When would a professional be liable to you in negligence?

In the case of The Co-operative Central Bank Ltd v KGV & Associates Sdn Bhd, the Federal Court had occassion to consider the issue when would professionals be liable for negligence? The Federal Court held:

a. Whether a professional is in fact liable for negligence depends on the facts of the case;

b. If anybody relies on the advice of a professional without in fact engaging the professional concerned, the professional cannot be liable for negligence (i.e. if you act on the advice of a lawyer based on a dinner conversation, you bear your own risks. This also includes situations when you use documents prepared by a lawyer, but without actually consulting the lawyer beforehand).

c. If the professional has disclaimed his liability, then his disclaimer would be effective against you. (Valuers usually disclaim the right to rely on their valuation reports. Similarly, most websites would be subject to terms and conditions where they have disclaimed any liability for you to rely on its contents).

In short, a professional may be liable when he is in fact engaged by you, and where he has not disclaimed his liability. Be careful, therefore, when relying on advice offered off-the-cuff, or using documents that are ready-made. You do so at your own risk.

(In the case in question, a bank relied on a valuer's valuation report which was not prepared for the bank, and lost over RM400,000 due to the negligence of the valuer. The Court held the valuer not to be liable to the Bank).
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Can you recover goods sold which are unpaid from liquidated company?

You've sent your goods to a customer, and the company has not paid for it. You later find out the company has been liquidated. Can you recover the goods which are unpaid?

In Ong Kong Lai's case, some suppliers tried to recover goods (or monies for the goods) sold to Pasaraya Hiong Kong which were unpaid. The Court held:

a. Title to the goods sold pass immediately to the customer, and so cannot be recovered.

b. The exception would be if there is a clause in the supply contract preserving the supplier's title to the goods.

c. Even with such a clause, there must also be a provision stating that monies for goods sold are held in trust for the supplier.

d. Only with the above 2 provisions would a court allow suppliers to recover either the goods or monies for the goods sold in the event the company is liquidated.

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2008 marks my 10th year in practice. Thank you for your support.
If you have any questions or comments, drop me an email at khenghoe@mycounsel.com.my.

Questions are the answers

Why is it that a 5-year old would ask 100 questions a day, but a 50-year old would barely ask 10? It seems like our propensity to question decreases as our age increases.

That really shouldn't be the case. Imagine a court trial, where the advocate asks the questions and the witness answers. Who is in charge of the situation- the advocate or the witness? Obviously it is the advocate.

Imagine a classroom setting. If a student raises a question, what would be the next topic of discussion in that class? Obviously the student's question. In other words, the question has set the topic (and in this way, a student can in fact direct the flow of the classroom content).

We are so tuned in to the idea that an expert sits in the front, answering all our questions, that we fail to realise it is in fact the questioner who takes charge of the proceedings. It is time for us to re-learn the art of questioning. Sometimes we don't ask because we are afraid of appearing foolish, but contrary to conventional wisdom, it is in fact the lack of questions which should seem foolish.

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2008 marks my 10th year in legal practice. Thank you for your support.
If you have any questions or comments, drop me an e-mail at khenghoe@mycounsel.com.my.