JUDGMENT

Gunn Chit Tuan J:

The defendant, Mr. G. Rethinasamy, an advocate and solicitor practising at Butterworth under the name and style of Rethina and Company, was sued by the plaintiffs abovenamed for negligence and breach of contractual duty as their solicitor.

It was not disputed that on or about 12 June 1976, the plaintiffs consulted the defendant as a solicitor in his office and engaged him to act for them in the purchase of Holding No. 809, Mukim 2, Province Wellesly Central, Penang, (hereinafter referred to as "the said land") from one Haji Hassan bin Abdul Rahman. The defendant prepared a sale agreement that day and the sale was completed on 6 August 1976. It was averred by the plaintiffs in their statement of claim and admitted by the defendant in his statement of defence that it was an implied term of the engagement that the defendant "should exercise all due skill and care while acting for the plaintiffs". The said land had in fact been acquired by Government under s. 8 of the Land Acquisition Act, 1960 and the acquisition was gazetted in a Gazette Notification No. 23 dated 1 February 1973. The plaintiffs were awarded and paid sum of RM14,000 in 1977 by the Government for the acquisition of the said land and claimed that they had suffered damages amounting to RM31,000, which sum was arrived at by subtracting the compensation of RM14,000 from the total purchase price of RM45,000 which they had paid for the said land.

It was not denied by the defence that advice on the land acquisitions factor lay within the scope of the defendant's duties as solicitor to the plaintiffs. And it was clear from the evidence adduced in Court that the defendant did not make a search at or enquiry with the Collector of Land Revenue in the Land Office at Bukit Mertajam. He admitted under cross-examination that he was not even aware of the said Gazette Notification No. 23 dated 1 February 1973. On the other hand, one of the plaintiffs Chuah Kay Buan (PW1) who gave evidence in Court said in examination-in-chief, and was not challenged in cross-examination, that the purpose of the purchase of the said land was to build a factory on it and he did ask the defendant if the land was subject to acquisition and his reply was that the "title was clear".

Mr. Lim Kean Chye, Counsel for the defendant, stated that the question for the Court to decide in this case was what would be the standard of skill required from the defendant. He submitted that it would be "the reasonable care and skill to be expected from a normally competent and careful practitioner" Midland Bank Trust Co. Ltd. v. Hett, Stubbs and Kemp [1978] 3 All ER 571, 582 & 611; Chin Keow v. Govt. of Malaysia & Anor. [1967] 2 MLJ 45 and that the extent of the legal duty of a lawyer like the defendant would be a question for the Court to decide. He also submitted that in non-contentious matters it was the solicitor's duty to carry them out according to the regular method prescribed by statute, rule or custom. (36 Halsbury's Laws of England (3rd Edn.) p. 102 para. 138). After referring to the following paragraph in Phipson on Evidence (12th Edn.) on "Standards of Comparison",

314. On questions involving negligence, reasonableness, and other qualities of conduct, when the criterion to be adopted is not clear, the acts or precautions proper to be taken under the circumstances, and even the general practice of the community, or in some cases of the particular individuals, are admissible as affording a measure by which the conduct in question may be gauged. Such evidence does not, of course, bind the jury as a fixed legal standard; it is merely one, amongst other circumstances, by which they may be guided. To do an act in a customary manner does not, then, necessarily render it justifiable, nor will abstention from a voluntary custom render a party for negligence, unless he has expressly or impliedly invited the injured person to rely on such custom.

Counsel then commented on the evidence of the three p