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PROFESSIONAL NEGLIGENCE – SOLICITOR – PANEL SOLICITORS LIABLE: LITIGATION BRIEF DOES NOT EXCUSE FAILURE TO PROTECT BANK’S SECURITY

1. Summary and Facts:
Malayan Banking Bhd v Russell Lua Kok Hiyong & Ors [2025] 12 MLJ 599 concerns on the Malayan Banking Berhad (“plaintiff”) extended credit facilities to the Sparrows & Arrows Sdn. Bhd. (“Sparrows”) borrower, which were secured by personal guarantees executed by the guarantors. Messrs Lua & Mansor (“defendants”) acted as bank’s panel of lawyers to represent the bank. Following the grant of the facilities, one of the guarantors passed away. The bank thereafter commenced legal proceedings to enforce the guarantee against the estate of the deceased guarantor by naming the personal representative as defendants. The defendants resisted the claim, contending that the guarantee was no longer enforceable upon the guarantor’s death. In any event, the bank’s claim could not properly be pursued against the estate in the manner adopted.

2. Legal Issues:
• Whether a guarantor’s liability survives death.
• Whether a creditor may enforce a guarantee against the estate of a deceased guarantor.
• Whether personal representatives can be sued in their representative capacity.

3. Court’s Findings:
• The High court allows the bank’s claim against the solicitors.
• The guarantor’s contractual liability does not cease upon death.
• The creditor is entitled to pursue the deceased guarantor’s estate.
• Proceedings may properly be brought against the personal representatives in their representative capacity.
• The enforcement is limited strictly to the assets of the estate and does not impose personal liability on the administrators or executors.

4. Practical Implications:
This judgment affirms the several principle of laws including:
• The estate representatives must treat guarantees as valid estate liabilities.
• The distribution of estate must not occur before debts are settled.
• The practitioners acting for estate representatives must identify contingent liabilities early and withhold distribution until such claims are resolved, to avoid breach of duty.

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