(Oral)

Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] This appeal is directed against the order of the High Court at Kuala Lumpur dismissing the application of the defendant (appellant before us) made under RHC O. 18 r. 19 to strike out the claim of the plaintiff (respondent in the appeal). The brief factual background against which this appeal rests is as follows.

[3] Geahin Engineering Berhad, which we will call the target company, is a public company limited by shares. Its shares are freely traded on the Stock Exchange at Kuala Lumpur. It became financially strained. The Stock Exchange was concerned. It acted under Practice Note 4 of its Listing requirements and told the target company to put its financial affairs in order or face de-listing. Later a scheme was formulated to financially rescue the target company. The defendant was the auditor of the target company. It also acted as the target company's adviser in the restructuring scheme. What the scheme amounted to is this. Two companies, Mayford Garments Sdn Bhd or Mayford, and another company called MKK Industries Sdn Bhd or MKK were to jointly incorporate a third company which was then to take over the assets and liabilities of the target company and inject capital into it. A company was then incorporated. It is the plaintiff. The plaintiff's case in the court below is that during the course of the restructure the defendant rendered advice to it upon which it acted to its detriment. The defendant's answer is that it did give the advice but that that advice was accompanied with a caution which sufficiently excluded the defendant from liability to the plaintiff.

[4] In addressing us on the appeal learned counsel for the defendant took us through his client's advice and other relevant documents at some length to demonstrate that the plaintiff would not succeed on its pleaded case. As such, so the argument goes, the pleading must be struck out and the learned judge in the court below erred in not making an order in terms of the defendant's summons.

[5] With respect we are unable to agree. It is well settled that the existence of a duty of care in given circumstances is a mixed question of law and fact. The three fold test formulated by the House of Lords in Caparo Industries v. Dickman [1990] 2 AC 605 and adopted by our Federal Court in Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 calls for a meticulous examination of the fact and circumstances of each case. In particular, the third limb of the test that it must be just, fair and reasonable to impose a duty of care requires careful consideration after mature argument. This is not an exercise that is suitable or appropriate to be undertaken on a summons to strike.

[6] In a case as the present we can do no better than to quote from the judgment of Raja Azlan Shah J (as his Royal Highness then was) in Mooney & Ors v. Peat Marwick Mitchell & Co. ; [1967] 1 MLJ 87. There, the learned judge applied with approval the following passage in the judgment of Danckwerts LJ in Wenlock v. Moloney [1965] 1 WLR 1238:

But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge.

[7] Here too, the plaintiff would have us trawl through the documents to make a pronouncement on the merits of this case. That in our view would indeed be a usurpation of the function of the trial judge. Therefore it comes as no surprise, having regards to the facts and circumstances now before us, that the High Court dismissed the defendant's application.

[8] Before we conclude we must say something about how this appeal came to be argued before us. On 21 April 2008, that is to say last Monday, this court was moved on a motion for an extension of time to file the appeal record against the order o