Is an expert’s opinion admissible to prove damages, court asked

 

Goh Poh Yoke is suing AmBank and AmInvestment Bank for allegedly appropriating her customers and their combined stock portfolio following her dismissal as a dealer in securities.

PETALING JAYA: Can a trial judge stop a dealer’s representative from calling an expert to testify on the quantum of losses suffered following her sacking by a bank?

That is the question appellant Goh Poh Yoke will ask the Court of Appeal to determine before she heads to trial in the High Court later this year in a dispute with AmBank (M) Berhad and AmInvestment Bank Berhad.

The appeal is set for hearing on May 14.

Goh is suing the two banks for unjust enrichment, breach of constructive trust, conspiracy by unlawful means and unlawful interference with her trade or business.

She is seeking damages computed either at RM12,992,000 or RM4,930,000, as well as general, exemplary and punitive damages and several other reliefs.

In March last year, Goh secured and filed a report by an expert which she intended to adduce during trial in the Kuala Lumpur High Court to support her claim.

During case management, the respondents objected to the admissibility of the expert opinion.

On May 23 last year, Justice Adlin Abdul Majid ruled that the report issued by the chief legal officer of an audit, tax, advisory and risk firm was inadmissible and cannot be admitted as evidence at trial.

She said the matters set out in the report, which included damages suffered, went beyond the purview of the expert.

At a subsequent case management session held on June 1 last year, Adlin rejected a request by Goh’s lawyers for permission to file a fresh expert report solely on damages. She said the computation of damages was caught by her May 23 ruling.

In written grounds issued on Nov 30, the judge explained: “It is clear from the content of the report that (the expert) is not providing opinions on a point of foreign law, science or art, as claimed by (Goh).

“Instead, the report covers legal assessments of documents before the court. It is not the role of (the expert) to make these assessments on the pretext of being an expert under section 45(1).

“These assessments will be carried out by the court once it has considered all evidence before it.”

In 1999, Goh was appointed a remisier by Arab-Malaysian Securities Sdn Bhd, which has since evolved into AmInvestment Bank.

On Nov 2, 2005, she was appointed by AmBank on a one-year contract as an exempt dealer, which was extended annually until it was terminated with effect from Oct 3, 2019.

Goh, 53, claims that she had over a career spanning 26 years secured more than 600 customers with a combined stock portfolio valuation exceeding RM200,000,000, generating an average of RM230,000 in revenue for her annually.

She says AmBank and AmInvestment Bank wrongfully appropriated her customers and their combined stock portfolio, depriving her of commissions she would have otherwise received.

At the heart of the dispute before the High Court is the question of whether Goh was an employee of AmBank or its independent contractor.

Goh says that the terms of her contract specify that she was engaged as an independent contractor.

AmBank, however, claims she was its employee and that the bank owned all the customer accounts she serviced.

The banks also say Goh is not entitled to adduce an expert report on the computation of damages as the opinion sought to be introduced does not satisfy the requirements of Section 45 of the Evidence Act. - FMT