Vincent Ng J:

The Application

[1] By the application vide encl 51, the defendants have sought prior summary determination of questions of law pursuant to O 33 r 2 read with r 5 of the Rules of the High 1980 (RHC) and/or under O 92 r 4 of the RHC. This was agreed to by the plaintiff and the order for such determination was then made. The agreed facts and issues for determination was finally arrived at only on 13 March 2006, and the documents for study and consideration are as contained in the agreed bundle captioned 'Ikatan Dokumen-Dokumen'.

The Brief Facts

[2] The plaintiff runs a casino by the name of "Conrad International Treasury Casino" in the City of Brisbane, in the State of Queensland, Australia. The casino conducts lawful activities in accordance with the laws of the State of Queensland, Australia. The material Queensland statute which governed such activities is the Casino Control Act 1982 of Queensland, Australia. The first Defendant engaged in certain gaming activities in the plaintiff's casino on several occasions. He suffered gambling losses and to settle such gambling debts he issued the plaintiff with six house cheques (cheque forms printed by the Casino) being cheque numbers 03947 for RM389,295 dated 9 February 1998, 03956 for RM378,645 dated 11 February 1998, 03959 for RM519,060 dated 12 February 1998, 02484 for RM26,242,00 dated 16 February 1998, 03964 for RM533,06060 dated 14 February 1998 and 03963 for RM195,718.81 dated 12 February 1998 (exhibited in pp 2 to 7 of 'Ikatan Dokumen-Dokumen' - hereinafter called 'the said six cheques'). the plaintiff received these cheques and within the time limited by law, presented them at the City Bank Berhad in Kuala Lumpur, being the defendants' paying bank. Unfortunately, for the plaintiff the said six cheques could not be realized due to the first Defendant countermanding these cheques by instructing his bank not to honour these cheques.

The Agreed Facts

[3] The agreed facts as set out in the statement of agreed facts are as follows:

a) the first Defendant gambled at the plaintiff's casino in Brisbane, Queensland, Australia;

b) the first Defendant executed the said six cheques in favour of the plaintiff to settle his gambling losses to the plaintiff;

c) the plaintiff presented these six house cheques at the paying bank, Citibank Berhad in Kuala Lumpur, which were dishonoured and resulted in the present action by the plaintiff;

d) the first and second Defendants at all times were husband and wife with an address at c/o 4th Floor, Jalan Bukit Bintang, 55100 Kuala Lumpur;

e) the defendants did at all material times operate a joint account No: 17140140094534011 with Citibank Berhad with authority to either one of them to sign cheques.

The Issues

[4] The three issues to be determined in this application have been thus stated in the statement of agreed issues filed:

i) whether the plaintiff can found this action on the said six cheques?

ii) whether the plaintiff can pursuant to s 26(2) Civil Law Act 1956 and/or s 31(1) Contracts Act 1950 and/or Public Policy bring or maintain this suit in any Courts in Malaysia?

iii) whether the law applicable to the substantive issue is that of Queensland, Australia or Malaysia?"

The plaintiff's Case

[5] The plaintiff says that its claim is founded on the said six cheques issued in Australia but drawn on and payable by a bank in Malaysia as particularized in para 5 of the statement of claim. And, that their cause of action is purely on the alleged dishonour of the said six cheques simpliciter, ie, without the onus of having to prove the underlying contract for which the cheques were given.

The defendants' Case

[6] The first Defendant says that if the cause of action is on the dishonour of the said six cheques simpliciter, his answer is contained in paras 9.11, 9.12 of the re-amended statement of defence in which he has averred that the plaintiff has not given valuable consideration for each of the said six cheques and is therefore void. And, he has a