Asmabi Mohamad JC:

INTRODUCTION

By summons in chambers dated 12 January 2011 (encl 47), the defendant has applied for an order to strike out the plaintiff’s writ and statement of claim for want of prosecution and/or that the plaintiff’s action is scandalous, frivolous or vexatious or otherwise an abuse of the process of the court under O 18 r 19(1)(b), (c) and (d) and/or pursuant to O 3 r 6 and/or O 92 r 4 of the Rules of the High Court 1980 (‘RHC’).

CAUSE PAPERS

The relevant cause papers are as follows:

(a)summons in chambers dated 12 January 2011 (encl 47);

(b)affidavit in support affirmed by Ganesan a/l Karuppannan on 7 January 2011 (encl 47a);

(c)affidavit in reply affirmed by Neoh Chin Wah on 31 January 2011 (encl 49);

(d)further affidavit of Ganesan a/l Karuppannan affirmed on 28 January 2011 (encl 50); and

(e)all relevant affidavits filed for the purpose of the application under O 14 of the RHC.

BACKGROUND FACTS

The plaintiff was a vendor of a piece of land described as HS (D) 2053, PT No 1394, Mukim Serendah, Daerah Ulu Selangor, Selangor (the ‘land’) and LK Ooi Development Sdn Bhd was the purchaser (the ‘purchaser’) of the said land. The defendant was engaged by the plaintiff to act as its solicitor in respect of the sale and purchase agreement dated 31 March 1996 (‘the agreement’) whilst the purchaser was represented by Messr Azhar & Goh — The agreed purchase price for the said sale was RM9,000,000.

At the time of the execution of the said agreement the land was charged to Hong Leong Bank Bhd (‘HLBB’). The purchaser had obtained financial facility from United Merchant Finance Bhd (‘UMFB’) to finance the said purchase.

Pursuant to the said agreement, the purchase price of the said land is to be paid in the following manner:

(a)upon the execution of the agreement a deposit of RM900,000; and

(b)the balance of the purchase price of RM8,100,000 is to be paid as follows:

(i)RM900,000 upon the plaintiff obtaining the approval from Foreign Investment Committee (‘FIC’) and the consent to transfer; and

(ii)RM7,200,000 to be paid within four months or a further extended period of two months upon the receipt of the approval from FIC and consent to transfer. Parties have also agreed that the sum stipulated under this paragraph shall be paid as follows:

(A)a sum equivalent to a redemption sum, to be paid to HLBB;

(B)RM450,000 to be retained by purchaser’s solicitors as a retention sum; and

(C)the balance sum to be paid to the plaintiff or the plaintiff’s solicitors (‘balance sum’).

The defendant had caused a letter dated 12 March 1997 to be sent to the purchaser’s solicitors enclosing the relevant FIC approval as well as the consent to transfer for the solicitor’s attention. In the same letter the defendant had sought the release of the redemption sum to HLBB and also the balance sum of RM4,000,000 which shall be retained by the defendant as stakeholders pending the forwarding of the amended lay-out plan and a duly executed and registered grant of easement and original issue document of title by the plaintiff.

Based on the undertakings by the defendant pursuant to the letter dated 12 March 1997, the redemption sum was paid to HLBB. Vide a letter dated 21 March 1997 a cheque was issued by the said purchaser’s solicitors payable to the defendant which was duly deposited into the defendant’s account on 24 March 1997.

The plaintiff alleges that it did not receive the balance sum due to it. Instead the defendants made the following payments:

(a)on 16 January 1997 – RM200,000;

(b)on 19 December 1997 – RM200,000;

(c)on 30 December 1997 – RM100,000;

(d)on 2 March 1998 – RM200,000; and

(e)on 28 October 1998 – RM493,802.71.

In respect of the last payment made on 28 October 1998 in the sum of RM493,802.71 the plaintiff alleges that the said sum was inclusive of interest amounting to RM93,802.71 less RM50,000 as legal fees deducted by the defendant.

The plaintiff alleges that the plaintiff has only received a sum of RM700,000 as shown in para 8 above leaving a sum of RM3,