In the course of the trial of this suit, reference was made by the first plaintiff, Dato' Au Ba Chi, to a document found at p 13 of the agreed bundle of documents. An application was filed by way of notice of motion by the six counsel for the 14 defendants to have this p 13 expunged from the bundle of documents, and evidence of PW1 referring to this document at p 13 ABD be expunged from the notes of evidence. The application was an open court application but heard in chambers. The order granted was extracted as an open court order.

The impugned document was signed by the defendants and given to their former solicitors T Thalayasingam & Co on 5 November 1972 date uncertain]. The document is worded as follows:

We, the undersigned being the co-owners of the land held under grant no 2936, for lot no 375, township of Bandar Penggaram, Batu Pahat to the extent of 461189300/483189300 undivided shares, do hereby acknowledge receipt of the sum of dollars thirty five thousand only ($35,000) from Thalayasingam & Co, 8 Jalan Edrus, Batu Pahat by means of their cheque no 491756 on OCBC Ltd, Batu Pahat in favour of Khern Seng Chye and Chua Keng Sam subject to the following terms and conditions:

a That we agree to sell our 461189300/483189300 undivided shares in the land held under grant no 2936 for lot no 375, township of Bandar Penggaram, Batu Pahat to

(i) Lim Kim Cheong of 31 Jalan Selating, Singapore;

(ii) Au Ba Chi;

(iii) Tee Eng Teck @ Teo Eng Teck; and

(iv) Sek Ann Tong of Johore Bahru (all represented by John Ang & Co, MCA Buildings Johore Bahru) for the consideration of dollars four hundred and fifty thousand only ($450,000) towards which we accept the above sum of $35,000 and another sum of $10,000 already paid (aggregating to $45,000) by way of deposit.

b We hereby agree and undertake to perform our agreement with Esso Standard Malaya Ltd in respect of our sale of 22,000 sq ft of the said land to them whereby we have agreed to procure a separate title deed for the said area sold for a petrol kiosk, and further agree to indemnify the above-named purchasers from all claims and damages if any by the said Esso Standard Malaya Ltd.

Dated this date uncertain] day of November 1972.

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We Khern Seng Chye and Chua Keng Sam acknowledge receipt of cheque no 491756 from T Thalayasingam & Co.

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The fourteenth defendant affirmed an affidavit to support this application. According to him all the defendants originally retained T Thalayasingam & Co as their solicitors to act for them in connection with the sale of their land lot no 375 township of Bandar Penggaram to the four plaintiffs and to Esso. However in April 1976, T Thalayasingam died. Subsequently, the defendants retained HN McLeod as their solicitor. The fourteenth defendant who had collected all the relevant files and documents from T Thalayasingam handed them to HN McLeod in May 1978. According to the fourteenth defendant, he and the 13 other defendants had not authorized or consented to either T Thalayasingam or HN McLeod to release this document to either the plaintiffs or the plaintiffs' solicitors, or to anyone else. The fourteenth defendant claimed that the contents of the document at p 13 was and is privileged communication between clients and their solicitors.

The second defendant also affirmed an affidavit for himself and on behalf of the other defendants. He said he was one of the ten defendants who first signed the impugned document, and as the document also contained confidential instructions to their then solicitors T Thalayasingam, it was not meant to be released to anyone, or copies of it made and given to anyone, without the defendants' express consent. He alleged that if anyone had possession of a copy of this document, then it had been so obtained without the consent of