Suriyadi Halim Omar JCA:

[1] This appeal, allowed by this panel was pursuant to an order made by the High Court, dismissing an application sought by the plaintiff (hereinafter referred to as the appellant). This application was initially commenced by summons-in-chambers in 1999 later to be converted into a writ by way of a Court order on 13 March 2002. Upon completion of the analysis of the pleadings, the parties proceeded by way of O 14A of the Rules of the High 1980 for determination of issues of law relating to the construction of insurance policy number 11E-809415/97, issued by the defendants (hereinafter referred to as the respondent).

[2]Order 14A reads as follows:

1 Determination of questions of law or construction (O 14A r 1)

(1) the Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that:

(a) such question is suitable for determination without the full trial of the action; and

(b) such determination will finally determine the entire cause or matter or any claim or issue therein.

(2) Upon such determination the Court may dismiss the cause or matter or make such order or Judgment as it thinks just.

(3) the Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question.

(4) The jurisdiction of the Court under this Order may be exercised by Registrar

(5) Nothing in this Order shall limit the powers of the Court under O 18, r 19, or any other provision of these rules.

2 Manner in which applications under r 1 may be made (O 14A r 2)

An application under r 1 may be made by summons or motion or (notwithstanding O 32, r 1) may be made orally in the course of any interlocutory application to the Court.

[3] The application/summons-in-chambers of the appellant reads as follows:

1. That the Court determines the following questions/issues relating to the construction of Insurance Policy No 1IE-809415/97 ("the Policy"):

1.1 In respect of s 3 (a) of the Policy which reads inter alia as follows:

The Insurers will indemnify the Insured in respect of physical loss of or damage to any of the Insured Property described in the Schedule arising during the Period of Insurance from ANY CAUSE WHATSOEVER other than as hereinafter provided...

Whether the words "physical loss of or damage to any of the Insured Property" should be interpreted to include:

(a) any latent damage and/or economic damage to the plaintiff's newsprint production facility on the plaintiff's land held under Lot 3771 in the Mukim of Mentakab situated at the Temerloh Industrial Estate in Pahang ("the Newsprint Mill"); and

(b) the Collateral Damage referred to in paragraph 29 of the Amended Statement of Claim ("the said Collateral Damage").

1.2 In respect of cl 7 ("Exclusion cl 7") of the exclusions to the indemnity given under s 3 (a) of the Policy which reads follows:

PROVIDED ALWAYS that the indemnity granted by this section of the Policy shall exclude:

7. All costs necessary to replace repair or rectify any defect in design materials or workmanship but should unintended damage result from any such defect this exclusion shall be limited to the additional costs of improvements to the design.

(a) Whether Exclusion cl 7 is void and unenforceable;

(b) Whether the words "unintended damage" should be interpreted to include the said Collateral Damage and if so whether the ambit of the exclusion in Exclusion cl 7 would be limited to the additional costs of improvements to the design.

2. That upon determination of the above said questions/issues that the following orders be made:

2.1 A declaration that the loss and damage suffered by the plaintiff ("the said Loss and Damage" howsoever arising from the defective foundation in respect of the Newsprint Mill is covered under ss 3(a) and 4(b) of the Policy;

2.2 That the said Loss and Damage or any other loss suffered by the p