This case arose out of a letter dated 16 July 1982 from the Attorney General to the President of the Law Society of Singapore. The letter gave information under s 86(2) of the Legal Profession Act (Cap 217, 1970 Ed) (the Act) on an advocate and solicitor pertaining to his conviction of an income tax offence in one summons, composition in respect of four other income tax offences, and his tampering with a witness. Eventually, the then President of the Law Society made an order under s 86(2) of the Act, addressed to members of the Inquiry Committee constituted under s 85 of the Act. This Committee made its report under s 87(6) of the Act and was of the view that a formal investigation by a Disciplinary Committee was necessary. The Council of the Law Society considered the report and applied to the Chief Justice under s 90 for the appointment of a Disciplinary Committee to hear and investigate the matters. The Chief Justice appointed the Disciplinary Committee on 28 October 1983. Before the Disciplinary Committee the advocate and solicitor faced six serious charges which, if made out, may in respect of each charge amount to due cause being shown within the meaning of para (a), (b) or (h) of sub-s (2) of s 84 of the Act, and may render him liable to be struck off the roll or suspended from practice for any period of not exceeding two years or censured. His counsel successfully applied before the Disciplinary Committee to delete certain paras of the statement of the case as formulated by the Law Society. The effect of the deletion would be that charges three, four and six and a major portion of charge two would not be investigated by the Disciplinary Committee. The Law Society thought that the Disciplinary Committee was obviously wrong and brought proceedings in the High Court for, inter alia, an order of mandamus directing the Disciplinary Committee to hear and investigate all the six charges formulated by the Law Society and as specified in the Council's statement of the case. The High Court (Sinnathuray J) granted the orders sought by the Law Society. Being dissatisfied with the decisions of the High Court, the advocate and solicitor appealed to the Court of Appeal.

Held, dismissing the appeal with costs: (1) where the Inquiry Committee is inquiring into any matter which, as in this case, contains several distinct and separate complaints against the conduct of an advocate and solicitor, it is plainly open to the Inquiry Committee to report its findings and in its report to deal with the question of necessity or otherwise of a formal investigation by a Disciplinary Committee in respect of each and every of such distinct and separate complaints comprised in the same matter; (2) on any view of the report of the Inquiry Committee in this case, it cannot be said that the Inquiry Committee had recommended that no formal investigation by the Disciplinary Committee was required on any one of the several complaints comprised in the matter into which it had carried out the inquiry; (3) the Council in this case was not under any restriction evident in the report of the Inquiry Committee when formulating the charges for formal investigation by the Disciplinary Committee.

Re An Advocate & Solicitor; ex parte The Law Society of Singapore for Judicial Review [1987] 2 MLJ 21 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai and Thean JJ).

The appellant in this case, an advocate and solicitor, was convicted by a district court of an offence of cheating contrary to s 420 of the Penal Code. His appeal against conviction was dismissed. Upon the application of the Council of the Law Society the Chief Justice appointed a Disciplinary Committee to hear and investigate the matter. After a full hearing the Disciplinary Committee determined that, while no cause of action of sufficient gravity existed for disciplinary action to be ordered against the appellant under s 84(1) of the Legal Profession Act (Cap 217, 1970 Ed), the appellant should be reprimanded. The Law Society applied to a judge of the High Court for a review of the determination of the Disciplinary Committee and for an order of the court directing the Law Society to make an application under s 98 of the Act. The High Court set aside the determination of the Disciplinary Committee and directed the Law Society to make an application to the court under s 98 of the Act for the appellant to show cause why he should not be dealt with under s 84(1) of the Act. The Law Society therefore made an application under s 98 of the Act and the High Court ordered the appellant to show cause and eventually the High Court ordered that he be struck off. The appellant appealed. The issue in the appeal is whether the Law Society is a person entitled to invoke s 97 of the Act and as to the true meaning and effect of the words 'the person who made the written application or complaint'. The High Court chose the wider meaning of the words as being consistent with the smooth working of the statutory system. On appeal to the Privy Council,

Held: the language of Part VII of the Legal Profession Act is too strong and clear to permit of a policy interpretation of the words in s 97(1) of the Act which ignores the Legislature's deliberate and consistent use of the term 'application or complaint' as indicating an application or complaint made by a person under s 86(1) of the Act. The Law Society or its Council, in applying for the appointment of a Disciplinary Committee, is not exercising a right of application or complaint but is performing a statutory duty laid upon it in circumstances specified by the statute. In the circumstances of this case therefore the High Court acted without jurisdiction and the appeal should be allowed.

James Chia Shih Ching v Law Society of Singapore [1985] 2 MLJ 169 Privy Council Appeal from Singapore (Lord Scarman, Lord Elwyn-Jones, Lord Keith of Kinkel, Lord Bridge of Harwich and Lord Brightman).

[Annotation: See now Legal Profession Act (Cap 161, 1985 Ed), s 94(1) as amended by A 30 of 1986.]

The respondent, an advocate and solicitor, acted for the director of a video rental company in 1987. The director had gone to him about an injunction against her company and the seizure, in a raid, of several of the company's video tapes. The director was told that $5,000 was required as a refundable court deposit, and though the director was surprised by the request, she raised the funds and paid the amount to the respondent. The director was subsequently told that the injunction had been lifted, but another raid led to more tapes being seized. The respondent, on being contacted by the director about this, told her that a further sum of $5,000, again as a refundable court deposit, would be required for the matter to be resolved. The director raised the second sum and prepared payment to the respondent. She then learnt that no court deposit was required. She thus stopped payment, and eventually filed a police report, which resulted in the prosecution of the respondent. The respondent was tried before the district court on two charges, one of cheating and the other of attempting to cheat the director of separate sums of $5,000. The district court acquitted the respondent, but upon the prosecution's appeal, the decision of the district court was reversed by the High Court. The respondent was convicted on both charges and sentenced to 18 months' imprisonment on each charge. Following his conviction, the Law Society of Singapore obtained an order that the respondent show cause why he ought not be dealt with under s 83(1) of the Legal Profession Act (Cap 161, 1994 Ed).

Held, ordering the respondent be struck off the roll of advocates and solicitors: dishonesty and fraud are elements of the offences committed by the respondent. On both occasions, the deception was practised in the course of performance of his professional duties and the respondent's conduct was reprehensible and deplorable. The offences committed showed an extreme defect in character and merited an order that he be struck off the roll of advocates and solicitors.

Law Society of Singapore v Kalpanath Singh s/o Ramraj Singh Originating Summons No 12 of 1996 High Court, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

In this case, the respondent applied for an order to stay the proceedings before the Disciplinary Committee appointed by the learned Chief Justice of Malaya under the Advocates and Solicitors Ordinance 1947 to inquire into a complaint of unprofessional conduct against the respondent. The evidence before the court disclosed that the learned Chief Justice's order, appointing the committee was made on 9 April 1970 and the respondent did not make his application to set it aside until 1 June 1970. His application was dismissed on 10 June 1970, but he did not appeal against the order of dismissal until 19 July 1970, nor did he make any proper application to stay proceedings earlier than 17 August 1970.

Held: the respondent's application for stay of proceedings had not been promptly made and he had not satisfied the court that serious or irreparable injury would result to him if the stay was not granted, and therefore, the application must be dismissed.

Ajaib Singh v Jeffrey Fernandez [1971] 1 MLJ 139 High Court, Kuala Lumpur (Yong J).

Rhina Bhar v Koid Hong Keat [1992] 2 MLJ 455 High Court, Penang (Mohamed Dzaiddin, Abdul Hamid JJ and Chew Kim Poh JC).

The appellant, an advocate and solicitor, applied to the Court of Appeal for the further hearing of an appeal as he alleged that he had received fresh information which showed that statements made by the respondents in the case were either not true or inaccurate and misleading. The judges of the Court of Appeal after hearing the appeal in Chambers refused to reopen the appeal and the appellant then uttered the words that 'in refusing to reopen the appeal the judges were setting the seal on dishonesty'. The Registrar of the Supreme Court on the instructions of the judges requested the Law Society of Singapore to act under s 86(2) of the Legal Profession Act (Cap 217, 1970 Ed). The Council of the Law Society after considering the report of the inquiry committee ordered the appellant to pay a penalty of S$250. An applicant was then made by the appellant to a judge to set aside the council's order but the learned judge refused to set aside the order. The appellant thereupon appealed to the Court of Appeal.

Held, dismissing the appeal: (1) the order made by the judge of the High Court in this case was not an order made by the High Court in a civil matter either in the exercise of its original or its appellate jurisdiction and therefore the Court of Appeal had no jurisdiction to hear and determine the appeal; (2) the order in this case was made under a special procedure in respect of disciplinary proceedings affecting the legal profession and the Court of Appeal had no jurisdiction to entertain an appeal from the order made by the judge; (3) in any case, there is no reason to interfere with the order of the Council of the Law Society as the words uttered by the appellant were improper and should not have been used.

Hilborne v Law Society of Singapore [1973] 1 MLJ 189 Court of Appeal, Singapore (Wee Chong Jin CJ, Winslow and Kulasekaram JJ).

The plaintiff lodged a complaint with the Law Society against Teo Eng Leong, an advocate and solicitor, for extortion. The complaint was duly sent to the Inquiry Committee for investigation. The Inquiry Committee completed its investigation and concluded that a formal investigation was not required. The Council of the Law Society accepted the recommendation of the Inquiry Committee that the complainant be dismissed and accordingly informed the plaintiff. The plaintiff then wrote the the Council for its reasons in writing and also for certain particulars relating to the identities of the members of the Inquiry Committee and the manner in which they arrived at their decision and also to be given a copy of the said recommendation. The Council in its reply declined the plaintiff's requests. The plaintiff, being dissatisfied with the determination of the Council, applied under s 96 of the Legal Profession Act for an order that the Law Society be directed to apply to the Chief Justice for the appointment of a Disciplinary Committee to investigate into the said complaint.

Held, dismissing the application: (1) save for s 87(5), the Act has not prescribed any procedural requirements that the Inquiry Committee must follow in investigating a complaint against an advocate and solicitor. Section 87(5) was not intended to confer any rights on a complainant but to provide an opportunity to the advocate and solicitor complained against to reply to allegations against him and to request an oral hearing. There is nothing in s 87(5) to say that even if he were to request an oral hearing, he would be automatically entitled to one; (2) the plaintiff had no right to an oral hearing before the Inquiry Committee; (3) in any case, the plaintiff's contention that he was not heard by the Inquiry Committee had no bearing on the substance of the application; (4) there was nothing in the plaintiff's complaint which could amount to the commission of extortion on the part of Teo; (5) as the Inquiry Committee had not, on its own motion, under s 87(1)(b) of the Act, to deal with any other possible misconduct arising from the complaint, this court was in no position to consider it; (6) the determination of the Council was affirmed.

Yusuf Jumabhoy v The Law Society of Singapore [1988] 1 MLJ 491 High Court, Singapore (Chan Sek Keong JC).

Seet Melvin v Law Society of Singapore [1995] 2 SLR 323 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Yusuf Jumabhoy v The Law Society of Singapore [1988] 1 MLJ 491 High Court, Singapore (Chan Sek Keong JC).

This was an application by the plaintiff made pursuant to s 93 of the Legal Profession Act (Cap 161, 1985 Ed) ('the Act') for an order that the Law Society of Singapore be directed to apply to the Chief Justice for the appointment of a disciplinary committee to investigate the complaint of the plaintiff against two advocates and solicitors, GSH and TKQ. The substance of the complaint was that both GSH and TKQ made reckless allegations against the plaintiff and that TKQ as solicitor for GSH failed, inter alia, to verify the source of GSH's information. The complaint was considered by the inquiry committee and the Law Society Council subsequently accepted the report of the inquiry committee that the complaint did not merit a formal investigation by disciplinary committee. The plaintiff, being dissatisfied with the Council's determination, commenced that present proceedings.

Held, dismissing the application: (1) s 93(4) of the Act does not vest in a judge original jurisdiction to hear a complaint against an advocate and solicitor. Section 93(4) does not contemplate such a hearing. The court has no jurisdiction to inquire into any complaint which has not been inquired into by the inquiry committee or where the Council has not made a determination on the basis of such an inquiry. The court's jurisdiction is only supervisory or appellate in nature; (2) the plaintiff has available to him other remedies against a defaulting inquiry committee or Council, eg an order of mandamus against the inquiry committee or the Council, or a declaratory order; (3) in respect of the complaint against TKQ that he made libellous statements against the plaintiff recklessly, the Council's determination in dismissing it could not be challenged since the plaintiff did not and could not challenge the findings of fact; (4) in respect of the complaint that TKQ failed to take steps to verify the truth of those statements, the Council's determination in dismissing it is also affirmed.

Anthony Wee Soon Kim v The Law Society of Singapore [1988] 3 MLJ 9 High Court, Singapore (Chan Sek Keong JC).

In this case a complaint was made on or about 19 August 1975 that the respondent had paid money to the chief clerk of the appellants' firm, which was not returned or accounted for. The Legal Profession Act 1976 which repealed the Advocates and Solicitors Ordinance 1947 came into force on 1 June 1977. The Disciplinary Committee appointed by the Bar Council decided that although it was appointed before the commencement of the Legal Profession Act 1976 (Act 166) it was deemed to be appointed under that Act and that proceedings should proceed as though they were commenced under the Act. The Disciplinary Committee found that the appellants were guilty of misconduct in their practice as advocates and solicitors. The appellants appealed.

Held: (1) the express provisions of s 150 of the Legal Profession Act 1976 override s 30 of the Interpretation Act 1967 (Act 23/1967) and the Disciplinary Committee was therefore correct in proceeding under the 1976 Act.

Keith Sellar v Lee Kwang; Tennakoon v Lee Kwang [1980] 2 MLJ 191 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

Rhina Bhar v Koid Hong Keat [1992] 2 MLJ 455 High Court, Penang (Mohamed Dzaiddin, Abdul Hamid JJ and Chew Kim Poh JC).

Rhina Bhar v Koid Hong Keat [1992] 2 MLJ 455 High Court, Penang (Mohamed Dzaiddin, Abdul Hamid JJ and Chew Kim Poh JC).

Lee Kuan Yew v Tang Liang Hong & Anor and other actions [1997] 2 SLR 233 High Court, Singapore (Lai Kew Chai J).

A was admitted as an advocate and solicitor of the High Court of Malaya in 1967. In 1974 A pleaded guilty to charges of criminal breach of trust under s 409 of the Penal Code (FMS Cap 45) and was sentenced to imprisonment and fine. A served the sentence and paid the fine. In 1975 A was made a bankrupt and he also applied on his own initiative to have his name removed from the Roll of Advocates and Solicitors but due to miscommunication, his name remained on the Roll until 1989. From 1974 to 1987, A was employed by various companies to give legal advice but not in a managerial capacity. In 1988 the Official Assignee certified in a report to the High Court that A had not committed any offence under the Bankruptcy Act 1967 and he also obtained a discharge from bankruptcy. A gave notice to the Bar Council of his intention to apply to be restored to the Roll and the Bar Council stated that it had no objection. A applied to the High Court to be restored to the Roll under s 107(1) of the Legal Profession Act 1976 (Act 166). The High Court dismissed A's application on the ground that he had not discharged the onus of showing that he was a 'fit and proper' person by showing exceptional circumstances. The High Court also held that although A was earning a substantial salary from various companies, he had failed to make proper restitution to his creditors. A appealed to the Supreme Court. There was no evidence that A has committed any irregularity during the lapse of 14 years from the date of the criminal breach of trust to the date of his application. A also produced letters from senior members of the legal profession supporting his application. The Bar Council did not object to his application in the High Court and in the Supreme Court.

Held, allowing the appeal: (1) the court has a discretion under s 107(1) of the 1976 Act to restore an applicant to the Roll according to the particular facts of the case. There is no rule that an advocate and solicitor who has been struck off the Roll for dishonesty can never be reinstated; (2) an applicant has a heavy burden to satisfy the court that he is a 'fit and proper' person under s 107(1) of the 1976 Act. It is, however, erroneous to require A to show exceptional circumstances as an absolute rule because the court must decide whether it is 'fair and reasonable' to reinstate A based on all the circumstances of the case; (3) whether it is 'fair' to reinstate A depends on whether it is fair to members of the public, the legal profession and its members, the court and to A himself; (4) whether it is 'reasonable' to reinstate A depends on cogent evidence which is properly received and is subject to cross-examination. The High Court should not go behind the Official Assignee's report and draw unfavourable inferences against A; (5) considering all the circumstances of the case, it is fair and reasonable to allow A to be restored to the Roll.

Teoh Hooi Leong v Bar Council, Malaysia [1991] 3 MLJ 190 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

The applicant was an advocate and solicitor until he was struck off the roll on 15 August 1983. He had been investigated for various irregularities in the running of his client's account. He was also convicted of criminal breach of trust. He was found guilty of grossly improper conduct in the discharge of his professional duties and struck off the roll. It was found that his misfortunes were the result of a mental abnormality known as manic depressive psychosis. At the time of his improper conduct the illness was quite advanced. He had since recovered and applied to be replaced on the roll. Both the Law Society and the Attorney General had no objections.

Held, dismissing the application: (1) the court had full discretion under s 102 of the Legal Profession Act (Cap 161, 1990 Ed) in deciding whether or not to replace the name of an advocate and solicitor on the roll; (2) as a general rule no advocate and solicitor who had been struck off the roll ought to contemplate taking out an application for replacement before the expiry of five years from the date of striking off; (3) the court must consider as its primary duty the protection of the interests of the public and the profession as a whole over and above the interests of the applicant. Unless the court was completely satisfied on all the material before it that there was no likelihood that the applicant would repeat the same offence or any other offence of a similar nature, the court should not replace his name on the roll. The application should be subjected to stricter scrutiny than that of a new entrant to the profession; (4) although the most recent reports by the consultant psychiatrist indicated that the applicant did not show any manic depressive illness at the present time, it was noted that his medical consultants were not prepared to state at least that there was no likelihood of a relapse in the future. In the interest of the public and the profession as a whole, it would be wrong to exercise discretion and replace the name of the applicant on the roll.

Re Ram Kishan [1992] 1 SLR 529 High Court, Singapore (Yong Pung How CJ, Lai Kew Chai and FA Chua JJ

In this case Lim Cheng Peng, a former advocate and solicitor of the Supreme Court of Singapore, applied to the High Court to have his name reinstated on the roll of advocates and solicitors. This application was made under s 99 of the Legal Profession Act (Cap 161, 1985 Ed). Lim Cheng Peng was admitted as an advocate and solicitor in 1965. He immediately began his practice. However, on 31 January 1978, he voluntarily ceased practice after some investigations were made about his clients' accounts. He was convicted for an offence under s 409 of the Penal Code (Cap 103, 1970 Ed) on 28 February 1981. There was some delay in the disciplinary proceedings that were brought against Lim Cheng Peng. However, on 9 April 1984, he was ordered to be struck off the roll. On 17 July 1987, Lim Cheng Peng took out this originating motion.

Held: (1) unless there are exceptional circumstances, as a general rule, no solicitor who has been struck off the roll ought to contemplate taking out an application under s 99 of the Legal Profession Act (Cap 161, 1985 Ed) before the expiration of five years from the date of the order of striking off; (2) in the present case, however, the court could not ignore the fact that Lim Cheng Peng had ceased practice since 31 January 1978 on his own volition. Moreover, some delay had been occasioned in the disciplinary proceedings. In the light of all the circumstances that prevailed in this case, this court thought it fit, although not without some hesitation, that his name should be replaced on the roll.

Re Lim Cheng Peng [1988] 1 MLJ 231 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Chua JJ).

The applicant, a barrister, was admitted as an advocate and solicitor of the Supreme Court of Singapore on 9 October 1968 and from that date he practised in Singapore until 22 November 1974. On 8 August 1969 he was also admitted as an advocate and solicitor of the High Court of Malaya. On 22 November 1974 the High Court of Singapore ordered that he be struck off the roll of advocates and solicitors for champerty and fraudulent conduct in his dealings with his client. On 29 March 1979, he was disbarred by the Senate of the Inns of Court. On 17 November 1979 he was struck off the roll of advocates and solicitors in Malaysia. After he was struck off the roll in Singapore in November 1974, he continued to practise in Malaysia until November 1979 having been permitted to practise there even though the Bar Council of Malaysia were aware that he had been disbarred in Singapore. He applied under s 102 of the Legal Profession Act (Cap 217, 1970 Ed) for an order that his name be replaced on the roll of advocates and solicitors of the Supreme Court.

Held, dismissing the application: (1) in principle, sentences of exclusion from the legal profession need not be exclusive forever. On the other hand, the court has a duty to perform to the suitors of the court and to the profession of the law to take care that those who are readmitted to it are persons on whose integrity and honour reliance may be placed. The court should also, in the public interest, on all the material before it be satisfied that the applicant is not likely to repeat the same offence or any other offence of a similar nature in the discharge of his professional duties before restoring him to the roll; (2) having regard to all the material before the court, the application was premature and should not be allowed.

Re Chan Chow Wang [1983] 2 MLJ 30 High Court, Singapore (Wee Chong Jin CJ, Sinnathuray and Lai Kew Chai JJ).

[Annotation: On 11 February 1985 the applicant succeeded in having his name restored to the roll of advocates and solicitors in Singapore.]

The applicant was struck off the roll of advocates and solicitors in October 1957 for misappropriation of a client's money. After a lapse of six years he applied to be replaced on the roll under s 34 of the Advocates and Solicitors Ordinance 1947.

Held: after taking into account the applicant's age, that he had made full restitution, that he had been truly penitent, that he had the good name of his family to consider at all time, that he had for the past six years lived a blameless life, the court was satisfied that there was no risk of a repetition of the same or any other offence when he resumed practice and there was no prejudice to the public interest.

Re Chin Swee Oon [1964] MLJ 124 High Court, Kuala Lumpur (Barakbah CJ and Ong and Gill JJ).

This was an application by the applicant that his name be restored to the roll of advocates and solicitors under s 107 of the Legal Profession Act 1976 (Act 166). The applicant was admitted as an advocate and solicitor of the High Court in Malaya on 8 August 1969. Prior to practising in Malaysia he had practised in Singapore from 1969 to 1974. On 22 November 1974 he was struck off the roll of advocates and solicitors by the High Court of Singapore. He then practised in Malaysia from 1975 to 1979. On 29 March 1979 he was disbarred and expelled from the Honourable Society of Lincoln's Inn by the Senate of the Inns of Court. On 17 November 1979 he was struck off the roll of advocates and solicitors in Malaya. On 11 February 1985 the High Court of Singapore ordered that the name of the applicant be restored to the roll of advocates and solicitors in Singapore. However, the Special Council of Lincoln's Inn did not readmit or reinstate the applicant to the Bar of England and Wales.

Held: the test to be applied is whether in the circumstances of the case it is fair and reasonable to readmit the applicant to the Bar. The readmission to the Bar in Malaya must be considered independently of his readmission to the Bar in Singapore or the refusal of the Honourable Society of Lincoln's Inn to reinstate him to the Bar of England and Wales. On a full consideration of the facts and circumstances of the case, the court was satisfied that it is fair and reasonable to readmit the applicant to the Bar of Malaya.

Chan Chow Wang v Malaysian Bar [1986] 2 MLJ 159 High Court, Kuala Lumpur (Harun, Vohrah and Zakaria Yatim JJ).

Re Teo Choo Hong [1995] 2 SLR 594 High Court, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Re Teo Choo Hong [1995] 2 SLR 594 High Court, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Rhina Bhar v Koid Hong Keat [1992] 2 MLJ 455 High Court, Penang (Mohamed Dzaiddin, Abdul Hamid JJ and Chew Kim Poh JC).

The applicant applied to call a witness, Mr Narayanan, an advocate and solicitor, a partner of a firm of solicitors. The matters that he was to give evidence on pertained to the several transactions which occurred in his firm at the behest of the firm's client, Lorrain Esme Osman ('the respondent'). Counsel for the second respondent objected to this witness being called on the ground that the evidence sought to be adduced related to the solicitor-client relationship and would breach the confidence the client had placed in his solicitor and rob the witness of the protection he had under s 126 of the Evidence Act 1950 (Act 56) ('the Act'). Counsel for the applicant informed the court that the would-be witness had already been called to give the same evidence before Harun J (as he then was) in 1986. Harun J had overruled counsel's same objection then and held that the matters to be given were covered by the proviso to s 126 of the Act. Counsel for the applicant argued that in the light of this, the respondent was therefore not entitled to object as the principle of res judicata would apply, and the respondent's objection would be tantamount to abusing the process of the court since the question had finally ended with Harun J's order. In reply, counsel for the respondent argued that res judicata only applied in civil cases and not in criminal cases. The applicant's case was that the witness was a necessary witness as he would fill in the required details as to how the corrupt money appeared and on whose instructions its disbursements were ordered or undertaken. Counsel for the applicant referred to the evidence already found by the Chief Magistrate in London in the case of Lorrain in R v Governor of Pentonville Prison, ex p Osman. The detailed judgment of the Chief Magistrate went up for a review by the divisional court and His Lordships of the divisional court confirmed the learned Chief Magistrate's finding of fact and law. This included the finding of the Chief Magistrate on the six charges of corruption with which this application was concerned. Counsel for the respondent, however, contended that the applicant cannot bring himself within the proviso of s 126 as it is incumbent on the applicant to show that the engagement of the solicitor occurred before the offence was committed. He argued that if the offence was already completed in Hong Kong, the respondent's communications with his solicitors in Malaysia could not be in furtherance of any illegal purpose.

Held, allowing the application: (1) there is merit in the argument that res judicata comes into play only in civil cases and not in criminal cases. The only instance, if it at all applies, is when the principle of autrefois acquit and autrefois convict applies; (2) the calling of this witness comes squarely within the provisos to s 126 of the Act; (3) there is merit in the argument of counsel for the applicant that this court has to respect the decision of the Chief Magistrate, the divisional court in England that, on the evidence before them and before this court, there is ample evidence for this court to find prima facie that corruption has been made out; (4) further, this court has the benefit of Harun J's decision in 1986 on the same transaction that the communication was for an illegal purpose, ie to put the sums obtained in various transactions out of the reach of the real owner; (5) there was no merit in the respondent's counsel's argument that the offence of corruption was completed in Hong Kong and the transfer of the funds to solicitors in Malaysia was after that. Putting the event into such compartments is like putting blinkers over the court's eyes. The court cannot escape the conclusion that the sending of such huge sums of over five million to Malaysia and then dispersing the sums on a variety of transactions can only be an act or acts of laundering, and therefore communications made in furtherance of an illegal purpose, under proviso (a) of s 126 of the Act.

Attorney General of Hong Kong v Lorrain Esme Osman & Anor [1993] 2 MLJ 347 High Court, Kuala Lumpur (Abu Mansor J).

Yukilon Manufacturing Sdn Bhd & Anor v Dato Wong Gek Meng & Ors [1997] 2 MLJ 212 High Court, Johor Bahru (Abdul Malik Ishak J).

The plaintiff appealed a decision of the senior assistant registrar striking out his statement of claim and dismissing the action pursuant to O 18 r 9 of the Rules of the Supreme Court under the inherent jurisdiction of the court. The claim arose as a result of an incident following which a private summons was brought against the defendant with a charge of threatening bodily injury with the intent to cause alarm, an offence under s 503 of the Penal Code (Cap 224). The defendant, through his solicitors, wrote to the Attorney General seeking his intervention in an attempt to have the private summons withdrawn, on the defendant giving an undertaking that he would not pursue criminal proceedings against the other parties as a result of the incident. Pending a reply, the defendant filed two cross-summonses and attempted to settle the matter by means of private apologies. No settlement could be reached and the first summons proceeded to hearing with the defendant being acquitted without his having to call evidence. The defendant was prepared to withdraw his two cross-summonses, subject to certain conditions, before they came up for hearing and an agreement was reached between all the parties whereby the cross-summonses were withdrawn. Following the agreement being reached, two of the parties filed a suit claiming damages for defamation arising from the letter written to the Attorney General. The defendants in that suit (the solicitors for the defendant) sought to have the statement of claim struck out pursuant to O 18 r 9 and under the inherent jurisdiction of the Supreme Court. Following the striking out application, the plaintiff commenced this suit claiming damages against the defendant for causing the defendant's solicitors to write a letter to the Attorney General containing the allegedly defamatory passage. The defendant then filed an application to have this statement of claim struck out and the action dismissed, and the order was made.

Held, dismissing the plaintiff's appeal with costs: (1) the letter by the defendant's solicitor to the Attorney General was privileged. Therefore, there could be no liability on the part of the defendant in causing his solicitors to write the letter; (2) there was a compromise set out in the undertaking; (3) as a matter of public policy, proceedings against a firm of solicitors acting within their instructions should not be allowed to succeed; (4) the case came within the de minimis non curat lex rule.

Sen v Cohen Suit No 249 of 1994 (Registrar's Appeal No 101 of 1994).

P sued D for overpayments allegedly made to D on invoices raised by D. The police were also investigating D for fraud and later brought charges against them. To assist the police, P handed over certain documents that had been created for the purpose of the civil action. These documents were disclosed to D, along with other documents, in the criminal trial. D were acquitted. P then applied for the return of the documents and an injunction against D using information gained from them for the purpose of the civil proceedings, inter alia on the ground that the documents were protected by legal professional privilege. This was granted. D appealed.

Held, dismissing the appeal: (1) legal professional privilege is a rule of evidence which protects a party to civil litigation from being obliged to give discovery of documents which have come into existence for the dominant purpose of being used in and for that litigation. The documents in question here (consisting of witness statements' and experts' reports) fell within the scope of the privilege; (2) the privilege had not been waived by reason of the fact that the documents had been provided to the police and subsequently to D for the purpose of the criminal proceedings. The documents had been made available for a limited purpose only, viz, to assist in the conduct of the criminal investigation and the trial. It would be contrary to public policy if P's action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise have been available to them in the civil litigation. D's appeal was therefore dismissed.

British Coal Corporation v Dennis Rye Ltd & Anor (No 2) [1988] 3 All ER 816 Court of Appeal, England (Dillon, Neill and Stockner LJJ).

The only relevant provision in our Evidence Ordinance excluding professional confidences is s 126, which states that no advocate and solicitor shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him and in the course of his employment as such. This rule is founded on the principle that the conduct of legal business without professionl assistance is impossible and on the necessity, in order to render such assistance effectual, of securing full and unreserved intercourse between the two.

Public Prosecutor v Haji Kassim [1971] 2 MLJ 115 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

Upon the application of the appellants, the liquidators of Lee Wah Cane Furniture Pte Ltd (the company), under s 249 of the Companies Act (Cap 185, 1970 Ed), the assistant registrar ordered that the respondent, advocate and solicitor of Singapore, 'be examined on oath concerning the promotion, formation, trade dealings, affairs or property of the company'. The respondent's appeal against the assistant registrar's order was allowed by the High Court (see [1984] 1 MLJ 156). The liquidators appealed against the said order.

Held, allowing the appeal: (1) s 128(1) of the Evidence Act (Cap 5, 1970 Ed) does not confer immunity on any advocate and solicitor who had acted for a company from being examined on an application by the company under s 249 of the Companies Act (Cap 185, 1970 Ed). The privilege of confidentiality is intended for the protection of the clients of an advocate and solicitor who is not permitted to disclose the same except those matters which fall within the provisoes (a) and (b) of s 128(1) of the Evidence Act (Cap 5, 1970 Ed); (2) the court was completely satisfied that the proposed examination was requested by the liquidators because it was necessary for them to investigate the matter and discharge their duties.

Peter Chi Man Kwong & Anor v Ronald Lee Kum Seng [1985] 1 MLJ 21 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Rajah JJ).

On the application of the Liquidators of Lee Wah Cane Furniture Pte Ltd (the company) the assistant registrar made an order that Ronald Lee, a legal adviser for the company, may be examined on oath concerning the affairs of the company and produce all books and papers in his custody or power relating to the company. Exception was taken to the order for examination under s 249(1) and is based on three grounds. First, privilege of professional communication; second, the liquidators are contemplating instituting other legal proceedings and are seeking on the examination of Ronald Lee to obtain evidence; third, Ronald Lee has already assisted the liquidators within his capacity and within the bounds of professional privilege. A motion was made on behalf of Ronald Lee for an order that the assistant registrar's order made under s 249 of the Companies Act (Cap 285, 1970 Ed) against Ronald Lee be discharged or varied or modified.

Held: on the first ground alone the order of the asst registrar should be discharged. The liquidators were also attempting to use this section in an improper way as a means of aiding them in other litigations. Ronald Lee has assisted the liquidators within his capacity and within bounds of professional privilege; (2) the liquidator must therefore pay to Ronald Lee his costs of this application.

Re Lee Wah Cane Furniture Pte Ltd [1984] 1 MLJ 156 High Court, Singapore (Chua J).

The question of law referred to the High Court in this case was: 'Bearing in mind the paucity of trained legal advisers available to the Colony of Sarawak, and the advantages a litigant who is able to employ a trained legal adviser enjoys over an uneducated litigant who cannot afford such qualified assistance, should not communications between unrepresented litigants such as defendant and court officials such as Mr Chew Kui Sang made solely for the purpose of preparing statements of claim, defences, counterclaims and like material for the presentation of their cases in proper form before the court be regarded as privileged.' Mr Chew was a clerk/interpreter employed in the government service and he could not be termed a professional legal adviser. It was, however, part of his duty to assist would-be litigants to prepare their plaints in civil cases.

Held: communications between a would-be litigant and his legal adviser made for the purpose of preparing his case would be privileged and in view of the duties of Mr Chew, who is a clerk/interpreter in the Judicial Department, statements made to him by a would-be litigant with a view to preparing his plaint are privileged and evidence regarding them inadmissible. However, it is not necessarily that all statements made by a litigant to a court official would ipso facto be privileged and it would be necessary for the trial magistrate to consider the circumstances of each case and decide the exact function being performed by the official at the time the communication was made.

Chok Sin Fatt v Chew Thong [1954] SCR 15 Supreme Court, Sarawak, North Borneo and Brunei

Statements made by a legally-aided person to an investigator of the Legal Aid Bureau and any evidence with regard to it are privileged under s 127 of the Evidence Ordinance in view of s 27(1)(b) of the Legal Aid and Advice Ordinance 1956. The Court of Appeal allowed this appeal holding that the trial judge was wrong in compelling the plaintiff to disclose a communication which took place between him and the Bureau as the plaintiff did not expressly waive the privilege or consent to its disclosure. A new trial was ordered.

Yeo Ah Tee v Lee Chuan Meow [1962] MLJ 413 Court of Appeal, Singapore (Ong CJ (Malaya).

A solicitor may settle his accounts with his client by an agreement to take a gross sum instead of delivering a bill of costs, but if he does so, it behooves him to use great caution. The onus of supporting the transaction is upon the solicitor and he should preserve sufficient evidence to be able to do so.

Law Ngai Poh v Freeman, Madge & Mackie [1927] 7 FMSLR 12 Supreme Court, Federated Malay States (Gompertz CJ).

[Annotation: A notice issued by the Singapore Bar Committee and dated 8 August 1931 was held in Re a Solicitor [1932] MLJ 177 to contain a correct statement of the law and practice in regard to the matter with which it deals.]

The appellants, a firm of advocates and solicitors, verbally agreed with their client, who was respondent to an appeal, to appear for her on terms that she should pay RM100 as a retainer and that in the event of the appeal being dismissed with costs, the appellants should be entitled to the taxed costs paid by the other party. The appeal was dismissed with costs and the taxed party and party costs were paid by the other party to the appellants. The client petitioned under s 26 of the Advocates and Solicitors Enactment 1914 that the costs should be paid to her.

Held: (1) ss 22, 23 and 24 of the Advocates and Solicitors Enactment 1914 do not relate to verbal contracts for remuneration and that the proper order is to refer the matter to the registrar to tax the bill of costs as between solicitor and client.

Tan Soo v Freeman & Madge [1932] MLJ 42; [1931-32] FMSLR 248, CA Court of Appeal, Federated Malay States (Thorne Ag CJ, Mudie and McFall JJ).

[Annotation: See now the Legal Profession Act (Act 166), ss 116, 117 and Civil Procedure, Vol 2, paras 586-769 for cases dealing with costs.]

P were a firm of advocates and solicitors who had acted for D, a co-operative bank. D had agreed to lend money to X1-X4 and had instructed P by letter to prepare the documentation. All of D's letters to P in respect of X1-X4 stated that the legal expenses would be borne by X1-X4. In respect of X2-X4, D's letters further provided that D would 'not be liable for any fees unpaid and due for any reason whatsoever' on P taking instruction. P completed X1-X4's loan documentation and sent to them bills of costs totalling RM163,597.25. Upon X1-X4's failure to pay, P delivered bills of costs for that amount to D in 1985, 1986 and 1987. D did not dispute any of these bills but did not however settle them. P also acted for a housing developer, Y, who owed D a sum of money. Government servants had purchased houses built by Y through loans from the government loans division. An aggregate sum of housing loans totalling RM317,562 had been paid to P by the government loans division so as to be paid to Y. This sum of RM317,562 had been credited into P's client account with D. Y had directed P to pay this sum of RM317,562 to D upon certain undertakings being given. These undertakings were duly provided. P then drew RM231,101.25 and RM86,460.75 out of their client account with D after giving notice to D. P used the sums drawn from their client account to satisfy the legal fees due from D to P. In 1987, P also sent bills of costs totalling RM405,250 to D in respect of services rendered in a number of civil suits. P had also delivered bills of costs totalling RM68,550 to D between August 1986 and February 1987 in respect of professional advice given by P to D. D was placed under receivership in 1989. P applied to the High Court for declarations that their drawings were in order and in any event they were entitled to a lien or set-off in respect of the RM317,562. D's receivers firstly disputed the quantum of the bills in respect of the litigation work and advice rendered by P. As for the bills in respect of X1-X4's loan documentation, D's receivers argued that X1-X4 were to be responsible for the fees and whether D had disputed the bills or not, was irrelevant. In respect of P's drawings, D's receivers contended that the RM317,562 was 'trust money' which could not be drawn by P. P however argued that they were entitled to draw the sums by virtue of rr 7(a)(iv) and 15 of the Solicitors' Account Rules 1978.

Held, allowing the application: (1) applying ss 126(1) and 128(2) of the Legal Profession Act 1976 (Act 166) neither D nor their receivers were entitled to dispute the quantum of the bills in respect of the litigation work and advice rendered by P after the expiry of one year from the delivery of the bills; (2) in respect of X1, D's instruction amounted to an assurance that P's fees would be borne by X1. P had relied on D's assurance by completing the loan documentation and billed X1 for the fees. In the event of X1's failure to pay, P was entitled to look to D to pay the fees. P's bill in respect of X1 was thus properly raised against D; (3) in respect of X2-X4, the inclusion of the paragraph that D would 'not be liable for any fees unpaid and due for any reason whatsoever' on P taking instruction, meant that P could only look to X2-X4 for their fees if P chose to undertake the job. P were therefore not entitled to look to D for the fees. D was accordingly justified in ignoring the bills in respect of X2-X4 because ss 126 and 128 of the 1976 Act have no relevance where the solicitor raises a bill that he was not entitled to raise; (4) for the purposes of the 1978 Rules, only money which does not fall within the definition of 'client's money' and which is subject to a trust, is to be regarded as 'trust money'. If the money is 'client's money', then even if it is the subject of a trust, it is not 'trust money' within the meaning of the 1978 Rules; (5) P held the RM317,562 on trust to be paid to Y but it was not held or received on account of trustees of any trust. Accordingly the RM317,562 fell within the definition of 'client's money' because the money was deemed to be held or received by P on account of D in connection with P's practice as solicitors within the meaning of the 1978 Rules. Even if the RM317,562 might have been 'trust money' when it was initially paid by the government loans division (in all probability it was not), it metamorphosed into 'client's money' when it was deemed to be held to the credit of D; (6) in any event, r 15 of the 1978 Rules preserves the solicitors' right of recourse by way of, inter alia, lien or set-off against money standing to the credit of a client account. Even if the RM317,562 continued to be 'trust money' in spite of the metamorphosis, P had the right of recourse by way of set-off against the money standing to D's credit. Set-off in this case was not limited to a set-off pleaded in the statement of defence but had reference to the right of setting off the amount owed against the amount held; (7) the appointment of D's receivers and the order of the court giving them directions, had no relevance because both the appointment and the court order had no retrospective effect and they came into existence after P's drawings.

VIJE & Co v Co-operative Central Bank Ltd [1991] 3 MLJ 432 High Court, Kuala Lumpur (VC George J).

In an action on a solicitor's bill the defence of non-delivery of a proper bill must be specially pleaded; and, if it is not so pleaded in the action, it cannot be put forward at the hearing of the appeal.

Abuhammy Gabriel Daud v H Hopson Walker [1926] 7 FMSLR 9 Court of Appeal, Federated Malay States (Gompertz CJ).

Summons by the Official Administrator for the State of Negri Sembilan in respect of the estate of Tuan Sheikh Abdulrahman, deceased. The court has inherent jurisdiction to order a solicitor, as one of its own officers, to furnish a detailed bill of costs for work done in connection with a deceased person's estate.

Estate of Tuan Sheikh Abdulrahman [1919] 2 FMSLR 204 Supreme Court, Federated Malay States (Whitley JC).

A bill of costs in which the items are duly detailed but no amount stated for each item, and in which a lump sum is entered covering the whole of the items, does not comply with the terms of s 45 of the Advocates and Solicitors Enactment 1914.

Abuhammy Gabriel Daud v H Hopson Walker [1926] 7 FMSLR 9 Court of Appeal, Federated Malay States (Gompertz CJ).

[Annotation: See now Legal Profession Act 1976 (Act 166).]

Lee Hiok Ping & Ors v Lee Hiok Woon & Ors [1989] 1 MLJ 156 High Court, Singapore (Chao Hick Tin JC).

Perusahaan Petanda Bintang Sdn Bhd v Asbir, Hira Singh & Co [1995] 2 MLJ 455 High Court, Penang (Vincent Ng J).

Lee Hiok Ping & Ors v Lee Hiok Woon & Ors [1989] 1 MLJ 156 High Court, Singapore (Chao Hick Tin JC).

The plaintiffs were the defendants' solicitors in a claim made against Atlas Properties arising from a shortfall in the area of a housing unit in Goodluck Gardens purchased by the defendants. The claim was never pursued, but in the course of the proceedings a dispute arose between the plaintiffs and the defendants as regards the fees to be charged. The defendants claimed that the plaintiffs had agreed that the costs would be no more than S$2,000. The plaintiffs denied such an agreement. When the defendants' claim against the developers was close to settlement, the plaintiffs applied for an order to be discharged from further acting as solicitors for the defendants and that the costs to-date be taxed pursuant to s 117 of the Legal Profession Act (Cap 161, 1985 Ed). The defendants objected to the application for taxed costs. They were informed to bring up the objection before the taxing master. The plaintiffs obtained the orders as prayed. The defendants did not appeal against the order. When the parties appeared before the taxing master the defendants again brought up the issue of agreed costs. The objection was not entertained and the costs were taxed at S$6,613.22. From this figure the plaintiffs deducted an earlier payment to account. When the defendants refused to pay the sum of S$5,613.63, the plaintiffs issued process to recover the same and applied for summary judgment. The defendants were given unconditional leave to defend. The plaintiffs appealed.

Held, allowing the appeal and entering judgment for the plaintiffs: (1) under O 59 r 33 of the Rules of the Supreme Court 1970 ('the Rules'), the certificate of the registrar upon taxation unless set aside shall be conclusive as to amount thereof. There was no application to set aside the certificate of the taxing master and accordingly there was no defence to a claim based on that certificate; (2) the defendants did not, and could not, dispute that they were under a liability to pay the plaintiffs some legal fees, and once the validity of the registrar's certificate was not disputed, O 59 r 33 must be construed as conclusively fixing the quantum of that liability. When the order of taxation was not challenged, the situation was analogous to an interlocutory judgment for damages to be assessed with the taxation being comparable to an assessment of damages. The plaintiffs could rely on the registrar's certificate as conclusive evidence of the amount of legal fees properly due from the defendants to the plaintiffs; (3) the defendants had not taken any action under s 110 of the Legal Profession Act (Cap 161, 1985 Ed) to enforce the alleged agreement for fixed costs. Neither had they appealed against the order that the costs be taxed. Accordingly the issue of the defendants' liability to pay taxed cost was precluded from further relitigation upon the expiry of the appeal period; (4) the plaintiffs' application for an order for taxation was made under s 117 of the Legal Profession Act (Cap 161, 1985 Ed). Such an application should be made under a petition of course rather than by way of summons in chambers, but the irregularity was clearly not such as to nullify the application or the subsequent taxation; (5) on the material before the court there was no evidence that the defendants had made any agreement with the plaintiffs either through themselves or their agents as to fixed fees.

Shook Lin & Bok v Yeo Kian Teck & Anor [1992] 2 SLR 16 High Court, Singapore (Michael Hwang JC).

In this case, an application was made under s 113 of the Legal Profession Act (Cap 217, 1970 Ed) by the applicant to set aside an agreement on costs of S$15,000 ('the agreement') dated 20 September 1985 and made between the applicant and his solicitor. The application was based on two grounds: (1) the agreement was unfair or unreasonable under s 113 of the Legal Profession Act (Cap 217, 1970 Ed) and (2) the applicant did not know that the agreement was an agreement for costs, ie the plea of non est factum.

Held: (1) the applicant did not understand the scope of the agreement when he signed it; (2) the agreement, by reason of its uncertain scope and its failure to contain the full terms of the bargain between the solicitor and the applicant, was not such an agreement that would come within the terms of s 111 of the Legal Profession Act (Cap 217, 1970 Ed); (3) in an application of this nature where a client seeks to impeach the fairness or reasonableness of an agreement for costs on contentious matters, the English courts have wisely decided that a solicitor, if he wishes to enforce such an agreement against his client, must prove its fairness and reasonableness and this onus is not shifted by the client taking the initiative to set aside the agreement; (4) the agreement was not fair to the applicant because its contents were never explained to, or fully understood by, the applicant. Furthermore and in any case, the allegations of voluntariness and lack of pressure were not supported by the facts; (5) the fee of S$15,000 was unreasonable. Per curiam: '... although the Legislature in s 111 of the Legal Profession Act (Cap 217, 1970 Ed) has allowed solicitors to enter into agreements on costs with their clients, it has also at the same time, in recognition of the influence of solicitors over their clients, ensured by s 113(1) that no action shall be brought to enforce such an agreement except by an order of the court.'

Shamsudin bin Embun v PT Seah & Co [1988] 2 MLJ 546 High Court, Singapore (Chan Sek Keong JC).

The petitioner had entered into a loan agreement with a bank ('the bank') for which certain shares ('the shares') were deposited with the bank as security. The bank later demanded payment of the balance of the loan and for this purpose the bank had employed the respondent. Pursuant to cl 23 of the loan agreement which provided that the petititoner was bound to pay the costs of the bank's solicitors, the respondent informed the petitioner that it had to pay their costs of RM40,000 in addition to the balance of the loan before the shares could be released. As the shares were needed as security by the re-financiers, the petitioner had no choice but to pay the costs demanded by the respondent which they did on 1 July 1991. The petitioner then applied to the respondent for the delivery of a bill of costs in respect of the work done and for taxation thereof but the respondent did not respond. Dissatisfied with the quantum of fees demanded, which the petitioner considered to be manifestly excessive and unconscionable, the petitioner filed a petition of costs under s 130(1) of the Legal Profession Act 1976 ('the Act') on 27 July 1991 and prayed that the respondent deliver to it a bill of costs for the work done as solicitors of the bank, that the said bill might be referred to the senior assistant registrar to be taxed and that the respondent refund to the petitioner any overpayment found to be due to the petitioner. The respondent objected to the application, contending that: (a) the Act had displaced the court's inherent jurisdiction to make orders for the taxation of a bill of costs where the relevant application was made more than 12 months after the payment of the bill; (b) there was no affidavit filed in support of the petition; (c) ss 126 and 130 of the Act were inapplicable to enable a borrower to seek an order against the bank's solicitors for the delivery of a bill of costs and have it referred for taxation; (d) the costs had been paid and there was failure to make protest at the time of payment; and (e) the costs was voluntarily paid through solicitors.

Held, allowing the application: (1) ground (a) raised by the respondent was baseless as the petition was filed well within the period of six months stipulated in s 126 of the Act despite the non-delivery of the bill of costs. Even in petitions made outside the stipulated period, by virtue of their role as watch-dog over the conduct of solicitors, the courts in Malaysia were not precluded from invoking their inherent jurisdiction in appropriate cases where the facts pleaded disclosed a serious misconduct of gross overcharging or fraud on services rendered by an advocate and solicitor; (2) there was no requirement in O 9 of the Rules of the High Court 1980 that the petition must be supported by an affidavit. Proceedings begun by way of a petition were similar to proceedings begun by writ. Thus as there were no requirements for writs or summonses to be supported by affidavits, petitions generally also need not be supported by affidavits; (3) having regard to ss 126(1), 130(1) and (3) of the Act and relevant case authorities, the court would have not only statutory but also inherent and general powers of supervision over the fee that solicitors charge in non-contentious matters as well as in contentious matters as provided under ss 116 and 118 of the Act. Thus the petitioner was entitled to have delivery of the bill of costs and taxation thereof. In any event, a mortgagor was entitled to have taxation of the bill of costs of solicitors acting for the mortgagee; (4) for the purposes of the Act, only payment of a sufficient bill of costs previously delivered could constitute payment but not when payment was made without such a bill. If a sufficient bill had been delivered, a party liable to pay might still petition for an order of taxation even after the bill had been paid, if special circumstances could be shown. Thus ground (d) of the respondent's objection could not be sustained; (5) the question whether there was pressure on a party liable to pay costs must be decided on the circumstances of each particular case. A petitioner for an order for delivery of a bill of costs and taxation of it would only be required to show to the court's satisfaction that he was acting under pressure when he paid the amount, and the fact that he was at the material time represented by a solicitor was inconsequential; (6) on the facts of the case, the fee of RM40,000 charged by the respondent was, prima facie, grossly excessive and highly unconscionable. It was clear from the correspondence passing between the respondent and the petitioner that the petitioner was under unbearable pressure to pay whatever sum demanded by the respondent due to the escalating daily interest payable to the bank while the shares, which were needed by the petitioner to be given as security to the refinanciers, were held by the respondent. While in normal circumstances the court should be averse to interfere in matters concerning costs paid by a party through his solicitor, in this case the court would be failing in its duty if, on the mere ground that the petitioner had paid through its solicitor, it should refuse to intervene to ensure that the rights of the petitioner as a consumer of legal services were protected; (7) his costs can never be grounded on the high value of security held by, or the amount of money owed by the party chargeable to, his clients; (8) (per curiam) the basis of a lawyer's remuneration for services rendered is his charges for actual work done;the jurisdiction to order a bill of costs to be delivered is distinct from the jurisdiction to order the bill to be taxed, and delivery may be ordered even though afterwards taxation may not be ordered.

Perusahaan Petanda Bintang Sdn Bhd v Asbir, Hira Singh & Co [1995] 2 MLJ 455 High Court, Penang (Vincent Ng J).

United Malayan Banking Corp v Sykt Perumahan Luas Sdn Bhd [1991] 3 MLJ 181 High Court, Penang (Edgar Joseph Jr J).

VIJE & Co v Co-operative Central Bank Ltd [1991] 3 MLJ 432 High Court, Kuala Lumpur (VC George J).

VIJE & Co v Co-operative Central Bank Ltd [1991] 3 MLJ 432 High Court, Kuala Lumpur (VC George J).

VIJE & Co v Co-operative Central Bank Ltd [1991] 3 MLJ 432 High Court, Kuala Lumpur (VC George J).

The petitioner was not satisfied with the amount of fees charged by the respondent for services rendered to the petitioner as its counsel in a suit in 1986. The petition was filed praying that the respondent be ordered to deliver a bill of costs so that it may be taxed. The petitioner claimed that the respondent had agreed that his remuneration would be 12[1/2]% of the claim from the money recovered, and should the claim fail, there would be no charge. The respondent deposed in his affidavit that the fees were agreed at RM16,342.81 exclusive of disbursements. He also confirmed that the petitioner had paid RM10,000 towards settlement of the fees, and up to 9 February 1988, only a sum of RM2,843.81 was due on the fees and RM387.10 for disbursements.

Held, dismissing the petition with costs: (1) the petitioner has not shown at any time that the fees had been overcharged. Further, he had not categorically denied that RM10,000 had been paid towards the settlement of the fees or that there is now only a balance of RM2,843.81 due on the fees and RM387.10 for disbursements; (2) more than a year and nine months had passed before the petitioner filed this complaint. No reasons were given to explain why it was filed more than a year later. It is now too late in the day to complain that the lump sum bills were not contained in a written agreement as required by the Legal Profession Act 1976 (Act 166).

Syarikat Gam Bee & Sons Trading & Construction v Joseph Au Kong Weng [1990] 2 MLJ 234 High Court, Kuantan (Lamin J).

P and G were tenants in common of a property mortgaged to SG. SG commenced winding-up proceedings against both P and G. These proceedings were eventually settled. As a term of the settlement P and G were to pay SG's costs. R were solicitors for SG. They delivered a bill of costs. P paid under protest and reserved their right to taxation. They later presented a petition of course for taxation of the bill. R objected to the petition on two grounds: (a) that the petition was bad because G had not been joined as a petitioner or defendant; and (b) that as P had paid the bill, it could not be taxed in the absence of special circumstances.

Held, granting the petition: (1) where parties are jointly liable to pay a bill of costs (as was the case here) it is not necessary for all the parties to be joined in presenting the petition of course; (2) the payment of a bill without admission of the amount due does not fall within s 119(1) of the Legal Profession Act (Cap 161) (which precludes a party who has paid a bill of costs from having it taxed). The aim of that section is to prevent a party who has paid a bill unconditionally from claiming that it is excessive unless he can show special circumstances; (3) in any case, P's express reservation of their right to taxation amounted to special circumstances. An order in terms of the petition was accordingly made.

Kintyre Park Development Pte Ltd v Cooma Lau & Loh [1991] 1 MLJ 85 High Court, Singapore (Chan Sek Keong J).

The defendants, a firm of advocates and solicitors owned by one Irene Goh, sent to the plaintiffs bills for costs and disbursements. The plaintiffs refused to pay the bills and sought an order from the court to declare that they were under no legal liability to do so. In 1987, the plaintiffs had engaged Mr Lee Bian Tian, the sole proprietor of Lee & Cheah, a firm of advocates and solicitors in Johore Bahru, to act for them in legal disputes in which they were involved. By the end of the year, Mr Lee decided to stop practising in Johore Bahru and tried to transfer his pending responsibilities to other solicitors. The plaintiffs did not appoint a new solicitor and finally, Mr Lee wrote to the controlling shareholder of the plaintiffs, one Mr Chang, saying that he had passed one of the plaintiffs' pending matters to his 'associates, namely, M/s Goh and M/s TH Lim & Co'. In the letter, he also stated his intention to pass the other pending matters to his associates. Mr Chang said that he had been pressured into accepting the defendants' services and that he agreed only on condition that Mr Lee would continue to be responsible for the conduct of all the matters and would oversee the action of the defendants. He said that Mr Lee agreed to do that. Neither Mr Lee nor the defendants prepared any documents, to which Mr Chang, his wife (who was a plaintiff in one of the pending matters) or the plaintiffs were party, in which the terms of the take-over was set out. Both Mr Chang and Mr Lee said the understanding was that the matters would be billed when the work was completed. Eventually, the defendants discharged themselves and demanded payment of their bills.

Held, granting the declaration sought: (1) in the absence of written evidence of the actual terms on which the take-over was stated, the court was compelled by authority to give greater regard to the testimony of Mr Chang than to that of either Mr Lee or Miss Irene Goh on this aspect of the matter. Mr Chang must have been given some assurances that the guiding hand of the only solicitor whom he trusted, namely, Mr Lee, to whom he had already paid RM5,000 would prevail in the safe conduct of the pending matters towards their successful resolution; (2) as the understanding was that the matters would be billed when the work was completed (in other words, that each of the matters was an entire contract), it was only on completion of the business that the solicitor was entitled to be remunerated; (3) as Miss Goh was not retained by the client but by Mr Lee, it was to him that she must look for her remuneration, if she was entitled to any at all. In any case, the fact remained that these matters were never finalized either by Mr Lee or by Miss Goh, each for reasons of their own. In law neither would be entitled to any remuneration; (4) in the nature of the relationship between Mr Lee and his client, the doctrine of undue influence and the absence of any proper written material must lead to the conclusion that Mr Lee's withdrawal from these matters cannot be legally justified as the basis for a claim in quantum meruit. He gave up the files not in his client's interest but in his own self interest. When he could not carry on, he should have given up the briefs, if necessary, with the leave of the court, if he could not get the client's consent to withdraw. What actually happened was that Mr Chang was pressured into accepting Miss Goh as Mr Lee's successor; (5) the onus to show that Miss Goh had legal justification to refuse to act further fell squarely upon the solicitor and she had not satisfied the court that she had good reasons to withdraw; (6) if a solicitor discharges himself for just cause and there is an order permitting him to withdraw under O 64 r 5 of the Rules of the High Court 1980, the court can give directions for taxation of his costs for work done. But if he withdraws unilaterally without justification, it must follow from first principles that quantum meruit has no application; (7) a very substantial part of Miss Goh's bills related to work done not by her but by Mr Lee. Even though she specifically disclaimed that she was acting as the agent of Lee & Cheah, she was asking for moneys to be paid to her which could only be claimed by Lee & Cheah; (8) it followed from all this that Miss Goh's claim for costs and disbursements either for herself or on behalf of Lee & Cheah (who were no longer in existence in January 1988) must fail in toto.

Stephen Chang Holding Sdn Bhd v Goh & Associates [1989] 3 MLJ 497 High Court, Johore Bahru (Shankar J).

Abdul Rahim Rajudin v The Law Society of Singapore [1991] 1 MLJ 257 Privy Council Appeal from Singapore (Lords Bridge, Brandon, Ackner, Goff and Lowry).

S, solicitors of P in the action, sent a bill to P after the action had been decided. P asked for taxation of the bill. S then sent a second bill to P and withdrew their first bill. The senior assistant registrar refused to tax this second bill and directed that S draw up another bill for taxation not exceeding the amount claimed in the first bill. S appealed.

Held, allowing the appeal: the correct principle is one which prevents a solicitor from attempting to impose on his client and yet achieves a fair balance between their respective interests. A fair balance would be achieved by allowing a solicitor to deliver a second bill for a larger sum provided that upon taxation he shall not be entitled to more than what he has claimed in the first bill. The appeal was allowed and the second bill ordered to be taxed on the basis that S could not recover more than what they claimed in the first bill.

Berta Services Sdn Bhd v Makhanlall & Co Ltd [1989] 2 MLJ 269 High Court, Singapore (Chan Sek Keong J).

Held that under s 73 of the Courts Enactment, the government is entitled to recover costs in exactly the same manner as an ordinary litigant, and are equally liable to pay costs in exactly the same way.

Tham Hing Kwai v State of Negri Sembilan [1932] MLJ 31 Court of Appeal, Federated Malay States (Burton, Gerahty and Mudie JJ).

Shook Lin & Bok v Yeo Kian Teck & Anor [1992] 2 SLR 16 High Court, Singapore (Michael Hwang JC).

In this case, the plaintiff who were the former solicitors for the defendant sued for the payment of three of their bills and also for party and party costs that had been taxed and allowed. The plaintiff and the defendant did not enter into a written agreement with regard to the amount and the manner of payment of solicitor's costs. The defendant contended that as the claim for party and party costs was made pursuant to an agreement with the defendant, it should be in writing and consequently signed by the the defendant. In the absence of such written agreement, the defendant contended that the claim would be unsustainable and urged the court to dismiss it. To this, the plaintiff contended that the claim for party and party costs was valid as the defendant had undertaken to settle directly with the plaintiff who were their lawyers at the time. The plaintiff further argued that the non-existence of a written agreement did not render the claim defective or unsustainable as s 116 of the Legal Profession Act 1976 ('the LPA') does not make it mandatory for the solicitor to prepare a written agreement. The defendant further contended that the bill, on the face of it, must appear to be not only reasonable but must contain no extraordinary charges. The defendant also disputed the bona fides of the third bill, thereby questioning its lawfulness with regard to s 124 of the LPA in that there was no signed written agreement.

Held, allowing the suit: (1) as s 116 of the LPA is not a mandatory provision requiring the agreement to be reduced into writing, it did not shut out the plaintiff from claiming his costs for he could still fall back on s 121(1) of the LPA. In so doing, the onus of proving that the costs were fair and reasonable was on him unless it was a bill for a gross sum; (2) the fact that no signed written agreement was made did not disentitle the plaintiff from making the claim and as the defendant had failed to show the contrary, the plaintiff's claim for RM10,000 as agreed retainer fee was deemed to remain unchallenged; (3) as the plaintiff had shown justification in his claim for party and party costs, the claim was allowed; (4) the plaintiff was also entitled to interest as it would compensate him for being kept out of money.

Dato' Wrigglesworth v Haji Zakaria bin Yusoff Civil Suit No 22-98-91 High Court, Kota Bharu (Idris Yusoff J).

R was retained by TKS who was charged with several serious offences. R telephoned K, the managing clerk to G, a QC, to retain G to lead TKS's defence. The brief was £50,000 with £1,500 per day as refresher. It was agreed between R and K that the brief fee would be negotiated if the trial of TKS did not proceed. In the event, TKS pleaded guilty and G's services were not required. However, G formed the impression that R had surreptitiously replaced him with another counsel and that he had received money from TKS on account of fees due to G. G therefore demanded payment of the agreed brief fee of £50,000. He instituted proceedings to recover the fees, but these were dismissed for want of a cause of action. G then complained to the Law Society regarding R's conduct. R was found guilty of grossly improper conduct in the discharge of his professional duty by a Disciplinary Committee and was ordered to show cause why he should not be disciplined.

Held: (1) solicitors are liable to pay the fees of counsel even if they have not been put in funds by their clients; (2) a barrister cannot sue for his fees, the agreement to pay being binding in honour only. It is a breach of professional duty on the part of a solicitor not to pay counsel; (3) however, in the instant case, the agreement was that G's fees would be negotiated if the trial did not go on. Because G had formed an impression that he had been superseded and that R was guilty of deceit, he had not negotiated the fees in any meaningful way. R failed to pay the fees because it was not payable; (4) there was therefore no ground for disciplinary action against R.

Re Peter Yap [1991] 1 MLJ 129 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Yong Pung How JJ).

P sued D for money due under an insurance contract. PC were acting for P. P applied for summary judgment. D was given leave to defend conditional upon payment of the money claimed into a joint account held by the parties' solicitors. P went into liquidation and the liquidators appointed new solicitors HW. An application was made to substitute the HW as joint account holders. PC opposed the application on the ground that it would deprive them of their lien.

Held, granting the application: (1) where money is ordered to be paid into court on grant of conditional leave to defend, that money remains the property of the defendant. It would be charged with whatever might be found to be the liability of the defendants to the plaintiffs; (2) in this case money had not been paid into court but into a joint account in the names of the parties' solicitors to 'abide the event of the action'. This created a situation similar to payment into court. Neither firm of solicitors had any interest in or right over the fund; (3) the solicitors were officers of the court and bare trustees. They were not entitled to deal in any way with the money save pursuant to an order of court. They were not entitled to the interest on the money, unlike a stakeholder; (4) this being the position, it made no difference who were the individual trustees. PC's opposition to the application was therefore misconceived; (5) a solicitor's lien is not a lien properly so called at all. It is a right to ask the court to protect the rights of the unpaid solicitor. In the present case no money would be paid out except pursuant to an order of court. It lay within the court's power to order that no money was to be paid out to P until P had paid all that was due to PC. The court ordered HW to be substituted as joint account holders, with the rider that no money was to be paid out without the written consent of PC.

Halvanon Insurance Co Ltd v Central Reinsurance Corp & Anor [1988] 3 All ER 857 High Court, England (Hobhouse J).

P obtained an award against D in arbitration proceedings for US$80,000 and costs. P also obtained a Mareva injunction preventing D from dealing with their assets within the jurisdiction save to the extent that they exceeded US$125,000. This injunction extended also to moneys held in clients' accounts by HD and WAC, D's present and former solicitors. The solicitors applied to vary the injunction so as to allow payment of their costs out of moneys held in the clients' accounts. P opposed the application.

Held, granting the application in part: (1) a solicitor's lien entitles him to retain property already in his possession until he is paid costs due to him in his professional capacity, property in this context including money held in clients' accounts; (2) the solicitors' liens would be paramount in any attempt to enforce P's judgment against the sums held in clients' accounts. Accordingly, on a similar principle, it was wrong for such sums to be included within the ambit of a Mareva injunction. The solicitors' applications were granted, except to the extent of a small balance owing to WAC which could not be satisfied out of the money in clients' accounts.

Preekookeanska Plovidba v LNT Lines Srl [1988] 3 All ER 897 High Court, England (Hirst J).

The trustees of a Mohammedan charity, the Kampong Kling Mosque in Malacca, misappropriated trust funds belonging to the charity and afterwards paid the sum of RM7,100 to the appellant, who was the solicitor of one of the trustees. The solicitor on the instructions of the Mohammedan and Hindu Endowments Board made numerous payments out of the moneys so paid to him, such payments amounting in all to RM6,061.06 and leaving a balance in his hands of RM1,038.94. The board demanded payment of the balance and the solicitor refused to pay, claiming to have a lien upon it for an untaxed bill of costs for professional services rendered to the trustees and committee of the Kampong Kling Mosque.

Held: (1) in the circumstances of this case the solicitor had no lien on the trust fund in his hands for the cost of professional services rendered to the trustees; (2) the money was paid to the appellant for a specific purpose and therefore the appellant could have no lien upon it apart from what arise from carrying on that purpose.

Salt v Mohammedan and Hindu Endowments Board [1941] MLJ 220; [1941] SSLR 115, CA Court of Appeal, Malacca (McElwaine CJ, Terrell Ag CJ and Aitken Ag JA).

[Annotation: Compare with Lye Pin Neo v Seow Yen Boo (1876) 2 SLJ 40 126.]

A solicitor is entitled to a lien for his costs on a fund in court which has been recovered in a suit; the fact that the fund is a trust fund makes no difference.

Lye Pin Neo v Seow Yen Boo [1876] 2 SLJ 40 Supreme Court (Sidgreaves CJ).

[Annotation: Compare with Salt v Mahommedan and Hindu Endowments Board [1941] MLJ 220.]

The law with regard to a solicitor's lien on moneys in court is the same as in England and the court has jurisdiction to protect the interests of solicitors. If the fund is paid out to another party he is liable to be ordered to restore it even though he acted bona fide and without notice of the solicitor's lien for costs. No notice is necessary, since everyone is taken to know that a fund in court is subject to the solicitor's lien.

Ex parte Wagner [1908] 2 FMSLR 10 Supreme Court, Federated Malay States (Braddel and Woodward JJC).

In 1974, the petitioners retained the respondents as their solicitors in Penang High Court originating summons No 220 of 1974 involving the distribution of the estate of a deceased. On 30 June 1983, the respondents informed the petitioners' solicitors in Singapore that in lieu of taxation they would like to deduct from the estate money the sum of RM45,000 and RM11,000 respectively towards their professional fees, charges and disbursements. The petitioners protested at the bills and requested that the respondents have their bills of costs taxed. On 7 September 1983 the respondents forwarded their two sets of bills of costs to the petitioners' solicitors. On 28 September 1984, the petitioners filed the present petition praying for an order of course for the respondents' bills to be taxed on solicitor and client basis. As more than one year had elapsed, the petitioners' solicitors made an application for an extension of time limited by s 126 of the Legal Profession Act 1976 (Act 166). The respondents contended that the petitioners were barred from obtaining any order for taxation under s 128(2) of the Act. The issue was whether there was such an injustice which required the exercise of the court's inherent jurisdiction.

Held: (1) this is a proper case where the court should exercise its inherent jurisdiction by ordering taxation of both bills and costs because justice requires that such an order should be made, notwithstanding that the petitioners' solicitors had allowed the 12-month period to lapse without making this application; (2) accordingly the two bills of costs must be set down for taxing by the registrar. The costs of and incidental to this application must be paid by the petitioners to the respondents in any event.

Phuah Choon Hwang & Anor v Hassan & Kong Yeam [1987] 1 MLJ 156 High Court, Penang (Mohamed Dzaiddin J).

The present appeal arose out of the lower court's decision ordering the defendant's bill of costs to be taxed (see [1980] 2 MLJ 8). The facts were briefly as follows. The plaintiff company retained the defendant's firm as solicitors for the plaintiff company and its subsidiaries from November 1975 to August 1976. During that period the plaintiff paid S$119,500 to account of costs, excluding disbursements. The defendant had submitted 27 bills which amounted to S$610,000 exclusive of disbursements. Apart from the payment of the said S$119,500, the plaintiff made no further payments on the said bills as it was of the view that the amounts charged were grossly excessive.

Held, dismissing the appeal: (1) if a solicitor is engaged by a client in his capacity as solicitor then all his bills, whether for legal or non-legal work, are subject to taxation under the Legal Profession Act (Cap 217, 1970 Ed); (2) the quantum and the size of the main bill (No 67/77) with its detailed itemization and narration of the work done without any sum being shown against each such item but a final lump sum figure shown to represent the costs of all the items were in themselves special circumstances for the exercise of the court's discretion in this case; (3) in the instant case there had been prolonged negotiations between the parties and it was only when such negotiations had broken down that proceedings were commenced by the defendant. This, in itself, was a special circumstance which would have justified the court in exercising its discretion to order taxation.

Harry Lee Wee v Haw Par Brothers International Ltd [1980] 2 MLJ 228 Court of Appeal, Singapore (Kulasekaram, Chua and Rajah JJ).

The Advocates and Solicitors Enactment 1914 contemplates taxation as between solicitor and client though no machinery is set up.

Fernando v Tilla Kasekra [1920] 2 FMSLR 210 Supreme Court, Federated Malay States (Sproule ACJC).

[Annotation: See now Legal Profession Act, Pt IX.]

R and D were the former solicitors for A. They rendered a lump sum bill of costs amounting to S$150,177.50 in respect of work done. A wrote asking for taxation of the bill. Subsequently, R and D put up a revised itemized bill of costs ('the second bill') for S$197,586.50. This second bill was forwarded to A, who were informed that it would be taxed by the registrar. The second bill was duly taxed by the deputy registrar, who, having been informed of the first lump sum bill, taxed off S$47,409 so as to reduce the bill to S$150,177.50. A sought to review the taxation.

Held, setting aside the taxation: (1) under the Legal Profession Act (Cap 161), it is clear that the solicitor and client can agree as to costs in both contentious and non-contentious matters. Where there is no agreement on costs, the Act does not expressly provide whether a solicitor has the option to deliver a lump sum bill, or whether every bill must be itemized. However, the learned judicial commissioner felt that a lump sum bill was permissible; (2) a solicitor may only have his bill taxed after having obtained an order of court on a petition, unless there is consent by the client. In this case A had expressly asked that the first bill be taxed. They did not ask for a fresh bill. There was no consent by A to the taxation of the second bill. What R and D should have done was to have the first bill itemized, not draw up a fresh bill for a substantially different sum; (3) on the general question of whether R and D were entitled to substitute a fresh bill without the leave of the court, this could be done if the client consented. However, there was no agreement by the client. In such a case, R and D were not at liberty to withdraw the first bill without the consent of the court. To allow a solicitor to freely substitute a bill would encourage pressure being brought to bear on the client to accept the first bill which the client had asked to be taxed; (4) every solicitor, before submitting his bill to a client, must carefully scrutinize the amount of work he has put in for that client and make his claim accordingly. He must be able to justify the bill when called upon to do so. To allow otherwise would be to encourage solicitors to bargain with clients and put pressure on them to accept the amounts charged. It could open the door to the most undesirable or irresponsible kind of conduct and undermine the public's confidence in the integrity of the profession. The learned judicial commissioner was not prepared to sanction R and D's action in withdrawing the first bill in the absence of statutory provisions approving such a practice; (5) the learned judicial commissioner recognized that it was a fairly common practice for a solicitor to send a lump sum bill based upon a very rough estimate without going into details. If a solicitor should wish to reserve to himself the right to withdraw the bill in the event that the client should ask him to submit the bill for taxation, the solicitor should make this clear to the client when the bill is submitted; (6) finally, the deputy registrar was wrong to merely deduct the difference between the first bill and the second bill. R and D should have been made to justify each claim. In the learned judicial commissioner's view, there was no taxation at all. The taxation proceedings were declared void in the inherent jurisdiction of the court.

Lee Hiok Ping & Ors v Lee Hiok Woon & Ors [1989] 1 MLJ 156 High Court, Singapore (Chao Hick Tin JC).

An issue before the court was: can the advocate present an itemized bill in excess of the amount stated in the gross sum bill?

Held: the answer must be in the affirmative as by acceding to a client's request to submit an itemized bill in place of the gross sum bill, 'the gross sum bill shall thereupon be of no effect'. The client who, not being satisfied with the gross sum charged, demands a detailed bill of charges must put up with the consequences, if the amount of the detailed bill turns out to be larger than the gross sum first charged.

Siew Kuen Williams v Yong Siew In [1984] 1 MLJ 95 High Court, Kuala Lumpur (Siti Norma Yaakob J).

A, a firm of solicitors, had been retained to act for bank D in a contentious matter. After the determination of the matter A delivered to D two gross sum bills of charges. D then requested A to have the bills taxed. A by letter agreed to D's request and stated that the gross sum bills were withdrawn and they would be maximizing their legal fees ('the letter'). 'The letter' also advised D to obtain independent advice on the matter of taxation and required D to confirm, inter alia, that by mutual consent no reliance was to be placed on the gross sum bills. D subsequently obtained independent advice on the matter. The senior assistant registrar initially allowed RM65,658.45 in A's favour but later reversed this ruling and only allowed RM40,454.15 inclusive of allocatur fees. A applied to the High Court to review the senior assistant registrar's taxation. D firstly alleged that its assent to A's withdrawal of the gross sum of bills was vitiated by undue influence exerted by A and the advice given by A was not independent advice. D then argued that it was not open to A to claim for interest on the amount allowed for taxation by the senior assistant registrar because A had not taken such a point in its cross objection notice to the senior assistant registrar.

Held, allowing the application: (1) the effect of ss 121(1) and 132 of the Legal Profession Act 1976 (Act 166) is that a solicitor may be remunerated in respect of contentious business not subject of an agreement by a gross sum, but he has to deliver a detailed bill of charges on demand in which case it can be taxed. In such a situation, the gross sum bill is of no effect and the detailed bill is not explanatory of the gross sum bill but is a substituted bill. Accordingly the amount claimed in the detailed bill may exceed the amount of the gross sum bill; (2) on the facts in this case, D's submission that its assent to A's withdrawal of the gross sum bills was vitiated by A's undue influence, was groundless; (3) the object of an award of interest is not to compensate a successful party for damage done but for him being kept out of his money; (4) interest is claimable by a solicitor even though this is not stated in his bills of charges. Under s 133 of the 1976 Act, taxing solicitors are entitled to request the court to allow interest on disbursements advanced on an overdraft rate which the taxing solicitors have to bear. In this case, A had in fact financed D's litigation by relying on an overdraft account. Accordingly an award of interest on disbursements and costs incurred by A on behalf of D, was a legal entitlement of a consequential nature and was not an 'item' within the meaning of O 59 r 34(1) of the Rules of the High Court 1980; (5) alternatively even if A's claim for interest was an 'item' under O 59 r 34(1) of the 1980 Rules, the court would exercise its discretion under O 59 r 36(4) of the 1980 Rules to award interest on disbursements and costs incurred by A on D's behalf; (6) interest should run from the date when the taxing solicitors are retained. Section 11 of the Civil Law Act 1956 confers power on the court to award interest at such rate as it thinks fit; (7) accordingly the senior assistant registrar's sum of RM40,454.15 was set aside and her earlier order of RM65,658.45 was restored but this would be exclusive of the allocatur fees.

United Malayan Banking Corp v Sykt Perumahan Luas Sdn Bhd [1991] 3 MLJ 181 High Court, Penang (Edgar Joseph Jr J).

By s 28 of the Contracts (Malay States) Ordinance 1950 'Every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void'. Accordingly, an agreement whereby an advocate and solicitor is restrained from practising his profession within five miles from Kota Baru town for a period of two years after the termination of his service agreement with his employer is void. The distance and place in respect of the restraint is irrelevant.

Wrigglesworth v Wilson Anthony [1964] MLJ 269 High Court, Kota Bharu (Hashim J).

The plaintiff had been injured while performing his work at the factory of the defendants and had been blinded as a result of the accident. He instructed solicitors who arranged a settlement of his claim. The plaintiff subsequently repudiated the settlement and brought an action for damages.

Held: (1) as a general rule it is against public policy to allow settlements between solicitors on behalf of their respective clients in accident cases to be challenged with impunity; (2) a settlement like other contracts is voidable on specific grounds, as for example, undue influence, misrepresentation, fraud or mistake; (3) in this case the plaintiff had not shown any such specific grounds and therefore the application of the defendants to strike out the writ of summons must be allowed.

Yap Chee Meng v Ajinomoto (Malaysia) Berhad [1978] 2 MLJ 249 High Court, Kuala Lumpur (Harun J).

Obiter: even if C's solicitor had not been instructed to consent to the orders, he had implied authority to do so in the absence of instructions to the contrary.

Bank of China v Maria Chia Sook Lan; Maria Chia Sook Lan v Bank of China [1976] 1 MLJ 41 High Court, Singapore (Tan Ah Tah J).

Lau Ming Hing Richard v Bank Pembangunan Ma-laysia Bhd [1994] 2 MLJ 323 High Court, Kuching (Chong Siew Fai J).

Notice to a solicitor in order to affect his client, must be notice in the same transaction.

Syed Omar Alsagoff v Somasundrum Chitty [1909] 11 SSLR 38 High Court, Straits Settlements (Hyndman-Jones CJ).

[Annotation: See Ong Kim Khoon v Gaya Filem Bhd [1979] 1 MLJ 79 where Chang Min Tat FJ held that where a solicitor placed himself in a position of conflict of interest and duty, it would not be correct or equitable to impute his knowledge to either of his clients.]

Pursuant to leave of court, the applicant applied by motion for an order of certiorari to quash the order made by the learned President of Sessions Court, Sibu, dismissing the action of the applicant against the respondent Yek Toh Ming, and for an order of mandamus directing the President to hear and determine the said action according to law. Copies of the relevant documents had been served on the Registrar of the Sessions Court, Sibu, and on the respondent, and, pursuant to O 53, r 5(1), on the Attorney General. In the court below, the notes of proceedings of the President showed that the plaintiff (the applicant) and its advocate did not appear and that the so-called 'stand-in advocate' had not been instructed and was not the advocate or solicitor on record and thus had no locus standi. The President dismissed the action, thereby giving rise to the present application. The gist of the applicant's complaint was that the order of the President was wrong in law on the face of the record.

Held: there is no evidence or statement to support the remark or finding of the President that 'the so-called "stand-in advocate" who has not been briefed or instructed'. If the President doubted the authority or instructions of counsel to appear, the President should have inquired into the matter or suspended the proceeding to satisfy himself of the situation. Halsbury's Laws of England, 4th Edition, Vol 3, para 1179, cited with approval: 'When counsel appears in court and states that he is instructed, the court will not inquire into his authority to appear'.

Scott & English (M) Sdn Bhd v Yek Toh Ming [1985] 1 MLJ 451 High Court, Sarawak (Chong Siew Fai J).

A preliminary objection was advanced questioning the authority of Messrs Gan & Lim, a firm of advocates and solicitors (`Gan & Lim'), to act for the plaintiffs. It was argued that Gan & Lim was not lawfully authorized to appear in these proceedings for the plaintiffs as the company's resolution for their appointment was not exhibited. Counsel for the plaintiffs submitted that it was not the law that before a solicitor files the memorandum of appearance, a resolution from the board of directors appointing the solicitor to act must first be tabled and passed. The court was informed that two directors of the first plaintiff had - in a letter dated 7 December 1996 addressed to Gan & Lim (`the letter') - authorized Gan & Lim to act and it was argued that this was sufficient to vest Gan & Lim with the necessary powers to act accordingly. It was earlier submitted that the letter was in the form of a privileged communication in the nature of a solicitor-client relationship.

Held, dismissing the preliminary objection: (1) the effect of the privilege as claimed would be that neither the client nor the solicitor - without consent - could be compelled to disclose the communications in the course of legal proceedings. The client may restrain the solicitor from making disclosure or may waive the privilege entirely. In the present case, the privilege had been waived when the letter in question was shown to the court, and the court ordered that it be shown to counsel for the defendants; (2) the letter gave authority to Gan & Lim to act for the plaintiffs. The articles of association of the first plaintiff in no uncertain terms gave to the two directors of the first plaintiff the competency to exercise all the powers of the first plaintiff which must necessarily include and extend to the management of the business of the first plaintiff. Thus, when the two directors authorized Gan & Lim to take court proceedings against the defendants as reflected in the letter, that would be sufficient to vest Gan & Lim with the necessary powers to act accordingly. Therefore, the letter was an act of authorization authorizing or employing Gan & Lim to act on behalf of the plaintiffs. This constituted the solicitor's retainer by the client. By the giving and acceptance of the retainer, the solicitor acquired his authority to act for the client and whatever the solicitor did, it would bind the client. The client thus became bound both personally as between himself and his solicitor and as between himself and third persons. As a general rule, a person had the right to retain the solicitor of his own choice so long as the solicitor was willing to act and was not precluded by the law or by the professional rules from so doing. There was nothing to prevent Gan & Lim to act for the plaintiffs. The letter therefore put the issue of authorization to act to rest; (3) (obiter) even if (there was no evidence in this case) the plaintiffs instituted the action without proper authority, ratification was still possible. Ratification in the context of the present case would be by convening a general meeting where the second plaintiff who held 51% shares in the first plaintiff would certainly vote for the continuance of the action against the defendants.

Yukilon Manufacturing Sdn Bhd & Anor v Dato Wong Gek Meng & Ors [1997] 2 MLJ 212 High Court, Johor Bahru (Abdul Malik Ishak J).

In this case the plaintiff had brought an action for damages for negligence against her employers, the first defendant, and a fellow-worker, the second defendant. The allegation was that the injuries sustained by the plaintiff were caused by the negligence of the second defendant. The second defendant had been dismissed by the employer and could not be traced. Solicitors retained by the insurers of a Workman's Compensation policy entered appearance for the first defendant and also for the second defendant. The plaintiff objected to the entry of appearance on behalf of the second defendant on the ground of want of authority.

Held: the plaintiff was entitled to challenge the authority of the solicitor who purported to act for the second defendant and in the circumstances of this case the appearance of the second defendant must be set aside.

Tan Lian Hong v Min Ngai Knitting Factory (M) Ltd & Anor [1974] 1 MLJ 76 High Court, Penang (Chang Min Tat J).

This is an appeal from the decision of D'Cotta J (see [1978] 1 MLJ 196) in the court below. The property in question was No 95 Jalan Senang. The defendant/appellant offered to purchase it from the respondent for S$164,000 subject to contract. The appellant paid the 10% deposit to her own solicitors. Negotiations as to the terms of the contract ensued between the parties' solicitors. The document of transfer and restriction had been executed by the parties but the appellant refused to complete. The respondent subsequently sold the property to another purchaser for S$142,000 and sued the appellant for S$22,000 and interest as damages for breach of contract. The trial court allowed the respondent's claim. The court had to decide whether on the true construction of the letters passing between the respondent's solicitors and the appellant's solicitors there was a concluded contract between the parties for the sale of the said property.

Held, allowing the appeal: (1) the law is settled that solicitors are not, in the absence of specific authority, agents of their clients to conclude a contract for them; (2) there was no evidence in this case that the appellant had authorised her solicitors to negotiate and conclude such a bargain for her; (3) the respondent had therefore failed at the trial to prove that there was a binding agreement between her and the appellant for the sale of the said property.

Yeo Gek Lang v Alice Wee [1979] 1 MLJ 213 Court of Appeal, Singapore (Wee Chong Jin CJ, Chua and Kulasekaram JJ).

The respondents, who were both brothers, were the registered proprietors of a piece of land in Seberang Perai Selatan ('the land'). Prior to 18 April 1990, another brother of the respondents, Mr Tan Weng Hock ('Tan'), who was given an option to sell the land by the respondents, approached Mr CP Ang ('Ang') of Messrs CP Ang & Co ('the firm'), to act as the respondents' solicitor in the sale and purchase transaction of the land. However, Tan's option to sell was only signed by the second respondent. Subsequently, the solicitors for the purchasers ('the appellants') sent a copy of the draft sale and purchase agreement of the land ('the agreement') to Ang, who then directed Tan to hand it to the respondents for their perusal. Ang testified that he was informed by his clerk (who was not called as a witness) that one of the respondents had later instructed him to obtain the fair copy of the agreement and 10% deposit from the appellants' solicitors ('the first part of Ang's testimony'). This was done by the firm in its letter dated 15 May 1990, and was admitted by the respondents. After the firm had received the engrossed copy of the agreement and the deposit, the respondents called at Ang's office. According to Ang, he was informed by his clerk that when the respondents were asked to settle the legal fees, they claimed that Tan, who was the option holder, would be the appropriate person to do so ('the second part of Ang's testimony'). They added that they would like to discuss the matter with Tan first before signing the agreement. However, the respondents argued that they refused to sign the agreement because they were not aware of the matter in question. On 18 June 1990, the respondents wrote to the firm to discharge it from acting on their behalf. The firm was also requested to hand over the issue document of title of the land that was in its custody to Messrs Goik Ah Kim & Co, who were the respondents' newly appointed solicitors. It was not until 17 August 1990 that the respondents wrote to the firm to inform it that the legal fees would not be settled as it was not authorized to act on their behalf. It was material to note that the respondents had found a new purchaser for the land at a considerably higher price before the dispute in question arose. Dissatisfied, the appellants brought a suit for specific performance of the agreement. The trial judge found in favour of the respondents, on the ground that the firm was not authorized to conclude the agreement on their behalf. The appellant appealed.The issues before the court were: (i) whether the respondents had authorized the firm to conclude a contract of sale and purchase in favour of the appellants; and (ii) whether it could be reasonably inferred from the evidence that the respondents had ratified the unauthorized bargain struck by the firm.

Held, allowing the appeal: (1) (per Edgar Joseph Jr FCJ) it is a question of fact in each case, whether a solicitor has actual or ostensible authority to bind his client contractually. His authority is limited by his instructions, which is also a question of fact. The burden of proof of establishing such authority must rest on the party who alleged it; (2) (per Edgar Joseph Jr FCJ) a solicitor's authority flows from the retainer given to him by his client. It follows that his authority to act is limited by any special condition imposed, and supplemented by any special authority conferred by the retainer. Generally, a solicitor has no general authority to bind his client contractually as a vendor or purchaser of land, unless such authority is expressly conferred upon him or is implicit in the terms of the retainer; (3) (per Edgar Joseph Jr FCJ) the trial judge had considered the first and second parts of Ang's testimony as hearsay, as Ang's clerk who had made the statements therein was not called as a witness. However, having regard to the admission of the events by the respondents, who were parties to the suit, the first part of Ang's testimony should have been admitted on the principle that if a party to a civil suit says he does not dispute the truth of a fact, the opposite party will not be required to prove such fact. Further, the second part of Ang's testimony was admissible pursuant to s 14 of the Evidence Act 1950 ('the Act'), as the statement therein was relevant to show Ang's state of mind, ie that he had reason to believe that he was authorized to conclude the agreement on behalf of the respondents; (4) (per Edgar Joseph Jr FCJ) On the evidence, the judge ought to have held that Tan, being the option holder, had the authority of the respondents to authorize Ang to act for the respondents in the agreement. The scope of Tan's authority was spelt out in the option to sell, and although he was not called as a witness, the statements attributed to him were the statements in the nature of admissions, implied if not express, of one who was in privity with parties to the suit. It is clear law, that not only admissions made personally by the party, but also admissions by those in privity with the party are admissible as exceptions to the hearsay rule. Agents acting within the scope of their authority are those in privity, under s 18(1) of the Act; (5) (per Edgar Joseph Jr FCJ) in so far as proof that Tan was the agent of both the respondents was concerned, the case against the second respondent was stronger, because the option was only signed by the second respondent, and not the first respondent. The law is also clear that out-of-court admissions by co-parties in legal proceedings are not admissible against a joint party simply by virtue of their joinder as parties. However, having regard to the evidence in this case, it could be inferred that Tan was the duly authorized agent of both the respondents, and thus, his out-of-court statements were admissible against both the respondents; (6) (per Edgar Joseph Jr FCJ) the judge had also omitted to take into account that the first respondent's testimony was tainted by a lie when evaluating the oral testimony of the first respondent; (7) (per Edgar Joseph Jr FCJ) the inaction and delay on the part of the respondents to challenge the authority of the firm to bind them contractually was not merely inconsistent with the respondents' version of the facts and consistent with the appellants' version, but was also relevant to show that even if Ang did not have prior authority to bind the respondents contractually in the matter of the sale and purchase of the land, there was an inference of ratification by acquiescence and adoption that could be drawn; (8) (per Edgar Joseph Jr FCJ) this case came within the range of cases where the trial judge had, in arriving at his findings of fact, either failed to take into account or to give proper weight to the material circumstances and probabilities of the case. Consequently, his judgment could not stand.

Teh Eok Kee & Anor v Tan Chiah Hock & Anor [1995] 3 MLJ 613 Supreme Court, Pulau Pinang (Edgar Joseph Jr, Mohamed Dzaiddin FCJJ and Abu Mansor JCA).

An advocate, acting for the plaintiff in civil proceedings, filed an application in these proceedings in the name of the plaintiff for an interim injunction supported by an affidavit sworn by himself. He announced at the commencement of the hearing that he appeared for the applicant. The judge dismissed the application and ordered the appellant to pay the costs of the other party (the respondent) without hearing the appellant on this point, expressing the view that 'the applicant had had no part in these proceedings'.

Held: (1) in normal circumstances, a court should assume that an advocate, who announces that he appears for a party, has been properly instructed; (2) if the court has serious misgivings on this question, it should, of its own motion if necessary, make inquiry into the authorization of the advocate; (3) no order against an advocate to pay costs personally may be made without giving the advocate an opportunity to show cause and without clear grounds; (4) it is doubtful whether there is any authority to order an advocate to pay the costs of the opposite party.

TO Thomas v Attorney General [1960-1963] SCR 43 Supreme Court, Sarawak, North Borneo and Brunei

Proceedings before the court under Pt VII of the Land Enactment 1911 are contentious proceedings and an agreement by which a solicitor agrees to prosecute such proceedings in consideration of payment only in the event of success is illegal.

Estate of Tuan Sheikh Abdulrahman [1919] 2 FMSLR 204 Supreme Court, Federated Malay States (Whitley JC).

A solicitor who agreed to deduct S$10 for every S$100 damages awarded in connection with an action of which he had the conduct was held to have contravened s 107(1)(b) and (3) of the Legal Profession Act (Cap 217, 1970 Ed).

Law Society of Singapore v Chan Chow Wang [1975] 1 MLJ 59 High Court, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

The vice of champerty is not limited to stipulations for payment in the event of success in claims brought by action; the vice can exist if such a stipulation is made when an action though not brought is clearly contemplated. An agreement calling for payment by percentage on the amount recovered on the claim or in an action is undeniably one stipulating for payment only in the event of success.

Lau Liat Meng v Disciplinary Committee [1967] 2 MLJ 141 Privy Council Appeal from Singapore (Viscount Dilhorne, Lord Hodson, Lord Guest, Lord Upjohn and Sir Hugh Wooding).

Form 8 of the First Schedule of the Rules of the Supreme Court 1957 provides, in the case of a change of solicitors, for the new solicitors to make the application and for the old solicitor to consent. If the old solicitor is dead, the person to consent is the party himself. Then, all persons concerned being parties to the notice and are bound by it.

Quah Sin Kheng v Mount Erskine Poultry Farm [1963] MLJ 111 High Court, Penang (Hepworth J).

Since there had been no change of solicitors executed by the appellants, M/s Skrine & Co who had entered an appearance for the appellants remained the solicitors on record. Observations on making a good discharge.

Getz Brothers & Co GMBH v Pan-Malaysian Wood Products Sdn Bhd [1980] 2 MLJ 79 Federal Court, Ipoh (Raja Azlan Shah CJ, Chang Min Tat FJ and Abdoolcader J).

The mere absence of a client by itself is not ground for an adjournment especially where the absent client is represented by counsel who is fully seised of the facts relating to the case. And once a solicitor comes on record he can only discharge himself for good reason and with the concurrence of the court.

Law Mun & Ors v Chua Lai Seng & Ors [1984] 2 MLJ 328 High Court, Muar (Shankar J).

In this case, the appellants, a firm of advocates and solicitors, acted for the developers, the purchaser and the financier (the respondents). One Penghulu Francis Umpau (the purchaser) had agreed to buy two lots of land from the developers and to have a dwelling house built on them. The respondents agreed to lend him a sum of RM70,000 for the purpose and on condition that the land would be charged to them. An agreement prepared by the appellants was entered into between the developers, the purchaser and the financier, and the appellants also gave a letter in which they undertook 'as soon as the issue document of title is ready we will prepare a memorandum of transfer to be signed in favour of the Penghulu and a memorandum of charge to be executed by the Penghulu in your favour'. In this case the lands were charged to the Bian Chiang Bank and it would be necessary to discharge the charge before issue of the certificate of title. Subsequently however the appellants acted for the developers in charging the lands to the Hock Hua Bank. The developers defaulted under the charges resulting in the sale of the lands including the land sold to the purchaser to a third party. The respondents contended that as a result they found themselves to be an unsecured creditor with no means of enforcing their claim against the purchaser who had no means to pay the debt. The respondents therefore sued the appellants for negligence and breach of contract. Judgment was given in favour of the respondents and the appellants appealed.

Held: (1) there was ample evidence on the record for the learned judge to conclude that a retainer came into existence by implication and as amplified by the conduct of the parties which showed a course of dealings giving rise to legal obligations and establishing the relationship of solicitor and client between the appellants and the respondents. There was therefore a retainer which put into operation the normal terms of the contractual relationship including in particular the duty of the appellants as solicitors to protect the interest of the respondents as their client in matters to which the retainer relates by all proper means; (2) the principle applicable in a case of this nature is that while the duty of a solicitor is directly related to the confines of the retainer, it is the incident of that contractual duty that he has to consult his client on all questions of doubt which do not fall within the express or implied discretion left him. It is also his duty to keep his client informed to such extent as may be necessary according to the same criteria. In this case, the appellants had failed to comply with the contractual duty as the respondent's solicitor to inform them of the issue and registration of the documents of title to the said land to enable the respondents to secure the discharge of the developer's charge with the Bian Chiang Bank.

Yong & Co v Wee Hood Teck Development Corp [1984] 2 MLJ 39 Federal Court, Sarawak (Lee Hun Hoe CJ, Mohamed Azmi and Syed Agil Barakbah FJJ).

The plaintiff applied for summary judgment against the defendant for a sum of about RM108,000 in liquidated damages for losses caused by his negligence. The defendant was the solicitor for the plaintiff in a land transaction relating to a piece of land in mukim Plentong ('the land'). The sale and purchase agreement relating to the land ('the agreement') was executed by the plaintiff and the vendor in October 1991. In January 1992, the Kwong Yik Bank ('the bank') informed the defendant of the redemption value of the land (which had been twice charged). Nevertheless, in February 1992, the defendant paid the balance purchase price to the vendor without retaining any sum for the redemption value. As a result, the plaintiff had to redeem the land out of his own resources in April 1992. Held, allowing the plaintiff's claim: (1) the defendant had a duty to retain a part of the purchase price equal to the redemption value of the land by virtue of a term in the agreement (para 3, special condition) which expressly provided that only the balance after redeeming the land was to be payable to the vendor. The fact that the plaintiff had taken it upon himself to redeem the land with his own funds did not absolve the defendant from his duties as the solicitor for the plaintifff not to release the funds; (2) even in the absence of express instructions on the matter, it is within the scope and powers of retainer for the defendant to act in the best interest of his client. In view of the terms and conditions of the agreement, it could not be said that the decision whether or not to release the purchase price fell within the realm of discretion of the defendant as solicitor; (3) the defen-dant's defence consisted only of bare denials and allegations that the loss was caused by the failure of the plaintiff to follow the advice of the defendant without details; he had failed to raise an arguable defence; (4) the failure of the plaintiff to state in his affidavit that the sum was owing and still owing to the plaintiff was not fatal as the form was not part of O 14 r 2 and, as such, it was not mandatory that it be followed.

See Yen Ken lwn Muthu (t/a Tetuan Muthu & Co) (Lim Meng Jeow, pihak ketiga) Civil Suit No 22-268-1992 High Court, Johore Bahru (Mohd Noor J).

Per curiam: it is not for an advocate and solicitor to believe or disbelieve his client's instructions, unless he himself has personal knowledge of the matter or unless his client's statements are inherently incredible or logically impossible. His duty to his client does not go beyond advising him of the folly of making incredible or illogical statements.

Anthony Wee Soon Kim v The Law Society of Singapore [1988] 3 MLJ 9 High Court, Singapore (Chan Sek Keong JC).

Tatab Industries Sdn Bhd (in receivership) v Su Thiam Hock Civil Suit No D5-22-1075-92 High Court, Kuala Lumpur (Abdul Malek J).

Guan Ming Hardware & Engineering Pte Ltd v Chong Yeo & Partners & Anor [1996] 2 SLR 621 High Court, Singapore (Christopher Lau JC).

Having accepted instructions to and having filed the notice of appeal it was not open to M to argue that there was no solicitor and client relationship because K had failed to pay M a due instalment in his fees.

Miranda v Khoo Yew Boon [1968] 1 MLJ 161 Federal Court, Kuala Lumpur (Azmi CJ, Ismail Khan and Gill JJ).

Although an accused person may choose to be represented by a counsel detained under preventive detention law, the court will not invoke its power under r 93(1) of the Internal Security (Detained Persons) Rules 1960 to order production of the detained counsel where it has not been alleged that the trial will involve difficult questions of law but even if it does, where it cannot be said that the counsel detained possesses experience of a nature not available amonst advocates and solicitors in Malaysia.

Sim Kee Guan v Public Prosecutor [1988] 2 MLJ 382 High Court, Penang (Edgar Joseph Jr J).

Active Timber Agencies Pte Ltd v Allen & Gledhill [1996] 1 SLR 478 High Court, Singapore (Rubin J).

The issue for determination on this appeal was whether the claim in respect of which this action was brought had been settled between the parties before trial. The proceedings arose out of a road traffic accident. The first plaintiff claimed damages for personal injuries while the second plaintiff (appellant herein) as administrator of the estate of one G, claimed damages for the benefit of G's estate and his dependents. The respondent admitted liability, but alleged that he had agreed to pay and the appellant had agreed to accept the sum of S$5,200 plus costs to be taxed in full and final settlement of the claim. By reason of this agreement the respondent maintained that the appellant was barred from proceeding with the action. There was a sharp conflict of evidence between the solicitors, but on the evidence the learned trial judge found as a fact that there was an agreement whereby the appellant through his former solicitor agreed to accept the amount stated and gave judgment accordingly. On appeal,

Held, dismissing the appeal with costs: (1) on the evidence the appellant's former solicitor had a general authority to and did settle the claim for a reasonable figure; (2) as there was no misapprehension or mistake as to the terms of the settlement the appellant was bound by the compromise, Hickman v Berens [1895] 2 Ch 638 distinguished.

Goh Mui Teck v See Eng Kiat [1967] 2 MLJ 53 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Buttrose J).

In this case, the plaintiff had agreed to transfer her land as security for an advance of RM220,000 to the plaintiff of her account. The money was to be used to pay off a charge on the land and also to pay the first defendant an amount payable by the brother-in-law of the plaintiff for whom the first defendant had stood as surety in getting an advance from a bank. The first and second defendants were advocates and solicitors and acted for the plaintiff in preparing the necessary documents. The land was transferred to the second defendant by a memorandum of transfer but there was an agreement adding that the land was not to be sold to any other person without the consent of the plaintiff and the second defendant undertook to transfer the land to the plaintiff in the event of her paying the sum of RM220,000. The defendant assured the plaintiff that although the transaction was in the form of a sale, the land would always remain a security. He also assured her that although the period of repayment was limited to one year, the property would be transferred to her nevertheless even after it. It was alleged that the second defendant had instead and in complete disregard of the memorandum and its addition and in collusion with the first defendant unlawfully and inequitably transferred the land to him and later the second defendant in order to defeat the plaintiff's title in collusion with the third defendant, also an advocate and solicitor, unlawfully and inequitably transferred the land to the third defendant. The third defendant brought an action for possession of the land against the plaintiff and obtained an order for possession. The plaintiff appealed against the decision but being out of time her appeal was dismissed. She then filed caveats against the land but on an application by the third defendant the caveats were set aside ([1979] 1 MLJ 173). The plaintiff then brought the action against the defendants for breach of contract, with undue influence, for breach of trust and for fraud. It was clear from the correspondence that the first and second appellants were acting for the respondent and there was a solicitor-client relationship between them.

Datuk Jagindar Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borne).

This was the plaintiffs' application to strike out the whole of the defence on the grounds of (a) breach of contract upon a retainer; and/or (b) negligence in the defendant's duty of care as stakeholder to the plaintiffs. The plaintiffs were moneylenders. On or about 15 December 1983, the plaintiff's representative consulted the defendant for professional advice. The plaintiffs then wrote an instructional letter dated the same to 'Ansari & Co' wherein: (a) the defendant and one Chew Tee Wah signed as 'guarantors' in their personal capacities to one Amin; (b) it was specified that the firm 'Messrs Ansari' were liable as solicitors and therefore requested to process all the documents; (c) the loan was to be released to the legal firm 'Ansari & Co'; and (d) the firm was only to release the money to the borrower, the said Amin, upon the firm's full satisfaction that it was safe for it to release the money which included the safe security and mortgage of 17 titles. A search revealed that none of the 17 titles had been registered as charges.

Held, allowing the plaintiffs' application: (1) the claim by the defendant that the titles, except for one, was non-registrable and the loss was therefore only on the value of the registrable title was not a sound answer to the plaintiffs' demands as it was the defendant's inactivity which held him back from either confirming to the plaintiffs in time of the non-registrability of the titles or from refunding the loan; (2) the defendant's denial that the plaintiffs were his clients was rejected as he accepted the loan amount of RM300,000 and paid it out to Amin. Also, if the defendant was merely a guarantor, the plaintiffs would not have sent the RM300,000 to him; (3) the defendant's defence that the plaintiffs had misrepresented that they were moneylenders were also rejected as the plaintiffs were able to prove they were licensed as such at the material time; (4) there was also a solicitor-client relationship between the parties. The defendant was instructed to charge the titles and to have found out if they could be charged. The money was released to the defendant as stakeholder. The defendant was therefore acting or had accepted to act as solicitor. Letters to or from a firm of solicitors can also give rise to a course of dealings leading to legal obligations which in turn establish the solicitor-client relationship. There are also case authorities holding that the position of solicitor's duties are confined to the retainer; (5) the duties of an estate agent is that of a stakeholder and the stakeholder holds the money in medio pending the outcome of a future event and while he holds the money, he is a trustee of both parties; (6) a retainer will be presumed if the conduct of the parties shows that the solicitor-client relationship has in fact been established between the parties. Here, it was clear that the plaintiffs had instructed the defendant as solicitor. Also, as the plaintiffs had paid in to the firm RM300,000 which the defendant subsequently paid out to Amin, it was discernable that the defendant was acting as solicitor cum stakeholder, in which case the retainer must be presumed; (7) on the totality of the evidence, the court considered that there were no merits in the defence.

Syarikat Perikanan Hing Lee (Sabah) Sdn Bhd v Ansari Abdullah Civil Suit No K 1680 of 1986 High Court, Kota Kinabalu (Syed Ahmad Idid J).

In this case, the plaintiff had agreed to transfer her land as security for an advance of RM220,000 to the plaintiff or her account. The money was to be used to pay off a charge on the land and also to pay the first defendant an amount payable by the brother-in-law of the plaintiff for whom the first defendant had stood as surety in getting an advance from a bank. The first and second defendants were advocates and solicitors and acted for the plaintiff in preparing the necessary documents. The land was transferred to the second defendant by a memorandum of transfer but there was an agreement adding that the land was not to be sold to any other person without the consent of the plaintiff and the second defendant undertook to transfer the land to the plaintiff in the event of her paying the sum of RM220,000. The defendant assured the plaintiff that although the transaction was in the form of a sale, the land would always remain a security. He also assured her that although the period of repayment was limited to one year, the property would be transferred to her nevertheless even after it. It was alleged that the second defendant had instead and in complete disregard of the memorandum and its addition and in collusion with the first defendant unlawfully and inequitably transferred the land to him and later the second defendant in order to defeat the plaintiff's title in collusion with the third defendant, also an advocate and solicitor, unlawfully and inequitably transferred the land to the third defendant. The third defendant brought an action for possession of the land against the plaintiff and obtained an order for possession. The plaintiff appealed against the decision but being out of time her appeal was dismissed. She then filed caveats against the land but on an application by the third defendant the caveats were set aside ([1979] 1 MLJ 173). The plaintiff then brought the action against the defendants for breach of contract, with undue influence, for breach of trust and for fraud.

Held: (1) in this case there was privity of contract between the plaintiff and the second defendant. On the facts the second defendant in fact bought the land on behalf of the first defendant. The first defendant was the undisclosed principal and the second defendant was his agent and therefore the first and second defendants were liable on the contract; (2) in this case the first and second defendants had acted as solicitors for the plaintiff and the burden of proving that the contract was not induced by undue influence was on them as they were in a position to dominate the will of the plaintiff. The defendants had not discharged that burden and the plaintiff was therefore entitled to repudiate the contract; (3) judgment should therefore be entered for the plaintiff as prayed.

Tara Rajaratnam v Datuk Jagindar Singh & Ors [1983] 2 MLJ 127 High Court, Johore Bahru (Abdul Razak J).

The plaintiff in this case obtained a judgment against the defendant for a sum of RM716,359.75. He proceeded to execute the judgment on race horses belonging to the defendant. On 20 July 1983, the plaintiff obtained an injunction from the High Court, restraining the defendant or his agent, the claimant (who trained the defendant's horses) or any other servant from removing, disposing or transferring or otherwise dealing with the horses. Subsequently, the plaintiff attached the horses on 10 March 1984. In the meantime, the claimant, intending to exercise a lien on the horses for unpaid trainer's fees, obtained judgment on 30 January 1984 in respect of the trainer's fees. The plaintiff, nevertheless, proceeded to attach the horses. The horses were sold by mutual consent of the claimant and the plaintiff and it was agreed that the parties would leave it to the court to decide who was entitled to the proceeds of the sale. The issue before the present court was whether the claimant, as trainer of the said race horses, had a lien over them.

Held: (1) the principle of the right of continued possession is a necessary ingredient of s 123 of the Contracts Act 1950 (Act 136). Another important ingredient of the section is that the bailee must exercise his labour or skill in respect of the goods bailed. The third ingredient of the section is that the claimant must have a right to retain the said horses until he receives due renumeration; (2) on the facts, all three requirements of s 123 of the Contracts Act 1950 have been satisfied and the claimant, therefore, had a lien over the horses; (3) the claimant was entitled to the proceeds of the sale of the horses after all execution expenses have been deducted; (4) the plaintiff will pay the costs of this appeal to the claimant.

Sethia Financial Services Ltd v Nicholas Chu Fai Hung & Mak Siau King (Claimant) [1986] 1 MLJ 433 High Court, Kuala Lumpur (Zakaria Yatim J).

The court referred to Halsbury's Laws of England Vol 3 (4th Edition) and stated that the banker's lien is an implied pledge. A banker who accepts bills drawn by buyers or other beneficiary of the credit on the drawer's undertaking to forward bills of lading acquires an equitable claim to the bills of lading, valid against the customer's trustee-in-bankruptcy but not against a third person who took them in good faith and for value. The bank, by paying or accepting pursuant to an irrevocable credit, may therefore become pledgee of the documents of title accompanying the draft.

Bangkok Bank Limited v Wiel Brothers Cotton Inc [1977] 2 MLJ 134 Federal Court, Penang (Lee Hun Hoe Ag LP, Ali Ag CJ (Malaya).

Customer of the applicant bank deposited documents of title over certain lands with them for the purpose of securing a loan. He failed to repay the loan and judgment was obtained against him. A bankruptcy notice was issued against him but he failed to pay the moneys and thus committed an act of bankruptcy. Subsequently, the applicants registered caveats against the titles deposited with them as security under the provisions of s 330 of the National Land Code 1965 (Act 56/1965). A petition was subsequently filed against him and receiving and adjudication orders were made against him. The applicants applied to sell the lands by public auction. The application was opposed by the Official Assignee who claimed that the applicants were not the lien holders on the property as at the time of the act of bankruptcy there was no caveat entered under the National Land Code 1965. The applicants submitted that at the time when the act of bankruptcy was committed, the applicants had equitable rights to a lien in contract.

Held: at the time when the act of bankruptcy was committed the applicants had an equitable right to a lien and the trustee-in-bankruptcy who steps into the bankrupt's shoes, takes a title no better than him. He takes subject to the same equities as affected the property in the bankrupt's hand. The applicants have a prior interest and were entitled to an order for sale.

Mercantile Bank Ltd v The Official Assignee of the Property of How Han Teh [1969] 2 MLJ 196 High Court, Kuala Lumpur (Raja Azlan Shah J).

The customer had two overdrawn accounts with the respondent bank. To secure the overdraft on the first account he executed two charges in respect of land belonging to him in favour of the respondent. To secure the second account, the customer signed an undertaking pledging all his stock-in-trade. The appellants, who had entered into an agreement with the customer to buy the two pieces of charged land at below market price in order to save the customer from the social embarrassment of a judicial sale, applied to discharge the charges with the purchase price. The respondent bank refused to accede to their request. The appellants thereupon sued the respondent for a declaration that they are entitled to the discharge of the charges on payment of the amount due. The respondent maintained in his defence that the sale agreement was a fraud and that it had a general lien to retain the charges for the sum due not only on the first account but also on the second account.

Held: (1) just as a mortgage is not irredeemable, likewise a charge is not undischargeable; (2) bankers have a general lien on all securities deposited with them for the balance due from their customers and this rule is excluded where there is an express or implied contract showing intention inconsistent with the absence of the lien. In the present case, the arrangements were so specific and precise that there is no room left to doubt as to the parties' intention. The parties did not intend a general lien to arise in respect of the securities for the overdraft due on the second account; (3) as there was no fraud as respects the sale agreement by which the appellants bought the charged land from Koh and as the respondent had no general lien to hold the charges for the sum due on the second account, the appellants must succeed in the appeal and are entitled to the prayers asked for.

Eng Ah Mooi & Ors v Oversea Chinese Banking Corp Ltd [1983] 1 MLJ 209 Federal Court, Ipoh (Wan Suleiman, Salleh Abas and Abdul Hamid FJJ).

D had earlier granted an overdraft facility to P. P had pledged certain shares as security for the overdraft facility. Later, this overdraft facility was superseded by a new one. D had retained the shares as security for the new overdraft facility granted to P. In the present action, P applied for the return of the shares. P contended that the shares were being kept by D for safe custody purposes and not as security for P's overdraft facility.

Held, dismissing the application: (1) in the instant case, it was clear that the shares were retained by D initially for the earlier overdraft facility and later as security for the subsequent overdraft facility. In the circumstances, it was implied that the lien over the shares was to be continued as a security for the subsequent overdraft facility; (2) as there was an extension of the security to cover the new overdraft facility, D was entitled to retain the shares by way of a general lien.

Lee Brothers Plantation & Realty (M) Sdn Bhd v United Malayan Banking Corp Bhd Originating Motion No 48 of 1989 High Court, Seremban (Mustapha Hussain J).

A company, being in need of funds to carry on their business, arranged for an overdraft with a bank, and to secure this they hypothecated their stock-in-trade by a letter of lien. The goods remained on their premises in their apparent possession, and were sold and replaced in the usual course of business.

Held: the letters of lien were a floating charge, and not being registered under s 93(i)(f) of the Companies Enactment 1917, were void as against the liquidator and, consequently, the bank was only entitled to a rateable share in the distribution of assets.

Re Bonds, Ltd [1921] 2 FMSLR 263 Court of Appeal, Federated Malay States (Brown, Watson and Farrer-Manby JJC).

A trading company addressed to their bankers letters of lien in the following terms: 'We herewith beg to certify that the undermentioned goods fully insured against fire are kept on lien to your bank in our godown Saiboo Street 7 against our overdraft with your bank' (a list of the goods being appended).

Held: such letters of lien were not void as being bills of sale not in prescribed form nor registered under the Bills of Sale Ordinance 1886, but were 'documents used in the ordinary course of business as proof of the possession or control of goods' within the exception in s 5 of that ordinance.

Re Winkelmann & Lubking Ltd [1915] 14 SSLR 19 High Court, Straits Settlements (Bucknill CJ).

A bank's customers had an account with the bank at its branch in Penang. They were also liable to the bank in respect of indebtedness to the bank's branches at Medan and Rangoon. Valuable securities were from time to time deposited by the customers with the bank's Penang branch. These securities were deposited without any documents of hypothecation to secure overdrafts or liabilities of the customers with the bank's branches in Penang and Medan. The customers became bankrupt. Parts of the securities were realised and the overdraft at the Penang branch was paid off and part of the Medan liabilities were discharged. The Official Assignee now claimed to redeem the remaining securities on payment of the amount of the remaining liabilities to the Medan branch. The bank claimed to hold the remaining securities until all indebtedness of the customers had been discharged, including a large sum admittedly due by the customers to the Rangoon branch of the bank.

Held: the bank had a general lien upon the securities deposited with the bank's Penang branch and such general lien extended to cover any indebtedness of the customers at the Rangoon branch of the bank.

Re Firm of TSN [1935] MLJ 139 High Court, Straits Settlements (Whitney J).

A shareholder of the appellants, holding fully paid up shares had obtained in 1921 an advance from the bank of about $10,000. By art 29 of its original articles of association, the bank was given a lien on all the shares (not fully paid up) registered in the name of each member of all the members' obligations to the bank. After the enactment in the year 1923 of s 111(3) of Ordinance No 155 (Companies) providing that no banking company shall lend any part of its funds on the security of its own shares, the bank by special resolution amended its art 29 so as to give itself a lien over its fully paid up shares also by deletion of the words 'not fully paid up.' The shareholder having been adjudged bankrupt, the Official Assignee claimed the shares to be 'part of his property'. The bank claimed a lien.

Held: (1) s 111 of Ordinance No 155 does not invalidate a security given in contravention of sub-s (3) thereof; (2) art 29 of the bank's article of association as amended was not ultra vires; (3) continuing an existing loan to a customer of money previously lent was not a loan of the company's funds within the meaning of s 111(3) of the ordinance; (4) the bank had a valid lien on the shares.

Batu Pahat Bank Ltd v The Official Assignee of the Property of Tan Keng Tin [1933] MLJ 237 Privy Council Appeal from the Straits Settlements (Lord Blanesburgh, Lord Russell of Killowen and Sir Lancelot Sanderson).

[Annotation: The decision of Terrell J and that of the Court of Appeal reported in [1932] MLJ 134 reversed. The finding of the dissenting judge in the Court of Appeal, Whitley J, upheld.]

A banker has a lien on all papers of his customer in his possession, which though placed in his hands for a special purpose, so come into his possession, in the ordinary course of his business as a banker. C & Co, carried on business as merchants, both in Bombay and Singapore. The Oriental Bank also carried on banking business, in both these places. C & Co in both places used to bank with the Oriental Bank. When C & Co had bills to be collected, they indorsed them in blank, and delivered them to the Oriental Bank for collection. The Oriental Bank entered them in C & Co's pass books, as 'bills for collection,' but never credited C & Co with their amounts until they were received. If the bills were dishonoured, they were returned to C & Co. In April, 1865, C & Co holding certain acceptances of P & Co of Singapore, indorsed and delivered these bills to the Oriental Bank for collection, in the manner already stated; but before they fell due, both P & Co and C & Co failed. At the time of failure, C & Co was heavily indebted to the Oriental Bank at Bombay, and though there was a balance in their favour at the Oriental Bank, Singapore, still such balance was more than absorbed by acceptances of C & Co, which were held by the Oriental Bank at Singapore. The Oriental Bank claimed, in respect of C & Co's debt to them in both Bombay and Singapore, a lien over these bills accepted by P & Co, and which were placed in their hands by C & Co, as aforesaid and as P & Co were indebted to C & Co, the Oriental Bank claimed by virtue of such lien, to prove against the estate of P & Co, their debt on these bills to C & Co. This proof was resisted, both by the assignees of P & Co and of C & Co.

Held: although the bills came into the hands of the Oriental Bank for a special purpose, still it so came to them in their ordinary course of business as bankers, and therefore they had a lien on the bills, and were entitled by virtue of such lien, to prove against the estate of P & Co, in respect of the amount that was due by P & Co to C & Co; as the creditor and the debtor were the same in both Bombay and Singapore, it was immaterial in which of these places the debt of C & Co were contracted, and in what books they were entered.

Re Purvis [1866] 2 Ky Bk 12 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Maxwell R).

The sole issue in this case was whether the defendant company was entitled to disregard notice of an equitable mortgage of shares in the defendant company made by the registered holder in favour of the plaintiff and to claim priority under its articles for its lien on the shares in respect of a debt incurred by the registered holder after the notice.

Held: the defendant company was not entitled to disregard notice of the equitable mortgage of shares in the defendant company made by the registered holder in favour of the plaintiff, and to claim priority under its articles for its lien on the shares in respect of a debt incurred by the registered holder after the notice.

Chung Khiaw Bank Ltd v Four Seas Communications Bank Ltd [1965] 2 MLJ 74 High Court, Singapore (Ambrose J).

This was an application to rectify the register pursuant to s 162 of the Companies Act 1965 (Act 125) by striking out the name of one L deceased as holder of 1,400 shares in the respondent company and inserting in lieu thereof the name of the applicant. The deceased died sometime in 1963 and until his death was the chairman of the board of directors of the respondent company. The applicant (the widow of the deceased) was the sole surviving executor and trustee of the estate of the deceased. The other directors were the applicant and two nephews of the applicant. In December 1967, the applicant applied to have her name registered against the shares standing in the name of the deceased. On this being refused she wrote through her solicitor to the respondent company forwarding the grant of probate and a draft resolution signed by the applicant for signature by the directors. The grant of probate and the draft resolution was returned unsigned. In January 1968, the applicant was served with a writ (Suit No 21 of 1968) alleging that a sum of RM93,898.94 was due and owing by the estate of the deceased to the respondent company. The applicant then made the present application to rectify the register.

Held: (1) where a shareholder in a company dies and the transmission clause in its articles of association is in the form of cl 39, the personal representative is entitled to be registered in respect of and to have a certificate of the shares and the company has no right to enter in the register of members or in the certificate any statements as to the company's claim under its articles to a lien on the shares for the liability of the deceased to the company; (2) as the claim to the lien in Suit No 21 of 1968 was altogether denied and the action was being resisted, the applicant was entitled to a 'clean' certificate like that possessed by the person from whom she derived her title; (3) the register therefore ought to be rectified in terms of the motion and the directors must bear the costs of this application.

Re LY Swee & Co Ltd; Khoo Leong Kee v LY Swee & Co Ltd [1968] 2 MLJ 104 High Court, Kuala Lumpur (Raja Azlan Shah J).

There is no common law right, independent of the Factors Act 5 & 6 Vic c 39 s 3, enabling a person in the position of a factor having a lien to pledge the value of that lien for his own purpose.

Vermont & Ors v Hongkong & Shanghai Bank [1891] SLR NS 53 High Court, Straits Settlement (O'Malley CJ).

A hotel-keeper has a lien on his lodger's clothing and goods, for unpaid bills, and incurs no liability in detaining the same under such circumstances.

Wyndham v Hansen [1883] 1 Ky 618 High Court, Straits Settlements (Ford J).

The first defendants took a loan of RM75,000 from the plaintiffs and executed a mortgage and general charge on 16 February 1962, and as security the defendants deposited with the plaintiffs the title deeds of land in Klang, EMR 4031 Lot 703, of which they were the registered proprietors. The charge was never registered in the Land Office although it was registered with the Registrar of Companies on 9 March 1962. The plaintiffs lodged a caveat in respect of the said land with the Collector of Land Revenue, Klang, and it was duly recorded in the Register of Document of Title on 23 April 1962. On 31 October 1963, the second defendant obtained judgment for RM20,514.87 against the first defendants in a suit and on 14 November 1963 he obtained a prohibitory order against the said land and presented the same to the Collector for registration under the provision of the Land Code (FMS Cap 138). The order provided that it was subject to caveats and prohibitory orders. By an order of court dated 6 February 1964 in the same suit, the second defendant obtained an order for the sale of the said land by public auction at a reserve price of RM25,000. In April 1964, the plaintiffs commenced these proceedings. The first defendants had no other assets and they had not repaid the principal sum of RM75,000 nor any interest thereon to the plaintiffs despite a demand for payment made on 10 February 1964. The plaintiffs alleged that they gave notice to the second defendant of their prior lien on the said land but nevertheless the latter proceeded to by-pass their rights and interests in the matter. The plaintiffs sought for judgment in the sum of RM82,500 including interest against the first defendants, a declaration that the plaintiffs' lien on the land had priority of right, claim and interest over that of the second defendant's prohibitory order, or order of sale by public auction, alternatively the land be auctioned with a reserve price of RM90,000. The first defendants did not enter appearance and judgment by default was entered against them.

Held: (1) the charge executed by the first defendants on 16 February 1962 in a favour of the plaintiffs was void for all purposes with the consequence that the money secured thereby became immediately payable; (2) as the document of title was deposited with the plaintiffs, it was clear that there was the intention to create a lien over the land in accordance with s 134 of the Land Code (FMS Cap 138); (3) and an equitable interest in land was capable of being caveated; (4) the nature of the plaintiffs' interest in the land was a lien analogous to an equitable mortgage;the caveat established priority and the onus was therefore on the holder of a subsequent equity to show facts which rendered it inequitable for the holder of a prior equity to assist as against him on that priority. Although priority in time is the ordinary test, in the final analysis where evidence discloses some act or omission on the part of the holder of a prior equity the rule that 'who has the better equity' as stated by Parker J in Crosbie-Hill v Sayer [1908] 1 Ch 866 applied.

Zeno Ltd v Prefabricated Construction Co (Malaya) Ltd & Anor [1967] 2 MLJ 104 High Court, Kuala Lumpur (Raja Azlan Shah J).

This was an appeal by the second defendant against the judgment of Raja Azlan Shah J reported in [1967] 2 MLJ 104. It was contended on appeal that: (a) as the charge was not enforceable as such, the lien was not enforceable either; and (b) the lien did not comply with the law because there was no intention to create a lien as required by s 134 of the Land Code (FMS Cap 138) and the caveat lodged did not state the nature of the interest in the land caveated as required by s 167 of the said code and the ground upon which the claim was founded.

Held, dismissing the appeal: (1) the Land Code (FMS Cap 138) makes it quite clear that a charge is quite distinct from a lien. A lien under the code is a statutory lien and it has an independent existence apart from a charge so that if a charge is avoided for non-compliance with the law, the lien is not avoided also provided of course it complies with the law; (2) cl 6 of the mortgage and general charge clearly showed an intention to create a lien. An examination of the caveat showed the nature of the interest in the land caveated and the ground upon which the claim was founded.

Paramoo v Zeno Ltd [1968] 2 MLJ 230 Federal Court, Kuala Lumpur (Barakbah LP, Suffian and MacIntyre FJJ).

The contest in this motion was only between the first intervener and the second intervener. The first intervener was the mortgagee of a crawler crane ('the crane') on board the defendants' vessel ('the vessel') and the second intervener was the shipyard which had carried out repair and conversion works to the vessel. The second intervener subcontracted the works to subcontractors who charged S$620. The second intervener claimed S$7,000 for these works. This was a motion by the first intervener for, inter alia, the following declarations that: (i) the second intervener did not have any lien on the crane which was in the possession of the second intervener at that time, and (ii) the first intervener was entitled into possession of the crane.

Held: (1) the second intervener has a lien on the crane for their repair works carried out to the crane while the crane was on board the vessel for the amount charged by the subcontractor plus a fair and reasonable surcharge of S$120, making a total of S$800; (2) the first intervener was and is entitled to the crane as mortgagee subject to the lien of the second intervener for S$800.

The 'Safe Neptunia'; The 'Straits Hope' (Owners of) v The 'Safe Neptunia' (Owners of); Skandinaviska Enskilda Banker (South East Asia) Ltd & Anor (Interveners) [1988] 3 MLJ 78 High Court, Singapore (Thean J).

This was an action brought by the plaintiff against the defendant for alleged wrongful detention of his lorry. The defence was that the defendant was exercising his common law right of lien, as charges for repairs had not been paid.

Held: there was no evidence in this case that the plaintiff had refused to pay for the charges nor was there evidence of local custom and usage to establish the lien and therefore the defendant's retention of the plaintiff's lorry was wrongful.

Ong Chin Seng v Chop Lean Kooi Motors [1955] MLJ 177 High Court, Alor Star (Hill J).

In 1992 and 1993, the plaintiffs carried out repairs on the vessel 'Dwima 1'. As their charges for the repairs were not settled in full, the plaintiffs retained the vessel pending full settlement. Attempts to resolve the impasse were unsuccessful. On 1 November 1994, the plaintiffs arrested the vessel. They obtained judgement in default and an order for appraisement of sale and sale of the vessel without prejudice to their possessory lien. The vessel was eventually sold on 2 June 1995. On 10 February 1995, the intervener filed a caveat against the payment out of the proceeds of sale and, on 17 February 1995, was granted leave to intervene the action. The proceedings herein were commenced by the plaintiffs for the purpose of determining the priorities in respect of the sale proceeds, in particular whether the plaintiffs' claim as repairers had priority over the intervener's claim as mortgagors. The intervener argued that by causing the vessel to be sold, the plaintiffs had lost their possessory lien.

Held, in favour of the plaintiffs: (1) the arrest of a vessel over which a repairer had a lien would not, by itself, result in the loss of the repairer's lien; (2) where a vessel subject to possessory lien was arrested and sold at the instance of a third party, the right of the holder of the possessory lien was preserved by transferring the lien holder's rights from the vessel to the proceeds of sale; (3) the possessory lien would be lost only if the lien holder waived it, abandoned it or obtained alternative security of a kind inconsistent with the lien. Here, the plaintiffs clearly had no intention whatsoever of abandoning their possessory lien. The plaintiffs, in applying for the order for appraisement and sale without prejudice to their possessory lien, were not taking any steps that were derogative to the lien. To the contrary, their conduct was consistent with them wanting to preserve their lien; (4) (per curiam) a party desiring to object to any application to court for a sale 'without prejudice to the possessory lien' should have done so at the time the order was applied for, or, if he was not then a party to the action, he should have taken steps to set aside that order. Since the interveners had taken no steps to have the order of sale made by the court earlier set aside, this court was bound to recognize and give effect to that order.

'The Dwima 1'; Pan-United Shipyard Pte Ltd v Owners of the Ship or Vessel 'Dwima 1' (First Leasing (Panama) SA, first interveners) [1996] 2 SLR 670 High Court, Singapore (S Rajendran J).

P lent RM2,000 to C. A written agreement was entered into whereby C secured the transfer of two cars to P upon non-repayment of the loan. C later sent his two cars to D for repairs. Subsequently C transferred the two cars to P, in satisfaction of the debt of RM2,000. Within three months of the transfer C went bankrupt. P requested the return of the cars from D. D consented to do so only if the payment for repairs carried out by him on the cars was made. P refused payment. D stopped work on one of the cars, the other having been repaired. D claimed a lien on the cars against P for the work done.

Held: (1) the transfer of ownership does not extinguish a right of lien which has arisen; (2) a lien arises even if the work to be done is not completed provided that such non-completion is due to the conduct of the owner. Thus D had a right to retain the motor cars as against P.

Chua Heng Huat v Soo Ah Loke [1958] SCR 38 Supreme Court, Sarawak, North Borneo and Brunei

The master, officers and crew of the SS 'Hong Ho' sued the vessel in rem to recover sums due to them in respect of wages. The vessel was also subject to a mortgage in favour of the Lee Wah Bank, Limited. The vessel was sold by order of court and the proceeds were paid into the court subject to all priorities. It was admitted that the lien would take priority over the wages claimed as this was for a period subsequent to the dry docking, and also over the mortgage. The question was whether the company had successfully proved its possessory lien.

The Master, Officers and Crew of SS 'Hong Ho' v The SS 'Hong Ho' [1929] SSLR 22 High Court, Straits Settlements (Sproule Ag CJ).

By a bill of lading for goods shipped, 'freight to be paid at port of shipment one month after sailing, vessel lost or not lost,' the shipowner or master does not lose his lien for freight unpaid, although credit is thus allowed and a fixed and distant day named. The mere making of an agreement for freight, does not exclude the right of lien, unless it postpones the time of payment until after delivery of the goods or its terms are clearly inconsistent with such a right.

Guthrie & Anor v McKie [1849] SLR Leic 414 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Rawlinson R).

Courts of law, for the benefit of commerce, have always had a leaning in favour of the right of a shipowner to a lien for freight, on goods shipped on board his vessel, and with that object, where a vessel is let on charter, draw a distinction between cases where the ship itself is let out, (in which case possession of the ship is parted with, and there is no lien on the part of the shipowner), and cases where the mere carriage, or space of the ship is let out, (in which case the owner still retaining possession of the ship, retains a lien for freight). The language of the charterparty must be very strong, in order to exclude, under any circumstances, the lien of the shipowner; mere words of letting and hiring appearing therein, will not themselves do so, where the other provisions show they are used as mere words of contract for the capacity of the ship, and not a demise of the entire hull.

D'Almeida & Anor [1856] 1 Ky 109 Court of Judicature of Prince of Wales'ÊIsland, Singapore and Malacca (McCausland R).

The freighter of a vessel purchased goods from the plaintiffs and they by his order and on his account and risk consigned them to the place of destination and agreed to take a specified return cargo or failing that, Manilla Sugar at certain prices on the return of the vessel, all in 5 months. Sugar was shipped by the consignees to the plaintiffs on the freighter's account and the price debited against the freighter. In letters from the freighter to the plaintiffs, he only recognized their right to hold the sugar as security for their claims and they took no steps during the voyage to treat them as their own.

Held: the freighter must be considered the owner of the sugar and they came into the shipowner's hands as his and they had therefore a lien upon the sugar, for the gross amount of freight due to them under the charterparty.

Boustead & Ors v Clarke & Ors [1835] SLR Leic 391 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Gambier R).

An administratrix sued her attorney to recover trust money in his hands. Certain sums admitted by the defendant had been paid into court. The solicitor for the administratrix in the suit claimed a lien for his costs on the fund in court.

Held: solicitor is entitled to a lien for his costs on a fund in court which has been recovered in a suit; the fact that the fund is a trust fund, makes no difference.

Lye Pin Neo v Seow Yen Boo [1876] 2 SLJ 40 High Court, Straits Settlement (Sidgreaves CJ).

Salt v Mohammedan and Hindu Endowments Board [1941] MLJ 220 Court of Appeal, Straits Settlements (McElwaine CJ (SS).

Where in an action for the administration of a testator's estate a sum of money has been proved, through the exertions of the solicitor of one of the parties, to be due by the executors to the estate, the mere fact that his client's share of such moneys is more than covered by the amount the client has drawn from the estate, so that the client himself benefits nothing by the action, does not prevent such moneys being 'money or property recovered or preserved' by the instrumentality of the solicitor within the meaning of the English Solicitor's Act, 1860, s 28, and the Courts Ordinance III of 1878, s 52, cl 5. The solicitor's claim for costs for such services is the nature of salvage, and is generally to be preferred to all others; and a charging order on such moneys in favour of the solicitor will be made less any amount he may have received from his client. Where the party who owes the moneys so 'recovered or preserved' himself has a judgment in another action against the client of the solicitor through whose efforts such moneys have been recovered or preserved the court, on an application by such party, to be allowed to set off his judgment, against the amount of costs awarded to the client of the solicitor, has a discretion under Order LXV, r 14, whether to allow the set off absolutely, or only subject to the solicitor's lien on the amount of costs awarded his client and the court will not deprive the solicitor of such of his lien by permitting the set off, merely on the ground that the applicant's judgment against the client is prior in point of date to the employment of the solicitor by the client. The court, in exercise of its discretion, will only deprive the solicitor of his lien where he has been guilty of misconduct.

Wee Teng Kay v Lim Cheng Way & Ors [1905] 9 SSLR 103 High Court, Straits Settlement (Cox CJ).

The law with regard to a solicitor's lien on moneys in court is the same as in England and the court has jurisdiction to protect the interests of solicitors. If the fund is paid out to another party, he is liable to be ordered to restore it even though he acted bona fide and without notice of the solicitor's lien for costs. No notice is necessary, everyone is taken to know that a fund in court is subject to the solicitor's lien.

Ex parte Wagner [1908] 2 FMSLR 10 Court of Appeal, Federated Malay States (Braddell JC and Woodward JC).

Work and labour done or money expended by one man to preserve or benefit the property of another do not create any lien upon the property saved or benefitted, nor, even if standing alone create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs.

Tan Eng Hoe v Liang Hooi Kiang [1961] MLJ 119 Court of Appeal, Kuala Lumpur (Thompson CJ, Hill JA and Ong J).

Proceedings before a Collector under s 184 of the Probate and Administration Enactment 1920, come within the definition of 'suit' in s 3 of the Limitation Enactment 1896.

Kutai v Taensah [1933-34] FMSLR 304 Court of Appeal, Federated Malay States (Mudie J).

The defendant managed a theatrical company and was the paid servant of one Che Mah who died before action. His salary was at the rate of RM120 a month and he drew advances of RM3.50 a day in addition to occasional loans. The plaintiff sued as administrator of Che Mah for the balance of RM2,813.58 being money lent from time to time in excess of defendant's salary. On 11 May 1920, a balance was struck in an account stated, and a promissory note for RM400 was signed by defendant on 5 June 1920. The plaint was filed on 4 September 1924. The defendant pleaded limitation, but the plaintiff alleged that the defendant had been absent from the state from 3 November 1921, to August 1924.

Held, by the trial judge (Sproule Ag CJC): (1) the suit was prima facie barred; (2) art 67 (mutual open current account) did not apply; (3) as the defendant was either in the Colony or the Federated Malay States during the three years prior to the action and the plaintiff always knew where to serve him, the proviso in s 13 applied; (4) s 9 (continuous running of time) does not qualify s 13; (5) as there had never been either any payment by the defendant, or any transaction whereby he was consciously credited instead of being paid, the doctrine of appropriation of payments ie (Contract Enactment s 59, 60 and 61) did not apply.

Daud v Abu Bakar [1924] 5 FMSLR 110 Supreme Court, Federated Malay States (Sproule Ag CJC).

Daud v Abu Bakar [1924] 5 FMSLR 110 Supreme Court, Federated Malay States (Sproule Ag CJC).

The plaintiff sued for partnership accounts as administratrix of PRMN Narayan Chettiar, deceased. In April 1927, deceased had entered into the partnership with the three defendants. He died intestate on the 29 February 1932, and letters of administration were granted to the plaintiff on 22 August 1938. For the defence it was alleged that the partnership was dissolved in 1932 by the death of the deceased, and therefore the suit was barred under art 86 of the Limitation Enactment (Cap 18).

Held: (1) if the answer is no, it does not apply'; (2) in the application of s 16(i) of the Limitation Enactment the test is 'Could the deceased, if alive have brought the suit? If the answer is yes, the section applies;the right to demand accounts of a partnership is inherent in a partner. He can always exercise such right and sue for accounts whether or not he also seeks dissolution. Such right accrues from day to day and descends to the personal representative of a deceased partner. The period elapsing between the date of death and the date of appointment of a representative therefore does not count by reason of s 16(i) of the Limitation Enactment.

Theivanai Achi v MM Kathirasen Chettiar & Ors [1941] MLJ 128 High Court, Federated Malay States (Gordon Smith J).

The plaintiff sued the defendant for an account of moneys received by the deceased as agent of the plaintiff while managing the plaintiff's rubber estate. The defendant pleaded, inter alia, limitation, relying on art 71 and/or art 72 of the Schedule to the Limitation Enactment (Cap 18). At a date more than three years prior to the date when the action was commenced, the deceased had fraudulently procured a transfer of the plaintiff's land to himself. It was submitted on behalf of the plaintiff that prior to the fraudulent transfer the profits had been rightly received by the deceased and that art 97, under which the term is six years, was therefore the article applicable.

Held: as the deceased had committed an act of gross misconduct as an agent, the case fell within art 72 of the Limitation Enactment (Cap 18) and the time should run at the latest from the date of the grant to his legal personal representative.

Juman Khan v The Registrar, Supreme Court, Johore, as Administrator of the estate of Hamid Dollah Khan [1931] 1 JLR 52 High Court, Johore (Thorne J).

When a partnership is dissolved by death a right of action for account and a share of the profits of the dissolved partnership accrues on the dissolution. By virtue of s 16(2) and art 86 of the ordinance, the right of the surviving ex-partners to such an account and share, against the legal representative of the deceased partner is not barred until expiry of three years running from the time when there is a legal representative of the deceased.

Cheo Cheng Kee v Toh Kim Yan [1930] SSLR 56 High Court, Straits Settlements (Murison CJ).

This appeal arose out of an action in which the plaintiffs claimed S$1,336.35, being the balance of the price of goods sold and delivered to the defendants. The appeal was brought by the plaintiffs and concerned the defendants' counterclaim for S$690,377.66 on a running account. The defence to the counterclaim was that the defendants owed to the plaintiffs S$11,846 on the running account. On 24 April 1967, the plaintiffs amended their defence to the counterclaim by pleading limitation. The trial judge held that a claim on a running account was a cause of action known to the law, and ordered that the registrar take an account of all transactions on the running account between the defendants and the plaintiffs from 14 May 1951 to 31 November 1962, and kept in the books of Gian Singh and Co and Gian Singh & Co Ltd. The plaintiffs appealed against the decision of the trial judge on four grounds including the following (a) the learned trial judge erred in permitting the defendants to put forward a counterclaim for the amount due on a running account which was not a cause of action known to the common law; (b) the learned trial judge erred in finding that the plaintiffs' defence of limitation failed by reason of part payments made by the plaintiffs to the defendants on account generally. Such part payments were not pleaded by the defendants in their reply to the defence to counterclaim.

Held, dismissing the appeal: (1) the amount due on a running account is a cause of action known to the common law; (2) the learned trial judge was perfectly right in applying the case of Re Footman Bower & Co Ltd [1961] 2 All ER 161 and deciding against the plaintiffs on the issue of limitation.

Bajaj Textiles Ltd v Gian Singh & Co Ltd [1968] 1 MLJ 279 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Ambrose J).

This was an appeal from the decision of the Federal Court ([1968] 1 MLJ 279). In 1951 and 1952 the appellants had taken over the rights and liabilities of the firm Bajaj Textiles, and the respondents had taken over the rights and liabilities of the firm Gian Singh and Company. The appellants were the plaintiffs in the action which they commenced against the defendants (respondents) on 19 July 1963, claiming the sum of RM1,336.35 as the balance of price of goods sold and delivered after giving credit for certain items. The defendants (respondents) alleged a set-off and counterclaim for the sum of RM690,377.66 as the balance in their favour on a running account. The learned trial judge decided in favour of the defendants and made an order that the registrar take an account of all transactions between the parties on the running account. The plaintiffs appealed to the Federal Court and their appeal was dismissed but they were granted leave to appeal to the Privy Council on 7 June 1968 and lodged their appeal asking for judgments of the trial judge and the Federal Court to be set aside and for a new trial to be ordered. The respondents did not oppose the appeal nor were they represented. In the appeal before their Lordships of the Privy Council it was contended that there was no such claim known to the law as a claim on a running account. Another contention of the plaintiffs/appellants was that the defendants' counterclaim was wholly or mainly barred by limitation under the Limitation Ordinance 1959. Their Lordships had no doubt that there ought to have been in the defendants'/respondents' reply an express allegation of part payments in respect of the outstanding balance. The question was whether this defect of the pleading was a sufficient ground for setting aside the judgment and ordering a new trial.

Held, dismissing the appeal: (1) there were mutual dealings between the parties and payments from time to time on account of the outstanding balance. Such payments were within the meaning of s 26(2) of the Limitation Ordinance 1959 part payments 'in respect' of the outstanding balance, and so time started to run afresh on the occasion of each payment; (2) it appeared that both the learned judge and the Federal Court had in mind the state of the pleadings, and the Federal Court had specifically in mind the lack of an express allegation by the respondents/defendants of part payments on account of the outstanding balance. In proceeding to decide on the facts of the case, notwithstanding the defect in the respondents' pleadings, that the plea of limitation was defeated by such part payments, they were exercising a discretion. In all the circumstances, their exercise of the discretion seemed reasonable. Their Lordships were not persuaded that the discretion was not judicially exercised or that there was any miscarriage of justice.

Bajaj Textiles Ltd v Gian Singh & Co Ltd [1971] 2 MLJ 133 Privy Council Appeal from Malaysia (Lord Donovan, Viscount Dilhorne and Lord Pearson).

An account may be mutual, open and current within the meaning of art 67 of the Limitation Enactment (Johore) 1915, although the balance has been in fact always on the same side. When a firm sells rubber on commission and makes advances covering roughly the value of the consignments of rubber it will be presumed that such advances have been demanded within the meaning of the article. 'Reciprocal demands' in the article are not to be taken to mean literally 'requests for payment on both sides', but the dealings must have been such that there was at least a possibility of shifting balance, so that at different times either party might have been in a position to demand payment from the other.

Teck Choon & Co v Seah Neo Huang [1922] 5 FMSLR 249 Supreme Court, Johore (Brown J).

On 24 June 1985, the plaintiff executed an agreement to purchase land from Sie Chung Tung Housing Development ('the agreement'). The agreement was prepared by the defendant, a solicitor. Subsequently it was discovered that the land had already been charged and caveated by third parties. On 18 September 1991, the plaintiff took out a writ against the defendant. The plaintiff claimed damages for the alleged negligence of the defendant in preparing the agreement. The defendant applied to strike out the plaintiff's statement of claim on the ground that the action was instituted after the expiry of the limitation period. The senior assistant registrar dismissed the application and the defendant appealed to the High Court. The senior assistant registrar decided that the issue relating to the commencement of the limitation period, was a question of fact which could only be determined at the trial by calling witnesses. The plaintiff submitted that the limitation period commenced from the date of the damage. The plaintiff therefore contended that he had suffered damage on 24 September 1985 when Sie Chung Tung Housing Development refused or failed to deliver the land under the agreement.

Held, allowing the appeal: (1) when the defence of limitation is raised, the burden of pleading and proving that the action is brought within the limitation period shifts to the plaintiff; (2) the issue relating to the commencement of the limitation period could be resolved by a detailed examination of the writ, the statement of claim and defence as well as the relevant affidavits; (3) the action in this case involved a case of negligence and therefore fell under para 97 of Part 4 of the Schedule to the Limitation Ordinance (Cap 49) (Sarawak) in which the limitation period was six years from the accrual of the right to sue; (4) there was a distinct disadvantage suffered by the plaintiff as a result of the alleged negligent act of the defendant from the moment of execution of the agreement. In the circumstances, the plaintiff's right to sue accrued on 24 June 1985 and he had therefore brought this action more than six years after the accrual of his right to sue. The plaintiff was accordingly barred by virtue of s 3 and para 97 of Part 4 of the Schedule to the Ordinance; (5) the statement of claim was thus struck out on the ground that it was frivolous, vexatious and an abuse of the process of the court.

Ong Ah Bee v Hii Chung Siong, Robin [1993] 1 CLJ 504 High Court, Sibu (Steve Shim J).

In this case the plaintiff brought an action for damages for negligence arising from a road accident between a military truck and a taxi in which the plaintiff was a passenger. Subsequent to the action by the plaintiff, the defendants brought in the driver of the truck and the Government of Malaysia as third parties and sought contribution or indemnity from them. The third parties sought to rely on the Public Authorities Protection Ordinance, as they were brought in more than a year after the collision.

Held, dismissing the plaintiff's claim: (1) on the facts, the driver of the military truck was wholly to blame for the accident and the action of the plaintiff against the defendants must therefore be dismissed; (2) the third parties were brought in, in order to call upon them to make contribution or indemnity if the defendant was found to be liable. Since it had been found the defendant was not liable, the third parties were also not liable; (3) assuming that the defendant was liable in part for the accident, the third parties were also liable, as the cause of action against them accrued only on the finding of the liability against the defendant. They could not therefore claim that the period of limitation had expired.

Hassan bin Mat Saman v Tengku Mat & Anor; Abdullah bin Haji Daud & Ors (Third Parties) [1975] 4 MC 287 High Court, Kota Bharu (Abdul Razak J).

Asia Commercial Finance (M) Bhd v Leong Choong Shin [1997] 5 MLJ 17 High Court, Kuala Lumpur (Kamalanathan Ratnam JC).

Kuala Lumpur Finance Bhd v Yau Jiok Hua & Anor Suit No D4 23-1604-88 High Court, Kuala Lumpur (Low Hop Bing J).

In this case, the parties had entered into a sale and purchase agreement in respect of a piece of land and the respondents had agreed to build for the appellants a shophouse on the said land subject to certain terms and conditions, including a condition that if the said building is not completed and ready for delivery within 18 months of the date of the agreement the vendor has to pay to the purchaser agreed liquidated damages calculated from day to day at the rate of 8% per annum on the purchase price from the date of the agreement to the date of actual completion and delivery of the building. There was a delay in completing the shophouse. Instead of obtaining possession on 18 September 1975 as agreed, delivery of the shophouse was only made more than two years later on 7 November 1977. The appellant did not make any demand for payment of liquidated damages until 21 September 1980. The respondents refused to pay and the appellant brought an action against the respondents. The writ was filed on 9 September 1982. The only issue in the case was whether the appellants' claim was statute-barred by virtue of s 6(1) of the Limitation Ordinance 1953. The senior assistant registrar thought that the writ filed on 9 September 1982 was within time and he gave summary judgment in favour of the appellant. On appeal to the High Court it was held that the time started to run from 18 September 1975 and that the writ should had been filed on or before 17 September 1981. The learned judge allowed the respondent's appeal and set aside the summary judgment. The appellant appealed.

Held: (1) the learned judge was right in holding that the cause of action was founded on a breach of contract. The breach committed by the respondents was in respect of their failure to complete and give vacant possession of the shophouse within 18 months of the date of the agreement. The appellant should have filed the action within six years from the date on which the cause of action accrued that is on 18 September 1975 and the learned judge was right in allowing the appeal and dismissing the claim; (2) the appellant was wrong in thinking that her writ could not be issued until 7 November 1977 because the liquidated damages could not be quantified. The agreement provided that such damages were to be calculated on a day to day basis from the date of breach with the date of actual completion to be used for the purpose of calculating the maximum days claimable. Damages could therefore be ascertained under the agreement and in this case if the statement of claim had been filed on or before 17 September 1981, no court would have struck it out as disclosing no cause of action merely because the maximum liquidated damages claimable was not quantified.

Loh Wai Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280 Federal Court, Kuala Lumpur (Wan Suleiman, Mohamed Azmi and Hashim Yeop A Sani FJJ).

In this case the plaintiff alleged that by a 'Jual Beli Sementera' dated 28 June 1951, the defendant undertook to execute the transfer of the land when she obtained it from the estate of her father, the late Sultan Sulaiman. The previous solicitors of the defendant had also written on 14 January 1978 that the defendant was prepared to sign a transfer of the land into the name of the plaintiff. The plaintiff claimed the land and the defence was limitation.

Held: the letter of the solicitors for the defendants was sufficient acknowledgment for all intents and purposes and therefore the plaintiff's claim was not statute-barred.

Halimah bte Abdullah v Tengku Mariah bte Sultan Sulaiman [1980] 1 MLJ 240 High Court, Kuala Trengganu (Mohamed Zahir J).

In this case, the respondent had been granted an overdraft facility in 1963 by the appellant bank and the respondent's father stood surety by charging his lands in favour of the appellant. The last transaction on the account was on 8 September 1965. The account thereafter remained dormant save for the continuing accrual of interest. The estate of the respondent's father, who had died, was administered by the Official Administrator. On 13 January 1973 the appellant made a demand for the repayment of the debt, to which there was no reply. The appellants then commenced foreclosure proceedings under the charge against the Official Administrator as administrator of the estate of the respondent's father. As a result of these proceedings, the appellants received from the estate RM25,000 due in respect of capital and RM8,562 interest thereon. While the appellants' claim was pending, the respondent wrote on 14 January 1974 to the appellant's solicitors requesting postponement of the proceedings brought by the appellants against the estate and stating that he hoped to make arrangements for the Official Administrator to pay the balance owing to the appellants. The appellants commenced proceedings against the respondents on 14 June 1975. The only defence relied on by the respondent was that the claim was statute-barred. In the action the Limitation Ordinance 1953 had been pleaded in the defence but neither in the statement of claim nor in the reply had the appellant bank pleaded any acknowledgment of the debt. However, the letter of acknowledgment by the respondent was put in and admitted in evidence during the trial. The learned trial judge gave judgment in favour of the appellant relying on the letter of acknowledgment given by the respondent. On appeal the Federal Court allowed the appeal, holding that as the letter of acknowledgment had not been pleaded, the respondent was entitled to judgment, because the debt having been statute-barred the statement of claim disclosed no cause of action See [1982] 1 MLJ 64. The appellants appealed.

Held: (1) once the letter of acknowledgment was received in evidence it became part of the total material on which the judge had to decide the case and since the writ had been issued well within the period of six years from the date of the letter, the appellant's claim, if the letter constituted an effective acknowledgment was not statute-barred; (2) the respondent's acknowledgment of the debt due from the estate under the charge by which the draft was secured necessarily implied an acknowlegment of his own indebtedness in respect of the overdraft.

Oversea-Chinese Banking Corp Ltd v Philip Wee Kee Puan [1984] 2 MLJ 1 Privy Council Appeal from Malaysia (Lord Keith of Kinkel, Lord Elwyn-Jones, Lord Bridge of Harwich, Lord Templeman and Sir Denys Buckley).

The four defendants were partners of a firm trading under the name and style of Syarikat Universal Parts Services ('the firm'). The firm owed the plaintiffs a sum of money for goods supplied by the plaintiffs in 1978. The first defendant tendered 14 cheques issued in the name of the firm to the plaintiffs to settle the debt by instalments, and one of the cheques was paid on 14 November 1979. About a year before the 14 cheques were handed over to the plaintiffs, the second, third, and fourth defendants had retired from the firm. The present action was commenced on 22 February 1982, more than three years after the cause of action arose. The limitation period was three years. It was common ground that had it not been for the rendering of the cheques and the cashing of one of them, the action against all the four defendants would have been statute-barred. Judgment was entered against the first defendant by default of appearance. The second, third, and fourth defendants contended that the act of acknowledgment of the first defendant could not affect them because at the time the cheques were given they were no longer partners of the firm and the act was done without their knowledge or authority.

Held: dismissing the claim against the second, third, and fourth defendants: since oral notice of the retirements of the second, third, and fourth defendants had in fact been given to the representative of the plaintiffs at or before the time when the 14 cheques were handed over to him, the act of acknowledgment by the first defendant did not affect the other three defendants.

Jemco Sdn Bhd v Andrew Liau Ka Lieng & Ors [1985] 2 MLJ 119 High Court, Kota Kinabalu (Charles Ho J).

In this case the appellant claimed the benefits due under a staff provident fund. He had admitted being guilty of misconduct as a manager of the bank and had been allowed to retire in April 1967. His benefits under the Staff Provident Fund Scheme were withheld pending settlement of possible claims. The action in this case was brought on 13 August 1974 and the defendants-respondents argued that it was time-barred. The appellant argued that he had received a letter dated 24 June 1971 from the bank which stated in effect that his benefits would be withheld until outstanding claims on overdrafts were settled. The plaintiff-appellant claimed that this letter was an acknowledgment. The appellant's claim was dismissed and he appealed to the Federal Court.

Held, dismissing the appeal: the letter in question was not a sufficient acknowledgment. By it the defendants acknowledged that a claim had been made against them, they did not acknowledge that they were indebted to the plaintiff and even if it was an acknowledgment the debt acknowledged was not quantified in figures nor was it capable of ascertainment by calculation or by extrinsic evidence without further agreement of the parties. To take a demand out of the statute of limitation on the ground of acknowledgment, the language of the debtor must amount to an unequivocal admission of a subsisting debt, that is, subsisting at the time of its acknowledgment.

Wee Tiang Teng v Ong Chong Hooi & Anor [1978] 2 MLJ 54 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

The plaintiffs sued the defendants in 1952 for balance of an account due on 31 December 1941. The defendants claimed the debt was incurred by the earlier proprietor of the firm over twelve years previously and that they were not liable.

Held: (1) the action was an 'Occupation Cause' within the meaning of s 2 of the Occupation Causes Ordinance 1946, and as such was not statute barred by the 6 years limitation period imposed by s 4 of the Debts and Limitation Ordinance (Cap 8 of the Laws) as by s 2 of the Limitation (Special Provisions) Ordinance, No 21 of 1949, the period from 24 December 1941 to 1 February 1950 was excluded in computing the limitation period within which an occupation cause had to be brought; (2) from the evidence of the use of the same 'chop' and from other evidence, it was quite clear that the defendants had accepted liability due to the plaintiffs incurred by the sole proprietor who operated the defendant firm up to 1941.

Kang Ee Beng v Chop Guan Choo Huat [1953] SCR 35 Supreme Court, Sarawak, North Borneo and Brunei

This was an appeal from the decision of the trial court (see [1981] 2 MLJ 303) dismissing the claim by the appellants/plaintiffs against the respondent/defendant for the sum of RM70,454.43 being the unsatisfied portion of a debt owing to the appellants in respect of overdraft and trust receipt facilities secured by a charge on property. The plaintiffs were bankers and they granted the defendant and one Lao Kee Yam trading as Sharikat Alpha Associates overdraft and trust receipt facilities. The overdraft and trust facilities were secured by a registered charge dated 21 November 1969. The said charge was to secure up to RM140,000 the credit facilities granted to Sharikat Alpha Associates. Lao became bankrupt on 25 April 1971. In March 1973 the plaintiffs commenced foreclosure proceedings. In May 1973 the plaintiffs received RM140,000 from the Official Assignee on the understanding that the charge would be discharged by the plaintiffs. The plaintiffs claimed for a further sum of RM70,454.43 under clause 21 of the charge. The learned trial judge dismissed the claim on the ground that the said charge was only stamped up to RM140,000 and in such circumstances, the chargors were only liable up to the amount covered by the stamping and no more. The plaintiffs appealed against the said decision.

Held, allowing the plaintiffs' appeal: (1) the merger of a simple contract debt into a specialty debt depended on the intention of the parties, which is to be gathered from the documents they have signed. Clause 21 of the charge clearly indicated that there was to be no merger and the contractual rights of the plaintiffs as against the defendant were preserved. When the charge was discharged the outstanding indebtedness of the defendant on a simple contract remained; (2) the plaintiffs' claim was not barred by limitation as there was an acknowledgment of the debt by the defendant addressed to the Official Assignee and dated April 1973. A carbon copy of the said letter was sent to the plaintiffs' solicitors by the defendant's solicitors who had the authority to act on the defendant's behalf. The said letter constituted a good acknowledgment within the Limitation Act (Cap 10, 1970 Ed).

Bank of America National Trust Savings Association v Cheong Hoon Chong [1983] 1 MLJ 285 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Chua JJ).

The respondent had acknowledged that a sum of RM100,000 was due to him under a deed of compromise dated 24 April 1967, made between him and the appellant. When the terms of the deed of compromise were not complied with, the appellant instituted proceedings on 11 April 1974 to recover the sum. The defence was limitation and the learned Judicial Commissioner held that the action was time-barred. At the trial the appellant adduced evidence that he and the respondent had entered into an agreement on 23 March 1976 in India and under that agreement the appellant had undertaken that upon payment of RM90,000 to him within a period of nine months he would withdraw his suit for RM100,000. The acknowledgment was not pleaded in the statement of claim or in the reply.

Held, allowing the appeal: although the claim was statute-barred on 11 April 1974 there had been an acknowledgment of the debt in 1976 and although the acknowledgment was not pleaded in the statement of claim or the reply, the case had been satisfactorily presented and developed in the proceedings before the High Court and there were materials on the record from which a decision to that effect could be arrived at.

KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

The plaintiff in this case sued the defendant for RM44,250.72 being the amount due and payable to the plaintiff on a current account. The defendant was on or about 2 October 1963 granted overdraft facilities by the plaintiff and the amount then granted to the defendant was up to RM25,000. The account became dormant since 1965 and interest at 10.8% per annum began to accumulate. The overdraft was secured by a charge executed by the defendant's father, since deceased, of a piece of land up to the limit of RM25,000 and interest. The present claim, which was commenced on 15 June 1975, was for the balance of the amount due after deducting the amount due from the estate of the defendant's father, the guarantor. The issue before the court was whether the plaintiff's claim was statute-barred. A letter dated 14 January 1974 was written by the defendant addressed to the plaintiff's solicitors requesting 'for a postponement of the application to a date sometime in the middle of March 1974 so as to enable (him) to raise as initial payment to OCBC Ltd, Kota Bahru a sum of about RM25,000'.

Held, allowing the plaintiff's claim: (1) the defendant's letter dated 14 January 1974 revived the time for suing by the plaintiff and started time to run afresh; (2) all that is necessary for an acknowledgment which takes the case out of the statute is that the debtor should recognise the existence of the debt, or that the person who might rely on the statute should recognise the rights against himself; (3) the acknowledgment need not even contain a promise to pay and it is immaterial that the amount of the debt is not expressed in the acknowledgment or that the correctness of the amount claimed is disputed in the acknowledgment.

Oversea-Chinese Banking Corp Ltd v Phillip Wee [1981] 2 MLJ 83 High Court, Kota Bharu (Mohamed Zahir J).

The plaintiffs brought an action to recover damages for personal injuries in respect of a road accident. The defendants in their defence pleaded that the plaintiffs' claim was barred by limitation by virtue of s 8(3) of the Civil Law Ordinance 1956. In their reply, the plaintiffs alleged that there had been an acknowledgment of liability. The defendants applied for the plaintiffs' statement of claim to be struck out on the ground that it disclosed no reasonable cause of action.

Held: the acknowledgment should have been pleaded in the statement of claim and as this was not done, the application for the statement of claim to be struck out must be allowed.

Mat bin Lim & Anor v Ho Yut Kam & Anor [1967] 1 MLJ 13 High Court, Raub (Raja Azlan Shah J).

Tengku Ali ibni Almarhum Sultan Sulaiman v Kerajaan Negeri Terengganu Darul Iman [1996] 4 MLJ 374 High Court, Kuala Terengganu (Abdul Malek J).

Straits Settlements Ordinance No 6 of 1896, which deals with the limitation of suits, provided as follows: s 17(1) 'When a person who would, if he were living, have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application'. Section 22: 'When, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party ...'.

Held: (1) the executor of a will capable of probate in the Colony is a legal representative capable of instituting a suit, within the meaning of s 17(1) from the date of the testator's death and not only from the date when he obtains probate: Quaere as to an executor who renounces probate; (2) according to the English practice (which is made applicable in the Colony in the absence of any other provision), the will of a testator domiciled in British India, or elsewhere outside the Colony, although not proved in the place of the testator's domicile, is capable of probate in the colony if (a) it is valid according to the law of the testator's place of domicile, and (b) if there are assets of the testator in the Colony; (3) s 22 contemplates cases in which a suit is defective by reason of the right persons not having been made parties, but not cases in which the suit was originally properly constituted but has become defective owing to a devolution of interest; in the latter circumstances a carrying-on order should be made under s 169 of the Civil Procedure Ordinance No 31 of 1907.

Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603 Privy Council Appeal from the Straits Settlements (Earl Loreburn, Lord Atkinson, Lord Parker of Waddington and Lord Sumner).

It was alleged, but not admitted, that the defendant KMH had, prior to 1917, carried on a business in Singapore as agent for and on behalf of LJH, who lived in India. In 1917 LJH died. The business which had been carried on in the name of KMH, was continued by him. Representation to the estate of LJH was granted to the first plaintiff in 1925, and to both plaintiffs jointly in 1926. In 1926 the plaintiffs instituted this suit for a declaration, accounts, and payment. The defendant raised a plea of limitation, and the question was argued as a preliminary point.

Held: (1) at that stage of the proceedings the question whether the agent was also a trustee within the meaning of s 9 of Ordinance No 56 (Limitation), could not be determined as the facts were not sufficiently before the court; (2) s 16(1) did not apply so as to prevent the suit from being barred by the ordinance because the cause of action, if any, would have arisen in the lifetime of the deceased.

Aisama v Kavena Mohamed Hussain [1928] SSLR 45 High Court, Straits Settlements (Deane J).

The court will look at the substance of an action rather than its form or the remedies actually prayed for, to ascertain the period of limitation applicable thereto. In a suit by beneficiaries under a will (who have not received their shares and legacies from the testator's estate) claiming in respect of breaches of trust, wilful default, and administration of the estate, against the executor and a person to whom the trust property had been assigned under circumstances which make him liable as an express trustee the period of limitation applicable is 12 years, under art 99 of the Limitation Ordinance (Cap 16), for such an action is in substance a suit for a legacy or share or residue under the will. An acknowledgment by an executor of his duty to account in the ordinary way is not such an acknowledgment as will operate as the beginning of a new period of limitation in an action against him for breach of trust or accounts on the footing of wilful default. An action by a beneficiary against an executor who has received the testator's property and disposed of it, for the purpose of making him account for such property, and hand over to the plaintiff what may be found due as the result of the account, is a suit which cannot be barred by any length of time under the Limitation Ordinance. If a stranger to the trust receives trust property under a breach of trust in which he concurs with the trustee, he must himself be treated as an express trustee and a suit against him for such property would not be barred by any length of time.

Re Yap Teck Hee [1940] MLJ 122 High Court, Straits Settlements (Manning J).

The administrator of a deceased person had land belonging to the estate transferred to him in his own name and not as representative of the deceased.

Held: (1) as the beneficiaries were not aware of the fact that the land was registered in the name of the administrator time began to run only from the date such fraud came to their notice; (2) applying equitable principles the court will not permit an express trustee to rely on the Kedah Enactment No 60 (Limitation), at least until six years after the beneficiaries are, or ought reasonably to have been, aware of the breach of trust on which they desire to sue, whether such breach is or is not fraudulent.

Ah bte Bakar v Itam bin Sa'ad [1952] MLJ 66 High Court, Alor Star (Briggs J).

This was an appeal from the decision of the Federal Court reported at [1981] 2 MLJ 139. The deceased, a Chinese, had married the first appellant according to Chinese custom. Subsequently the deceased married the first respondent according to Buddhist rites and the marriage was registered under the Registration of Marriage Enactment (FMS Cap 111). In the registered particulars of the marriage, it was stated in effect that the husband had no other wife living. The deceased died on 22 December 1960. After his death, the respondent received regular monthly payments of RM300, increased to RM700 from 1972 onwards. The payments ceased in 1975. When the payments ceased, the first respondent took legal advice and as a result she and the other respondents instituted proceedings against the appellants as administrators of the estate of the deceased. The relief sought included declarations that the first respondent and the other respondents were respectively the lawful widow and the lawful issue of the deceased and entitled to share in his estate. When the case came before the High Court, one of the issues was (a) whether the respondent's claim was time barred under the provisions of the Limitation Ordinance 1953. Suffian LP sitting as a High Court judge, decided both issues in favour of the respondents and granted the declarations sought. The appeal to the Federal Court was dismissed and the appellants appealed.

Held: in this case, time did not begin to run under s 23 of the Limitation Ordinance 1953 in respect of the respondent's claim until the date of the last payment in 1975. It followed that the respondent's action was raised well within the limitation period.

Lam Wai Hwa & Anor v Toh Yee Sum & Ors [1983] 2 MLJ 302 Privy Council Appeal from Malaysia (Lord Keith of Kinkel, Lord Elwyn-Jones, Lord Scarman, Lord Brandon of Oakbrook and Lord Brightman).

The question raised in this appeal was whether the limitation period of six months prescribed by s 4(iii)(b) of the Civil Law Enactment 1937, begins to run on the appointment of an administrator in England, or does not begin to run until, by resealing of the letters of administration or otherwise, a personal representative is appointed in the Federation. Section 4(iii)(b) reads as follows: 'The cause of action arose not earlier than six months before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation'.

Held: the words 'not later than six months after his personal representative took out representation' must be construed as referring to representation in the Federation.

Re Walker, deceased [1953] MLJ 71 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Briggs JJ).

A Chinese resident in the Straits Settlements who died in 1882, provided by his will that a specified share of his residuary estate should be 'kong lin' (a Chinese expression meaning rotation in common) for yearly and other sacrifices, and that upon the expiration of 16 years from his death it should become his sons' and grandsons' 'kong lin' for sacrificial purposes. On 25 February 1916, one of the next-of-kin sued the trustees, claiming to avoid the gift of the share and to recover as upon an intestacy in respect of it. Accounts had been prepared by the executors on 15 January 1904, in which a full and proper allocation of the share in accordance with the will was provided for. By the Limitation of Suits Ordinance (VI of 1896), sch II, art 99, the period of limitation in the case of a suit for a distributive share of the property of an intestate is 12 years from the period when the share becomes payable. By s 10 '... no suit against a person in whom property has become vested in trust for any specific purpose ... for the purpose of following in his ... hands such property shall be barred by any length of time'.

Held: s 10 of the ordinance did not apply to the suit, and that the period when time began to run was not postponed till a court had avoided the trust; and consequently that the suit was barred by art 99, whether time ran from the date of the testator's death, from 16 years after his death, or from the time when the estate was ready for division. In s 10 'a specific purpose' means a purpose which is either specifically defined in the will or settlement itself, or a purpose which, from the specified terms, can be certainly affirmed.

Khaw Sim Tek and Ors v Chuah Hooi Gnoh Neoh [1922] 1 AC 120 Privy Council Appeal from Straits Settlements (Lord Buckmaster, Lord Atkinson and Lord Carson).

The respondent was administrator of the estates of two deceased who had died intestate, the appellant and respondent being entitled to share in the estates. Letters of administration were granted in 1927. The form of family settlement was achieved in 1933. Appellant was then seven years old and not party to the settlement. He came of age in 1944 and from 1946, was aware that he was entitled to land comprised in the administration. In 1959, his grandmother, who had assumed control of some of the property, died and in 1960, the appellant brought the present proceedings by way of originating summons.

Held: (per Ainley CJ, and Briggs J, Rogers J dissenting) the action was substantially an action for a distributive share of the property of a deceased and fell under item 99 of the Schedule to the Limitation Ordinance and was statute-barred. Per Rogers J: 'The property had become vested in the respondent for a specific purpose and the action therefore fell within s 9 of the ordinance and was not statute-barred.'

Ting Ing Kee v Teng Kah Eng [1960-1963] SCR 61 Supreme Court, Sarawak, North Borneo and Brunei

Che Ning, Raja Perempuan of Rahman, died on 10 September 1916, leaving a will by which she purported to bequeath the whole of her property to Tuan Man and Tuan Jerneh as the lawful children of her son Long Rai Pakdi. Long Rai Pakdi died about the year 1902. Haji Lateh represents the estate of Abdullah, a half-brother of the Raja Perempuan. On 15 December 1924, the Official Receiver, Perak, was appointed receiver to collect all moneys payable to Tuan Man and Tuan Jerneh in respect of their share in the estate of Raja Perempuan. On the same date Haji Lateh filed a plaint against Tuan Man and Tuan Jerneh claiming that under Mohammedan law as they are not the children of Long Rai Pakdi the bequest of the Raja Perempuan to them, except as to one-third, was void; and that the two-thirds should be distributed as on an intestacy among the next-of-kin of the Raja Perempuan. The Official Receiver was added as defendant at his own request by order dated 6 April 1925. He filed his defence on 6 May 1925, pleading, inter alia, limitation. The defence had not been raised by the first and second defendants.

Held, the suit was a claim for a distributive share of the property of an intestate and the limitation period was 12 years under art 99 of the Second Schedule.

Haji Lateh v Tuan Man [1926] 6 FMSLR 88 Court of Appeal, Federated Malay States, (Farrer-Manby, Reay and Acton JJ).

Juman Khan v The Registrar, Supreme Court, Johore, as Administrator of the estate of Hamid Dollah Khan [1931] 1 JLR 52 High Court, Johore (Thorne J).

The plaintiff, a daughter of the deceased, commenced proceedings in 1966, as administratrix of the estate of the deceased for the administration of the estate. She claimed, inter alia, for a declaration that the share in the partnership property which she alleged had fallen into the hands of her two brothers as a result of their intermeddling with the deceased's estate, were held in trust for the estate, and for the recovery of her due share in the estate of the deceased. The defendants, (the second son of the deceased, and the executors of the first son) alleged that the partnership property was given to them by the deceased during his lifetime as a gift inter vivos and denied that they had intermeddled with the deceased's estate and pleaded the defence of limitation, or alternatively, laches and acquiescence.

Held: (1) the defence of limitation failed as it was not possible to ascertain definitely the date the plaintiff first knew of the deceased's share in the partnership; (2) in the circumstances of the case the plaintiff was guilty of laches and acquiescence.

Ong Ah Goh v Kuan Keh Lan & Ors [1968] 2 MLJ 57 High Court, Ipoh (Chang Min Tat J).

In this case, the deceased died in 1918 leaving land in Kedah. No application for letters of administration was made but close relatives of the deceased continued in occupation of the property. In 1948 the plaintiff sought and obtained letters of administration. At this application the defendant and some of the other relatives were present but raised no objections. The plaintiff brought the action to obtain a surrender of the deeds and for accounts. To this the defendant raised the preliminary issue of limitation, pleading s 26 of the Kedah Enactment No 60 (Limitations).

Held: s 26 of the Limitation Enactment does not apply with regard to a suit whose object is the distribution of an estate by an administrator whose appointment was presumably with the assent of the defendant and in order to distribute the estate.

Din v Som [1949] MLJ 233 High Court, Kedah (Callow J).

An administrator of the estate of an intestate or an attorney of such an administrator is 'a person in whom property has become vested in trust for a specific purpose' within the meaning of s 9 of Ordinance No 56 (Limitation).

Chokalingam Chettiar v Kasivisvanathan Chettiar [1935] MLJ 45 Privy Council Appeal from the Straits Settlements (Lord Atkin, Lord Alness and Sir Rodney Rowlatt).

The appellant claimed (a) the balance of his share in the estate of his deceased father and (b) the balance of the sum kept in a trust account by his father in an account under the name of 'Gim Kee'. The respondents the trustees claimed a right to set-off and counterclaim based on estate duty paid out of the estate in respect of inter vivos gifts to the appellant and by the third defendant in respect of the share of the appellant in moneys in the Gim Kee account. It was argued on behalf of the appellant that the estate duty was paid without his knowledge, consent or request and that it was paid under a mistake of law and therefore not recoverable. It was also contended that the defendant's right to recover the estate duty was barred by limitation. The learned trial judge gave judgment in favour of the respondent on the set-off and counterclaim. The appellant appealed.

Held: (1) in this case, the finding of the learned trial judge that the appellant knew and acquiesced in the payment of the estate duty must be accepted and therefore on the evidence in this case, even though the payment of estate duty was a mistake of law, the circumstances of the case render it inequitable that the appellant should be allowed to retain the benefit of the payment; (2) the claim of the respondents in this case was not statute-barred.

Re estate of Choong Lye Hin, deceased; Choong Gim Guan v Choong Gim Seong [1977] 1 MLJ 96 Federal Court, Penang (Suffian LP, Lee Hun Hoe CJ (Borneo).

In this case, the respondents alleged that they had advanced to one Ratnavale (since deceased) the sums of (a) RM29,500 paid on 20 December 1966 by a United Commercial Bank cheque and (b) RM250,000 paid on 21 March 1967 by Algemene Bank Nederland cheque. The deceased repaid the sum of RM50,000 leaving a balance of RM229,500. The deceased died on 19 April 1973 and the appellants were the administrators of his estate. The respondents brought an action to recover the sum owing and the learned Judicial Commissioner who tried the case found in favour of the respondents. The appellant appealed and two issues were raised on the appeal (i) whether the deceased received the sums; (ii) even if he did, whether the respondents' suit was not statute-barred, as the suit was commenced on 30 July 1974 that is, more than seven years after the money was received.

Held: (1) the question whether the suit was statute-barred depends upon the purpose for which the sums were paid and the nature of the rights acquired by the respondents regarding the payments; (2) there is no provision in the National Land Code prohibiting the creation of equitable charges or liens. Therefore equitable charges and liens are permissible under our land law. The words 'other charge on land' in s 21(1) of the Limitation Act 1853 (Act 254) must be construed to include equitable charges and liens as well; (3) in this case, the evidence showed that the first sum of RM29,500 was meant to be a 10% deposit towards the purchase of land in which the respondents and the deceased were engaged in a joint venture. The transaction therefore resulted in an equitable charge in favour of the respondents. Section 21(1) of the Limitation Act, therefore, applied and the suit was not statute-barred; (4) as regards the second sum of RM250,000 the evidence was not as clear-cut. On the evidence there was no sufficient proof on the balance of probability that this sum was given to the deceased as the respondents' share of the capital of a joint venture between them and the deceased to purchase the Meera Estate land. It would appear that the money was a personal loan to the deceased which at the time of the suit had become statute-barred; (5) thus except for the first sum of RM29,500 the appeal should be allowed.

Mahadevan & Anor v Manilal & Sons (M) Sdn Bhd [1984] 1 MLJ 266 Federal Court, Kuala Lumpur (Salleh Abas CJ (Malaya).

Wong Kim Fatt v Yong Kwet Yin [1996] 1 MLJ 45 High Court, Johor Bahru (Abdul Malik Ishak J).

The respondents brought an action for the recovery of possession from the appellant of a piece of land in Kuala Lumpur of which they were registered as proprietors. They alleged that the appellant was in unlawful occupation of the land in question and had built houses thereon without their knowledge and consent. The appellant denied that he was an unlawful occupation and alleged that he was in possession under a sale agreement dated 30 December 1950 between himself and one L as administratrix and counterclaimed for specific performance. The learned trial judge held that the counterclaim was barred by limitation in that 12 years had elapsed between the date of the agreement and the date of the counterclaim, (16 September 1965).

Held, allowing the appeal: the case of action accrued on L's failure to take the necessary action under clause 2 of the agreement after the lapse of 14 days from the date of a letter (exhibit D8) and not from the date of the agreement. The failure to initiate the necessary action was the first clear unequivocal threat to infringe the appellant's right. In the circumstances the appellant's counterclaim filed on 16 September 1965 was within time.

Ng Moh v Tan Bok Kim & Anor [1969] 1 MLJ 46 Federal Court, Kuala Lumpur (Azmi CJ (Malaya).

Wama bte Buang v Martin Lee & Anor Originating Summons No 156 of 1990 High Court, Singapore (GP Selvam JC).

In this case, the plaintiffs, members of the family of the deceased co-owner of a parcel of land, commenced an action against the defendant, the son of the other deceased co-owner, claiming an account of rentals, an order for the demolition of buildings and damages. The main issue was whether the action was barred by the Limitation Act 1962. The trial judge held that it was not barred as he was not satisfied that the defendant had been in adverse possession. However, although he made an order for possession in favour of the plaintiffs, he refused to order an account, demolition or damages because of the delay and the conduct of the plaintiffs. Both sides appealed to the Court of Appeal (see [1983] 2 MLJ 416). The Court of Appeal held that adverse possession had been admitted in the pleadings and there had been no issue arising at the trial on that score. They decided that the effect of the Limitation Enactment 1962, was to extinguish the titles of the plaintiffs. The defendant's appeal was allowed and relief was granted on the counterclaim by declarations and orders made under the Land Code 1909. The plaintiffs appealed to the Privy Council. At the hearing of the appeal two issues arose: (a) whether apart from any of the registration provisions of the Land Code 1909, the action would be barred and the titles of the plaintiffs extinguished by the Limitation Enactment; (b) if so, whether the registration provisions of the Land Code 1909 nevertheless protect the plaintiffs.

Held: (1) the evidence relating to the claim of adverse possession was far from clear. The issue was essentially one of fact and degree. The trial judge found no evidence of any overt act by the defendant before the writ to support his claim of adverse possession to the exclusion of the plaintiffs. He thought that the plaintiffs had not abandoned their claim to title but had impliedly allowed the defendant to deal with the land as he thought fit. These findings were open on the evidence and realistic and the appeal should therefore be allowed; (2) it became unnecessary to deal with the second point in which clarifying legislation may well be thought desirable in Brunei.

Hajjah Tampoi bte Haji Matusin & Ors v Haji Matusin bin Pengarah Rahman [1984] 2 MLJ 185 Privy Council Appeal from Brunei (Lord Fraser of Tullybelton, Lord Roskill, Lord Bridge of Harwich, Lord Brightman and Sir Robin Cooke).

Where, after the death, intestate, of an owner of immovable property, a right to sue for possession would have accrued, but for the absence of a legal representative, the period of limitation runs, under s 16, from the time when the right would have accrued, had there been a legal representative of the deceased, and not from the time when there was in fact a legal representative capable of instituting the suit. Art 110 of the schedule to the ordinance does not apply to a case of dispossession against a deceased owner of immovable property, who died intestate, unless the dispossession occurred after the date of a grant of representation. Under art 112 of the schedule the burden of proving adverse possession for the requisite period lies on the defendant.

Hee Ann Hup v Kolanthayan Chetty [1923] 15 SSLR 249 High Court, Straits Settlements (Brown J).

Land subject to the Malay Reservations Enactment 1913, was charged to the defendant. The charge was repayable on 8 June 1920. The chargor, on 10 June 1918, also granted a power of attorney to the defendant which purported to give him a right or interest in the land. The defendant went into possession of the charged land, receiving the produce therefrom, and had remained in possession ever since. The chargor died on 12 July 1921. On application by way of originating summons, for an order on the Collector of Land Revenue to record a memorial discharging the charge,

Held: (1) the power of attorney was null and void and the defendant in entering into possession of the charged land was a trespasser; (2) the defendant's only claim was as chargee to recover his debt and this was statute-barred after 12 years.

Sakinah v Kua Teong How [1941] MLJ 166 High Court, Federated Malay States (Howes J).

A, father of the second defendant, had been in possession of a piece of land without title for about 35 years prior to his death, which occurred on 22 July 1926. About a year after the death of A, the second defendant entered into possession of the land and remained in continuous possession thereof until 31 March 1938, when he sold and conveyed it to the first defendant. In an action by the administrator of A's estate claiming a declaration that no right or title to the land passed under the conveyance by the second defendant to the first defendant, and for cancellation of the registration of such conveyance.

Held: upon the preliminary objection that the statement of claim disclosed no cause of action: (1) as A's possession was prior to and ceased before 1929 (when Limitation (Amendment) Ordinance No 10 of 1929 was passed), the only effect thereof was to bar the remedy of the true owner, and no title was acquired by A; (2) as it was not alleged that the second defendant entered into possession as representative in interest or trustee of A, there was an abandonment of possession on A's death and the true owner was remitted to his former title; (3) as the plaintiff could only derive title from A, the statement of claim disclosed no right or title in him, and his claim for the declaration must fail; (4) the second defendant's possession, although not extending for the statutory period of 12 years, gave him a right as against everyone but the true owner, which was capable of being conveyed by him.

Dewan Singh v Thyanappa Ltd & Anor [1939] MLJ 278 High Court, Straits Settlements (Worley Ag J).

The appellant, the trustee of the estate of Tan Say Hin, deceased, claimed possession of a piece of land. The respondent resisted the claim and counterclaimed for a declaration that he was entitled to the piece of land by virtue of long adverse possession. He had gone into possession of the land without the permission of the owner and had fenced the land and barred all access to it by means of a fence around it and a locked gate and had continued to so possess it for 12 years and upwards.

Held: the true owner's right and title to the land was extinguished by virtue of the Limitation Ordinance 1959.

Tan Beng Siew v Choo Eng Choon [1965] 1 MLJ 69 Federal Court, Singapore (Wee Chong Jin CJ (Singapore).

The plaintiff purchased from the first defendant and his brother, B, the land comprised in Lot 103 Mukim XXVII, sometime in 1954. There were nine Malay-type houses on this land, one of which was No 70 Jalan Haji Salam (hereinafter called the said premises). All the other eight houses were owned by the occupants who paid a ground rent of S$5 per month each to the plaintiff. The conveyance in favour of the plaintiff however only referred to the said premises. The plaintiff now claimed for a declaration that the defendants were not entitled to remain on the said premises and for an injunction to restrain them from remaining thereon. The first defendant did not enter an appearance and judgment was obtained against him by the plaintiff. The second defendant's defence was that he was the lawful owner of the said premises, having acquired under the Limitation Ordinance a statutory title to it by adverse possession for over 12 years and he counterclaimed for a declaration that he was the lawful owner of the said premises. There was overwhelming evidence at the hearing that the house was constructed in 1931 or thereabouts by the second defendant's father with the permission of the first defendant's father who was then the owner of the whole of Lot 103 Mukim XXVII and that the second defendant became the owner of the house after the death of his father in 1934. It was also clear from the evidence that the first defendant and his brother, B, had no right to sell the house to the plaintiff.

Held: (1) the evidence in this case established beyond reasonable doubt that right up to 1954 when he sold Lot 103 Mukim XXVII to the plaintiff the first defendant was in possession of all the land comprised in Lot 103 Mukim XXVII. Although the first defendant and before him his father had permitted others to build houses on the said land, neither the first defendant nor his father had intended to discontinue ownership of that portion of the land comprised in Lot 103 Mukim XXVII; (2) in this case, there was no evidence that the first defendant had been dispossessed and kept out of some portion of the land comprised in Lot 103 Mukim XXVII. The second defendant had never effectively excluded the first defendant or his father from the land now claimed by him; (3) the second defendant was on the first defendant's land by leave and licence and such user of land was not of a nature or quality which would amount to an ouster by the second defendant of the first defendant from his possession; (4) the plaintiff's claim for the declaration and injunction should be refused but the plaintiff's claim for ground rent was justified because he had in 1954 demanded rent from the second defendant and had threby determined the second defendant's licence to stay on the land free of rent. The plaintiff was entitled to rent at S$5 per mensem from August 1955 to May 1967 amounting to S$710.

Kassim Oli Mohamed v Noordin & Anor [1967] 2 MLJ 243 High Court, Singapore (Choor Singh J).

In January 1933 the respondent was engaged by a Japanese to clear the forest from the land in question. He was paid no wages but by way of remuneration he was allowed to build a house and plant. He has remained on the land since that date paying no rent. The trial judge held that there was discontinuance by the Japanese and possession by the respondent since 1933 and that therefore in the circumstances the title of the Japanese was extinguished in 1945. The appellant appealed against this decision.

Held: although the respondent went on the land with the permission of the owner, when the owner discontinued possession the permission which was given ceased to operate and from that moment the respondent's possession became adverse.

Custodian of Enemy Property v Visvalinga Thaver [1953] MLJ 189 Court of Appeal, Singapore (Brown, Storr and Whitton JJ).

This was an appeal against the judgment of the trial judge declaring that the plaintiff (respondent herein) was entitled to possession of a parcel of land occupied by the defendant. The facts in the case were shortly that the two lots of land originally belonged to one owner, who let one of the lots to the defendant (appellant herein) in 1945. The defendant occupied not only the lot let out to him but also the disputed area. Subsequently in 1960 the disputed lot was sold to one Mohamed bin Abdul Aziz who in turn, in 1962, sold it to the Vermont Realty Ltd of which the defendant was the managing director. In 1962 the other lot was sold to the plaintiff. The plaintiff claimed that the disputed portion formed part of the lot sold to him. The defendant pleaded that he had been in possession of the disputed portion since 1945.

Held: (1) the onus was on the plaintiff to show a legal title to possession not barred by statute and in doing so he could take advantage not only of evidence adduced by him but also of any of fact or circumstances in his favour appearing in the evidence adduced by the other party; (2) in this case, the possession by the defendant of the disputed land was not adverse to the landlord when he occupied it as tenant of the landlord from 1945 till the land was sold in 1960, the right of action of the plaintiff's predecessors in title to recover the disputed area accrued only at the date of that sale and this arose within 12 years preceding the commencement of the action brought by the plaintiff.

Shaw Sung Ching v Hassan Namazie [1967] 1 MLJ 158 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Ambrose J).

The trustees of an estate claimed possession of a house which had been used as the family house. The defence raised was that of limitation, it being alleged that there had been adverse possession by one Wi Chi Neo for the full statutory period of 12 years. The facts showed that Wi Chi Neo had gone to live in the house as the bride of one of the deceased's sons. No rent had been demanded from her.

Held: (1) Wi Chi Neo was only a licensee of the premises and the failure to demand rent from her could not convert the permissive occupation into an adverse one so as to attract the operation of the Limitation Ordinance 1953; (2) the possession in this case was not adverse and, therefore, the plea of limitation failed and the plaintiffs were entitled to possession of the premises.

Chinese Bankers Trust Co Ltd v Low Cheng Kiat & Anor [1966] 1 MLJ 239 High Court, Malacca (Ismail Khan J).

A, the widow of an intestate, having purchased the interest of her daughter B, the only other next of kin, remained in possession of the intestate's land for more than 12 years subsequent to the date of purchase, and thereafter sold the land in question, to the defendant, without taking out letters of administration or executing a formal conveyance. Subsequently thereto, C, the daughter of B, took out letters of administration to her grandfather's estate, no one else having previously done so, and sold the land, in defendant's occupation, to the plaintiff, who sued the defendant for recovery of same.

Held: (1) and A, was not a 'person from or through whom the defendant derived his liability to be sued', within the meaning of s 3 of the Limitation Ordinance 1896; (2) the defendant, who had not personally been 12 years in possession, was not entitled to count, on his own behalf, the period or any portion of the period during which his vendor A, had possession;s 17 of the Limitation Ordinance cannot be interpreted as analogous to s 34, of 3 and 4 Wm IV, Ch 27, and the corresponding section of the Indian Limitation Acts of 1871 and 1877 and consequently, in the absence of a legal personal representative, the possession by the defendant of the land sued for, was not adverse, as required by Schedule II art 112.

Sultan v Lamsah [1897] 5 SSLR 61 High Court, Straits Settlements (Law J).

Where in a suit for the recovery of possession of land the defendant answers only that he is 'in possession', the onus lies on the plaintiff to show that such possession is permissive and not adverse. The onus of establishing adverse possession over the prescribed period of limitation does not shift to the defendant until the plaintiff has not only proved title but has in addition given some evidence of permissive occupation on the part of the defendant. Further, he must show that the permission was granted either by the person who holds the legal estate or by some other person who is clothed with sufficient authority by the owner of the legal estate to grant permission.

Govindmal v Ahmad Merican [1931] 1 JLR 57 High Court, Johore (Thorne J).

In the case of a claim to immovable property made by the representative of a deceased person against an adverse possessor, time runs in favour of the possessor notwithstanding that no grant of representation to the estate of the deceased has been taken out. One of the two tenants in common can by adverse possession acquire a right against the other tenant in common, this depending upon whether his possession was adverse in fact.

Melah v Tambysah [1941] MLJ 82 High Court, Straits Settlements (Carey J).

On a plea of limitation by a person in adverse possession, the time which runs against a plaintiff claiming as the transferee of the rights of occupation, is regulated by art 105 and not by art 112 of the Limitation Enactment.

Tee Say Poh v Jais bin Haji Salleh [1939] MLJ 330 High Court, Batu Pahat (Mills J).

A piece of land at Boon Teck Road, used as a private burial ground, belonged to four brothers as tenants-in-common. M Theynappa Ltd purchased the share of Chia Ann Siang, a co-owner in 1938, and had since been collecting rents and profits from all the squatters of the said land without accounting for the same to the other three co-owners until 1952 when the government acquired the said land. Chia Wan Kiat, the personal representative of one of the co-owners (Chia Ann Liew deceased), claimed the deceased's share in the government award. M Theynappa Ltd resisted this claim on the ground that the company had been in adverse possession of the whole land since 1938 (a period of about 15 years).

Held: (1) it could not be said that the purchase of the share and subsequently collecting and unlawfully retaining the whole amount accruing from the land, the respondent company could be deemed to have entered into possession of all of it; (2) in computing the 12 years' period of limitation prescribed by the schedule to the Limitation Ordinance (Cap 16), the period commencing from 15 February 1942, and ending 30 September 1949, should be excluded by virtue of the Limitation (Amendment) Ordinance 1949.

Chia Wan Kiat v Theynappa Ltd [1955] MLJ 198 High Court, Singapore (Knight J).

The plaintiff is the elder brother of the first defendant, who is the husband of the second defendant. The dispute arose out of the sale of land carried out by the first defendant pursuant to a power of attorney given by the plaintiff, who now claims against the defendants for an account of profits arising from the sale alleged to be improper, for payment of half of these profits, and for general damages arising from alleged breach of undertaking, fraud, conspiracy and misrepresentation. The land measuring over 22 acres held under CT 8040 for Lot 372, Mukim of Sungei Buloh, Kuala Lumpur, was in 1954 transferred in equal undivided shares to the plaintiff and the first defendant for the stated consideration of RM5,000. Before the plaintiff left Malaya for Hong Kong in 1962, he executed the power of attorney and later in 1966 an authorization-cum-undertaking in favour of the first defendant. On 20 April 1968, the first defendant, as attorney of the plaintiff, transferred to his business partner, one Lau Chong Yin (PW 5), the plaintiff's half-share in the said land for the stated consideration of RM3,000. On 3 May 1968, PW 5 transferred the said half-share to the first defendant's wife (ie second defendant) for the stated consideration of RM3,500. The defendants sold the said land to SEA Housing Corp Sdn Bhd ('SEA') for a consideration of RM962,062.50 and the transfer was registered on 30 May 1979. The main thrust of the plaintiff's case is that the first defendant as agent and trustee of the plaintiff conspired with the second defendant to defraud the plaintiff by causing the sale of the said half-share to PW 5 in 1968 and its almost immediate repurchase by the second defendant without the plaintiff's authority, consent or knowledge and that all along until the said land was finally sold to SEA in 1979 for the huge sum of RM962,062.50 the plaintiff had been misled into believing that he was still the half-owner of the said land. In a nutshell, the plaintiff's case is that through the collusion of the defendants the plaintiff was deprived of the said half-share in 1968 and misled into believing that he was still the owner of the said half-share until 1979. The defendants make a complete denial of all the allegations of fraud and aver that the plaintiff actually knew of the sale of the said half-share to PW 4 and its subsequent purchase by the second defendant and that the plaintiff's plea of ignorance of these sales was really due to his desire to take advantage of the escalation in price of the said property when it was finally sold to SEA at a time when he had no more interest in the said land so that he is estopped by virtue of his knowledge from making his claim and is also barred by limitation as the alienation of the said half-share took place in 1968.

Held: (1) there can be no question that in this particular case the first defendant had a duty to act in good faith in protecting the interests of the plaintiff with regard to the said half-share and could not use his position as agent to profit at the plaintiff's expense; (2) when the first defendant caused the said half-share to be transferred out of the plaintiff's ownership he did not do so with fraudulent intent as he was legally empowered to do so not only by the power of attorney but specifically by the authorization-cum-undertaking. However, his conduct was far from honourable and fell far short of that required of an agent although it was obviously, to a very large extent, the result of his pre-occupation with the plaintiff's indigence and consequent financial dependence upon him; (3) with regard to the standard of proof, the plaintiff has failed to discharge the burden of proof required of him to establish that the first and second defendants had by misrepresentation and/or fraud caused the said half-share to be transferred to the second defendant. In view of the court's finding that the first defendant was the agent of and owed fiduciary duties to the plaintiff, the first defendant has certainly failed in his duty as agent of the plaintiff in selling the said half-share well below the market value and also in not informing the plaintiff that he had sold it at RM3,500 in 1968 to the second defendant below its market value so as to afford the plaintiff the opportunity of questioning the price; (4) the plaintiff's action is not barred by s 9 or s 22 of the Limitation Act 1953 (Act 254); (5) the first defendant must pay the plaintiff the sum of RM240,500 with interest to run thereon from 1 June 1979, at the rate of 8% pa until date of judgment, and with costs to the plaintiff against the first defendant.

Wong Mun Wai v Wong Tham Fatt & Anor [1987] 2 MLJ 249 High Court, Kuala Lumpur (LC Vohrah J).

Notwithstanding that a lien-holder is not a chargee within s 19(ii) of the Limitation Enactment (Cap 18) the receipt of produce from a duly authorised agent of the debtor may operate as an effective payment of interest, if there is an agreement to that effect.

Chow Tuck Heng v Soong Sooi [1939] MLJ 131 High Court, Bentong (Terrell JA).

Juman Khan v The Registrar Supreme Court, Johore, as Administrator of the estate of Hamid Dollah Khan [1931] 1 JLR 52 High Court, Johore (Thorne J).

The plaintiff infant sued the defendant through his father and next friend for damages arising out of a motor accident. The infant was seven years old at the time of the accident and some nine years later he died from the injuries he had received. The writ was consequently amended with the father stepping in as the administrator of the estate of the deceased infant. The statement of claim was amended to include several items for special damages which were not in the original claim. The High Court overruled the defendants' objection to the amendments and allowed it.

Held: the writ had been filed within time limit and the amendments were merely the items in respect of special damages which the plaintiff had incurred and would not be caught under the Limitation Act although the items were added after the limitation period.

Tham Meng Fatt v Utam Singh Omnibus Co Ltd [1982] 2 MLJ 355 High Court, Seremban (Ajaib Singh J).

An accident took place on 4 February 1950 in which the plaintiff in this case sustained personal injuries. A writ against the defendant was issued on 1 March 1951. At that time the period of limitation for personal injuries was one year, and the defendants pleaded limitation. On 22 March 1953 the period of limitation was increased from one year to three years.

Held: the law must be considered at the date when the writ was issued and therefore a claim barred at the time when the writ was issued was not revived by a subsequent amendment of the law.

Drinkhall v Nam Hue Motor Hiring [1955] MLJ 119 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: See the decision of the learned Chief Justice in [1953] MLJ 188, where he held that a mere amendment could not be treated as a partial repeal.]

On 19 September 1972, the plaintiff sustained injuries as he fell off a tractor trailer driven by the first defendant for the purpose of being sent to work at a place in the course of the plaintiff's employment by the second defendant, the government of Malaysia. At that time the Public Authorities Protection Act 1948 (Act 198) was in force and had not been amended. Section 2(a) of the said Act provides that the action should be brought within 12 months of the cause failing which it will be time-barred. On 13 June 1974 an amendment came into force amending the period of 12 months to 36 months. On 15 May 1975 the plaintiff commenced this action. He contended that the effect of the amendment to s 2(a) was to extend the time for instituting action in this case to 36 months from 19 September 1972 (the date of the accident) and the last date for instituting action was on 18 September 1975, and since the writ was issued before 18 September 1975 it was issued within proper time.

Held, dismissing the claim: (1) the amendment operates to extend the time for instituting proceedings in respect of future causes of action, ie causes of actions which arise after the date of the coming into force of the amendment, and to extend the time for instituting actions which had not been time-barred at that date. It does not, however, operate to extend the time for instituting actions which had been time-barred at that date; (2) since the present action had already been time-barred before the amendment came into force, it was not affected by the amendment and it continued to be time-barred when the writ was issued on 15 May 1975.

Goopan s/o Govindasamy v A Subramaniam & Anor [1979] 2 MLJ 84 High Court, Kuala Lumpur (Wan Hamzah J).

In this case, the appellant was injured when he fell off a tractor trailer on 19 September 1972. At the time of the accident, the period for instituting the action against the public authority was 12 months, so that the right of action lapsed on 19 September 1973. However, on 13 June 1974 the Public Authorities Protection Ordinance 1948, was amended to extend the period for instituting action to 36 months. The appellant contended that by virtue of the amendment, his action was not time-barred. The claim was dismissed in the High Court see [1979] 2 MLJ 84. The appellant appealed.

Held: the amending Act was not truly procedural but affected vested rights and the time for instituting the claim was not enlarged by the amending Act. The amending Act was not retrospective in operation and had no application to a cause of action which was time-barred before the Act was introduced.

Goopan s/o Govindasamy v A Subramaniam & Anor [1980] 2 MLJ 64 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

In this case, the appellants brought an action in March 1975 for damages for personal injuries sustained by both of them in a motor accident that took place in April 1972 between a motor bus belonging to the respondents and a motorcycle ridden by the first appellant with the second appellant as pillion passenger. Section 2(a) of the Public Authorities Protection Act 1948 (Act 198), which applied provided that action shall not lie or be instituted unless it is commenced within 12 months after the act complained of. With effect from June 1974, this provision was amended to substitute '36 months' for the '12 months'. On 20 March 1975, the appellants issued a writ for damages for personal injuries. The respondents filed a defence in which they pleaded that the appellants were barred from bringing the action by virtue of the Public Authorities Protection Act 1948. The learned trial judge decided in favour of the appellants but on appeal the Federal Court held that the time for the claim in this case was not enlarged by the amending act, which had no application to a cause of action which was barred before the amending act came into operation see [1980] 1 MLJ 311. The appellant appealed to the Yang di Pertuan Agong.

Held, dismissing the appeal, an accrued right to plead a time-bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable. In this case the respondents acquired a right when the period prescribed by the 1948 Ordinance expired, and this was not taken away by the 1974 amending Act.

Yew Bon Tew & Anor v Kenderaan Bas Mara [1983] 1 MLJ 1 Privy Council Appeal from Malaysia (Lord Fraser of Tullybelton, Lord Scarman, Lord Lowry, Lord Bridge of Harwich and Lord Brightman).

The plaintiff's claim was for damages for injury caused by the negligence of the second defendant, as a servant or agent of the first defendant, in a motor accident which occurred on 9 February 1952. Originally the writ of summons was taken out against the first defendant only but subsequently on 10 April 1953 the second defendant was joined as a defendant. By an amendment to the Limitation Ordinance (No 9 of 1953) on 17 March 1953 the period of limitation for compensation for injury to the person was extended from one to three years (Ordinance No 9 of 1953). In an issue tried that the plaintiff's right of action against the second defendant was barred by the Limitation Ordinance as it was in force on 10 February 1953,

Held: in order to bring s 14 of the Interpretation and General Clauses Ordinance 1951, into operation there must be a repeal. A mere amendment cannot be treated as a partial repeal.

Noor Mohamed Yousoff v Teo Kai Tee & Anor [1953] MLJ 188 High Court, Singapore (Murray-Aynsley CJ).

The applicants issued a writ against the Malaya Indonesia Line claiming damages in respect of the delivery of goods. This writ was issued within the limitation period of one year after delivery but it appeared that the writ was wrongly brought against the Malaya Indonesia Line, as they were not an entity known to the law. The correct defendants should have been the Swedish East Asia Co Ltd and on 3 April 1964, an order was made giving plaintiffs liberty to amend the writ and statement of claim accordingly. The defendants pleaded limitation and the High Court dismissed the application ([1965] 2 MLJ 176). The plaintiffs appealed.

Held: in this case it was not a question of the mere correction of a misnomer and the proceedings in this case could therefore only be said to commence on 3 April 1964 by which time the period of limitation had already expired.

Colgate-Palmolive (Asia) Ltd v Swedish East Asia Co Ltd [1967] 1 MLJ 115 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Winslow J).

In this case, the facts as found by the Judicial Commissioner and the Federal Court were that on 20 December 1966, the appellant company paid the sum of RM29,500 to Mr Ratnavale; that on 21 March 1967 the appellant company paid a further sum of RM250,000 to Mr Ratnavale; and that on 20 June 1968, Mr Ratnavale repaid a sum of RM50,000 to the appellant company. The claim by the appellant was for the difference between the total of the sums paid by the appellant company to Mr Ratnavale and the amount repaid by him. Mr Ratnavale died on 19 April 1973 and the respondents are the executors and trustees of his estate. The learned Judicial Commissioner held that the sums of RM29,500 and the sum of RM250,000 were both received by Mr Ratnavale and that the appellants had established that the difference between the total of these sums and the amount repaid by Mr Ratnavale of RM229,500 was paid to Mr Ratnavale on the security of a lien and equitable charge in respect of land in Kedah, the equitable charge being based on the common intention of the appellants and Mr Ratnavale to have the said lands charged to the appellants as temporary security pending sale of certain property referred to as the Meera Estate and the division of the sale proceeds. He went on to hold that when the sale of the Meera Estate and the realization of the proceeds of sale were not wholly effected, the appellants pressed for the return of the sums of money put into the joint venture for the purchase and sale of Meera Estate and further that on 20 June 1968 when repaying the sum of RM50,000 Ratnavale agreed in return for an extension of time to repay the balance of RM229,500 with interest. This extension of time was for a period of six months to 20 December 1968. The learned Judicial Commissioner therefore held that the right to sue for the balance of RM229,500 arose on 20 December 1968 and since the writ was issued on 30 June 1974 the statutory limitation of six years had not expired by the time the action was brought. He therefore gave judgment in favour of the appellants with interest thereon at 10% per annum compound. The respondents appealed to the Federal Court. After reviewing the relevant evidence, the Federal Court concluded that the finding of the learned Judicial Commissioner regarding the sums of RM19,500 and RM250,000 to the effect that they had been paid by Manilal to Mr Ratnavale, was correct and that there was no reason for the Federal Court to interfere with this finding. They then went on to consider how the Limitation Act 1953 (Act 254) applied to the matter in issue and proceeded, apparently without considering any other possibility, upon the basis that the right of action accrued in respect of these sums on the dates when they were paid by the appellants to Mr Ratnavale. They concluded that the sums escape limitation only if it was shown that they had been paid in connection with a joint venture for the purchase of Meera Estate and were secured by a mortgage or other charge on land. Although the Federal Court took the view that an equitable charge on land, such as was suggested by the appellants in the present case, was possible under the relevant law of Malaysia, they concluded, differing in this respect, from the Judicial Commissioner, that while the sum of RM29,500 was paid as part of a subscription for the purchase of the Meera Estate, the sum of RM250,000 was not and that accordingly this money was a personal loan to Mr Ratnavale which at the time the action was instituted had become statute-barred. The Federal Court accordingly allowed the appeal except in so far as it related to the sum of RM29,500. On that sum they awarded interest at the rate of 3% from the date Mr Ratnavale received the sum to the date of judgment and thereafter at the rate of 8% to the date of payment stating that they thought it fair and proper that it should be so ordered. (See [1984] 1 MLJ 266). The appellants appealed.

Held: (1) neither the reasons expressed in the judgment of the Federal Court nor the additional matters raised in argument by the learned counsel for the respondents at the hearing of the appeal are sufficient to displace the findings of fact on this matter by the learned Judicial Commissioner. The plea of limitation therefore fails since the action was raised within six years from the date on which the cause of action in respect of the RM229,500 balance arose; (2) there was no evidence to indicate that the learned Judicial Commissioner's assessment of 10% as a reasonable rate of interest was wrong and no basis upon which any other figure could be fixed. The rate of interest awarded by the learned Judicial Commissioner should be restored, but only as simple interest, since the appellants accept that it was wrong for him to have awarded compound interest.

Manilal & Sons (M) Sdn Bhd v Mahadevan & Anor [1986] 1 MLJ 357 Privy Council Appeal from Malaysia (Lord Bridge of Harwich, Lord Templeman, Lord Mackay of Clashfern and Sir Denys Buckley).

The first defendant sought to vary an order made in this action whereby all further proceedings against the third party were stayed pursuant to s 5 of the Arbitration Ordinance 1950, by adding a term therein that the third party should not be entitled to rely on the lapse of time between 4 August 1965 and 26 September 1966, as a defence to any arbitration proceedings between them. The third party was joined in the action by a third party notice claiming that under a policy of insurance issued by the third party on 9 March 1962 and subsequently renewed, the first defendant was entitled to be indemnified by the third party in respect of the plaintiff's claim herein against him for damages. The third party applied for a stay of proceedings under s 5 of the Arbitration Ordinance 1950, by way of a notice of motion taken out on 4 August 1965 and finally heard on 8 September 1966 on which date the order sought to be varied was made. The order for stay was made on the ground that condition 7 of the policy of insurance provided (i) all differences arising out of the policy should be referred to arbitration, (ii) if the company should disclaim liability to the insured for any claim and such claim was not referred to arbitration within 12 calender months from the date of such disclaimer, then the claim should for all purposes be deemed to have been abandoned and should not thereafter be recoverable.

Held: (1) the court had no inherent jurisdiction to extend time except where such power was expressly given to it under a provision of the law; (2) in this case, the first defendant had notice of the third party's application for stay of proceedings, and thus had notice of the fact that he had chosen the wrong forum. It was for him then to have considered condition 7 of the insurance policy and taken steps to drop his proceedings against the third party and to refer the matter to arbitration. In failing to do so, he had allowed time to run out, for which he had nobody but himself to blame; (3) the words 'or otherwise as the court thinks just' in s 21 of the Arbitration Ordinance 1950 did not give the court the power to make any order to the detriment of the third party who had been wrongly joined as a party. Those words meant that the court might in a proper case decline to make an order as to costs in favour of the third party seeking a stay.

Central Electricity Board v Commissioner of the Federal Capital & Anor; Insurance Company of North America (Third Party) [1967] 2 MLJ 161 High Court, Kuala Lumpur (Gill J).

In this case, a fire insurance policy had been taken out by the respondent to insure his construction materials at a work site. A fire occurred at the work site on 30 December 1968 causing the total destruction of the respondent's store. The respondent submitted a claim of RM154,702.55 on 5 January 1969, but the appellant did not write to the respondent rejecting his claim or making a counter-offer. The respondent was therefore unable to refer the matter to arbitration within the period of one year from the happening of the loss or damage. It was only on 20 June 1972 that the appellant informed the solicitors for the respondent that it was repudiating liability under condition 19 of the policy which relieved it from any liability after the expiration of 12 months from the date of the fire. The appellant maintained that since the respondent had failed to resort to arbitration under condition 18 of the policy within 12 months of the date of the fire, the respondent's right to arbitration was time-barred. The respondent thereupon applied for enlargement of time. Mohamed Azmi J allowed the application and the appellant appealed to the Federal Court.

Held, dismissing the appeal: (1) in this case, the claim which was made was not rejected, so that no dispute or difference arose as to the amount of any loss or damages, and therefore the respondent could not have referred the matter to arbitration under condition 18 of the policy; (2) if the intention of the appellant all along was to deny liability altogether on the respondent's claim it should have written to the respondent to make that perfectly clear to him. In the circumstances, the respondent had made out a case of undue hardship, that is, greater hardship than the circumstances warrant or hardship greater than that which in justice, a claimant should be called upon to bear; (3) the learned trial judge in this case exercised his judicial discretion correctly in granting the extension of time on the ground of undue hardship. The learned trial judge had taken all the relevant factors into account in the exercise of his discretion and there was nothing wrong in the way in which he dealt with the application.

Safety Insurance Company Sdn Bhd v Chow Soon Tat [1975] 1 MLJ 193 Federal Court, Kuala Lumpur (Gill CJ, Raja Azlan Shah and Wan Suleiman FJJ).

In this case the respondent was the registered owner of a motorcycle, which was insured against loss and damages by theft etc with the appellant. The respondent's brother parked the motorcycle in a private car park at Rantau Panjang on 19 June 1973 and it was stolen. A police report was lodged and the loss was also reported to the appellant. The solicitors for the appellant repudiated liability on 9 October 1973 and on 13 December 1973 they informed the respondent's solicitors that they had authority to accept service of process. On 10 September 1974 the respondent's solicitor asked for a copy of the complete policy and on 3 October 1974 the appellant sent a copy of the conditions attached to the motorcycle policies to the respondent. The insurance policy contained a condition which provided for reference to arbitration of any dispute arising between the parties. On 4 April 1975 the respondent's solicitors wrote to the appellant's solicitor asking whether the condition as to arbitration had been waived. In reply, the appellant's solicitors replied that their clients were not waiving the condition. An arbitrator was subsequently appointed. The statement of claim of the respondent was filed on 27 October 1975 and the statement of defence of the appellant on 17 November 1975. It was one of the defences that the respondent in failing to refer his claim to arbitration within 12 calendar months from the date of the disclaimer by the appellant had been precluded from claiming against the appellant for the alleged loss. On 13 October 1976 the respondent applied to the High Court for leave to extend time to refer his claim to arbitration pursuant to s 28 of the Arbitration Act 1952 (Act 93). The learned judge made an order granting leave and the appellant appealed.

Held: (1) the court's power under s 28 of the Arbitration Act is a discretionary power to be exercised judicially primarily to determine whether there is undue hardship to the claimants and whether there is excessive or greater hardship than the circumstances warrant. Any mistake by the claimant, if any, must be excusable provided there is no prejudice to the other side; (2) in this case no reasonable explanation was advanced by the respondent sufficient to excuse his delay to take steps to have his claim referred to arbitration. The circumstances of the case do not warrant a finding that there was undue or excessive hardship. Indeed there was no excuse whatever for the respondent to have delayed making reference to arbitration; (3) while the appeal court is quite slow to interfere with the exercise of a discretionary power by a judge, this was a case where that discretion was not exercised judicially and therefore the order of the learned judge must be set aside.

Malaysia National Insurance Sdn Bhd v Meraslam [1982] 1 MLJ 274 Federal Court, Kuala Lumpur (Suffian LP, Salleh Abas and Abdul Hamid FJJ).

The applicants sought to have the period of six weeks limited by O 69(4)(1) of the Rules of the High Court 1980 for an application to remit an award under s 23 of the Arbitration Act 1952 (Act 93) extended on the following grounds: (a) there was a divergence of opinion on the interpretation of the award between the parties and; (b) the applicants only realised this on 23 June 1981. It was only after this realization did the applicants feel that there was 'genuine doubt' in their minds whether the various amounts paid by them had been taken into account by the arbitrator in his award. The award was made and published on 2 April 1981. The applicants filed the notice of originating motion for extension of time on 16 September 1981.

Held, dismissing the application: (1) the court has an unfettered discretion to grant or refuse an extension of time; (2) the rules of court must prima facie be obeyed and in order to justify an extension of time, there must be some material on which the court can exercise its discretion in favour of the applicant. For otherwise the party in breach of the rules would have an unfettered right to extension of time which would defeat the very purpose and object of the rules of limitation of period; (3) in considering whether to grant or refuse extension of time the length of time that has lapsed is always a material factor to be considered by the court exercising the discretion. On the facts of the present case there was not any valid ground for the delay and therefore application for extension of time must be refused; (4) the court may set aside an award if (a) the award is bad on the face of it; (b) there has been misconduct on the part of the arbitrator; (c) there has been an admitted mistake and the arbitrator asks that the matter be remitted; (d) where additional evidence has been discovered after the making of the award; or (e) where the award is ambiguous, confusing and unclear. In the present case there was nothing ambiguous or confusing or uncertain in the language of the arbitrator.

Ong Guan Teck & Ors v Hijjas [1982] 1 MLJ 105 High Court, Kuala Lumpur (Hashim Yeop A Sani J).

In this case the deceased left two pieces of land registered in his name. It was alleged that the lands were sold by the deceased, one to one daughter and the other to another daughter. After the death of the deceased, the quit rent fell into arrears and the lands were sold by auction to the two daughters and they became registered proprietors in 1963. The other beneficiaries brought an action in 1970 to have the transmission to the two daughters set aside. The learned trial judge found on the evidence that the second daughter had bought the land from her father but he said he was not satisfied that the other land had been sold to the first daughter. On the plea of limitation he held that the claim was not statute-barred. In the event he dismissed the plaintiff's claim in respect of the land sold to the second daughter but allowed the plaintiff's claim in respect of the other piece of land. The plaintiffs appealed and the respondents cross-appealed.

Held: (1) in this case, s 193 of the Kelantan Land Enactment was applicable and therefore the claims were statute-barred, as they were not brought within one year of the sale; (2) on the facts the pieces of land had been sold to the two daughters by their father in his lifetime and, therefore, the claim of the plaintiff should have been dismissed.

Che Mas bte Che Mamat v Kamariah bte Che Senik & Ors [1974] 2 MLJ 171 Federal Court, Kota Bharu (Suffian LP, Ali Hassan and Wan Suleiman FJJ).

The plaintiffs claimed as personal representatives of the estate of TBC for accounts and a declaration that several transfers of property belonging to the estate were procured by fraud, mistake or undue influence by the defendant, and for consequential reliefs. It was common ground that TBC died in 1955 and by his will appointed the first plaintiff and one LKH, his widows, his executrices and trustees. Probate was granted to them. LKH died in 1962 and in her place the second plaintiff herself also a widow of TBC was appointed a co-personal representative. The defendant and one TKE are two of TBC's sons. The first plaintiff and LKH, by two instruments, appointed the defendant and TKE their attorneys to administer the estate generally under the will. The powers of attorney were revoked after ten years. The plaintiffs alleged that at no time had the defendant ever given any accounts of his management and his several dealings with the assets of the estate. The plaintiffs took out a summons-in-chambers for accounts.

Woon Mooi Hua & Anor v Tan Kay Swee [1971] 1 MLJ 169 High Court, Ipoh (Chang Min Tat J).

Azali bin Bakar v Insun Development Originating Summons No 24-541-1993 High Court, Johor Bahru (Haidar J).

The vessel 'Captain Gregos' carried a cargo of crude oil from Egypt to Rotterdam under bills of lading which incorporated the Hague-Visby Rules. More than a year later the cargo owners' agents complained that there had been short delivery because of theft of some oil. The shipowners' P Club replied that the claim was time-barred because of art III, para 6 of the Hague-Visby Rules. The shipowners issued an originating summons to determine whether the time-bar applied. The High Court held that the time-bar did not apply to bar a claim for misdelivery of a cargo, as opposed to claims arising out of the transportation of the cargo. The shipowners appealed.

Held, allowing the appeal: the one-year time-bar in the Hague-Visby Rules was intended to apply to all claims arising out of carriage or miscarriage of goods by sea under bills of lading subject to the Rules. The cargo owners' claim was therefore time-barred and the appeal was accordingly allowed.

Cia Portorafti SA v Ultramar Panama Inc, The 'Captain Gregos' [1990] 3 All ER 967 Court of Appeal, England (Slade, Stockner and Bingham LJJ).

This is an application by the defendant by way of summons-in-chambers to discharge an order granted on 16 December 1981 in originating summons no 371 of 1981 extending a private caveat entered on 24 December 1975 in respect of a piece of land lot no 1165 in the State of Perak ('the said land') until the final disposal of the suit or its earlier withdrawal by the plaintiff. The plaintiff was a stockbroker and he obtained a resolution from the defendant to create a charge over the said land. This charge could not be and was never registered because the consent of the first chargee, United National Finance Bhd, could not be obtained and also because prior approval for the creation of the charge had not been obtained from the Mentri Besar of Perak. The plaintiff arranged to sell certain shares in Mosbert Bhd to Patel Holdings Sdn Bhd which in turn was to sell them to Hong Kong Securities Ltd. As the shares were not taken up by Hong Kong Securities Ltd, Patel Holdings Sdn Bhd sued the plaintiff in Penang, whereupon the plaintiff entered the said caveat to protect itself. The sole question for decision is whether the plaintiff's interest in the said land is of such a nature as to entitle it to caveat it under the provisions of s 323(1) of the National Land Code 1965 (Act 56/1965).

Held, allowing the application: (1) the order extending the caveat must be discharged and the caveat should be removed. Limitation has set in to bar the plaintiff from enforcing any rights, legal or equitable, under the agreement to create the charge; (2) costs of this application to be paid by the plaintiff in any event.

R & I Securities Sdn Bhd v Syarikat Tanaman dan Perusahaan Perak Sdn Bhd [1988] 3 MLJ 41 High Court, Johore Bahru (LC Vohrah J).

In 1928, the appellant obtained a loan of RM1,000 from one JL Patel, now deceased. Principal and interest at 24% per annum were secured by memorandum of charge of land which was duly registered. In 1953, RM1,100 was paid by the appellant to JL Patel who died in 1957. The respondent obtained a certificate in India under the Indian Succession Act 1925, empowering her 'to collect' this debt. There was no resealing of this order or letters of administration in North Borneo. The sum of RM6,400 for interest was owing in 1961 when respondent applied as chargee under s 111 of the Land Ordinance to the Collector for an order for sale of the charged land. The order was granted, and appeals were brought to the Director and then to the High Court, and to the Court of Appeal. By the date of the hearing in the Court of Appeal, the respondent had had the Indian certificate resealed in North Borneo and had been registered as chargee.

Held (allowing the appeal): as the respondent was not registered as chargee at the time she made application before the Collector and the certificate had not been resealed at that time, the whole proceedings were a nullity from the outset. The subsequent resealing and registration could not validate the proceedings from the outset. Obiter, the proper period of limitation for an application by a chargee under s 111 of the Land Ordinance is that prescribed by item 114 of the Schedule to the Limitation Ordinance (Cap 72).

Haji Akhbar Khan v D Patel [1960-1963] SCR 140 Supreme Court, Sarawak, North Borneo and Brunei

The respondent had charged his land to the appellants, the first time prior to 1968 and the second time in August 1968. The appellants registered the first charge on 14 August 1968, and the second charge on 13 August 1968. The respondent alleged that the appellants had fraudulently obtained the first charge. The appellants had obtained judgment against the respondent in 1969 and an order of execution had been made against the respondent. The respondent then brought an action praying for an order that the judgment entered against him be set aside and all execution proceedings be stayed. The appellants then applied to have part of the indorsement of claim struck out and this application was granted by the learned judge. He also dismissed the application of the respondent to amend the statement of claim to include an allegation of fraud. The respondent subsequently brought an action alleging that the appellants had taken an unfair advantage of his financial difficulties in executing the first and second charges and struck an unconscionable bargain. He therefore claimed the charges were never valid and ought to be cancelled. The appellants applied to strike out the respondent's writ and statement of claim on the grounds that it disclosed no reasonable cause of action or that it was vexatious and an abuse of the process of the court and the matter relied on was time-barred having occurred more than three years before the issue of the writ. The learned trial judge dismissed the application and the appellants appealed.

Held, allowing the appeal: (1) the learned trial judge had erred in not holding that the suit brought by the respondent disclosed no reasonable cause of action and was vexatious and an abuse of the process of the court; (2) on the issue of limitation, the respondent should also fail, the matter on which he relied on having occurred more than three years before the issue of the writ.

Chung Khiaw Bank Ltd v Tio Chee Hing [1987] 2 MLJ 701 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

Mahadevan & Anor v Manilal & Sons (M) Sdn Bhd [1984] 1 MLJ 266 Federal Court, Kuala Lumpur (Salleh Abas CJ (Malaya).

Bank Pertanian Malaysia v Mohd Gazzali bin Mohd Ismail [1996] 5 MLJ 692 High Court, Kuala Lumpur (Zaleha Zahari JC).

In this case the appellant appealed against the judgment of the sessions court which had dismissed his claim on the ground that it was barred by limitation. The cause of action in this case accrued on 17 June 1963. The summons and statement of claim were presented at the sessions court on 16 June 1969. The payment of fees and all other formalities were duly complied with by the appellant on the same date, but the summons was signed by the registrar of the sessions court only on 17 June 1969.

Held: as the appellant brought the action on the 16 June 1969 and he filed in the appropriate court the summons and statement of claim on the appropriate form and paid the requisite fee, his claim was not statute-barred.

Muthiah v Natesan [1973] 2 MLJ 182 High Court, Malacca (Pawan Ahmad J).

P had earlier granted an overdraft facility to D1. D2 and D3 jointly and severally guaranteed the repayment of the overdraft facility to P. Upon default in repayment, P sued D for the sum owing under the facility. P's application for summary judgment against D2 was dismissed by the registrar. Dissatisfied with the decision, P appealed to the High Court. In his statement of defence, D2 contended that P's action against him was time barred. D2 also contended that he was discharged from liability as a guarantor as there had been a substantial variation of the principal contract.

Held, allowing the appeal: (1) having regard to the terms of the guarantee, a cause of action arose against D2 only when a demand was made by P on him to pay the sum owing. Accordingly, for the purpose of the Limitation Act 1953, time started to run from the date of the letter of demand in question. In the circumstances, P's claim against D2 was not time-barred; (2) in the instant case, the extension of the period of the overdraft facility was not a substantial variation of the principal contract. Such an extension was not disadvantageous to D2. In fact, it was an advantage to D1 as well as to D2 and D3. In the circumstances, D2 was not discharged from liability as a guarantor; (3) as there were no triable issues raised by D2 in the appeal, the court ordered that summary judgment be entered against D2 in favour of P.

Bank Bumiputra Malaysia Bhd v Fu Lee Development Sdn Bhd & Ors [1991] 2 MLJ 202 High Court, Kuala Lumpur (Zakaria Yatim J).

The plaintiff appealed from an order of the High Court which decided that the plaintiff's claim for damages in a work accident was barred by limitation. The plaintiff was injured in a work accident on 20 April 1981. Under s 3 of the Limitation Act (Cap 14), the limitation period for the plaintiff's claim of damages was three years and as such, was to expire on 20 April 1984. The plaintiff tendered his writ at the High Court registry on 18 April 1984 and paid the proper fees. However, from the date on the writ, the writ appeared to have been sealed on 23 April 1984, which was two days after the last day of the limitation period. The defendant contended that under the Brunei High Court (Civil Procedure) Rules, the writ by which the action was commenced is to be deemed to have been issued when it was sealed.

Held, allowing the appeal: (1) the fact that the court cannot deem the writ to have been issued before 23 April 1984 does not compel it to hold that the suit was not 'instituted' on 18 April 1984; (2) the plaintiff lodged the correct papers for the institution of the suit and paid the proper fees on 18 April 1984 and, accordingly, the writ should have been sealed on, or as of, that date. There is no express provision to that effect in the rules but it is a matter of necessary implication. The suit was therefore instituted on 18 April 1984, before the expiry of the limitation period; (3) the date on which a suit is instituted may be crucial to the rights of the parties. To have those rights depend on the whim of a court functionary cannot be right. Such a thing cannot be allowed as an admissible feature of a civilized system of jurisprudence.

Kok Song Kong v BSP Co Sdn Bhd [1988] 2 MLJ 440 Court of Appeal, Brunei (Yang P, Silke and Godfrey JJ).

In this case. the plaintiffs had filed a writ and paid the fee therefor within the period of limitation but from the date appearing on the writ it seemed that the court official had signed and sealed the writ after the date of expiry. The following facts or points of law were not in dispute: (a) the road accident occurred on 6 November 1974; (b) the writ of summons in this action was filed with the High Court Registry at Kuching, on 2 November 1977 and the filing fee therefor was paid on the same date; (c) the writ of summons bore the date 'the 14th day of November 1977' which appeared to indicate that the writ was sealed on 14 November 1977; (d) under the Limitation Ordinance, the period of limitation is three years from the date the accident occurred (Item 92 of the Schedule thereto), and the period of limitation expired on 6 November 1977.

Held: (1) having regard to the provisions in O 2 r 8 the writ should be dated on the day the writ was filed and the filing fee was paid, and with the same date of the filing and the payment; (2) in this case, amendment to the writ should be allowed so that the date '14th day of November 1977' appearing on the writ of summons would read '2nd day of November 1977'; (3) the defence that the action in this case was statute-barred failed.

Jumatsah bin Daud & Anor v Voon Kin Kuet & Anor [1981] 1 MLJ 254 High Court, Kuching (Chong Siew Fai J).

The question for decision in this appeal was whether the Limitation Ordinance (Cap 7) ceases to run when the plaintiff requests the court clerk to prepare the summons or whether it continues to run until the summons is actually sealed and issued.

Held: the Limitation Ordinance continues to run until the summons is actually sealed and when the summons is sealed it is deemed to be issued and the action is then commenced.

Boota Singh v Isman bin H Ali [1957] MLJ 127 High Court, Singapore (Whyatt CJ).

[Annotation: This decision contradicts the later decisions in Jumatsah bin Daud & Anor v Voon Kin Kuet & Anor [1981] 1 MLJ 254 (Chong Siew Fai J) and in Muthiah v Natesan [1973] 2 MLJ 182 (Pawan Ahmad J) where it was held that the action was instituted upon filing of proper writ in the appropriate court and payment of the requisite fees.]

The plaintiff, who was involved in an accident on 20 April 1981, sought damages from the defendant for injuries to him caused by the negligence of the defendant. Pursuant to his claim, a writ in the action was presented at the Supreme Court Registry for filing and issue on 18 April 1984. The writ bears the seal of the court, the signature of the Chief Registrar and the date stamp for 23 April 1984. Owing to the fact that the writ was stamped 23 April 1984, a preliminary point of law was raised as to whether the proceedings in the suit was barred by reason of the provisions of the Limitation Act (Cap 14). The crux of the present case was whether the action was commenced when the writ was stamped and issued or whether it commenced anytime earlier.

Held: (1) the court had no doubt that this suit was instituted when the writ was issued; (2) the defence of limitation must succeed and the plaintiff's action must therefore be dismissed by virtue of s 3 of the Limitation Act (Cap 14).

Kok Song Kong v Brunei Shell Petroleum Company Berhad [1988] 1 MLJ 240 High Court, Brunei (Roberts CJ).

[Annotation: The decision was reversed on appeal: see [1988] 2 MLJ 440.]

In the case of a writ of summons for service out of jurisdiction, the date of institution of suit within the meaning of s 4 of the Limitation Ordinance 1896, is the date on which the writ is issued and sealed and not the date on which the application for leave to issue and serve the writ is made.

Mootiah Chitty v Ramasamy Chitty [1914] 1 MC 49 High Court, Straits Settlements (Hyndman-Jones CJ).

The limitation of three months, within which an action must be brought, as is required by the Indian Act XIV of 1856 (commonly called the Conservancy Act) applies only when the act or thing complained of is completed, but not when it continues.

Sandilands Buttery & Co v Municipal Commissioners [1872] Leic 309 Supreme Court, Straits Settlements

Loh Wai Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280 Federal Court, Kuala Lumpur (Wan Suleiman, Mohamed Azmi and Hashim Yeop A Sani FJJ).

On 26 September 1978, the plaintiffs entered into a sale and purchase agreement ('the agreement') for the purchase from the defendants of a shop unit in a building then under construction. The agreement incorporated The (Revised) Singapore Conditions of Sale 1948. The shop unit sold was described in the agreement as having an approximate floor area of 458 sq ft but the actual floor area of the completed unit was 17.9% less than this. The plaintiffs sued the defendants for damages. The defendants claimed that the plaintiffs' claim was time-barred (with the time being assessed from the date that the plaintiffs had notice of the shortfall in floor area) and that the plaintiffs had waived their claim by completing the agreement.

Held, allowing the plaintiffs' claim: (1) the delivery of the duplicate subsidiary strata certificate of title ('the COT') to the plaintiffs' solicitors would have given the plaintiffs notice that the defendants would not give them title to the unit with the contractual floor area. The plaintiffs could then decide to accept the renunciation and treat it as discharging them from further performance and sue for damages, or they might wait until actual completion and then sue; (2) since the plaintiffs completed the sale, the time for limitation started not from the date of delivery of the COT but from the date of completion. Hence, the plaintiffs' action was not statute-barred; (3) condition 11 of the agreement gave the plaintiffs, in the event of a substantial shortfall, the option of either annulling the agreement or completing the purchase and suing for the shortfall. Therefore, completion was not consistent only with waiver by the plaintiffs of their claim. It was not a clear and unequivocal representation that would have led the defendants to believe that the plaintiffs would not pursue their claim.

Ling Kai Seng & Anor v Outram Realty Pte Ltd [1991] 3 MLJ 441 High Court, Singapore (Goh Joon Seng J).

This was an appeal from the decision of the Federal Court ([1970] 1 MLJ 197) allowing an appeal from a judgment and order of the High Court by which the appellant was granted specific performance of a contract to purchase a certain piece of land. On this piece of land there was a big house in which the vendors/respondents lived, and two or three small houses which were let to tenants who were protected by the Control of Rent Ordinance 1956. On 16 May 1961, the parties entered into a contract of sale of the said land at the price of RM160,000. Briefly, the agreement was as follows: in consideration of RM1,200 paid to the vendors by the purchaser/appellant, the vendors granted him an option to purchase at the price of RM160,000 to be exercised within six months of the signing of the agreement. During such period the purchaser was to supply plans for submission by the vendors to the authorities for planning permission. Upon receipt of such permission, the purchaser was to pay the vendors forthwith the sum of RM40,000 by way of deposit to account for the purchase price, and the balance of RM120,000 within six months thereafter. However, in the event of planning permission being refused, the option was to be automatically extended for a further seven months. One of the conditions of the contract was that on payment by the purchaser of the sum of RM40,000, the vendors undertook to take steps to apply to the Rent Assessment Board for permission to evict the tenants on the land. It was also provided that if the vendors were unable to give vacant possession of the land, they would refund the sum of RM40,000 to the purchaser. In the event, planning permission was not forthcoming and the option became extended by a further agreement on 11 November 1961, whereby in consideration of a further sum of RM1,200, the vendors expressly agreed to the extension of the option to 15 May 1962. On 5 May 1962, the purchaser purported to exercise his option by remitting RM40,000 to the solicitors who had drawn up the agreement for both parties. On 4 May 1962, one of the vendors died. There was a lapse of some time within which period probate was applied for. On or about 8 June 1962, the deposit of RM40,000 was returned to the purchaser on the ground that the option had not been 'duly exercised'. Thereafter, there was no further correspondence between the parties, or any intimation given by the purchaser as to his intentions regarding the property, until the issue of a writ on 29 August 1966, in which he claimed specific performance of the contract. The vendors pleaded, inter alia, default on the part of the purchaser to exercise the option in strict compliance with the terms of the agreement and that, time being the essence of the contract, delay on the purchaser's part disentitled him to a decree for specific performance. The Federal Court held that in the circumstances of this case, the purchaser was not entitled to specific performance. The purchaser appealed.

Held, dismissing the appeal: (1) as the option was never duly exercised, the point upon which the Federal Court decided the case against the appellant, did not arise. But on the assumption that the respondents by their letters repudiated their obligations under the agreement, the appellant had no right to a decree for specific performance when he issued his writ on 29 August 1966; (2) on the same assumption, the appellant could have been entitled to recover damages for the vendors' breach of contract if he sued them before the period of limitation expired, but in his writ he did not claim damages as an alternative to specific performance. Quaere: whether the court could, in its discretion, have awarded damages in lieu of specific performance.

Loh Boon Siew v Chin Kim & Anor [1972] 1 MLJ 139 Privy Council Appeal from Malaysia (Lord Pearson, Lord Hodson, Lord Simon of Glaisdale, Lord Cross of Chelsea and Sir Gordon Wilmer).

The limitation to an action for goods sold and delivered, where there is no writing, other than a receipt for the goods, is three years under sub-s 9 cl 1 of Act XIV of 1859, as the non-payment of the price is merely a breach of contract.

Tungku Muda Malim v Khoo Tean Tek [1878] 1 Ky 453 High Court, Straits Settlements (Wood J).

When there is a written lease, a suit by the lessor for the recovery of such rates and taxes founded upon a breach of contract in writing falls within art 95 (now Cap 18, art 95) of the Second schedule to the Limitation Enactment 1896.

Khoo Ee Liang v Henry Waugh & Co Ltd [1934] MLJ 40; [1933-34] FMSLR 142 High Court, Federated Malay States (McFall J).

The plaintiff claimed from the defendants damages in respect of injuries sustained in a motor accident. The plaintiff alleged that the first defendant had negligently knocked him down with his car. The first defendant brought third party proceedings against Tan Chong & Sons Motor Co ('Tan Chong') claiming indemnity and contribution on the ground that 'Tan Chong' had breached an oral contract with him to purchase and to provide insurance cover for the car which he drove and met with an accident. The magistrate allowed the plaintiff's claim only against the first defendant but ordered 'Tan Chong' to indemnify him under O 12 r 1(b) of the Subordinate Courts Rules 1980. 'Tan Chong' appealed to the High Court only against the magistrate's decision ordering 'Tan Chong' to indemnify the first defendant in respect of his liability to the plaintiff. 'Tan Chong' argued, inter alia, that the third party proceedings were time-barred because the proceedings were commenced nine years after the breach of the alleged oral promise to the first defendant. The first defendant however contended that the limitation period began to run from the day he became aware of the breach of the oral promise by 'Tan Chong'.

Held, allowing the appeal: (1) the plaintiff's claim was a claim in tort while the third party proceedings was in contract, a dissimilar subject matter. The relief or remedy claimed in the third party proceedings could not be the same or substantially the same as that claimed by the plaintiff. The magistrate was thus wrong in allowing the third party claim under O 12 r 1(b) of the 1980 Rules. Nor could the third party claim fall under O 12 r 1(a) of the 1980 Rules; (2) since the third party proceedings were commenced after the breach of the oral promise in excess of the six-year limitation period imposed under s 6(1)(a) of the Limitation Act 1953 (Act 254), the third party claim was accordingly time-barred.

Tan Chong & Sons Motor Co Sdn Bhd v Arumugam [1992] 3 CLJ 1477 High Court, Alor Star (KC Vohrah J).

In this case, there was a contract between the beneficiaries to the estates of two deceased persons to transfer certain lands which was still registered in the name of the deceased. There was no contract of sale, no purchase money was paid and no possession of the said land was given to the appellant. Only the extracts of title were handed over. The appellant took no action to acquire possession of the land but waited 21 years to file the action for specific performance. The learned trial judge dismissed the action as being statute-barred. The appellant appealed.

Held: the appellant had not acquired any equitable interest in the said land which would have entitled him to convert to a real right or right in rem by registration of the title deeds in his name under the Land Code. All that the appellant had was a right ex contractu to sue the respondents for breach of contract. This remedy was barred by s 9(1) of the Limitation Act 1953 (Act 254).

Tan Shiang Shong v Tan Lee Choon & Anor [1985] 2 MLJ 369 Supreme Court, Kuala Lumpur (Abdul Hamid Ag LP, Mohamed Azmi and Syed Agil Barakbah SCJJ).

Sia Siew Hong & Ors v Lim Gim Chian & Anor [1995] 3 MLJ 141 Court of Appeal, Kuala Lumpur (Shaik Daud, Gopal Sri Ram and Siti Norma Yaakob JJCA).

The plaintiff gave an interest-free loan of RM7,000 to the defendants and another person. He had raised the sum by borrowing the money from a Chettiar firm on the security of land belonging to him. The defendants had agreed to pay the interest on this loan. The defendants failed to pay the monthly interest and as a result the plaintiff had to pay the loan together with interest. He claimed reimbursement of the sum paid by him.

Held: (1) the plaintiff was a person interested in the payment of the money within the meaning of s 70 of the Contracts (Malay States) Ordinance 1950 and, as a result of the defendant's failure to carry out their legal obligations, it was in the plaintiff's interest to pay off the loan in order to save his land from being foreclosed; (2) the cause of action in this case under s 70 only arose when the plaintiff paid off the loan to the Chettiar firm and not when the loan was made by the plaintiff to the defendants and therefore the action in this case was not statute-barred.

Yong Book Fong v Nallakaruppan Chettiar & Ors [1972] 1 MLJ 13 High Court, Kuala Lumpur (Mohamed Azmi J).

The plaintiff was a salesman for many years. He decided to go into business. He borrowed money from the defendant. The amount of money given as a loan is disputed. The business prospered. The plaintiff's case is that he has repaid the sums borrowed in 1974 and 1975 with interest and thereafter he lent money to the defendant, which is due to him and is the subject of this action. Around 1977/78, the defendant ran into financial difficulties. She sold her house in Thomson Road. In April 1980, the defendant purchased property at International Plaza. The plaintiff paid the 10% deposit of S$12,800.30 when the defendant signed the option. The option was exercised on 16 April 1980 and the plaintiff paid a further S$12,800.30 for the 10% deposit. On 30 April 1980, the plaintiff paid to Tan Lee & Choo S$22,884.82 when the completion account was drawn up. Between 1980 and 1983, the plaintiff paid OCBC Finance the monthly mortgage payments. On 10 February 1983, the plaintiff paid the defendant S$20,000. The defendant does not dispute this amount. The defendant, however, claims that the payment of S$20,000 was her share of the profits from Milan Shoes. The defendant sold her property at the International Plaza in July 1983 for S$300,000 and the balance due to her after payments that were due was S$217,292.10. The defendant's solicitors on 11 July 1983 made out a cheque for S$20,000 to be paid to the defendant and further sums of S$17,000 to the plaintiff on 22 August 1983 and released S$2,037.46 on 10 January 1984 to the plaintiff. The defendant claimed the S$17,000 was a loan to the plaintiff. The defendant submits that the plaintiff's action is time-barred under s 6(1)(a) of the Limitation Act (Cap 163). Held, allowing the claim: (1) the court rejected the defendant's claim that the S$17,000 is a loan to the plaintiff or that the sum of S$2,037.46 was not paid to the plaintiff for sums due to him. The letter of authority does not speak of any loan or other agreement made by the defendant to the plaintiff and the defendant is in any event estopped from claiming the sums she authorized the solicitors to pay the plaintiff; (2) the defendant claimed that the plaintiff had borrowed S$160,000 from her. It is a claim made by the defendant in desperation and as a ploy in the hope that she can avoid paying the plaintiff what she owed him. The court rejected the defendant's claim that she lent the plaintiff S$160,000 by way of investments and sums due to her; (3) the court found as a fact that the defendant did not have investments in the plaintiff's business and the plaintiff took no loan of S$160,000 from the defendant and gave her no 'Ang Pow' of S$20,000; (4) the payment by the solicitors to the plaintiff was not denied and the payment of S$39,037.46 was properly authorized by the defendant and the payment of it to the plaintiff was payment for sums advanced by the plaintiff. The court found as a fact that the plaintiff advanced the equivalent of the purchase price for the International Plaza property and that the defendant promised and did make part payments pursuant to her promise of S$39,037.46; (5) the defendant's claim that she was a partner in the plaintiff's business of Supreme Shoes is rejected; (6) the practical question for the court is not what s 6(1) of the Limitation Act means but what it means on the facts. A question of construction arises when one side submits that a particular provision of an Act covers the facts of the case and the other side submits that it does not. Or it may be agreed it applies, but the difference arises as to its application; (7) in the context of the facts of this case, the limitation defence made available by Parliament for reasons of public policy is not available to the defendant; (8) action should be taken to redress the wrong that would be done when loans are given to friends and relatives without any express terms or with loose terms as to when repayment should be made. Where money is borrowed for a special need or on an urgent occasion, the payor accepts a statement which amounts to no more than 'payable when able'. It is unfair and it is difficult to believe that Parliament intended friendly and family loans to be as formal as business contracts or that moneys borrowed on such occasions need not be repaid because ties of friendship or of blood resulted in time being given for repayment and lame excuses accepted in the interests of friendship and family.

Tang Boon Loong v Chin Mui Lan Suit No 1623 of 1989 High Court, Singapore (KS Rajah JC).

In this case, the respondent, a licensed housing developer, had entered into a contract for the purchase of a shop house to be erected on a housing estate for RM175,000 payable by stage payments as the building proceeded. Clause 17 of the contract provided: 'Subject to clause 32 hereof and/or to any extension or extensions of time as may be allowed by the Controller the said building shall be completed and ready for delivery of possession to the purchaser within eighteen (18) calendar months from the date of this agreement. Provided always that if the said building is not completed and ready for delivery of possession to the purchaser within the aforesaid period then the vendor shall pay to the purchaser agreed liquidated damages calculated from day to day at the rate of 8% per annum on the purchase price of the said property from such aforesaid date to the date of actual completion and delivery of possession of the said building to the purchaser'. In fact the building was not completed on the due date ie 18 September 1975. Possession was not finally delivered until 7 November 1977. On 21 April 1980, the appellant demanded payment of the sum of RM29,972.01, a sum equivalent to 8% on the full price RM175,000 calculated for a period of 25 months and 21 days. On 9 September 1982, the appellant applied for summary judgment. Judgment was given by the senior assistant registrar for the appellant. The respondent appealed to the High Court, where the appeal was allowed, the learned judge holding that it was statute-barred as he held that the action had accrued on 18 September 1975 when the period of 18 months prescribed by the contract expired. A further appeal to the Federal Court was dismissed see [1984] 2 MLJ 280, and the appellant appealed to the Privy Council.

Held: (1) the whole tenure of clause 17 of the contract is that the vendor is assuming as a matter of contract and subject to the occurrence of the condition provided that the building remains uncompleted on the stipulated date, an express contractual obligation to pay a single sum which cannot become due, because it cannot be ascertained, until the building has been completed and possession can be delivered; (2) the only sensible construction of clause 17 is that it imposes an obligation to pay in substitution for any other right to damages which the purchaser might otherwise have, a single sum to be calculated and ascertained at a particular date and that until that sum has been ascertained it does not become due and cannot be sued for; (3) the appeal should be allowed and the order of the senior assistant registrar restored.

Loh Wai Lian v SEA Housing Corp Sdn Bhd [1987] 2 MLJ 1 Privy Council Appeal from Malaysia (Lord Bridge of Harwich, Lord Templeman, Lord Griffiths, Lord Mackay of Clashfern and Lord Oliver of Aylmerton).

A contract was to be performed upon the happening of a contingency. The contingency happened more than three years prior to the date of institution of the suit. There was no notice of refusal of performance.

Held: the word 'date' in art 92 of the schedule to the Limitation Enactment (Cap 18) does not include the happening of a contingency and that, as there was in this case no notice of refusal of performance, the claim was not barred by limitation.

Tasir v Jamila & Ors [1939] MLJ 247 High Court, Federated Malay States (Murray-Aynsley J).

Choo Michael v Loh Shak Mow [1994] 1 SLR 584 High Court, Singapore (Goh Joon Seng J).

Where two different sums of money were placed in the hands of a chettiar banker, one on deposit ('thavanai') and the other on current account, on the terms that in the first case the money should be repayable on demand at any time after the expiry of the first three months from the date of the deposit, and that in the other case the amount should be repayable on demand, in a suit for the recovery of both amounts long after the expiry of the first three months of the deposit account.

Held: (1)

Held: the claim in each case is for money deposited under an agreement that it shall be payable on demand and comes within the purview of art 42 in the Schedule to Ordinance No 56 (Limitation) and the time from which the period of limitation begins to run is the date when the demand for payment is made. The word 'deposit' in art 42 covers the case of money placed in the custody of a banker by his customer and does not necessarily imply the existence of any fiduciary relationship between the parties. The plaintiff opened an account with a chettiar firm in the name of his sister by depositing therein his own money intending it for her maintenance and support. He drew on the account from time to time for her benefit but before the money was exhausted she died. the balance of the money in the account was the property of the plaintiff, who was entitled to sue for it.

Sockalingam Chettiar v Palaniappa Chettiar [1935] MLJ 74 Court of Appeal, Singapore (Thomas CJ (FMS).

'Thavanai' transactions are loans and not deposits and the limitation period begins to run from the end of the first 'Thavanai' period and not from the date when the demand for payment is made. In view of s 15 of the Moneylenders Ordinance 1951 repayment of money lent on a 'Thavanai' letter was not enforceable.

RMPN Arunachalam Chettiar v ARPL Palaniappa Chettiar [1974] 4 MC 234 High Court, Malacca (Pawan Ahmad J).

[Annotation: Reference may be made to the cases of NN Sockalingam Chettiar v Palaniappa Chettiar [1935] MLJ 74 and Firm of TARCT v The Firm of SNARN [1954] MLJ 72 where the Court of Appeal held that the 'Thavanai' transactions are deposits and the period of Limitation begins to run from the date when the demand for repayment is made. However these two cases were decided under the Old Straits Settlements Limitation Ordinance.]

In computing the period prescribed by art 98 of the schedule to Ordinance No 56 (Limitation) the nature of the proceedings instituted upon the judgment is material. The exception contained in the latter part of s 12 applies as well to service of a proceeding to enforce a judgment as to a new action founded on the judgment.

Neo Ong Tew v Neo Ong Hee [1926] SSLR 120 Court of Appeal, Straits Settlements (Murison CJ, Brown and Deane JJ).

In this case, the respondent brought an action for an order that the appellant execute a transfer of the title of a piece of land which the respondent claimed had been sold to her. The appellant's defence was that the action was time barred as it was commenced more than 12 years after the title was registered in the appellant's name. The previous solicitors of the appellant had written to the respondent that the appellant was prepared to sign a transfer of the land into the name of the respondent. The learned trial judge held that the letter of the solicitors for the appellant was a sufficient acknowledgment and therefore the respondent's claim was not statute-barred See [1980] 1 MLJ 240. The appellant appealed.

Held: (1) as the facts showed that the respondent was in possession of the land and had built two or three houses on it, she was the equitable owner of the land and so long as she was in possession of the land she did not lose her rights simply by not proceeding at once for specific performance; (2) in the circumstances it was unnecessary to consider whether an acknowledgment made after the expiry of the period of limitation could revive the period of limitation.

Tengku Mariah bte Sultan Sulaiman v Halimah bte Abdullah [1980] 2 MLJ 234 Federal Court, Kota Bahru (Raja Azlan Shah CJ (Malaya).

The plaintiff in 1946 entered into an agreement with the defendant and her brother, who were the beneficiaries to the estate of one Hamat, to purchase a piece of padi land, which was registered in the name of the deceased, for a consideration of RM500. She went into occupation of the said land and cultivated it with padi and had since reaped the economic crops and enjoyed possession and profit without hindrance from the beneficiaries for a period of 19 years. She had also paid the annual quit rents for the land. She had repeatedly asked the beneficiaries to take out letters of administration in respect of the deceased's estate so that they could transfer the said land to her, but they did nothing. After unsuccessful attempts by the plaintiffs to get the land transferred to her, she instituted these proceedings claiming inter alia, that the land in question be transmitted and registered in her name.

Held: (1) as from the time the plaintiff went into occupation she was the equitable owner of the said land. What was required now was to clothe the equitable estate with a legal title. She was therefore entitled to the relief claimed; (2) in this case, time did not run against the plaintiff as it was not that species of laches which would prevail against the equitable title.

Munah v Fatimah [1968] 1 MLJ 54 High Court, Kota Bahru (Raja Azlan Shah J).

Lam Wai Hwa & Anor v Toh Yee Sum & Ors [1983] 2 MLJ 302 Privy Council Appeal from Malaysia (Lord Keith of Kinkel, Lord Elwyn-Jones, Lord Scarman, Lord Brandon of Oakbrook and Lord Brightman).

In this case, the deceased a Chinese had married the first appellant according to Chinese custom. On his death the first appellant obtained letters of administration to his estate. The deceased had married the first respondent, while his first marriage was still subsisting. The marriage was conducted according to Buddhist rites and was registered under the Registration of Marriages Enactment. The deceased in his lifetime gave a monthly allowance for the maintenance of the first respondent and her children and after his death in 1960 this was continued until 1975. When the respondent discovered that she and her children were left out as beneficiaries of the deceased's estate, she applied to the court for a declaration that she was entitled to share in the estate. The appellants contended (a) the first respondent's marriage to the deceased was null and void; and (b) the claim was caught by the statute of limitation. Suffian LP sitting in the High Court held that the marriage was valid and also that the claim was not statute-barred. The appellants appealed.

Held: the claim was not statute-barred as time began to run from the time the first respondent and her children ceased to be treated as beneficiaries by the appellants.

Lam Wai Hwa & Anor v Toh Yee Sum & Ors [1981] 2 MLJ 139 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ, Syed Othman and Salleh Abas FJJ).

The limitation period for an action in respect of a personal estate is 12 years. No right of such action arises before the distribution of the residuary estate.

Re Estate of Choong Lye Hin, deceased; Choong Gim Guan v Choong Gim Seong [1977] 1 MLJ 96 Federal Court, Penang (Suffian LP, Lee Hun Hoe CJ (Borneo).

This was an appeal by the plaintiff against the decision of the assistant registrar striking out, on the application of the first defendant, the writ of summons which was filed on 19 December 1986, on the ground that the action as indorsed on the indorsement of claim showed that it had been time-barred. The plaintiff in the indorsement claimed as administrator of the estate of Rajendran, the deceased, and on behalf of one Amirthammal under s 8 of the Civil Law Act (Cap 30) against the second defendant as servant of the first defendant for being negligent in the fatal treatment of the deceased on or about 7 November 1983 at the Alexandra Hospital. The plaintiff submitted that his claim was an estate claim subject to the normal limitation period of six years under s 6(1)(a) of the Limitation Act (Cap 163, 1985 Ed) read with s 7(1) of the Civil Law Act (Cap 43, 1985 Ed) and not, unlike a dependency claim, subject to a limitation period of three years by virtue of s 11(5) of the Civil Law Act.

Held, dismissing the appeal: (1) the estate claim of the plaintiff in the present case was in effect a claim for damages for personal injuries which, but for s 7(1) of the Civil Law Act, would not have survived at common law. Section 7(1) merely preserved the cause of action posthumously and no more. Unlike s 11(5) of the Civil Law Act in relation to dependency claims, it did not extend or purport to extend, upon the death of the injured person, the limitation period of three years prescribed by s 6(4) of the Limitation Act; (2) s 6(4) of the Limitation Act applies to all actions for damages for negligence or breach of duty where the damages claimed include damages in respect of personal injuries; (3) the present claim was a claim for damages for negligence and was therefore time-barred at the commencement of these proceedings.

Masilaman Vellasamy v Attorney General & Anor [1988] 1 MLJ 3 High Court, Singapore (Chan Sek Keong JC).

This was an appeal from an order of Barakbah J on an application by way of summons-in-chambers to vary an order of the First Division of the High Court of Kedah made on 17 February 1940, which application was allowed by the learned judge.

Held: (1) once the magistrate had arrived at a decision which was upheld by the First Division of the High Court in the appellate jurisdiction the matter became res judicata on the principle in Raja of Ramnad v Velusami Tevar AIR 1921 PC 23, and as such the present High Court has no power to vary an order of the former High Court of Kedah; (2) the summons-in-chambers was barred by limitation. Per Good JA: ' ... the purpose of the proceedings commenced by the summons-in-chambers here was to obtain execution of a judgment. Such proceedings must, under the Kedah Limitation Enactment (No 60) which was repealed on 18 February 1953, be brought within 12 Muslim years from the date of the judgment; and, under the Limitation Ordinance 1953 which came into force on 19 February 1953, within 12 Gregorian years from the date on which the judgment became enforceable.'

Daud v Ibrahim [1961] MLJ 43 Court of Appeal, Penang (Hill and Good JJA and Hepworth J).

Daud v Ibrahim [1961] MLJ 43 Court of Appeal, Penang (Hill and Good JJA and Hepworth J).

The court has no inherent jurisdiction to extend time for limitation period except where such power is expressly conferred by statute.

Central Electricity Board v Commissioner of the Federal Capital & Anor; Insurance Company of North America (Third Party) [1967] 2 MLJ 161 High Court, Kuala Lumpur (Gill J).

This was an appeal against the decision of Barakbah J reported in [1958] MLJ 271. The Court of Appeal, in dismissing the appeal, held that the period prescribed by s 8(3)(b) of the Civil Law Ordinance 1956, was a period of limitation and that item 12 of Part A of the Second Schedule of the Courts Ordinance 1948 was merely declaratory of the jurisdiction of the High Court to enlarge the time prescribed by any written law for doing any act or taking any proceedings, always providing there was express provision in the particular written law itself which enabled such time to be so enlarged.

Lee Lee Cheng v Seow Peng Kwang [1960] MLJ 1 Court of Appeal, Ipoh (Thomson CJ, Rigby and Hepworth JJ).

The High Court does not possess any inherent discretionary power to dispense with the specific provisions as to limitation and the strict grammatical meaning of the words is the only safe guide. It has no power to resuscitate an action which must fail in limine upon a plea of limitation.

Lee Lee Cheng v Seow Peng Kwang [1958] MLJ 271 High Court, Ipoh (Syed Sheh Barakbah J).

The present case concerns four consolidated actions against the defendant, the administrator of the estate of one Chee Hatt Kong, the driver of one of the two cars which collided on 20 December 1978. The plaintiff in the second action and driver of the car, Lim, sued as administrator of the estate of one Hee, his former wife, who was killed in the said accident. The other three claims were brought by Chen and Hou, who were both passengers in the car driven by Lim, and by Lim on his own behalf, in respect of injuries sustained in the said collision. The claim against the estate was brought one year and ten months after the grant of administration. The defendant made a preliminary objection to all four suits. He contended that all four actions were barred by effluxion of time, by virtue of the provisions of the Fatal Accidents Acts 18461908 and the Law Reform (Miscellaneous Provisions) Act 1934.

Held, dismissing the plaintiff's claims: (1) the earlier and special provisions of the Fatal Accidents Acts, giving a right where none existed before and imposing on such right of action a special limitation period, have not been affected by the later general provision; (2) the justification for the time limits imposed by the acts is as valid in Brunei as in the United Kingdom. The prime object of the restriction is to ensure that claims on behalf of an estate, and more particularly against an estate, shall be pursued with reasonable speed, so that the beneficiaries of the estate will be able to enjoy whatever share is due to them as soon as possible. To allow claims to be brought against the estate of deceased persons many years after death, would greatly inhibit the sensible and swift administration of their estates; (3) on 25 April 1951, the provisions of the Fatal Accidents Acts and of the Law Reform Act, in toto and unamended, became part of the law of Brunei. The periods of limitation contained in the Fatal Accidents Acts and the Law Reform Act are preserved by s 5 of the Limitation Enactment 1962. Consequently none of the other provisions of the 1962 Enactment are applicable to claims which are based upon the Fatal Accidents Acts or the Law Reform Act; (4) therefore the four claims were barred and no action could be maintained against the defendant. Per curiam: 'The Limitation Enactment itself ... is based on an Indian act which is more than 70 years old. It has clearly fallen badly behind English law which, since 1951, has lengthened the period during which an action can be brought under the Fatal Accidents Act to three years and may ... also have amended s 1(3)(c) of the Law Reform Act. Furthermore, the discretion which was conferred on a court by the Limitation Enactment 1918, to permit an action to proceed outside the limitation period in a proper case, has been conferred upon the courts in England by the 1975 Limitation Act. I suggest for the Attorney General's consideration, that a discretion of this kind might be conferred on the Brunei courts, so as to enable them to extend the period in the exceptional case.'

Chen Fung Ying & Ors v Chee Hatt Sang [1982] 1 MLJ 370 High Court, Bandar Seri Begawan (Roberts CJ).

In proceedings in Rangoon the plaintiff firm was sued by the defendants and judgment was given against the plaintiffs for Rs 30,881/15/3 together with interest and costs. The plaintiff firm appealed against that decree but were unable to obtain a stay of execution and as a result of such execution the defendant obtained Rs 20,000 from the plaintiff firm. On 2 December 1931 when the case came before the appellate court in Rangoon the appeal was allowed and the judgment reversed. The appellate court, however, was not able to give relief by way of restitution and the plaintiff firm thereafter had to apply to the court of first instance itself for an order to give effect to the relief to which the plaintiff firm were entitled under the decree of the appellate division. The date of the judgment of the Court of Appeal was 11 May 1933. The court of first instance made an order directing restitution of Rs 22,690 with interest and costs, the date of such decree being 10 July 1933. On 7 July 1939 this action was commenced in Penang.

Held: as the judgment of the Court of Appeal gave no positive relief to the plaintiff firm, the plaintiff firm was correct in suing upon the restitution decree of 10 July 1933 rather than upon the judgment of the Appeal Court in Rangoon and that accordingly the suit was not barred by limitation.

Veerappa Chettiar & Anor v Supramaniam Chettiar [1940] MLJ 9 High Court, Penang (Aitken J).

Article 77 in the Second Schedule of the Limitation Enactment 1896, is wide enough to include an action for damages for deceit. The 'other relief' referred to in that article need not be of the same kind, as 'setting aside a decree obtained by fraud', and the article is not thus limited to specific relief on the ground of fraud.

Alagappa Chetty v Ban Joo Lee [1930] 7 FMSLR 179 High Court, Federated Malay States (Mudie J).

Ah bte Bakar v Itam bin Sa'ad [1952] MLJ 66 High Court, Alor Star (Briggs J).

Tio Chee Hing v Chung Khiaw Bank Ltd Suit No K209 of 1990 High Court, Kota Kinabalu (Ian Chin J).

Guoh Sing Leong (administrator of the estate of Goh Koh Boey, deceased) v Hock Lee Amalgamated Bus Co (Pte) Ltd Suit No 1753 of 1990 High Court, Singapore (Lai Siu Chiu J).

The Crown is not bound by the special period of one year's limitation in art III r 6 of the Carriage of Goods by Sea Ordinance (Cap 173, 1955 Ed) in the absence of an express provision or necessary implication.

British Lighterage Co v Lord High Admiral of the United Kingdom [1961] MLJ 195 Court of Appeal, Singapore (Rose CJ, Tan Ah Tah and Wee Chong Jin JJ).

Held, by Thorne J, at the trial: the provisions of the Limitation Enactment (Johore) 1915, are applicable to suits between subjects and state. Held, in the Court of Appeal (Sproule J, and Terrell J) by Sproule J: the State of Johore has foregone a separate statute dealing with suits between the state and a subject, and by the inclusion of one single item of that class of suit in the schedule of the Limitation Enactment, has made the whole enactment applicable to all state-and-subject suits in general. Per Terrell J: the Limitation Enactment does not affect the state except in suits in which arts 6, 7 and 116 of the Second Schedule are applicable.

Tungku Tengah v State of Johore [1931] 7 FMSLR 226 Court of Appeal, Johore (Sproule and Terrell JJ).

[Annotation: This decision was given before the coming into force of the Government Proceedings Ordinance 1956 (Ord 58/1956) and Public Authorities Protection Act 1948 (Act 198) (Revised 1978).]

The plaintiff brought an action to recover damages arising out of a traffic accident. The accident took place on 2 April 1963. The writ was submitted to the Registry on 1 April 1964, with instructions that it was not to be issued until further instructions were received from the solicitors for the plaintiff and it was not finally scaled and issued till 18 January 1965. The driver of the government motor vehicle was not made a party to the action.

Held: as the action was not commenced within 12 months after the neglect or default complained of and as the servant of the government was not also made a defendant to the action, the action could not proceed and must be dismissed.

Haji Abdul Rahman v Government of Malaysia & Anor [1966] 2 MLJ 174 High Court, Kota Bharu (Abdul Aziz J).

[Annotation: The limitation period for action against public authorities has been amended to three years: see Public Authorities Protection Act 1948 (Act 198) (Revised 1978).]