Chang Min Tat FJ:

[1] At the appeal, counsel for the appellants elected deliberately to rely only on res judicata.

[2] He had another ground of appeal. It was to the effect that the claim of the respondent against the appellants for work done at the request of the appellants should not be met by the appellants as it was done for and on behalf of a company known as Chi Liung & Sons Sdn Bhd and also for and on behalf of the estate of Chi Liung. The appointment of the respondent was by the appellants and though the former accepted the appointment as valuer for the estate, there was nothing in the letter dated May 28, 1970 to indicate that the appointment was as such valuer. Having regard to the agreement between the beneficiaries of the estate made on December 15, 1969 that the parties were to act in their personal capacities or their representative capacities or both, and the terms of the said letter, the appointment was more likely to be as valuer of and not for the estate.

[3] Undoubtedly, counsel for the appellants considered that the law was against him on this contention. He therefore chose to rely entirely on the application of the principle of res judicata. The contention was directed to an application by the plaintiff to sign final judgment, on which the order of the court made on March 26, 1973 was that the application was withdrawn with liberty to join the other parties involved in the Probate Suit involving the estate of Chi Liung.

[4] The respondent however did not avail himself of the liberty and instead made an application by notice of motion to strike out the defences of the appellants as disclosing no reasonable answer and as being frivolous and vexatious and to sign final judgment. At the hearing of the notice of motion, an order in terms was made. From that order, this appeal lay and it was said that the order of March 26, 1973 was a judgment in bar of the subsequent notice of motion.

[6] We did not feel any necessity to call on counsel for the respondent and we accordingly dismissed the appeal.