The Transfer Application and the Forgotten Case

In my early years of practice, I acted for Uncle Chan, a close friend of my uncle, my mom’s brother. He always came around our popo’s house for a visit during Chinese New Year when we were kids. When he did, he always gave us a nice ang pow every year; nice refers to what is in the packet, not the packet. Who cares about the packet? He was one of the more generous visitors to the house. We were assured of at least a tenner from him every year. Those were the days I still got coins as ang pows and duit raya.

I miss those days of easy ang pow and duit raya. All I had to do then was don our cultural gear, greet an adult respectfully, wish them Selamat Hari Raya/Gong Xi Fa Cai, then adults gave me packets of money. Unlike now. As an adult, doing all that is not enough. If I wanted to be given packets of money I first have to be influential, powerful, and rich before another adult wants to do that for me.

Naturally, after several Chinese New Years of plying me with ang pows, as any proper corrupt official would, I genuinely formed a good impression of Uncle Chan. I didn’t see him after my grandmother moved from Pahang to stay with my family. It was sometime in my third or fourth year I received a call from my uncle who still lived in Pahang. He asked if I could help him, or rather

‘Remember Uncle Chan?’

‘Of course, I do. He always gave us nice ang pows during Chinese New Year.’

‘Yah. Yah. Okay. Anyway, he received something called a ‘Saman’? There are a few pages to it. He doesn’t know what to do. Is it serious?’

‘Yes, uncle. That means he is being sued. If you look at the front page, is there a company mentioned anywhere next to the word plaintiff?’

‘Yah. Yah. ABC Bank Bhd. He took a loan from them to buy a lorry.’

‘I am guessing he didn’t pay the instalments and now they are suing him for the whole amount?’

‘Yah. He said his business had gone very bad. He had trouble paying the instalments. So he gave the lorry away to some guy who promised to take over the instalments.’

‘Aiyoh, uncle, it’s a con lah. The guy sure won’t pay it! He basically got the lorry for free. The banks will go after Uncle Chan, not the guy he gave it to.’

That arrangement is known as ‘sambung bayar‘. It means ‘continue paying’ i.e. carry on the hire purchase under the hirer’s name and continue paying the instalments while using the vehicle. This is an illegal arrangement and a breach of contract but is often done because it is an easy way out for the ignorant.

‘But the lorry is with that guy what? Get it from him lah!’

‘Uncle, in law, we don’t follow who has the lorry; we follow whose name is written on the agreement with the bank for that lorry. And it’s Uncle Chan’s. That’s why he is being sued now. That other fella obviously didn’t pay the instalments. The bank also doesn’t know about that fella.’

‘Hiya. He ah! Told him to check with you first before he gave it away.’

‘Never mind lah, uncle. It’s done. Can you fax me the whole thing? I’ll see what I could do.’

The summons came together with the statement of claim. It was your stock standard hire purchase statement of claim – the kind you simply changed the names, dates, vehicle, amounts, instalments, and repayment period, the kind that adhered closely to the Hire Purchase Act 1967 requirements.

At the time, my father’s firm did work for two finance companies. They did hire purchases and leasing, both within and without the Act because the Act doesn’t cover every kind of vehicle or equipment, just certain ones. I had my fair share of hire purchase and leasing claims and defences because of that. And from that, I could tell Uncle Chan’s case was a stinker. He had no defence to the claim.

The only thing I could do for him was a transfer application to send the case to Kuantan.

Now if you practiced in Kuala Lumpur and Shah Alam courts circa 1998 – 2007, you will know the administration of both were notoriously inefficient, indifferent, cumbersome, tedious; the latter courts were several degrees more so than the former. A case transferred out of Kuala Lumpur or Shah Alam to a different state often went missing in transit.

I oversaw at least five or six transferred file reconstructions over that period. File reconstructions happen when the court irretrievably loses its file. It had to rely on the cause papers furnished by the lawyers from their respective files to ‘reconstruct’ the court file. I never understood how back then how that could happen. I have added it to my list of mysteries of life. These are things lawyers from 2008 onwards know nothing about and amen to that.

I filed the application immediately after entering an appearance. When I filed the transfer application, I was counting on the inefficiencies of the system not to hold back the tide, but to keep Uncle Chan dry for just a spell longer. He was eventually going to get the full brunt of the downpour when the bankruptcy axe came down on him.

And it is not as if the transfer application was without merit…

Puan Hakim, I contend the application has merit. Uncle Chan lives in Kuantan. The Plaintiff has a branch in Kuantan. That’s where Uncle Chan signed the contract. Their officers who handled the transaction still live and work in Kuantan. Uncle Chan got the keys to the lorry in Kuantan. He drove the lorry between Kuantan and Dungun. Puan Hakim, Uncle Chan hasn’t been to Kuala Lumpur in the last fifteen years.

But the claim was filed in Kuala Lumpur. It was filed here because the Plaintiff’s lawyers are based here. Kuala Lumpur is not the appropriate court to adjudicate the matter. It is forum non conveniens, not the right forum. Since the defendant, the plaintiff’s office, the witnesses, the transaction, and the vehicle are all in Kuantan that’s where it should be heard. It would trouble everyone greatly for them to come up here to be trialed. Finally, the application is bona fide; it was filed immediately after appearance, well before the plaintiff filed their summary judgment application. I pray for order in terms.

From the barstool’s kitchen | Re-envisioning of submission, please read with abundance of salt

The application was allowed with costs in the cause.

The plaintiff’s solicitors sent me the draft orders for approvals soon after.

To buy Uncle Chan 48 hours more, I didn’t return the draft orders.

Order 42 rule 8(1) and (2) of the Rules of High Court 1980 when read together deemed a lawyer who failed to return a draft order within 48 hours of receipt as consenting to the terms in the draft. So what a lawyer faced with an unreturned draft would do is file the draft order with a cover letter and proof to show the draft order was not returned within 48 hours. The court would process it. That’s what we did and that’s provided for in the rules.

So I was expecting to be served with the sealed order a few weeks later. But weeks turned to months and months to years.

It never came.

A lot of time passed. Naturally, I forgot about the case.

Then one day, more than a decade later our firm gets a notice to attend court for the matter. By then, I had long forgotten Uncle Chan and the case. When the notice came in I looked at it and tried hard to recall the case. It was vaguely familiar but I could not put my finger on it. I checked the office store but the file was not there. It was not at our off-site storage either. I surmised I must have destroyed it since it was more than ten years old.

I attended the court date. The bank’s lawyers didn’t turn up. In fact, by then ABC Bank had eventually become XYZ Bank. Perhaps the file got lost somewhere in the change. It was just me and the Sessions Court Judge on the case management date.

‘This file has been in my court for too long, Encik Fahri. We found it when we excavated some files recently. What happened to this case?’

‘I’m embarrassed to say I don’t remember, Puan Hakim. I tried to find the file in my office but I don’t think we have it anymore. It’s a very old case. May I have a read of the notice of appearance, Puan Hakim, to refresh my memory? Maybe that may jog it.’

The judge fished it out and passed it to me. I read it. I looked at the file reference number. It felt familiar. The format of the statement. The defendant’s name felt strongly yet equally vaguely familiar. The name nagged at me. Was this one of my legal aid cases?

‘Puan, was there a statement of defence or a transfer application?’

‘No statement of defence. There’s a transfer application. Umm. I see here the record says it was allowed. Transferred to Kuantan. But I don’t see the sealed order. Why isn’t it in here?’

When I heard the judge say ‘Kuantan’, it all came flashing back to me in an instant. It felt like I downloaded the whole video sequence in one go. It felt like trying to watch a five-minute sequence in ten seconds; difficult to process.

‘Maybe they didn’t file it,’ I said reflexively.

‘Hmph. Nothing has happened since that order. It’s been twelve years!’

‘It does look that way, Puan Hakim.’

‘And they are not even here today. This is unacceptable. Given how long they have sat on their case I am striking it out. Anything you want to say, counsel?’

‘Only that I fully agree.’

‘The case is struck out. Thank you, counsel.’

‘I’m obliged. Thank you, Puan Hakim.’

And that is how a routine hire purchase claim came to an end as a result of want of care and prosecution after twelve years in limbo. I’ve always wanted to see what happens to those routine mass filed cases that fell through the cracks of the system, forgotten by its lawyers and their clients, probably written off and certified by audit but continuing to exist in the court’s bowels. I guess I finally saw how one ended.

I felt like I came to bury a ghost, to help it find closure instead of attending case management. It struck me how our solemn attire seemed appropriate.

The lesson here is to make sure to give a generous ang pow and duit raya to those kids that come to visit us, get to know them a little. Who knows? They may just be the ones to save our ass one day.

3 thoughts on “The Transfer Application and the Forgotten Case”

  1. reading this just teaches me that mastering the law on its legal aspects alone is not the only way to be a successful lawyer :D. I love this!

    Also, if you don’t mind i was wondering if i could get your advice on how to be ‘street smart’ in the legal field 🙂

    Reply

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