The defendant filed a summons-in-chambers on 6 May 1996 (encl. 21) pursuant to Order 41 rule 6 of the Rules of the High Court, 1980 ("RHC") for an order that the affidavit of Serene Ong, an advocate and solicitor, filed on 21 March 1996 in support of the summary judgment application of the plaintiff company be struck out with costs. It is supported by the affidavit of the defendant. In fact the order to be [2] prayed should be for any matter which is scandalous, irrelevant or otherwise oppressive.

Order 41 rule 6 reads -

"The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive."

(emphasis added)

The nature of the defendant's application would seem to be to strike out the affidavit altogether.

The defendant's counsel contended that the matters deposed in the affidavit of Serene Ong (encl. 6) are irrelevant or otherwise oppressive. To be more exact, he was relying on privileged communication between solicitor and client and by virtue of section 126 of the Evidence Act, 1950 ("Act"), that is, such communication is inadmissible evidence unless it is expressly consented to by the defendant. The proviso to section 126(1) of the Act does not, it seems, apply on the facts of this case. [3]

Facts

The plaintiff company filed a writ against the defendant claiming a sum of RM251,568.00 together with interest at the rate of 8% per annum from date of judgment till payment and costs in respect of a shortfall of 20,964 sq. feet for the purchase of all that piece of land held under H.S.(M) 1188 PTD 13436 measuring 1 acre 3 roods and 00 poles, Mukim Tebrau, District of Johor Bahru for a sum of RM910,000.00 ("the said property"). The plaintiff company and the defendant executed a sale and purchase agreement dated 13 March 1995 in respect of the said property ("SPA"). The SPA was prepared by Serene Ong, an advocate and solicitor, practising with the firm of L.M. Ong & Co., Advocates & Solicitors.

The price for the said property was agreed at RM12.00 per square foot and working on an area of 1 acre 3 roods 00 poles, which is equivalent to 76,230 sq. feet, the total value of the said property would be RM914,760.00. It was, however, alleged that the defendant agreed to give the plaintiff company a discount of RM4,760.00 thereby making the total consideration for the said property as RM910,000.00. The plaintiff company paid a deposit of [4] RM91,000.00 and duly completed the SPA on 10 November 1995 and was accordingly registered as the proprietor of the said property.

Subsequent to the completion of the SPA the plaintiff company commissioned a demarcation survey to be conducted on the said property by JURUKUR PERUNDING SERVICES SDN. BHD. wherein the surveyors confirmed that the said property had only a total area of 55,266 sq. feet, thus resulting in a shortfall of an area of 20,964 sq. feet. Hence, using the rate of RM12.00 per sq. feet, the shortfall amounts to RM251,569.00 and the plaintiff company sought a refund of the said sum together with interest from the defendant.

Privileged communication

The counsel for the defendant admitted that he then realized that Serene Ong acted for both parties in the SPA and conceded that fact accordingly. However, he submitted that Serene Ong ought to get the consent of both parties before filing her affidavit deposing the matters relating to the preparation and execution of the SPA. However, counsel for the plaintiff company contended that it [5] was not necessary to do so as long as his client had given their consent to Serene Ong, their then solicitor, to depose those matters in her affidavit. Here, we have a peculiar situation of a solicitor acting for both parties that ended up in litigation between themselves.

As it is not disputed that both parties employed a common solicitor in respect of the SPA, that is, Serene Ong, the matters deposed by her would then be in her joint capacity and therefore whatever was passed between either of