JUDGMENT

Low Hop Bing JCA:

Introduction

[1] These two related appeals viz Court of Appeal Civil Appeal No. W-03-10-2006 ("Civil Appeal No. 10") and Civil Appeal No. W-03-11-2006 ("Civil Appeal No. 11") were lodged by the appellant - plaintiff ("the plaintiff") against the decision of the learned judge of the Kuala Lumpur High Court given on 8 December 2005 whereby the plaintiff's application, to set aside the default judgment which the plaintiff had entered against the second respondent ("the second defendant") on 16 January 2001, was dismissed with costs.

[2] The facts, issues and parties in these two appeals are the same. Submissions were presented in Civil Appeal No. 11. The parties have agreed that the decision of this Court in Civil Appeal No. 11 would be binding on the parties in Civil Appeal No. 10.

[3] After hearing submissions, we have on 9 January 2007 unanimously dismissed Civil Appeal No. 11 with costs. These are our grounds of judgment. (For brevity and convenience, a reference hereinafter to an order and a rule is a reference to that order and rule in the Rules of the High 1980 , unless otherwise stated.)

Factual Background

[4] The plaintiff had a current account with HSBC Bank Malaysia Bhd, the first defendant. In 1998, 117 cheques were paid out by the first defendant and a total amount of RM483,591.21 was debited from the plaintiff's current account.

[5] The plaintiff alleged that the signatures on these cheques were forged by the second defendant and claimed against:

(a) the first defendant, on the ground that the forged cheques are wholly inoperative and that the first defendant was negligent in debiting the above amount from the plaintiff's current account; and

(b) the second defendant, for having fraudulently converted the cheques to her own use or, alternatively, for monies had and received.

[6] The plaintiff's claims are expressly pleaded and premised on joint and several liabilities.

[7] In its original defence, the first defendant did not plead that the plaintiff must elect to claim against either one of two defendants or against both.

[8] On 16 January 2001, the plaintiff entered default judgment against the second defendant who failed to turn up for case management.

[9] First defendant's counsel then requested for time to obtain an expert's report in relation to the signatures on the cheques. At the material time, first defendant's counsel did not indicate that the defence of election would be raised.

[10] Further case management was fixed for 23 February 2001.

[11] Meanwhile, on 22 January 2001, plaintiff's counsel served on defendant's counsel the draft judgment for the latter's approval. It was returned duly approved on 29 January 2001.

[12] On further case management dated 23 February 2001, defendant's counsel asked for time to study the expert's report. Case management was then fixed for 29 March 2001.

[13] On 29 March 2001, at the request of both parties, trial dates were fixed.

[14] On 4 October 2001, pursuant to another case management, parties were directed to file the necessary documents and witness' statements by 22 October 2001.

[15] On 25 October 2001, first defendant's counsel asked plaintiff's counsel whether the sealed default judgment has been extracted. When the answer was in the affirmative, first defendant's counsel instantly gave notice of the defence of election.

[16] On 5 November 2001, the first defendant applied to amend its defence to aver that as the plaintiff had elected to claim against the second defendant by entering judgment against the second defendant, the plaintiff is now estopped from claiming against the first defendant. That application was dismissed by the learned judge on 5 February 2002.

[17] On 28 February 2002, the first defendant appealed to this Court.

[18] On 15 April 2004, this Court allowed the first defendant's appeal and granted leave to the first defendant to amend its defence in terms as alluded to above: HSBC Bank Malaysia Bhd. v. MacQuarie Technologies (Malaysia) Sdn. B