I. APPEAL

This is the defendant's appeal, in enclosure (13) against the decision of the learned senior assistant registrar who has on 27 April 1999 allowed the plaintiff's application in enclosure (4) pursuant to O. 27 r3 of the Rules of the High Court 1980, and made the following orders:

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(a) refund to the plaintiff of the sum of RM120,000.00;

(b) interest at 8% per annum with effect from 12 October 1995;

(c) damages for breach of contract;

(d) damages for fraudulent misrepresentation

In this judgment, I shall refer to the appellant as the defendant and the respondent as the plaintiff.

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II. SUBMISSION FOR DEFENDANT

Encik Mohd. Omar bin Hussien learned counsel for the defendant submitted that the admissions if any made in the defendant's defence and counterclaim are qualified or conditional admissions. He added that the defendant has admitted executing the sale and purchase agreement made between the defendant and the plaintiff on 2 October 1995 ("the agreement") for the property held under H.S. (D) 75033, P.T. 657 Mukim Damansara together with a double-storey terrace house erected thereon ("the property"), but the said sum of RM120,000 was not received from the plaintiff but from the plaintiff's mother one Madam Quah Ah Ee ("Madam Quah") by way of a loan on condition that the defendant allowed Madam Quah to collect all monthly rentals for the [Page 4] property and that the defendant was to enter into a sale and purchase agreement with Madam Quah at a consideration of RM200,000. It was further contended for the defendant that the plaintiff was not only making a claim of RM120,000, but also damages for fraudulent misrepresentation which requires evidence to be adduced at the full hearing of the plaintiff's claim and the defendant's defence and counterclaim.

II. PLAINTIFF'S CONTENTION

Encik Moeis b Basri, learned counsel for the plaintiff contended that pursuant to the agreement, the purchase consideration was RM200,000, out of which the plaintiff has paid the defendant RM120,000 and the defendant was to apply for an order from the court under s 60 of the Probate and [Page 5] Administration Act 1959 on or before 1 January 1996. He argued that the defendant in para 3 of the defence and counterclaim has made the following admissions:

(i) the defendant did not have the capacity to enter into the agreement as the administratrix for the estate of the Chew Ah Bah, deceased;

(ii) the defendant had entered into the agreement under a mistake; and

(iii) the defendant has no locus standi to apply to the court for the order under s 60, supra and the agreement has contravened the law.

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It was also stressed for the defendant that the plaintiff has not denied that in executing the agreement, the defendant has influenced the plaintiff to pay the defendant the said sum of RM120,000. On the basis of these "admissions", the plaintiff has vide enclosure (4) persuaded the learned senior assistant registrar to make an order in the aforesaid terms, under O.27 r3, supra.

IV DECISION OF THE COURT

The central issue raised in the respective submissions for the parties herein and the learned registrar's decision revolves around the true construction to be placed on O.27, r3, supra, which reads as follows:

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"Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such judgment, or make such order, on the application as it thinks just. An application for an order under this rule may be made by summons.".

O.27 r3 is clearly intended to enable the court to a judgment or order on the basis of a party's plain admission without waiting for the determination of any question between the parties: Ellis v Allen [1914] 1 Ch. 904, 909.

Admissi