JUDGMENT

Abdul Malik Ishak J:

Enclosure 2 - The Petitioner's Petition And The Objection

This was an application by the petitioner for the taxation of costs between solicitor and client under s. 126 of the Legal Profession Act 1976("Act"). The legal work that was involved was carried out during a period of time stretching from November 1992 to March 1993 and the client was none other than the respondent. The petitioner is a well known law firm in Johor

Bahru and it goes by the name and in the style of Messrs John Ang & Jega, and it is that law firm that is now entitled to the costs. The solicitor who undertook the legal work is a hardworking and upright individual by the name of Mr. S. Gunasegaran ("Mr. Guna") and at the material time he was practicing as a sole proprietor in the name and style of Messrs Guna & Co. To consolidate his legal practice, Mr. Guna decided to join Messrs John Ang & Jega as a partner and this took effect on 12 April 1993. With effect from that date Messrs Guna & Co. merged with Messrs John Ang & Jega and with that merger the petitioner became entitled to the costs as claimed in encl. 2.

By way of encl. 2, the petitioner prayed that:

(i) the said Bill of Costs may be taxed by this Honourable Court on a solicitor and client basis;

(ii) the respondent do pay to the petitioner the taxed costs;

(iii)the costs of this petition be paid by the respondent; and

(iv) such further or other directions be given as deemed fit by this Honourable Court.

And encl. 2 was supported by an affidavit affirmed by Mr. Guna on 15 April 1999 as seen in encl. 3.

Mr. S. Ravi Chandran for the respondent argued that s. 126 of the Actwas not the correct section to utilise to move the machinery of the court as reflected in encl. 2 and it was his submission that the correct section should be s. 121 of the Act. He relied heavily on the authority of Yau Jiok Hua v. Sykt Kilang Batu-bata Chip Siah Sdn Bhd[1999] 1 CLJ 239, a decision of Augustine Paul J. I shall in the later part of this judgment examine the case of Yau Jiok Huain some detail. In regard to the intitulement that appeared in encl. 2 of which Mr. S. Ravi Chandran took exception and said that it was wrongly intituled, the case of Cheow Chew Khoon (t/a Cathay Hotel) v. Abdul Johari Abdul Rahman[1995] 4 CLJ 127was cited as an authority to strike out encl. 2 in limine. Gopal Sri Ram JCA writing a separate judgment for the Court of Appeal in the case of Cheow Chew Khoon (t/a Cathay Hotel) v. Abdul Johari bin Abdul Rahman (supra)said at p. 142 of the report:

In my judgment, this matter, which is a point of practice and procedure, is to be resolved by reference to the fundamental principle that a party must not take his opponent or the court by surprise. It is my opinion that an originating process requiring an intitulement must state, with sufficient particularity, either in its heading or in its body, the statute or rule of court

under which the court is being moved: otherwise it would be an embarrassing pleading and may be liable to be struck out, unless sooner amended.

and the sage words of his Lordship, with respect, cannot be applied in the context of encl. 2 because that enclosure wherein the petition was housed in specifically stated s. 126 of the Actin its intitulement. The observations of Gopal Sri Ram JCA in Cheow Chew Khoonwere rightly made in the context of that case because the summons there did not "state any particular rule of court in its intitulement" (see p. 142 at line "h" of that judgment).

Not to be outwitted, Mr. S. Ravi Chandran for the respondent proceeded further. He submitted that the wrong section of the Act was employed in the intitulement in encl. 2. Instead of s. 121 of the Act, the petitioner cited s. 126 of the Act. He then drew my attention to the case of Parasuraman Kuppan v. Sazali Md Akhir & Anor[1997] 4 CLJ Supp 62, a decision of the Court of Appeal. That was a case where the respondents filed an application by way of a notice to produce in encl