Haji Abdul Malek bin Haji Ahmad J:

As pleaded in the statement of claim and averred in the affidavit supporting the application for summary judgment, the plaintiff is a limited company under receivership and the defendant is an advocate and solicitor practising under the name and style of Messrs. T.H. Su & Co.

By a Garnishee Order to show cause dated 15 March 1988 obtained in Kuala Lumpur High Court Civil Suit C4-23-2492-87 (hereinafter "the Garnishee Order"), it was ordered that all monies due and accruing from the United Asian Bank Berhad (hereinafter "UAB") to Khintan Enterprise Sdn. Bhd. (hereinafter "KE") be attached to recover a judgment obtained by Bumi Gajah Agencies (hereinafter "BGA") against KE. The monies due and accruing to KE from UAB had earlier been assigned to the plaintiff pursuant to a principal agreement dated 20 May 1987, an agreement to sell goods on credit also on the same date, and an assignment of debt dated 27 July 1987, all entered into between the plaintiff and KE.

After these three transactions, which had also been handled by the defendant, the plaintiff had instructed the defendant to make the application to intervene and to set aside the Garnishee Order. The plaintiff contends that it was an implied term of the said agreement by the defendant to act as solicitor that it was the duty of the defendant to exercise all due care, skill and diligence in and about the prosecution of the matter.

The defendant had on 14 April 1988 filed an application for an order that the plaintiff be allowed to intervene in the garnishee proceedings and to set aside the Garnishee Order. The application was heard by the Senior Assistant Registrar on 27 October 1988 who on 15 November 1988 had dismissed the application resulting in the garnishee order being made absolute requiring the UAB to pay directly to BGA the sum of RM131,967.33 due and accruing to KE.

The defendant did file an appeal against that decision to a Judge in Chambers on 23 November 1988 but it was dismissed on the preliminary point that it was lodged out of time. The appeal to the Supreme Court was similarly dismissed on 28 November 1989. On 20 February 1989, UAB had, pursuant to the Garnishee Order absolute on 15 November 1988, paid RM131,967.33 to BGA.

By summons in chambers filed on 1 October 1992, the plaintiff had applied to enter final judgment against the defendant for RM131,967.33 with interest at 8 per cent per annum on that amount from 20 February 1989 to the date of realisation or alternatively to enter final judgment against the defendant with damages to be assessed with interest at 8 per cent per annum from the date of judgment to the date of realisation.

Learned Counsel for the defendant had argued that since the statemant of claim was based on negligence and not on contract, the plaintiff must prove that the defendant owed a duty of care, that there had been a breach of that duty, and that the plaintiff suffered damages because of that breach. He added that the plaintiff had to show that the retainer subsisted throughout the entirety of the proceedings and that the plaintiff had given instructions to the defendant on a continuous basis. He further stated that whether the defendant, who was sued personally, alone or his entire firm had specific conduct of the matter, whether there was vicarious liability, or whether the firm was a partnership, were all triable issues and summary judgment was therefore not appropriate.

A perusal of the affidavits and their annexures show quite clearly that the defendant had been retained by the plaintiff in 1987 and had acted for them for the relevant agreements and the subsequent garnishee proceedings. The contemporaneous correspondence throughout the period that followed up to the time this problem arose indicates that the defendant should be held responsible for the matter being dealt with properly up to the end.

It is not open, to my mind, for the defendant to say that the retainer ended