Hishamudin Mohd Yunus J:

[1] Enclosure 32 is an appeal by the 1st defendant against the decision of the learned senior assistant registrar who had dismissed the 1st defendant's application to strike out the plaintiff's statement of claim pursuant to O. 18 r. 19 of the Rules of the High Court 1980.

[2] I have dismissed the appeal with cost and I shall now give my grounds.

[3] The 1st defendant is a legal firm - a partnership. At the material time the 2nd and 3rd defendants were advocates and solicitors and were the only two partners of the firm/partnership.

[4] The material facts largely are not disputed. In June 1997 the plaintiff company, intending to purchase a piece of property from a developer, deposited with the 1st defendant a sum of RM680,000. This money was meant to be a payment of a deposit by the plaintiff in connection with the intended land transaction with the developer; and it was held on trust by the 1st defendant. The 1st defendant, upon receipt of the deposit, was to prepare the sale and purchase agreement to be entered into between the plaintiff/purchaser and the developer/vendor. The 1st defendant was thereafter to pay the deposit to the developer/vendor upon the signing of the sale and purchase agreement by the plaintiff/purchaser and the developer/vendor. The 1st defendant, however, in breach of its professional obligation failed to prepare the sale and purchase agreement. So the plaintiff demanded the return of the deposit money. But the 1st defendant failed to do so. The plaintiff filed the present suit against the 1st defendant and the two partners.

[5] It is the contention of the 1st defendant that the plaintiff's action must be struck out. The argument that is advanced is that the plaintiff, at the time that it filed the present civil suit against the 1st defendant, had ceased to have any reasonable cause of action against the partnership. This is because - so contends the 1st defendant - the partners of the partnership, at the time of the filing of the present action (June 2003), are different from the partners of the partnership at the time of alleged wrongdoing (September/October 1997). In other words, according to the argument of the learned counsel for the 1st defendant, as I understand it, a partnership cannot be responsible for any wrongdoing of its partners who had left the partnership prior to the filing of the action.

[6] Now, at the time of the alleged wrongdoing, the partners of the 1st defendant were the 2nd and 3rd defendants.

[7] However, at the time the present suit was filed (in June 2003 - that is about five and a half years later), the 2nd and 3rd defendants had ceased to be the partners of the partnership. By then the partnership was made up of different individuals. At the time the present suit was filed, the partners of the partnership were:

(1) Khairul Nizam bin Omar;

(2) Rohana binti Haron; and

(3) Ahmad Mardzuqi bin Mokhtar.

[8] These three individuals had nothing to do with the taking of the deposit and the land transaction of 1997 involving the plaintiff, the firm and the then partners.

[9] The argument of the 1st defendant is that a suit against a partnership is in reality a suit against the partners of the partnership. For this proposition, the learned counsel for the 1st defendant relies on a passage in the judgment of Suriyadi J (as he then was) in Leong Sing v. Perusahaan Kuari (Melaka Pindah) Sdn Bhd & Another Case [1997] 1 CLJ 307 which reads:

Aside from these statutory provisions, assistance was also sought from case law beginning with Western National Bank City of New York v. Perez, Triana & Co [1891] 1 QB 304 where at p 314, Lindley LJ said:

When a firm's name is used, it is only a convenient method for denoting those persons who compose the firm at the time when that name is used, and a plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names.

[10] Premised on the proposition