Hashim Yeop Sani SCJ:

[1] This is an appeal against the order of the Judge under O 14 of the Rules of the High . The Judge is his grounds of judgment determined what he thought was the sole question of law before granting summary judgment. He said (at p 11) that the only dispute was nondisclosure of material facts by the plaintiffs on the proposal for insurance. He concluded that there was no merit or triable issue in the defence and granted interlocutory judgment with damages to be assessed at a later date.

[2] To appreciate fully the situation involved it is desirable to go into the background facts in some detail. The writ was taken out on 19 January 1986 and the claims were under a policy of insurance vide Fire Insurance Policy No 6 January 0086/0183 dated 25 January 1985 for the sum of RM328,000 and a consequential Loss Policy No 6/02/002/02/83 dated also 25 January 1985 for the sum of RM329,000 in respect of rentals, profits and salaries. It would appear that on 11 May 1985 during the currency of both policies the premises insured were severely damaged by fire.

[3] The statement of defence was filed on 10 March 1986 which denied liability. In para 4 of the statement of defence the terms and conditions contained in both the policies were put in issue. The paragraph reads as follows:

4. With regard to para 3 of the statement of claim, the defendants contend and will contend that their liability to make any payment to the plaintiffs under the said fire and consequential loss policies is subject to the terms and conditions contained therein or endorsed or otherwise expressed thereon.

[4] Paragraph 12 of the statement of defence also raised the issue of misrepresentation and/or non-disclosure or concealment of a material fact.

[5] The Counsel who appeared before us for the respondent/plaintiff at the hearing of this appeal was not the same Counsel who represented the plaintiff at the hearing in the High Court. He submitted to us that the facts of the case were not disputed and that the High Court Judge decided on the question of law on the basis of the undisputed facts. In his grounds of decision the Judge stated that the parties did not dispute the facts. But he did not set out clearly the relevant facts which the parties had agreed to and on the basis of which he was asked to decide on the question of law. Besides, the Judge went on to state: "The only dispute by the defendant is non-disclosure of material facts by the plaintiff in the proposal for insurance from Exhibit CLS 1". He did not state whether he was asked by the parties to determine any question of fact from the affidavits without hearing further evidence. The record does not show whether Counsel for the defendant confirmed or denied that facts were undisputed. Under the circumstances no one can really say whether the parties had agreed on all the relevant facts.