(delivering the judgment of the Board): This is an appeal brought with the leave of the Federal Court of Malaysia from a decision disallowing an appeal from the order of Abdul Hamid J. that the appellant's defence to the respondent's claim be struck out as disclosing no reasonable answer, and further ordering that the respondent be at liberty to sign final judgment for the sum claimed.

The facts are these. In December 1969, a probate suit regarding the estate of one Chi Liung then proceeding in the High Court at Kuala Lumpur, to which the appellant and one Tong Young Fah and eleven others were parties, was compromised on terms which were made a rule of court. Pursuant thereto, an agreement was entered into between the thirteen parties, a term of which was that a valuation of certain property was to be carried out jointly by the respondent (who is in practice at Kuala Lumpur as a chartered surveyor) and another valuer.

On May 28, 1970, Messrs. Richard Talalla and Company, advocates and solicitors, wrote to the respondent with reference to the probate suit, saying that they were acting "for Messrs. Tong Lee Hwa and Tong Young Fah". They enclosed a copy of the agreement, and enquired whether the respondent was prepared to carry out the designated valuation. On June 1 the respondent accepted, and in April of the following year he received the solicitors' written instructions to proceed. Thereafter he carried out the work in two stages, rendering his first bill to the solicitors in October 1971 and the second in March 1972.

No payment being forthcoming the respondent issued on January 3, 1973, a specially indorsed writ against the appellant and Tong Young Fah for his fees of $35,964 with 6% interest. In answer to his summons for final judgment, the appellant filed a defence that the valuation work "was done at the request of and on behalf of all the parties to the consent order of Prate Suit No. 3 of 1969 and not in his personal capacity", and in his supporting affidavit he asserted that in consequence he was "not individually liable for the sum of $35,964". (It is unnecessary to refer to the defence and affidavit of Tong Young Fah, the second defendant.) The plaintiff's summons for final judgment, supported by his affidavit that there was no defence to the action, came before Mohd. Azmi J. on March 26, 1973. The relevant part of the order then made was in the following terms:

"IT IS ORDERED that the application herein be withdrawn with liberty to join the other parties involved in Probate Suit No. 3 of 1969 as defendants AND IT IS ORDERED that no provision be made as to costs."

There is no information as to what happened thereafter, save that it is clear that no parties were added as defendants. On December 10, 1976, nearly four years later, the plaintiff gave fresh notice of motion for an order "… that the defences of the first and second defendants herein be struck out as disclosing no reasonable answer … and that he be at liberty to sign final judgment. On May 23, 1977, the matter came before Abdul Hamid J. in open court, each side being legally represented. Two grounds of defence were relied upon by Tong Lee Hwa:

(1) that the earlier summons of February 1973 had been dismissed by Mohd. Azmi J., and that the matter was therefore res judicata;

(2) that the terms of the plaintiff's appointment as valuer were such as to render him not liable for the plaintiff's fees.

The learned judge rejected these pleas and forthwith ordered both defences to be struck out and that the plaintiff be at liberty to sign judgment in the full sum sued for. Giving his reasons on July 18, the learned judge said regarding the plea of res judicata:

"[Tong Lee Hwa] has stated that there was a Summons in Chambers filed by the solicitors of the plaintiff to sign final judgment against the [defendants] in respect of the same matter. It is alleged that the application was dismissed and the judge ordered the Civil Suit to be withdrawn with li