JUDGMENT

Abdul Malik Ishak J:

Introduction

The plaintiff's solicitors by the name of Messrs Kadir, Andri Aidham & Partners gave notice in writing to the defendant's solicitors by the name of Messrs Yusof Khan & Fong wherein the plaintiff's solicitors would request the presiding judge of the High Court to give the necessary directions to the effect, inter alia , that the defendant is to begin the trial of this action. That notice was dated 28 February 2003 and it was worded as follows and it can be seen in encl. 23:

We note from the defence (that) you filed on behalf of your client that there is no denial of the fact that the Term Loan facility of RM12 million was advanced to your client. Your client's defence is one of avoidance only in that you claim that your client is not liable under the Term Loan facility Agreement of 9th June 1997 to repay the said term loan to our client for the reasons as set out in your client's Statement of Defence.

That being the case we write to give you notice that since the burden of proof of all the issues in the above action lies on your client the Defendant, we shall be requesting the Judge to ask you to begin the trial.

Kindly be informed accordingly.

Should I order the defendant to begin the trial? I think, I should.

Analysis

Briefly put, the plaintiff seeks under O. 35 r. 4(1) of the Rules of the High Court 1980 ("RHC") for the direction of this Court that the defendant should begin opening his case as the burden of proof on the pleadings lies with the defendant. Order 35 r. 4(1) of the RHC states as follows:

4 Order of speeches (O. 35 r. 4)

(1) The Judge before whom an action is tried may give directions as to the party to begin and the order of speeches at the trial, and, subject to any such directions, the party to begin and the order of speeches shall be that provided by this rule.

and it confers on the Judge of the High Court the necessary power to give directions pertaining to:

(a) the party who should begin; and

(b) the order of the speeches in the course of the trial.

According to the case of Seldon v. Davidson [1968] 2 All ER 755 CA, the party who should begin would be the party on whom the burden of proof on the pleadings lies. That was a Court of Appeal case with a coram of Willmer and Edmund Davies LJJ, and the facts may be stated as follows. By cheques drawn on 16 February and 16 March 1966, the plaintiff paid to the defendant, who was then her chauffeur-handyman, sums totalling 1,550 pounds to buy himself a house, which he did. Subsequently, the plaintiff demanded repayment of the money. The defendant refused and the plaintiff brought an action in the county Court to recover it. In his defence, the defence admitted receipt of the money but alleged that it was a gift, alternatively that it was not repayable at the date of issue of the writ. On appeal against a ruling of the county Court that the burden of proof lay on the defendant, having regard to his admission of having received the money and that he therefore, should begin, it was held by the Court of Appeal that assuming that an appeal lay against such a ruling, the burden of proof was on the defendant, who should therefore begin because in the absence of any circumstances tending to show that a presumption of advancement arose or that the money had been paid in settlement of an existing debt or that the cheques were given in return for cash, the admitted payments imported a prima facie obligation to repay. Willmer LJ, writing a separate judgment, had this to say at p. 757 to p. 758 of the report:

The way I look at it is this. Payment of the money having been admitted, prima facie that payment imported an obligation to repay in the absence of any circumstances tending to show anything in the nature of a presumption of advancement. This is not a case of father and child, or husband and wife, or any other such blood relationship which could have given rise to a presumption of advancement. Counsel for the defendant who has argued the case