Solicitors owe a duty of care to ensure proper searches are conducted to protect clients' interests in conveyancing practice, particularly against fraud.

[1] The appellants (solicitor) appeal to set aside the judgment of the High Court in favour of the respondent came up for hearing on 4 November 2013. The appeal involved important principles relating to conveyancing practice. After hearing the submissions we reserved the judgment to 2 December 2013. My learned brother Abdul Wahab bin Patail JCA has read the draft judgment and approved the same. This is our majority judgment.

[2] The memorandum of appeal inter alia reads as follows:

"1. The learned judge erred in law and fact when he injudiciously failed to consider the appellants plea of volenti non fit injuria as pleaded in para 24 of the amended statement of defence.

2. The learned judge erred in law and fact when he failed to establish the liability of SD1, the appellants legal assistant who handled the matter based on the respondents instruction contained in exh P23 and/or otherwise exonerated SD1 from liability and instead attributed constructive liability and self-blameworthiness on the appellant based on his misperception of s 11 of the Partnership Act 1961 in an employer-employee relationship instead of the common law rule of vicarious liability.

3. The learned judge found and asserted as a matter of fact at p 9 of his judgment in clear language that "hal pemalsuan dan penipuan ini tidak disedari oleh plaintif and juga defendan sejak pinjaman diluluskan hingga kepada masa kemungkiran membayar oleh PKS", whereby the matter had become ex turpi causa non oritur actio and fundamentally erred in law when he attached liability to the defendant only even though he said that the "fraud" and "cheating" were not known to both the respondent and appellant from the time of approval of the loan.

4. The learned judge erred in law and fact when he alluded to the fact that the appellant must do all necessary searches as a specific instruction when the respondents letter of instruction (exh P23) did not identify and itemise specifically the types of searches required to be done except for the specific instruction not to lodge a private caveat and that the final release could only be done after a final site inspection by the respondents regional office at Prai as per exh P95 read together with exhs P12 and P13, signed by one Ong Gaik Leng.

5. The learned judge erred in law and fact for failing to take cognisance that the respondent has not proved causation when he stretched the meaning of a duty of care and the standard thereof beyond that of a reasonable man to that of a man with prophetic foresight, thereby making damages suffered by the respondent as too remote."

[3] The respondent/plaintiff s issues to be tried read as follows:

"1. Was there a contractual relationship between the plaintiff and Abbas & Ngan upon the appointment of the latter as solicitors by the plaintiff to prepare enforceable security documents by way of Facility Agreements, Powers of Attorney and Assignments in respect of the two apartments known as:

a) Parcel No 14, Level 2 bearing the address No 492A-1-12B, Sri Indah Apartments, Jalan Air Itam, 11400 Penang; and

b) Parcel No 13, Level 3 bearing the address No 492A-2-12A, Sri Indah Apartments, Jalan Air Itam, 11400 Penang.

(hereinafter referred collectively as "the apartments") for the two housing loans totaling RM220,200.00 (hereinafter referred to as "the said loans") approved by the Plaintiff to Pneh Kon San?

2. If the answer to Issue 1 above is Yes, was Abbas & Ngan in breach of the terms of the contract with the plaintif