Alauddin Mohd Sheriff JCA:

[1] This is an appeal against the decision of the High Court Kuala Lumpur, which had allowed the respondent's claim and dismissed the appellant's counterclaim with costs.

[2] The respondent is a stockbroking firm and has been in this business since 1973. Previously the respondent was known as Othman & Ng Securities Sdn Bhd.

[3] The appellant is a client of the respondent. The appellant opened a trading account with the respondent sometime in 1990. The appellant's application to open the said trading account with the respondent was approved and given account no 16648.

[4] On 6 March 1990, the appellant signed a margin agreement with the respondent which has the effect of converting the appellant's retail account no 16648 into a margin account bearing the same number.

[5] The appellant traded in his account from 12 February 1990 to 6 March 1990 under his trading account no 16648 and thereafter under his margin account. A licensed dealer's representative (PW6) was assigned to handle the appellant's account and she was assisted by PW5, an administrative assistant.

[6] On 27 August 1990 the appellant signed another margin agreement with the respondent. This account is a nominee account identified as 'Othman & Ng Nominees Account 100' and can be utilised by the appellant when he signed an indemnity (exh P11) in respect of the said account. It is also a margin trading account.

[7] Apart from the second margin agreement, the appellant also signed an admission letter dated 27 August 1990 in which the appellant admitted that he owed the respondent a sum of RM1,466,282.09 and agreed to settle the said outstanding debts incurred under his margin trading account no 16648 by utilizing any sale proceeds from his collateral shares and contra gains from his new margin account under 'Othman & Ng Nominees A/C 100'.

[8] The respondent issued cheques to the appellant in respect of shares sold and contra gains under his nominee account and the proceeds thereof were utilized to set off the outstanding amount under the appellant's margin trading account no 16648.

[9] From the share transactions conducted by the respondent on the instructions of the appellant including force selling of the appellant's collateral shares pledged with the respondent, the net amount outstanding due to the respondent from the appellant is RM541,995.86.

[10] The respondent therefore claims for a sum of RM541,995.86 and interest at the rate of 12% per annum over RM466,049.98 from 1 January 1991 until full settlement and costs against the appellant for outstanding contra losses, rollover fees and interests thereon arising from share transactions due upon the instructions of the appellant.

[11] The appellant, on the other hand counterclaims for the following:-

i) A declaration that the share transactions in his account is 'illegal and void';

ii) Refund of all shares deposited by him with the respondent under the margin trading agreement or its value at the date of deposit and the sum of RM370,000 together with interest thereon at the rate of 8% per annum from the date of deposit to the date of realization;

iii) Loss and damage suffered by the appellant; and

iv) Costs.

[12] At the conclusion of the hearing the learned judge allowed the respondent's claim with costs. As for the appellant's counter-claim he found there were no merits and dismissed them with costs. Hence the present appeal before us.

[14] Learned counsel for the respondent submitted that there were altogether eighty (80) exhs produced at the hearing before the High Court. However only six (6) were included in the Appeal Record. Learned counsel referred us to p 49 of bundle A of the Appeal Record. The learned judge had there referred to certain exhs ie, D21 to D25 (share dep