Lim Koo Tiek v Tan Bak Lee

Appellant(s): Lim Koo Tiek

Respondent(s): Tan Bak Lee (Mengamalkan Sebagai Tan Bak Lee & Co.)

• YA Datuk Wong Kian Kheong
• YA Datin Paduka Evrol Mariette Peters
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The defendant, an advocate and solicitor, acted for the plaintiff in a land sale and received the balance sale proceeds on the plaintiff's behalf; a post-dated cheque issued to the plaintiff was later dishonoured after a stop-payment instruction.
• The plaintiff sued for the sum and obtained an ex parte Mareva injunction, which was served on 14 banks to freeze the defendant's accounts; the plaintiff subsequently obtained summary judgment for the sum, which was upheld on appeal.
• The defendant counterclaimed for libel, alleging that service of the Mareva injunction on the banks damaged his reputation; a High Court judge decided the counterclaim solely on affidavit evidence and later assessed damages for libel, setting this off against the earlier summary judgment pursuant to a consent order.

• Whether the service of a valid Mareva injunction on third-party banks, in execution of a lawful court order, could in law constitute libel against the person named in the order.
• Whether a counterclaim in an action commenced by writ could lawfully be determined solely on affidavit evidence, notwithstanding the parties' consent to proceed in that manner.
• Whether the damages assessed on the libel counterclaim could be set off against the earlier summary judgment sum, and the related question of whether the first judge had jurisdiction to order an assessment of damages arising from the (later set-aside) Mareva injunction.

• The Court held that ss 4, 7(2) and 14(2) of the Courts of Judicature Act 1964 mandatorily protect the service of valid court orders; since the Mareva injunction was in force when served, its service on the banks could not, as a matter of law, amount to libel, rendering the High Court's decisions on the counterclaim and damages assessment nullities ab initio.
• The Court held that ss 59 and 60(1) of the Evidence Act 1950, read with O 38 r 1 of the Rules of Court 2012, mandatorily require a counterclaim in a writ action to be tried by oral evidence in open court; parties cannot consent or be estopped from insisting on compliance with these mandatory statutory provisions, and a "trial by affidavits" was therefore impermissible.
• Applying Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd, the Court found the libel counterclaim was not of the same nature and quality as the original claim and so could not constitute an equitable set-off; nonetheless, since the High Court's decisions were void ab initio, both appeals were allowed, the impugned decisions set aside, the Deputy Registrar's earlier dismissal of the assessment restored, and costs of RM40,000 awarded to the plaintiff in each appeal.