointment to see Mr Isaac on [blank] and if at all possible could you let me have the
Will by that date.

2.18.1 On the following day Mr Lee went away on holiday.

2.19 A week later, on 23 October, Mr Isaac went off to Cameron Highlands for a fortnight's
holiday.

2.20 Mr Lee returned to the office on Monday, 1 November, and Marion arranged an
appointment for him to call and see Mr Isaac on 17 November.

2.20.1 That was the first available date after Mr Isaac's return from holiday.

2.20.2 Meanwhile nothing further had been done within the firm regarding Mr
Isaac's will.

2.21 Indeed, the memo dictated by Mr Lee on 16 October was not even transcribed until 5
November, four days after Mr Lee came back from holiday.

2.22 While on holiday Mr Isaac, who was aged 78, fell and hit his head.

2.22.1 He returned home on 6 or 7 November.

2.22.2 At the weekend he suffered a heart attack, and he died on 14 November.

2.22.3 In due course the will executed in May 2013 was admitted to probate.

2.23 So there were the two documents:

2.23.1 The will and the letter of instructions for a new will.

2.23.2 The letter was not witnessed as required by the Wills Act 1959, so it could
not itself stand and take effect as a will.

2.23.4 The family were unable to agree on how the estate should be divided.

2.23.5 The daughters took the view that Mr Lee's inexcusable delay was the
cause of their not having received RM2,000,000 from their father's estate.

2.24 Mr Lee had done what he should have done, the May 2013 will would have been revoked
and replaced with a new will benefiting them. So they brought an action for damages for
negligence.

2.25 The Honorable Sessions Court however dismissed the Appellants application
3. GROUND OF APPEAL

3.1 Abbas Singh J had erred in his judgement on the point of facts and law by deciding the
respondents did not owed duty of care towards the appellant. The appellant argued that
the assumption of responsibility by a solicitor towards his client should be extended in
law to an intended beneficiaries.

3.2 The appellant alleged there was special relationship between the solicitor and intended
beneficiaries by adopting incremental approach by analogy with established categories of
relationship giving arise to a duty of care.

4. APPELLANTS SUBMISSION

4.1 1st submission whether the respondents owes a duty of care towards his clients
beneficiary?

4.1.1 First sub legal issue is pertaining to assumption of responsibility where it can be extended
to the third party, the intended beneficiaries.

Although a solicitor's contractual duty is owed solely to the client, the existence of that duty does
not necessarily negate a duty of care owed to a third party in tort. To the contrary, the
undertaking of a specialist task pursuant to a contract between A and B may be the occasion that
gives rise to a duty of care owed to C who may be damaged if the task is carelessly performed

AUTHORITIES

In the case of White v Jones [1995] 2 AC 207, where the clients beneficiaries, Mr
White daughter sued the solicitor for delay in making the fresh will. Chadwick LJ observing:
It must not be forgotten however that a solicitor who undertakes to perform services for his
client may be liable to his client for failure to exercise due care and skill in relation to the
performance of those services not only in contract, but also in negligence under the principle in
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465: (see Midland Bank Trust Co
Ltd v Hett, Stubbs & Kemp [1977] Ch 384,) on the basis of assumption of responsibility by the
solicitor towards his client. Even so there is great difficulty in holding, on ordinary principles,
that the solicitor has assumed any responsibility towards an intended beneficiary under a will
which he has undertaken to prepare on behalf of his client but which, through his negligence,
has failed to take effect in accordance with his client's instructions.

From this it would appear to follow that the real reason for concern in cases such as the
present lies in the extraordinary fact that, if a duty owed by the testator's solicitor to the
disappointed beneficiary is not recognized, the only person who may have a valid claim has
suffered no loss, and the only person who has suffered a loss has no claim. This is a point to
which I will return later in this opinion, when I shall give further consideration to the
application of the Hedley Byrne principle in circumstances such as those in the present case.

In the case of Car-Glynn v Frearsons [1998] 4 All ER 225, where the testator instructed
the solicitor that she wanted her share of a property owned with her husband to go to her niece.
The solicitor was alleged to have been negligent for failing to advise how a notice of severance
of the tenancy should be served immediately and as a consequence on the death the property
passed to the joint owner rather than the half being passed to the niece. Chadwick LJ:-

The duty owed by the solicitors to the testator is a duty to take care that effect is given to his
testamentary intentions. That is the context in which the duty to take care to ensure that the
relevant property forms part of the estate arises. The duty in relation to the relevant property is a
duty to take care to ensure that that property forms part of the testator's estate so that it can pass
to the intended beneficiaries on his death. It is not in contemplation, in a case of this nature, that
the testator will dispose of the property in his lifetime. The loss from which the testator and his
estate are to be saved harmless is the loss which those interested in the estate (whether as
creditors or as beneficiaries) will suffer if effect is not given to the testator's testamentary
intentions.
The duty owed by the solicitors to the specific legatee is not a duty to take care to ensure that
the specific legatee receives his legacy. It, also, is a duty to take care to ensure that effect is
given to the testator's testamentary intentions. The loss from which the specific legatee is to be
saved harmless is the loss which he will suffer if effect is not given to the testator's testamentary
intentions. That is the loss of the interest which he would have had as a beneficiary in an estate
comprising the relevant property.

... There is no reason in principle, as it seems to me, why, in cases of this nature, the law
should not impose complementary duties; so that for breach of the one the specific legatee is
enabled to recover the loss which he has suffered and for breach of the other the personal
representatives are enabled to recover, and recover only, the loss suffered by the other persons
interested in the estate. Justice will be done to each of the three interests concerned - the specific
legatee, the estate and the solicitors - if solicitors who, in the course of carrying out the testators'
testamentary instructions, have failed to take care to ensure that the relevant property forms part
of the estate are liable to compensate the specific legatee for the loss which he has suffered as a
result of the breach of duty owed to him; and are liable to compensate the estate for the loss (if
any) suffered by the other persons interested in the estate for breach of the duty owed to the
testator.

In the case of Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359, the appellant
which is a solicitor negligently make a false representation about the property to be said free
from any encumbrance which was not true. In fact the respondent relied on that and suffered
damage. The judge in the case referred to the case Ross v. Caunters in the judgement.
In Ross v Caunters [1980] 1 Ch 297, Megarry J held that 'a solicitor who is instructed
by his client to carry out a transaction that will confer a benefit on an identifiable third party
owes a duty of care towards that third party in carrying out that transaction'. In the present case,
we agree with the learned judge that the second appellant in failing to secure the redemption
agreement on behalf of the end financier would expose the respondent to the risk of losing the
subject property.

Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213
 The similarities between the relationship between the builder and the first owner and
the relationship between builder and subsequent owner as regards the particular kind of
economic loss are of much greater significances than the differences to which attention has been
drawn, namely the absence of direct contact or dealing and the possibly extended time in which
liability might arise. Both relationships are characterised, to a comparable extent by the
assumption of responsibility on the part of the builder and likely reliance on the part of the
owner. No distinction can be drawn between the two relationship in so far as the foreseeability
of a particular kind of economic loss is concerned: it is obviously foreseeable that loss will be
sustained by whichever of the first or subsequent owners happens to be the owner at the time
when the inadequacy of the footing becomes manifest.

The Co-Operative Central Bank Ltd v KGV & Associates Sdn Bhd [2008] 2 MLJ 233

Whilst there are several useful tests, indicia or guidelines to ascertain whether a duty of care
exists in given circumstances, the ultimate question whether a duty of care should be placed in a
particular case is essentially fact sensitive (see, Arab-Malaysian Finance Bhd v Steven Phoa
[2003] 1 MLJ 567 where this Court made the same finding).

(b) A useful guide in reaching that determination is to ask whether there was an assumption of
responsibility. This is an objective test to decide whether the defendant assumed responsibility to
the plaintiff about the accuracy of his statement

Later the court held by referring to case of Smith

The House of Lords found that the duty of care existed between the valuer and the plaintiff
purchaser because the valuer had assumed responsibility knowing that the valuation fee had
been paid by the plaintiff and knowing that the valuation would probably be relied on by the
plaintiff to decide on whether or not to buy the house. As can be seen in that case there was
actual knowledge of the plaintiff and of his reliance on the report.

The principle or the key concept underlying in this case is assumption of

responsibility. More specifically, responsibility to an intended beneficiary may be held to have
been assumed where the solicitor can reasonably foresee that negligence on his part would
deprive the beneficiary of a benefit which the solicitor's client intended that beneficiary to
receive, in circumstances where no right of action is available to the client or his or her estate.
The purpose of the principle is to ensure, on the one hand, that there is no lacuna in which a loss
sustained as a result of the solicitor's negligence cannot be recovered by anyone and, on the other
hand, that the same loss cannot be recovered twice. There would be a lacuna if, as he put it, the
only persons who might have a valid claim (the testator and his estate) have suffered no loss, and
the only person who has suffered a loss (the disappointed beneficiary) has no claim.

Applying to the facts of present case, the duty of care owed by the solicitor to the client is
no doubt in the eyes of law. When it comes to clients beneficiaries, the law seems to be fair and
just where the assumption of responsibility by a solicitor towards the intended beneficiaries
should be extended in law who was reasonably foreseeably deprived of his intended legacy as a
result of the solicitors negligence.

Mr Lee the solicitor of the Mr Isaac could foreseeable that intolerable delay on his part to
prepare the new will and take into force the new will give rise to the intended beneficiaries to
suffer loss after the death of his client. So it is clearly that the solicitor Mr Lee has the
assumption of responsibility towards intended beneficiaries to look after the beneficiaries
interests.

4.1.2 Second sub legal issue is regarding the proximity or under the key concept special
relationship between the parties where the Appellant must prove before the court to establish the
assumption of responsibility on part of the solicitor towards disappointed beneficiaries.

The principle of special relationship arising from the assumption of responsibility where
the defendant assumed to act in the plaintiffs affair, by acting so, the defendant entered into
special relationship with the plaintiff with whom he had no contract. First instance to identify
special relationship there must be a fiduciary relationship. Another circumstances which giving
arise to special relationship where the solicitor provides the advices or services where he knows
or ought to be known the plaintiff will rely on his advices.

AUTHORITIES
 As decided cases in High Court of Autralia, Hill v Van Erp BC9700701, where Mrs
Currey, the deceased wanted to make a new will. She wanted to leave her house half to her son
and half to her neighbour Mrs Van Erp. The solicitor, Mrs Hill prepared the new will and signed
by herself as one witness and Mrs Van Erp signed as the other. Due to operation section 15(1) of
the Succession Act 1981, the bequeath to Mrs Van Erp failed. She sued the solicitor for
negligence. Dawson J:-

In different terms, the principle expressed in that passage is that a duty of care is imposed on a
person who places himself in a relationship which the law will recognise as one of proximity
with other persons where damage to those others is reasonably foreseeable as a consequence of
careless behaviour on his part, and merely because a person has placed himself in that
relationship by reason of a contract with another does not necessarily preclude a finding of
proximity (although in some cases it might do so).

Thus, when a solicitor accepts responsibility for carrying out a client's testamentary intentions,
he or she cannot, in my view, be regarded as being devoid of any responsibility to an intended
beneficiary. The responsibility is not contractual but arises from the solicitor's undertaking the
duty of ensuring that the testator's intention of conferring a benefit upon a beneficiary is
realised. In a factual, if not a legal sense, that may be seen as assuming a responsibility not only
to the testatrix but also to the intended beneficiary. In the present case there was no reliance
upon the solicitor by Mrs Van Erp nor did she request her to do anything for her. Mrs Van Erp
did not change her position in reliance upon anything said or done by the solicitor. It is true that
Mrs Van Erp was told that she was a beneficiary under the will and took no steps to protect her
position. In that way it might be said that she relied upon the solicitor to carry out the testatrix's
instructions carefully. However, I make no point of that in the present case.

In the case White v Jones [1995] 2 AC 207, Lord Browne-Wilkinson:-

Has the intended beneficiary a cause of action based on breach of a duty of care owed by the
solicitor to the beneficiary? The answer to that question is dependent upon whether there is a
special relationship between the solicitor and the intended beneficiary to which the law attaches
a duty of care. In my judgment the case does not fall within either of the two categories of special
relationships so far recognized. There is no fiduciary duty owed by the solicitor to the intended
beneficiary. Although the solicitor has assumed to act in a matter closely touching the economic
well-being of the intended beneficiary, the intended beneficiary will often be ignorant of that fact
and cannot therefore have relied upon the solicitor.

However, it is clear that the law in this area has not ossified. Both Viscount Haldane,
LC (in the passage I have quoted [1914] AC 932, 948) and Lord Devlin (in Hedley Byrne [1964]
AC 465, 530-531) envisage that there might be other sets of circumstances in which it would be
appropriate to find a special relationship giving rise to a duty of care. In Caparo Industries plc v
Dickman [1990] 2 AC 605, 618 Lord Bridge of Harwich recognized that the law will develop
novel categories of negligence "incrementally and by analogy with established categories". In
my judgment, this is a case where such development should take place since there is a close
analogy with existing categories of special giving rise duty of care to prevent economic loss.

The Co-Operative Central Bank Ltd v KGV & Associates Sdn Bhd [2008] 2 MLJ 233

The House of Lords found that the duty of care existed between the valuer and the plaintiff
purchaser because the valuer had assumed responsibility knowing that the valuation fee had
been paid by the plaintiff and knowing that the valuation would probably be relied on by the
plaintiff to decide on whether or not to buy the house. As can be seen in that case there was
actual knowledge of the plaintiff and of his reliance on the report.

Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213

The similarities between the relationship between the builder and the first owner and the
relationship between builder and subsequent owner as regards the particular kind of economic
loss are of much greater significances than the differences to which attention has been drawn,
namely the absence of direct contact or dealing and the possibly extended time in which liability
might arise. Both relationships are characterised, to a comparable extent by the assumption of
responsibility on the part of the builder and likely reliance on the part of the owner. No
distinction can be drawn between the two relationship in so far as the foreseeability of a
particular kind of economic loss is concerned: it is obviously foreseeable that loss will be
sustained by whichever of the first or subsequent owners happens to be the owner at the time
when the inadequacy of the footing becomes manifest.

Applying to the facts, the act of Mr Lee accepting instruction to draw fresh will, a
solicitor does come into a special relationship with those intended to benefit under it as a
consequence of which the law imposes a duty to the intended beneficiaries to act with skillful
and care in relation to the task on which he has entered.

4.2 2nd submission Whether the inexcusable delay on the part of the Respondent
would constitute a breach of duty?

The second legal issues is pertaining the act or omission on the part of the Respondent which
constitute a breach of duty towards the Appellant.

Once the court decides that the Respondent owes a duty of care to the Appellant, it reaches the
next stage, whether the Respondent was in breach of that duty. The Respondent must not only
owe the Appellant a duty of care; he must breach of it. When the Respondent acts below the
standard of care required by the law, he is in breach of his duty.

AUTHORITY

HENDRIKS v MCGEOCH - BC200802127, Basten JA;

Assuming that the agreement reached in December 1995 had not been a charade on the part of
Mrs McGeoch, the solicitors should properly have taken steps to make the agreement legally
enforceable or, if their instructions were to the contrary, to advise both brothers that that would
not be done. Rather, Mr Hendriks failed to render the agreement enforceable on the part of the
respondent, whilst at the same time reassuring him that his interests were being looked after.
Such conduct constituted a breach of his duty to the respondent, such breach occurring on and
from approximately February 1996, when he had had an opportunity to consider and act upon
the fresh instructions from Mrs McGeoch, which were not to proceed with an inter vivos transfer
of Mollymook.

CARR-GLYNN v. FREARSONS (a firm) [1999] 2 WLR 1046,

Chadwick LJ;

no reason in principle, as it seems to me, why, in cases of this nature, the law should not
impose complementary duties; so that for breach of the one the specific legatee is enabled to
recover the loss which he has suffered and for breach of the other the personal representatives
are enabled to recover, and recover only, the loss suffered by the other persons interested in the
estate. Justice will be done to each of the three interests concerned the specific legatee, the
estate and the solicitors if solicitors who, in the course of carrying out the testator's
testamentary instructions, have failed to take care to ensure that the relevant property forms part
of the estate are liable to compensate the specific legatee for the loss which he has suffered as a
result of the breach of duty owed to him; and are liable to compensate the estate for the loss (if
any) suffered by the other persons interested in the estate for breach of the duty owed to the
testator.

APPLICATION

Applying to the present case, Mr. Lee who was the solicitor responsible to the drafting of the
new will, did nothing for a month after the instructions was came into his knowing. Moreover, he
also failed to show up in several meetings held by the Appellant. This shows that it is his own
will to omit to that meeting and ignore his duty in drafting the new will. Thus, his action was
below the standard duty of care required by the law made him in breach of that duty of care.

4.3 3rd Submission - Whether the pure financial lost suffered by the Appellant was due
to the delay of one month on part of the Respondent?
The third issue was pertaining on causation of fact which the law requires that the Appellant
shows the physical link between the defendants negligent act or omission and the injury or
damage that he suffered. In other word, the Appellant must show that the alleged act or omission
of the defendant was the effective cause of the injury or damage suffered by the Appellant.

AUTHORITY

WHITE AND ANOTHER RESPONDENTS AND JONES AND ANOTHER

APPELLANTS [1995] 2 A.C. 207;

I can see no reason to doubt that, if Mr. Jones and the probate department had got on with the
matter as they should have done, a new will under which each plaintiff would have benefited, at
least to the extent of the 9,000, would have been signed by Mr. Barratt before he went on
holiday. The firm already had in its files the details of Mr. Barratt's estate obtained for the
March 1986 will. The respects in which the new instructions were incomplete were largely
formal, and a brief meeting at most would have sufficed to deal with them. Mr. Barratt was
anxious to put right without delay what he perceived as a wrong done by him to his daughters.

APPLICATION

Applying to the present case, the omission of Mr. Lee as the solicitor to do his duty which
drafting the new will, resulting the Appellants suffered loss of RM 2.9 M. It is only if the
Respondent had done his part, the Appellant would have benefited from the will. This shows that
the omission of the Respondent have the physical links which the Appellants suffered loss due to
his omission. Thus, the delay of one month on the part of the Respondent did caused the
Appellant to suffer the pure financial loss.

5. PRAYER OF RELIEF

5.1 Based on what have been presented, the Appellant highly hoped for the Honourable
Court to reversed the lower courts decision which held in the Appellants favour. We submit
that the respondent should held owed duty of care towards the Appellant and liable for not
exercising his skilful and care to construct the new will.
 Besides, the assumption of responsibility by a solicitor towards his client should be
extended in law to an intended beneficiaries who was reasonably foreseeable deprived of his
intended legacy as a result of the solicitor negligence since otherwise an injustice would occur
because of lacuna in the law and there would be no remedy for the loss caused by the solicitors
negligence unless the intended beneficiaries could claim.

The court should held there must be a special relationship between solicitor and intended
beneficiaries by adopting the incremental approach by analogy to giving rise to a duty of care.

Therefore on behalf on the Appellant pray that this appeal be allowed.

Dated this 5 April 2015


Counsels for the Appellants,
Zulfadzrin Bin Noor Din
Muhammad Adam Bin Hasan

[Reference No: 12-52-xxx-2010]

This APPELLANTS SUBMISSION had been filed by Attorney-General, solicitor for the
Respondents as named above in the address of Azfar & Co, No. 2A, Wisma Perdana, Jalan Tun
Ismail, 50482, Kuala Lumpur.

Contact no. 03-87348384, Fax no. 03-87348345, Email address azfarsolicitor@gmail.com