JUDGMENT

GUNALAN A/L MUNIANDY, JC:

[1] The plaintiff ('P')'s cause of action, which arises from a contractual relationship with the defendant ('D') involving share trading, is premised on fraud as particularised in the statement of claim. The alleged fraud by D revolved around the manner in which P's share trading accounts were operated by D. The claim was broken down into various heads, each particularised in the form of individual trading names for shares of companies listed on the Kuala Lumpur Stock Exchange ('KLSE'). The various heads refer to the trading counters as set out in the statement of claim ('SOC').

Summary of Facts (Agreed)

[2] (1) The plaintiff was a client of the defendant. The defendant is a stock broking company, whose main trading activity is the buying and selling of shares on the Kuala Lumpur Stock Exchange.

(2) The plaintiff had two trading accounts with the defendant, namely 2AM033 and 3SE035.

(3) Account No. 2AM033 was a margin-trading account. This margin trading facility was offered under account 2AM033 which was set up by Arab-Malaysian Merchant Bank Berhad ("AMBB").

(4) There were transactions under the following counters of companies of the KLSE:

(a) Malakoff

(b) Faber Merlin

(c) Jasa Mega

(d) Landmark

(e) MFCB

(f) Mentiga

(g) HICOM

(h) SittTatt

(i) NBT

(j) ANCOM

(k) BIN

(5) The plaintiff has made many complaints and inquiries, and had also made various relevant applications as follows:

(a) Johor Bahru High Court on 3/11/1999,

(b) Johor Bahru High Court 13/6/2002, and

(c) Johor Bahru High Court 2/12/2002

for the Defendant to disclose the said purchases (together with the documentation relevant thereto).

P obtained orders of disclosure against D through these applications.

Summary of Defendant ('D')'s Case

[3] 1. The Defendant states that the 2AM033 account was a margin financing facility opened by the plaintiff but operated by the plaintiff's agent, Arab Malaysian Merchant Bank Berhad (AMMBB).

2. AMMBB dealt directly with the Defendant in respect of the trade settlement of payments for the plaintiff under the 2AM033 account and since the margin financing facility was operated by AMMBB, the Defendant sent to AMMBB all contract notes, bills, contract statements and the monthly statement of accounts in respect of the 2AM033 account.

3. In respect of the trades in specific shares the gist of D's main contentions were:

a) All the sale and purchase transactions were done on P's instructions with her full knowledge without any fraud, breach of duty or wrongful actions.

b) All the contract notes pertaining to the above transactions had been given to AMMB, who managed P's 2AM033 account, in the normal course of business.

c) Losses, if any, sustained by P were the result of normal trades and risks associated with share trading.

d) D was not privy to the statements of accounts (SOA) issued by AMMB to P nor responsible for them.

e) P's two accounts, 2AM033 and 3SE035 were separate and distinct accounts.

f) The buy-in of shares complained of was to comply with KLSE's requirement and practice due to P's 'short sell' position and there was no wrongdoing.

g) All sale and purchase transactions in respect of the relevant counters were reflected in the SOA sent to P either by D for 3SE035 account or by AMMB for 2AM033 account, including the 'keying- in mistake' shown by notice of wrong entry and subsequent amendment.

h) D did not conceal any trades or cancellations from P.

i) P had not raised any complaints or issue of discrepancies upon receipt of the contract notes in respect of both accounts.

4. The plaintiff's claims are time barred under the Limitation Act, 1953 .

5. Further and/or in the alternative, the plaintiff is stopped from filing the above claims on the grounds that the plaintiff had filed a similar action at the High Court at Johor Bahru Suit No. MT5-22-676-1999 (4) which was struck-out by the Court.

Issues For Trial

P's Issues

[4] 1. Whether the plaintiff's accounts were operated by the Defendant based upon fraud and deception, that is, based