Wan Suleiman FJ:

The appellants, who were defendants in the Court below, had applied by way of summons-in-chambers for an order "that the writ of summons and the statement of claim and the service thereof and all subsequent proceedings be set aside as these disclose no reasonable cause of action" (obviously under O. 18,r. 19 of the Rules of the High Court 1980).

Appellants had filed two affidavits as well as various documents in support of their application. Counsel for the respondents/plaintiffs very properly objected to the admissibility of such evidence for the purposes of this application in view of the express prohibition contained in O. 18 r. 19(2),and the learned Judge accordingly proceeded to consider the application without regard for such evidence. Since Mr. Nathan for the appellants conceded that the affidavits and documents are indeed inadmissible, we need not dwell any further on this aspect of the application.

In their writ and statement of claim the respondents alleged that on or about 9 October 1978 the 1st respondent had agreed to purchase and the 1st appellant had agreed to sell to him a piece of land together with a house to be erected thereon for RM55,000.

In para. 2 of the statement of claim it was further alleged that the land to be sold under the agreement was in Johore Bahru, 1430 sq. feet in area and held under HS(D) 19309 for Lot TLO No. 10463, and that 1st appellant was to erect on it a double storey terraced house in accordance with the Housing Developers Rules 1970, and with the specifications contained in a brochure prepared by the 1st appellant and given or shown to the 1st respondent.

In para. 3 respondents claim that the purchase price (presumably progress payments) would be paid by 1st respondent to 1st appellant in accordance with the schedule of payments contained in the brochure aforementioned.

The 1st respondent then according to the statement of claim paid 1st appellant the sum of RM1000 as deposit and part payment, for which a receipt was issued dated 9 October 1978. 1st respondent then assigned to 2nd respondent all her interest in the property in writing for RM2000, on 4 November 1978 and gave notice of the assignment to 1st appellant on or about 28 December 1978.

Having consented to the assignment, the 1st appellant then sent to 2nd respondent's solicitors 3 sets of a formal agreement to be executed by the former, which respondents alleged contained terms which were in breach of the Housing Developers Rules 1970, and were in addition inconsistent with the terms of the agreement allegedly concluded on 9 October 1978 (referred to in para. 4 of the statement of claim) some of which were particularly enumerated by the learned Judge, viz:

(a) power given to 1st defendant to increase the price unilaterally;

(b) requirement for 1st plaintiff to pay for improvement of river, Sungai Sengkuang;

(c) power given to 1st defendant to terminate the agreement by returning all sums of money received;

(d) requirement for the plaintiff to pay for costs of electricity, water and sewerage connections outside the house; and many others.

The 2nd respondent's solicitors wrote to 1st appellant to amend the draft agreement to conform with the Housing Developers Rules and to the agreement of 9 October 1978, but instead on 26 March 1980, 1st appellant wrote to the former repudiating the agreement (para. 10 of statement of claim), presumably referring to the alleged agreement of 9 October 1978 on the ground that he did not agree with the amendments proposed by 2nd respondent.

On 9 July 1979, and unknown to respondents, it was alleged that 1st appellant conveyed the land to 2nd appellant. Respondents claim that 2nd appellant had knowledge and is bound by the agreement of 9 October 1978, and alternatively that this transfer was fraudulent.

In passing we should mention that four similar actions wherein similar questions of law and fact are involved have with the concurrence of the respective plaintiffs been