The principle of novus actus interveniens applies, breaking the causal link of liability where a new act occurs, absolving the original wrongdoer of responsibility.

[1] In 2004, Devan & Associates, the appellant (defendant in the court below) was engaged by TSR Bina Sdn Bhd, the respondent (plaintiff in the court below) to represent it in defending a suit brought against it by Josu Engineering Construction Sdn Bhd (hereinafter known as "Josu"). The appellant was also instructed, at the same time, to prosecute a counterclaim against the said Josu in the same suit. The said civil suit was filed against the respondent in the Seremban High court as Civil Suit No MT1-22 February 2004 ("Josu's suit").

[2] By a letter dated 19 September 2006, the appellant wrote to the respondent to forward their documents to enable the filing of the respondent's bundle of documents in the Josu's Suit as soon as possible. From 18 September 2006 to 6 February 2007, the respondent did not forward the required documents nor gave any instructions to the appellant. Neither did the respondent make any comments pertaining to the documents forwarded by the plaintiff in the Josu's suit though the appellant had required it to do so for the purpose of the Josu's suit.

[3] At the case management of the Josu's suit on 6 February 2007, the appellant could not attend court as it was engaged in other matters in Kuala Lumpur High court as well as in Shah Alam High court. One of these matters had involved an injunction application. As such, one Mohammed Azmi bin Mohd Said, a counsel was instructed to be present at the Seremban High court, with a view to mention on behalf of the appellant at the said case management in the Josu's suit. During the said case management, Josu's counsel submitted that the respondent's solicitors (ie the appellant) had not responded to Josu's bundle of documents. In the result, counsel for Josu, one Rajentharan a/l Nadeson then made an oral application before the learned High court Judge that the TSR's [respondent in this appeal] Defence and Counterclaim in the Josu's suit ought to be struck out accordingly.

[4] The learned High court Judge allowed Josu's counsel's oral application during the said case management on the 6 February 2007 and ordered in terms of para 36(a)(b)(c) and (d) of the Statement of Claim and that damages be assessed before the Registrar ("6 February 2007 Order"). The said Order dated the 6 February 2007 was subsequently amended to read para 9.1(a) to 9.1(1) (iii) instead of para 36(a)(b)(c) and (d). The part on assessment of damages to be ventilated before the Registrar was left untouched.

[5] Aggrieved by the said decision, the appellant had on 5 March 2007 filed a Notice of Appeal on behalf of the respondent against the 6 February 2007 Order.

[6] On 22 March 2007, the respondent appointed new solicitors, Messrs Jasbeer, Nur & Lee ("new solicitors") to take over the conduct of the Josu's suit from the appellant. The new solicitors then filed an application to set aside the 6 February 2007 Order and withdrew the Appeal (which was filed by the appellant before). This application to set aside was dated 4 April 2007 in the High court at Seremban as encl 17 in the Josu's suit.

[7] On 3 February 2009, the High court Judge at Seremban had dismissed the respondent's Setting Aside Application in encl 17, the reason being that the respondent had employed the wrong mode in its attempt to overturn the 6 February 2007 Order issued by the Seremban High court in the Josu's suit. The learned High court Judge, in dismissing the application by the new solicitors for the respondent to set aside the judgment entered against it by the Seremban High co