JUDGMENT

Low Hop Bing J:

I Application

[1] The plaintiff applies, under O 27 r 3 of the Rules of the High 1980, for leave to obtain an order against the defendant to deliver up to the plaintiff 100,000 Kian Joo Can Factory Berhad shares or its equivalent monetary value thereof, together with interest and costs.

[2] Order 27 r 3 reads:

Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise; any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just. An application for an order under this rule may be made by summons.

[3] In my judgment, I hold that an admission made by letter, of facts which show that the defendant has no defence to the action, may be sufficient to enable the plaintiff to obtain judgment (Ellis v. Allen [1914] 1 Ch 904, Malacca Precast Concrete Works v. William Jacks & Co (M) Sdn Bhd, [1970] 2 MLJ 111).

The object of the rule was to enable a party to obtain speedy judgment where the other party has made a plain admission entitling the former to succeed. (per Sarjant J, in Ellis, supra at p 908.?

II Facts

[4] From the affidavit of Mohd Jamin bin Amin affirmed on 14 June 1994 ("the 1st affidavit") and the affidavit of Ignatius Luke Jr. Tan Keng Hee affirmed on 2 September 1994 ("the 2nd affidavit") it is clear that the defendant agreed to let the plaintiff use his margin account and several other margin accounts controlled by the defendant ("the facilities") on the understanding that the plaintiff would bear all legal costs and interest pertaining to the use of the facilities.

[5] The parties herein agreed that upon the defendant requesting return of the use of the facilities, the plaintiff would redeem the shares bought by the defendant on his behalf and repay the loan, whereupon the plaintiff would be entitled to the return of the shares pledged by him, specifically the 100,000 Kian Joo Can Factory Berhad ("Kian Joo Shares") shares.

[6] The defendant requested for the return of use of the facilities in August 1991 and the plaintiff accordingly redeemed the shares and paid in full all the charges for withdrawal of the shares, legal fees and interest. However, the defendant did not return the 100,000 Kian Joo Shares to the plaintiff as he claimed his margin accounts were too highly geared to enable release at that point in time.

[7] On 6 January 1993, the defendant executed a trust deed (exhibited as L7 in the 2nd affidavit) where in he declared, inter alia, that he is holding 100,000 Kian Joo Shares upon trust for the plaintiff and would execute and deliver any transfer of the shares upon request by the plaintiff. Further, the defendant wrote a letter to the plaintiff's remisier (exhibited as L8 in the 2nd affidavit) admitting that he would make good the 100,000 shares of Kian Joo and proposed to put a value of RM7.80 on the shares and forwarded a cheque of RM78,000 to the said remisier made out in the remisier's name. The proposal was rejected as the remisier was not authorised to accept any settlement on behalf of the plaintiff. In any event, the plaintiff wanted return of the shares in physical form. Thereafter, the plaintiff did not hear from the defendant again.

[8] The issues raised by the defendant in his affidavit dated 22 July 1994 have been answered and disposed off by the plaintiff in the 2nd affidavit. No reply has been filed in response to that 2nd affidavit and it is settled law that in a case to be decided on a contest of affidavits, material allegations which are not contradicted are deemed to be admitted: Overseas Investment Pvt Ltd v. Anthony Williams O'Brien & Anor, [1988] 3 MLJ 332.

III Contentions Of The Parties And Decision Of The Court

(i) It is submitted for the defendant that O 27 is only applicable when