Zakaria Yatim JCA:

[1] On 14 October 1988, the plaintiff filed a suit in the Sessions Court, Klang against the five defendants who are advocates and solicitors of the High Court Malaya for alleged professional negligence. In the statement of claim, the plaintiff alleged that on 27 February 1987, it retained the defendants to act as its solicitors in the legal documentation in respect of a loan granted to a company known as Denson & Co On 27 June 1987, the defendants advised the plaintiff that the loan documentation had been completed and that the property to be charged to the plaintiff was free from encumbrances. The defendants also told the plaintiff that the charge was duly presented for registration. Acting upon the advice of the defendants, the plaintiff, on 3 July 1987 released a loan of RM60,000 to the company. On 8 July 1987, the defendants informed the plaintiff that the said property was caveated and not free from incumbrances. The plaintiff said that it had suffered loss and damage by reason of the negligence. The plaintiff's claim against the defendants was for a sum of RM60,000 with interest in the sum of RM6,859.40 together with further interest at the rate of 11%pa on monthly rests from 1 June 1988 till the date of realization and costs. The defendants filed their statement of defence on 18 April 1989.

[2] On 19 February 1990, the plaintiff filed an application for an order that the statement of defence be struck out under O 14 r 21 of the Subordinate Courts Rules 1980 ('the SCR') and under the inherent jurisdiction of the Court on the grounds that the defence disclosed no reasonable defence, that it was frivolous and vexatious and that it was an abuse of the process of the Court.The same application also contained an alternative prayer for an order that the plaintiff be at liberty to enter final judgment as prayed in the statement of claim against all the defendants under O 26A of the SCR.

[3] On 7 January 1991, the learned sessions Court judge, after hearing both counsel for the plaintiff and for the defendants, made an order striking out the statement of defence under O 14 r 12 and entered judgment against the defendants as prayed in the statement of claim with costs.The said order is reproduced below:

Atas permohonan plaintif di hadapan Yang Arif Tuan Hassan bin Abd Rahman, hakim Mahkamah Sesyen, Klang dan setelah membaca notis permohonan bertarikh 19 Februari 1990 dan setelah mendengar En Zainal Abiddin bin Mohd Zainuddin bagi pihak plaintif dan Cik Wan Linda bagi pihak defendan pada 22 November 1990, adalah diperintahkan bahawa pernyataan pembelaan defendan menurut A 14 k 12, Kaedah Mahkamah Rendah dan seterusnya plaintif diberi kebebasan untuk memasuki penghakiman terhadap defendan pertama, kedua, ketiga, keempat dan kelima serta faedah dan kos sebagaimana yang ternyata di dalam pernyataan tuntutan dan selanjutnya diperintahkan bahawa kos permohonan ini hendaklah ditanggung oleh defendan pertama, kedua, ketiga, keempat dan kelima.

Bertarikh pada 7 Januari 1991.

[4] The defendants appealed to the High Court. The learned judge dismissed the appeal but reduced the judgment sum and interest as conceded by the plaintiff. With the leave of this Court, the defendants appealed to this Court against the decision of the learned judge.

[5] At the commencement of the hearing of the appeal before this Court, we were of the view that counsel should address us whether it was proper for the plaintiff to include a prayer to strike out the statement of defence and an alternative prayer for summary judgment. Since this was not an issue in the appeal we adjourned the hearing to the next day to enable both counsel to address the Court on this point.

[6] When the hearing resumed the next day, WSW Davidson, counsel for the appellants, conceded that the issue was not raised by the defence in the Court below. He confirmed that in the memorandum of appeal the appellants did not make any reference to this issue. He submitted however