Abdul Malik Ishak J:

Mr. Mohd. Fairuz bin Abdullah, learned counsel for the plaintiffs, was magnanimous enough to withdraw the originating summons against the first to the fifth defendants on 26 November 1998 and an order to that effect was made with costs to be assessed. That application for leave to cease the originating summons against the first to the fifth defendants can be seen in encl. 14 which was supported by an affidavit of Lim Yuk Lan, a director of the plaintiffs and an individual authorised to affirm the affidavit in support as seen in encl. 13 which was affirmed on 7 November 1998. In encl. 13 at para. 5, there was an intimation that the plaintiffs, through their solicitors by letter dated 1 October 1998 labelled as "without prejudice" addressed to the solicitors of the first to fifth defendants, had proposed a settlement to these proceedings. But the plaintiffs were still keen to proceed against the sixth defendant one Wang Boon Kang and for that reason the hearing of encl. 5 was adjourned to 22 December 1998. As Mr. Ng Chew Hor of counsel for the sixth defendant had to proceed to the Singapore National Eye Centre for treatment on 22 December 1998, the hearing of encl. 5 was mutually agreed to be heard on 25 February 1999.

Briefly, encl. 5 was an application by the plaintiffs to remove a private caveat lodged by the sixth defendant on 5 September 1997 on two pieces of lands belonging to the first plaintiff comprised in HS(M) 790 PTD 17690 Mukim Plentong, district of Johor Bahru and GM 597 Lot 17661 Mukim Plentong, district of Johor Bahru. Enclosure 5 was supported by two affidavits. The first affidavit was deposed by Lim Nyuk Lan on 21 July 1998 as seen in encl. 3, while the second was deposed by Chiang Kim Ming on 21 July 1998 as reflected in encl. 4. Enclosure 7 was an affidavit deposed on 1 September 1998 by the sixth defendant and this served as a reply to encl. 3 and 4. The sixth defendant further deposed another affidavit in encl. 11 on 16 September 1998 as an additional affidavit to encl. 7. It must be borne in mind that there was no reply to encl. 7.

The hearing of encl. 5 on 25 February 1999 turned out to be an interesting affair. Mr. Mohd. Fairuz bin Abdullah took exception to the introduction of letters labelled with "without prejudice" tags in encls. 7 and 11 and this formed the brunt of his preliminary objection. Mr. Ng Chew Hor, learned counsel for the sixth defendant, pointed out that it was the plaintiffs who first introduced the "without prejudice" letters in encl. 4 particularly exhs. A14, A15, A16 and A17 and by doing so the plaintiffs have opened the pandora box for everyone to see. I have perused through exhs. A14, A15, A16 and A17 of encl. 4 and I found that only exh. A14 bore the "without prejudice" label while exhs. A15, A16 and A17 were open letters which in no way showed that the shield of privilege had been broken as these letters were all related to the proposed settlement that was contemplated between the parties. Not a single letter bearing the "without prejudice" label was exhibited in encl. 3. Mr. Ng Chew Hor also argued that the introduction of "without prejudice" letter by the plaintiffs meant that the latter had introduced privileged evidence and this left the sixth defendant with no option but to either object or introduce, on his own volition, the version of the factual matrix through "without prejudice" letters in encls. 7 and 11. In short, Mr. Ng Chew Hor submitted that there was a waiver on the plaintiffs' part to object to the introduction of the "without prejudice" letters in encls. 7 and 11 when the plaintiffs' themselves introduced from the very beginning the "without prejudice" letter in encl. 4. A perusal of the "without prejudice" letters in encl. 7 (exh. "D" comprising of three letters and exh. "F" comprising of one letter) showed the willingness to accept a lesser amount by way of a settlement. If at all, these "without prejudice" letters in encl. 7 cer