The cause of action for negligence accrues only when the potential negligence is discoverable, not at the time of damage or loan release.

[1] This is an appeal against the order of the court below dated 9 February 2010, striking out the 3rd Party Notice of the Appellant (2nd Defendant below) against the Respondents on the ground that whatever claims for contribution, indemnity, relief or other remedy against the Respondent were statute-barred.

[2] Briefly stated, the Plaintiffs (who are not involved in this appeal) claimed that the 1st Defendant, who had an agreement with them to develop their lands held under EMR 325 for Lot 713, EMR 294 for Lot 672, and EMR 1692 for Lot 678, all in the Mukim of Bakri, Muar (hereinafter called the lands), and the 3rd, 4th and 5th Defendants, who were directors of the 1st Defendant, had fraudulently charged the lands in favour of the Appellant as security for loans granted by the Appellant to the 1st Defendant (see amended statement of claim at pages 57 - 67 of the Appeal Record). The Plaintiffs further contended that the Appellant acted fraudulently or negligently in respect of the charge of the lands (see amended statement of claim at 67 - 72AR).

[3] Pursuant to the provisions of the aforesaid agreement, the Plaintiffs had granted a power of the attorney dated 12 January 1994 (PA) to the 1st Defendant. The Plaintiff averred that under the PA the 1st Defendant had no powers to charge the lands except "upon the issuance of separate individual titles ... ", and that the Appellant who had not ascertained the powers granted by the PA and or the specific purposes for which the lands could be charged was fraudulent and or negligent in relation to the charge that was registered in 1997. The Plaintiffs sought to set aside the charge.

[4] The Respondents were partners of the firm of solicitors who prepared and presented the charge for registration and who advised the Appellant to release the loan, which the Appellant released to the 1st Defendant on 1 September 1997.

[5] It was contended by the Respondents and in the event accepted by the court below, that the cause of action of the Appellant against the Respondents was founded on negligence, that the alleged loss and damage were occasioned upon release of the loan on 1 September 1997, and that in line with Melton v. Walker and Stanger 125 Sol J 861, Costa v. Georghiou & Ors 134 NLJ 82, and DW Moore & Co Ltd v. Ferrier [1988] 1 WLR 26, the cause of action accrued on 1 September 1997 (see 20 - 22AR).

[6] In Melton v. Walker and Stanger , the plaintiff alleged that the solicitors were instructed to draft an agreement to provide for the plaintiff and W to be equally liable for certain specified costs and tax. In the action by the plaintiff against W, the High court held that the agreement did not have the effect of making the plaintiff and W equally liable for those costs and tax. Thereupon, the plaintiff filed action against the solicitors for negligence in drafting the agreement. Nourse J held that the damage was suffered and the cause of action was complete on 7 April 1967, when the agreement was executed. In Costa v. Georghiou, Costa instructed the solicitors to incorporate rent review provisions in the sub-lease of factory premises. The required rent review provisions were not contained in the said sub-lease. Rather, the solicitors inserted those rent review provisions in the counterpart of the sub-lease. Costa could not enforce the rent review provisions by reason that they were not included in the sublease. Costa filed action against the solicitors. In response to the defence of limitation, Costal pleaded that the insertion amounted to concealed fraud and that therefore the solicitors should not be entitled to rely on limitation. Hirst J held that there was no concealed fraud and that the action was statute-barred. And in D.W. Moore & Co. Ltd v. Ferrier, the plaintiffs agreed to allow F to join their business of in