JUDGMENT

Lee Hun Hoe CJ Borneo:

[1] This appeal is against the decision of the learned Judge in ordering the appellant to issue a letter of release. There are fifteen grounds of appeal but mostly interrelated. Some of the d grounds have no substance at all. We do not propose to embark on a journey into all the grounds but would concentrate on the main points which merit consideration. Central to all these points is the main issue, that is, whether the learned Judge was right to make the order in the circumstances.

[2] We need only to set out the facts shortly. On 17 April 1980 the respondent employed the appellant, a firm of architects, to build a 27-storey office building at Jalan Ampang, Kuala Lumpur on the usual terms as defined by the Pertubuhan Arkitek Malaysia (PAM) conditions of engagement. The employment was for the whole project. The overall fee agreed was 4% of the total contract cost of the project. Over two years later, on 18 August 1982, while approval of the plans was under consideration by the relevant planning authority, the appellant sued the respondent for the balance of the professional fees of RM514,000. Up to that stage the appellant had already been paid RM80,000. The respondent denied the claim and averred that the sum claimed was not a genuine pre-estimate of the professional fees. It is maintained that the appellant is entitled, if at all, only to a quantum meruit for services rendered. By para 6 of the defence the respondent alleged that the appellant was in breach of contract and negligently failed to exercise reasonable care, as a result the approval of the drawing was delayed. This affected the sales of the properties by the respondent. Hence the counterclaim for consequential loss of RM450,000. The appellant disputed the counterclaim.

[3] Curiously enough, on 12 October 1982, after suing the respondent, the appellant then terminated its services as architects on ground of failure of payment of fees. On 1 November 1982 the respondent wrote to the appellant requesting for the dispute to be referred to PAM for decision and pending reference the appellant was to issue a letter of release to enable them to engage another architect to continue with the work. On 3 November 1982 the appellant replied denying the request and stating that the PAM conditions of engagement should not apply as there was no agreement to refer any dispute to arbitration. Until all the fees were paid the appellant would not issue a letter of release.

[4] By a Summons in Chambers dated 25 November 1982 the respondent applied for an order that the appellant forthwith issue the respondent with a letter of release to enable the respondent to engage another architect to proceed with the proposed construction of the building. On 2 December 1982 the building plans were approved by the Jabatan Arkitek Bahagian Kawalan Bangunan Dewan Bandaraya. The validity of the approval was for one year only. After hearing the parties the learned Judge made an order in terms on 5 February 1983. Hence the appeal.

[5] The appellant complained that no prayer for the letter of release was prayed in the counterclaim and that it was contrary to O 29 r 6 of the Rules of the High Court 1980. He also submitted that an interlocutory application should only be made in aid of a prayer in the Statement of Claim or in the Defence or Counterclaim. The short answer is, of course, provided by O 29 r 1(1) which reads:

An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim or third party notice, as the case may be.

[6] The appellant took objection to the form of the order as it was contrary to O 29 r 1(4) of the Rules of the High Court 1980 which provides that "An order for interim injunction must be in Form 58." He referred to the Supreme Court Practice 1982 and cited Gebruder Naf v.