Prologue:

This JUDGMENT projects what would have been my decision had the parties failed to settle their case on 21.12.2006.

On the 21.12.2006 counsel for the defendant Encik Mohd Faizul informed the court that the parties had settled on their terms which were duly recorded by the court.

This judgment reflects what I would have decided had the parties failed to settle its suit. It is therefore ex post facto and is not binding on the parties.

ALASAN PENGHAKIMAN

OLEH YANG ARIF HAKIM DATO' KANG HWEE GEE

The plaintiffs claim against the defendant is for loss it suffered in consequence of the defendant's breach of warranty in a purported sale and purchase of a land by an imposter who claimed to be the registered proprietor and whom the defendant had acted as solicitor.

The defendant took out a third party claim for indemnity and contribution against the third party, the solicitor who acted for the purchaser.

The following facts are not in dispute:

Plaintiffs claim against the defendant is based on breach of warranty of authority under a contract for the Sale and Purchase Agreement between the plaintiff and a person who had falsely claimed to be the registered proprietor of the land.

The defendant was the solicitor acting for the alleged vendor (the person who falsely claimed to be the registered proprietor).

The plaintiff's action is confined to the breach of warranty of authority by the defendant who had acted for the person who claimed to be the proprietor.

There is an implied authority from the defendant to the purchaser that he had the authority to represent the principal (the person who falsely claimed to be the owner) to enter into the Sales and Purchase Agreement.

See Yonge v. Toynbee [1910] 1 K.B. 215 C.A. at 231.

See s. 188 of Contracts Act .

See Mohd Ghazali b Mohd Yusoff, JC (as he then was) in ; [1995] 2 CLJ 425; [1995] 2 AMR 1225 ; [1995] 2 AMR 1225.

It is common ground:-

1) that the plaintiff, alleged vendor (the person who claimed to be the selling imposter) first met at the office of the third party lawyer;

2) that the plaintiff had earlier met a land broker who had wanted to sell the said land for the proprietor;

3) the plaintiff and the imposter (accompanied by 2 other persons) met at third party's counsel office;

4) the third party Encik Lim examined the documents

- temporary I.C. of the imposter,

- title deed alleged to be false;

5) when third party lawyer came to know that the "owner" was present - he immediately stopped dealing with the imposter - so as to avoid conflict of interests;

6) third party lawyer contacted defendant to act for the vendor as third party lawyer wanted to act only for the purchaser;

7) the plaintiff and the imposter (with the other person) went to defendant's office to conclude and execute the agreement.

The basis of the plaintiffs claim:

At the end of the trial the plaintiff confined its claim to an action of implied breach of warranty of authority on the part of the defendant solicitor who claimed to have acted for the registered proprietor.

It is submitted by counsel for the plaintiff Mr. Gana that there was an implied authority flowing from the defendant solicitor to the plaintiff purchaser that he had the authority to represent the principal, that is to say the person who claimed to be the owner and thereby induced the purchaser to enter into the sale and purchase agreement with the plaintiff in consequence of which the plaintiff suffered the loss.

Mr. Gana relied on the English court of Appeal case of Yonge v. Toynbee [1910] 1 K.B. 215 which states the law as per Swinfen Eady J. at 231:

"Where an agent represents that he has authority to do a particular act, and he has not such authority, and another person is misled to his prejudice, the ground upon which the agent is held liable in damages is that there is an implied contract or warranty that he had the authority which he professed to have. It would seem to follow from this, in principle, that, where the authority upon which an agent is profes