Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] This appeal is directed against the order of the High Court granting the respondent (defendant in the court below) unconditional leave to defend the plaintiff's action. The brief facts of the case are these. The plaintiff (appellant before us) is a stock broking company. At all material times one Ignitious Luke Jr Tan Keng Hee was a remisier in the plaintiff company. On 6 November 1996 an individual account was opened with the plaintiff. The account opening form shows the defendant as the account holder. There is a signature on that form which is said to be the defendant's signature. It is not alleged by the defendant that the signature is a forgery. There is no dispute that it was the defendant who opened the account. Later, contract notes for transactions done on the account were sent to the defendant at her address. Later still, dispute arose as to the indebtness of the defendant to the plaintiff. The documents show that at all material times a sum of RM7,127,322.82 was owing from the defendant to the plaintiff. In due course the plaintiff brought an action to recover this sum and took out a summons for judgment. The summons came before the registrar who granted an order in its terms. The defendant then appealed to the judge in chambers who allowed the appeal and granted the defendant unconditional leave to defend. So much for the facts.

[3] In her affidavit seeking leave to defend the defendant raised three issues. First, that the margin account that had been created by the plaintiff in her favour was a moneylending transaction. Second, that the operation of the account with the plaintiff was handled entirely by her husband and not by her. She was therefore not bound by the transactions in question. Third, she was unaware of the transactions that had been carried out by the plaintiff in her account and she was therefore not bound by them.

[4] Taking the first issue, it is our judgment that the provision of a margin account by a stock broker to his customer is not a moneylending transaction. All that the stock broker does is to give a line of credit to his customer instead of insisting on an advance cash deposit. In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd , the former Federal Court held that the Money Lenders Ordinance 1951 applied only to moneylenders. It follows that the point taken by the defendant does not amount to a bona fide triable issue.

[5] As for the second line of defence, in our judgment it is no answer for the defendant to allege that the transactions in the account were carried out at her husband's behest. A similar defence taken by a husband in Spiro v. Lintern [1973] 3 All ER 319 failed. In the course of delivering the judgment of the English Court of Appeal, Buckley LJ held that the plaintiff in that case was entitled to assume that the wife had the husband's authority to act because "of the fact that the first and second defendant were husband and wife and so presumably entirely within one another's confidence." So too here. The plaintiff when receiving instructions from the defendant's husband would have been entitled to assume that he was acting on his wife's behalf because they must have been entirely within one another's confidence. It is therefore not open for the defendant now to assert that her husband acted without her knowledge or authority.

[6] Now for the final point. The plea that the defendant was wholly unaware of the transaction flies in the face of the undisputed contemporaneous documentary evidence. As we have already said, contract notes were sent to the defendant at the address shown in her own affidavit. On receiving them she took no steps to disavow any of the transactions to which they related. Her attempt to do so after service of writ must be regarded as spurious if not highly suspect.

[7] So, when viewed against the contemporaneous documentary evidence the defence is really a sham. A court properly dire