JUDGMENT

Lee Hun Hoe (Borneo) CJ (read by Wan Suleiman FJ as judgment of the Court):

This appeal is concerned with certain interlocutory proceedings. By a summonsin-chambers dated 18 June 1976 appellants applied for leave to sign final judgment against respondent for the sum of $250,000 being refund of deposit. It was clearly an application under O. 14. However, after hearing Counsel for appellants, the Senior Assistant Registrar gave leave to sign final judgment under O. 32 r. 6 which reads:-

Any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings or otherwise, apply to the Court or a Judge for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court or a Judge may upon such application make such order, or give such judgment, as the Court or Judge may think just.

Respondent appealed, praying that the order be set aside and that unconditional leave be given to defend the action. In the grounds of judgment, the Senior Assistant Registrar stated she had made a mistake. She admitted she had not read respondent's affidavit which was handed to her at the hearing though filed earlier on. She believed she could entertain the application under O. 32 r. 6 on the oral application made by appellants' Counsel. Although reference was made to O. 32 r. 6 in the notes of evidence they do not indicate any such application had been made. Having read respondent's affidavit she considered that the defence had raised bona fide triable issues as to matters of law and on facts. Consequently, the learned Judge allowed the appeal and set aside the order made by the Senior Assistant Registrar. He issued a certificate under O. 54 r. 22A to the effect that he did not require further arguments in open Court in respect of the matter.

Appellants attacked the decision of the learned Judge on various grounds. It was alleged that the application was one under O. 32 r. 6. Also, he erred in law in holding that O. 32 r. 6 applied only when admissions appeared on the pleadings. As stated earlier, O. 32 r. 6 refers to admission "either on the pleadings, or otherwise." Further he misunderstood Gore v. Gore , 186 where Thomson LP made the point that the case was not a suitable one to be dealt with under O. 32 r. 6 as it involved a question of law.

We agree with both Mr. Peddie and Mr. Abraham that the application should be dealt with under O. 14 and not under O. 32 r. 6. They were of the view that the learned Judge was misled into believing that the application was under O. 32 r. 6. Consequently, the application under O. 14 was never dealt with by the lower Courts.

Before the learned Judge the notes of proceedings show Mr. Abraham as saying that respondent said transaction was not a lease as alleged by appellants but a loan to purchase property. Before this Court he said it was a sale not a lease. A perusal of the record of appeal shows that it was not the policy of appellant company to own property in Malaysia. Appellants, therefore, negotiated with respondent whereby they would assist respondent financially to acquire the 4'bd storey premises known as No. 281, Jalan Tuanku Abdul Rahman, Kuala Lumpur and to repair and construct an additional 2'bd storeys to the premises. In return for the financial assistance respondent would lease the premises comprising seven storeys to appellants for a period of ten years. The money so paid would be treated as advanced payment for the ten-year rental. Hence, the parties executed the Lease Agreement and the Supplementary Agreement at the same time in May 1975.

The agreements refer to $351,000 as having been paid by way of advanced payment when actually $250,000 was paid. Also, it cannot be disputed that respondent was only registered as owner of the said premises in June 1975. As the agreements were made before respondent became registered owner it was contended