Balia Yusof JC:

By way of a summons in chambers, the plaintiffs filed an application to disqualify Puan Malliga a/p G.V. Sumathri of Tetuan Malliga & Associates from representing the defendant and further and in the alternative Tetuan Malliga & Associates from handling the matters of the defendant. The application is grounded firstly, on the basis that the sailI Kandasamy who is the Managing Director of the defendant company. Mr. Balachandran is the main witness for the defendant. Secondly, it is submitted that there arises a conflict of interest on the part of Tetuan Malliga & Associates who has acted for the plaintiff at one time. Thirdly, it was contended by the plaintiff that as a Secretary to the defendant company, Puan Malliga has a pecuniary interest in the case and as such she should be barred from acting for the defendant company. And lastly it is further contended by the plaintiff that on the facts and circumstances of the case, it is difficult for the said Puan Malliga to maintain her professional independence in dealing with the matter.

In reply to the above, the defendant submits that Tetuan Malliga & Associates and the defendant company are separate legal entities and as such there is no question of embarrassment. Puan Maliga was never in possession of any confidential documents belonging to the plaintiff and this is not prejudicial to the plaintiff and would not be in conflict. It is further submitted by the defendant that being the Secretary of the defendant company is no bar to her acting for the defendant.

I shall now deal with each of the grounds raised by the plaintiff and the reply by the defendant. Firstly the defendant has raised a preliminary objection on the issue that the plaintiff/applicant has failed to make any reply to the averments made by the defendant in encl. 34. The said affidavit in reply was affirmed by one Balachandran a/l Kandasamy, the Managing Director of the defendant company. In her written submission (encl. 39), learned counsel for the defendant, Puan Malliga herself has quoted such authorities as Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 CLJ 609 and the case of Abdul Razak Ahmad v. Majlis Bandaraya Johor Bharu [1995] 4 CLJ 339 to support her contention. While I fully agree with the proposition of law in the said cases cited by the counsel, it is the duty of the counsel to show and ascertain what are the so called material averments which the plaintiff has failed to reply and whether those averments are material in the first place. This has not been done and I am not in a position to fathom the learned counsel's contention as to which of these averments are material and which need a specific reply by the plaintiff, the failure of which could be fatal to their case. In any event after having perused both the affidavits of the plaintiff and the defendant, I do not find any such positive averments which needed specific reply by the plaintiff and being material for the determination of the matter. It is trite law that only a positive assertion upon a material issue must be contradicted in the evaluation of affidavit evidence, the failure of which would be deemed to be an admission by the party. On the aforesaid reasons, I found the preliminary objection raised by the learned counsel for the defendant to be unsubstantiated and without basis, and accordingly proceed to consider the application on its merits.

On the issue of embarrassment, r. 3 of the Legal Profession (Practice and Etiquette) Rules 1978 states:

3. Advocate and solicitor not to accept brief if embarrassed.

(a) An advocate and solicitor shall not accept a brief if he is or would be embarrassed.

(b) An embarrassment arises:

(i) where the advocate and solicitor finds he is in possession of confidential information as a result of having previously advised another person in regard to the same matter;

(ii) where there is some personal relationship between him and a party or a witness in the proceedings.

In so far a