V.C. George J:

This is a summons to the Judge for the review of the Registrar's taxation of the bill of costs of the 2nd defendant.

The plaintiff's claim against the 1st defendant was in respect of a term loan of RM600,000, interest and costs. The claim against the other defendants including the 2nd defendant was on the written guarantee given by them in respect of the repayment of the loan, interest and costs and other related charges. The amount said to be owing when the writ was filed was RM697,451.13.

The Senior Assistant Registrar had given an O. 14 judgment against the 2nd defendant. The appeal against it was allowed and the 2nd defendant was given unconditional leave to defend. One ground for allowing the appeal was that it being an on-demand guarantee a condition precedent to suing was whether there had been a demand and on the facts before the Court whether a demand had been made was found to be a bona fide triable issue. The plaintiff thereafter, not unexpectedly, sought leave to withdraw the action as against the 2nd defendant (and the 4th defendant) with liberty to re-file after a fresh demand was made. The Senior Assistant Registrar had refused the application. The appeal by the 2nd defendant against the refusal was allowed. The action as against the 2nd (and 4th defendant) was struck off. Costs of the withdrawn action was ordered to be paid (as taxed) to the 2nd defendant before any new action in respect of the claim against him is filed. It is the taxation pursuant to that order for costs that is the subject of this review.

The review sought is in respect of ''getting up'' the O. 14 application before the Senior Assistant Registrar (No. 28 at page 4 of the Bill of Costs, item 26 of Appendix I to O. 59) and ''getting up'' the appeal from the Registrar's decision (No. 58 at page 7 of the Bill of Costs, item 27 of Appendix I). In respect of the former RM40,000 was billed and RM12,000 was allowed and maintained by the Registrar on review; in respect of the latter RM25,000 was billed and RM8,000 was allowed and maintained on review.

Now, item 1(c) of Appendix 2 to O. 59 provides that in a claim for a debt or liquidated demand, in respect of O. 14 proceedings the successful plaintiff is allowed a fixed basic cost of RM350. There is no similar provision for fixed costs to a defendant who is awarded the costs of an O. 14 application and accordingly the defendant is entitled to have his costs taxed.

Items 26 and 27 of Appendix I to O. 59 and the note thereto are as follows:

26. Instructions for trial or hearing $ 242 of any cause or matter, whatever Discrethe mode of trial or hearing. tionary 27. Instructions for appeal from an interlocutory or final order or Discrejudgment. tionary

Note to items 26 and 27:

These items are intended to cover the doing of any work, not otherwise provided for, necessarily or properly done in preparing for a trial, hearing or appeal, or before a settlement of the matters in dispute, including:

(a) taking instructions to sue, defend counterclaim or appeal, or for any pleading, particulars of pleading, affidavit, preliminary act or claim in a reference under O. 56; (b) considering the facts and law; (c) attending on and corresponding with client; (d) interviewing and corresponding with witnesses and potential witnesses and taking proofs of their evidence; (e) arranging to obtain reports or advice from experts and plans, photographs and models; (f) making search in public record office and

elsewhere for relevant documents;

(g) inspecting any property or place material to the proceedings; (h) pursuing pleadings, affidavits and other relevant documents; (i) where the cause or matter does not proceed to trial or hearing, work done in connection with the negotiation of a settlement; and (j) the general care and conduct of the proceedings.

It used to be suggested that normally a party is not entitled to ''getting up'' until the case had been set down for trial - see for instance