Professional Documents
Culture Documents
COA Res Judicata
COA Res Judicata
COA Res Judicata
ANTARA
PERAYU
DAN
OH CHAR HONG (NO.K/P: 1845323)
RESPONDEN
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Antara
EON Bank Berhad (92351-1v)
Plaintiff
Defendan
Dan
Oh Char Hong (No.K/P: 1845323)
CORAM
GROUNDS OF DECISION
[1]
Appellant) against the decision of the learned High Court Judge who
had dismissed the Appellants application for an order for sale of a
piece of land held under HS (D) 11375 PT 36552, Kuala Lumpur (the
said land) that was charged to it by Oh Char Hong (the Respondent).
The Appellant had applied for the sale of the said land under section
256(2) of the National Land Code (the NLC). The learned High Court
Judge held on 9.2.2011 that the Respondent had shown cause against
the making of an order for sale. We now give our reasons for allowing
the appeal.
[2]
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[3]
The 2000 OS was heard before Justice Yaacob Bin Haji Ismail
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(c)
[6]
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[8]
Appellants application.
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[9]
parties, we decided to intervene and allow the appeal for the following
reasons.
Res judicata
[10] With regard to the issue whether the Appellants present
application for sale is caught by the doctrine of res judicata in the light
of the decision in the 2000 OS, we did not think it was. In Low Lee Lian
v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77 the Federal Court explained
that an application for sale of charged land under s 256 NLC is a
proceeding in rem and not an action in personam. The Federal Court
further pointed out that a chargee who applies for an order for sale is
exercising his statutory remedy under the provisions of the NLC and
any resultant order for sale when made pursuant to s 256 of the NLC is
not a judgment. The Federal Court also referred to the judgment of the
Supreme Court in Kandiah Peter v Public Bank Bhd [1994] 1 MLJ 119
which held that the making of an order for sale did not bar a subsequent
action in personam brought by the chargor based upon the same facts
which did not avail him in opposing an application for sale under s 256
NLC. The reason for this was given in that passage of the judgment in
Kandiah Peter v Public Bank Bhd (supra) where Eusof Chin SCJ
speaking for the Federal Court said:
It is equally settled law that in order for the doctrines of res
judicata, cause of action estoppel or issue estoppel to apply, the
earlier proceedings must have resulted in a final judgment or
decree: 16 Halsburys Laws of England (4th Ed) para 1519. This
requirement is not met by foreclosure proceedings which, as we
have observed earlier, do not result or terminate in a final judgment
or decree.
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[11] Reverting to the facts in our case, even though the Appellant
withdrew its appeal in the 2000 OS, such withdrawal did not have the
effect of the judgment in the 2000 OS being deemed final and
conclusive so as to attract the doctrine of res judicata as the learned
High Court Judge held.
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accrued right under s 8(2) as the amending Act did not clearly and
specifically provide that subsection (2A) would have retrospective
effect. It was therefore not intended to have a retrospective effect.
If read otherwise, it would produce an unjust result as that
subsection deals with a substantive right.
[13] Reverting to the facts here, the Appellants charge was registered
against the said land on 21.1.1986, which was well before subsection
(2A) of s8 came into force on 17.7.1992. Accordingly, since subsection
(2A) does not have retrospective effect, the Appellants accrued rights
as a secured creditor remained unaffected.
Limitation and Laches
[14] On the issue of whether the Appellants application is time barred,
the learned Judge said the charge expressly stated that the loan was
for 6 months and therefore should have been repaid in July 1986. But
since the present application for sale was filed on 16.2.2009, which is
some 22 years later, the learned Judge held that the action is caught by
limitation and laches.
[15] The relevant provisions in the Limitation Act 1953 relating to
foreclose actions are s 21(1) and (2) which both lay down a limitation
period of 12 years to bring an action from the date when the right to
receive the money accrued(s 21(1)) or from the date when the right to
foreclose accrued (s 21(2)).
[16] In Peh Lai Huat v MBF Finance Bhd [2009] 5 CLJ 69, the Court of
Appeal held that s 21(1) and (2) of the Limitation Act 1953 did not apply
to the facts of the case there because the chargee there was exercising
its statutory remedy of sale under the provisions of the NLC and was
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[18] With regard to the question of laches, from the above facts we do
not think it can be said that the Appellants conduct had indicated that it
was waiving its rights against the Respondent. The Appellant has been
pursuing its statutory remedy of sale well within the 12 years period
after it had issued out its Form 16D notice under the provisions of the
NLC, both in the 2000 OS and in the present proceedings.
[19] It was for all the above reasons that we allowed the appeal and
granted the order for sale as we were satisfied that in respect of the
fresh application for sale, cause to the contrary had not been shown
within the meaning of that term as explained in Low Lee Lians case. In
so doing we also ordered that the amount payable at the date of the
order should be recalculated so that interest payable during the period
of the Respondents bankruptcy from 17.7.1992 until 19.2.2002 when
she was discharged of her bankruptcy, is deducted when calculating the
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amount due under the charge. We did so as this was not a case where
the Respondent had become a bankrupt and continued to remain so till
today.
Here, by the time the fresh Form 16D was issued out on
PARTIES:
For Appellant
For Respondents
Mr Chandran Nair
Messrs Thevin, Chandran & Nair
Advocates & Solicitors
Petaling Jaya
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