Ernst & Young v Maxbiz Corp Bhd
COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL NO W-02–987 OF 2007 GOPAL SRI RAM, HELILIAH AND AHMAD MAAROP JJCA 30 APRIL 2008 Civil Procedure — Striking out — Action — Whether plaintiff would succeed on pleaded case — Whether appellate court could examine documents and facts to decide whether plaintiff had cause of action — Whether would amount to usurpation of function of trial judge Tort — Negligence — Duty of care — Three fold test — Whether it was fair, just and reasonable to impose duty of care — Whether meticulous examination of facts and circumstances called for
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B
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D
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The plaintiff/respondent was jointly incorporated by two other companies, to take over the assets and liabilities and to inject capital into Geahin Engineering Bhd (‘Geahin’), a public listed company, which had become financially strained. The defendant/appellant was the auditor of Geahin and the adviser of the restructuring scheme. The plaintiff ’s case in the court below was that during the course of the restructure, the defendant had rendered advice to it upon which it acted to its detriment. However, the defendant contended that its advice was accompanied with a caution which sufficiently excluded the defendant from liability to the plaintiff and therefore sought an order to strike out the plaintiff ’s claim under O 18 r 19 of the Rules of the High Court 1980. The application was dismissed by the High Court and hence this appeal.
F
G
Held, dismissing the appeal with costs: (1) It is well settled that the existence of a duty of care in given circumstances is a mixed question of law and fact. The three fold test formulated in Caparo Industries v Dickman [1990] 2 AC 605 and adopted by the Federal Court in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389 calls for
