Gopal Sri Ram FCJ:

[1] We refused leave to appeal in this case because the questions that lie at the heart of this matter are really questions of fact. However, there is a point of practice relevant to the conveyancing Bar on which the views of this court may be of assistance. It is for that reason that this judgment is produced, despite the general policy of this court not to give reasons when granting or refusing leave.

[2] The applicant is the purchaser of a piece of property in Johor of which the first and second defendants in the proceedings before the High Court were the vendors. The instant respondent acted as the applicant's solicitor in the transaction. At the material time, the subject property was charged to Delta Finance Berhad and a sum of RM248,748.92 remained due and payable by the vendors to Delta Finance. Under the terms of the agreement, the vendors were to deliver to the applicant a valid and registrable title free of incumbrances. The only incumbrance in the contemplation of the parties was the charge in favour of Delta Finance. The applicant paid the vendors the deposit stipulated in the agreement. Later, the respondent solicitor released the balance of the purchase price to the vendors' solicitors. In so doing she acted in accordance with the arrangement between the parties and upon the vendors' solicitor's undertaking to utilise the balance of the purchase price to redeem the subject property from Delta Finance. As it happened, the vendors' solicitor misappropriated the monies and presented a cheque to Delta Finance which was dishonoured. The applicant then brought an action, inter alia, against the respondent for negligence, the substance of the charge being that the respondent ought to have reasonably foreseen that the vendors' solicitor may misappropriate the balance of the purchase price. She ought not therefore to have made the cheque out in favour of the defalcating solicitor. In the High Court, there was no controversy that the respondent did owe the applicant a duty of care to ensure that the applicant's interests in the transaction in question were sufficiently protected. What was asserted by the instant respondent was that she had, in all the circumstances of the case, acted with reasonable care. After a careful consideration of the evidence the learned trial judge found for the respondent. Dissatisfied, the applicant appealed to the Court of Appeal.

[3] In support of her case in both courts below, the applicant placed much reliance on Edward Wong Finance Co Ltd v. Johnson Stokes & Master [1984] 1 AC 296, a decision of the Privy Council on an appeal from Hong Kong. Low Hop Bing JCA who delivered the judgment of the Court of Appeal (reported in Wong Kiong Hung & Anor v. Chang Siew Lan & Another Appeal [2009] 3 CLJ 751 CA) said this of that case:

[33] Edward Wong Finance Co. Ltd, supra, which the purchaser herein relied on heavily, is concerned with the standard of care owed by a solicitor to his client in relation to mortgage of property pursuant to the conveyancing practice prevalent in Hong Kong. The advice of the Privy Council was delivered in the context of the tort of negligence arising from the solicitors' failure to exercise due care, skill and judgment in the performance of their duty to take reasonable steps to protect their client's interest. Conspicuously, the facts before the Privy Council are somewhat dissimilar.

[34] The provisions of clauses. 2, 4 and 15 which fall to be considered herein, are not within the purview of consideration by the Privy Council. These contractual provisions are crucial for consideration by this court, especially in relation to the issues of negligence or breach of contractual duty or both. Further, the purchaser herein had already obtained judgment against the vendors. In the circumstances, with the utmost respect, the factual matrix in Edward Wong Finance Co. Ltd, supra, is readily distinguishable from the facts before this court.

[35] In Malays