VC George J:

On the 11 September 1981 the defendants' motor car CM 5905 ran into the rear of the plaintiff's motor car CE 10, the force of the collision causing it to be pushed into the rear of another vehicle CP 2277 which had been in front of the plaintiff's motor car. The plaintiffs motor car was damaged.

By his solicitors' letter of 22 December 1982 the plaintiff gave notice to M/s. Malaysia Pacific Insurance Co. Ltd., the insurers of the defendants' motor car, of the fact of the accident and of the commencement of legal proceedings against the owner and driver of the motor car CM 5905.

The insurance company was asked to name solicitors (if any) that would accept service of the writ to be issued against the said owner and driver. There was no reply to this letter.

The writ was caused to be issued on 30 December 1982 and on the 19 January 1983 the writ was served on the said owner and driver who are the defendants named in the writ.

On the 31 January 1983 a certificate of non-appearance in respect of each of the defendants was issued by the Court and Judgment in default against each of the defendants for the amount, interest and costs prayed for in the statement of claim endorsed to the writ was entered on the 31 January 1983.

By their letter of 2 February 1983 the plaintiff's solicitors demanded from the owner of CM 5905 payment of the judgment sums.

By their letter of 18 February 1983 Syarikat Richard Ho, Advocates & Solicitors of Kuala Lumpur purporting to act for the defendants sent in their application to set aside the default judgment. The affidavits filed in support of the application are by Encik Guy Vareghese, a member of the firm of solicitors and by one Encik Eric Wong, the Claims' Manager of Malaysia Pacific Insurance Co. Bhd. the insurers of the defendants' motor car CM 5905. By the affidavits it is claimed that:

(1) On 26 January 1983 the Solicitors had posted to the Registry of the Court the memorandum of appearance on behalf of each of the defendants.

(2) The draft statement of defence attached to the affidavit of Eric Wong discloses that there is bona fide defence to the action that is that the accident was caused by the negligence of the plaintiff or was substantially contributed to by him (particulars of negligence are given). The allegations of loss and damage are denied.

(3) In any event the amount claimed is not a debt or liquidated claim and accordingly the final judgment entered was irregular.

On behalf of the plaintiff this application was attacked on a number of grounds:

(1) The solicitors who purported to enter the appearance and who filed the application to set aside the writ appear to be instructed by the insurers of the defendant's motor car and not by the defendants themselves.

(2) The defendants have paid the full amount of the judgment sum into Court. From this the Court should infer that the defendants abide by the judgment entered against them.

(3) The affidavits filed in support of the application are not by the defendants or either of them.

(4) The insurers had been given notice as early as 22 December 1982 of the commencement of legal proceedings.

(5) There is no defence to the action in that on the facts the defendants were solely to blame for the accident occurring.

(6) The final judgment entered was regularly obtained, the amount being a liquidated demand.

It is common knowledge that by the terms of their motor insurance policy the insured have delegated the power of appointment of solicitors in respect of claims covered by the policy to their insurers.

In the instant case the defendants passed on the writ served on them to the insurers and thereby in effect they were requiring the insurers to take such steps as the insurers may decide on behalf of the defendants. The appointment of Syarikat Richard Ho may have been made by the insurers but I am satisfied that such appointment was made on behalf of the defendants and that the steps taken by Syarikat Richard Ho in the action