The court established that a party waives legal privilege by calling their solicitor as a witness, and the Defendants were found liable for breaches of contract, necessitating an assessment for damages.

A. Introduction

[1] This case raises, among others, two interesting questions as follows:

(1) whether the court can consider the oral testimony of a solicitor (X) regarding the meaning of a contract entered into by X's client (Y) when X had previously acted for Y in the negotiations and drafting of the contract; and

(2) when Y called X as a witness in a trial to give evidence regarding the interpretation of the contract executed by Y, has Y impliedly waived legal privilege attached to communication between X and Y regarding the contract under the second limb of s 128 of the Evidence Act 1950 ( EA )?

B. Background

[2] The plaintiff (Plaintiff) owns a double-storey bungalow situated at Lot 37409, Jalan Shahbandar 20/6, Bandar Mahkota Cheras, Mukim Cheras, Daerah Hulu Langat, Selangor Darul Ehsan (Property).

[3] Mr Tan Jia Yao (Jia Yao) is the sole proprietor of a business known as "UT Construction & Renovation" (UTCR). UTCR was initially the 3rd defendant (3rd Defendant) in this case. After the conclusion of the trial in this case (Trial), the Plaintiff applied in court enclosure no 80 (Encl 80) to amend his Amended Statement of Claim (ASOC) to substitute Jia Yao as the 3rd Defendant (in place of UTCR). The court has allowed Encl 80 - please refer to Part D below.

[4] The 1st defendant (1st Defendant) and 2nd defendant (2nd Defendant) are Jia Yao's father and mother respectively.

[5] The Plaintiff alleged that he had orally appointed the 1st Defendant and UTCR to renovate the Property (Works). In this judgment, I shall refer to this appointment as the "1st Contract".

[6] UTCR appointed Messrs "Ahmad Zakuan Architect" (Messrs AZA), a firm of architects, to prepare building plans for the 1st Contract (Building Plans) to be submitted to the local authority, "Majlis Perbandaran Kajang" (MPKj).

[7] There were disputes regarding the Works which led to a suit filed by the Plaintiff against the 1st Defendant, 2nd Defendant and UTCR in Shah Alam Sessions court Civil Suit no: BA-B52C-43-06/2017 (1st Suit). This judgment shall refer to the 1st Defendant, 2nd Defendant and UTCR collectively as the "Defendants (1st Suit)".

[8] In the 1st Suit:

(1) the Plaintiff pleaded as follows, among others:

(a) the Plaintiff had paid to the Defendants (1st Suit) a total sum of RM536,984.50 for the Works but the Works had not been completed by the Defendants (1st Suit); and

(b) the Plaintiff had claimed for, among others, the return of RM536,984.50 from the Defendants (1st Suit);

(2) Mr Thisinayagam A/L Somasundram (SD2), an Advocate and Solicitor (A&S) represented the Defendants (1st Suit);

(3) the Defendants (1st Suit) had resisted the 1st Suit on various grounds; and

(4) on 13 March 2018, all parties recorded a consent judgment in the Sessions court (Consent Judgment). According to the Consent Judgment-

(a) the Plaintiff and Defendants (1st Suit) had reached a full settlement regarding the 1st Suit based on the terms of a "Settlement Agreement" (SA); and

(b) the SA was appended to the Consent Judgment as Appendix A.

[9] I reproduce below the salient terms of the SA:

(1) clause 1(i) - the Defendants (1st Suit) are required to complete the Works:

(i) as provided in the Bills of Quantities attached to the SA as Annexures 1 and 2 (BQs); and

(ii) in accordance with the Building Plans as attached to the SA as Annexure 3

[Clause 1(i)];

(2) clause 1(ii) - the Defendants (1st Suit) are not required to obtain the "Certificate of Completion and Compliance" (CCC) but "shall assist or allow the Plaintiff and/or third party(ies) engaged by the Plaintiff to liaise with the relevant ... authorities to procure the issuance of the CCC, including but not limited ... to provide the relevant necessary documents to such third party(ies) for such purpos